All Projects In One

1 EXTERNAL AIDS The State of law when it was passed can be explained through external aid in the constitution of a statute. It can be used for interpretation of the act. Where will recognized limits, the resource to external aid can be done in interpretation of an act. The reason is that primarily the effect of a statutory provision can be determined only a fair and reasonable construction of the words used in the statute itself. In case the words & language used in a statute are ambiguous and they cannot be cleared even by restoring intrinsic aids, the external aid can be taken for the construction of statute. External aids in the construction of statutes are permitted be explain the state of the law at the time, if was passed but not to interpret the act. The following are some of the important aspects in the study of external aid :1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Use of Dictioneries Use of Text books Historical Background Legislative History Practice Judicial, Conveyancing, Administrative and Commercial Motive and Testimony of Legislature General Social Policy Public Policy Rules of Grammar Use of Legal Terms Fixed Statute Motive and Object of Legislation

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2 STRICT CONSTRUCTION OF PENAL STATUTES While construing a provision in a penal statute if there appears to be a reasonable doubt or ambiguity, it shall be resolved in favour of the person who would be liable to the penalty. If a penal provision can reasonably be so interpreted as to avoid the punishment, it must be so construed. If there can be two reasonable constructions of a penal provision, the more lenient should be given effect to. Punishment can be meted out to a person only if the plain words of the penal provision are able to bring that person under its purview. No extension of meaning of the words is permissible. A penalty cannot be imposed on the basis that the object of a statute so desired. According to Maxwell, the strict construction of penal statutes seems to manifest itself in four ways : in the requirement of express language for the creation of an offence ; in interpreting strictly words setting out the elements of an offence ; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction. Unless the words of a statute clearly make an act criminal, it shall not be construed as criminal. If there is any ambiguity in the word which set out the elements of an act or omission declared to be an offence so that it is doubtful whether the act or omission in question in the case falls within the statutory words, the ambiguity will be resolved in favour of the person charged. The court will inflict punishment on a person only when the circumstances of a case unambiguously fall under the letter of the law. Legislations which deal with the jurisdiction and procedure relating to imposition of penalties will be strictly construed. Where certain procedural requirements have been laid down by a statute to be completed in a statute dealing with punishments, the court is duty bound to see that all these requirements have been complied with before sentencing the accused. In case of any doubt in such cases, the benefit has to go to the accused even up to the extent of acquitting him even on some technical ground. Penal provisions cannot be extended by implication to a particular cases or circumstance. There can be no presumption that a crime has been constructively committed. Penal statute generally have a prospective operation. If there is a reasonable 'interpretation by which a penalty can be avoided, that interpretation has got to be accepted. Where a particular provision could be reasonably interpreted in various ways, that particular interpretation must be avoided which causes hardship or injustice. While interpreting a penal statute it must always be kept in mind that punishment could be imposed only when the conduct of the accused falls clearly with the letter of the law. Those who argue that a penalty must be inflicted must satisfy that the language of the Act clearly enact that it shall be incurred under the present circumstances. An enactment entailing penal consequences does in no case permit violence with the language used so as to bring it within the express words of the Act. But, at the same time, a penal statute must, never be so construed as to narrow down its words to exclude such cases as would ordinarily be within its ambit. An accused could always argue that even though his conduct falls within the express language of the statute the same is against its spirit. But where a conduct is both within the letter of the law as well as its spirit, the court is bound to construe it like any other statute according to the fair common sense meaning. In Seksaria Cotton Mill Limited Company v. State of Bombay Supreme Court said that when two reasonable interpretations are possible of a penal statute, that which favours the accused should be accepted. In Chinubhai v. State of Bombay, The Supreme Court, while holding that the nature of the enactment being penal had to be strictly construed, held that section 3 does not impose an absolute duty on the employer to prevent entry of persons into an area where dangerous fumes are likely to exist. In Sarjoo Prasad v. State of Uttar Pradesh, The Supreme Court maintained the conviction and held that a penal statute has to be interpreted in favour of the subject only if there are two reasonable constructions possible. In M.V. Josh! v. M.U. Shimpi, The Supreme Court while rejecting the contention, held that strict construction means that th conduct of the accused for his conviction must fall within the plain words of the penal statute without straining their natural meaning. If it does not so fall an there are two possible reasonable constructions, that construction which I lenient to the accused must be accepted. In Rattan Lal v. State of Punjab, the accused, a sixteen year old boy was convicted for outraging the modesty of a girl aged seven years after having committed house trespass. The Magistrate awarded him imprisonment for six months and fine. After this sentence was passed, the Probation of Offenders Act, 1958 came into existence. The accused appealed to the Additional Sessions Judge and then to the High Court in revision without claiming benefit under the Probation of For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

3 Offenders Act. After the High Court rejected his revision he pleaded before the Supreme Court for benefit of probation as he was below twenty one years in age. The Supreme Court, by a majority, held that the benefit of probation could be given to him. In Smaje v. Balmerl, the question was whether a stone came within the words 'any dangerous or offensive weapon or instrument' in section 28 (1) of the Larceny Act, 1916. It was held that since the weapon or instrument under the provision adopted or intended to cause injury to a human being, a stone could not fall under this category. In Ranjit v. State of Maharashtra, The Supreme Court rejected these arguments and held that on a plain reading of section 292 it is clear that proof of mens rea is not required for conviction under this section. Mere selling or keeping for sale an obscene literature has been made punishable. Therefore, when there are no two reasonable interpretations possible, there is no question of giving effect to the principle c' strict construction. The appellant is guilty on the basis of a plain reading of the enactment and, therefore, his appeal must not succeed. In Nathumal v. State of Madhya Pradesh,. The Supreme Court, applying the principle of strict construction, held that the object of the Essential Commodities Act 1955 will not be defeated if mens rea is read as an essential element or the offence.


