Types of Writs : The different types of writs are :

·         PROHIBITION

·         HABEAS CORPUS

·         MANDAMUS

·         CENTIORARI

·         QUO-WARRANTO

PROHIBITION- The word PROHIBITION means 'stay order'. A writ is issued when the lower court or body attempts to violate the limits or powers bestowed on it. After this writ has been issued, proceedings in the lower court, etc. have come to an end.

Case Law on PROHIBITION-

Name of the case-

K.C. DINAKARAN VS. S.P. RAJENDRAN AND ORS.

DATED-23.01.1991

1. This Civil Revision Petition is filed against the Order of the Electoral Court in Election O. P. No. 42 of 1986, filed by the Principal District of Munsif, Tindivanam, 19-1-1990.

2. Brief facts are as follows:—

Election for the post of Vice-Chairman of the Olakkur Panchayat Union took place on 20-6-1986. The only two candidates for Vice-Chairmanship were the nominee and the first respondent. 58 Voters (Panchayat Presidents) participated in the race, including the petitioner and the first respondent. It is the case of the petitioner that he had won 28 votes and the first respondent had won 27 votes and the fourth respondent had ruled three votes invalid. Consequently, when he was about to insert the name of the petitioner as a successful candidate in the records, at the instance of the second respondent, two votes declared invalid were counted again in favor of the first respondent, And finally, the 4th respondent declared that the first respondent had won 29 votes against the 28 votes won by the petitioner. Aggravated by the decree, which proclaimed the first respondent to be a successful candidate, Election O. P. was held. It is seen from the counting the alleged two invalid votes as void votes in favour of the first respondent. Pending the Election Petition, the ballot papers were sent and, after reviewing the same, the Election Court found that there was nothing to indicate that two invalid votes had been counted in favor of the first respondent, as claimed by the petitioner. The Court also dismissed the other claims below, and therefore denied the appeal.

3. Before me, three points were posed by the experienced lawyer appearing for the complainant. One is that as many as 20 votes cast in favor of the first respondent contained marks behind those ballot papers, those votes must be considered as invalid votes as such, contrary to Rule 16 of the Rules of The second argument is that the fourth respondent did not fix the election system by providing the closing time. As a result, one candidate could not take part in the contest. The third argument is that the second respondent, in his capacity as Rajya Sabha Speaker, exerted power and compelled the fourth respondent to count two invalid votes as legitimate votes in favor of the first respondent.Procedure of the Tamil Nadu Panchayat Union Councils (Election of Vice-Chairmen) of 1978. The second argument is that the fourth respondent did not fix the election system by providing the closing time. As a result, one candidate could not take part in the contest. The third argument is that the second respondent, in his capacity as Rajya Sabha Speaker, exerted power and compelled the fourth respondent to count two invalid votes as legitimate votes in favor of the first respondent.

4. Learned counsel appearing for the first respondent submitted that it is not now open to the petitioners to contend with the Exs. to D-20 ballot papers stated in the court below are invalid on the basis of the markings on the back, as the only point presented in the Election Petition and submitted to the Court below was that two votes declared invalid were at the instance of the second respondent, counted as legitimate votes in favour of the first respondent and, thus, the declaration in favour of the first respondent was evil. No such statement that the twenty votes cast in favor of the first respondent must be considered as invalid on the grounds of the violation of Rule 16 of the Rules referred to above has been made either in the petition or before the Court below. He also submitted that the Court found below that there was no evidence to support the petitioner's argument that one of the electors had been prevented from participating in the election due to the failure to note the closing time. That being a matter of fact, it cannot be dealt with in this petition for a civil revision. He also argued that, on the basis of the facts presented to the Court below, the conclusion is that the second respondent was not present at the time of the counting in the counting hall. And, thus, there was no question of his practice either of coercion or power, and this being a matter of fact, can not be dealt with in the petition for revision.

5. I've considered competing submissions. Before we take up the first dispute, we can dispose of contentions 2 and 3 which, in the light of the clear statement made by the learned counsel for the respondent No. 1 in the light of the clear findings made below by the Court on those arguments against the petitioner, it is not open to him to consider the same in this petition for a civil revision. These arguments are therefore rejected.

6. Now let me look at the first point. As argued by the learned counsel for the 1st respondent, we doubt that there is no specific allegation of the invalidity of Exs. D-l to D-20 votes polled favour of the 1 st respondent in the Election petition filed by the petitioner. However, I find that allegations in a general form have been made in the Election Petition which read as follows :—

"With the connivance of the 1st respondent, the President of the Council of the Union advised the voters to write down the serial numbers on the back of the ballot papers, which had already been allocated by the President of the Union, in order to ascertain whether or not the votes had been taken. Those voters cast their votes in favor of the first respondent. The elections held on 20-6-86 for the Vice-Chairman's office are therefore vitiated as they took place under duress and coercion.

7. The question is, in the light of the above allegation and the evidence, is it open to the learned counsel for the petitioner to contend that the votes polled in favour of the 1st respondent and marked as Exs. D-1 to D-20 containing marks by which the voters(Members) may be subsequently classified and declared invalid. In this context, the recent judgment of the Supreme Court in (supra) may, in my opinion, be usefully referred to and applied.

8. In the judgement, their lordships of the supreme court observed-

"The next argument put forward by the appellant's counsel concerns package No. 8 containing 56 ballot papers. 55 ballot papers in that package were rejected by the High Court on the ground that they contained no seal of the rubber stamp of the booth. Counsel argued that, in the absence of clear pleadings in that respect, the High Court should not have taken such ballot papers for scrutiny.

