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Month: January 2023

Negotiation

What Is Negotiation?

Negotiation is the process which helps people settle their differences and disputes. It is the method by which amicable agreement is reached avoiding arguments.

The term “negotiation” can be interpreted as a direct or indirect type of communication in which parties with divergent interests deliberate on a joint action plan intended to end their disagreement. Any issue that needs to be resolved can be accomplished through negotiation, as can laying the foundation for a future relationship between two or more parties.

All facets of daily life, whether at the individual, institutional, national, or global level, exhibit some degree of negotiation. Therefore, it has been said that negotiation is the best method for resolving disputes. Given how commonplace negotiating is in daily life, it is not surprising to learn that it may be used in other dispute resolution procedures like mediation and settlement conferences.

But in India, Negotiation doesn’t have any statutory recognition i.e through way of legislation. Negotiation is self counseling between the parties to resolve their dispute.The word “negotiation” is from the Latin expression,”negotiatus”, past participle of negotiator which means “to carry on business”.”Negotium” means literally”not leisure”. Negotiation is a process that has no fixed rules but follows a predictable pattern. Negotiation is the simplest means for redressal of disputes. In this mode the parties begin their talk without interference of any third person. The aim of negotiation is the settlement of disputes by exchange of views and issues concerning the parties.

Scope Of Negotiation:

The history of negotiations can be directly traced to the monarchical age, when Kings would negotiate during active Wars to stop the killing. Following the two major World Wars of the 20th century, negotiations led to the founding of the League of Nations and then the United Nations.

Over time, the range of the negotiation has expanded. The parties concerned want to resolve the disagreement outside of court, which is the main goal of negotiation. The litigation procedure has its own drawbacks, including burdensome documentation, lengthy processing times, process delays, high costs, and adverse verdicts.

Because of such reasons alternative dispute resolution gained fame and with increase in fame of negotiation the demand for experienced negotiators also increased. Negotiation is considered to be alternative dispute resolution as an informal process which helps the parties to resolve that differences through mutual understanding and agreement.

Some situations in which negotiation is applicable:

  1. Marital Deadlock:Negotiation is a part of the pre-litigation procedure when a dispute involves a marital connection. Husband and wife’s feelings and egos in such disputes are frequently resolved through conversation throughout the negotiating process.
  2. Business Negotiation: The goal of business negotiation is to manage commercial and corporate issues. Making agreements, talking about the company’s revenues, team building, negotiating contracts with employees, and effectively addressing cases of customer and employee disputes are all necessary skills in this type of negotiation.
    In order to establish a business agreement, the art of negotiation is essential full stop business negotiation can be considered as a skill where in the big problems are drop down to small chunks and to every touch problem a solution is carefully found out.
  3. Contract-Based Negotiations:The conditions of the disagreement are negotiated by the parties before they enter into a contractual relationship. The most well-known kind of negotiation is this one, which resembles corporate negotiations in certain ways. After a violation of contract, negotiations can also be used to break the impasse.
  4. International Negotiations: Conflicts between nations have a tendency to escalate into scandals that need to be resolved right away. Due to their complexity, numerous steps, and involvement of bureaucrats, international negotiations typically take longer than other negotiation processes. The main goal of international organisations is to facilitate seamless interconnection and relationships between nations in a way that benefits the economies of all participating nations.

Characteristics Of Negotiation Process:

  1. Voluntary:The parties’ free consent is used to carry out the negotiation process. No one is compelled to take part in the procedure. The parties may freely accept or reject the conclusion of the negotiations. Additionally, it is revocable at any stage in the process. The parties may engage in direct negotiations or they may select any representative.
  2. Bilateral/ Multilateral:
    The process of negotiation can involve two or more parties. The parties can range from two individuals seeking to agree on sale of house to negotiation involving diplomate from dozens of States.
  3. Non-Adjudicative:
    Negotiation is an informal process which only involve the parties. The outcome is amicable reached by the parties together without any records to a third party through mutual understanding.
  4. Informal:Contrary to arbitration, bargaining is a non-binding process without established guidelines. The adoption of any rules is entirely at the parties’ discretion. In general, the parties reach consensus on matters like the process’s timing and venue. Other rules could include things like confidentiality, the frequency of negotiations, and the acceptable types of papers.
  5. Flexible:
    The scope of negotiation is dependent upon the choice of parties where determine not only the topic which will be the subject matter of negotiation but also if they will adopt a positional based bargaining approach or interest-based approach.

