Criminal Law

12
Apr

Sholey’s Style Indian Penal Code

[URIS id=4095]

12
Apr

RIGHT OF ACCUSED AS PER INDIAN LAW

Written By:  Manishek Kumar

INTRODUCTION:-

When we talk about right of accused, the most important thing is to know who are regarded as accused. The answer is when some person gets indulged into some acts which are punishable by law and after trial when the charges regarding the misdemeanour gets proved on that person, then that person is regarded as the accused. Basically, behind the concept of Right of Accused the fundamental idea is of humanity as behind every accused there is a human who has right to be treated as human irrespective of the fact that such person is a  criminal. Throughout the whole world, there is a culture to treat everyone with humanity and even accused should be treated as human and therefore, it is expected from all the nations to follow the Reformative Theory of Punishment to the extent they can impose in their respective Judicial System. In order to do so, various of International Statute are also made for the guidance. Following this idea, India has also provided so many rights to the accused which are as follows:-

 1) Equality Before the law

According to Article 14 of Indian Constitution, state shall not deny to any person equality before the law or equal protection of the laws within the territory of India. Basically, the said article contends that everyone is equal before the law and must have equal protection of law and there is end of all type of privileges before the law. By making this article the fundamental right, state protected the right of individual against every element of Government or state. In the case of Maneka Gandhi vs. UOI [AIR 1978 SC], Supreme Court held that “equality is dynamic concept with many aspects and dimensions and cannot be imprisoned with traditional limits”.

2) Protection against arbitrary or unlawful arrest

Under Article 22 of Indian Constitution, accused are given some rights regarding arrest; the very first one is “Right to be Informed” as soon as possible of ground of arrest, secondly, “Right to Consult” and to be represented by the lawyer of his own choice before magistrate within 24 hours.

3) Right to speedy trial

In the case of Hussainara Khatoon vs. Home Sec, St. of Bihar [AIR 1979 SC]

Supreme Court held that “right to speedy trial” is one of the Fundamental Rights of the citizen implicit in the guarantee of life and personal liberty enshrined in Art 21 of Indian constitution.

4) Right to Fair Trial

In the case of Rattiram vs. State of M.P [AIR2012 SC]

Supreme Court held that an Accused has right to fair trial and regarded fair trial as the heart of Criminal Jurisprudence, and in way, an important facet of democratic polity.

5) Protection against Ex Post Facto Law

Art 20(1) of Indian Constitution says that “no person shall be convicted of any offence except for violation of a law in force at the time of commission of the act charged as an offence, nor be subjected to penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offences. It says that no person shall be prosecuted for an offence which he or she has done earlier, they shall be punished for the offence they have done at the present.

6) Protection against Double Jeopardy

Art 20(2) of Indian Constitution says that no person shall be prosecuted and punished for the same offence more than once.

7) Prohibition against self-incrimination

Art 20(3) of Indian Constitution says that no person accused of any offences shall be compelled to be a witness against himself. Thus Art 20(3) embodies the general principles of English and American jurisprudence that no one shall be compelled to give testimony against him.

8) Presumption of Innocence

Under Fair Trial, it is the right of every individual to be assumed as innocent until the alleged charges are proved on him. As per the Universal Declaration of Human Rights Art 11, it is ruled to assume a person innocent until the guilt is proved.

9) Right to free legal Aid

According to Art. 39-A of Indian Constitution there is provision to provide free legal aid to the prisoners or the persons who are not economically capable of hiring legal practitioners for their right enforcement. Through Art 39-A the state shall secure the objective of social justice for all through suitable legislation and schemes. Art 14(3)(d) of the international covenant on civil and political Rights and much other international law supports this idea.

10) Right against inhuman treatment by the Police

In Kishore Singh vs. State of Rajasthan [AIR 1981 SC]

In the case, it was held that the use of “third degree” by police is violative to Article 21 and directed the government to take necessary steps to educate the police so as to inculcate a respect for the Human person and at the same time declared inhuman treatment with prisoners in Jail as the action against the Article 21 of Indian Constitution.

CONCLUSION

There are several of provisions remaining which are not cited in this article such as Code of Criminal Procedure, CPC and many more statute that have provisions for the accused in it for which an accused can claim anytime. The main purpose behind the idea is to treat an accused as a criminal as well as a human. It is also followed in order to spread the idea of humanity and reformative Punishment so that criminal can also relive their life at once peacefully if they want it.

4
Apr

Evaluation of Evidence in Police Trap Cases

Written by – Amaresh Patel

Courts, traditionally, considered police trap as failing in two broad categories, that is, “Legitimate and “illegitimate” traps. Among bride-givers there are various types and gradations. There is the person who is compelled to give bribe on the demand of  a public servant, there is a another who voluntarily offers a bribe and after securing his ends files a complaint, who can be regarded as “particeps criminis”, and hence an accomplice. The former is a case where an un-willing person is forced an accomplice. The former is a case where a un-willing person is forced to offer a bribe under threat or coercion; the latter is a case where a person offers a bribe under to achieve his own purpose. The former bribe-giver should be treated as an “interested” witness whose evidence requires corroboration required careful scrutiny. Even in illegitimate traps, the nature of corroboration required should not be subjected to the same rigorous tests, which are generally applied to the cases of approvers. The court has to consider the degree of their complicity and then look for corroborations, if necessary, as a rule of prudence, the extent and nature of which may vary having regard to the facts and circumstances of each case.

The evidence of ‘Particeps Criminis’ must be treated like the evidence of accomplice. If the witness is not an accomplice in that sense, but is only a ‘partisan” or “interested” witness who is concerned in the success of the trap. His evidence must be tested in the same way as other interested evidence is tested, which may vary from case to case. corroboration  in such a case can be of an approver. However, as a rule of prudence, the court has to scrutinize evidence of such an interested witness carefully. Quantum of corroborative evidence required would depend on the particulars facts of the case like, the nature of the crime, the character of the trap witness etc., and other general requirements necessary to substain the case. whether corroboration is necessary, and if so, to what extent and what should be in its nature differs from case to case. in a case of a  bribe , the bribe-giver and the intermediates, if any, are the only persons who can ordinarily be expected to give evidence about the payment of bribe. However, their evidence has to be scrutinised very carefully and duly appreciated in a proper manner to decide whether conviction can be based on it or not in those circumstance.[1]

In Rao Shiv Bahadur Singh v. State of Vindhya Pradesh,[2] the Supreme Court observed that the unwilling bribe-givers were only actuated with the motive of trapping the accused and hence the evidence could not be treated as evidence of accomplices. Their evidence was nevertheless the evidence of “partisan” witness.