Here again we cannot help the appellant. It may be noted that the High Court while allowing inspection, has not restricted the operation to specified ballot papers. The inspection was permitted in respect of all ballot papers to the credit of the appellant. In the course of such inspection, if a ballot paper which ought not to have been accepted has, in fact, been counted in favour of the appellant, it must also fall to be excluded. There may not be any specific allegation in the pleading in respect of such ballot paper. But the absence of specific averments in the pleading no bar to inspect such ballot papers. When illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, should be excluded, which is precisely the purpose of the inspection of the ballot papers.

As regards the above-mentioned ballot papers, Rule 30(2)(b) of the Rules of Procedure of the Electoral Regulations, 1961 and the Electoral Commission Instructions for Presidents require that, where a mark is made other than the instrument provided for that purpose, such ballot papers be rejected. There is no dispute that the ballot papers in question did not contain a prescribed mark, namely the "cross arrow" mark. This illegality is also confirmed in the report of the Commissioner of this Court. Consequently, they could not be retained in favor of the appellant."

In this case in hand, Exs is not in dispute. D. 1 to D-20 contain the marks other than the cross marks intended for the purpose of balloting. In Exs. andD-9, initials are found apart from the extraneous marks like PMR (Ex D. 5) and ER (Ex.D-9). Rule 16 reads as follows:— 16. Invalid ballot papers.— A ballot paper shall be invalid on which

 (a) there is no cross mark; or

 (b) the cross mark is set in the opposite direction to the name of more than one candidate or is placed in such a way as to make it doubtful to which candidate it is intended to apply; or

 (c) the cross mark and some other mark are set in the opposite direction to the name of the same candidate;

(d) any mark which may subsequently be found by the member shall be made.

In the light of the above Rule, in particular Rule 16(d), these votes cannot be treated as valid votes. However, Exs has been dealt with lightly by the election court. D. 1 to D-20 by stating that, in so far as the 4th respondent-Returning Officer counts Ex.C-1, a vote with an extraneous mark (similar to Exs. D. 1 to D-20) in favor of the petitioner herein, it cannot be said that such treatment was given only to the first respondent. In other words, the Election Court got over the objection by stating that inasmuch as one vote containing extraneous mark polled in favour of the petitioner as well as 20 such votes polled in favour of the 1st respondent having been treated alike, no grievance can be made out of it. This approach is totally wrong and cannot be sustained in the light of the ratio laid down by the Supreme Court (Supra). Their Lordships are specific in their observation, in that, when illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, are to be excluded. Applying the ratio of the decision of the supreme Court in, (supra) these illegalities cannot be ignored. Moreover, the Court below is not very right in observing that there are no allegations or evidence to enable the petitioner to contend that Exs. D. 1 to D-20 are invalid votes. Because, as pointed out earlier, the petitioner has made allegations in a general form in the Election petition and has also given evidence supporting such allegations (vide extracts supra).

9. As a result, a petition for civil revision is allowed. The election of the 1st respondent as Vice-Chairman of the Olakkur Panchayat Union is set aside as invalid and the petitioner is declared as duly elected Vice-Chairman of the Olakhur Panchayat Union. The petitioner is entitled to all costs.

10. Petition was allowed.

Introduction

In 1983, Section 498A was adopted to shield married women from being exposed to abuse by the husband or his relatives. A sentence has been given that stretches to 3 years and fine. The word "cruelties" has been broadly defined to include causing physical or mental harm on the woman's body or health and indulging in acts of violence with a view to pressuring her or her relations to satisfy any unlawful demand for any property or valuable protection. Harassment for dowry falls within the section's sweeping of the latter limb. Creating a situation that causes the woman to commit suicide is also one of the "cruelty" ingredients.

Section 498A of IPC

Section 498A of the Indian Penal Code (IPC) deals with the violence committed by her husband or in-laws or any spouse relative on women after her marriage. This prescribes 3 years of probation and a fine.

This gave the Cruelties a new definition. Cruelty can be described as–

(a) If the act committed is of such a nature that the woman is enticed to commit suicide or to cause herself an injury that may prove fatal. In the case the evidence is required to show cruelty, it was held.

(b) If the act is to harass women or any other person associated with her in order to satisfy unlawful demands.

Need for Section 498A

Male society has always exposed women to violence. These laws help women fight back. Woman feels that they are being heard. In a country like India, there's a lot of need for these laws as-

(a)            9 out of 10 cases are always dowry related. Therefore, these rules are in desperate need of preventing women from being abuse.

(b)            Woman are continually being coerced, tortured, intimidated or harassed for asking something or something else. The IPC's Section 498A lets the woman approach law court and convict the wrongdoer.

(c)            The woman too is subject to mental cruelty in many cases. There is no rule that can help the woman relieve the mental pain that she has endured. Acts like this is helping woman in every way possible.

(d)            Regardless of whether the laws are misused, they cannot be removed from the Indian Penal Code. As it is also necessary to change the rules. There will be some loopholes but one can always add a clause to rectify the problems.

The Indian Constitution uses section 498A of IPC to protect married women in marriage household from cruelty. The provision to protect women from domestic violence was added to IPC.

Section 113A of Indian Evidence Act,1872

The section was enacted to fight the threat of death by dowry. The Criminal Law Amendment Act, 1983 (Act 46 of 1983) incorporated it into the Code. Section 113-A of the Indian Evidence Act was introduced by the same Act to lift the presumption of suicide abetment by married woman. The main aim of I.P.C section 498-A is to protect a woman who is being harassed by her husband or husband's relatives.

Sec. 113-A, Presumption as to dowry death- Where the issue is whether a person has committed a woman's dowry death and it is shown that such a woman was subjected to cruelty or coercion for, or in connection with, any demand for dowry soon before her death, the Court shall conclude that that person had caused the dowry death.

