ARTICLES

Important Judgment on Creation of New State and Legal Effect

Important Judgment on Creation of New State and Legal Effect

Title: Creation of State and their legal effect
Case: State of Madhya Pradesh vs. Lafarge Dealers Association, C.A. No. 5302 of 2019 (@SLP (C) No. 23592 of 2014) 
Bench: Chief Justice of India Ranjan Gogoi, Justice S. Abdul Nazeer and Justice Sanjiv Khanna
Date Decided: 9th July 2019
Subject and Section Involved: Article 3 of the Constitution of India. Para 29 & 30 of Swarn Rekha Cokes and Coals Pvt. Ltd.
Issues: 
• Whether the industrial unit in the recognised State of Madhya Pradesh and under the new State of Chhattisgarh would continue to avail benefit of such exemption or deferment even after the bifurcation in both the states, irrespective of the location of the industrial unit which would be in one of the two states. 
 
Facts:
Brief of the Ratio relied upon
Swarn Reha Case
It was held that in the context of Bihar Recognization Act, the Supreme Court in Swarn Rekha case has held that despite the division of the erstwhile State of Bihar into two States, any law in force immediately before the appointed day, notwithstanding territorial references in them, shall, until otherwise provided by the competent legislature or other competent authority, be construed as meaning the territories within the existing State of Bihar before the appointed day. 
Ratio:
The three-judge bench of Supreme Court overruled the observation made in Commissioner of Commercial Taxes, Ranchi and Another v. Swarn Rekha Cokes and Coals Pvt. Ltd, (2004) 6 SCC 689, and observed that the creation of a new political State must be given full legal effect and the inter-state sales between the two successor states cannot be treated as intra-state sales. This would be contrary to the Constitution and even the Statute i.e, the Recognisation Act. Whenever a new state is created, there would be difficulties and, issues would arise but these have to be dealt within the parameters of the constitutional provisions and the law and not by negating the mandate of the Parliament which has created the new state in terms of Article 3 of the Constitution. Creation fo the new political State must be given full legal effect.

CHILD LABOUR AND ITS REGULATIONS IN INDIA

CHILD LABOUR AND ITS REGULATIONS IN INDIA

Child labour deprives children of their childhood and is harmful to their physical and mental development. “Child” as defined by the Child Labour (Prohibition and Regulation) Act, 1986 is a person who has not completed the age of fourteen years. The Government has taken various steps to prevent child labour in India like providing free education to all the children. However, child labour continues to be a problem in various parts of India due to poverty, lack of good schools, professional needs and the growth of the informal economy. Child labour leads to underdevelopment, incomplete mental and physical development, which in turn results in retarded growth of children.

VARIOUS LAWS RELATED TO CHILD LABOUR-

This is the 21st century but still, we come across prominent news regarding child labour. The news of factory hazards and mishappenings taking innocent children’s life flashed all around in the newspapers, then was the time, a need for legislation and statutes were felt to prohibit the malpractice of child labour. Today, there are sufficient statutes condemning and prohibiting child labour such as:

  1. The Child Labour (Prohibition and Regulation) Act of 1986- The Act prohibits the employment of children below the age of 14 years in hazardous occupations identified in a list by the law. The list was expanded in 2006, and again in 2008.

  2. The Factories Act of 1948- The Act prohibits the employment of children below the age of 14 years in any factory. The law also placed rules on who, when and how long can pre-adults aged 15–18 years be employed in any factory. Section 22 of the Act mentions that no young person can be shall be allowed to clean, lubricate or adjust any part of the machine which thereof would expose the young person to risk of injury from any moving part either of that machine or of any adjacent machinery. Section 23 of the Act defines that no young person is allowed to be employable on dangerous machines. Section 27 of the Act prohibits employment of children in any part of a factory for pressing cotton in which a cotton opener is at work.

  3. The Mines Act of 1952- The Act prohibits the employment of children below 18 years of age in a mine. Mining is one of the most dangerous occupations, which in the past has led to many major accidents taking the life of children is completely banned for them.

  4. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966- Section 24 of the Act defines that employment of a child under in this industry is strictly prohibited under this Act.

  5. The Juvenile Justice (Care and Protection) of Children Act of 2000- This law made it a crime, punishable with a prison term, for anyone to procure or employ a child in any hazardous employment or in bondage. This act provides punishment to those who act in contravention to the previous acts by employing children to work.

  6. Domestic Workers (Registration Social Security and Welfare) Act, 2008- Section 14 of the Act specifies that no child shall be employed as a domestic worker or for any such incidental or ancillary work which is prohibited under any law.