In State of Bihar v. Basawan Singh,[3]the case arose on a ‘legitimate’ trap laid to catch a police officer, who was, in due course, convicted. The High Court in appeal held that the decision in Rao Bahadur Singh laid down an inflexible rule that in case of this nature testimony of the witness who formed the raiding party must be discarded, unless that testimony is corroborated by independent witness. The constitution bench which decided State of Bihar v. Basawan Singh proceeded to point out the distinction between a witness who is an accomplice and on who is not, and reiterated the law laid down in Rameshwar v. State of Rajasthan,[4] regarding accomplice evidence which is the same as the law laid down in King v. Baskerville, [5] namely that the judge should give some indication in his judgment that he has had the rule of cautionin mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and and show why he considers it safe to convict without corroboration in that particular case.

References-

[1] M.O. Shamsudhin v. State of Karala, (1995) 3 SCC 351

[2] AIR 1954 SC 322

[3] AIR 1958 SC 500

[4] AIR 1952 SC 54

[5] (1916) 2 KB 658

23
Mar

CYBER FRAUDS WITH SPECIAL REFERENCE TO BANKING

Written By: Anwesha Ghosh

Introduction:

Until the mid-1990s, the banking sector in most parts of the world was simple and reliable; however, since the advent of technology, the banking sector saw a paradigm shift in the phenomenon. Banks, in order to enhance their customer base, introduced many platforms through which transactions could be done without much effort. These technologies enabled the customer to access their bank finances 24*7 and year around through, ATMs and Online banking procedures.

However, with the enhancement of technology, banking frauds have also increased likewise. Cybercriminals are using different means to steal ones bank information and ultimately their money as well.

It is, therefore, a collective consensus of banks and regulators to make policies and adopt measures in order to protect banking platforms from cyber threats. A number of technical defense and control measures like increased real-time supervision on transactions have been undertaken by the banks, however, even today the problem persists. The reason behind this is that the defense measures currently available with banks are often reactive, time-consuming and available in public domain which can be accessed even by the cybercriminal who in turn adopts measures to combat from these defenses. The attackers allocate their time in developing new means for cybercrime and also simultaneously work on finding the solutions to bridge these defense measures.

One of the ways to mitigate the problem of cybercrimes in the banking sector is to identify the factors related to banks that are general targets of such cyber-attacks, and why some banks have never faced such a situation. Banks which are general targets of cybercrimes suffer from various malware attacks in form of online phishing, keystroke-logging malware, identity theft, etc.

The concept of E-Banking:

Electronic Banking or e-banking refers to a system where banking activities are carried out using informational and computer technology over the human resource. In comparison to traditional banking services, in e-banking, there is no physical interaction between the bank and the customers. E-banking is the delivery of bank’s information and services by banks to customers via different delivery platforms that can be used with different terminal devices such as personal computer and a mobile phone with browser or desktop software, telephone or digital television.[1]

The first initiative in the area of bank computerization was stemmed out of two successive Committees on Computerization (Rangarajan Committee).[2] The first committee was set up in 1984 which drew the blueprint for the mechanization and computerization in the banking industry. The second Committee was set up in 1989 which paved the way for integrated use of telecommunications and computers for applying fully the technological breakthroughs to the banking operations. The focus shifted from the use of Advanced Ledger Posting Machines (ALPMs) for limited computerization to full computerization at branches and to integration of the branches.[3] Till 1989, banks in India had 4776 ALPMs at the branch level, over 2000 programmers/ systems personnel and over 12000 Data Entry Terminal Operators.[4]

The RBI constituted a Working Group on Internet Banking. Based on the notion of access to the banking products and services, the group divided internet banking into three systems.[5]

(a) Informational System This system requires banks to provide information about interest rates, loan schemes, branch locations etc. to the customers. The customer can download various types of application as per the requirements. Also, customers are not required to reveal their identity and there is no realistic chance of any unauthorized person getting into the production system of the bank.[6]

(b) Communicative System This system provides information to the customer about his account balance, transaction details etc. The customers can seek the information after authentication and log in through the passwords.[7]

(c) Transactional System In this system a bank allows its customers to undertake transactions through its system and they are directly uploaded to the customer’s account. There is a bi-directional transaction that takes place between the bank and the customer and between the customer and the third party. This system is secured through security mechanisms like HTTP and https. E-banking is also known as Cyber Banking, Home Banking, and Virtual Banking. E-banking includes Internet Banking, Mobile Banking, RTGS, ATMs, Credit Cards, Debit Cards, and Smart Cards etc.[8]

Cyber Crime in Banking Sector:

Cyber Crime can be simply stated as crimes that involve the use of computer and a network [9]as a medium, source, instrument, target, or place of a crime. With the growing aspect of e-commerce and e-transactions, the economic crime has drifted towards the digital world. Cyber crimes are increasing globally and India to has been witnessing a sharp increase in cyber crimes related cases in the recent years.

In 2016, a study by Juniper Research estimated that the global costs of cybercrime could be as high as 2.1 trillion by 2019.[10] However such estimates are only indicative and the actual cost of cybercrime including unreported damages is beyond estimation.

Cyber Crimes can be broadly classified into categories such as cyber terrorism, Cyber-bullying, Computer Vandalism, Software Piracy, Identity Theft, Online Thefts and Frauds, Email Spam and Phishing and many more.

However, from the aspect of financial cyber crimes committed electronically, the following categories are predominant:

  • Hacking: It is a technique to gain illegal access to a computer or network in order to steal, corrupt, or illegitimately view data.
  • Phishing: It is a technique to obtain confidential information such as usernames, passwords, and debit/credit card details, by impersonating as a trustworthy entity in an electronic communication and replay the same details for malicious reasons.
  • Vishing: It is the criminal practice of using social engineering over the telephone system to gain access to private personal and financial information from the public for the purpose of financial reward.[11]
  • E-mail Spoofing: It is a technique of hiding an e-mail’s actual origin by forged the e-mail header to appear to originate from one legitimate source instead of the actual originating source.
  • Spamming: Unwanted and unsolicited e-mails usually sent in bulk in an attempt to force the message on people who would not otherwise choose to receive it are referred to as Spam E-mails.
  • Denial of Service: This attack is characterized by an explicit attempt by attackers to prevent legitimate users of a service from using that service by “flooding” a network to disallow legitimate network traffic, disrupt connections between two machines to prohibit access to a service or prevent a particular individual from accessing a service.[12]
  • Advanced Persistent Threat: It is characterized as a set of complex, hidden and ongoing computer hacking processes, often targeting a specific entity to break into a network by avoiding detection together sensitive information over a significant period of time. The attacker usually uses some type of social engineering, to gain access to the targeted network through legitimate means.
  • ATM Skimming and Point of Sale Crimes: It is a technique of compromising the ATM machine or POS systems by installing a skimming device atop the machine keypad to appear as a genuine keypad or a device made to be affixed to the card reader to look like a part of the machine. Additionally, malware that steals credit card data directly can also be installed on these devices. Successful implementation of skimmers causes an ATM machine to collect card numbers and personal identification number (PIN) codes that are later replicated to carry out fraudulent transactions.