Under this provision, cruelty and harassment is considered the same as within IPC section 498A.

Misuse of Section 498A of IPC

Section 498A is named by the Supreme Court as ' legal terrorism'. The statute is misused or violated by women. Additionally, in most cases, they sue the husband and his family.

(a)  Women use it as a weapon rather than as a shield. In Arnesh Kumar v. State of Bihar, it was reported that there have been arrests of bedridden grandfathers and grandmothers, and even relatives living abroad. Therefore, women have started using it as a tool to detain their husbands if they are not pleased with them. Every year, there are many false reports reported as a result, which raises the pendency of court cases.

(b) A number of cases have occurred when the male is not from India, and he comes to India to marry the woman. He's made to do things that he wouldn't otherwise have done because of extortion and fear of prison. He is being scared of Section 498A.

(c)  Police visit men's office premises, and damage his reputation. If the case is affected the police can also pick up the family. It also needs no evidence before detention. Even this requires no investigation. So, if a minor disagreement occurs, woman can use the section to seek revenge.

(d) Sometimes the presents are mistaken as dowry. So, that can pose a problem again.

Recent case laws

Arnesh Kumar v. State of Bihar (2014) 8 SCC 273

Facts

The wife claimed she was expected to dowry, and she was forced out of the marriage home on failure to fulfil these demands. The husband had failed to apply for anticipatory bail. Hence the husband reached the Supreme Court by special leave appeal.

Holding

In this case, the Court observed that the fact that Section 498A, IPC, is a barely recognizable and non-bailable offence is more commonly used as a tool than as a shield by frustrated women This results in threatening the husband and his family by arresting them under this section and it is more disturbing to see the arrest of bedridden grandfathers and grandmothers without a prima facie case. Consequently, the Court set out certain rules to be followed by the police officer during the arrest subject to Section 498A, IPC or Section 4 of the Dowry Prohibition Act, 1961 and that such arrest must be based on a fair satisfaction with the allegation's genuineness. In addition, even the magistrates must be very vigilant not to require detention easily and mechanically.

SECTION 9 OF TRADE MARKS ACT,1999- ABSOLUTE GROUNDS FOR REFUSAL OF REGISTRATION

SECTION 9 (1) (A) - Which are devoid of distinctive character, that is to say, not capable of distinguishing the goods and services from one person from those of another person.

EXPLANATION - The goods and services that do not have any separate or specific character or identity of its own. The goods and services that are similar to one another and cannot be distinguished.

CASE LAWS-

1.

Laxmikant V. Patel v. Chetanbhat Shah & Anr. on 4th December, 2001

FACTS:

Appellant had a business of Colour lab and studio since 1982 in the name of ‘Muktajivan’ Colour Lab and Studio. In order to expand, Appellant promoted his wife and brother-in-law to open a new colour lab in the name and style of ‘Muktajivan’ Colour Studio at two other localities in Ahmedabad. In 1997, Appellant filed a suit for passing off against the Respondents. The Respondents, who were earlier carrying on similar business in the name of ‘Gokul Studio’, sometime before or after institution of the suit for passing off by the Appellant, adopted the name and style of ‘Muktajivan’ Colour Lab and Studio. Respondents argued that Appellant was earlier carrying on business in the name of ‘M.J.’ and it was in the year 1995 that Appellant substituted ‘Muktajivan’ in place of ‘M.J.’ Respondents also argued that the locality where the Respondents had started their business was away from the area where the Appellant was carrying on his business.

ISSUES:

1. Whether an injunction of passing off can be filed by the appellant against the defendant.
2. Whether the distance between the two businesses matters much in case of injunction.

JUDGEMENT:

In the above case the petitioner files a case in Trial Court of Ahmadabad. The trail court was of the view that appellant carries his business in the trade name ‘Muktajivan’ Colour Lab at least since 1995 and the respondents had taken the name Muktijivan in his business name and had done on or about the date of institution of suit. Trial Court had refused the injunction on the ground that the business of the respondents was situated in other part of the city with a distance of 4-5 kms. 

Appeal was filed in the High Court against the order of the district court. High court was of the view that the respondents’ business had already come into existence on the date of the institution of the suit and therefore issuance of injunction is not possible. High Court was also of the view that there were no pleadings which suggested that other two businesses which uses the name Muktijivan as a trade mark was under the authority of the appellant. Hence finally it was held that injunction cannot be allowed on behalf of the appellant against the respondent. 

Appeal was further filed in the Supreme Court against the order of District Court and High Court. Supreme Court was of the view that an action for passing-off will lie wherever the defendant company’s name, or its intended name, is calculated to deceive, and so to divert business from the plaintiff, or to occasion confusion between the two businesses. Whenever there is any confusion in business, an injunction will be granted immediately even if the defendant is innocent. The three elements of passing off action are the reputation of goods, possibility of deception and likelihood of damages to the plaintiff. If any of the above mentioned element is caused by the defendant then injunction can be allowed. Plaintiff does not have to prove actual damage in order to succeed in an action for passing off, likelihood of damage is sufficient.  Hence it was held that the distance between the two businesses of the plaintiff and respondent is not necessary and it does not matter much and the appeal was allowed.

2.

