Issue: Current case questions the Hon’ble Calcutta High Court judgment whereby the Appellant was convicted under Section-302 read with Section-34 and Section-201 read with Section-34 of the Indian Penal Code, 1860.

Background/Facts: A phone call was received by Rajarhat Police Station, stating that a dead body has been found inside a well.  The body was taken out the next morning as when the officers reached the site, it was dark. After the post-mortem of the dead body, it was concluded that the deceased died because of strangulation as the larynx and trachea were highly congested and the body was also partially decomposed.

As the investigation started, the apparels/clothes on the body were seized, photographs were taken of the body and the subsequently the body was cremated shortly as it was in a decomposed state. It was later identified that the body was of Becharam Dhara who was reported missing by his mother.

On information received in the investigation process the Appellant was arrested. Pursuant to the confession made by the Appellant, an Anglo-Swiss watch was seized from A.C. Watch Company.  Prosecution contends that the watch belongs to the brother of the deceased i.e. Kenaram Dhara. He stated that he gave his watch to the deceased when he left the house.

As the investigation completed, the Appellant along with three others were charged with committing the murder of Becharam Dhara and concealing the body.

Various submissions were given in the trial court (hereinafter referred to as “the court”), the sister of the deceased submitted that the deceased left the house by telling her that he was going to visit the Appellant.  Similarly, a relative of the deceased deposed that the deceased visited her house in the morning and left around afternoon informing her that he was going to meet the Appellant. It was also contended that the deceased and the Appellant were friends. On the basis of the evidence on record, the court concluded that there was sufficient evidence to show the Appellant's guilt.

According to the proprietor of the A.C. Watch Company, the Appellant gave a watch for repair one day before the body of the deceased was found. Recovery of the watch which belonged to the deceased’s brother and which was eventually given to the deceased while he was leaving home was taken as a circumstance to prove the involvement of the Appellant in the crime. The Appellant gave the watch to be repaired. The Appellant did not deny that the signature on the counterfoil of the receipt taken from the owner of the shop was his. He merely stated that the police had taken the signature illegally during the investigation. On the basis of that evidence, the Court concluded that the Appellant was guilty of the murder of Becharam Dhara. Upon reassessing the facts on record, the High Court upheld the conviction.

Furthermore, during the trial, the deceased’s brother told the court that one day before the body was discovered he saw the Appellant in a bus. When the Appellant saw him, he started trembling and alighted the bus one stop ahead of Baguihati (the original destination).

The Appellant's conviction is mainly based on the recovery of the watch which had been handed down to the deceased pursuant to the Appellant's confessional statement. The receipt given by the owner of the shop was confiscated from the appellant during the course of the investigation, according to the prosecution. His confessional statement was recorded on the basis of which the receipt was taken from his house. The watch was subsequently confiscated from the shop along with the counterfoil of the receipt on which the applicant's signature was found. The defense contends that the Appellant was compelled by the police to sign the counterfoil. It was also claimed that the receipt had not been taken from the Appellant's house. Also, the evidences on which the conviction is based are circumstantial and not direct.

Observations by the Supreme Court:

On an overall analysis of the recorded evidence, in particular the evidence provided by the family of the deceased would not lead us to believe that the appellant and the deceased were last seen together. That evidence only shows that the deceased had informed them that he would visit the Appellant. There is no recorded evidence to show that the last time the Appellant was seen was with the deceased. The facts of the case do not conform to section-106 of the Indian Evidence Act, 1872. The Appellant cannot be said to have failed to explain what happened after they were last seen together, especially when there is no evidence to show that they were last seen together.

A close examination of the recorded material would show that the circumstances on which the prosecution relied to prove the Appellant's guilt were not complete, and would not lead to the conclusion that the Appellant must have committed the murder in all likelihood. Therefore, setting the conviction aside and acquitting the Appellant from all charges.

What does Brexit mean?     

British exit- refers to UK leaving the EU.

What is European Union means?

The European Union (EU) is a political and economic union that comprises 28 European countries. This allows free trade, meaning goods can travel between member countries without any checks or additional fees. The EU also enables free movement of people, wherever they choose to live and work in.

The United Kingdom joined in 1973 (when it became known as the European Economic Community) and will be the first to leave.

Why is United Kingdom leaving?

The United Kingdom (UK) officially left the EU on 31 January 2020. While it has settled on the terms of its exit from the EU, both parties still have to discuss how their future relationship will look.

This will have to be sorted out during the transition period (which some prefer to call the implementation period), which started immediately after the day of Brexit and is due to end on 31 December 2020. The UK will continue to follow all of the EU's regulations during this 11-month period and its trade relationship will remain the same.

The transition period is meant to give some breathing space to both sides while negotiating a new free trade agreement. This is important because at the end of the transition, Britain will be leaving the Single Market and Customs Union. A free trade agreement would allow goods to travel around the EU with no checks or additional fees. If a new one cannot be negotiated in time, then the UK will face the prospect of having trade with no deal in place. That would mean tariffs (taxes) on UK goods travelling to the EU and other trade barriers.

What is the Brexit deal?

Apart from trade, many other aspects of the future relationship between the UK and the EU will need to be discussed as well. For example:

§  Law enforcement, data sharing and security

§  Aviation standards and safety

§  Access to fishing waters

§  Supplies of electricity and gas

§  Licensing and regulation of medicines

Prime Minister Boris Johnson maintains that the transition period will not be prolonged, but the European Commission has warned that the timeline would prove to be extremely difficult.

The transition period and other aspects of UK leaving were decided upon in an agreement called the withdrawal agreement. Most of that has been decided by the Government of Theresa May. Yet he made some changes to it after Mr Johnson replaced her in July 2019.

