'What does it mean when we say that India is sovereign?' Constitution of India part 9

In the previous article you read that does India have a state religion. If you haven't read this then click here, and if you want to read this whole series then view the page or click here. 

The preamble of Constitution; as you know it is the first page of Constitution, says that India is a sovereign, socialist, secular and democratic country. So secular means equal rights to all people, but what is sovereignty? Lets look at this. Fun Fact- India  became secular in 1970s. The 42 Amendment of Constitution of India asserted that India was a secular nation this was enacted in 1976.

India is a sovereign nation, that means that it has the supreme and ultimate power, in short it means the independent authority of State. The Constitution of India says that it's power lies in it's people. Our country has complete independence to choose for  itself. It doesn't succumb to any other external power. This means we can choose our representatives, like we choose our Member of Legislative Assembly or MLA, through an election which is held in a constituency. They choose the further leaders and representatives of our Country and states.

In monarchies the sovereign power lies with the monarch. But since India is a republic so the power lies in its elected representatives. 

So to complete this article let's summarize it-

1. India is a sovereign and secular country.

2. We can choose our leaders and representatives by ourselves.

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'Does India have an official language?' Constitution of India part 8

 So, you may know that many countries have a state religion or an official religion. For example Monaco is a Christian country and it's state/official religion is Christian, Thailand is a Buddhist nation and it's state/official religion is Buddhism. So have you ever thought does India have a state or an official religion? If you are searching for this answer then you have visited the correct place.

India is a secular nation, means India doesn't really have a state/official religion. India shows equal respect to all religions. Article 25 of the Constitution guarantees 'Right to Freedom of Religion'. 

This means that any India citizen has a right for changing or choosing his religion. So Indian People are free to choose or practice any religion. People of India belong to different religions including Hinduism, Sikhism, Buddhism, Jainism, Christianity, Islam and several other small religions.

So let me conclude it for you-

1. State/official religion of a country is a religion accepted by the country.

2. Indian Constitution in it's Article 25 given 'Right to Freedom of Religion'.

3. That's why in India you can practice any religion of your choice.    

4. That why India is called a secular nation.

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'Why was Constitution drafted?' Constitution of India part 3

 Hello friends in this article you are going to know the reasons of why was Constitution Drafted.

India was under British rule before 15th August 1947. Even before independence our leaders demanded that Indians should also be involved in the governance and administration of our country. This resulted in implementation of Government of India Act 1935. According to this act, the governance and administration of some areas like health, agriculture, etc. was left to the local government of that area. 

When our country became independent on 15th August 1947, there was a demand of a foundation which would keep India's citizen equal. Then a permanent set of rules was made by Drafting Committee and Dr. B.R. Ambedkar played a key role in the formation of Constitution. It took 2 Years, 11 Months and 18 Days to make a complete draft of Constitution.

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'Which is the longest written Constitution in the world?' Constitution of India part 2

 Ever thought about which is the largest constitution? If yes, then you are going to get your answer in this article.

With 448 articles, 12 schedules in 25 sections, the Constitution of India is the largest Constitution in the world. The Constitution of India lays down the fundamental rights, directive principles and the fundamental duties of the citizens. It makes India a sovereign, socialist, secular, democratic, republic and assures liberty, equality and fraternity to all it's citizens.

The Constitution of India was prepared by the Drafting Committee. It was adapted by Constituent Assembly of India on 26 Nov, 1949 and came into effect on 26 Jan, 1950.

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'Why do we Have a Constitution?' Constitution of India Part 1

 Hello friends from this article we are going to start a new series, which is Constitution of India.

India, a truly diverse country. it is a beautiful combination of different languages, cultures, beliefs and occupations. So we need a strong and justice full foundation that can ensure harmony and that's what is our Constitution.

The Constitution is foundation of our government. It is the supreme law of our country. It provides rights and protection during times adversity to all citizens of India. It is a set of rules that are written, authorized and approved by the leaders of India at the time after our independence. Constitution is the last word when it comes to laws. In fact, it is the symbol of vision  and values of our country. It lays the basic structure of our Political system.

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Meaning and Definition of Law

Hello friends, in this blog I am discussing about various definitions of law. This blog is for the study purpose only. This is related to legal language.