4 STRICT CONSTRUCTION OF PENAL STATUTES While construing a provision in a penal statute if there appears to be a reasonable doubt or ambiguity, it shall be resolved in favour of the person who would be liable to the penalty. If a penal provision can reasonably be so interpreted as to avoid the punishment, it must be so construed. If there can be two reasonable constructions of a penal provision, the more lenient should be given effect to. Punishment can be meted out to a person only if the plain words of the penal provision are able to bring that person under its purview. No extension of meaning of the words is permissible. A penalty cannot be imposed on the basis that the object of a statute so desired. According to Maxwell, the strict construction of penal statutes seems to manifest itself in four ways : in the requirement of express language for the creation of an offence ; in interpreting strictly words setting out the elements of an offence ; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction. Unless the words of a statute clearly make an act criminal, it shall not be construed as criminal. If there is any ambiguity in the word which set out the elements of an act or omission declared to be an offence so that it is doubtful whether the act or omission in question in the case falls within the statutory words, the ambiguity will be resolved in favour of the person charged. The court will inflict punishment on a person only when the circumstances of a case unambiguously fall under the letter of the law. Legislations which deal with the jurisdiction and procedure relating to imposition of penalties will be strictly construed. Where certain procedural requirements have been laid down by a statute to be completed in a statute dealing with punishments, the court is duty bound to see that all these requirements have been complied with before sentencing the accused. In case of any doubt in such cases, the benefit has to go to the accused even up to the extent of acquitting him even on some technical ground. Penal provisions cannot be extended by implication to a particular cases or circumstance. There can be no presumption that a crime has been constructively committed. Penal statute generally have a prospective operation. If there is a reasonable 'interpretation by which a penalty can be avoided, that interpretation has got to be accepted. Where a particular provision could be reasonably interpreted in various ways, that particular interpretation must be avoided which causes hardship or injustice. While interpreting a penal statute it must always be kept in mind that punishment could be imposed only when the conduct of the accused falls clearly with the letter of the law. Those who argue that a penalty must be inflicted must satisfy that the language of the Act clearly enact that it shall be incurred under the present circumstances. An enactment entailing penal consequences does in no case permit violence with the language used so as to bring it within the express words of the Act. But, at the same time, a penal statute must, never be so construed as to narrow down its words to exclude such cases as would ordinarily be within its ambit. An accused could always argue that even though his conduct falls within the express language of the statute the same is against its spirit. But where a conduct is both within the letter of the law as well as its spirit, the court is bound to construe it like any other statute according to the fair common sense meaning. In Seksaria Cotton Mill Limited Company v. State of Bombay Supreme Court said that when two reasonable interpretations are possible of a penal statute, that which favours the accused should be accepted. In Chinubhai v. State of Bombay, The Supreme Court, while holding that the nature of the enactment being penal had to be strictly construed, held that section 3 does not impose an absolute duty on the employer to prevent entry of persons into an area where dangerous fumes are likely to exist. In Sarjoo Prasad v. State of Uttar Pradesh, The Supreme Court maintained the conviction and held that a penal statute has to be interpreted in favour of the subject only if there are two reasonable constructions possible. In M.V. Josh! v. M.U. Shimpi, The Supreme Court while rejecting the contention, held that strict construction means that th conduct of the accused for his conviction must fall within the plain words of the penal statute without straining their natural meaning. If it does not so fall an there are two possible reasonable constructions, that construction which I lenient to the accused must be accepted. In Rattan Lal v. State of Punjab, the accused, a sixteen year old boy was convicted for outraging the modesty of a girl aged seven years after having committed house trespass. The Magistrate awarded him imprisonment for six months and fine. After this sentence was passed, the Probation of Offenders Act, 1958 came into existence. The accused appealed to the Additional Sessions Judge and then to the High Court in revision without claiming benefit under the Probation of For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

5 Offenders Act. After the High Court rejected his revision he pleaded before the Supreme Court for benefit of probation as he was below twenty one years in age. The Supreme Court, by a majority, held that the benefit of probation could be given to him. In Smaje v. Balmerl, the question was whether a stone came within the words 'any dangerous or offensive weapon or instrument' in section 28 (1) of the Larceny Act, 1916. It was held that since the weapon or instrument under the provision adopted or intended to cause injury to a human being, a stone could not fall under this category. In Ranjit v. State of Maharashtra, The Supreme Court rejected these arguments and held that on a plain reading of section 292 it is clear that proof of mens rea is not required for conviction under this section. Mere selling or keeping for sale an obscene literature has been made punishable. Therefore, when there are no two reasonable interpretations possible, there is no question of giving effect to the principle c' strict construction. The appellant is guilty on the basis of a plain reading of the enactment and, therefore, his appeal must not succeed. In Nathumal v. State of Madhya Pradesh,. The Supreme Court, applying the principle of strict construction, held that the object of the Essential Commodities Act 1955 will not be defeated if mens rea is read as an essential element or the offence. In Assistant Collector of Customs v. Sitaram, one of the accused sold certain smuggled gold lo another accused and both were prosecuted under section 167 (8) of the Sea Customs Act, 1878. They were acquitted by the High Court on the ground that the provision applies to goods while they are being smuggled and not to goods already smuggled earlier and now being dealt with. The Supreme Court, by a majority, allowed the appeal. It was observed that the argument that the provision applies only up to the stage of actual importation and not beyond is frivolous. The object of the Act definitely includes such a stage when smuggled goods are already in possession of the accused and he is dealing with them in any manner such as selling them. The reason for so holding is that whoever possesses prohibited or restricted goods has the intention of evading the prohibition or restriction provided knowledge that the goods were smuggled goods can be imputed to him. The minority judge, however, held that plain meaning of the word import does not include dealing with goods already imported. Such an extended meaning is not justified in case of a penal statute and since the appellant's conduct does not fall under the plain and natural meaning of the words used in the enactment, he cannot be held guilty. In Ben Worsley Ltd. v. Harvey, the question was whether freshly baked loaves in a bakery's despatch area were within its possession for sale under section 22 (2) (a) of the Weights and Measurers Act, 1963. The court held that they were not so because as that point of time they were being checked as to whether they were of right weight and the question of 'possession for sale' after they had been separated for sale after sorting. And under section 28 of this Act while examining 'weights, measures, and seals' when the inspector found faulty weights and measures only and not scales, the court held seizure of the scales was not proper because omissions in a penal Act could not be readily supplied. In Mod Bhai v. R. Prasad, the Supreme Court refused to expand the meaning of a penal provision relating to forfeiture on the ground that it is not proper to extend the scope of a penal provision by reading into it words which are not there. In Isher Das v. State of Punjab, the Supreme Court held that benefit of probation under section 1 of the Probation of Offenders Act, 1958 is available to youthful offenders convicted under sections 7 and 16 of the Prevention of Food Adulteration Act, 1954. Construing section 1 of the Act of 1958 strictly, it was held that the Probation of Offenders Act being a later legislation than the Prevention of Food Adulteration Act, its provisions cannot be whittled down or circumscribed because of the earlier Act. It was also observed that section 18 of the Act of 1958 expressly excludes operation of its provisions in respect of offences under the Prevention of Corruption Act, 1947 and there is no such exclusion in case of the Prevention of Food Adulteration Act, 1954. Another reason for giving the benefit of probation in such cases is the modern approach in penology. As the object of probation is to avoid imprisonment, that object should not be nullified by imposition of fine which would necessarily entail punishment in case of default of payment of it. For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