The key change is that a customs border between Northern Ireland and Great Britain will be effectively created under Mr Johnson's proposal. Some goods from Great Britain which enter Northern Ireland will be subject to checks and will have to pay EU import taxes (called tariffs). When goods stay in Northern Ireland (i.e. are not transported to the Republic of Ireland), these would be refunded.

Conclusion

Brexit gives the United Kingdom’s economy the golden opportunity to revive on the back of a re-balancing away from the EU and export its way round the world. This means the United Kingdom will be able to take advantage of the grand horizons to broaden its export markets while developing new supply chains and production networks, particularly within the Commonwealth context.

Post-Brexit, in an increasingly unpredictable and turbulent world, the UK can be a regional and Commonwealth member as well as a powerful and loyal partner of the EU.

The essence of a trademark is that, it can be uniquely identified by a purchaser in the market. Also, a trademark carries a whole lot of attributes, most important being the goodwill it has earned over a period of time. When can it be said that a trademark is deceptively similar to another and what effect does it has on the party whose trademark is violated.

Issue: Whether the Sardarbuksh trademark is deceptively similar to the Starbucks trademark phonetically or visually.

A Suit was brought in by Starbucks alleging Sardarbuksh of copying their company name as well as their logo, which is too close to their famous 2-tailed mermaid, and for illegal use in the promotion of their product.

Sardarbuksh has opened five coffee shops in Delhi, offering a wide menu of coffee, shakes and snacks. They were accused of copying a similar name as well as a very similar logo to that of the US global Starbucks coffee chain.

Background: Starbucks registered their trademark which consisted of a word mark i.e. STARBUCKS and a logo depicting “crowned maiden with long hair” in India in 2001. The defendants began their business in 2015 by calling their enterprise "Sardarbuksh Coffee & Co" where "Sardar" is a Hindi word meaning "Commander" and "Buksh" is a Hindi word meaning "Pardon." In May 2018, the defendants formed a private limited company with the name "Sardar Buksh Private Limited" and have been operating under that name since. The goods and services rendered by both the plaintiff and the defendant are the same. The defendants used a logo consisting of a circular black band with the words 'SARDARBUKSH COFFEE & CO.' and a turban Commander along with wavy lines extending from the edges.

In 2017, Starbucks asked the defendants to change their logo by way of a letter of demand. Further, it was modified to a color scheme of black and yellow and operations were commenced with the newly modified logo.

Eventually, Starbucks filed a suit against Sardarbuksh in the Hon’ble Delhi High Court (hereinafter referred to as “the Court”). The legal perspective was the deceptively similar analogy which is derived from Section 2(1)(h) read in Section 11 of The Trademarks Act, 1999 that states that, when two marks are put next to each other, if they cause confusion or mislead the viewers, they would be deceptively similar and therefore cannot be registered.

Observations: According to previous judgments there were various tests that were determined by courts to prove the deceptively similar analogy, such as test of likelihood and confusion, goodwill etc.  In the case of National Sewing Thread Co. Ltd. vs. James Chadwick and Bros AIR 1953 SC 357 it was held that “the controversy of deceptively similar can only be decided by stepping in the shoes of purchaser, who is considered to be a man with ordinary intelligence. If the identification of two brands causes confusion to the purchaser then it would be right to say they are deceptively similar”.

Further, the fact that both the parties are dealing in same kind of trade and offering same services to its customers, also plays an important role. In the case of M/s Nandhini Delux v. M/s Karnataka Co-operative Milk Producers Federation Ltd. CIVIL APPEAL NO. 2943-2944 OF 2018  it was held that, due to difference in the variety of products traded and difference in visuals of both companies the trademarks ‘NANDINI and NANDHINI’  will be considered to be non-infringing.

Besides the legal aspect of the present case, the marks being deceptively similar would also have certain economic complications on the plaintiff. Starbucks is a global brand having goodwill that has been amassed over a long period of time. Here, it can be said that the defendant had the knowledge of the global reputation that Starbucks has and further wanted to exploit that image to get market attention rapidly.

On 1^st August, 2018 the decision was given by the Court in favor of Starbucks and further it ordered the defendants to modify their store name from “Sardarbuksh Coffee & Co.” to “Sardarji-Bakhsh Coffee & Co.”. The order for modification was given to the 20 stores that have not yet opened. The court also permitted to use the name “Sardarbuksh Coffee & Co.” for the previously operating two stores.

On 27^th September 2018, it was also agreed that the defendant would change the name of all its outlets to "Sardarji-Bakhsh Coffee & Co." In addition, it was explained and decided that, if a third party uses the term "Bakhsh", then the defendant would have the right to bring an action against such a violator. The suit was settled on those terms.

Introduction

Indian roads are known to be one of the worlds most dangerous. Uncertain road conditions including sharp curves, potholes and steep grades have proved to be very deadly. During 2017, according to data of the Ministry of Transport and Roads (MTR), potholes cost 3,597 lives. This is an increase of 55% compared to 2016. Almost 10 people per day die in the country due to faulty roads or poor maintenance. The need to make road designers and engineering agencies increasingly accountable is long overdue.

Now, under section-198A of the Motor Vehicle (Amendment) Act 2019 (hereinafter referred to as “the Act”), this crucial issue has been genuinely addressed. This section ensures that mistakes shall be punished legally for failure to meet road design, construction and maintenance requirements.

Objective of the Amendment

On September 1, 2019, the Motor Vehicles (Amendment) Act 2019 came into force with an aim to curb road accidents in India and improve road safety. This major change to the Motor Vehicles Act 1988 has resulted in the implementation of fresh fines and vehicle licensing requirements along with revised operating standards for both personal and commercial vehicles.

The new Motor Vehicles Bill is causing a jaw-dropping increase in fines for violators of traffic rules. The Bill also seeks to spread information about road safety and to prevent drivers from flouting traffic rules and regulations.

