Domestic Violence Act 2005

 

Important Points

1. Beneficial legislations - should be interpreted liberally
2. before issuing NOTICE, the court has to PRIMA FACIE SATISFIED that there have been instance of domestice violence.
3. NO SPECIFIC allegation against the appellants , the criminal case of Domestice violence against them CANNOT be continued and liable to be QUASHED.

Protection 

Section 18 of DV act relates to protection order, intention of the legislature is to provide more protection to woman

Monetary Relief

Section 20 of the DV act empowers the court to order for monetary relief to the "aggrieved party" 

Jurisdiction

Section 27 of DV Act,  the place where the complainant permanently or temporarily resides or carries on business, Court has jurisdiction to entertain the complaint and grant protection order & other orders.

Case Law

1. Shyamlal Devda & Ors Vs Parimala Criminal Appeal 141/ 2020 ( SLP 4979/2019 ) - Jan 2020
1. para 8 - When acts of domestice violence is alleged, before issuing notice, the court has to prima facie satisfied that there have been instance of domestice violence.
2. para 9 - There are NO SPECIFIC allegations as to how other relatives of appellant have caused the acts of domestice violence
3. No Specific allegation against the appellants , the criminal case of Domestice violence against them cannot be continued and liable to be quashed.
4. Argument
1. Vague allegations leveled against the family members of husband, which are not at all substantiated
2. View to harass the family member of her husband, respondent has arraigned all the family members including those who are residents of different states

Web Scraping & Indian Law

 

Statute

1. Civil
1. Violation of Copyright law - Section 2(o) of Copyright Act, 1957
2. Section 13(1)(a) of Copyright Act, 1957 - permission of copyright holder
2. Criminal
1. Section 43 of IT act provides sanctions against damages 
2. Section 66 of IT Act - penal section punishment for acts mentioned in section 43 of IT Act.

Important Point

1. Copyright Subsists in a compilation which fulfils the criteria of skill and judgment doctrine.
1. Any compilation which is NOT novel or non-obvious but at the same is not merely a product of labour and capital and involves a minimal degree of creativity shall have copyright.

Remedies

1. Content importer need to prove that there has been some min degree of creativity involved in compilation
2. Said work is being used for a NON-COMMERICAL purpose or fall under Section 52 of Copyright Act, 1957.
3. Always advisable for the importer to take prior permissions from the copyright holders before initiating the process.

Case Law

1. EBC Vs D.B. Modak - link

Source

1. Data Scraping & Legal Issues in India - link

Terrorism

 

Important Poins

life and liberty of the person cannot be put on peril of ambiguity.

the more stringent a penal provision, the more strictly it must be construed.

interpretation of penal provisions is that they must be construed strictly and narrowly, 

to ensure that a person who was not within the legislative intendment does not get roped

Law and order << Public Order << Security of State

Extent & Reach of Terrorist activity must travel beyond the effect of an ordinary crime.

Phrase terrorist act cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offenses ( IPC ) 

the purpose of adjudicating bail is lighter than the degree of satisfaction to be recored for considering a discharge application or framing of charges in relation to offence under UAPA 1967

Defense Against UAPA allegations

1. Thought it contain some sharp political statements and criticism, there is no incitement to violence.
2. Tone and tenor of the speech might have been aggressive on issue 
3. Contradiction in statements
4. It is possible for the crowd to get excited and some unruly elements therein might take undue advantage of the situation to indulge in unacceptable behaviour.  - Does not impose criminal liabillites on accused.