6 In Inder Sain v. State of Punjab, the question was whether possession of opium in itself is an offence under section 9 of the Opium Act, 1878. The Supreme Court observed that the word possess in section 9 does not bear a clear meaning. It may reasonably mean mere possession or it may mean possession with knowledge. The Act being a penal statute should be interpreted in favour of a subject in case of two reasonable interpretations. So holding, therefore, it is clear that the prosecution must prove that opium was found in possession of the appellant and that he knew its existence. Since the prosecution has failed to prove these, conviction of the appellant is bad in law. In State of Andhra Pradesh v. Andhra Pradesh Potteries' the respondent was prosecuted under section 220, Companies Act, 1956 for not filing the balance sheet and profit and loss account of the company with the Registrar of Companies. The respondent argued that since no general body meeting of the company was held, no balance sheet and profit and loss account could be laid before it and consequently, these could not be filed with the Registrar. The High Court held that conviction under section 220 was not possible because the requirement that these should first be placed in the general body meeting was a pro-requisite for filing them with the Registrar. Since no general body meeting was held, there was no question of these being filed with the Registrar. The respondent might, however, be liable under the relevant provisions of the Act for not holding the general body meeting and consequently, not laying these before it. The Supreme Court dismissed the appeal. It was observed that the language of section 220 was unambiguous and the High Court's conclusions were right. If the balance sheet and profits and loss account would have been sent to the Registrar without first submitting them before the general body meeting, even the requirements under law would remain unfulfilled. Since the language of the statute is clear there was no question of resorting to the principle of strict interpretation in favour of the subject. In Spicer v. Holt, the expression 'a person arrested under' was needed to be interpreted. It was held that when a provision provides for such an expression it necessarily follows that a person is lawfully arrested and consequently, unlawful arrest would vitiate the proceedings. In Shaikh Abdul Azeez v. State of Karnataka, the question before the court was the interpretation of section 303, Indian Penal Code which states : 'Whoever being under imprisonment for life, commits murder, shall be punished with death. The Supreme Court held that this section applied only in such cases where murder has been committed by a lifer beyond the pale of judicial controversy. An accused cannot be under a sentence of life imprisonment at the time of commission of the second murder unless he is actually undergoing such a sentence or there is legally extant a judicial final sentence which he is bound to serve without the requirements of a separate order to breathe life into the sentence which was otherwise dead. In other words, an accused while in fact serving life imprisonment commits murder will get death sentence under this provision. There cannot be any legal fiction that an accused is deemed to be undergoing a sentence of life imprisonment and should, therefore, be punishable with death under this provision. Consequently, an accused whose sentence of life imprisonment had already been remitted at the time of commission of murder is not punishable under section 303. The basis of this decision is that an accused to be punishable under a penal law must be proved to be within the express wordings of the penal provision. If he is not covered under the plain meaning of the words and two reasonable constructions of the enactment are possible, that construction should be accepted which favours him. In Maharaja Book Depot v. State of Gujarat, the question was whether the expression paper used in section 2 (a) (vii) of the Essential Commodities Act, 1955 and in item 13 in Schedule I of the Regulation Order made therein includes exercise book. While holding that exercise book is paper within the meaning of the provisions mentioned above, the Supreme Court said that an exercise book is nothing but a collection of a bunch of papers stitched together by a string or pinned together and used for writing. Therefore, exercise book is an essential commodity or essential article within the meaning of section 2 (a) of the Act and clause 2 (v) &f the Regulation Order on the basis of the fact that paper has been listed therein as an essential commodity or an essential article. It is all the more satisfying to note that a subsequent notification has clarified the expression paper in the Regulation Order by including in it exercise books. It had to be done by way of a clarification because an attempt was being made to show that an exercise book did not fall under the expression paper. Since there is no ambiguity in the expression and the natural meaning falls under the words used in the statute, the interpretation of the penal statute will not be different than any other under the circumstances. For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

7 In R. v. Cuthbertson, interpretation of section 27 of the Misuse of Drugs Act, 1971 was involved under which anything related to the offence could be forfeited when a person was convicted of an offence under this Act. It was held that conviction for criminal conspiracy to commit an offence under the Act was bad in law because criminal conspiracy is not an offence under the Act. An important question that arises in matters of application of the principle of strict construction of penal statutes is whether a court has freedom to interpret a penal statute strictly as per the current meaning of the statute and when extend that meaning to include such cases in further which will come up with the development of science and technology but which were unknown at the time the statute was passed? Such was the question in R. v. Ireland, where the words 'assault' and 'bodily harm' under sections 20 and 47 of the Offences Against the Person Act, 1861 were to be interpreted. The court appreciated the link between the body and psychiatric injury and held that silent telephone calls which caused psychiatric injury would amount to 'assault' and 'bodily harm' within the meaning of the said provisions. There have been instances where the question of applicability of the principle of strict construction of penal statutes was involved along with the concepts of mens rea, strict criminal liability and retrospective operation of statutes. In Ravula Hariprasad Rao v. State, a servant of the appellant delivered petrol to three cars without taking coupons from them. This was in violation of clauses 5 and 22 of the Motor Spirit Rationing Order, 1941 made under Rule 81 (2) of the Defence of India Rules. Since no coupons were taken from them, necessary endorsements were also not made at the back of the coupons as required by clause 27A of that Order. On being prosecuted for these illegal omissions, the appellant proved that on the day of the occurrence he was out of station. Consequently, in the absence of mens rea he could not be punished. The Supreme Court held that mens rea was an essential element to be proved under clauses 5 and 22. Since the appellant was out of station on the day. He could not be held responsible for the mistakes of his servant who should have taken coupons from the customers. But the appellant was guilty under clause 27A because this provision casts a strict liability on the petrol dealer. The object of this enactment was that the petrol dealer should set up a complete machinery to ensure that necessary endorsements are made on the coupons against which petrol is supplied. Even if the endorsements could not be made because of the fault of the servant, the appellant could not escape liability because he has failed to ensure the compliance of the law. In Mobarik All v. State of Bombay, a Pakistani national made certain false representations from Karachi by letters, telegrams and telephones to the complainant at Bombay on the belief of which the complainant paid a certain amount of money to the Pakistani's agent at Bombay. The Supreme Court held that the Pakistani national was subject to the jurisdiction of the Indian courts for having committed the offence of cheating and as the appellant had surrendered to the Indian authorities under the provisions of the Fugitive Offenders Act, 1881, in connection with another case, his conviction was valid. The important observation made by the Supreme Court which is not in conformity with the orthodox thinking is that it is not necessary and indeed not permissible to construe the Indian Penal Code at the present day in accordance with the notions of criminal jurisdiction prevailing at the time when the Code was enacted. The notions relating to this matter have very considerably changed between then and now. It is legitimate to construe the Code with reference to the modern needs, wherever this is permissible, unless there is anything in the Code or any particular section to indicate the contrary. In State of Bombay v. Vishnu Ramchandra, the Supreme Court, revers- ing the decision of Bombay High Court, held that section 57 of the Bombay Police Act, which is a penal statute, had retrospective operation because, in the opinion of the court, the legislature clearly intended so. The court further observed that an Act designed to protect the public against acts of harmful character may be construed retrospectively, if the language admits such an interpretation, even though it may equally have a prospective meaning. In Chief Inspector of Mines v. Karam Chand, the Supreme Court said that the rule of strict interpretation of penal statutes in favour of the accused is not of universal application and must be For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