The increased fines levied by the Act have been a subject of widespread concern. Several people have expressed disappointment at updated sanctions, deemed them a move that could allow for more corruption. It is however necessary noting, human intervention is to be effectively reduced by strategic technology incorporation with enforced compliance, thereby reducing the impact of such practice.

Some states like Maharashtra, Delhi and Karnataka have also started installing high-resolution cameras at traffic junctions to automatically monitor and send violation feeds to control centre's.

Changes in the Act

Under the Act, traffic violations such as drunken driving draw a fine of Rs. 10,000/-and/or 6 months to 2 years imprisonment. Penalties for driving without a license have been raised from "fine to Rs.500/- and/or imprisonment that may stretch to 3 months" to "fine of Rs. 5,000/- and/or imprisonment for up to 3 months". Not wearing a helmet while riding a two-wheeler can now cause you to pay Rs 1,000/- fine and 3-month banning of license.

Violations such as speeding, not using a helmet, not using a seat belt, not using a child safety device and distracted driving are established killers on our roadways. The act multiplies the fines by 10 times for speeding (section 189), non usage of helmets (section 194D), and the non usage of seat belts and/or child protection devices (section 194B), among other clauses such as stricter penalties for drunken driving (section 185) and dangerous driving (section 184) with possible imprisonment. Through these provisions, not only does the Act aims to protect road users from risk factors, but also aims to deter the practice of negligence by road users in order to avoid further loss of life.

Introduction

Adoption has always been considered as a sacred act. As per Merriam-Webster, legal adoption means “to take voluntarily (a child of other parents) as one’s own child especially in compliance with formal legal procedures”.

Adoption can be both legal or illegal. According to Indian law, adoption is a legal partnership between the party willing to adopt and the child who is to be adopted. It is the subject of 'personal law' where Hindu, Buddhist, Jain or Sikhs may make a legal adoption by religious faith. In India, Hindus, Christians and Parsis do not have separate adoption laws, so they are required to file a petition in court for legal adoption under the Guardians and Wards Act, 1890 (hereinafter referred to as “the Act”).

According to Section 2(aa) of the Juvenile Justice (Care and Child Protection of Children) Amendment Act, 2006, "adoption means the process by which the adopted child is permanently separated from its biological parent and becomes the legitimate child of its adoptive parents with all the rights, privileges and responsibilities attached to the relationship".

Who can adopt?

In India, an Indian who is married or is single, a non-resident Indian (NRI), or a person of any kind of nationality (foreigner) may adopt the child. For each group of adoptive parents, guidelines and documentation process can differ.

ELIGIBILITY TO ADOPT A CHILD IN INDIA

According to The Hindu Adoptions and Maintenance Act, 1956 following category of people can make adoptions:

• “Any male Hindu (including Buddhist, Jain or Sikh by religion) who is of sound mind, not a minor and is eligible to adopt a son or a daughter”. But if such male has living spouse at a time of adoption then he can adopt a child only with a consent of his wife (unless she has been declared incompetent to give her consent by the court).
• “Any female Hindu (including Buddhist, Jain or Sikh by religion) who is not married, or if married, whose husband is not alive or her marriage has been dissolved or her husband has been declared incompetent by the court has the capacity to take a son or daughter in adoption”.

Adoption criterias:

       i.           When a Hindu man or woman adopts a son, no living son (whether by legitimate blood relationship or adoption) shall be in the following three generations at the time of its adoption. There must be no living son.

     ii.           When any Hindu male or female adopts a daughter, they should not have a daughter of any child at the time of adoption.

   iii.           Where a male adopts a daughter then the adoptive father should be at least 21 years older than the child.

    iv.           Where a female adopts a son than the adoptive mother should be at least 21 years older than the child.

      v.           Muslim, Christian, Parsis and Jewish personal laws do not accept complete adoption, so if a person belonging to such a religion and wishes to adopt a child, he or she may take adoption in accordance with Section 8 of Act,.

    vi.           This statute only makes a child a ward but not an adopted child. The movement child turns to the age of 21 according to this law, he is no longer considered as a ward and regarded as an individual identity.

  vii.           It was held in "Muhammad Allahdad Khan and Anr. vs Muhammad Ismail Khan And Ors"(1886) ILR 8 All 234 that there is nothing comparable to adoption in the Muslim Law as known in the Hindu tradition. Under Muslim law recognition of paternity is the nearest approach to adoption.

viii.           An adoption can take place from an orphanage, however, by obtaining court approval under the Guardians and Wards Act. Under the Act, Christians can take a child for adoption only under foster care. Once a child is major in foster care, he is free to break all of his links from his adoptive parents.

Inter-country Adoption

In India there is no separate act governing adoption by foreign citizens or NRIs but it is covered by Children's Adoption Guidelines, 2015. Under these guidelines, children are prevented from being abused or illegally used through adoption. According to the Intercountry Adoption Guidelines of the Supreme Court a foreign parent may adopt an Indian child before he/she is 3 years old. The laws of Guardians and Wards Act, 1890 will be observed for adoption in the absence of any substantive act on intercountry adoption.

In the case of the adoption of abandoned, abused and surrendered children, all intercountry adoptions shall be made only in accordance with the provisions of The Juvenile Justice (Care and Protection of Children) Act, 2015 and the adoption regulations framed by the Authority.

The Guardians and Wards Act, 1890, remains silent about orphans being adopted, lost, and surrendered. Chapter VIII of The Juvenile Justice Act (Care and Child Protection) Act, 2015 deals with the adoption of children in such a group. Section 58 of this Act provides that, irrespective of their religion, any Indian citizen if interested in adopting an orphan or abandoned or surrendered child, may apply to a Specialized Adoption Agency in the same manner as provided for in the Authority's adoption regulations.

