Law Zest-2

When Police does not register a FIR?

Steps to be taken
1.Go to ACP/SP of the area and also write an E-mail first, If they don't respond then approach them, Email can be used as evidence later.





2.If step-1 fails go to district court of the area and file a criminal complaint u/s 156(3) CrPC,This section magistrate power which directs the police to lodge an FIR to initiate the investigation

Law Zest-1

Bail not jail----

What will happen if a NBW is issued against the accused?
A non bailable warrant means that the accused may be arrested without any warrant and shall be produced in front of the court,the court shall not allow any kind of bail even if the offence is bailable.





steps to be followed to get out of NBW problem-:
1. Cancel the NBW by personal appearance of the accused by presenting an application for cancellation of NBW.
2. Bail application must be go along with it under sec 437 CrPC.
* However every thing depends on discretion of the court.

Do dead people have rights?Article 21 for Afzal Guru Dead Body??

Do dead people have rights?

In a recently reported interesting decision the High Court of Allahabad has enunciated the legal rights of dead persons. In a writ petition filed before the High Court drawing its attention to the appaling condition in a State Government mortuary the High Court examined this jurisprudential perspective of the rights of dead persons. The backdrop for testing this intriguing question was noted by the High Court as under;

The Supreme Court has interpreted Art.21 of the Constitution of India, guarantying protection of life and personal liberty to include right to travel abroad; right to privacy; right against solitary confinement; right to legal aid; right to speedy trial; right against handcuffing; right against delayed execution; right against custodial violence; right against public handing; right to health; right for doctor's assistance; right to shelter; right to development; right of shelter; right to healthy environment; right to live with human dignity apart from other rights as fundamental right included in it to give full meaning of right to life. These rights are inherent in the persons guaranteed to by the Constitution of India included in the right to life and personal liberty of a person, which cannot be denied except in accordance with the procedure established by law. The definition clause in Art.366 of the Constitution of India does not define a person. Section 3 (42) of the General Clauses Act defines a person to include any company or association or body of individuals, whether incorporated or not. Such a person would be a legal entity that is recognised by law as subject of rights and duties. The Indian Penal Code defines a person in Section 11 to include any company or association or body of persons whether incorporated or not.A person defined in Tomlins' Law Dictionary as man or woman; also the state or condition, whereby one man differs from another. A person in law may be either natural or artificial. Natural person are such as the God of nature has formed us; an artificial are such as are created and divided by human laws for the purposes of society and government, which are called corporations or bodies politic. Natural person means and refers to living human being including a man, woman or child as individuals of human race. The reference to a statutory provisions of the word person speaking artificially excludes firm, company, partnership, society, joined stock company or association, with various manners to describe them and their rights and liabilities. The expression person, however, cannot be detached from its context. But does it include a person who has died leaving his body in the physical form to be protected by the kith or kin, friends, society or the State, if no one else can be found?.

On these observations, the High Court declared the law as under;

The law has not so far defined a person to include a dead person. It, however, has some rights, which cannot be detached from it, even if the body is denuded of the life, which together forms a human being. The Indian Succession Act, 1923 provides for execution of the will of a person, after he has died. A person also has a right to protection of his dead body, to be mutilated, wasted or its organs to be taken out, except by the consent of the person, when he was alive, or on the consent of his kith and kin or the State if body is unclaimed, under the Transplantation of Human Organs Act, 1994. The word person may not be construed narrowly so as to exclude the dead body of a human being, who was the person, when alive, which is not claimed and which is required to be cremated or buried with dignity in accordance with the religious beliefs of the person, if such beliefs can be found by establishing his identity. The State is obliged in law to maintain sanitation to remove the body, which becomes dangerous, for the safety of the other living being for its adequate disposal. An unclaimed dead body has to be claimed by the State both for the purposes of investigation of the crime, if it was committed on the human being, who did not die naturally for scientific investigation or for research and medical education. The State is obliged in law both under its powers as a welfare state, and to protect the rights of such person in its extended meaning under Art.21 of the Constitution of India for disposal of a dead body for a decent and dignified cremation/ burial in accordance with the religion beliefs the man kept or professed.

...

We thus find that the word and expression 'person' in Art.21, would include a dead person in a limited sense and that his rights to his life which includes his right to live with human dignity, to have an extended meaning to treat his dead body with respect, which he would have deserved, had he been alive subject to his tradition, culture and the religion, which he professed. The State must respect a dead person by allowing the body of person to be treated with dignity and unless it is required for the purposes of establishing a crime to ascertain the cause of death and be subjected to postmortem or for any scientific investigation, medical education or to save the life of another person in accordance with law, the preservation of the dead body and its disposal in accordance with human dignity.