8 considered along with other well established rules of construction. It was held that looking at the scheme and object of the Mines Act, 1952 it was clear that the expression any one of the Directors used in section 76 of the Act must be interpreted to mean everyone of the Directors. In State of Kerala v. Mathai Verghese, the Supreme Court observed that an analysis of section 489A, Indian Penal Code reveals that the legislative embargo against counterfeiting envelops and takes within its sweep 'currency notes' of all countries. The embargo is not restricted to Indian' currency notes. The legislature could have, but has not, employed the expression India currency note'. If the legislative intent was to restrict the parameters of prohibition to Indian currency' only, the legislature could have said so unhesitatingly. The expression 'currency note' is large enough in its amplitude to cover the currency notes of any country. Holding otherwise would defeat the legislative intent inasmuch as it would then be lawful to counterfeit notes other than Indian currency notes. The legislature could not have such an intention. In A.S. Sulochana v. C. Dharmalingam, the question of interpretation of section 10 (2) (ii) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was involved. The Supreme Court held that since the relevant provision prohibiting subletting by a tenant is a penal one as it visits the violator tenant with the punishment of eviction, it has to be construed strictly. For the provision to apply the offending subletting must be by the tenant sought to be evicted himself and not by his predecessor (the deceased father of the tenant). Such was not the case here because the present tenant had inherited tenancy after the death of his father who had sublet a portion long ago. In M/s Gujarat Travancore Agency v. Commissioner of Income Tax the Supreme Court stated that section 271 (1) (a) of the Income Tax Act, 1961 provides that a penalty may be imposed if the Income Tax Officer is satisfied that any person has without reasonable cause failed to furnish the return of total income and section 276-C provides that if a person wilfully fails to furnish in due time the return of income required under section 139 (1), he shall be punishable with rigorous imprisonment for the period mentioned therein. Unless there is something in the language of the statute indicating the need to establish mens rea, it is generally sufficient to prove that a default in complying with the provisions has occurred.

In State of Punjab v. Ram Singh, a heavily drunk constable gunman was seen roaming in the market with service revolver while he was on duty. When he was sent to the doctor for medical examination he abused the medical officer on duty which shows his depravity or delinquency due to his drinking habit. The Supreme Court held that his conduct would constitute gravest misconduct warranting dismissal from service. The authorities, therefore, were justified in imposing the penalty of dismissal. The word 'misconduct' though not capable of precise definition, its reflec-tion receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. The subject matter, the context, the scope of the statute and the public purpose, it seeks to serve are important.


9 CENTRAL ZOO AUTHORITY AND RECOGNITION OF ZOOS Section 38H. Recognition of zoos: (1) No zoo shall be operated without being recognised by the Authority: Provided that a zoo being operated immediately before the date of commencement of the Wild Life (Protection) (Amendment) Act, 1991 may continue to operate without being recognised for a period of (46) [eighteen months from the date of such commencement] and if the application seeking recognition is made within that period, the zoo may continue to be operated until the said application is finally decided or withdrawn and in case of refusal for a further period of six months from the date of such refusal. (2) Every application for recognition of a zoo shall be made to the Authority in such form and on payment of such fee as may be prescribed. (3) Every recognition shall specify the conditions, if any, subject to which the applicant shall operate the zoo. (4) No recognition to a zoo shall be granted unless the Authority, having due regard to the interests of protection and conservation of wild life, and such standards, norms and other matters as may be prescribed, is satisfied that recognition should be granted. (5) No application for recognition of a zoo shall be rejected unless the applicant has been given a reasonable opportunity of being heard (6) The Authority may, for reasons to be recorded by it, suspend or cancel any recognition granted under sub-section (4): Provided that no such suspension or cancellation shall be made except after giving the person operating the zoo a reasonable opportunity of being heard. (7) An appeal from an order refusing to recognise a zoo under sub-section (5) or an order suspending or canceling a recognition under sub-section (6) shall lie to the Central Government. (8) An appeal under sub-section (7) shall be preferred within thirty days from the date of communication to the applicant of the order appealed against: Provided that the Central Government may admit any appeal preferred after the expiry of the period aforesaid if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time. NATIONAL PARKS Section 35: Declaration of National Parks. - (1) Whenever it appears to the State Government that an area, whether within a sanctuary or not, is, by reason of its ecological, faunal, floral, geomorphologic or zoological association or importance, needed to be constituted as a National Park for the purpose of protecting, propagating or developing wild life therein or its environment, it may, by notification, declare its intention to constitute such area as a National Park .(40)[Provided that where any part of the territorial waters is proposed to be included in such National Park, the provisions of section 26A shall, as far as may be, apply in relation to the declaration of a National Park as they apply in relation to the declaration of a sanctuary.] (2) The notification referred to in sub-section (1) shall define the limits of the area which is intended to be declared as a National Park. (3) Where any area is intended to be declared as a National Park, the provisions of sections (41)[(19 to 26 A (both inclusive except clause (c) of sub-section (2) of section 24)] shall, as far as may be, apply For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

10 to the investigation and determination of claims, and extinguishment of rights, in relation to any land in such area as they apply to the said matters in relation to any land in a sanctuary. (4) When the following events have occurred, namely:(a) the period for preferring claims has elapsed, and all claims, if any, made in relation to any land in an area intended to be declared as a National Park, have been disposed of by the State Government, and (b) all rights in respect of lands proposed to be included in the National Park have become vested in the State Government, the State Government shall publish a notification specifying the limits of the area which are to be comprised within the National Park and declare that the said area shall be a National Park on and from such date as may be specified in the notification. (5) No alteration of the boundaries of a National Park shall be made except on the resolution passed by the Legislature of the State. (6) No person shall destroy, exploit or remove any wild life from a National Park or destroy or damage the habitat of any wild animal or deprive any wild animal of its habitat within such National Park except under and in accordance with a permit granted by the Chief Wild Life Warden and no such permit shall be granted unless the State Government, being satisfied that such destruction, exploitation or removal of wild life from the National Park is necessary for the improvement and better management of wild life therein, authorises the issue of such permit. (7) No grazing of any (42)[live-stock] shall be permitted in a National Park and no 42[live-stock] shall be allowed to enter therein except where such 42[live-stock] is used as a vehicle by a person authorised to enter such National Park. (8) The provisions of sections 27 and 28, sections 30 to 32 (both inclusive), and clauses (a), (b) and (c) of 42[section 33, section 33A] and section 34 shall, as far as may be apply in relation to a National Park as they apply in relation to a sanctuary.(43)[***] Section 38: Power of Central Government to declare areas as sanctuaries or National Parks. (1) Where the State Government leases or otherwise transfers any area under its control, not being an area within a sanctuary, to the Central Government , the Central Government may, if it is satisfied that the conditions specified in section 18 are fulfilled in relation to the area so transferred to it, declare such area, by notification, to be a sanctuary and the provisions of (44)[sections 18 to 35] (both inclusive), 54 and 55 shall apply in relation to such sanctuary as they apply in relation to a sanctuary declared by the State Government. (2) The Central Government may, if it is satisfied that the conditions specified in section 35 are fulfilled in relation to any area referred to in sub-section (1), whether or not such area has been declared, to be a sanctuary by the Central Government or the State Government, declare such area, by notification, to be a National Park and the provisions of sections 35, 54 and 55 shall apply in relation to such National Park as they apply in relation to a National Park declared by the State Government. (3) In relation to a sanctuary or National Park declared by the Central Government, the powers and duties of the Chief Wild Life Warden under the sections referred to in sub-sections (1) and (2), shall be exercised and discharged by the Director or by such other officer as may be authorised by the Director in this behalf and references, in the sections aforesaid, in the State Government shall be construed as references to the Central Government and reference therein to the Legislature of the State shall be construed as a reference to Parliament.