Section 57 of The Juvenile Justice Act (Care and Child Protection) Act, 2015 deals with Prospective Adoptive Parent Eligibility. According to this clause, the adoptive parents should be physically fit, financially sound, psychologically aware and highly motivated to adopt a child in order to provide him with a good education, and both partners must agree to the adoption. In accordance with the provisions of the adoption regulations established by the Authority, a single or divorced person may also adopt but a single male is not allowed to adopt a girl child.

WHO CAN BE ADOPTED?

As per the Hindu law following child may be adopted namely-

• The child can either be a girl or a boy if he/she is a Hindu.
• He/ She has not been adopted before.
• The age of the child is below 15 years.
• The child should not be married.

As per the Guardianship law and The Juvenile Justice (Care and protection of children) ACT, 2015 following child may be adopted namely-

• Who is not a Hindu?
• Who is minor (not completed the age of 18 years).
• An orphan or abandoned or surrendered child.

PROCEDURE FOR A VALID ADOPTION

Under the Hindu Adoption and Maintenance Act, the party that is willing to adopt will apply to the Child Welfare Agency in 1956. Registration can be done either by an Adoption Coordinating Agency (ACA) located in the capital city of each state, or by a Central Adoption Resource Authority (CARA) accredited agency in New Delhi.

After that, the agency performs a preliminary interview with the adopting couple to understand their purpose behind adoption and motivation.

Once the party decides the child they are going to adopt, they send the petition to the court of appropriate jurisdiction, where there is a court hearing on adoption (the court is required to hand down the adoption case within 2 months).

Once the decision is issued by the Court, approval is finalized.

CONCLUSION

An adoption is a noble act so it should be carried out on a large scale by the people because India is a country where there is too much population and there are a huge number of unwanted children.

Over the past few years, agencies and adoptive parents in India's adoption system have noted a growing preference for the girl child over boys. Adoption is one way of controlling and preventing the raging problem of female foeticides and crimes against women in India. And what better way of giving a nice so normal life to a kid who really needs it.

“A lie can travel halfway around the world while the truth is putting on its shoes.”

- Mark Twain

Defamation and Social Media

When individuals feel their credibility is hurt by a careless comment made on social media like Facebook, Twitter or other online channels, they can consider pursuing a complaint against the offending party for defamation. We may be able to recoup money for the losses we have suffered through a libel lawsuit.

Online Defamation

During the 21st century social media grew exponentially with the emergence of different social media channels. In addition, online comment platforms like Yelp and review sites have allowed individuals to leave feedback that encourage thousands of people to read their comments. Many social media sites exist on the idea that information needs to be shared between users. This sharing often occurs without thinking about the truth of the information, or without regulatory oversight. Furthermore, anonymous profiles and websites allowed individuals to post instantly what they really thought. Some users assume a completely different FIND MORE LEGAL ARTICLES personality type any word(s) than they show in the real world. Commentators online may be rewarded with attention and public support when they blast other people. Most sites may check for inappropriate or pornographic content, but many do not screen for potentially defamatory content.

Potential Defamation

 While some plaintiffs may intend to prosecute Internet service providers or website servers in the hope of going after deep pockets, a federal law called the Communications Decency Act forbids defamation suits against those organizations.

Elements of Defamation

Although the laws of each state can differ, the central elements of a defamation suit are explained below. Generally speaking, defamation is a false statement that is made public and injurious to the reputation of the victim.

False Statement

A survivor has to be able to prove the statement was false. The reality is that a defamation lawsuit is a complete defense. The burden of proof for defamation lawsuits rests on the plaintiff party.

Fact

It must present the alleged defamatory statement as a fact and not as an opinion. Nonetheless, an opinion may be considered a statement of fact if it would have been viewed as such by a reasonable person.

Published

Published can mean literally in print, for instance in a newspaper or on a website.  Proving that a message has been released is typically not difficult for a case involving social media, provided the claimant can prove by writing it out that the material was on the website. Similarly, the content is considered published whether it is read by three people on an obscure website, or read by 300,000 people on a popular social media account.

Damage

In order for a plaintiff to prevail in a defamation lawsuit, he or she must be able to demonstrate that the defamatory statement has in some way damaged him or her. This can be interpreted as proving the harm was substantial, quantifiable and recorded. This is usually achieved by showing the damage to the victim's image. If the individual being attacked online was running a business, the loss of business or income will show damage. Many comments are so inherently harmful that a victim may not have to demonstrate any actual harm, such as statements accusing the person of committing a crime, being incompetent in his or her occupation, having some sexual behavior or possessing an infectious disease. A common test to determine whether a person's credibility has been harmed is whether that statement will cause the peers of the individual to think less about him or her.

Example of Online Defamation

Not every statement which is untrue or unkind is actionable. Yet there are many statements. For example, if you accused a person of abusing his or her spouse or children on social media, that statement would probably be considered defamatory if it were not true. Even if an individual posts partially true and partially false information, he or she may be held liable for defamation. For example, a person can claim to have been fired for assault on an individual. The person could have been fired for harassment but not. Despite any truth to the assertion the court may found defamation still existed.

Let's say you've got a blog and you wrote that, two weeks ago, ‘A’ hit his wife. If that statement isn't true (remember, truth is one of defamation's absolute defenses), it's defamatory. There's no way this statement isn't defamatory if it's false.

Are Opinions Protected?

But let's get this statement qualified. Let's say you wrote, "I think ‘A’ hit his wife two weeks ago." Opinion statements are not statements of fact, and thus are theoretically protected from libel suits. But, is this really an opinion statement? Sometimes statements of opinion are really seen as factual statements, depending on the circumstances. The average person may very well look at your statement as a statement of fact in this case, depending on how well you know ‘A’ and his wife, and why you think ‘A’  hit his wife.

The bottom line: Just because you're phrasing something as an opinion statement — "I think" or "I believe" — doesn't automatically protect you from a claim for defamation.

What if the statement is only in part true?