Recommendations to Prevent Cyber Crime:

The banking sector is the backbone of our economy. The increasing number of cyber-crime cases has resulted in huge loses to our economy. Cyber-attacks should be prevented by ensuring suitable legislation which is implemented effectively. Both the banks and the customer should be made aware of the risk involved and safeguard measures. There needs to be cooperation between the various stakeholders to counter cyber-crime. The Indian Government established an Inter-Departmental Information Security Task Force (ISTF) with the National Security Council as the nodal agency for the coordination of all matters relating to effective implementation of its cyber-security strategy. Indian Computer Emergency Response Team (CERT-In) is the national nodal agency which is made to respond to computer security incidents whenever they occur. Few of the activities undertaken by CERT-In in implementing cyber security include coordination of responses to security incidents and other major events; issuance of advisories and time-bound advice regarding imminent threats; product vulnerabilities analysis; conducting training on specialized topics of cyber-security; and evolution of security guidelines on major technology platforms.[13]

One of the main issues related to cyber-crime is of jurisdiction. Cyber-crime can be committed in any part of the globe has its impact in any corner. Every citizen should be able to identify and report cybercrimes from anywhere regardless of the country they reside in. The existing systems present in India for reporting cyber-related offenses involves registering complaints with the local police stations or cybercrime cells. Many Indian states have set up cybercrime cells, which monitor such crimes. In several instances, where the victims of cybercrime may not be able to report a cybercrime due to several reasons, such as staying in a remote location, unawareness regarding the place to report and privacy-related issues. This tends to result in many cybercrime cases going unreported. Since there is no centralized online cybercrime reporting mechanism. Also for law enforcement agencies at various levels such as national, state, and local level, there is no centralized referral mechanism for complaints relating to cybercrime.[14] IT Act should be amended accordingly to define cybercrime and also specify the cases where the Act will have extra-territorial jurisdiction. The scope of the IT Act needs to be broadened to include legal framework relating to cyber laws in India. The responsibility of the intermediaries is vague and must be made more clear and explicit.

Cyber Fraud Council in Banks:

Whenever a cyber-fraud is committed the victim should report to the Cyber Fraud Council that must be set up by in each and every bank to review, monitor investigate and report about cyber-crime. In case, such Council does not take perform or refuses to perform its duty then a provision to file an FIR must be made. The matter to be brought before such council can be of any value. However, when the value is high then the Council shall act expeditiously. RBI in its 2011 Report stated that when bank frauds are of less than one Crore then it may not be necessary to call for the attention of the Special Committee Board.[15]

Education to Customer:

The customer should be educated and made aware of various bank frauds and measures should be informed to them for safety mechanisms so that they do not fall prey as victims of cyber-crime. If a customer is conscious and reports the matter of cyber-crime then in the initial stage also instances of cyber-crimes can be reduced. A customer should be made aware of the Dos and Dont’s of E-banking. It can be done through publishing it on the bank’s website, publishing in the newspaper, through advertisements, by sending SMS alerts, through poster education etc. In case a bank introduces any new policy or there are any changes which are required to be followed by all banks as per RBI then, the bank must inform the customer through emails or by informing the customer through the telephone.[16] The awareness material should be timely updated keeping in mind the changes in the legislation and guidelines of RBI.[17]

Training of Bank Employees:

Training and Orientation programs must be conducted for the employees by the banks. The employees must be made aware of fraud prevention measures. It can be done through newsletters or magazines throwing light on frauds related aspects of banks by senior functionaries, putting up ‘Dos and Dont’s in the workplace of the employees, safety tips being flashed on screen at the time of logging into Core Banking solution software, holding discussions on factors causing cybercrime and actions required to be undertaken in handling them. Employees who go beyond their call of duty to prevent cyber frauds if rewarded will also enhance the work dedication.

Strong Encryption-Decryption Methods:

E-banking activities must be dealt using Secure Sockets Layer (SSL). It provides encryption link of data between a web server and an internet browser. The link makes sure that the data remains confidential and secure. As per India, we follow asymmetric crypto-system which requires two keys, public and private, for encryption and decryption of data.[18] For SSL connection an SSL Certificate is required which is granted by the appropriate authority under IT Act, 2000. To ensure security transactions RBI suggested for Public Key Infrastructure in Payment Systems such as RTGS, NEFT, and Cheque Truncation System. According to RBI, it would ensure a secure, safe and sound system of payment.[19] Wireless security solutions should also be incorporated. In cases of Denial of Service Attacks, banks should install and configure network security devices.

Physical and Personnel Security:

Banks must execute proper physical and ecosystem controls giving regards to threats, and based on the institution’s unique geographical location, and neighboring entities etc. Also when a new employee is employed then there should be a process of verification of the applicant. The level of verification may vary depending upon the position and job profile.[20] In ATMs, there must always be a security guard who has received proper training under the force. It is because many incidents occur where ATMs are looted. So physical security at ATMs is necessary.

Cooperation among nations to avert cyber-crime:

Cyberspace being transnational in nature requires cooperation among States to work together to avert cyber-crime. Although, a few treaties and implementation measures exist; a wholesome approach defining legal and technical measures and organizational capabilities are yet to take central importance for India in its goal to contribute to the global fight against cyber-crime. IT Act, 2000 having extra-territorial application poses a problem in the investigation, prosecution, and extradition of foreign nationals. India should actively engage as part of the international cybercrime community centred on Asia, Europe and America to seek help and also contribute to international cybercrime issues.[21]

Conclusion:

Indian customers are gradually preferring online services because of convenience, cost-saving, and swiftness of online transactions. In addition, financial institutions are tossing exciting offers to customers with the vision of upturning the volume of cashless transactions due to comparatively lower operational costs.

However, it can be concluded the cyber-security measures placed by financial institutions to curtail the curse of cybercrime are being out-paced by the dynamic technological landscape and improved expertise of the intruders.

Amidst the continuous upliftment of the technology implemented at the backend of the financial institution, some essential aspects were overlooked that now demand huge attention.