State is sovereign. Sovereignty is its exclusive and most important element. It is the supreme power of the state over all its people and territories. The State exercises its sovereign power through its laws. The Government of the State is basically machinery for making and enforcing laws. Each law is a formulated will of the state. It is backed by the sovereign power of the State. It is a command of the State (sovereign) backed by its coercive power. Every violation of law is punished by the State. It is through its laws that the State carries out its all functions.

Various Definitions of Law

Law can be defined as a rule of conduct developed by the government or society over a certain territory. Law follows certain practices and customs in order to deal with crime, business, social relationships, property, finance, etc. The Law is controlled and enforced by the controlling authority.

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Here are some general definitions of law:

1. Law is the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.

2. Law is something regarded as having binding force or effect.

3. Law is a rule defining correct procedure or behaviour in a society.

4. In simple words, Law is a definite rule of behaviour which is backed by the sovereign power of the State. It is a general rule of human conduct in society which is made and enforced by the government’ Each Law is a binding and authoritative rule or value or decision. Its every violation is punished by the state.

Synonyms: rules and regulations, system of laws, body of laws, constitution, legislation, code, legal code, charter, jurisprudence, statute, enactment, act, bill, decree, edict, rule, ruling, resolution, promulgation, measure, motion, dictum, command, order, stipulation, commandment, directive, pronouncement, ratification, proclamation, dictate, diktat, fiat, covenant, demand, by-law, ordinance, ukase, pronunciamento, guideline, principle,

Antonym: anarchy,

Definitions of law by Various Scholars:

John Austin’s law definition states “Law is the aggregate set of rules set by a man as politically superior, or sovereign to men, as political subjects.” Thus, this definition defines law as a set of rules to be followed by everyone,  regardless of their stature. This is one of the positive definitions of Law.

As per Holland “A Law is a general rule of external behaviour enforced by a sovereign political authority.”

According to Friedrich Karl von Savigny:

Law is a matter of unconscious and organic growth.

The nature of law is not universal. Just like language, it varies with people and age.

Custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness because of customs.

Rudolph Von Ihering’s law definition. – “The form of the guarantee of conditions of life of society, assured by State’s power of constraint.”

This definition has three important parts as follows: 

1) the law is a means of social control. 

2) the law is to serve the purposes of the society. 

3) law due to its nature, is coercive.

Oliver Wendell Holmes stated – “Law is a statement of the circumstances in which public force will be brought to bear upon through courts.”

According to Benjamin Nathan Cardozo, “A principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged, is a principle or rule of law.”

As the above law definitions state, human behaviour in the society is controlled with the help of law. It aids in the cooperation between members of a society. Law also helps to avoid any potential conflict of interest and also helps to resolve them.

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LEGAL PROVISIONS FOR WOMEN IN IPC

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To uphold the Constitutional mandate, the State has enacted various legislative measures intended to ensure equal rights, to counter social discrimination and various forms of violence and atrocities and to provide support services especially to working women. Although women may be victims of any of the crimes such as 'Murder', 'Robbery', 'Cheating' etc, the crimes, which are directed specifically against women, are characterized as 'Crime against Women'. These are broadly classified under two categories.

(1) The Crimes Identified Under the Indian Penal Code (IPC)

(i) Rape (Sec. 376 IPC)

(ii) Kidnapping & Abduction for different purposes (Sec. 363-373)

(iii) Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)

(iv) Torture, both mental and physical (Sec. 498-A IPC)

(v) Molestation (Sec. 354 IPC)

(vi) Sexual Harassment (Sec. 509 IPC)

(vii) Importation of girls (up to 21 years of age)

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CONSTITUTIONAL PROVISIONS FOR WOMEN IN INDIA

The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them. Fundamental Rights, among others, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment.

Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in this regard.

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Constitutional Privileges

(i) Equality before law for women (Article 14)

(ii) The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (Article 15 (i))

(iii) The State to make any special provision in favour of women and children (Article 15 (3))

(iv) Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (Article 16)

(v) The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)); and equal pay for equal work for both men and women (Article 39(d))

(vi) To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities (Article 39 A)

(vii) The State to make provision for securing just and humane conditions of work and for maternity relief (Article 42)

(viii) The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46)

(ix) The State to raise the level of nutrition and the standard of living of its people (Article 47)

(x) To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A) (e))

(xi) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243 D(3))

(xii) Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243 D (4))

(xiii) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality (Article 243 T (3))

(xiv) Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide (Article 243 T (4))

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Contract Law: Short Question and Answers: Part 3

Hello friends. In this blog I am sharing some short question and answers regarding Indian Contract Law.