N. Ranga Rao & Sons v. Shree Balaji Associates & Ors on 4th January 2013

FACTS:

The petitioner was engaged in a business of manufacturing agarbatti sticks and dhoop sticks for more than a century. Petitioner had also submitted that he had honestly and in good means adopted the trade mark Cycle Brand with a picture of a cycle in it in the year 1954 and since then he had continuously using the said trademark domestically as well as internationally. However on one day the petitioner got a notice that a similar trade mark was applied for registration by another company known as Shree Balaji Associates in respect of brooms. The petitioner was totally against this application and filed a case in Deputy Registrar of Trade marks. The Deputy Registrar of Trademarks allowed the application of the petitioner and rejected the application filed by Respondent no.1 that is Shree Balaji Associates. After then the Respondent no.1 had appealed to the Intellectual Property Appellate Board against the order of Deputy Registrar of Trade marks. And the respondent no. 2 that is Intellectual Property Appellate Board allowed the application of Respondent no.1 therefore rejecting the opposition of the petitioner. Aggrieved petitioner filed a case in Madras High Court to restrain respondent no.1 from registering its trade mark.

ISSUES:

1. Whether the petitioner can file a case against respondent no.1  from registering its trade mark.
2. Whether the petitioner had established that his trade mark is a well known trade mark.

JUDGEMENT:

According to section 47 of Trade and Merchandise Mark Act, 1958 defensive registration is something which is only related to invented words and which have become well known and it also does not include any type of picture. Here in the above case the petitioner did not invent the word cycle and also the picture of the cycle was not invented by the petitioner and thus defensive registration is not possible. Here the Court was of the view that the word cycle or the picture of cycle or the word brand was not invented words and so it cannot qualify for defensive registration. It was also held that only an image of a cycle cannot be claimed to be invented and therefore the petitioner had no right in respect of the trade mark cycle brand or the picture of the cycle. It was also held that the petitioner cannot established that the petitioner’s mark was a well known mark because it does not fulfil any conditions which has been mentioned under section 11(6) of Trademark Act  and the petitioner had also failed to show any type of trade connection between respondent no.1 and himself regarding the word and the picture of the Cycle and hence the writ petition which was filed by the petitioner was dismissed. 

Goods and Services Tax (GST) is India's first Indirect tax reform. In July 2017, India implemented Goods and Services Tax (GST) to remove the cascading effect of former indirect taxes and create a broader and seamless tax credit system. GST is an indirect tax for the country as a whole, making India one national unified economy. GST is a single tax on goods and services deliveries. It is a destination-based tax that will only be imposed on value added at each point since input tax credits paid at the time of product purchase are available. The final user will therefore only bear the GST paid by the last dealer in the supply chain, with set-off advantages at all earlier stages.

The concept of Anti-Profiteering

If the rate of tax on the supply of goods or services is reduced or the input tax credit benefit is now available under GST, then a registered individual must pass on the benefit by price reductions. The difference in the price of the products due to the tax differences between GST and previous tax regimes, that difference now needs to be communicated further to the consumer by the company. Under the GST system in India, anti-profit laws have been implemented to curb excessive profit by companies and ensure that the benefits are passed on to the consumer through a reduction in the price of the goods/ services

 It seems reasonable for a firm to profit if it is in an industry where its GST rates have dropped.  Profit is, after all, arguably the point of business. But the policy is not simply focused on the needs of individual companies. Rather it wants to protect the economy as a whole of the country. The GST Council, in particular, does not want to see the GST causing inflation. And it thinks this can happen if businesses profit from the system. That's not unfounded fear. They both experienced intense inflation for two years when Australia and Malaysia introduced the GST.

Anti-Profiteering rules

On 18 June 2016 the GST Council announced the anti-profiting rules. It makes it more important for Indian administrators to keep the price tabs after GST is implemented. India is doing what many countries have done: initiating retail-level anti-profit measures to protect consumers from price swindles.

The Anti-Profiteering Authority is allowed to search for unfair price hikes. It also searches for other circumstances in which companies can lower prices. If the authority considers a company has not passed on its GST benefits, the company may be forced to lower its prices. It may also allow the client to repay the savings along with an annual interest of 18 per cent. The guilty business may have to deposit the refund into the Consumer Welfare Fund if the customer is unable to contact him.

Clause 171 has been incorporated into the CGST Act 2017, which states that it is mandatory to pass on the gain to the customer by means of a commensurate price reduction due to the reduction in the tax rate or from the input tax credit.

The aspects on which benefits are passed to the recipient

The regulations mentioned in section-171(1) of the CGST Act allow companies to pass to the customer the profit resulting from:

·         Lowering the GST rate

·         Raising the input tax credit.

Purpose of the Anti-profiteering provision:

The purpose behind the anti-profit provision is to transfer tax benefits on GST in the form of lower prices onto customers. The government argues that it is important for the following reasons:

·         To track inflationary patterns during the initial stages of the implementation of GST and to evaluate and monitor its long-term effects.

·         To examine whether input tax credits or lower tax rates actually lead to a commensurate price reduction.

·          To develop an honest pricing policy that will help retain consumers under the GST scheme.

The anti-profit provision is designed to ensure that any savings arising from the productive credit supply chain and lower taxes eventually reach the final consumers. The impetus behind GST will be lost if it only helps the companies, not the end consumer.

Why are companies having difficulty in complying

Companies that do lots of b2b transactions are worried that the Anti-Profiteering Authority can target them. We want evidence that their vendors comply with the anti-profit rules to protect themselves. Picture a retailer selling a product to a client for an inflated price. The firm is also selling products to its consumers at an increased rate, based on the price of that supply. But the prices are so high as to concern the Anti-Profiteering Agency. Then it launches an enquiry against the company and decides that it is guilty of profiting. But in fact, the problem was due to the vendors of the company.

