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From Layman to Lawman
Solution for India’s Rape Problem
I have found one of the organisation in US which works for Rape related issues-:
Here is a glimpse of what they actually do, and we will find solution of our problem in there working-:
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A brief overview of one of the Rape Crises centre in Los Angeles About Us |
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What We Do The Rape Treatment Center (RTC) provides services for victims of rape 24 hours a day, 7 days a week … In 1999, the RTC established an innovative, state-of-the-art medical/forensic clinic to provide 24-hour emergency care and evidence collection services for victims of rape and sexual abuse in the immediate aftermath of victimization. |
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We offer training for police, prosecutors, schools, and other victim service providers…
To enhance the services victims receive wherever they turn for help, the RTC provides training programs for police, prosecutors, judges, hospitals, schools, mental health agencies, rape crisis centers, and other victim assistance organizations across the country.
We reach out to college campuses nationwide…
The RTC has a leadership role in helping to solve the widespread problem of sexual assault on our nation’s college campuses. The RTC published a landmark report that was sent to every college president in the country. The report outlines specific policies and programs colleges can adopt to reduce the incidence of sexual violence among college students and provide support for students who are victimized. Colleges throughout the United States have adopted the RTC’s recommendations.
The RTC initiated federal legislation that gives college students who are sexually assaulted on campus by other students important rights in campus judicial proceedings, including the right to know the outcome of the disciplinary hearings concerning their cases.
The RTC produced an award-winning film, CAMPUS RAPE, to inform students about stranger and acquaintance rape and effective prevention strategies. Over 10,000 copies of the film have been distributed to colleges throughout the United States.
The RTC produces educational posters, print ads, and television public service announcements for colleges, fraternities, sororities, rape crisis centers, and police departments nationwide.
We provide prevention education programs that reach tens of thousands of teenagers in public schools each year…
Adolescents are at high risk for rape and other forms of sexual abuse. The RTC is at the forefront of developing innovative programs to reduce the incidence of victimization in this age group.
RTC staff work on-site in high schools to inform adolescents about sexual assault and to help them develop and practice self-protection skills.
In addition, the RTC provides Roads to Respect®, an innovative awareness and prevention program for middle schools that addresses the problem of peer sexual harassment among students.
The RTC also publishes and distributes special educational materials for adolescents, including the magazine HOW IT HAPPENS®.
We created a model facility for children who are suspected victims of sexual abuse…
Stuart House, an innovative facility established by the RTC, remedies many of the problems in the traditional system that often revictimize these profoundly traumatized children, such as multiple, repetitive interviews in cold, institutional settings; low prosecution rates; and critical shortages in expert medical care and therapy services. The following stories illustrate some of these problems:
John, a seven-year-old boy was sodomized on multiple occasions by a neighbor. After the doctor discovered his victimization, John was interviewed by more than a dozen different professionals representing six different agencies. Eight months later, the case still had not been filed for prosecution.
Mary, a four-year-old girl, was sexually assaulted by a man who was an acquaintance of her family. She was given three different pelvic examinations at various medical facilities because of a lack of coordination among agencies and the unavailability of properly trained physicians.
Stuart House was created to solve these problems by looking at the system through a child’s eyes. Stuart House brings together — in one location — police, prosecutors, and child protection personnel from various agencies who work together as a team in a special environment designed for children. The close collaboration among agencies eliminates unnecessary interviews of traumatized children, ensures that crucial services are provided, and enhances evidence collection and prosecutions. Stuart House also has a comprehensive treatment program that provides individual, family, and group therapy services for child victims and their families, as well as a Court School for children who testify in criminal proceedings. Stuart House has received international recognition as a model program. It is one of the most comprehensive facilities of its kind in the country.
We provide consultation and public information…
The RTC serves as an information resource for the news media, television and film production companies, government agencies, citizens, and victim service providers across the country on issues related to rape and sexual assault, child sexual abuse, the impact of victimization, and crime prevention. The RTC’s 911rape online information service provides facts, resources, and information about rape and sexual assault for victims and the general public.
Criminal Amendment Act 2013
Criminal Amendment Act 2013
How to make a will?
What is a will?