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Q. 1. Define "ab initio"
A. Ab initio is a Latin term meaning "from the beginning" and is derived from the Latin ab ("from") + initio, ("beginning").

Q 2. What is "void ab initio".
A. The term "void ab initio" means "to be treated as invalid from the outset." E.g., in many jurisdictions, if a person signs a contract under duress, that contract is treated as being "void ab initio".

Q 3. For which type of contracts a minor is bound?
A. A minor is bound for the beneficial contract. 

Q 4 What is a beneficial contract?
A. The beneficial contracts are those contracts which are for the benefit of minor.
Q 5 Which was first case of beneficial contract?
A. S. Subramanyam v/s Subha Roy-1948

Q 6 Enlist the various beneficial contracts?
A. Following are the beneficial contracts for a minor:

• Contract of Insurance
• Contract to purchase of the immoveable property 
• Contract of service
• Contract of apprentice ship
• Contract of Marriage
• Contract of Necessities 

Q 7 Which section describes the contract of necessities?
A. Section 68 of ICA, 1872 describes the contract of necessities.

Q 8 Is minor liable to compensate for the contract of necessities? When?
A. The minor is liable to compensate for the contract of necessities when he attains majority.

Q 9. Define the majority.
A. In India a person attains his or her majority at the age of 18 years.

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Majority Act, 1875 alongwith Guardians & Wards Act, 1890

Indian BareActs(Indian Law)

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Nature and Framework of Crime

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Hello friends here is one another article related to criminal law. The concept of crime was already described in this blog in which definition were also discussed. In this blog the detailed nature of crime is discussed. This blog is only for study purpose and for legal advice you must contact us trough the contact form at the bottom of this blog page.

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Crime is a changing concept dependent upon the social development of people that is upon the fundamental interest and values dominating their common beliefs. But as the time passed by and humans started to regularise themselves the Nature and Definition of crime became clearer.

Four main frameworks of a crime:

a) Crime as a social construction: - this poses a difficulty for creating a general definition of crime as it varies across cultures. For terms of Sec. 377 of IPC were decriminalised due to the changing in the minds of the public in general and all the people it was effecting. Also like the prohibition of alcohol drinking or smoking at certain places, the coalition of the public is necessary.

b) Crime as defined by religious doctrine or authority: - It creates conflicts between religions as well as between society and religion. Even in modern day society, a crime can be defined as an action that goes against the law of God at some places.

e.g. i) Sharia Law in Middle East,

e.g. ii) In Saudi Arabia, a woman driving is a crime and even though this law is absurd, that is the law.

e.g. iii) Honor killings and domestic abuse are examples of behaviour, which may be sanctioned within a particular religion but would disagree with basic state law, most commonly in westernized societies.

c) Crime defined by the law of a particular nation or state: - an act can only be defined as criminal in accordance to the laws of the state in which it was committed. This creates a difficulty in defining crime as what may be considered a criminal action in one state or country may not be viewed the same way in another.

There is a division created by the morals that tends the government to make rules which outlaws certain acts which wouldn’t have been a crime otherwise. 

e.g. i) Adultery is an offence in India under Section 497 of IPC but, it is no offence in America, it is civil wrong in England.

e.g. ii) Selling liquor in Maharashtra is legal whereas is a crime in Gujarat.

e.g. iii) Kerela has no restrictions on cow slaughter but cow slaughter in Andhra Pradesh and Telengana is a crime.

e.g. iv) The non-violent drug offences are considered as crimes because it is declared by the government. Indeed it wouldn’t be a crime the government didn’t categorise drugs something as illegal.

d) Crime is of individualistic responsibility and varies from time to time, so places blame on individuals rather than the systems they are contained within. However, by viewing crime in relation to social and political theory it is possible to look at the causes of a person’s behaviour, which may render them irresponsible for their actions, and also to define actions as crimes, which may not be considered so within the society itself. The nature of the crime changes from time to time as per the requirements of the present generation society.

e.g. i) during the reign of Hitler in Nazi Germany, the systematic slaughter of the Jewish race was not considered criminal; however, when viewed in retrospect, the Holocaust is considered to be the ‘greatest crime in history’. But during the trial only a small number of officers were named as personally responsible, because it was decided that many of those involved could not be charged as they were simply following the instructions issued to them by their superiors and so did not willingly commit the crimes.

e.g. ii) Similarly, the practice of ‘Sati’ prevailing in the primitive society is now strictly prohibited and is punishable.