Cybercrime comprises its own set of unique attractive features that have gradually started outweighing the traditional crimes. The extent of anonymity, global victim reach and swift results are amongst the few that cybercriminals find most attractive.

Non-existent/Inadequate awareness campaigns further simplify the work of the cyber-criminals. Unaware consumers are easily deceived due to lack of insight into the latest attack methodologies and identified preventive measures.

References:-

[1] Daniel, E. (1999), Provision of electronic banking in the UK and the Republic of Ireland, International Journal of Bank Marketing, Vol. 17, No. 2, pp. 72-82.

[2] Committees on Computerization, available at: https://www.rbi.org.in/Scripts/PublicationsView.aspx?id=162 (Last Visited:  Nov. 30, 2017, 01:20 PM).

[3] Dr. B R Sharma and Dr. R P Nainta, Banking Law & Negotiable Instruments Act, 4th Edn, Allahabad Law

Agency, p 183.

[4] Talwar S P, (1999), National Seminar on Computer Related Crime, Inaugural address by Shri S P Talwar, Deputy Governor, Reserve Bank of India, February 24, 1999.

[5] Reserve Bank of India, Report on Internet Banking, available at:

https://www.rbi.org.in/Scripts/PublicationReportDetails.aspx?UrlPage=&ID=243#ch2 (Last Visited: Dec 1 2017, 10:25 AM).

[6] Ibid.

[7] Ibid.

[8] Dheenadhayalan V., Automation of Banking sector in India, Yojana, February, (2010) p.32.

[9] Kharouni, L. (2012). Automating Online Banking Fraud Automatic Transfer System: The Latest Cybercrime

Toolkit Feature (Rep.).

[10] Liu, J., Hebenton, B., &Jou, S. (n.d.). Handbook of Asian Criminology.

[11] Threats to the Financial Services sector (Rep.). (2014). Price waterhouse Coopers.

[12] Net Losses: Estimating the Global Cost of Cybercrime (Rep.). (2014). Intel Security.

[13] Strategic national measures to combat cyber-crime: Perspective and learnings for India, available at: http://www.ey.com/Publication/vwLUAssets/ey-strategic-national-measures-to-combat-cybercrime/$FILE/ey-strategic-national-measures-to-combat-cybercrime.pdf (Last Visited: Dec 1 2017, 10:32 AM).

[14] Ibid.

[15] Reserve Bank of India, Working Group on Information Security, Electronic Banking, Technology Risk

Management and Cyber Frauds, (21 Jan 2011).

[16] Ibid.

[17] Ibid.

[18] Section 3(2), Information Technology Act, 2000 provides authentication of Electronic Records shall be

effected by the use of asymmetric crypto system and hash function which envelop and transform the initial

electronic record into another electronic record.

[19] RBI for two stage verification for online banking transactions, Economic Times, Mumbai, April 22,2014.

[20] RBI Guidelines on Information Security, Electronic Banking, Technology Risk management and Cyber

Frauds, 2012.

[21] Ibid.

22
Mar

Witch hunting: Victims of superstition

Written By: Anwesha Ghosh

Introduction:

Witch hunting, a hundred year or older practice (rather a crime) literally means chasing and killing a woman believed to have evil magic powers. Europe, Asia and Africa top the list of continents popular for witchcraft and witch hunting, in the world whereas in India Assam is called the “Indian capital of black magic”. Other parts of India too are not untouched by this disbelief of existence if witches.

But it is not merely the branding but also the inhumane practices such as torture, beatings,   burns, parading naked, forcing to eat human excrement, rape, social ostracism, killing; that makes it alarming to stop and control this social stigma.

Meaning of the term witch hunting:

 Witch hunting refers to the stigmatization of people belonging to specific groups, mostly women, by labeling them as ‘witches’ or evil spirits who bring bad omen to the society. Prevalent largely in rural and tribal areas, where blind faith guides the way of life, people after proclaiming the victims as ‘witches’ or ‘daayan’, subject them to inhuman atrocities ranging from mob lynching, gang rape, naked parades, blackening of face, shaving of head, beheading and coercing to consume human excreta, to burning alive.

The victims of witch hunting:

It is generally women in rural and tribal areas who are persecuted by this cold-blooded practice. Studies have shown that it is single or widowed women or old couples who are commonly targeted since they are the most vulnerable (both, economically and socially) groups. Sadly, witch-hunting is also a caste-based practice wherein upper caste members take pride in stigmatizing women of lower or Dalit classes to maintain their ‘superiority’. Another set of women who are alleged to be ‘daayans’ are the ones who dare to protest and speak up against the social hegemonic structures. When they turn rebellious, they are silenced by this gender-based violence, indicating that ‘women’ must stay within their ‘Lakshman Rekha’ (limits).

Areas where it is most prevalent:

In all the parts of India! However, it is generally reported to be on a higher risk in the Eastern and Central States like Assam, Bihar, Jharkhand, Madhya Pradesh, Orissa, and Chhattisgarh. This practice is most rampant in the rural and tribal areas of the country, wherein there is utter need of economic development, infrastructure, and resources like education, sanitation, and healthcare.

 The reasons behind such a practice of cruelty:

The most common (and easiest to give) reason is that of ignorance and underdevelopment of scientific temper in these regions which easily fuel superstitions, wherein rural folk throw the burden of their miseries- be it bad crop, ill health, natural disasters, unnatural deaths and the like,  upon the ‘evil spirits’. Moreover, witch-hunting has become a customary practice, glorified by the upper castes ‘witch doctors’. Other reasons include backwardness and herd mentality. However, the root of this practice goes way deeper than this.

The real driving force behind this practice is the lust for property. The dominant and powerful in such areas eye on the property (if any) owned by the weakest and most vulnerable persons in their community. Upon categorizing them as ‘daayan’, and causing their ostracism from the village or compelling them to leave their residence, it becomes easier for them to forcibly acquire and hawk on the relinquished property.

Secondly, the victimization is a reinforcement of power-play in the society. The rich, resourceful and upper caste men ‘culturally imperialize’ the ones they consider not ‘equal’ to them. This tagging generates a culture of subservience amongst the latter and enables the former to continue their supremacy in the community.

Sometimes, this practice is also adapted to show the woman her supposed ‘place’. It could be any woman- the one who dares to speak against the patriarchy, or who is outdoing others in the community or is self-sustaining, or someone who refuses to return sexual favors to the socially dominant.

The status of law:

Despite multiple instances of this brutal practice witnessed over the years, hardly any concrete steps have been taken to bring the perpetrators behind bars. In absence of a special legislation, the only alternative for the victim is the Indian Penal Code, 1860 (IPC). The various sections invoked generally in such cases are 302 (murder), 307 (attempt to murder), 323 (hurt), 376 (rape) and 354 (outraging a woman’s modesty) among others.