If you want your vendors to be accredited and they are willing and able to provide it, then you are in luck. If not, remember that you can't control what your salespeople are doing. But you can build transparent, detailed records which show compliance with your own. Keep quality, detailed accounting records to protect yourself in case the Anti-Profiteering Authority contacts you.

CASE - COMMON CAUSE V. UNION OF INDIA AND ANR.

CASE BRIEF

FACTS :

In the year 2005 a public interest litigation was filed by an NGO known as Common Cause in Supreme Court of India. The petition was filed only for one reason and that is seeking directions for legal recognition of living will and for the system of certification of passive euthanasia. It was also found out that various members of society wrote letters to various department of government but no response was given by the government. Any person who is suffering from serious illness and where there is no chance of improvement or any person who is depended on artificial life support system and unwanted painful treatment is given, such people should be given the relief from pain by doing the process of passive euthanasia. The petitioner also requested that there should be a legal recognition of living will for the patient who wanted to conduct passive euthanasia.

The main motive of this petition is to end the life of the patient with his/her consent through the process of passive euthanasia so that the patient does not suffer from any illness or disease which cannot be cured and also give relief from mental as well as physical pain. But the government of India reported that the idea of living will was unacceptable and doctors have the duty to save the life of the patient.

ISSUES :

1.      Whether passive euthanasia should be permitted on the living will of patient.

2.      Whether right to live with dignity covers the right to die as well in cases where patient has no hope of recovery.

JUDGEMENT :

In the current case ‘Common Cause vs Union of India the Supreme Court held that right to life under article 21 of Constitution of India also include the smooth and easy process of dying of a terminally ill person or who is in a constant state without any recovery. However in an earlier case Gian Kaur vs State of Punjab the Supreme Court held that euthanasia and suicide both are illegal in India. It was also held that Article 21 of Constitution of India only consist of right to life and it does not include right to die. But in other cases such as Aruna Ramchandra Shanbaug vs Union of India it was held that passive euthanasia can be allowed in exceptional circumstances.

However in the current Case the Supreme Court is in a view of making proper laws and regulations through legislature for passive euthanasia.  Article 21 of the Constitution which deals with right to life and liberty must be changed and interpreted with the changing need of the society and also right to live with dignity must also include right to die with dignity and it must fall under fundamental rights which has been mentioned in the Constitution. The Court has laid down various rules and regulations regarding the execution of living will and their authentication which can be done by the magistrate. Any person who is mentally competent enough can execute the free will of passive euthanasia. Though the medical practitioners are not allowed to end a patient’s life with any kind of drugs, medicine etc. but if a person who does not want to live with the help of any artificial support, he/she is permitted to exercise his/her legal right to die with dignity.

Thus, to conclude, Supreme Court of India allowed the writ petition which is being made on behalf of the above mentioned NGO.

यह वीडियो 'हमारा कानून' के 'भारत के संविधान' श्रृंखला का हिस्सा है। इस श्रृंखला का उद्देश्य भारत के संविधान के बारे में कानूनी जागरूकता पैदा करना है। इस वीडियो में बताया गया है कि भारत का संविधान क्या है, वह कैसे लागू हुआ और उसका प्रस्तावना (Preamble) क्या है।

भारत को एक मजबूत गणतंत्र बनाने के लिए यह आवश्यक है कि भारत के 130 करोड़ लोग संविधान के बारे में जाने।

कृपया इस वीडियो को ज्यादा से ज्यादा शेयर करे और हमारा कानून को सब्सक्राइब करे। यह वीडियो आपको कैसा लगा इसके बारे में हमे अपनी राय जरूर कमेंट कर के बताए।

Gain Share

Gainsharing is a management system used by a company to boost profitability by motivating employees to improve their performance through engagement and participation. Employees share in the gain (improvement) financially as their performance improves. The aim of Gainsharing is to improve performance and eliminate waste (time, money, and materials) by empowering employees to work more intelligently as a team, rather than just alone.

Not to equate gain sharing with profit sharing. Gainsharing and profit sharing vary in many aspects. Often known as Gain Sharing, Gainshare, and Gain Share It could also be called "gains sharing." In other words, a company shares the savings from improved performance with its workers.

GST

The GST is an indirect federal sales tax applied to the purchase of certain goods and services. The business adds GST to the product's price, and a customer who purchases the product pays the selling price plus GST. The portion of GST is received by the company or seller and is forwarded to the government. It is also known in some countries as Value-Added Tax (VAT).

Gainshare not a part of GST

GST applies to "Supplies" of goods and services. The term "supplies" is defined in Section 7 of the Central Goods and Services Tax Act,2017 ("CGST Act"), which includes transactions for consideration purposes. However, transactions are treated as supplies in the cases referred to in Schedule I to the CGST Act, even if the consideration is absent which includes supplies between related persons when such supplies are made in the course of business or in the continuation of business.

In this context, the clarification to Section 15 of the CGST Act which provides that employer and employee shall be deemed to be "connected persons". Accordingly, employer suppliers to workers would be liable to GST even if these deliveries are rendered without consideration as they are considered to be associated persons (except for gifts up to Rs 50,000 stated at the end of this Article).

Nevertheless, Schedule III of the CGST Act states that "the employee's services to the employer in the course of or in relation to his jobs" will not be regarded as the provision of goods or services and therefore GST does not apply to services rendered to the employer by the employee, provided that they are in the course of or in relation to the job.