Thus it can be concluded that no action in itself is criminal; it is the consequences that follow which define it as being so. An act cannot be classed, as a crime until the offender is caught and punished, in the absence of a public authority to do so, there is no crime.

The nature of crime is changing due to the changes in the society and the environment. The very definition of crime depends upon the values of a given society.

The changing nature of crime:

The changes have been noticed that people who did not committed crime, due to the availability of knowledge and technology are tempted to commit crime seeing how easily it can be done and various ways of avoiding to get caught.

Drug dealing which used to be done face to face in the middle of street with the fear of getting busted now can be done online with just some clicks of a keyboard.

Distance is just a number now with various means of transport are available a wrongdoer can easily commit a crime in one city and move to another city in hours.

The lack of interaction among people, not knowing who actually lives next door makes it easy for perpetrators to find their targets and commence their activities.

With such changing happening in the nation the police authorities are also required to change their methods of tracking the criminals and increase their technical ability. With the criminals being smart the authorities are required to be smarter.

Criminals are adapting to the measures taken by the police authorities.

Local gang members have noticed that they can make more money, with less risk of getting caught and smaller penalties if they do get caught, by using technology.

Neighbour Principle and other tests to determine the tort

The essential elements of a tort are already discussed. In this article the landmark judgments stating various tests for determining an act to be a tort are discussed.

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Donoghue v Stevenson established the “neighbour principle” which is used to determine whether or not the defendant owes a duty of care. The application of this test is based on whether or not a particular situation may be construed as one requiring a duty of care.

Caparo v Dickman provided a clearer application of the neighbour principle.

It defined the principle as requiring three elements in establishing duty of care:

a) reasonable foresight of harm;

b) sufficient proximity of relationship; and

c) that it needs to be fair, just and reasonable to impose a duty.

Caparo test will only be applied in situations where it may not be clear whether there is an established duty of care.

In order to determine whether the breach of duty of care exists, the courts will apply a two-part test:

a) the court will consider how the defendant should have behaved in that particular situation, and,

b) whether the defendant’s behaviour fulfilled the required standard of care.

In the case of Blyth v Birmingham Waterworks [1856] 11 Exch 781 it was established that the defendant must meet the standard of “the reasonable person”. This is an objective test that questions what a reasonable person would have done in that particular situation.

Any damages suffered by the claimant need to be a direct result of the breach of duty of care. If the defendant’s breach of duty has caused the loss to the claimant, then the causation is present. The principle of causation was considered in the case of Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 where it was held that although the defendant had breached a duty of care, this breach had not caused the death of the deceased.

In order to establish whether causation is present in the case, the courts will apply the “but for” test. This test asks “but for the defendant’s breach of duty, would the harm to the claimant have occurred?”:

a) If the answer is yes, then the claimant has failed to establish causation.

b) However, if the answer is no then causation is satisfied.

However, the case of Bonnington Castings Ltd v Wardlaw [1956] AC 613 established that where there is more than one possible cause of the injury to the claimant, causation can be established if it can be shown that the defendant’s action is the likely cause of the harm. This case established that it is enough to show that the defendant’s negligence “materially contributed to the harm” to the claimant.

McGhee v National Coal Board [1973] 1 WLR 1 further modified the “but for” test by adding that the claimant only needs to establish the defendant’s negligence by proving that the defendant “materially contributed to the risk of harm” to the claimant.

The case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon Mound (No. 1) [1961] AC 388 established the commonly applied test of remoteness which determines whether the damages suffered by the claimant are too remote. It considers whether the damage suffered is of such kind that the reasonable person would have foreseen it.