The lacunae, however, witnessed upon invoking these provisions are:

Firstly, the victims in such cases have little or no access to law or police, mainly because of their social, geographical and educational background, which makes it difficult for them to attain justice.

Secondly, since this crime is socially manifested, out of either fear or acceptance of the practice, people prefer remaining silent, which makes a collection of evidence for investigation difficult.

Thirdly, the punishment granted mostly is for ‘hurt’, which merely extends up to 1 year, with a fine of Rs. 1000.

Though Bihar, Chhattisgarh, and Jharkhand have their respective special legislation to address this problem, however they come across as toothless pieces of law in practice for various reasons like prescribing lesser punishment for offences in comparison to the IPC (thereby creating conflict between the two), or putting the burden of proof upon the victim than upon the accused.

What the law fails in doing is to take a proactive stance. One thing which is clear is that witch-hunting is an out and out violation of human rights enshrined in several international conventions and the Indian Constitution, like Right to Equality, Right to Life, Right to Protection against All Forms of Gender Discrimination, Right to Security, Right to Subsistence, Right to Adequate Housing, Right to Access Law and National Tribunals and the like. Law has grossly failed in sensitizing people against this practice. Neither the mechanisms for adequate identification of the problem nor for the rehabilitation of the victims is in place. To add to this, are the evidentiary and procedural glitches in the criminal justice system as well as lack of adequate legal awareness of one’s rights in the areas where such practice has laid its clutches on.

Need of the hour:

As mentioned earlier, the legal system has to take positive steps. Rather than waiting for the victim to crave justice, it should ensure that the problem is addressed with the seriousness it deserves, than just being relegated as any other offense in the IPC. There is an urgent need for a special legislation with an expansive definition of the term ‘witch’, with stricter punishments, and which lays the burden of proof upon the accused. It must also provide for a minimum mandatory punishment so that the judiciary gets the lesser scope to reduce the sentence owing out of mitigating factors. There should be provisions for rehabilitation of the victims, which could lessen down their vulnerability and trauma, post the incident. And, since it is an offense against the State (being a criminal offense), the State should initiate an investigation on its own.

Moreover, no law can be efficient until the masses, upon whom it shall be binding, are aware of it. Hence upon enactment, the State must ensure that people know that such a law is in place, that the victims can fearlessly seek protection under it, and that it can effortlessly bring the culprits behind bars. The areas where witch-hunting is most prevalent must be extensively sensitized in respect of the plight of the victims. Similarly, the vulnerable groups must be educated about their legal rights and the protections that they are entitled to, under the law.

Conclusion:

Witch-hunting, as a practice, is a serious threat to a nation which aspires to become one of the biggest super-powers in the world. All our tall claims of development and growth shamelessly go for a toss, when such incidents are heard of, in the scientifically progressive 21st century. Clearly, it is a remediable threat, which needs an effectual solution from the legal system, complemented by a strong social backing. It is time we make sure that stories about witchcraft and wizardry merely remain childhood fictions and not gross realities of life.

20
Mar

HONOUR KILLING: A COMPARATIVE STUDY

 

Written By: Sayanti Das

As he carried the blood-splattered body of his precious daughter, draped in bridal attire, he could feel the nagging burden of being pawned into a senseless situation. Yards behind, another life, lay snuffed – the sole earning member of a destitute family, leaving behind an aged mother and a widowed sister to weep until their tears would run dry.”

                                                                                                                          ― Rajnish Gambhir

Honour Killing

An honor killing or disgrace killing is the manslaughter of an individual from a family, due to the perpetrators’ belief that the victim has brought shame or dishonor upon the family, or has violated the principles of a community or a religion, usually for reasons such as refusing to enter an arranged marriage, being in a relationship that is disapproved by their family, having sex outside marriage, becoming the victim of rape, dressing in ways which are deemed inappropriate, engaging in non-heterosexual relations or renouncing a faith.

Human Rights Watch defines “honor killings” as follows:

Honor killings are acts of vengeance, usually death, committed by male family members against female family members, who are held to have brought dishonor upon the family.

A woman can be targeted by (individuals within) her family for a variety of reasons, including:

  1. a) Refusing to enter into an arranged marriage,
  2. b) Being the victim of a sexual assault,
  3. c) Seeking a divorce—even from an abusivehusband—or (allegedly) committing adultery.

The mere perception that a woman has behaved in a way that “dishonors” her family is sufficient to trigger an attack on her life.

Methods of honor killing:

Strategies for killing incorporate stoning, cutting, beating, consuming, decapitating, hanging, throat slicing, deadly corrosive assaults, shooting, and strangulation. The homicides are here and there performed openly to caution alternate people inside the group of conceivable results of taking part in what is viewed as illegal conduct.

Comparative study on honor killing

  • International Perspective:

Europe: The issue of respect killings has ascended to unmistakable quality in Europe as of late, inciting the need to address the event of respect killings. The 2009 European Parliamentary Assembly noticed this in their Resolution 1681 which noticed the critical need to address respect wrongdoings. The determination expressed that on purported ‘honor violations,’ the Parliamentary Assembly takes note of what the issue is, a long way from lessening, has intensified, incorporating into Europe. It predominantly influences ladies, who are its most incessant casualties, both in Europe and whatever remains of the world, particularly in man-centric and fundamentalist groups and social orders. Thus, it solicited the Council from Europe part states to ‘draw up and put into impact national activity intends to battle savagery against ladies, incorporating brutality submitted for the sake of purported ‘honor,’ on the off chance that they have not officially done as such.

Belgium: In 2011, Belgium held its first respect murdering trial, in which four Pakistani relatives were discovered liable for slaughtering their little girl and kin, Sadia Sheik. As a legacy of the exceptionally persuasive Napoleonic Code,  Belgian law provided for mitigating circumstances in the case of a killing or an assault against a spouse caught in the act of adultery.(Adultery itself was decriminalized in Belgium in 1987).

France: France has a vast outsider group from North Africa (particularly from Algeria, Morocco, and Tunisia) and respects based viciousness happens in this community. A 2009 report by the Council of Europe referred to the United Kingdom, Germany, Belgium, France, and Norway as nations where respect wrongdoings and honor killings occur.France generally furnished for tolerance with respect to honoring wrongdoings, especially when they were submitted against ladies who had conferred infidelity. The Napoleonic Code of 1804, set up under Napoleon Bonaparte, is one of the beginnings of the lawful tolerance with respect to infidelity related killings in an assortment of legitimate frameworks in a few nations around the globe. Under this code, a man who executed his significant other after she had been gotten in the demonstration of infidelity couldn’t be accused of planned murder – despite the fact that he could be accused of other lesser offenses. This resistance was accessible just for a spouse, not for a wife. The Napoleonic Code has been exceptionally powerful, and numerous nations, enlivened by it, accommodated lesser punishments or even absolution for such violations. This can be found in the criminal codes of numerous previous French colonies.