Transactions that are excluded from the tax levy for transactions between employee and employer are therefore:-

1. Provision of an employee's services to the employer during the course of the job.

2. Employer gifts to the employee in a Financial Year not exceeding Rs 50,000.

DOCTRINE OF LAST SEEN THEORY

WHAT IS LAST SEEN THEORY

Last seen together theory is one in which two people are ' seen together ' and one is found alive after an interval of time, and another is dead. Last seen theory may by itself be a poor kind of evidence establishing conviction on the same. Last seen together principle is one of the latest principle which is taken into consideration in establihing the guilt of the accused. Doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. If there is a failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances

CASE LAWS DEFINING THE CONCEPT OF LAST SEEN THEORY

Reena Hazarika Vs. State of Assam  Criminal Appeal No.1330 of 2018

The deceased resided at the tenured premises belonging to the brothers Manoj Kumar Deka, Dipen Deka and Bhrigumoni Deka along with the appellant and his son, aged around 9 years. The appellant is alleged to have attacked the deceased on the night of 10.05.2013 that was interfering. The landlords said he heard noises and when he went there, he found the deceased with a head injury attributable to a fall, but the deceased was otherwise correct. Because of rains and the unavailability of an ambulance they were unable to send him to hospital. The Trial Court and the High Court hold the present case to be a matter of circumstantial evidence.

Mr. Manoj deposed that the deceased had told him about at 11:00 p.m. On 10.05.2013 that he suffered a head injury due to a fall and that the witness did not provide any first aid to the deceased when he and his brother Dipen tried to call an ambulance at approximately 12:00 am. Contrary to Manoj statement, his brother declared that he had been woken up at approximately 23:00 am. The complainant weeping and telling him her husband had sustained head injury. The deceased is then said to have told the witness himself the accident wasn't serious.

Defence taken by the appellant under Section 313 Cr.P.C. as follows: I saw my husband lying with bleeding wound in the bed. Manoj Deka and his brothers come here on my cry with a drink in one brother's hand. Afterwards I saw Manoj Deka put Dettol on my husband's bite. I rang out to 108 ambulances too.When, I wanted to call police Manoj Deka, my phone was snatched from me. There arrived on my criing neighboring peoples. I tried to take my husband to hospital, but my Manoj Deka and others failed to take him to Hospital because of non-cooperation. It expired around 9.30 that night and Manoj Deka and other neighbors were sitting down. Manoj Deka has subsequently falsely implicated me. I think my husband was physically assaulted.

SUPREME COURT OBSERVATION

The facts and circumstances of the case, the essence of the evidence available coupled with the manner in which it was examined, leave us persuaded that, in the case of circumstantial evidence, the ties in the chain of circumstances can not be said to have been formed leading to the inescapable conclusion that the appellant was the deceased's assailant, inconsistent with any likelihood of innocence.

2. MANOHARAN VS STATE BY INSPECTOR OF POLICE

Mohanakrishnan borrowed a vehicle that picked up two kids, a 10-year-old girl and her 7-year-old brother from outside a Hindu Temple as the kids prepared to go to school. This Mohanakrishnan was seen in the aforementioned vehicle by PW.3, the priest of the particular Vinayakar Temple and by PW.9, the two children's grandmother, taking the kids away. Instead, Mohanakrishnan took the kids to a gas pump around 8.15 a.m. That same day, at 9.30 a.m. The Appellant was picked up from his Angalakuruchi home.

The children were then taken about 10.45 am to a remote area called the Gopalsamy Temple Hills. At which point rape was allegedly committed against a girl whose hands were tied by both Mohanakrishnan and the Appellant. The two accused then purchased what is known as cow dung powder which is nothing but a poisonous substance that is applied to cow dung to keep insects away, given that the girl had been brutally raped (her anus having ruptured). This drug, together with milk, which was also purchased by the Appellant in this case, was reportedly administered to the two children by both Mohanakrishnan and the Appellant in an attempt to end both. The kids just ate a small portion of the cow dung powder mixed with the milk and died. Mohanakrishnan and the Appellant subsequently threw both of the children at the Parambikulam-Axhiyar Project Canal ("PAP Canal") and the prosecution charged that the Appellant had tied the girl up and pushed her into the canal, while Mohanakrishnan pushed the boy into the canal. At 5 p.m. Soundararajan saw the two children's school bags floating inside the canal. The school principal was informed later on the same evening who then informed the police about 6.15 p.m. And 6.30 hours. Same afternoon. 21.00 p.m. On the same day, Mohanakrishnan went to PW.7's house an Anbu @ Gandhiraj who had informed the police that Mohanakrishnan had been arrested at 9.45 pm. That same night, at the house of PW.7. 9:30 a.m. The girl's body was recovered from the canal the next day. The present appellant was arrested on 31 October 2010, at 7.15 a.m. And the boy's body was also recovered from the canal the same day. To complete the narrative, Mohanakrishnan was shot dead by the police on 9.11.2010 in an encounter. That left only the Appellant to be tried as an accused. A confession was recorded before the Magistrate.

The trial court eventually found the appellant guilty in a thorough judgment under section 120-B, section 364-A, section 376, section 302, section 302, read with section 34 and section 201 of the Indian Penal Code. The Appellant was sentenced to life imprisonment under Section 376 IPC, and he was granted the death sentence for the crime under Section 302 IPC. In the impugned judgment the High Court of Madras set aside the conviction of the appellant pursuant to Section 120-B and 364-A of the Penal Code, but confirmed the sentences pursuant to Sections 376, 302, Section 302 read with Section 34. High Court found that the last seen theory was made out in the facts of the present case such as

1. Sundararajan – PW.3, who was the temple priest who saw Mohanakrishnan picking up the two children around 8.00 a.m. on 29.10.2010.

2. Senthil Kumar – PW.20, a tailor, who saw both the accused with the children at 10.00 a.m. on that day.

3. N. Mani - PW.25, owner of a brick kiln in the foot hills of Gopalasamy Hills, who saw both the accused with the children at roughly 10.45 a.m. as they were coming down from the Gopalasamy Hillock.