A will is the testament of a person about how his property both movable and immovable is to be managed; It may also include those persons who may become beneficiaries in his property after his death. A will can only be made with respect to self-acquired property of the testator or pertaining to disposal of his vested share in the ancestral property, A will can only be made by any person who is above the age of 18. In the absence of will the property of the testator could be disposed off according to intestate rules.
Essentials for valid will?
1. Declaration In The Beginning: In the first paragraph, person who is making a Will, has to declare that he is making this Will in his full senses and free from any kind of pressure and undue influence and he has to clearly mention his full name, address, age, etc at the time of writing the Will so that it confirms that a person really wishes to write a Will.
2. Details of Property and Documents: The next step is to provide list of items and their current values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by testator. He must also state the place where he has kept all the documents if the will documents are under safe custody of the bank then testator has to write details about the releasing of the Will from the bank. Here it is the most important duty of the testator to communicate the above matter to the executor of the Will or any other family members, which will make the Will valid after testator death.
3. Details of ownership By The Testator: A testator while making a original Will should specifically mention that who should own his entire property or assets so that it will not affect the interest of the successors after his death. If testator wishes the name of the minor as beneficiary then a custodian of the property should be appointed to manage the property.
4. Attestation of the ‘Will’ : At the end, once the testator complete writing his Will, he must sign the will very carefully in presence of at least two independent witnesses, who have to sign after his signature, certifying that the testator has signed the Will in their presence. The date and place also must be indicated clearly at the bottom of the Will. It is not necessary that a person should sign all the pages of the Will instrument but he must sign to avoid any legal disturbances.
5. Execution of A ‘Will’: On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court will grant probate .A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. Thereafter, if no objection is received, the probate will be granted and It is only after that Will comes into effect.
Registration of ‘Wills’: According to the Section: 18 of the ‘Registration Act, 1908’ the registration of a Will is not compulsory. Once a Will is registered, It is a strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after. The process of registration begins when a Will instrument is deposited to the registrar or sub-registrar of jurisdictional area by the testator himself or his authorised agent. Once the scrutiny of Will instrument is done by the registrar and registrar is satisfied with all the documents then registrar will make the entry in the Register-Book by writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator. In case if registrar refuses to order Will to be registered then testator himself or his authorised agent can institute a civil suit in a court of law and court will pass decree of registration of Will if court is satisfied with the evidence produced by the plaintiff. A suit can only be filed within 30 days after the refusal of registration by the registrar. If the testator willing to withdraw the Will after the process of registration then a sufficient reason has to be given to registrar, if satisfied he will order for the registration of Will.
Probate: It is the copy of the will which is given to the executor together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been proved. The application for probate shall be made by petition along with copy of last Will and testament of the deceased to a court of competent jurisdiction. The copy of the will and grant of administration of the testator’s estate together, form the probate. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator. A probate is obtained to authenticate the validity of the will and it is the only proper evidence of the executor’s appointment. The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator. Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased.
‘Wills’ By Muslims Under ‘Mohammedan Law’: A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property. The Mohammedan Law restricts a Muslim person to bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by writing will, which will take effect after his death. A will may be in the form of oral or written if the will is in writing need not be signed if signed need not be attested. Acc to Shia Law if served bequests are made through a will, priority should be given to determination by the order in which they are mentioned a bequest by way of will. A Will Can be made by a person who is of sound mind, major and possessing a absolute title, in favour of a person who is capable of holding property except unborn persons and heirs. The revocation of will is possible only if the subsequent Will is made by the testator. A Muslim person who is allowed to bequeath 1/3rd of his estate, he can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs gives consent or only heir is husband or wife.
Statutes Relating To ‘Wills’: There are many laws which are dealing with the concept of ‘Wills’ as follows:
• Indian Succession Act, 1925
• Hindu Law (Hindus Personal Law)
• Muslim Law (Muslims Personal Law)
• Indian Registration Act, 1908
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.