Germany: In 2005 Der Spiegel detailed: “In the previous four months, six Muslim ladies living in Berlin have been killed by relatives”. The article went ahead to cover the instance of Hatun Sürücü, a Turkish-Kurdish lady who was slaughtered by her sibling for not remaining with the spouse she was compelled to wed, and for “living like a German”. Exact insights on what number of ladies pass on consistently in such honor killings are rare, the same number of violations are never announced, said Myria Boehmecke of the Tuebingen-based ladies’ gathering Terre des Femmes. The gathering tries to shield Muslim young ladies and ladies from severe families. The Turkish ladies’ association Papatya has reported 40 occasions of respect killings in Germany since 1996. Hatun Sürücü’s sibling was indicted kill and imprisoned for a long time and three months by a German court in 2006.In March 2009, a Kurdish worker from Turkey, Gülsüm S., was killed in a relationship, not with regards to her religious family’s arrangement for an orchestrated marriage. In 2016 a Kurdish Yazidi lady was shot dead at her wedding in Hannover for purportedly declining to wed her cousin in a constrained marriage.

Switzerland: In 2010, a 16-year-old Pakistani young lady was executed close Zurich, Switzerland, by her dad who was disappointed with both her way of life and her Christian boyfriend.

       United Kingdom: Consistently in the United Kingdom (UK), authorities evaluate that no less than twelve ladies are casualties of respect killings, only inside Asian and Middle Eastern families. Often, cases can’t be settled because of the unwillingness of families, relatives, and groups to affirm. A 2006 BBC survey for the Asian system in the UK found that one of every ten of the 500 youthful Asians surveyed said that they could support the executing of somebody who had shamed their families. In the UK, in December 2005, Nazir Afzal, Director, west London, of Britain’s Crown Prosecution Service, expressed that the United Kingdom has seen “no less than twelve respect killings” in the vicinity of 2004 and 2005. In 2010, Britain saw a 47% ascent in the quantity of respect related wrongdoings. Information from police organizations in the UK reports 2283 cases in 2010 and an expected 500 more from wards that did not give reports. These “respect related wrongdoings” likewise incorporate house captures and other parental punishments. Most of the assaults were led in urban areas that had high worker populations.Banaz Mahmod, a 20-year-old Iraqi Kurdish lady from Mitcham, south London, was executed in 2006, in a murder organized by her dad, uncle, and cousins.Her life and murder were introduced in a narrative called Banaz a Love Story, coordinated and created by Deeyah Khan.

Pakistan: In Pakistan, honor killings are referred to locally as Karo-Kari. An Amnesty International report noticed “the disappointment of the specialists to keep these killings by exploring and rebuffing the perpetrators.” Official information puts the quantity of ladies executed in respect killings in 2015 at almost 1,100. Recent cases incorporate that of three high school young ladies who were covered alive subsequent to declining masterminded marriages. Another case was that of Taslim Khatoon Solangi, 17, of Hajna Shah town in Khairpur area, which was generally announced after her dad, 57-year-old Gul Sher Solangi, advertised the case. He asserted his eight-months-pregnant little girl was tormented and killed on 7 March on the requests of her father-in-law, who blamed her for doing a kid considered wedlock.Statistically, respect killings have an abnormal state of help in Pakistan’s country society, regardless of far-reaching judgment from human rights groups. In 2002 alone more than 382 individuals, around 245 ladies, and 137 men moved toward becoming casualties of respect killings in the Sindh region of Pakistan.Over the course of six years, in excess of 4,000 ladies have kicked the bucket as casualties of respect killings in Pakistan from 1999 to 2004. In 2005 the normal yearly number of respect killings for the entire country was expressed to be in excess of 1,000 for every year.In January 2017 a Pakistani mother was condemned to death for executing her girl that had hitched against her family’s wishes.

  • National perspective:

India: Honor killings have been accounted for in northern areas of India, chiefly in the Indian conditions of Punjab, Rajasthan, Haryana and Uttar Pradesh, because of individuals wedding without their family’s acknowledgment, and some of the time for a wedding outside their station or religion. Interestingly, respect killings are less common however are not totally non-existent in South India and the western Indian conditions of Maharashtra and Gujarat. In 2015 National Crime Records Bureau information appears, 251 honor killings were accounted for in India, activists view this number as underestimation because of the distorting of killings under general murders. According to the study done by AIDWA, more than 30 percent of the aggregate honor killings in the nation happens in Western Uttar Pradesh. In some different parts of India, outstandingly West Bengal, honor killings totally stopped about a century prior, to a great extent because of the activism and impact of reformists, for example, Vivekananda, Ramakrishna, Vidyasagar and Raja Ram Mohan Roy. Haryana has had frequencies of respect killings, for the most part in the upper castes[disambiguation needed], among Rajputs and Jats. Role of khap panchayats (position boards of town older folks) has been questioned Feminist researchers who contemplated khaps disclose that exclusive 2% to 3% respect killings are identified with gotra killings by the khap or rank panchayats, rest are finished by the families, “will you boycott families?” they reason.In March 2010, Karnal area court requested the execution of five culprits of a respect slaughtering and detaining forever the khap (nearby standing based chamber) boss who requested the killings of Manoj Banwala (23) and Babli (19), a man and lady of a similar group who ran off and wedded in June 2007. In spite of having been given police assurance on court orders, they were abducted; their ravaged bodies were discovered seven days after the fact in a water system canal. In 2013, a youthful couple who were wanting to wed was killed in Garnauthi town, Haryana, due to having an adoration illicit relationship. The lady, Nidhi, was pounded the life out of and the man, Dharmender, was dissected alive. Individuals in the town and neighboring towns affirmed of the killings.The Indian territory of Punjab likewise has countless killings. As indicated by information aggregated by the Punjab Police, 34 respect killings were accounted for in the state in the vicinity of 2008 and 2010: 10 out of 2008, 20 of every 2009, and four out of 2010.Bhagalpur in the eastern Indian territory of Bihar has additionally been famous for respect killings.Recent cases incorporate a 16-year-old young lady, Imrana, from Bhojpur who was determined to flame inside her home for a situation of what the police called ‘moral vigilantism’. The casualty had shouted for help for around 20 minutes before neighbors arrived, just to locate her seething body. She was admitted to a neighborhood healing center, where she later kicked the bucket from her injuries. In May 2008, Jayvirsingh Bhadodiya shot his little girl Vandana Bhadodiya and struck her on the head with an ax. Honor killings happen even in Delhi.Respect killings occur in Rajasthan, too. In June 2012, a man hacked off his 20-year-old girl’s head with a sword in Rajasthan in the wake of discovering that she was dating men.According to a cop, “Omkar Singh told the police that his little girl Manju had relations with a few men. He had requested that she retouch her ways a few times before. Be that as it may, she didn’t pay regard. Out of unadulterated wrath, he hacked off her head with the sword”.