Stages Of Negotiation (Process)

Each negotiation has its own unique characteristics. Therefore, there is no such uniform and exclusive method of negotiation and bargaining session.

A structured approach has to be followed in order to come at a desired outcome. Therefore, various steps have to be followed in the negotiation process so that the parties with conflicting ideas and differences reach to an amicable solution.

The process includes following stages:

  1. Preparation: The appropriate preparation prevents pitiable performance is as crucial in negotiating as it is in further areas like presentations, businesses etc. Parties must be obvious with their objectives and must plan their approach towards its accomplishment. Additional, it is also vital to predict the other party’s come close to so that a structure can be organized for negotiation. Preparation also involves making decisions connected to the most vital issues and development one’s strategy.
  2. Discussion:
  3. Clarification of goals: Subsequent to preparation, the moment comes when parties assemble each other. For the duration of this stage,members from both side put forward their sympathetic of the situation. Key essentials of this phase are questioning,listening and illuminating. Parties concerned should try to appreciate each other’s point of view and should take remarks during the conversation to trace all points put forward linked to the case. Discussing each other’s hopes and prospect sets the eminence for the negotiation. Dialogue also involves asking questions and sympathetic the key points significant for attainment an agreement.
  4. Negotiate towards a Win-Win outcome
  5. Agreement
  6. Implementation of course of action

Preparation/ Initial Assessment

The process of negotiation begins with the signal of communication from one party to the other showing a willingness to bargain. As negotiation is a voluntary process it is of primary importance to know that whether the other party is interested in negotiation or not.

Some of the important factors should be ensured before moving on. They are:

  • if there is desire to resolve the dispute
  • the credibility of other parties
  • the willingness of parties to preserve or establish the relationship
  • whether there is disparity between the parties that it would be impossible to bargain equal or not
  • desirability of using any other form of dispute resolution system.

This stage involves ensuring the important facts of the dispute and its situation in order to clarify the position of both the parties. Before any negotiation takes place, a decision shall be taken as to when and where the meeting for negotiation shall happen and as to who will attend the discussion and negotiation sessions. During this time setting of a limited timescale can help prevent this agreement continuing.

Discussions

Once it has been established that negotiation is the appropriate course of action the further arrangement shall be made in that course with the other party included. The arrangement must include:

  • outlining the scope of negotiation
  • forming a time table as to whether or not that will be a fixed duration of negotiation
  • ensuring that all the interested parties are identified and have been consulted
  • choosing a location Which is feasible to both the parties.

During this stage the parties of other side put forth their case as they see it and try to understand the vice-versa situation. Clarification as to misunderstandings and disagreements shall be spoken and heard. An equal opportunity shall be granted to both the side.

Clarification Of Goals

From the second stage of discussion whatever goes interest and viewpoints of the parties of this agreement needs to be clarified. To clarification it becomes easy and possible to identify and establish a common ground post settlement. Clarification is one of the crucial parts of negotiation process is without a doubt the misunderstanding and disagreements are likely to continue which main result to cause problems and barrier in reaching a beneficial outcome.

This can lead to harmonizing and Reconcile the bearing and competing interest of the parties.

Negotiating Towards A Win-Win Situation

It is not always possible to reach to a Win-Win situation but it shall be the ultimate goal. this stage focuses on which can be termed as Win-Win outcome wherein both the parties may have the satisfaction that they have gained something positive through the process and both the parties may feel that their point has been considered.

Agreement

A proper agreement can be achieved only when both the parties understand each others point of view and interest are considered simultaneously. Every member involved in the negotiation process it is essential to keep an open mind so that an acceptable solution can be reached full stop such agreement needs to be clearly communicated so that no for the dispute can occur.

Implementation Of Action:

Once agreement is reached a proper course of action has to be implemented so that the decision can be carried out.