HAZARDOUS OCCUPATION-

Part III of ‘The Child Labour (Prohibition and Regulation) Act of 1986 provides for the ‘Prohibition of employment of children in certain occupations and processes’. The hazardous occupations are as follows-

  1. Transport  of passengers, goods or mails by railway;

  2. Cinder picking,  clearing of an ash pit or building operation in the railway premises;

  3. Work in a catering establishment at  a railway station, involving the movement of  a vendor or any other employee of the establishment  from one platform to another or into or cut off a moving train;

  4. Work relating to the construction of a railway station or with any other work where such work is done in close proximity to or between the railway lines;

  5. A port authority  within the limits of any port;

  6. Work relating to the selling of crackers and fireworks in shops with temporary licenses;  

  7. Abattoirs/ slaughter Houses;

  8. Automobile workshop and garages;

  9. Foundries;

  10.  Handling of toxic or inflammable substances or explosives;

  11.  Handloom and power loom industry;

  12.  Mines ( underground and underwater) and collieries ;

  13.  Plastic  units  and fiberglass workshops;

  14.  Employment  of children and domestic   workers or servants;

  15.  Employment of children in dhabas (roadside eateries), restaurants, hotels, motels, tea shops, resorts, spas or other recreational centers;

  16. Diving;

  17.  Circus;

  18.  Caring for Elephants.

If awareness about the cons of child labour is spread across the nation and strict policing of implementation of existing laws are done, India can combat the issue of Child Labour. Every individual must understand how important it is for the children to grow and study, as they are the ones who will shape the future of the nation.

 

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Supreme Court indicated that it might start hearing the appeals from August 2 in Ayodhya-Babri Masjid title dispute case
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Date - Sat, 20 Jul 2019 04:56 PM


OPPORTUNITY

DAILY LEGAL GK

LEGAL NOTES

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Evidentiary value of extra judicial confession

The needs of extra judicial confession actually creep in when the urgency of the matter exceed fair judicial process. These are made by the party elsewhere then before a magistrate or in the court. The word used by the accused in such a confession weight the higher value that such exact words would be necessary to give the court an impression of what the true confession was. It can be made before a Magistrate who is not especially empowered to record confession u/s 164 CrPC or before a private individual. However unlike other form of confession extra judicial confession u/s 26 has its own limitations. Extra judicial confession made before persons with whom the accused had no relationship could not be relied upon. In Tarseeem Kumar v. Delhi Administration, 1995 the accused was acquitted on the ground that the extra judicial confession, as claimed, was made before stock witness who was casually knowing the accused. Such a extra judicial confession lacks credibility before the court. In state of Haryana v. Ved Prakash 1994 it was alleged that the accused made extra judicial confession to a Doctor and another person, both the strangers and the same was tape-recorded as if it was anticipated and the tape-recorder kept ready. Such a statement was not a confession in nature because of denoted influence and involuntariness of the accused to state such fact whether true or not. The nature of the confession is always voluntary where accuse submit himself before the fair people in just belief. Where extra judicial confession was made to a stranger and the excat words were not recorded and corpus delicit i.e, substance or foundation of an offence was not available, it was held that the confession could not be relied upon.

In Gura Singh v. State of Rajasthan 2001 the evidentiary value attached to the extra judicial confession was explained;

            “it is settled position of law that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of the extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Further, relying upon the judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh the has again in Maghar Singh v. State of Punjab held that the evidence in the form of extra judicial confession made by the accused to witness cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by the way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be found on the evidence alone. In Kishore Chand v. State of H.P. this court held that an unambiguous extra judicial confession possess high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat, or promise envisaged u/s 24 of Evidence Act or was brought about in suspicious circumstances to circumvent section 25 and 26. The court is required to look into surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made the time and place of making it, the circumstances in which it was made have to be scrutinized.”

Thus, in examining the weight of evidentiary value of extra judicial confession it is necessary to check whether the accused was the free man while making such a statement which can in all the probabilities go against him and can criminalise him. 

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Rights of an Arrested Person

Cr P C gives powers to the police for arresting a person with such power Cr P.C also provides rights to an arrested person. The arrest should not only be legal and justified but it should be effected strictly according to procedure established by law.  Thus no person shall be deprived of his life and personal liberty except according to procedure established by law.  Rights of an arrested person are as follows –

1. Right to know the grounds of arrest – (Section 50(1)) – The foremost requirement of lawful arrest is notification of the reason of arrest with the charges against him. According to this provision, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or any other grounds for such arrest.

Case law :- Udaybhan Shuki vs State of UP,   High Court held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows arrested person to move to court timely for bail, opportunity to clarify any mistake, to begin to prepare his defence.

Re Madhu Limaye, Court held that detention becomes unlawful if the ground given were not proper and sufficient.

2. Right to be informed of the provision for bail – (Section 50(2)) – This section provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Information of arrest to a person nominated by accused – (Section 50 A) This section  provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person’s choice, about his arrest. He must also tell the place where the arrested person has been kept. Further he must note down the name and address of the person who was informed about the arrest.  It shall be the duty of the magistrate before whom such person is produced to verify that the provisions of this section were complied with

This section has been added by the decision of Supreme Court in Joginder Singh v. State of Punjab and DK Basu v. State of West Bengal.

 

4. Right to be produced before magistrate within 24 hours – (Section 57) – This section lays down that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.