Let's take one more example. Let's say you wrote on someone else's Facebook page that ‘X’ had been fired from her job because she made a serious mistake and her company lost a significant client as a result. Again, it's almost certainly defamatory when this is a false statement. But what if it's true she made the mistake but the company didn't lose the customer? What if its company actually fired her to appease the customer? You certainly wrote something that was false (at least in part), but it may not have been defamatory overall.

The bottom line on this type of situation: if you're blogging or writing on your Facebook page, or submitting comments on someone else's blog or Facebook page, make sure you've got all the facts right before posting your statement on the internet. When you click on "submit," you will not be able to take it back.

If it's a close call, or, better, why mention it at all? To use our example, why do you need to write about ‘X’ being shot on someone else's Facebook page? You don't know all of the facts unless you are the one who fired her. It is a good idea to exercise utmost caution when posting posts or comments online or on social media, and avoid making any "gray area" claims that might be construed as defamation.

Problems of Online Defamation

The internet and social media are definitely a great thing for people and society at large, but they are also a fascinating breeding ground for potentially libelous comments.

Most people have learned (to their dismay) that the internet makes it almost too easy for people to speak out. The internet is chock-full of interesting websites where somebody could leave a potentially defamatory comment or post intentionally or accidentally.

Few of these locations are :

·         Letters to local newspaper publisher

·         Public comments on media websites (i.e., newspapers or magazines)

·         Blogs and comments concerning blog posts

·         Social media like Facebook, Twitter, Linkedin

·         Chat rooms or mailing lists

While some websites screen posts for inflammatory or illegal content, screening systems aren't geared to examining every post for defamatory content, and so many defamatory posts end up online.

What State’s Law Applies?

This is a complicated issue that depends on the state in which you live, the state in which the suspected defamer resides, and if any, the interactions the defamer has had with your State. When you believe you have been defamed online, you can contact a professional lawyer to discuss your legal options and best course of action as soon as possible.

Can You Sue The Service Provide?

One reason that you may want to sue the website's host or internet service provider (ISP) who posted a defamatory statement is the "deep pockets" argument.

ISPs or website hosts could have more money— and hence more ability to pay a judgment— than some blogger posting a defamatory statement about you. However, for better or worse, a federal law called the Communications Decency Act specifically exempted website hosts and ISPs from most claims of defamation.

The primary function of filing FIR is to record all the minute details and put the case into motion as was held in State of U.P Vs Krishna Mater & Ors, 2010 (2) L.S 42 (SC). The clause concerning FIR in Indian law is Section-154 of the CrPC, 1973. The report you file under Section-154 is known as FIR. One point to consider when filing an FIR is that it must be filed in conjunction with identifiable crimes. The plaintiff or anyone on his behalf usually files this, but in some cases it may be filled by the defendant too. An FIR must be in writing and a complaint must be entered in a book which will be kept at the police station.

Though the FIR is an important document in the initiation stage of a case but it is also provided that it cannot be used as evidence against the accused but it can be used to corroborate or contradict the informant under Section-157 and Section-145 of the Evidence Act 1872, if he/she is listed as a witness of a case.  

Unless the maker gives a satisfactory explanation, a delay in filing FIR will not be permissible. Where the maker offers adequate explanation such as the complainant's physical condition, natural calamities, the complainant's law ignorance, or any compensation he has provided for FIR filing. Though it is advised to file an FIR immediately as any delay may arouse suspicion on the complainant’s part.

Usually, an FIR is filed at a police station but in special circumstances it can be filed at the residence of a person as mentioned in Section-154.

With the introduction of internet services, in some states a person can also file an online FIR, but the traditional method mentioned in CrPC in Section-154 and is stated below:

·         The police must write down the information on the commission of a known crime told orally by the complainant.

·         As a person who provides or reports, it is your right to request that the information submitted by you to the police be read to you.

·         Upon recording the information by police, the individual providing the information must sign the report.

·         A complainant must verify that the information the police has recorded is according to the information that he/she provided and subsequently sign the report.

·         Those unable to read or write, after being sure that it is an accurate record, need to make their left thumbprint on the paper.

·         Always ask the police officials to handle you a copy of the FIR, unless you are provided by the officials. You are allowed to have it free of charge.

Now filing of an FIR is also done digitally. It is done to provide convenience to the aggrieved people. The procedure for the same is mentioned below:

 FIR (online or offline), must be filed immediately after an offence has been committed and in case of any delay in filing, it must be duly mentioned in the report. A Constitution Bench of the Supreme Court in the case of Lalita Kumari v Govt of U.P [W.P. (Crl) No; 68/2008] gave certain guidelines and held that, according to Section 154 of the Code of Criminal Procedure, registration of the first information report is compulsory where it discloses commission of an offence that is cognizable and no preliminary inquiry is required in this situation. In the case of a cognizable crime and the need of investigation, the information received may only be reviewed in advance in order to see if a cognizable offence is or is not revealed.

"A WOMAN CANNOT BE TERMINATED FROM WORK WHILE BEING PREGNANT"

RIGHTS OF A PREGNANT WOMAN AT WORK :

·         Safety at work and restoration- Employers have to keep your job open when you're out for a pregnancy-related absence, and they have to keep your place open at least as long as they would for any workers on maternity leave. Furthermore, you are entitled to any rights of reinstatement enjoyed by other employees when they are out for medical reasons. For example, if your employer offers paid leave to an employee recovering from a heart attack, you deserve the same benefits while away from your job due to pregnancy and related medical issues.

·         Unpaid leave from work benefits- Under FMLA, you are permitted to take 12 weeks of leave each year for the birth and care of your newborn child; you are also permitted to take time off to adopt a foster care child. The PLA allows employers with six or more workers to give at least eight weeks for giving birth or having an adopted child under 18.