Right place & environment:

The negotiator has to choose right environment and familiar territory.Home territory is always preferred,unless there are any compelling reasons.One should see that persons its by the side of his greatest opponent. It is making the opponent a neighbor. It will be difficult to be belligerent with neighbour. Very sitting position and making rivals neighbours brings in new atmosphere and a thought provoking environment. One should not put a barrier of table between disputants. It is also suggested that a business lunch might be helpful.

Advantages Of Negotiation

  1. Party-based Dispute Resolution:
    One of the primary reasons for success of negotiation is that it only involves the stakeholders and does not involve any other party as a result of which the process remains a private affair and confidential. The parties decide the subject matter duration of process locations papers to be referred etc.
     
  2. Freedom of Parties:
    The parties are at freedom to choose agendas of the choice in addition to ensure your objective that negotiation is achieved.
     
  3. Consent of Parties:
    The negotiation process ensures that both the parties involved in negotiation have free will in participating and that no one is forced to engage in the process. this freedom also ensure that all the parties are at equal footing and there is no play of powers.
  4. No Third-Party Intervention:
    Unlike most of the radius system which requires a neutral third party for dispute resolution such is not the case with negotiation.
     
  5. Comfortable Process:
    Negotiation is an informal process. It is normally a speedy process whose decisions are not binding upon the parties. Latest a completely self-build process wherein the decision can either be accepted or rejected by the parties at their own win all the process can be withdrawn at any point of time.
     
  6. Improvement in Relations:
    Once the negotiation process is successfully completed that is a scope of improvement in the relation between the parties. And it also facilitates the process of negotiation for any further education.

Disadvantages Of Negotiation

  1. Power Tactic:
    It is not always necessary that the parties to negotiations are of equal stature and power. Therefore, in the absence of a neutral third party the party whichever is in the position to dominate the other uses the dominance over the consent of other party and come at an agreement. This leads to an unfair agreement which is ultimately useless.
     
  2. Impasse:
    Sometimes the difference is and disagreement between the parties may lead to a deadlock situation. And Impasse situation occurs during the negotiation process where at any discussion the parties are stand still and cannot have any for the discussion. This stage is very frustrating when no possible successful outcomes can happen. This generally happens when any one party is so rigid over its goal that no middle ground can be achieved. This ultimately results into a walkout situation.

     
  3. Backing Off:
    The unsuccessful negotiation leads to creation of bad relations between the parties along with termination of any business are contractual relations afterwards. It also happens that sometimes the parties lose confidence in the process of negotiation as a dispute resolution and consider the other options.
  4. Not all issues are Negotiable:
    There are various cases which involve multiple stakeholders for home negotiation process cannot be made applicable and such cases can directly go to the court for the decisions.

Conclusion:

The term’Negotiation’ can be defined as a direct or indirect form of communication through which the parties with conflicting interest deliberate a form of Joint Action aiming to resolve the dispute between them. Negotiation can be used either to resolve any existing problem or for a future relationship between two or more parties by setting a ground work. But in India, Negotiation doesn’t have any statutory recognition i.e through way of legislation. Negotiation is self counseling between the parties to resolve their dispute.

Stridhan

Meaning

The term Stridhan literally translates into women’s property. ‘Stri’ means women and ‘Dhan’ means property. It consists of movable and immovable property. The historical background of Stridhan is as old as the Hindu law.As per Hindu Law, Streedhan is whatever a women receives during her life time. Streedhan includes all movable, immovable property gifts etc received by women prior to marriage, at the time of marriage, during child birth and during her widowhood

Characteristic Features of Woman/s Estate:

she is an owner of this property in the same way any other individual can be the owner of his or her protperty, s two conditions are specified .

  1. she cannot ordinarily alienate the corpus, and
  2. on her death, it devolves upon the next heir of the last full owner

Her powers of disposal over the property are limited and it is these limitations which go to define the nature of her property/estate. these limitations are not imposed for the benefit of the revesioner. even when there are no reversion, the estate continues to be a limited estate.