11 CareerOpportunities If the law graduate does not opt to study further, he can enroll with the Bar and practice in any court as an advocate. There is no age bar for enrollment, as the Supreme Court of India has struck down a Bar Council rule requiring an LLB degree holder to register with the Bar before attaining the age of 45 years. Further there is no Bar examination that a law graduate is required to pass (as in the case of the United States) in order to enable him to practice the profession. The Supreme Court has also struck down the e compulsory requirement of one-year apprenticeship before enrollment, introduced by the Bar Council of India a few years ago. Today in the era of liberalization, the career opportunities available to a legal professional in India are manifold. Apart from entering into practice, law graduates have the option to join an industry and work as a law officer/legal executive. Large industrial houses are recruiting law graduates directly from the campus and lawyers are now in demand in the various industries as negotiators and law officers. The day-to-day business of most companies is contracts, joint ventures and strategic alliances, licensing, securities, mergers and acquisitions, and support of the manufacturing, marketing, sales, and distribution functions of the company. Lawyers who do this work have an understandable advantage over those that litigate these matters. When recruiting for senior legal positions in companies, it is often seen that companies prefer lawyers who have had previous in-house experience to lawyers engaged in litigation. Very often companies believe, correctly or not, that such lawyers better understand the corporate culture, have more developed team-building skills, and are better able get things accomplished in a responsive manner to their business clients. For very senior legal positions, companies often specify industryspecific experience: for eg software companies want someone from their industry, and not from the semiconductor industry; semiconductor types prefer their colleagues to software lawyers. Though obviously, there are many exceptions to this rule, it is a preference that is often seen. Career options Some of the career options available to a lawyer are:

Joining the practice Joining a law firm which may specialize in litigation or \chamber work or both Joining an industry as a law officer. This includes joining a multinational company or even a multinational consultancy firm or a bank. It has been reported that during the last 3-4 years various multinational companies have hired around 70 law-graduates with salaries ranging between Rs 20,000 - 30,000 per month from the Law Faculty of Delhi University Joining the Judge Advocate General's office/law cadre of the defense services Joining Public and banking sectors where law graduates are recruited as trainees or probationary law officers. Opting for a government job. The Government needs law officers, legal advisors and legal assistants to administer different departments. Further legal professionals are also appointed as public prosecutors, solicitors, deputy or additional advocates-generals, or advocategeneral. Joining the state judicial service. Here officers are recruited through a competitive examination. The selected candidates are appointed as sub-judges or munsifs in law courts or also as chief judicial magistrates.


12

Working as freelance journalists and contribute to newspapers or joining a publishing house.


13 Career Opportunities "Who are you", inquired one villager of another. The other replied, "I'm a liar (lawyer)". Jokes apart, law as a career was really considered 'not so hot' once upon a time. It is only in the last few years that being a lawyer has gained respectability that parents would allow their children to take-up law as a profession. An analytical mind, good communication skills, coupled with on-the-feet thinking is what will help a lawyer become successful. With the opening of Indian economy and WTO norms becoming mandatory in most of the sectors of the economy, new opportunities & careers in Law like Intellectual Property Rights (IPR), Environment Laws & their compliance, International Laws & arbitration are growing in importance by leaps & bounds.

If the law graduate does not opt to study further, he can enroll with the Bar and practice in any court as an advocate. There is no age bar for enrollment, as the Supreme Court of India has struck down a Bar Council rule requiring an LLB degree holder to register with the Bar before attaining the age of 45 years. Further there is no Bar examination that a law graduate is required to pass (as in the case of the United States) in order to enable him to practice the profession. The Supreme Court has also struck down the e compulsory requirement of one-year apprenticeship before enrollment, introduced by the Bar Council of India a few years ago. Today in the era of liberalization, the career opportunities available to a legal professional in India are manifold. Apart from entering into practice, law graduates have the option to join an industry and work as a law officer/legal executive. Large industrial houses are recruiting law graduates directly from the campus and lawyers are now in demand in the various industries as negotiators and law officers. The day-to-day business of most companies is contracts, joint ventures and strategic alliances, licensing, securities, mergers and acquisitions, and support of the manufacturing, marketing, sales, and distribution functions of the company. Lawyers who do this work have an understandable advantage over those that litigate these matters. When recruiting for senior legal positions in companies, it is often seen that companies prefer lawyers who have had previous in-house experience to lawyers engaged in litigation. Very often companies believe, correctly or not, that such lawyers better understand the corporate culture, have more developed team-building skills, and are better able get things accomplished in a responsive manner to their business clients. For very senior legal positions, companies often specify industryspecific experience: for eg software companies want someone from their industry, and not from the semiconductor industry; semiconductor types prefer their colleagues to software lawyers. Though obviously, there are many exceptions to this rule, it is a preference that is often seen.

Career options Some of the career options available to a lawyer are: Joining the practice Joining a law firm which may specialize in litigation or \chamber work or both Joining an industry as a law officer. This includes joining a multinational company or even a multinational consultancy firm or a bank. It has been reported that during the last 3-4 years various multinational companies have hired around 70 law-graduates with salaries ranging between Rs 20,000 - 30,000 per month from the Law Faculty of Delhi University Joining the Judge Advocate General's office/law cadre of the defense services Joining Public and banking sectors where law graduates are recruited as trainees or probationary law officers.


14 Opting for a government job. The Government needs law officers, legal advisors and legal assistants to administer different departments. Further legal professionals are also appointed as public prosecutors, solicitors, deputy or additional advocates-generals, or advocate-general. Joining the state judicial service. Here officers are recruited through a competitive examination. The selected candidates are appointed as sub-judges or munsifs in law courts or also as chief judicial magistrates. Working as freelance journalists and contribute to newspapers or joining a publishing house.


15 ARBITRATION DEFINATION AND SCOPE SECTION 2. Definitions. (1) In this Part, unless the context otherwise requires, (a) Arbitration means any arbitration whether or not administered by permanent arbitral institution; (b) Arbitration agreement means an agreement referred to in section 7; (c) Arbitral award includes an interim award; (d) Arbitral tribunal means a sole arbitrator or a panel of arbitrators; (e) Court means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having, jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes; (f) International commercial arbitration means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is(i) An individual who is a national of, or habitually resident in, any country other than India; or (ii) A body corporate which is in corporate in any on n try other than India; or (iii) A company or an association or a body of individuals whose central management and control is exercised in any country other than India; or (iv). The Government of a foreign country; (g) Legal representative means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and, where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting; (h) Party means a party to an arbitration agreement. Scope (2) This Part shall apply where the place of arbitration is in India. (3) This Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration. (4) This Part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder. (5) Subject to the provisions of sub-section (4), and save in so far as is otherwise provided by any law for the time being in force or in any agreement in force between India and any other country or countries, this Part shall apply to all arbitrations and to all proceedings relating thereto. Construction of references