Remember that neither law specifically mandates the employer to pay you for time off; instead, they protect your job security and re-establishment rights under the same terms that other workers receive while taking leave. Hence, if you pay other workers when away from work, you qualify for the same benefits.

·         Split Leave as needed- Most pregnant women experience different medical conditions before and after giving birth, and as members of the family transition into their new reality adoptive parents go through various issues. State and federal legislation understand the need for flexibility, so there are provisions that encourage qualified workers to divide the weeks of leave they are entitled to receive.

·         Marriage is NOT Definition- You do not need to be married at both the federal and state levels to take advantage of pregnancy-related leave and benefits. The Massachusetts law, in addition, acknowledges numerous differences in family dynamics, so the laws are gender neutral. Fathers are entitled to the same rights as mothers when they take leave to have a child born or adopted.

·         Safe and secure Pump- Pregnancy discrimination laws require employers to give reasonable break time for a nursing mother to express breast milk for up to one year after birth. The same statutes make it mandatory for employers to provide a place that is sheltered from view, other than a restroom, and relatively private for pumping.

·         Stay with the Job- While many discrimination laws concentrate on requiring leave if required to resolve pregnancy-related medical problems, many women experience the opposite treatment: an employer wants them to take time off to take care of their own and the child's health needs. However, if you are able to perform the routine tasks required by your position, you cannot be forced to take some time off.

·         Abortion and Endurance- Under federal and Massachusetts law, it is illegal for an employer to fire you for the abortion option. In addition, you are entitled to benefit from an abortion-related physical or mental disability to the same degree that your employer offers these benefits to other workers.  Again, employers are not required to provide benefits; they are only required to apply such policies in the same way to all workers.

·         Discrimination is unlawful- If you think you have been discriminated against because of a condition associated with pregnancy, you have rights. You can file a claim of discrimination.

·         Rights on pre-maternity leave- Before the baby is born, it may be necessary to be away from your job and during this time, the law protects your rights. The pre-maternity leave is subject to the same rules as other pregnancy-related absences.

·         Benefits To all employees- If there is one lesson linked to discrimination in pregnancy, it is because a qualified employee is entitled to the same benefits other workers with medical conditions receive. Employers may not be required to pay maternity leave or provide other benefits related to pregnancy, but they must extend appropriate policies to all staff.

EARNINGS AND LEAVES :

The Maternity Benefit Act provides that in the three months preceding their maternity leave, a woman will be paid maternity benefit at the rate of her average daily salary. The woman also needs to have worked for the employer in the 12 months preceding the date of her expected delivery for at least 80 days.

The Maternity Benefit Act originally provided 12-week maternity benefit, of which up to six weeks before delivery could be claimed. The law was amended in 2017, in order to extend the period to 26 weeks. Up to eight weeks may be claimed from the 26 weeks prior to delivery. However, you don't need to structure your leaves this way — instead you can take the whole 26 weeks of leave after delivery. These are also overall compensation periods and you can demand the value for a lesser amount of time as well.

If the mother has more than two surviving children, then the maternity benefit is only available for 12 weeks. The legislation has also been changed to expand maternity benefits to commissioning and adoptive mothers now entitled to 12 weeks ' leave from the day the child is adopted by the mother.

Women undergoing tubectomy (a medical procedure to stop future pregnancies) also get two weeks ' paid leave after surgery. In the case of abortion or surgical termination of pregnancy, the law allows women to leave for six weeks after the procedure. In the case of a post delivery disease, abortion, termination of pregnancy or tubectomy. A woman may demand a pay leave for a further duration of one month, more than what is allowed.

ADDITIONAL BENEFITS :

In addition to the maternity bonus period, the legislation also allows employers to require women employees to work from home if the nature of the work permits that.

In 2017 the law was further amended to make the establishment of creches mandatory for establishments with more than 50 workers. Mom's allowed to visit the creches up to four times a day and in addition to any other breaks available as a matter of course, two breastfeeding breaks per day until the infant reaches the age of 15 months.

EMPLOYER'S COMPLIANCE REQUIREMENTS :

·         Review and update maternity leave policies for workers to reflect the benefits extended under the 2017 Amendment Act

·         Update and include relevant references in employment contracts about maternity benefits – representing the current maternity benefit entitlements and responsibilities under the law

·         Developing structures, processes and policies that allow working mothers to work at home

·         Developing the framework for mandatory child care facilities for working mothers

·         Create a non-discriminatory performance management framework that acknowledges the absence of female employees

Taking into account new mothers ' health and safety initiatives, the Act also requires employers to ensure that no woman works immediately after the day of birth or miscarriage during the six weeks that follow. It is also illegal for an employer to fire or refuse a woman employee because of such absence.

In addition, the employer shall not hire a pregnant woman employee to perform any job of an arduous nature or work requiring long standing hours.

Where an employer contravenes the provisions or regulations of the Act, the Act provides for penalties either for one year's imprisonment or for a fine that may amount to Rs 5000, or for both.

EMPLOYER'S CHALLENGES :

One of the main challenges for employers in India who provide maternity benefits is that they have to bear the cost of it on their own. Whereas in most other countries, both the employer and the state government share the cost of maternity benefits.

Under the amended Act, the introduction of full payment of maternity leave salaries and the construction of mandatory care facilities further raises employers ' costs – increasing employers ' preference for recruiting male workers.

India's labor ministry recently proposed a proposal to help employers with the extra financial burden and ensure equal participation of women at work.

While the proposal is yet to be finalized, it seeks to reimburse employers for the wages charged for seven of the additional 14 weeks of maternity leave to female workers in the Rs 15,000 pay class who have been 12-month subscribers to the Employee Provident Fund Organization (EPFO).

ALTERNATIVE LAWS IN INDIA WHICH PROVIDE MATERNITY BENEFITS :

In addition to the Maternity Benefit Act, several other laws exist in India which provide for maternity benefits in India.