The kinds of Stridhan in Schools of Hindu Law:

Dayabhaga

According to Dayabhaga, there are two kinds of Stridhan:

  1. Yautaka: Yautaka means all gifts given to the bride during the marriage ceremonies while she and her husband are sitting together.
  2. Ayautaka: All the gifts other than Yautaka fall in this category. It includes the gifts and bequests made by the father and other relations before the marriage. Also, the gifts and bequests made to a woman by relations other than the father after the marriage.

Mitakshara

According to Mitakshara, the property is divided into two categories on the basis of the women’s power of disposal over it.

  1. Saudayika Stridhan: The property obtained by a married or unmarried girl, from the husband, or parents, at the husband’s or father’s place, is called Saudayika. The property under Saudayika is at the woman’s disposal and her husband does not have any control over it. Thus, she may spend, sell or give it away at her own pleasure.
  2. Non-Sauyadika Stridhan: The remaining kinds of Stridhan fall under this category. A woman does not have the power to dispose of this Stridhan property without the husband’s consent.

Factors of Stridhan

The following factors determine whether a property is Stridhan or not:

  1. The status of the woman at the time of acquisition of property, i.e. whether she was unmarried, married, or a widow;
  2. The source from which the property was acquired; and
  3. The school of Hindu law to which the woman belonged.

Properties Under Stridhan

1. Gift and bequest from relations:

  1. This is the head of Stridhan.
  2. The gifts received during maidenhood, coverture or widowhood, by her parents and their relations, or by the husband or his relations.
  3. Such gifts are offered by will or inter-vivos.
  4. However, The School of Dayabhaga rejects the husband’s gift of immovable property as Stridhan.

2. Gifts and bequest from strangers:

  1. The gifts are given by the strangers (with inter vivos or the will) other than relations constitutes Stridhan.
  2. The gift received from strangers was under the control of her husband during her husband’s lifetime.
  3. On the death of her husband, they became Stridhan.

3. Property acquired by self-exertion and mechanical arts: By her own self-exertion, and acquired property through labor jobs, employment, singing, dancing, etc., or by any other mechanical art is Stridhan.

4. Property purchased with Stridhan: Any property purchased with Stridhan, or with the savings of Stridhan as well as accumulations and revenue from Stridhan, constitutes Stridhan.

5. Property acquired by compromised:

  1. Under Hindu law, if a woman who obtains property under a compromise will take it as a limited state.
  2. If she gives up her rights to Stridhan of property received under a compromise it would still be Stridhan.
  3. If a woman obtains a property under a family agreement, whether that property is Stridhan or not will depend upon the terms of the arrangement.

6. Property obtained by adverse possession: any property that a woman acquires by adverse possession at any phase of her life is Stridhan.

7. Property obtained in lieu of maintenance:

  1. The payments made to a woman in a lump sum or periodically for her maintenance, including arrears of such maintenance is Stridhan.
  2. all movable and immovable properties transferred to her are still Stridhan by means of an absolute gift in lieu of maintenance.

8. Property obtained by inheritance: A Hindu female can inherit property from a male or a female, she may inherit it from her parent’s side or her husband’s side.

9. Share obtained on a partition:

  1. Section 14 of the Hindu Succession Act,1956, states the share obtained on a partition is considered as Stridhan.
  2. Any property received on the partition after the commencement of the Act is her absolute property.
  3. And, any property she gets on the partition before the commencement of the Act will also be her property, However, only if she possesses it at the time of commencement of the Act.

Section 14 has abolished women’s estate by converting it into stridhan and woman’s estate and has converted existing woman’s estates into full estates. It has introduced fundamental changes in the traditional Hindu law of property of woman. The objects of this section are:
• To remove all disability of Hindu woman to acquire and deal with property, that is, all the property that she acquires will be her absolute property.
• To convert existing woman’s estate into full estate.

RIGHTS OF WOMEN OVER HER STRIDHAN OR ESTATE

The bride enjoys absolute, complete power and ownership over her entire Streedhan earned during her marriage encompassing both movable and immovable property. She also has the power to dispose of, alienate or give away as per her own discretion during her entire life and thereafter. Her husband and the other family members including the Karta have no control over the Streedhan. In the case of Ashok Laxman Kale vs Ujwala Ashok Kale[6], the court noted that it is usually practical and advisable that any girl who is particularly educated today must maintain a list of her Streedhan and should also become capable to look after her own Streedhan in terms of safety and security such as opening a bank locker in their own names for the purpose of storing jewellery and money instruments, property, etc., or keeping it under their lock and key.