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Constitution for children

Children are future of nation, and every nation needs children for their future. As a nation, we are not expectation of great constitution we are all playing this responsibility very well. Do you know, as an Indian kid, what privilege we get from constitution? Our constitution refers several rights to younger citizens of country, and it considers most rights, those include in UN convention on the rights of the child as fundamental rights. The government has a good approach to undertake legislative, appropriate and administrative measures to ensure children’s rights. In term of Indian children, the rights given to our constitution include- Right to free and compulsory elementary education for all children in 6-14 age groups. Protected from any dangerous employment till age 14. And for being abused and forced to enter occupation that don’t suit for their age and strength. Equal opportunities and facilities to develop healthy manners and in condition of freedom and dignity and guaranteed protection of childhood and youth against exploitation and morals. To take care of early childhood care and education until they become 6 yrs old.

 As children have rights like other Indian adult citizens such as-

Right to equality, right against decimation, right to personal liberty due process of law, right being protected from being trafficked and forced into bonded labor, right of minorities for protection of their interests, right of weaker sections of the people to be protected from social injustice and all forms of exploitation and right to nutrition and standard of living and improved public health.

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Prerogative: Definitions, Meaning and synonyms

Meaning as noun: a right or privilege exclusive to a particular individual or class. e.g. "in some countries, higher education is predominantly the prerogative of the rich"

Variations: noun: prerogative; plural noun: prerogatives

Synonyms:

entitlement, right, privilege, advantage, due, birthright, liberty, authority, authorization, power, licence, permission, dispensation, leave, consent, warrant, charter, franchise, sanction, exemption, immunity, indemnity, carte blanche, droit

Meaning 2 in politics: the right of the sovereign, which in British law is theoretically subject to no restriction. noun: royal prerogative; plural noun: royal prerogatives,

Meaning 3: a faculty or property distinguishing a person or class. e.g. "it's not a female prerogative to feel insecure"

Meaning 4 as adjective in BRITISH LAW

Adjective: prerogative. arising from the prerogative of the Crown (usually delegated to the government or the judiciary) and based in common law rather than statutory law. e.g. "the monarch retained the formal prerogative power to appoint the Prime Minister"

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Hindi Meaning:

परमाधिकार, रिआयत, सुविधा, राजा का अबाध अधिकार, सुविधा-प्राप्त होनेवाला.

Marathi Meaning:

विशेष हक्काचा, विशेष हक्क

Sanskrit Meaning:

प्रक्रिया, अधिकार, पूर्वपरिग्रह

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Right in personum

Hello my reader friends, in this blog I am sharing notes. These notes are related to law study only. Underlined group of words are minimum necessary things you must incorporate in your answers. There may be a question to write a short note on this subject. 

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Right in personum or jus in personum is opposite to right in rem. 
This is derived from the Roman term "action in personum"
Right in personum gives the person rights against one person or party to the contract. 
A right in personum corresponds to a duty imposed upon determinate persons. It generally will correspond with a duty imposed on the said person or party. The Indian Contract Act grands right in personum to the parties of a contract. So the parties of a contract have this contractual rights only against each other. 

Rights under a contract are rights in personum for only the parties thereto are bound.

Right in personam binds only a particular person or persons.

Rights in personum are usually positive. It is acquired because the subject stands in some special relationship towards another person as in the case of a contract.

Rights in personum may also be negative as in the case of sale of goodwill when the seller undertakes not to set up a rival business within the prescribed area and period of time.

Right in personum is spoken of as personal rights because persons bound being determinate, personal relation are stressed.

For example 1) Person P sold his car to Q. Thus P has the right to receive the sale proceeds. This right to receive the money only belongs to P, so it is a right in personum, no other party is involved. 
Example 2) B loan money to C. The right to recover money belongs to only B not the world in general.
Example 3) My right to receive rent from tenant is right in personum.
Example 4) my right to receive compensation for false imprisonment or defamation is right in personum.
Example 5) The right of A after signing the contract for the purchase of land is a right in personum against B that B shall execute a deed of sale in his favour and transfer the property. After the execution of the sale deed the right of A is a right in rem available against the whole world that nobody shall interfere with his ownership.

You can read the following judgment also for more understanding of this legal maxim.
Daljit Singh And Anr. vs Yogeshwar Prasad: Delhi High Court

Note: If you write atleast one example while writing your answer then it will be beneficial to you to get more marks. In every article I am trying to write relevant examples as well as judgments and case laws will also be shared if needed.
Also you can read the judgment one-liners by clicking on the case name.
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Importance of Date in a pleading

Hello friends, if you are planning to approach Court in a case then you must know all the material facts clearly about the incidence specifically Dates related to that matter. Here I am sharing some abstract from a Supreme Court Judgement in which the actual date of a material fact pleaded by the respondent was not known to them. This blog is intended for knowledge purpose only. If you are really aggrieved then please contact a Lawyer in your city.