16 (6) Where this Part, except section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorize any person including an institution, to determine that issue. (7) An arbitral award made under this Part shall be considered as a domestic award. (8) Where this Part(a) Refers to the fact that the parties have agreed or that they may agree, or (b) In any other way refers to an agreement of the parties, That agreement shall include any arbitration rules referred to in that agreement. (9) Where this Part, other than clause (a) of section 25 or clause (a) of subsection (2) of section 32, refers to a claim, it shall also apply to a counterclaim, and where it refers to a defence, it shall also apply to a defence to that counter-claim. SECTION 3. Receipt of written communications. (1) Unless otherwise agreed by the parties, (a) Any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and (b) If none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressees last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it. (2) The communication is deemed to have been received on the day it is so delivered. (3) This section does not apply to written communications in respect of proceedings of any judicial authority. SECTION 4. Waiver of right to object. -A party who knows that(a) Any provision of this Part from which the parties may derogate, or (b) Any requirement under the arbitration agreement, Has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a the limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object SECTION 5. Extent of judicial intervention. -Notwithstanding anything contained in any other law for the time being in force, in matter governed by this Part, no judicial authority shall intervene except where so provided in this Part. SECTION 6. Administrative assistance. -In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.


17 TOWN PLANNING: MANAGEMENT AND ENFORCEMENT OF LAW: AUTHORITIES FOR CONTROLLING DEVELOPMENT To regulate the growth of urban areas, the State Governments notify areas for planned growth under certain laws. These are notified under relevant Town and Country Planning Act. State Governments formulate the rules and regulations with the help of the local bodies, under the various legislation. After the approval, the concerned local bodies enforce these rules and regulations pertaining to development and building standards as building regulation/building bye-laws in their respective areas. LEGAL SUPPORT FOR PLANNED DEVELOPMENT/GROWTH OF URBAN AND RURAL AREAS: Building Regulations/Bye-laws provide the mandatory techno-legal framework for regulating building activity from planning, design to completion of construction. Mainly such laws are State Legislations as the State is competent to legislate and make laws on such subjects. However, where the Central Government is to legislate on such subjects and where Parliament is to make law in this behalf such legislations are applicable in the Union Territories and in the State such as Delhi, where land use are reserved subjects with Central Government. One such Central legislation is Delhi Development Act, 1957. For other States, such Central laws are advisory and recommendatory in nature. Taking this legislation as Model, other State Governments formulate the rules and regulations with the help of local bodies, under the various legislations. After the approval, the concerned local bodies enforce these rules and regulations pertaining to development and building standards as building regulations/building bye-laws in their respective areas. This is a revolutionary piece of legislation by which Constitution of India was amended to incorporate a separate Chapter on urban local bodies, which seeks to redefine their role, power, function and finances. The salient features of this Act are: Urban local bodies, to be known as Municipal Corporations, Municipal Councils and Nagar Panchayat depending on the population, shall be constituted through universal adult franchise in each notified urban area of the country. These shall be constituted for a period of five years and if dissolved earlier, an election to reconstitute it shall be completed before the expiration of a period of six months from the date of its dissolution. Not less than one-third of total number of seats in each urban local body shall be reserved for women. The Legislature of a State may by law entrust on these bodies such power and authority as may be necessary to enable them to function as institution of local self government, including those listed in the Twelfth Schedule. The Twelfth Schedule of the Constitution has listed the following functions of the urban local bodies: Urban Planning including town planning. Regulation of land-use and construction of buildings. Planning for economic and social development. Roads and bridges. Water supply for domestic, industrial and commercial purposes. Public health, sanitation, conservancy and solid waste management. For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

18 Fire services. Urban forestry, protection of the environment and promotion of ecological aspects. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded.

Urban poverty alleviation. Provision of Urban amenities and facilities such as parks, gardens, playgrounds. Promotion of cultural, educational and aesthetic aspects. Burials and burial grounds; cremations, cremation grounds and electric crematoriums. Vital statistics including registration of births and deaths. Regulation of slaughter houses and tanneries. In order that the urban local bodies can perform the functions assigned to them, the Legislature of a State shall assign them specific taxes, duties, tolls and levies and anthorise them to impose, collect and appropriate the same. Each State shall also constitute a Finance Commission which shall review the financial position of the urban local bodies and recommend the principles which should govern the devolution of resources, including grant-in-aid from the Consolidated Fund of the State of these bodies. The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the urban local bodies shall vest in the State Election Commission. In each district a District Planning Committee shall be constituted to consolidate the plan prepared by the urban and rural local bodies. Similarly for each metropolitan area a Metropolitan Planning Committee shall be constituted to prepare a development plan for the metropolitan area a whole. All the State Governments have either enacted new Municipal Law or amended the existing laws to conform these to the Constitution (74th Amendment) Act, 1992. All the States (except Jharkhand and Pondichery) have conducted the election to the local bodies. All the States (except Arunachal Pradesh) have constituted State Finance Commissions and most of the Commissions have submitted their reports to the State Governments, recommending significant devolution of resources to the urban local bodies. The national Eleventh Finance Commission has also recommended devolution of Rs 2000 crores as grant-in-aid from the Central Government to the urban local bodies. Constitution (74th Amendment) Act 1992 has made the urban local bodies into vibrant self governing institutions. This has ushered in a new era of urban governance and urban management in India. The future is full of possibilities and excitement for investors, planners, administrators, economists and above all 300 million urban dwellers of India. An overview to Town And Country Planning Act: The Town and Country Planning Organization (TCPO), which is an organisation of Central government to deal with the subject of planning (regional, urban and rural) and developmental policies, formulated a Model Town and Country Planning Act in the year 1960. The Model Act provides as follows: For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

19 a. Provisions for preparation of comprehensive Master Plan for urban areas of various states. The states may adopt the Model legislation with suitable modifications for this purpose. b. To constitute a Board to advise and to coordinate in the matter of planning and plan formulation by the Local Planning Authorities in the State. c. Provisions for implementation and enforcement of the Master Plans and the miscellaneous provisions to achieve planned urban growth of various urban areas in the state. The above model was revised in 1985. The revised Regional and Town Planning and Development Law have largely been the basis for the enactment of comprehensive urban and regional planning legislation in the States and Union Territories. This model is in the nature of a guideline and is the outcome of several reviews and revisions undertaken on the recommendations of the State Ministers Conference held from time to time. The legality of this model has been confirmed by the Ministry of Law. With a view to ensuring better overseeing and coordination of planning with plan implementation, the Model Law which dealt with the planning aspect only has been reviewed and revised and now a combined planning and development law has been formulated in consultation with the concerned Central Government Ministries. Under this law, planning and plan implementation have been combined together so that a single agency could undertake both these functions. To do this, the planning and development authority to be constituted under the Law has been equipped with full planning and development powers to discharge this task. A revised model for Urban & Regional Planning and Development law was brought out, and guidelines on Urban Development Plan Formulation and Implementation (UDPFI) have been formulated in 1991.