Some of the precautionary measures to keep a track on the Stridhan could include:

  • Maintaining a note of all the gifts and assets received from family, husband’s family, friends, and other relatives before, during and after the marriage.
  • Maintaining proof of all the gifts and assets such as digital evidence in the form of wedding pictures, keeping the bills and envelopes of the gifts etc.
  • Maintaining a separate salary account in her name for keeping the salary.
  • Maintaining a record of the bank accounts and investments after investing her Stridhan.
  •  Ensuring the status and title of the properties granted or acquired from her Stridhan must be on her behalf and must be transparent. The investment made from the assets of the stridhan must be in her name.

Power of women over Stridhan

1. Power of Management: she alone is entitled to the possession of the estate and its entire income, and if she saves the income, the savings will also be her Stridhan. The Karta is merely a co-owner of the joint family, there being other coparceners, but she is the sole owner. She alone is entitled to the possession of the entire estate and its income. Her power of spending the income is absolute. She need not save and if she saves, it will be her stridhan. She alone can sue on behalf of the estate and she alone can be sued in respect of it.Sitaji v. Bijendra AIR 1964 SC 601. Any alienation made by her proper or improper is valid and binding so long as she lives. She continues to be its owner until the forfeiture of estate by her re-marriage, adoption, death or surrende

2. Power of Alienation:

She has limited powers of alienation i.e. she can alienate property only in exceptional cases. She can alienate the property for:

  1. A legal necessity, i.e., for her own need and for the need of the dependents of the last full owner,
  2. for the benefit of the estate, and
  3. for the discharge of indispensable religious duties such as the marriage of daughters, funeral rites of her husband, etc.

Under the first two heads her powers are more or less the same as that of the Karta. Restrictions on her powers of alienation are an incident of the estate and not for the benefit of the reversioners.Jaisri v. Rajdewan (1962) SCJ 578. As to the power of alienation under the third head, a distinction is made between the indispensable duties for which the entire property could be alienated, and the pious and charitable purposes for which only small portion of property can be alienated. She can make alienation for religious acts, which are not essential or obligatory but are still pious observances which conduce to the bliss of
her deceased husbands soul. Smt. Kamala Devi v. Mukund Ram AIR 1955 SC 481

3. Surrender:

She is empowered to renounce the estate in favor of the closest reversioner. It means that she can voluntarily accelerate the estate of the reversioner by giving away her own estate.

Three conditions must be satisfied:

  1. The first one is that it must be of the entire estate, though she may retain a small portion of her maintenance.
  2. The second condition is that the estate must be in favor of the nearest reversioner either male or female.
  3. The third condition is that the surrender must be bonafide and not a device of dividing the estate with the reversioners.

For a valid surrender, the first condition is that it must be of the entire estate Natvarlal Punjabhai v. Dahubhai Manubhai AIR 1954 SC 61, though she may retain a small portion of her maintenance Chinnamarappa Goundar v. Narayammal AIR 1906 Mad 169. The second condition is that it must be in favour of the nearest reversioner or reversioners, in case there are more than one of the same category. Surrender can be made in favour of female reversioners also. The third condition is that the
surrender must be bonafide and not a device of dividing the estate with the reversioners.Bhagwant Koer v. Dhanukdhari Prasad Singh AIR 1919 PC 75

4. Reversioners:

  1. If the female owner dies, the estate goes back to the heir or the heirs of the last owner as if the latter died when the limited estate ceased.
  2. Such heirs may be male or female are known as reversioners.
  3. The property of the female is passed on to the reversioners when her estate comes to an end on her death, but it can also come to an end even during her lifetime if she decides to surrender.

5. Right of Reversioners:

  1. The reversioners have a right to prevent the female owner from making wasteful use of the property or improper alienation.
  2. They can sue the woman holder for an injunction to restrain waste.
  3. They are in the capacity of a representative, they can sue for a declaration that alienation made by the widow is null and void and hence will not be binding on them after her death.
  4. However, by such a declaration the property does not go back to the widow nor does it go to the reversioners.