MISUSE OF DOMESTIC VIOLENCE ACT
The domestic violence act hereinafter referred as dv act which was incorporated in the year 2005, The main purpose of this act is to prevent woman only woman from domestic violence, from the bare reading of the definition of the act we can see that the term “aggrieved person” includes only women, means only the men can be prosecuted not the woman, In the 21st century we treat women at par with men and there have been many incidences where a women are involved in insult, humiliation, verbal and emotional abuse to men. It is not a rare possibility that women are indulging in domestic violence against men but this is a reality, our constitution guarantees equality, means men and women must be equally treated, then why in dv act there are provisions for women only and not for men, why women are protected and why there is presumption that men is the only gender which can do cruelty, domestic violence on women, why not vice-versa.
The dv act has given an undue advantage to the women and it is the most lethal weapon which women can use against men to extort, exploit, and threaten men community just like terrorism. The dv act has provisions like right to residence regardless of legal right on the property, maintenance. The provision in law makes the law easily vulnerable to misuse. which is a fact statistics have shown that only 2% of all the cases have resulted in conviction and 98% of the cases are deemed to be fake and there is no provision in dv act if a fake case is lodged then there is no provision for punishment for the women. For the name of protection of women the prosecution of innocent men is against the rule of law, A women can misuse the law very easily like for example A man can be booked under the DV act if she feels that she has been insulted. Insult is a relative term, which is totally left to her discretion. Interestingly, if she insults and abuses him verbally or even physically, he does not have any legal recourse in this law, even the minor differences in matrimonial ties could invoke the provisions of DV act, moreover the procedure of law is governed by CRPC that means a man even making a very light insult to a women is treated like a criminal. if the case is false the reputation of man and his family is tainted and there are no steps or legal protection available to men to protect his reputation . In other words this law treats men like sitting ducks.
For taking easy divorce and maintenance the DV act is the first weapon used by the women even if she is not subjected to any such type of domestic violence, even if the matter is sub-judice the men are obliged to pay maintenance to women, this means that punishment for men start as soon as false complaint is lodged, which is against the principles of natural justice where there is presumption of innocence.
The fact is DV act has failed to attend the problems faced by women and men on subject of domestic violence, the law is often misused then to be used. The need of the society is to make more gender neutral laws which treat men and women equally in the cases of domestic violence and not to induce fear in the minds of innocent people like most of the men and give an extortion tool to the other gender. The DV act is gender biased on the face of it, The DV act needs to be amended with more gender neutral provisions to prevent its misuse and to achieve gender equality and fair justice.
In Kamtachi vs. Laxmi Narayanan The Hon’ble Supreme court has held that there is no limitation to file complaint under the DV act.
“An unjust law is itself a species of violence. Arrest for its breach is more so.”
Mahatma Gandhi
THE 40TH YEAR OF KESHAVNAND BHARTI JUDGEMENT
Since the inception of our constitution there have been doubts, vagueness about various provisions which are embodied in our constitution and supreme court has played a very significant role in interpreting these vague provisions and filling the void. And one of the most controversial provision was amendment of the constitution. The Amendment of the constitution has been there in Article 368 and basic purpose of this provision is to infuse flexibility of our constitution but bounds of this provision was not marked, However parliament was entitled to amend the constitution and also the procedure was also there in Art 368 but how much power is conferred in the parliament to amend the constitution was still under the shadow.
One of the important features are the fundamental rights, But they are part of the constitution. In Art 13 it is clearly mentioned that any law which abridges the fundamental right is void, But what about the constitutional amendment, The biggest question before the court for a long time was Can the fundamental rights can be amended and can be attenuated as per the wish and whims of the parliament? There have been different case laws to interpret this dilemma but none was concrete and in no time the decision of the Supreme Court got overruled by another.
Starting from very first amendment which was challenged by “shankari Lal V UOI “ It was contended in this case that the “Law” defined in Art 13(2) is the same law which is to be amended by art 368 and if this “Law” abridges the fundamental rights it is void. The supreme court made it clear that the word “law” in art 13(2) is the ordinary law, But the “la w” which is to be amended by art 368 is constituent law and is outside the scope of Art 13(2), This meant if any provisions which may be inserted in the constitution is in violation of any of the fundamental rights is not void. This also meant that the parliament has an Inherent power to amend the fundamental rights and can even remove the fundamental rights.