In 1990 the National Commission for Women set up a statutory body keeping in mind the end goal to address the issues of respect killings among some ethnic gatherings in North India. This body assessed protected, lawful and different arrangements and in addition challenges ladies confront. The NCW’s activism has contributed altogether towards the decrease of respect killings in country zones of North India. According to Pakistani activists Hina Jilani and Eman M Ahmed, Indian ladies are extensively better ensured against respect killings by Indian law and government than Pakistani ladies, and they have proposed that legislatures of nations influenced by respect killings utilize Indian law as a model keeping in mind the end goal to forestall respect killings in their particular societies.

In June 2010, investigating the expanding number of respect killings, the Supreme Court of India requested reactions about respect slaughtering aversion from the central government and the state legislatures of Punjab, Haryana, Bihar, Uttar Pradesh, Rajasthan, Jharkhand, Himachal Pradesh and Madhya Pradesh. Frightened by the ascent of honor killings, the Government intended to get a bill the Monsoon Session of Parliament July 2010[needs update] to accommodate obstacle discipline for ‘respect’ killings.

21
Feb

Punjab National Bank FRAUD SCAM

Written By: Anwesha Ghosh

“It is a fraud to borrow what we are unable to pay”

– Publilius Syrus

Introduction:

As per the contractual term as depicted under the Indian Contract Act, Sec 17 recommends that a fraud implies and incorporates any of the acts by a party to contract or with his conspiracy or by his agents with the goal to betray another party or his agent or to incite him to enter into a contract.

The banking frauds constitute an impressive level of white collar crimes being probed by the police. These crimes are not in any way near to the normal burglaries and thefts, the sum misappropriated in these violations keeps running into lakhs and crores of rupees.

The number of bank frauds in India is increasing with time. The major operational areas in banking represent a decent open door for fraudsters with growing numbers being reported for deposit, granting credits and between branch bookkeeping exchanges, including settlements.

The Fraud:

India is right now managing what likely is its greatest bank fraud which so far could end up being one of the greatest scams in the nation’s corporate history. The Delhi-based Punjab National Bank (PNB) had said currently that it had been duped of about Rs 114 billion by jeweler Nirav Modi, his maternal uncle Mehul Choksi, and different relatives through a group of certain organizations which they own.

The nation’s second-biggest public sector bank (PSB) also stated that two of its workers were associated with the fraud, where the bank’s core banking system was avoided to raise instalment notes to overseas branches of other Indian banks, including Allahabad Bank, Axis Bank, and Union Bank of India, utilizing the International financial communication framework, SWIFT.

The fraud took place between the span of 2011 to 2017 and the fraud was actually detected n January 2018 and later the PNB officials approached the CBI to take charge of such fraud.

It started with diamond firms moving toward PNB for opening letters of credit for import of rough stones. According to the terms of the LC (letters of credit), a typical banking instrument, PNB would pay the overseas suppliers for the sake on Nirav Modi’s organizations inside a specific period (normally three months) and recoup the cash from Modi. It’s a market practice to broaden the LC if the customer (i.e, NM) can’t give the cash toward the finish of the LC tenure.

There is actually an arrangement of bank guarantee known as a letter of undertaking (LOU) under which a bank enables its client to fund-raise from another Indian bank’s foreign branch as a short-term credit. The LOU is a form of bank guarantee.

To raise the LOU, the client should pay a certain sum of margin money to the bank issuing and as such the credit limit is granted accordingly. But in the case of Nirav Modi, neither there was any advance of margin money made nor was there any kind of credit limit.

Nirav Modi, by means of his three firms, Diamond R Us, Solar Exports and Stellar Diamonds, figured out how to pay to its providers of rough stones, the installments were made through the credits by banks including Axis Bank, and Allahabad Bank. The credits were raised by Nirav Modi’s organizations on presenting the letters of undertakings issued by the PNB.

Incidentally, there was no official record of such letters of undertaking in the PNB records as the bank found early this prior year revealing the issue to the CBI.

In an ideal case, Nirav Modi and his organizations should have reimbursed the advances yet up to this point, every one of these credits has not been paid for the need of assets. In the situation when the borrower neglects to make the reimbursement, the bank issuing the LOU (PNB for this situation) is compelled to pay the credits for the sake of its clients.

On Thursday (February 15), the Reserve Bank of India (RBI) supposedly coordinated the PNB to pay every one of these banks that offered advances to Modi’s firm based on guarantees/LOUs issued by the bank.

The Rs. 11,300 crores was uncovered simply after PNB representative Gokulnth Shetty, who had supposedly conspired with Nirav Modi in obtaining counterfeit letters of undertaking (LOUs), resigned as of late

In January, the misrepresentation was uncovered when Modi’s firm asked for advance LOUs for paying the overseas suppliers. On this, the bank authorities declined on the ground that Modi’s firm needs to keep 100% collateral securities for the same. The Modi’s firm contended that no such cash was kept even in the past also it was not given. Following which, the bank authorities checked the records just to find that there was no hint of any such exchange. This suggested that the guarantee was issued by bypassing the rules in arrangement with some PNB representatives.

The Major Questions:

Firstly, it is hard to see how banks in India and abroad could be swindled for quite a long time when every transaction must be accounted on a daily basis toward the finish of business hours and the RBI should guarantee to inspect of each bank’s books and records. This undertaking could have been troublesome in the times of manual accounting. But, in the period of PCs and incorporated servers, this lapse is relatively impossible.

Secondly, the question that pops up is how employees of such small hierarchies could continue with the scam for almost five years and the bank never noticed it.