Case Law

• Asif Iqbal Tanha Vs State of NCT of Delhi ( Crl A 39/ 2021 ) - Delhi High Court
• Para 28 - Although section 15 of the UAPA defines 'Terrorist Act' and Section 18 provides for punishment for conspiracy for committing a terrorit act, including an attempt to commit or advocating or abetting, advising or inciting the commission of a terrorist act, as also of any act preparatory to the commission of a terrorist act, the word terrorism or terror has no where been defined in the UAPA. For the completness it may be noticed that Section 2(1)(k0 of UAPA says the the phrase 'terrorist act' SHALL have the meaning as assigned to it in section 15 and that the expressions terrorism and terrorist shall be constructed accordingly
• Since the theme of section 15 is evidently the intent or likelihood of an act threatening (
• i) the security of the State, described variously in the section as unity, integrity, security, economic security, sovereignty and
•  (ii) of striking terror, it is necessary to understand the concept and distinction between “law and order”, “public order” and “security of the State”, as eloquently explained by Hidayatullah, J. (as the learned Chief Justice then was) of the Hon’ble Supreme Court in Ram Manohar Lohia (Dr) vs. State of Bihar: AIR 1966 SC 740 –  One has to imagine three concentric circles. 
• Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. 
• It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.…
• Para 33
• Para 40
• Another sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. Also, 
• the more stringent a penal provision, the more strictly it must be construed
• Hitendra Vishnu Thakur Vs State of Maharashtra ( 1994) 4 SCC 602
• the extent and reach of terrorist activityMUST TRAVEL beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of ordinary law enforcement agencies to deal with it under the ordinary penal law.
• A.K Roy Vs Union of India & Ors (1982) 1 SCC 271
• Requirement that crimes MUST be defined with an appropriate definitiveness is fundamental concept of criminal law
• and must be regarded as a pervading theme of our constitution since decision of Maneka Gandhi Vs Union of India (1978 ) 1 SCC 248
• Every person is ENTITLED to be informed as to what the state commands or permits and the life and liberty of the person cannot be put on peril of ambiguity.
• Sajjan Kumar Vs Central Bureau of Investigation ( 2010) 9 SCC 368
• Para 21 - SC summarized the principles which are to be kept in mind by criminal court at stage of consideration of a case for discharge
• Judge while considering the Question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie would depend upon the facts of each case
• where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court is fully justified in framing a charge and proceeding with the trail.
• The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any infimities, etc Howerver, at this stage there cannot be a roving enquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trail.
• If on the basis of the material on record, the court form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
• At the time of framing of the charges the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by accused was possible.
• if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trail judge will be empowered to discharge the accused and at this stage, he is not to see whether the trail will end in conviction or acquittal.
• Para 19
• It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. 
• If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.
• NIA Vs Zahoor Ahmad Shah Watali ( 2019 ) 5 SCC 1 
1. para 23 - Hon'ble Supreme Court
1. The degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true,
2. for the purpose of adjudicating bail is LIGHTER than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under UAPA 1967

Value of Confessions

 

Statute

1. Section 25 of Indian Evidence Act
2. Section 27 of Indian Evidence Act

Important Points

1. Confession a very weak kind of evidence
2. Courts have to be cautious in accepting confessions
3. check for corroborative material against confession
4. Check for Independent evidence 

Case Law

1. Arup Bhuyan Vs State of Assam, ( AIR 2011 SC 957 )
1. So far so, confession is a VERY WEAK kind of evidence. The wide spread and rampant practice in the police in India is to use third degree methods for extracting confessions from the alleged accused. Hence, the Courts have to be cautions in accepting confessions made to the police by the alleged accused. Where the prosecution case mainly rests on confessional statements made to the police by the alleged accused, in absence of corroborative material the Court must be hesitant before they accept such extra Judicial confessional Statements.

Bail

 

Important Points

1. Gurubaksh Singh Sibbia vs State of Punjab, 1980 (2) SCC 565
1. Para 30 - Constitutional Bench Supreme Court 
1. Bail Decision must enter the CUMULATIVE effect of the variety of circumstances justifying the grant or refusal of bail.
2. Kalyan Chandra sarkar Vs Rajesh Ranjan @Pappu Yadav 2005 (2) SCC 42
1. Para 18 - Three Bench Supreme Court 
1. Person accused of non-bailable offences are entitled to bail if the court concerned concludes that the prosecution has
1. FAILED to establish a prima facie case against him
2. despite existence of Prima facie, the court recorded REASON for its satisfaction for the need to release such person on bail, in the given facts situations.
2. Rejection of bail does not preclude filing a subsequent application and court can release on bail PROVIDED circumstances then prevailing requires and change in facts situation.
3. State of Rajasthan Vs Balchand, AIR 1977 SC 2447
1. Basic Rule
1. Bail not jail except where there are circumstances suggestive of 
1. Fleeing from justice
2. Thwarting the course of justice
3. Creating other troubles in shape of repeating offences
4. Intimidating witness 
2. Gravity of the offence involved likely to induce the petitioner to avoid the course of Justice and must weight when considering the question of jail & also heinousness of  crime
4. Gudikanti Narasimhulu Vs Public Prosecutor, (1978) 1 SCC 240
1. Para 16
1. Supreme Court held that delicate light of the law favors release UNLESS countered by negative criteria necessitating that course.
5. Dataram Singh Vs State of UP, (2018) 3 SCC 22
1. Para 6 - Supreme court held
1. Grant/ Refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered.
2. Discretion must be exercised judiciously, compassionately and in a humane manner.
3. Also condition for grant of bail ought not to be strict as to be incapable of compliance, there by making bail illusory.

Arguments for Bail

1. Petitioner is educated and has roots in the society
2. Nature of witness, 
1. Most of the witness are police, cannot be influenced
3. Cannot influence the witness
4. All evidence has been collected
5. Charge sheet is about to be filed or filed
6. No useful purpose is served keeping petitioner in prison.

Case Laws

• Santosh Vs State of Maharastrat
• There was no occasion to Justify Police custody - when accused in cooperating.

Wonderful Tweets

 

Technology

Patrick McKenziw  ( @patio11 )

in honor someone bad bug day today - https://twitter.com/patio11/status/1405706090868658176

Law

Swapnil V. Tripathi (@S_Tripathi07)

one of Opening Doors - Cornelia Sorabji - https://twitter.com/S_Tripathi07/status/1327935182104629248