20 POWERS OF SUPERIOR OFFICERS OF POLICE Section 36: Powers of superior officers of police. - Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station Comment: May the word may do not means must. The section doesnt compel but only empowers exercise of powers. The inceptor general of police will have jurisdiction the state. Section 37: Public when to assist Magistrates and police. - Every person is bound to assist a Magistrate or police officer reasonably demanding his aid(a) in the taking or preventing the escape of any other person whom such Magistrate or police officer is authorized to arrest; or (b) In the prevention or suppression of a breach of the peace; or (c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property. Comment: A Threefold duty is imposed on members of public who are required to assist the magistrate or police officer. (1) In the taking or preventing the escape of an officer or (2) in the prevention or suppression of a breach of a peace. Or(3) in the prevention of injury to railway cannel, tekegraph, or public property. Penalty for omission to do so is provided in section 187 of IPC. The demand made on public should be reasonable. Obviously the law doesnt intend the police should have general power of calling upon members of public to join them and doing the work for which they are paid. Such tressaing out the wear about of an absconding criminal or collecting evidence to warrant his conviction. Section 38: Public when to assist Magistrates and police.- Every person is bound to assist a Magistrate or police officer reasonably demanding his aid(a) in the taking or preventing the escape of any other person whom such Magistrate or police officer is authorized to arrest; or (b) in the prevention or suppression of a breach of the peace; or (c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property. Section 39: Public to give information of certain offences.- (1) Every person, aware of the commission of , or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code,(45 of 1860) namely:(i) sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the State specified in Chapter VI of the said Code); (ii) sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquility specified in Chapter VIII of the said Code); For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

21 (iii) sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification); (iv) sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.); (v) sections 302, 303 and 304 (that is to say, offences affecting life); (vi) section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft); (vii) sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoit); (viii) section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.); (ix) sections 431 to 439, both inclusive (that is to say, offences of mischief against property); (x) sections 449 and 450 (that is to say, offence of house-trespass); (xi) sections 456 to 460, both inclusive (that is to say, offences of lurking house-trespass); and (xii) sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes), shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention. (2) For the purposes of this section, the term "offence" includes any act committed at any place out of India, which would constitute an offence if committed in India. Comment: This section imposes a duty on every person to give information of certain offences specified in clause 1-12 of subsection 1. The duty ceases when the information has reached the police in some other way. Penalty for breach is provided in sub section 176 and 202 of the IPC and penalty for furnishing false information under section 177 of the IPC. In order that section 39 should be attracted the person must of the commission of any offence under the enumerated sections of IPC. Future contingencies are not sufficient to attract the section. His duty to inform arises on his being aware of the commission of an offence. The Supreme Court highlighted the importance of this duty in the following words: It is the statutory duty of every witness who has the knowledge of the commission of the crime to assist the state in giving evidence. Un fortunately for various reasons in particular deterioration in law and order situation and the principles of self preservation many of witness turn hostile and in some instances even direct witness are being liquidated before they are examined by the court. In such circumstances it is high time that the law commission looks into the matte. The law commission has recommended to the central government to make the necessary amendments to the CR.P.c. and this aspect should also looked into and proper principles evolved in this behalf Highlighting the function of a criminal trial the Supreme Court observed in this case Ever criminal trial is a vogue in quest of truth for public justice to punish the guilty and restore peace, stability and order in the society. Every citizen who has knowledge of the commission of cognizable offence has a duty to lay information before the police and cooperate with the investigating officer who is enjoined to collect the evidence and if necessary summon the witness to give evidence. He is further enjoined to adopt scientific and all fair means to unearth the real offender lay the charge sheet before the court competent to take cognizance of the offence. The charge sheet needs to contain the facts constituting the offences charged. The accused is entitled to fair trial. Every citizen who assist the investigation is further duty bound to appear before the court of session For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

22 or competent criminal court tender his ocular evidence as a duty full and truthful citizen to unfold the preoceution case as given in his statement and be trial in that behalf is a step destabilize social peace order and progress Section 40: Duty of officers employed in connection with the affairs of a village to make certain report.- (1) Every officer employed in connection with the affairs of a village and every person residing in a village shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station, whichever is nearer, any information which he may possess respecting(a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in or near such village; (b) the resort to any place within, or the passage through, such village of any person whom he knows, or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender; (c) the commission of, or intention to commit, in or near such village any non-bailable offence or any offence punishable under section 143, section 144, section 145, section 147, or section 148 of the Indian Penal Code(45 of 1860); (d) the occurrence in or near such village of any sudden or unnatural death or of any death under suspicious circumstances or the discovery in or near such village of any corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred or the disappearance from such village of any person in circumstances which lead to a reasonable suspicion that a non-bailable offence has been committed in respect of such person; (e) the commission of, or intention to commit, at any place out of India near such village any act which, if committed in India, would be an offence punishable under any of the following sections of the Indian Penal Code,(45 of 1860) namely, 231 to 238 (both inclusive), 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450, 457 to 460 (both inclusive), 489A, 489B, 489C and 489D; (f) any matter likely to affect the maintenance of order or the prevention of crime or the safety of person or property respecting which the District Magistrate, by general or special order made with the previous sanction of the State Government, has directed him to communicate information. (2) In this section, (i) "village" includes village-lands; (ii) the expression "proclaimed offender" includes any person proclaimed as an offender by any Court or authority in any territory in India to which this Code does not extend, in respect of any act which if committed in the territories to which this Code extends, would be an offence punishable under any of the following sections of the Indian Penal Code,(45 of 1860) namely, 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450 and 457 to 460 (both inclusive); (iii) the words "officer employed in connection with the affairs of the village" means a member of the panchayat of the village and includes the headman and every officer or other person appointed to perform any function connected with the administration of the village. Comment: This section casts a duty on village officer and person residents in village to immediately give information certain offence and also certain stage or things to the nearest magistrate or police officer. The duty cast is absolute and immediate. The offences may other escape even the vigilance of police. Penalty for breach of provisions I provided for in section 176 of IPC. It may however be noted that the provisions of sections are in tented to be punitive. They are really intended to facilated For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

23 receiving information about offences and consequent taking of steps either for prevention or apprenction of the offender. The Supreme Court on the facts of a case that the mere fact that eight were acquitted it could not be a ground for commutation of the death sentence of others. But in view of the exercise of discretion by the court in commuting death sentence the supreme refused to interfere.


24 CONDUCT OF ARBITRAL PROCEEDINGS SECTION 18. Equal treatment of parties. The parties shall be treated with equality and each party shall be given a full opportunity to present his case. SECTION 19. Determination of rules of procedure. (1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (I of 1872). (2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings. (3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate. (4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence. SECTION 20. Place of arbitration. (1) The parties are free to agree on the place of arbitration. (2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. (3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property. SECTION 21. Commencement of arbitral proceedings. -Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. SECTION 22. Language. (1) The parties are free to agree upon the language or languages to be used in the arbitral proceedings. (2) Failing any agreement referred to in sub-section (1), the arbitral tribunal shall determine the language or languages to be used in the arbitral proceedings. (3) The agreement or determination, unless otherwise specified, shall apply toany written statement by a party, any hearing and any arbitral award, decision or other communication by the arbitral tribunal. (4) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal. SECTION 23. Statements of claim and defence. (1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements. (2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.