Current Status of The Accused

The passports of Nirav Modi and Mehul Choksi have been suspended for a month as CBI and Enforcement Directorate are doing investigations. Extremely rich person Nirav Modi and his accomplice Mehul Choksi are the people blamed in the Rs. 11,300 crore Punjab National Bank scam, named India’s greatest banking scandal. Prior today,

Media Sources have affirmed that Nirav Modi, the principal blamed in asserted fraud of over Rs. 11,300 crores through 150 letters of understanding issued by Punjab National Bank, has been living at New York’s JW Marriott Essex House at 160 Central Park South.

Nirav Modi, who holds an Indian passport, left India on January 1, while his sibling Nishal, a Belgian national, left the nation around the same time. Nirav Modi’s wife Ami, a US national, additionally left on January 6 and his uncle and business accomplice Mehul Choksi, the promoter of Gitanjali jewelry chain, left on January 4, the authorities said.

Conclusion:

India, shockingly, has not learned from a background marked by fakes that have been correct copies of each other. Modi’s usual methodology is very like the money related frauds executed by Harshad Mehta, Ketan Parekh, Vijay Mallya and numerous other people who obtained from banks to control the business sectors.

17
Feb

LIFE IMPRISONMENT: A PUNISHMENT FOR LIFETIME OR FOR A PERIOD OF TIME?

Written By: Sayanti Das

LIFE IMPRISONMENT:

Life Imprisonment (otherwise called imprisonment forever, life in jail, a lifelong incarceration, imprisonment for the whole life) is any sentence of imprisonment for a wrongdoing under which indicted people are to stay in jail either for whatever remains of their regular life or until paroled.

 A COMPARATIVE ANALYSIS ON LIFE IMPRISONMENT:

  • Statutory Provisions in India

            Different statutes in India managing criminal law have set down provisions identifying with Life Imprisonment. A portion of the essential provisions are as per the following:

Indian Penal Code, 1860:

  • Sec55: Commutation Of Sentence of Imprisonment for Life: In every case in which sentence of 1[imprisonment] for life shall have been passed, 2[the appropriate Government] may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years.

Explanation: Sec 55, I.P.C. gives that when the sentence of imprisonment forever has been passed, the appropriate Government may without the assent of the detainee drive the punishment for imprisonment of either depiction for a term not surpassing fourteen years. This area enables the appropriate Government to drive the sentence of imprisonment of life. The exercise of such right is at the watchfulness of the suitable government. This area does not set out that life imprisonment might be a detainment for a long time and a detainee isn’t to be consequently discharged after the expiry of fourteen years of imprisonment. That is, it depends on the appropriate government to decide whether the detainee will be provided with imprisonment forever or for a period of 14 years.

  • Sec 57: Fractions Of Terms of Punishment: In calculating fractions of terms of punishment, [imprisonment] for life shall be reck­one as equivalent to  [imprisonment] for twenty years.

Explanation: Sec. 57 of I.P.C. do not state that imprisonment for life shall be reckoned as imprisonment for 20 years. A prisoner’s sentence of life imprisonment will not automatically come to an end by lapse of 20 years. It is only the government that can remit, suspend or commute the sentence.

Code of Criminal Procedure, 1973:

Sec 432: Power to Suspend or Remit Sentences:

(1) When any person has been sentenced to punishment for an offense, the appropriate Government may, at any time, without Conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

Explanation: The question of remission of the entire sentence or part of it lies within the exclusive domain of the Government under Sec.432 of the Cr.P.C. 1973 and neither in Sec.57 of I.P.C., nor any rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Penal Code. The prisoner cannot be released automatically on the expiry of 20 years.

Sec. 433: Power to Commute Sentence: The appropriate Government may, without the consent of the person sentenced, commute-(a) a sentence of death, for any other punishment provided by the Indian Penal Code;(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;(d) a sentence of simple imprisonment, for fine.

That is, the appropriate Government may commute the sentence of ac life imprisonment after he had served 14 years in jail.

  • 433A: Restriction on Powers of Remission or Commutation in Certain Cases. Despite anything contained in Section 432, where a sentence of Imprisonment for life is forced on conviction of a man for an offense for which passing is one of the punishments given by law or where a sentence of death forced on a man has been driven under Section 433 into one of imprisonment forever, such individual might not be discharged from jail unless he has served no less than fourteen years of imprisonment.

The suitable Government has control under Sections 432 and 433, Cr.P.C. to suspend or transmit or drive the sentence while Section 433A of Cr. P.C. forces limitations on the forces of reduction or recompense in specific cases.

  • Statutory Provisions in other countries:

USA: In the USA, life imprisonment by and large proceeds till the detainee bites the dust. Some of the time life terms are given in sentences are lopsided to the span the detainee is relied upon to live, for instance, a 300-year sentence for different homicides. In fact, a lifelong incarceration does not generally signify “imprisonment for life.” Once a time of 10 years or more is finished, the convict can be set out on parole.

Mexico – In Mexico, life imprisonment is an uncertain sentence. Its term may run from 20 years up to a greatest of 40 years.

Germany – The German law has settled least time to be served for a sentence of life imprisonment, which is 15 years after which the detainee can apply for parole.

Australia – In Australia, the term of life imprisonment is typically 25 years.

A FEW JUDICIAL VIEWS IN INDIA:

  • As regards the nature of imprisonment, Supreme Court of India held that imprisonment in such a case meant rigorous imprisonment for life and not simple imprisonment. An accused convicted of imprisonment for life may be granted remission for good conduct. As per Sec.57, IPC, for the purpose of calculating remission, it is treated as a sentence of 20 years. (M. Nanavati v. State of Maharashtra [AIR 1962 SC 605])
  • It was held by a Constitution Bench that the meaning of a sentence of imprisonment for life is no longer res Integra. A sentence of transportation for life or imprisonment for life must, prima facie, be treated as transportation or imprisonment for the whole of the remaining period of the convicted person’s natural life. It was further held that unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Cr.P.C. a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. (Gopal Vinayak Godse V. The State Of Maharashtra and Ors. [1961 AIR 600])
  • The Supreme Court made it clear that life imprisonment is not equivalent to imprisonment for 14 years or for 20 years. Elaborating the point further the Apex Court ruled that there is no provision either in IPC or in Cr.P.C. whereby life imprisonment could be treated as 14 years or 20 years without there being a formal remission by the appropriate government.(Kartik Biswas V Union Of India [P. 21056(W) of 2014])
  • As rightly observed by the Hon’ble Court, there is a misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years or 20 years imprisonment. A convict undergoing life imprisonment is expected to remain in custody until the end of his life, subject to any remission granted by the appropriate Government under section 432 of the Code, which in turn is subject to the procedural checks mentioned in the said provision and to further substantive check-in section 433-A of the Code. (Sangeet v. State of Haryana [Criminal Appeal Nos. 490-491 of 2011])