The Importance of IPR in the Business World

The Businesses in 21^st century is based on knowledge transfer, such that in order to survive in this competitive environment, The businesses must offer innovative ideas to their clients. So in order to pursue these ideas, the companies have to setup their own research and development centers in order to cater their business needs.

But without sharing those ideas the Industry will not progress, If the idea is confined to one particular firm in an industry, The industry as a whole would suffer. There arises a need for Knowledge transfer within the Industry. Now where there is a transfer there is an interest of the person who is transferring his knowledge, Now days knowledge is treated as an asset just like any other property, there are laws to protect the property like in India we have Transfer of property act, if we are treating knowledge as an asset then we need to insure that it is not infringed and so there comes the law for it i.e. IPR. Now there is a link which is formed between IPR and the business as the Ideas of the business and its conduct are also like assets they must be protected by the law Like Registration of property, there is provision of registration of knowledge named as patent.

If the businesses are transferring their ideas or innovation to other businesses then it should be like selling any other asset, the business must be compensated adequately, and in case of infringement the law must have teeth to penalize the inf-ringer  But law must treat everyone equal and should be made for the benefit of the mankind, Now in order to remove any monopolistic tactics of an inventor there are provisions in this IPR law itself, which compulsorily make the inventor or innovator to transfer the knowledge of coarse with compensation for the benefit of the mankind, Like in the case of bayers v Natco pharma, where a compulsory license was given to the Natco pharma as the inventor was holding a life saving drug.

In short knowledge transfer in businesses can only happen if there is IPR and if IPR is not there then inventor will confine his invention to himself, Also to protect the interests of the inventors and for the progress of the society, industry IPR is an essential element.

Why Amend IT Act

The IT act came into existence to protect the users from the crime related to electronic space, we know that India is a IT hub and a largest democratic country, That’s why we need IT laws .But Laws don’t keep pace with technology.

And at one point of time the technology surpasses and comes above the law, when this happens then the need to amend the law arises. This is what happened with the 66A IT act.

Let us first look at it what is 66A:

*[66A. Punishment for sending offensive messages through communication service, etc..- 

Any person who sends, by means of a computer resource or a communication device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic Mail Message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

The analysis of the current IT act gives an Idea that the 66A IT act is vague it talks about the information but how it gets transmitted to other person this is not mentioned as in the year 2000 there was only one way to transmit information i.e. through E-mails or may through few websites but the concept of blogging or “free speech” was not there at that time. Because information through speech is different than other form of information. For example-: we have Article 14 for freedom of speech but for intimidating someone with information passed through messages does not come under freedom of speech.

The 66A IT act certainly needs to be amended as IT act was passed in year 2000 at that time there was no concept of social media, the 66A act was intended to cover only email messages ,the messages of email cannot be compared with that of post on social media. The email messages are personal in nature and is generally intended to single person, But in social media you have an audience and the case of posting on the wall certainly comes under freedom of speech,  so the posting on the facebook wall must be equated with article 14, and same limitation must be applied to it rather than treating it as a message. So with current technological advancement there certainly need to amend the IT laws.

By: Nitish Banka

Dowry Death and Indian Families.

Dowry Death and Indian Families.

In today Indian society dowry is like a norm, we see that people spend lavishly on marriages. The root cause of the problem starts from here, The parents of the bride fulfil all the wishes of groom’s family like spending lavishly on wedding, gifting cars etc. when the bride reaches her matrimonial home, The selfishness of groom’s family grows .Now they demand more things like household items, property etc. Not in the condition to fulfil the infinite demands of groom family, The Groom family starts to harass the newly wedded wife so much and so grave that she thinks it’s better to end the life than to live it. In the end the lavishly solemnized wedding ends into tragic death of the bride. The cause of death is not natural that is for sure, it may be due to poison, suicide, even hanging on the ceiling, burns.

This the most common story of all the dowry related deaths .For this common story there must be a common Law on different footing as that of murder and culpable homicide as the cases of murder and culpable homicide demands much greater evidence and are much complicated. The dowry death is covered in sec 304 B IPC which is -:

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called" dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.- For the purposes of this sub- section," dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961 ).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Basic Ingredients-:

1.       There must be a death of the woman.

2.       The death of the woman must be in un natural circumstances.

3.       And there must be evidence that she was subjected to cruelty due to demand of dowry.

So there is a stark difference between section 299/300 and 304B as 299/300 has much wider scope and covers many motives, But sec 304B the main motive is Dowry due to which cruelty and harassment is performed on the bride and due to which she died.