Title: Mahoora Bano vs National Insurance Company 

Date: 8 January, 2020

IN THE SUPREME COURT OF INDIA

Case no. CIVIL APPEAL No.78 OF 2020 (arising out of Special Leave Petition (C) No.5580 of 2018)

HON'BLE MR. JUSTICE N.V. RAMANA HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN

Summary of Order passed (only for study purpose)

1. Leave granted.

2. Challenging an Order passed by the High Court allowing an application for review and reducing the compensation originally awarded in an appeal arising out of the award of the Motor Accident Claims Tribunal, the claimant has come up with the above appeal.

3. Dt. 17.11.2007 : road accident occurred causing permanent partial  disablement in left arm of appellant. Claim of Rs.30,00,000/ was filed before Motor Accident Claims Tribunal, Srinagar.

The Tribunal awarded a total compensation of Rs.2,75,000/­ as follows:

a)    mental agony: Rs.90,000/­

b)   expenses for employing an attendant: Rs.30,000/­

c)    medicines and diet: Rs.1,30,000/­

d)   transportation: Rs.25,000/­.

4. Appellant was not satisfied with the amount awarded, so she filed appeal in the High Court of Jammu and Kashmir at Srinagar.

On Dt. 11.06.2014 The High Court enhanced the compensation from Rs.2,75,000/­ to Rs.4,96,600/­ as follows:

a)    loss of income: Rs.2,01,600/­

b)   expenses incurred for taking treatment outside the State: Rs.20,000/­.

5. The award on account of loss of income was on the following grounds:

a)    appellant had an income of Rs.1500/­ per month

b)   60% permanent partial disablement

c)    multiplier of 17 applied upon 60% of the annual income namely Rs.18,000/

d)   Thus amount payable = Rs.2,01,600/­.

6. Insurance company filed a petition for review before the High Court. Insurer appointed a surveyor/investigator to investigate into the claim relating to the employment of the appellant. It was revealed that the appellant, who was employed on a temporary basis as a teacher, got regularized subsequently. Therefore, the Insurance Company sought a review on the short ground that there was no loss of income for the appellant.

7. Appellant was held guilty of suppression of material particulars in her claim petition, as she described her occupation as “household lady engaged in agriculture”. So High Court deleted a sum of Rs.2,00,000/­ which represented the compensation awarded towards loss of income.

8. Appellant was obviously employed as Rehbari Taleem (RT) teacher on a monthly salary of Rs.1500/­.

9. Appellant described her occupation as ­Government teacher, in her suit in Motor Accident Claims Tribunal. Thus it is not wholly correct to say that the appellant was guilty of willful suppression or the commission of fraud upon the Court.

10. Following facts can be seen from the order of Tribunal:

a)    the appellant was working as Rehbari Taleem teacher, earning a monthly income of Rs.1500/

b)   appellant would have completed five years of service and would have been regularized.

c)    On the account of documentary evidence provided by appellant it is clear that she is under Government employment as teacher.

11. All the grounds of appeal before the High Court were focused on inadequacy of compensation towards mental agony, medicines, diet, transportation etc. And she did not focus upon the refusal of the Tribunal to award any compensation for loss of income

12. Following facts can be seen from the order of High Court in the appeal of compensation:

a)    The finding recorded by the Tribunal is, thus, based on assumption, especially so in view of the categorical statement ‘made by the witness, Irshad Ahmad, that the appellant lost the job.’

b)   High Court actually took note of the employment of the appellant as a teacher and the allegation of suppression made against her by the Insurance Company.

13. High Courts observations in review petition: appellant was engaged as ReT and subsequently regularized as a General­line teacher, therefore, the contention raised in the appeal that she was a household lady working in agriculture fields has been proved false.

14. Petition of review by the insurer and the order of the High Court passed in the review application do not contain any date of regularization of the services of the appellant.

Dt. 22.03.2005: appellant was appointed on temporary basis as a teacher and she shall become permanent after 5 years of completion of her service i.e. in March ­2010.