4. Saravanakumar - PW.23, owner of a bakery who sold the milk at 1.00 p.m. on the same day to the Appellant, who saw the two children with Mohanakrishnan and the Appellant; and

5. R. Soundararajan – PW. 24 who saw both the accused with the children in a Maruti van around 3.00 p.m. on the same day.

SUPREME COURT OBSERVATION

The Supreme Court, in the matter of Machhi Singh vs. State of Punjab [1983 (3) SCC 470], held that when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so in rarest of rare cases when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.

SC have no doubt that the trial court and the High Court correctly applied and balanced aggravating circumstances with mitigating circumstances in order to find that the crime committed was cold-blooded and involves the rape of a minor girl and the most heinous possible murder of two children. SC have no hesitation in our mind that the prosecution has proved beyond reasonable doubt that Mohanakrishnan picked up the two children and later Manoharan joined him and together both the accused were last seen with the two children and thus, the prosecution has proved the kidnapping and last seen theory without any iota of doubt

Therefore, uphold and maintain conviction of the appellant under Sections 302, 376(2)(f) and (g) and 201 IPC and the sentences awarded under Sections 376(2)(f) and (g) and 201 IPC. To this extent the appeal is dismissed

Voyeurism: Concept and Punishment under the Indian Penal Code

Voyeurism, in a broader perspective implies the act of gaining sexual pleasure from watching other people while they engage in sexual activities or are naked. “Voyeurism is a paraphilia that involves sexual pleasure from viewing unsuspecting individuals undressing, already nude, or involved in sexual activity”.  It can also be defined as the habit of spying on people doing actions that are generally regarded as private, such as engaging in sexual activity or undressing. In voyeurism, the person being observed may have no connection with the voyeur in any way. This kind of obsessive behavior can also be called stalking.

 Voyeurism under the Indian Penal Code, 1860, section-354C describes the act as, “Viewing and/or capturing the image of a girl or woman going about her private acts, where she thinks that no one is watching her is a crime. This includes a woman, using a toilet, or who is undressed or in her underwear, or engaged in a sexual act.”

Private act under this provision describes an act of watching carried out in a place, where in the circumstances would reasonably be expected to provide privacy. Any other person at the behest of the perpetrator or distributing such image shall be punished on first conviction with the imprisonment of either description for a term not less than one year, but which may extend to three years, and shall also be liable for fines and punishable on a second or subsequent conviction with the imprisonment of any description for a term not to be imposed.     

History of Voyeurism and its introduction in Indian Law

The term Voyeurism has its roots in French. Voyeur means “the one who looks”. It was introduced in the Indian Penal Code, 1860 through the Criminal Law (Amendment) Act, 2013 which relates to sexual offences. The Amendment came following the outrage in the nation at that time regarding the brutal gang-rape in 2012 in Delhi. Previously, under IPC there was no specific offence. Under the Information Technology Act 2000, however, men and women were covered, and penalty was up to 3 years and/or fine up to Rs. 2 lakh for the act.

 A bit of research on Voyeurism has been published.  Nonetheless, the word voyeur is socially accepted as a person who spies on other people's intimate lives which could exclude sexual content. Reality television shows can therefore be related to voyeurism for the viewing of other people's personal lives. This differs from the meanings of history which define a specific individual. The modern version vaguely describes the population at large.

 Need for the provision in the Indian regime

The Criminal Law (Amendment) Bill, 2013 was introduced to amend the existing provisions in criminal law with regard to improve the safety of women. There was a huge outrage across the nation following the brutal gang-rape incident in 2012 in Delhi. Previously, there was no clear definition and scope for' intrusion into privacy.' The offense is usually combined with other forms of harassment or violence, and is not considered a separate offence. This section's provisions require the criminal to have the' intention to insult a woman's modesty.' It may or may not be an act  that physically endangers an individual's security; however, it may cause the victim mental trauma and fear. It is a blatant intrusion into the privacy of an individual, where the stalker tries to establish relations with his victim without his consent. An individual would expect that a private space for example his/her home, a place where he/she can assume they are not being watched or observed. A fair presumption of privacy includes both public and private areas where the victim is reasonably expected not to be detected to engage in private activities such as disrobing or sexual acts

 Judicial pronouncements

On February, 2019, in case of R v Jarvis, the Supreme Court of Canada made a landmark decision and gave its interpretation of meaning of “reasonable expectation of privacy” in the context of section 162(1) of the Criminal Code of Canada involving a criminal offence of voyeurism.

 Facts: Ryan Jarvis (Jarvis) was a high school teacher with the Thames Valley District School Board (School Board) at Beal Secondary School (School) in London, Ontario. He taught and supervised many pupils, between the ages of 14 and 18. He was at the school in good standing and had no allegations against him concerning his teaching abilities or his dealings with the students.

It turned out that Jarvis was recording female students through a pen which had camera fitted inside and the videos were made without the consent of the students. He recorded students at various locations in the school and the CCTV cameras were also highlighting this fact. Neither the school nor the school board gave Jarvis to record these videos and he also told nobody about the act that he was doing.

A coworker informed the principal and he further informed the police and the pen was taken away from Jarvis. In total, there were 17 active videos of 30 different individuals – 27 were female students at the School. The focus of the audio and video footage was on females’ chest areas. To that end, Jarvis was charged under section 162(1) (c) of the Criminal Code of Canada for committing the offence of voyeurism. The section states, “Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if  the observation or recording is done for a sexual purpose”

Courts observations: The trial judge concluded that Jarvis’ behavior was morally repugnant and professionally objectionable in breach of his obligation to his profession. Since the third element i.e. recording done for a sexual purpose of the test could not be met, Jarvis was found to be not guilty of the offence and was acquitted.