Application under allied laws :


A woman’s right to her Streedhan is protected under law. S. 14 of the Hindu Succession Act, 1956 R/w S. 27 of the Hindu Marriage Act, 1955 , “even if it is placed in the custody of her husband or her in-laws, they would be deemed to be trustees and bound to return the same if and when demanded by her”.
Sec. 12 of the Domestic Violence Act, 2005 provides for women right to her Streedhan in cases where she is a victim of domestic violence. The provisions of this law can be easily invoked for recovery of Streedhan.The magistrate may direct the respondent to return to the possession of the aggrieved person her Streedhan or any other property or valuable security to which she is entitled.
Again u/s 18(ii) of the Domestic Violence Act the law says that a woman is entitled to receive the possession of the Streedhan, jewellery, clothes and other necessary items. The term ‘economic abuse’ has also been provided under the Act.

Case laws:

  • In Sukhram v. Gauri Shankar [1968] 1 SCR 476 it was held that the widow was the full owner of joint Hindu family property as she became entitled to the interest her husband had under the Hindu Women’s Right to Property Act. The Court held that although a male was subject to restrictions on his interest in common Hindu family property, the widow, by virtue of the Act, was not subject to such restrictions.
  • In the case of Bai Vijia v. Thakorbhai Chelabhai, AIR 1979 SC 993 the court observed that there must be two conditions for the applicability of the sub-section of section 14, namely,

(I ) The female Hindu concerned must be in possession of the property;

(ii) Such property must be owned by her as a limited owner

In the case of Ramappa v. Chandangouda 1960 Mys 260, one of the widows of Hanamgouda sold the property of her husband to the first defendant. She was remarried in 1948. The plaintiff’s reversioner then filed a claim for restitution of ownership. It was rejected by the Court of Justice, but it was decreed by the first appellate court, which noted a legal necessity.

Conclusion:

The Hindu Succession Act’s enactment represents an important step in enhancing Hindu women’s property rights. This Act grants women several rights that they have been denied for many years. This is also a significant development for the defence of women’s rights because it now recognises a woman’s right to hold property and assets on her own. Historically, a woman’s ability to dispose of her Saudayika property was always constrained, while her husband retained control over the disposition of any non-Saudayika property. However, all of those limitations set by the old rules have been eliminated by The Hindu Succession Act, 1956.

Essential Commodities Act 1955

The essential commodities act 1955 is an act which was legislated back in 1955 when the country depended on foreign country imports for basic goods like wheat. There was a high possibility of hoarding of these commodities and so in order to stop accumulation and black marketing of these products the essential commodities act 1955 was brought up. It empowered the government to take decisions regarding the production, supply and distribution of the good and also regulate and decide the stock limit of the essential commodities.

Scope

The Act was enacted on February 12th, 1980, and there are provisions and punishments for persons who commit black marketing or hoarding.

  • The Act empowers the state government and central government or an official representative to detain individuals or groups committing black marketing or hoarding.
  • The Act empowers district magistrates as well as the commissioner of police to take legal action against offenders.

The Objectives of the Act


The objectives of the act are to provide for the control of
(i) Production
(ii) Supply
(iii) Distribution of trade commerce in certain commodities, in the interest of general public

Definition Section 2

The section 2 of this Act defines important terminologies used under the Act. What constitute essential commodities:
The phrase “essential Commodity” as per the Act means any of the following commodities (S-2(a)
(i) Cattle fodder, including oilcakes and other concentrates
(ii) Coal, including cake and other derivatives;
(iii) Component parts and accessories of automobiles.
(iv) Cotton and woolen textiles
(v) Drugs food stuffs, including edible oilseeds and oils.
(vi) Iron and steel, including manufactured products of iron and steel.
(vii) Paper including newsprints, paper board and straw board.
(viii) Petroleum and petroleum products
(xi) Raw cotton, whether ginned or unginned, and cotton seed.
(x) Raw jute
(xi) Any other class of commodity, the central government may notify from time to time.
As per the act. food crops includes crops of sugarcane. Sugar means any form of sugar containing more than 90 percent of sucrose, including sugar candy, khandsari or any sugar crystalline or powdered form