In the case of Khatri (II) v. State of Bihar, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours should be met.  It is essential that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police.

5. Right to be examined by a medical practitioner (Section 54) – This section gives the accused a right to get himself examined by a registered medical practitioner. When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of’ the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice.

In case of Sheela Barse vs State of Maharashtra, SC held that even in cases were accused does not make any prayer it is duty of the magistrate to inform the arrested person about his right to get himself medically examined in case he has complaints of torture in police custody.

 

6. Right to consult Legal Practitioner – (Section 303)- It is mentioned that any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may have right to be defended by a pleader of his choice.

7. Right to free legal aid – (Section 304) – This section provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

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Cheating: Civil Liability Versus Criminal Liability

The crucial aspect to be noted in the law relating to cheating is the intention of the person accused of cheating. Most often, especially in-issues relating to commercial transactions, the disputes are difficult to separate in terms of their civil and criminal liabilities. As stated earlier, -the crucial difference between a criminal cause of action as against a purely civil transaction is the intention of the-person at the time when the cause of action arose or the alleged offence commenced. The important aspect is to examine whether at that stage, the accused deliberately or intentionally induced the other person to part with property or to do an act or desist from doing an act, or whether it was only subsequently that the dispute arose.

 

Nageshwar Prasad Sinha Vs. Narayan Singh AIR 1999 SC 1480 the respondent- complainant, Narayan Singh, an advocate, had entered into an agreement of sale of certain properties with the accused in Patna city. Part of the consideration had been paid as earnest money. Possession had also been delivered to the complainant as per the sale deed. However, the complainant had not made the full payment as agreed upon, resulting in delay in completing the legal formalities of the sale. The complainant had also filed a civil suit for specific performance against the accused. Thereafter, the complainant filed a criminal complaint alleging committing of offence under section 420 IPC.

 

The Supreme Court considered ill(g) to section 415. IPC and stated that the latter part of the illustration showed that:

At the time when the agreement for sale was executed, it could have in no event been termed dishonest so as to hold that the complainant was cheated of the earnest money, which they passed to the appellants as part consideration, when possession of the total land involved in the bargain was passed over to the complainant-respondent, and which remains in their possession. Now, it is left to imagine who would be interested in delaying the matter and completing the bargain when admittedly the complainant have not performed their part in making full payment.

 

Thus, the court held that the liability, if any, was only civil in nature and not criminal.

 

Breach of contract and cheating: The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct, but for which the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution under Sec. 420, I.P.C., unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed.

 

Cheating and extortion :The offence of cheating must, like that of extortion be committed by the wrongful obtaining of a consent. The difference is that the extortioner obtains the consent by intimidation and the cheat by deception.

Cheating, criminal breach of trust, and criminal misappropriation: Cheating differs from the last two offences in the fact that the cheat takes possession of property by deception. There is wrongful gain or loss in both cases and in both cases there is inducement to deliver property. In the case of cheating the dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, the person who comes into possession of movable property receives it legally but retains it. or converts it to his own use against the terms of the contract.

 

COMPARISON WITH ENGLISH LAW:

Dishonestly obtaining another’s property by deception with the intention of permanently depriving that person of his property is an offence under Sec. 15(1) of the Theft Act, 1968. This intent to deprive permanently is not an ingredient of the Indian Law. There is no deception unless a person is induced to believe as true what in fact is false. (An operative cause of obtaining the property). In this case certain person came to an elderly widow representing that they were tree surgeons and that they could provide her the “service for a certain money of felling her three deceased trees. She went to withdraw the money and also informed the police. They were arrested and held guilty of attempted deception.) Director of Public. Prosecution Vs. Ray, (1973) 3 AH ER. 131. Deception can also be in an implied form. The-most common example of which is a bouncing cheque. English Courts have held that when a man issues a cheque in favour of another he impliedly represents that he has an account at the bank, that the cheque would be honoured as he has requisite amount in the bank to his credit or he has an overdraft facility' or will immediately arrange it, so that the cheque does not bounce. If things turn out to be otherwise, the accused will have-cheated the other party by impliedly inducing him to accept a valueless cheque which he would not have accepted if he had been aware of the true state of facts is not free from difficulty on this score as decisions are conflicting and in some cases it has been held that if no express representation is made that he has the requisite amount in the bank or if no allegations are made in the complaint that bouncing of the cheque resulted in harm to the complainant in his body mind, reputation or property, the mere fact that the cheque was dishonoured would not make the accused liable for cheating. A contrary view appears to have been taken in Bholanath Arora case 1982 Cr LJ 1482 (Delhi) which is more in accordance with the views taken in the English decision than with the Indian cases cited above. It is felt that the view taken by the English courts on this point are more reasonable for even a fool would not accept a valueless cheque but for the implied representation that the cheque would be honored. It is hoped that law on this point would be brought a par with that of England if necessarily, by suitable legislation. (Necessary legislation was passed in 1988 by amending the Negotiable Instrument Act by providing that a dishonored cheque is a punishable crime.)

 

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