The Court of Appeal's majority said there was evidence beyond reasonable doubt that Mr. Jarvis had made the videos for a sexual purpose. But at the time, it didn't feel the students had a reasonable expectation of privacy. It has also said that Mr. Jarvis is not guilty.

One question has had to be decided by the Supreme Court. It was whether the students should reasonably have clearly anticipated protection, privacy from the sort of secret recording Mr. Jarvis did in their school's common areas. All the remaining elements were proved beyond reasonable doubt.

 Verdict of the Canadian Supreme Court: All Supreme Court judges agreed Mr. Jarvis should be found guilty. They said that the students reasonably expected that a teacher's hidden camera at school would not record them. In order to determine when someone should be able to reasonably expect privacy, the majority said courts need to look at the whole situation. This might include where it was to watch or document, how it was done and if any rules or policies were in place. It could also include whether the person was just watching or recording (because a recording can capture more data, is permanent, and is easily viewable, editable, and shared). The majority noted that in this case the students had been recorded in a school. The recording violated the policy of the school board, and the relationship of trust between a teacher and a student. The videos targeted specific female students, often with a focus on their breasts. The students would never expect their school to be recorded in such a manner, by a teacher. Apparently they had a reasonable expectation about privacy.

Introduction

Arbitration is a mechanism in which a dispute is brought before one or more arbitrators who make a final decision on the dispute, by consensus of the parties. The parties opt for a private dispute resolution method of preferring arbitration, rather than going to court. Arbitration agreements are regulated by the terms of The Arbitration and the Conciliation Act. Infringement of the mark is defined as the unauthorized use of a label or service mark. Such use may be linked to goods or services, and may lead to confusion, deceit, or misunderstanding of the actual company from which a product or service originated. Trademark owners are allowed to take legal action against an individual who infringed the mark. If the court finds the accused person guilty then it can forbid the person from using that mark and grant him to pay any monetary compensation to the party affected.

A registered trademark is word, symbol or combination identifying and differentiating a company or a commodity in the market. A registered service mark is a service of a specific company. Trademark also gives exclusive notice to the public.

Contravention or Infringement of Trademark

Trademark infringement pursuant to Section 29 of the Trademarks Act, 1999 is characterized as the use of a mark by an unauthorized or permitted individual or a person who is not the registered owner, which is identical or deceptively similar to the mark in relation to the goods or services for which the mark is registered. It is described in simple words as the infringement of exclusive rights attached to a registered trademark without the permission of the registered owner or licensees. The courts have concluded time and time again that resemblance between two labels and the kind of goods and services leads to misunderstanding in the minds of the general public. They can benefit unduely from enjoying the registered trademark's hard-earned reputation.

A registered trademark is said to be infringed in the following situation:

1.      if the disputed trademark is identical or deceptively similar to the registered trademark and is related to the same or similar goods or services.

2.      if the same or similar trademark may cause confusion in the general public to associate with the registered trademark.

3.      If the registered trademark is used as part of a trade name or business concern for goods and services in respect of which the trademark is registered.

4.      If the trademark is advertised and, as a consequence, it takes unfair advantage or is contrary to honest practices or is detrimental to the distinctive character and reputation of the registered trademark.

5.      If the registered trademark is used in the material meant for packaging or labelling of other goods or as a business paper without due authorization of the registered user.

In India, trademark litigation occupies an enormous area in the cases related to intellectual property. The case concerning the trademark is an inter partes adjudication. That being so, the alternative dispute resolution approaches will definitely provide the ailing judiciary with an acceptable redress. Therefore, it is interesting that in cyber squatting situations, arbitration plays a dominant role in the standardized process described in the Uniform Domain Name Dispute Resolution Policy and the Dispute Resolution Policy,1999 for Indian Domain Name.

Interim Relief under Section 9 of Arbitration and Conciliation Act

A plain reading of section 9 indicates that a party may apply to the court for an interim measure of protection before or during the arbitral proceedings or at any time after the arbitral award is made but before it is enforced in accordance with section 36. Prayers for interim protection measures may include:

–Appointment of a guardian of a minor or an unsound person

–Preservation or interim custody or sale of goods where goods are of a perishable nature

–Securing the amount of claims

–Allowing inspection or interim injunction or appointment of a receiver

–Any other relief as the court may, in its sole discretion, deem appropriate, taking into account the case

Recent cases on infringement of trademark

Verizon Trademark Services LLC v. Bhaban Sankar swain, 2016 SCC Online Del 5109

The present complaint was filed by the plaintiffs requesting, inter alia, an order of permanent injunction prohibiting the defendant from directly or indirectly trading in goods and/or services under the trademark' VERIZON' or any other trademark that is deceptively identical to the plaintiff trademark ' VERIZON.' The plaintiffs also petition for an order to forfeit accounts of the defendant's accumulated income and a Rs. 20, 05,000/-injunction for damages against the defendant. The plantiff are granted fair litigation costs, which are quantified in Rs. 2 lakhs.

Volvo Trademark Holding AB v. Cosmos1, 2003 SCC Online WIPO 627

On 15 August 2003, the Complaint was filed with the Arbitration and Mediation Centre of the WIPO (the "Centre"). On 18 August 2003, the Centre forwarded an application for registrar verification in connection with the domain name at issue to Intercosmos Media Group d / b / a directNIC.com via email. It was held that real or positive knowledge of the rights of the Complainant in the trademarks is a factor which supports a finding of bad faith.