The Employees ' State Insurance (ESI), a self-financing program for employees ' social security and health insurance, offers maternity benefits for women in low-income jobs. This refers to workers who earn Rs 15,000 or less per month, with the employer contributing 4.75%, and the employee contributing 1.75%..

Instead of the Maternity Benefits Act, those who qualify can receive maternity benefits under the ESI scheme.

Certain regulations that provide maternity benefits include the Working Journalists (Conditions of Service) and the 1955 Miscellaneous Provisions Act, which grants 12 weeks of maternity benefits; and the 1948 Factories Act, which grants 12 weeks of full-time maternity leave.

Cognizance under Code of Criminal Procedure

The Code of Criminal Procedure has not specified what cognizance is. Literally, it means 'to be aware of' but when used in respect to a trial or a magistrate it means 'Judicial notice of an offence' Actually, taking cognizance does not require any formal action by the judge or magistrate, because as long as a magistrate turns his mind to the alleged crime of an offence for the purpose of taking further actions under the Code of Criminal Procedure, such as summoning an accused on the basis of the information available for prosecution or trial, cognizance can be said to have been taken.

In simple terms, cognizance can be interpreted as looking through a narrow keyhole and evaluating whether or not an offence has been committed, and if it has been committed at all, then whether certain parts of the IPC or any other special statute are attracted or not. The underlying principle in law or aim of cognizance is to maintain a 'judicial check' on the police, as a judicial officer by taking cognizance examines whether or not the crimes have actually been committed. Thus, in the Code, the word cognizance is used to denote the points when the Magistrate or Judge first takes legal notice of an offence. It is an infinite term of import, which may not always be used in precisely the same context.

COGNIZANCE OF OFFENCES BY MAGISTRATE

Any First class Magistrate and any Second Class Magistrate can acknowledge any offence. Section 190-199 of the code defines the procedures by which various criminal courts are entitled to take cognizance of offences, and the restrictions under which they are entitled.

(a)   Section 190 of CrPC "Cognizance of offences by Magistrates"

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try.

(b)   Section 191 of CrPC "Transfer on application of the accused"

When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

(c)   Section 192 of CrPC "Making over of cases to Magistrates"

(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

Tula Ram & Ors vs Kishore Singh: 1977 AIR 2401, 1978 SCR (1) 615

Taking cognizance does not require any formal procedure, or indeed intervention of any kind, but happens as soon as a judge, as such turns his mind to the suspected crime of an offence for the purpose of continuing to take further steps towards damage or trial. Furthermore, when a Magistrate applies his mind not for the purpose of proceeding as mentioned above but for taking action of some other kind, such as directing an investigation or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence.

COGNIZANCE TAKEN BY A MAGISTRATE NOT EMPOWERED

If any magistrate were not allowed to recognize an offence under Section 190(1)(a) and 190(1)(b), if an offence is wrongly accepted in good faith, the proceedings shall not be set aside solely on the ground that it is not permitted to do so. On the other hand, if a magistrate who is not empowered to take cognizance of an offence takes cognizance by information received or his own knowledge pursuant to section 190(1)(c), his proceedings shall be null and void. In such a case it is immaterial whether he was acting erroneously in good faith or otherwise.

COGNIZANCE OF OFFENCES BY COURT OF SESSION

According to Section 193, "Courts of Session are not permitted to take note of any crime (as a court of original jurisdiction) unless the case is committed by a Magistrate." If it is specifically established by this code or by any other statute, then only Courts of Session are permitted.

LIMITATION ON THE POWER TO TAKE COGNIZANCE

Sections 195-199 are exceptions to the general rule that, even though he is not personally interested or impaired by the crime, any person with knowledge of the conduct of an offence that sets the law in motion by a complaint. The general rule is that any person with knowledge of an offence commission may put the law into motion through a complaint even though he is not personally interested in or affected by the offence. Sections 195 to 199 of the CrPC provide exceptions to this general rule because they prohibit cognizance of the offences referred to therein except where a complaint is lodged by the Court or the relevant public servant. The provisions of these sections are obligatory and a Court has no authority to recognize any of the offences listed therein unless there is a written complaint as provided by the section in question.

Prosecutions for contempt of the lawful authority of public servants

According to section 195(1)(a), "Court shall not take cognizance of those cases which are punishable under section 172 to section 188 of the Indian Penal Code unless a public servant makes a written complaint." Section 172 to 188 of the IPC deals with offences related to public servant contempt. In case of an attempt, conspiracy abetment of offence set out in IPC section 172 to 188, the court will not take cognizance.

According to Section 195(2), ' ' Court will not proceed further with the trial when a superior official of a public servant (who has complained) gives the order of withdrawal. '' Provided that no such withdrawal is ordered after a trial has been completed in court.

Prosecution for offences against public justice

According to Section 195(1)(b)(i),'' Court shall not take cognizance of offensive cases pursuant to Sections 193 to 196, 199, 200, 205 to 211 and 228 of the Indian Penal Code unless a formal complaint is filed by that court or by some other court to which that court is subordinate.' In the event of an attempt, conspiracy, abetment of offences against public justice, the court will not take cognizance.

Prosecution for offences relating to documents given in evidence

According to Section 195(1)(b)(ii),'' Court shall not accept those cases which are offensive according to Section 463 or punishable according to Section 471, 475 or 476 of the IPC unless a formal complaint is lodged by that court or by any other court to which it is subordinate.' In case of an attempt, conspiracy, abetment of offences relating to documents provided in evidence, the court will not take cognizance.

The definition of' court' in Section 195(1)(b) is addressed in paragraph 195(3). Court' means a Civil, Revenue or Criminal Court, which involves, for the purposes of this section, a tribunal created by or under a Central Provincial or State Act where that Act has been declared a Tribunal.