But 20 years later the supreme court overruled the Shankari Prasad judgement in “Golak Nath V State of Punjab” The Parliament has no power to abridge or amend the fundamental rights as fundamental rights are transcendental position under our constitution, and clear it’s stance that an Amendment is a law within the meaning of Art 13(2), The supreme court took a u turn on it’s earlier path and thus made two stance extremely opposite to each other.
Due to which the parliament in it’s 24th amendment parliament has inserted a provision in Art 368 “Nothing in Article 13 shall apply to any amendment made under this article” and hence overruled the Golak Nath judgement. Which was challenged by theKeshavnand Bharti case In this case the supreme court upheld the validity of 24thAmendment which again raised the serious question again up to what extent the whole constitution can be Amended ?Can the parliament take away the fundamental rights by amending it? The court was in opinion of taking a middle path.
1. While affirming the Parliament can amend any of the provisions of the constitution as per the procedure in article 368.
2. However the power to amend is limited keeping in mind the Basic features of the constitution.
3. The basic feature includes secularism, socialism, equality, Federal character and separation of power.
4. The basic feature also includes fundamental rights and directive principles.
The court further held that the provision inserted in 24th amendment is valid as it made what was implied in art 368 as express and does not abrogate any fundamental rights.
Making the decision more flexible the Supreme Court clearly mentioned that the fundamental rights can be abridged reasonably but cannot be abrogated. In order to preserve the basic features of the constitution the judgement was a Savior of our constitution. It preserved both rigidity and the flexibility, by inserting the bounds of “basic structure”. The “Basic Structure” hence forms a safety valve against the abrogation of the fundamental rights.
However some of the dissenting judges criticized the Doctrine of Basic Structure, They describe it vague as there was no subject matter that clearly specifies what “Basic structure” is and what is not?
However the landmark judgement of Keshavnand Bharti has kept the spirit of the constitution alive and prevented the misuse by the parliament against wipe off the constitution and thereby protecting the fundamental rights of the citizens.
By-: Nitish Banka
THE CRITICAL ANALYSIS OF NOVARTIS V CIPLA CASE VERDICT BY SUPREME COURT.
The Critical Analysis of Novartis V Cipla Case Verdict by Supreme Court.
In a landmark judgment that has the potential to change the direction of India’s pharmaceutical business, The Supreme Court denied that the drug Glivec manufactured by the pharma giant Novartis is qualified for getting patent in India.
A Brief about the Facts in Issue
Novartis a Swiss based pharmaceutical company filed a patent application in the year 1997 to grant patent to its drug named Glivec which was a critical drug used for the treatment of leukaemia on the ground that it invented the beta crystalline salt form (imatinib mesylate) of the free base, imatinib.
However at that time India was not in a position to grant patent to pharmaceutical products and agrochemical products, In the year 2005 in compliance with the TRIPS agreement India thereon started to grant patents in pharmaceutical drugs. Parliament introduced a significant and important provision to prevent ever greening and granting of frivolous patents— section 3(d).
Subsequently the matter of Novartis was taken up by the patent controller, CPAA and other generic companies filed pre-grant oppositions against Novartis patent application for imatinib mesylate, claiming, among other things, that Novartis alleged “invention” lacked novelty, was obvious to a person skilled in the art, and that it was merely a “new form” of a “known substance” that did not enhance the substance’s efficacy, and was thus not patentable under section 3(d).
Novartis was already granted Patent for the salt imatinib in the year 1993 in United States itself and the present application was based on one of the specific compound of the already invented salt.
The Application was rejected by the patent controller as the invention failed to comply with condition laid down by section 3(d) of the patent act.
This meant that the generic manufacturers were now free to manufacture the generic version of the drug.
But Novartis challenged the decision of patent controller in Madras High court in the year 2006 by filing number of writ petitions. Challenging to the constitutional validity of section 3(d) was that the use of the term “efficacy” in section 3(d) is vague and ambiguous, and therefore violates the equality provision (Article 14) of the Indian Constitution.
While dismissing Novartis’ writ petitions, the Madras High Court held: “We have borne in mind the object which the Amending Act wanted to achieve namely, to prevent ever greening; to provide easy access to the citizens of this country to life saving drugs and to discharge their Constitutional obligation of providing good health care to it’s citizens”.