15. On the date on which the appellant deposed before the Tribunal, the statement that she had not been regularized, was not false, but true. The High Court did not even know the date on which the appellant was regularized. Even the review petition filed by the insurer does not disclose the date of regularization. Therefore, the High Court could not have taken a pedantic approach and allowed the review application. Hence, the appeal is allowed and the impugned order of the High Court passed in the review application is set aside. The original order of the High Court passed in the main appeal shall stand restored.

Thanks for reading till the end. Please read complete order on IndianKanoon.

Concept of Crimes

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Hello friends. This is my blog regarding the Law of Crimes. It is the introduction and can be asked in exams to write notes atleast for 5 marks and detailed description for 8 to 10 marks as per your paper pattern. Sometimes it may comprise of a long question of 16 to 20 marks. The underlined part of this article is minimum requirement to be written in the exam.
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Concept of crimes: -

Crime denotes an unlawful act punishable by state. There is no simple and universal definition of crime but statutory definitions have been provided for certain purposes.

Crime may be simply defined as, “A crime or offence or criminal offence is an act harmful not only to some individual or individuals but also to a community, society or state, i.e. a public wrong.”

An act of public wrong is forbidden and punishable by law, e.g. acts of murder, rape, theft are forbidden and punishable by law worldwide.The State or Government has the power to severely restrict one’s liberty for committing a crime.

An act to be classified as a crime, the “act of doing something criminal” (actus reus) must be accompanied by the “intention to do something criminal” (mens rea). While every crime violates the law, not every violation of the law counts as a crime.

Unlike torts, crime is not just a wrong against an individual but is also a wrong committed against the society or a public wrong.

It is not a case of differences between two parties but is a case between the wrongdoer and the state.

The idea of the need for punishment is a common element to defining crime; however it may also include any action or omission which causes harm to person or property or in any way violates the criminal law. 

Meaning:

Wrong takes place in two ways.

(a) by commission of an act, i.e. commission, e.g. killing a person by giving or administering poison or by a negligent surgical operation.

(b) or by omission of an act, i.e. omission, e.g. killing a person by not giving food or by omitting to give medical aid on time.

The wrongs may be broadly categorised under two heads

            (i) Private wrongs: Private wrong causes injury to individual or group of individuals, e.g. private nuisance; and the injured or aggrieved can approach the Civil court for the relief or redressal.

            (ii) Public wrongs: Public wrong causes injury to society or community or public as whole. It is pursued by the State or its subordinate authorities viz. Police, Criminal courts, Prison, Disciplinary authorities etc.

Crime is a public wrong. It is an offence against the community or society as a whole. It causes the treat to social security and creates social disorder, e.g. Murder, Rape, Theft, Robbery, Forgery etc. In Indian Penal Code and in entire judiciary system of India the word “offence” is used instead of word “crime”.

As there is no satisfactory definition of crime it is not defined in the Indian Penal Code (IPC or Code for short). According to Section 40 of Code, the word “offence” is an act Punishable by the Code. As stated earlier the offence takes place either by commission or by omission of an act. Thus all acts and omissions, which are described as offences under the Code, are crimes and are punishable under the Code.

Crime is the public wrong in the sense, any member of the public can institute the criminal proceedings against the person accused of an offence.

Definition: 

Here are the definitions by some law scholars around the world.

The most commonly accepted definition of crime is ‘an act that is capable of being followed by criminal proceedings’.

Blackstone’s definition: - Crime is defined as “an act committed or omitted in violation of Public law forbidding or commanding it.”

Blackstone does not intend to suggest that crimes violates no other rights besides public ones, obviously every theft violates some private right of property. It can be expressed more clearly as “A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large.”

Definition by Sir James Stephen: Crime is an act, which is both forbidden by law and revolting to the moral sentiments of the society.

Definition by Kenny: Crimes are wrongs whose sanction is punitive and in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all.

Nature of Crime:

Crime is an act or omission forbidden or prohibited by law.

It varies from place to place, e.g. Adultery is an offence in India under Section 497 of IPC but, it is no offence in America, it is civil wrong in England.

It changes from time to time, e.g. consumption of alcohol is an offence, if it is prohibited by state and is no offence it the prohibition is lifted.

Similarly, the practice of ‘Sati’ prevailing in the primitive society is now strictly prohibited and is punishable.