Section 195(4) deals with the definition in Section 195(1)(b) of the superior court and subordinate court. If Court ' A' has the authority to appeal the decision granted by Court' B' we will then presume Court' B' is subordinate to Court' A.'

Prosecution for offences against the state

According to Section 196(1), ‘‘Court will not take cognizance to those cases which punishable under Chapter VI (Of Offences against the State) or under Section 153A, Section 153B, Section 295A or Section 505 of Indian Penal Code except with the consent of the Central Government or of the State Government.”

The listed IPC sections deal with state offences. Chapter VI of IPC describes the state offence. Section 153A of the IPC deals with harmony 295A deals with the offence of comments leading to violations of religious belief. Section 505 deals with an offence related to public mischief.

Prosecution for the offence of criminal conspiracy

According to Section 196(2), “Court will not take cognizance to offences of any criminal conspiracy under Section 120B of Indian Penal Code (other than a criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for two a term of two years or upwards) unless consent in writing is given by the State Government or the District Magistrate to initiation of the proceedings.”

Conclusion

In the Code of Criminal Procedure, the term 'Cognizance' is not specified. This basically means adding the judicial mind to a suspected crime commission CrPC Chapter XIV deals with' Conditions Required to begin proceedings' and CrPC Chapter XV deals with 'Complaints to Magistrates'.

Name of the case : NAVTEJ SINGH JOHAR AND ORS. V UNION OF INDIA(section 377 of IPC,1860)

Section 377 of the Indian Penal Code states- "Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine"

Issues raised :

·         The Section 377 of the IPC is in violation of the equality right secured by Article 14 of the Constitution. Freedom of speech and expression under Article 19 of the Constitution on the right to privacy and the right to live with dignity under Article 21.

·         Whether it is arbitrary to make consensual relationship a crime contrary to the order of nature as per section 377 of the IPC?

·         Whether the fact that the law discriminates against people on the basis of sexual orientation is in violation of Article 15 of the Constitution?

Arguments :

Side Petitioner :

The plaintiff counsel relied on the ratio in Case K. S. Puttaswamy v. Union of India which stipulated that "sexual orientation is also an important privacy attribute. Protecting an individual's sexual orientation and his or her right to privacy is therefore extremely important, even without enjoying such personal and constitutional freedoms , individual identity may lose meaning, a feeling of trepidation will take over, and their life would be reduced to mere survival. "That the right to privacy often applies to LGBTs who have the right to exercise their choice without any fear of exposing themselves. No one has the power to direct how a person chooses to go to bed as if.

In the case of the Naz Foundation, though reaffirming the judgment of the Delhi HC, the counsel also put emphasis on the case of Manoj Narula v. Union of India as an example of cases in which constitutional morality had been averted. The Supreme Court is the protector of the Constitution, and this SC is "the ultimate arbiter of constitutional rights" and should uphold constitutional integrity and eradicate social disregard.

The petitioner's counsel, Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others and Common Cause (A Registered Society) v. Union of India and another, in which the bench held that Article 21 guarantees the right to life and freedom, and liberty. And it is useless if it can not impose on everyone, including the LGBT community, human autonomy and positive self-expression.

The petitioners drew the Court's attention to the Committee on Criminal Law Amendments, J.S. Verma, which had found that "sex" arising in Article 15 includes sexual orientation and, according to the petitioners, Section 377 was also in violation of Article 15 of the Constitution on that count.

It was also claimed that when the LGBT people announced their identities, they feared punishment and persecution and therefore never addressed the court. They seek help from parents, teachers, non-governmental organizations, to speak on their behalf.

Side Respondent :

The counsel argued that Article 15 of the Constitution was not infringed as it only forbids discrimination on the grounds of religion, ethnicity, caste, age, birthplace or any of them but not sexual orientation.

He put emphasis on the case of Fazal Rab Choudhary v. Bihar State, in which it was observed that the section indicated sexual perversity, or sexual bestiality that was contrary to nature's order and that it was very well within the power of the State to impose ' reasonable restrictions ' on disruptive, perversive or immoral acts between a man and a woman.

Placing emphasis on the decision in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others, the counsel contended that the interest of the state, country or culture as a whole is primary to the interest of an individual citizen despite how significant the citizen's interests are.

Firstly, the Court has no power to modify, add or delete language from a legislative clause. Traditionally thought to occur between a male and a female, it will create a number of social issues that the government is unable to address at this point in time, and these issues will also pose a threat to existing laws.

Judgement:
( DATED 6TH SEPTEMBER 2018 )

The 5 judge bench unanimously ruled Section 377 to be discriminatory to the degree that it criminalized, two people of the same sexual orientation had consensual sexual intercourse, and that is a matter of utmost privacy. In Suresh Koushal v Naz Foundation it overruled the bench's verdict.

The Court relied on its own decision in National Legal Services Authority v. Union of India, where it reiterated that “gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity.” When we discriminate between the LGBT on the basis that they represent a minority of the population, it would violate their constitutional right to privacy.

The bench also touched on Shafin Jahan v. Asokan K.M., saying that it is the right of an adult to choose his or her life partner on their own.

Something that two members of the LGBT community want to do secretly in no way damages "public decency or morality."

The Chief Justice relied on the “principles of transformative constitutionalism and progressive realization of rights and held that the constitution must guide society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded.” He further stated, “constitutional morality would prevail over social morality”. They also affirmed that homosexuality was “not an aberration but a variation in the sexual orientation of an individual”.

Effect of the judgement :

The judgment put emphasis on the principle of democratic constitutionalism that has paved the way for a plethora of very important legal changes and reforms. It was a landmark decision in the country's history, since it acknowledges not only the identity of individuals belonging to the LGBT community but it also confers global social recognition on them. After this relief through a landmark ruling, the next battle in the history of the legal arena would have the right to marry a person of the same sex or any other of their choosing for the social and economic arrangements for such individuals.