Also held that the term “efficacy” was known in the pharmaceutical field to mean “therapeutic efficacy”. Therefore rejected the contention that it was vague.
After this the next phase of Litigation started in IPAB an appellate body of patent controller.
However IPAB overturned the Patent Controller’s findings on novelty and inventive step and held that the beta-crystalline form of imatinib mesylate was new and involved an inventive step.
But refused to grant patent as the Novartis failed to establish beta-crystalline form of imatinib mesylate exhibited significantly enhanced therapeutic efficacy over imatinib mesylate, the known substance .In contravention to section 3(d) of the act.
Challenging the IPAB’s order, Novartis approached the Supreme Court directly by filing a special leave petition challenging the IPAB’s interpretation and application of section 3(d) to its patent application. Subsequently, CPAA and Natco filed cross-petitions challenging the IPAB’s findings on other issues including novelty and inventive step.
Supreme Court Observations
The main question before the Supreme Court was that
1. Whether the invention qualifies the section 3(d) of the patent act?
2. Interpretation of section 3(d) of patent act?
3. Whether the invention qualifies for the test of novelty and inventive for the alleged product?
The main contention of Novartis was that IPAB admitted that the substance is an invention in its impugned order and then applied section 3d of the act, It was contended that if it is admitted that the product is an invention then section 3d would not be applicable as section 3d is applicable to incremental inventions or discovery and not on new invention.
It was also contended that ‘efficacy‘ test is only applied on known substance but not in the case of beta-crystalline form of imatinib mesylate which is a new substance.
The approach of Supreme Court was simple in this case-:
1. Court observed that the product was a new form of substance not an entire new substance. It has always existed in the original amorphous form. The product thus qualifies for the test laid by section 3d of the patent act.
2. This section says that just discovering a new form of a substance is not enough to grant a patent, if it does not enhance its “known efficacy”.
3. On interpretation of section 3d of the act, Novartis tried to argue that the physico-chemical properties of the polymorph form of the imatinib molecule, i.e. better flow properties, better thermodynamic stability and lower hygroscopicity, resulted in improved efficacy. The Supreme Court firmly rejected this contention holding that in the case of medicines, efficacy means “therapeutic efficacy” and these properties while they may be beneficial to some patients do not meet this standard. The Supreme Court also held that patent applicants must prove the increase in therapeutic efficacy based on research data in vivo in animals.
4. Simply if the invention does not qualify the test of Therapeutic efficacy the invention can’t be granted patent, Thereby the true intention of the section 3d of patent act is fulfilled by stopping the concept of ever greening in critical sectors, moreover the supreme court held the strict view that patent in the field of medicine specially in the cases of life saving drug must be granted with
full caution so that larger interest of the masses are not affected to an extent that they lose right to live.
Conclusion
The SC judgement is a big relief for those people who can’t afford the lifesaving drugs manufactured by profit guzzling big pharma giants, there is a simple sense of humanity which needs to be preserved by the human race only. I say what is the purpose of an invention when it is not affordable to the masses and cannot do good for mankind. Here we are talking about a drug which is a life saving drug priced way above the per capita income of the country. The Company in the name of patent prohibits those generic firms who are selling the generic version at an affordable rate, These Pharma big giants are corporates and claimed to have already made billion dollars and are becoming selfish thereby prohibiting people to buy the cheaper version and leaving only option to die because of the fact they are poor as if these Big pharma giants have a patent rights over their lives. I agree with the fact that patent is necessary to preserve one’s invention but that invention must be available to all at a rate reasonable to the masses then only the purpose of the invention would be fulfilled.
On the other hand the companies like Novartis, are doing just tweaking a single molecule call that whole thing as an invention and thus trying to obtain the monopoly over the lives of millions of masses.
The Supreme Court was clear that India is a developing country and cheap medicines are an essence for healthcare of 1 billion people. The Supreme Court has taken a right step and thereby prohibited the liberal approach in granting patents and thus filtering the genuine inventions with frivolous inventions. which allows these companies to make huge amount of inventions
Regarding the investment in innovation in India, This decision is a huge setback to the investors who are interested in investing in India for R&D, I say that they must be cautious that whatever they are inventing should be as per the Indian market conditions or else they will face great amount of dissatisfaction as in the cases of Novartis, Bayer etc. Indian patent environment is not like US and the EU, Rather it is more society dependent than inventor dependent which is exactly the way should be. Following the judgement Novartis had withdrew all its investments of research in India.