25 (3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it. SECTION 24. Hearings and written proceedings. (1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for or a argument, or whether the proceedings shall be conducted on the basis of documents and other materials: Provided that the arbitrat tribunal shall hold oral hearings, at an appropriate state of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held. (2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of documents, goods or other property(3) All statements, documents or other information supplied to, or applications made to the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties. SECTION 25. Default of a party. -Unless otherwise agreed by the parties, where, without showing sufficient cause, (a) The claimant fails to communicate his statement of claim in accordance with subsection (1) of section (2), the arbitral tribunal shall terminate the proceedings; (b) The respondent fails to communicate his statement of defence in accordance with sub section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the alienations by the claimant; (c) A party fails to appear a tan oral hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the arbitrat award on the evidence before it. SECTION 26. Expert appointment by arbitral tribunal. (1) Unless otherwise agreed by the parties, the arbitral tribunal may(a) Appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and (b) Require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection. (2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue. (3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in the possession of the expert with which he was provided in order to prepare his report. SECTION 27. Court assistance in taking evidence. (1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the court for assistance in taking evidence. (2) The application shall specify(a) The names and addresses of the parties and the arbitrators; For Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

26 (b) The general nature of the claim and the relief sought; (c) The evidence to be obtained, in particular, (i) The name and address of any person to be beard as witness or expert witness and a statement of the subject-matter of the testimony required; (ii) The description of any document to be produced or property to be inspected. (3) The court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal. (4) The court may, while making an order under sub-section (3), issue the same processes to witnesses as it may issue in suits tried before it. (5) Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the court. (6) In this section the expression Processes includes summonses and commissions for the examination of witnesses and summonses to produce documents.


27 MAKING OF ARBITRAL AWARD AND TERMINATION OF PROCEEDINGS 28. Rules applicable to substance of dispute. (1) Where the place of arbitration is situate in India, (a) In an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India; (b) In international commercial arbitration, (i) The arbitrat tribunal shall decide the dispute in accordance with the rules of law designated by the parties as applicable to the substances of the dispute; (ii) Any designation by the p arties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country and not to its conflict of laws rules; (iii) Failing any designation of the law under clause (a) by the parties, the arbitrat tribunal shall apply the rules of law it considers to be appropriate, given all the circumstances surrounding the dispute. (2) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so. (3) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction. 29. Decision making by panel of arbitrators. (1) Unless otherwise a-reed by the parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitrat tribunal shall be made by a majority of all its members. (2) Notwithstanding sub-section (1), if authorised by the parties or all the members of the arbitrat tribunal, questions of procedure may be decided by the presiding, arbitrator. 30. Settlement. (1) It is not incompatible with an arbitration agreement for an arbitrat tribunal to encourage settlement of the dispute and, with the agreement of the parties; the arbitrate tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement. (2) If, during, arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitrat award on agreed terms. (3) An arbitral award on agreed terms shall be made in accordance with section 31 and shall state that it is an arbitrat award. (4) An arbitrat award on a-reed terms shall have the same status and effect as any other arbitral award on the substance of the dispute. 31. Form and contents of arbitral award. (1) An arbitral award shall be made in writing and shall be signed by the members of the arbitral tribunal. (2) For the purposes of sub-section (1), in arbitrat proceeding with more than one arbitrator, the signatures of the majority of all the members of the arbitral tribunal shall be sufficient so long as the reason for any omitted signature is stated. (3) The arbitral award shall state the reasons upon which it is based, unlessFor Notes & Projects ~ [email protected] Or www.jainadvocates.com Or Call 0 98260 44 365

28 (a) The parties have agreed that no reasons are to be given, or (b) The award is an arbitral award on a-reed terms under section 30. (4) The arbitral award shall state its date and the place of arbitration as determined in accordance with section 20 and the award shall be deemed to have been made at that place. (5) After the arbitral award is made, a signed copy shall be delivered to each party. (6) The arbitral tribunal may, at any time during the arbitral proceedings, make an interim arbitral award on any matter with respect to which it may make a final arbitral award. (7) (a) Unless otherwise a reed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. (b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen percentum per annum from the date of the award to the date of payment. (8) Unless otherwise agreed by the parties, (a) The costs of an arbitration shall be fixed by the arbitral tribunal (b) The arbitral tribunal shall specify(i) The party entitled to costs, (ii) The party who shall pay the costs, (iii) The amount of costs or method of determining that amount, and (iv) The manner in which the costs shall be paid. Explanation. -For the purpose of clause (a), costs means reasonable costs relating to(i) The fees and expenses of the arbitrators and witnesses, (ii) Legal fees and expenses, (iii) Any administration fees of the institution supervising the arbitration, and (iv) Any other expenses incurred in connection with the arbitral proceeding and the arbitral award. 32. Termination of proceedings. (1) The arbitral proceeding shall be terminated by the final arbitral award or by all order of the arbitral tribunal under subsection (2). (2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where(a) The claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute, (b) The parties agree on the termination of the proceedings as, or (c) The arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible. (3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings. 33. Correction and interpretation of award; additional award.


29 (1) Within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties(a) A party, with notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award; (b) If so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award. (2) If the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall make the correction or give the interpretation within thirty days from the receipt of the request and the interpretation shall form part of the arbitral award. (3) The arbitral tribunal may correct any error of the type referred to in clause (a) of subsection (1), on its own initiative, within thirty days from the date of the arbitral award. (4) Unless otherwise a-reed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award. (5) If the arbitral tribunal considers the request made under sub-section (4) to be justified, it shall make the additional arbitral award within sixty days from the receipt of such request. (6) The arbitral tribunal may extend, if necessary, the period of time with in which it shall make a correction, give an interpretation or make an additional arbitral award under sub section (2) or subsection (5). (7) Section 31 shall apply to a correction or interpretation of the arbitral award or to an additional arbitral award made under this section.


30 AN INTRODUCTION Sections 104 to 108 and Order 43 deal with appeals from orders. The expression "order" has been defined as "the formal expression of any decision of a civil court which is not a decree". Sections 96 and 100 provide for a right of appeal from decrees. Section 104 and Order 43, Rule I provide for a right of appeal from certain orders. The distinction between a decree and an order lies in the fact that whereas every decree is appealable unless barred by the Code or by any other law for the time being in forced no appeal lies from an order unless it is expressly provided by the Code or by any other law for the time being in forced Again, in case of a decree, second appeal also lies to the High Court in certain cases, but no second appeal lies from any order passed in an appeal from order. However, a letters patent appeal lies in certain cases if the order passed in appeal from order amounts to a judgment within the meaning of the said expression as used in the letters patent. APPEALABLE ORDERS : SECTION 104 ; ORDER 43 An appeal shall lie from the following orders : (i) (ii) (iii) (iv) An order under Section 35-A awarding compensatory costs in respect of false or vexatious claims or defence. An order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to therein. An order under Section 95 awarding compensation for obtaining arrest, attachment or injunction on insufficient grounds. An order under any of the provisions of the Code imposing a fine or directing the arres

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