The power of central government to make regulation


The regulation that the central government can make may include the following:
(1) By way of grant of license and permits, either for the production and manufacture of goods or for storage, transport and distribution of goods, disposal, acquisition of essential commodities etc.
(2) For bringing under cultivation any waste or arable land;
(3) For controlling the price at which the essential commodity may be bought or sold;
(4) For prohibiting the withholding from sale of any essential commodity, ordinarily kept for sale;
(5) For regulating or prohibiting any class of commercial or financial transactions relating to food stuffs or cotton textiles which, in the opinion of the authority making order, are, if unregulated are, likely to be, detrimental to the public interest etc.


Imposition of duties on state government (Section 4)


As per section 4, The central government has been authorized to:
(1) Confer powers and impose duties upon the
(a) State government or
(b) Officers or authorities of central government or state government &
(2) Issue directions to the state government or officers or authorities thereof as to the exercise of powers or the discharge of any duties.

Punishment for Violating the Act

Offenders will be put on trial under the Essential Commodities Act, 1955 (10 of 1955) or any other as mentioned for the wrongful act. The trail shall be executed by a special court or a special designated court, and all offences under the Act are non-bailable. Any person or organisation found guilty of violating the act will lead to the detention of the business following with a jail term for the individual.

Absconding or Avoiding the Order

Any individual absconding or avoiding the order should be reported to the Metropolitan or Judicial magistrate. The punishment shall be implemented under 82, 83, 84 and 85 of the Code of Criminal Procedure. If proven guilty after the examination of records and books, a jail term up to a year will be handed out for minor offences. For major offences, the jail term can be extended up to seven years with fine or both.

Burden of proof in certain cases (Section 14)

Under this Act, it is said that the burden of proof shall always lie upon the person who possesses any essential commodity without having any lawful authority or permit or license.

Prosecution of action taken under the Act (Section 15)

This section provides that no prosecution or proceeding shall be instituted against the person who acted in good faith or in pursuance of the order made under Section 3.

Offences by the company (Section10)

When the above offences are committed by any company. Then every person who is in charge or responsible for the conduct and business of the company is held guilty for the offences and is liable for the punishment. For the purpose of this Section, the term ‘company’ generally includes a body corporate, a firm, or any other association of individuals.

Penalties (Section 7)

There are different kinds of penalties imposed upon different kinds of offences. 

OFFENCESPENALTIES
Contravene the  order made under clause (h) and (i) of the Sub Section (2)Imprisonment for a term which may extend to 1 year with fine
Contravene the other orders except above two.Imprisonment not less than 3 months which may extend up to 7 years with fine 
Fails to comply with the direction given under clause (b) of Sub-section (4)Imprisonment not less than 3 months which may extend up to 7 years with fine 
If any person convicted for offences under Section Sub-clause (ii) of clause (a) of Sub-section (1) or under Sub-section (2)  again convicted on the same provisionImprisonment not less than 6 months which may extend up to 7 years with fine 
If the offences convicted under Sub-clause (ii) of clause (a) of Sub-section (1) or under Sub-section (2)  does not cause any substantial harm to any individual or the general public.Imprisonment for the term of 3 months or 6  months whichever is required as per the case

However, it is provided that when any person liable for punishment successfully proved that the contravention has been taken place without his knowledge and he exercised due diligence at the time of contravention to prevent it then he would not become liable for any punishment for such offence.

State of Bombay v. Virkumar Gulab Chand Shah AIR 1952 SC335, In this case, it was established that the foodstuff includes raw material, things used in the process and things used in the preparation of food. Therefore, turmeric has been included in the scope of foodstuff.

S.Samuel, M.D., Harrisons v. Union of India 2004 SSC 256, In this case,it was decided that tea is not a foodstuff and merely a stimulant. It neither used in the preparation of food nor contains any nutritional value, however in general parlance also when a person takes tea doesn’t consider it as having food.

Conclusion

The Essential Commodities Act,1955 is one of the important laws of the country that applies for the protection of the interest of the general public. Under this Act, the Central Government possesses a wide range of powers to control the production and supply of essential commodities. Under this Act, the Central Government controls the price of the confiscated or seized essential commodities. All these powers are necessary to maintain the market.