Evidence in 304 B-:

For the protection of harassed party the evidence act comes to rescue for a crime to come under the 4 corners of evidence act, The material evidence is cruelty and harassment on the bride.

113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.

Now due to this section the burden of proof shifts to defendants, now they have to show that they have not done cruelty and harassment in order to evade this section.

Unlike in murder cases there is always presumption of innocence, The section of murder has to pass through quite stringent tests than that of dowry death. In dowry related death those people who are involved in cruelty(relatives) are held to be liable for the dowry death. 

U.S. to Expand Its Definition of Rape in Statistics

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WASHINGTON — The federal government is changing its longstanding definition of “forcible rape” in compiling national crime statistics — expanding both the definition of victims, to include males, and the types of sexual assault that will be counted in the Federal Bureau of Investigation’s Uniform Crime Report.

The new definition, which has been in the works for several months and was formally announced by the Obama administration on Friday, will replace a narrower definition of “forcible rape” with one that includes, among other things, forcible oral or anal penetration. The narrower definition, which is limited to vaginal penetration, has been used since the 1920s in tracking how often such crimes are reported around the country.

Victim advocacy groups have long criticized the old definition as outdated, saying it left out many crimes that were prosecuted as rape under state laws but that were not reflected in national statistics. Last year, an F.B.I. advisory committee of law enforcement agencies agreed to a Justice Department request to update the definition.

“It’s about more than a definition,” Lynn Rosenthal, the White House adviser on violence against women, said in a conference call with reporters to discuss the change. “It’s a change of our understanding of rape and how seriously we take it as a country.”

The old definition — “the carnal knowledge of a female, forcibly and against her will” — covered only forcible penetration of a woman’s vagina by a penis, and excluded many other kinds of sexual assaults that count as rape under more modern definitions.

For example, the outdated definition did not count forcible anal or oral penetration, the penetration of the vagina or anus with an object or other body part, the rape of a man, or the rape of a woman by another woman.

It also did not cover nonconsensual sex that does not involve physical force — like the rape of people who are unable to grant consent because they are drugged, very drunk or younger than the age of statutory consent in their state, a number that varies across the country.

The new definition, which was drafted with input from local and state law enforcement agencies based on more modernized rape laws, encompasses a broader range of such circumstances. Specifically, it covers the “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

Many states have long since adopted a more expansive definition of rapes in their criminal laws, and officials said that local police departments had been breaking down their numbers and sending only a fraction of the reported rapes to the F.B.I. to comply with outdated federal standards.

For example, the New York Police Department reported 1,369 rapes in 2010, but only 1,036 were entered in the federal figures. However, the police department in Chicago, which had nearly 1,400 reported sexual assaults in 2010, refused to discard cases that did not fit the narrower federal definition when reporting its crime statistics; as a result, the F.B.I.’s uniform crime report — which reported 84,767 forcible rapes that year — did not include any rapes from that city.

The question of what kinds of sexual assault are properly categorized as “rape” recently received greater scrutiny after the high-profile arrest in November of Jerry Sandusky, a former assistant football coach at Pennsylvania State University who was charged with sexually abusing several boys across a 15-year period.

Reported acts like some that Mr. Sandusky has been accused of — including allegedlysubjecting a 10-year-old boy to anal penetration — would not be counted in national rape statistics under the old definition, but will be counted in them under the new one. The change to the “rape” definition was already in process before the Sandusky case came to light, however.

Victim advocacy groups have called for years for the old definition to be revised, and in more recent years several prominent leaders of law enforcement agencies had joined that chorus. The movement gained force last summer when elements of the Obama administration — including the office of Vice President Joseph R. Biden Jr., who as a senator had been a chief sponsor of the Violence Against Women Act — proposed making a formal request to broaden the definition. The change was approved by Robert S. Mueller III, the director of the Federal Bureau of Investigation, and announced by Attorney General Eric H. Holder Jr.

The revision to the definition of rape is only for the purposes of deciding what kinds of incidents will be included in the “rape” category of the F.B.I.’s compilation of national crime statistics. It does not change the underlying criminal codes governing the prosecution of sexual assaults.

The F.B.I. said it expected that it would take several years for all of the 18,000 state and local law enforcement agencies around the country that voluntarily contribute data to its Uniform Crime Report to adjust their reporting to include the wider definition of rape, and that as they do so, the number of reported rapes is likely to rise significantly for several years running.

In the meantime, the bureau said it would ask local police departments to continue to break out their statistics for the number of rapes under the old definition so that it can still make a meaningful comparison in the trend of such crime rates when compared with previous years.

A version of this article appeared in print