By-:
Nitish Banka
Legal consultant
9891549997
WHAT IS AN ATTEMPT??
Attempt comes under sec 511 of IPC.
There are 4 stages of crime:
1.Intention.
2.Preparation.
3.Attempt.
4.Commissioning of a crime.
So law does not recognizes any crime in forming an intention and to some extent prepratio,for preparation only preparation like raging war against nation (sec 122) and other criminal acts related to preparation.
So the question arises about attempt:
What is an attempt?
So the answer to this question is that:
An attempt is an act done in the prosecution of commissioning of an offence, but because of an intervening act against the will of an offender the act fails.
In Abhayanand mishra v state of Bihar it was stated that there is very thin line between attempt and preparation. To distinguish between these two the circumstances of the case play a vital role. Between attempt and preparation there is always a chance of retreat by an offender or might there is change in intention in not doing that offence, but as soon as the offender moves ahead and acts in the commissioning of crime but his attempt fails because of an intervening act then the case comes within an ambit of attempt(Sec 511).
Ingredients of sec 511 are:
1. mens rea.
2. Preparation.
3. An act done by an offender to satisfy mens rea.
4. An intervening act done to stop the offence against the will of an offender.
For example A decides to kill B(Mens Rea) He buys gun(preparation) goes to the B house(here is the window is open for offender to retreat back) he pulls the trigger pointing on B(Attempt/He enters danger zone and now the offence comes under 511,307(attempt to murder)).C comes and hits A and he misses B(Intervening act done by C against the will of A).
So if that intervening was not done by C it surely have killed B and A would be successful in its act.But failed act of A comes under 511,307 section.
Condonation of Delay in case Appeals
Condonation of Delay in case Appeals
Section 5 of the Limitation deals with condonation of delay in case of appeal. Since the limitation period for appeals is very short, this section is then introduced to meet the end of justice such that the purpose of justice is not defeated merely because there is “sufficient cause” is present due to which an appeal was not preferred. This section extends the limitation period.
The word “”sufficient cause” is an important phrase in this section. Since the section is not a matter of right for the party who pleads the condonation, but it depends on the discretion of the court.The court must be satisfied that the delay is caused due to a genuine reason. It is sufficiency of the cause which counts, and not length of delay – Expression “sufficient cause” should receive a liberal construction – As regards delay on the part of State, certain amount of latitude is not impermissible – Expression “sufficient cause” should be considered with pragmatism in justice oriented approach rather than technical detection of sufficient cause for explaining every day’s delay – Matter remitted to High Court to decide the criminal revision on merits – Suggestions made to prevent delay in State litigation – Administration of justice – [
STATE (NCT OF DELHI) VS AHMED JAAN. AUGUST 12, 2008]
Now the question arises what can be the “sufficient cause” which the court accepts-:
Illness it is the sufficient cause when it is proved without the reasonable cause that the appellant was not able to file an appeal.
Imprisonment-The imprisonment of the appellant can be a sufficient cause.
Ignorance of law can also be a one of the reason but it should be bonafide.
Mistake of fact-It should be real and unintentional.
Delay in obtaining copies of judgement can be sufficient cause also this reason is also covered in section 12.
Poverty, Infancy, Pardah
Mistake of Counsel-mistake by counsel which is not negligence.
But to enjoy the benefit of section 5 There should be no negligence due to inaction of the party is a prerequisite, also length of delay is not a matter of concern but reasonable explanation why the delay has occurred is the subject matter of this section.
In the end the court prefer liberal approach in favour of justice and favour only reasonable excuses to condone any delay in filing an appeal .However the court must be convinced beyond reasonable doubt that the delay was genuine and it must be condoned in favour of justice. Also there should be absence of negligence in order to make the cause reasonable.
By-:Nitish Banka(Legal Consultant based in New Delhi)
Mobile#-9891549997
Mail-:Nitish788@gmail.com