However,the government can regulate these agricultural foodstuffs at times of war or any other calamity. This will ensure private as well as foreign investments in the agricultural sectors. There is a possibility of introduction of new technologies in the cold storage’s and food supply chain. There is a possibility that the governments aim to double the farmers income by 2022 might be possible because of the investment in the cold storage and the agriculture sector.

Role of Intellectual Property Rights in Biotechnology

Introduction 

The present Intellectual Property Rights (IPR) system is empowering commercialization of seed improvement, monoculture, the security of new plant assortments, microorganisms, and hereditarily changed living beings. As a result, our rich biogenetic decent variety is being dissolved irreversibly. We should discover a way to make an elective methodology that will acquire harmony between the formal Intellectual Property (IP) framework and maintainable parts of biodiversity. 

Associations that rely upon allowing in giving approvals pharmaceutical things ought to be instructed about the patent system so they can deal sensible and balanced approving understandings. Small and Medium Enterprises in the medical business may utilize the abundance of data contained in patent reports as essential info to their Research & Development, to get thoughts for additional development, to guarantee their “opportunity to work” or to discover.

Present-day structures, plant combination security, is normally less relevant to generally Small and Medium Enterprises in the medicinal branch. However, this could vary depending upon the item offering and technique of every association. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) gives for least standards and principles in regard to the accompanying classes of IPR.

Meaning of the Biotechnology

Biotechnology is an innovation that uses natural frameworks, living creatures or parts of this to create or make various items.

With the improvement of a hereditary building during the 1970s, inquire about in biotechnology (and other related zones, for example, medication, science and so forth.) grew quickly on account of the new probability to make changes in the life forms’ hereditary material (DNA).

Today, biotechnology covers a wide range of controls (eg. hereditary qualities, natural chemistry, atomic science, and so forth). New innovations and items are built up each year inside the regions of medication (advancement of new meds and treatments), farming (improvement of hereditarily adjusted plants, biofuels, organic treatment) or modern biotechnology (generation of synthetic compounds, paper, materials, and nourishment).

Biotechnology helps living beings to fight against the illness. At present, there are in excess of 250 biotechnology human services items and antibodies accessible to patients, numerous for already untreatable maladies. More than 13.3 million ranchers around the globe utilize rural biotechnology to build yields, keep harm from creepy crawlies and bothers and lessen cultivating effect on the earth

Uses of the Biotechnology

Ageing to Produce Foods

Ageing may be the eldest biotechnological revelation. More than 10,000 years prior to humanity was delivering wine, lager, vinegar and bread utilizing microorganisms, principally yeast. Yoghurt was created by lactic corrosive microscopic organisms in milk and shape was utilized to deliver cheddar. These procedures are still being used today for the creation of present-day nourishments. 

Modern Fermentation

In 1897 the disclosure that compounds from yeast can change over sugar to liquor lead to mechanical procedures for synthetics, for example, butanol, CH3)2CO and glycerol. Ageing procedures are still being used today in numerous cutting edge biotech associations, regularly for the generation of chemicals to be utilized in pharmaceutical procedures, natural remediation, and other modern procedures.

Nourishment Preservation

Drying, salting and freezing sustenances to thwart disintegration by microorganisms were penetrated at some point before anyone genuinely understood why they worked or even totally acknowledged what made the sustenance ruin regardless.

Isolates

The act of isolating to forestall the spread of ailment was set up sometime before the starting points of infection were known. In any case, it exhibits early acknowledgement that sickness could be passed from a tainted individual to another sound person, who might then start to have manifestations of the ailment.

Specific Plant Breeding

Harvest improvement, by choosing seeds from the best or most advantageous plants, to get another yield having the most attractive qualities, is a type of early harvest innovation. Ranchers discovered that utilizing just the seeds from the best plants would inevitably upgrade and reinforce the ideal qualities in resulting crops. In the mid-1860s, Gregor Mendel’s investigations on inheritable qualities of peas improved our comprehension of hereditary legacy and lead to practices of cross-reproducing (presently known as hybridization).

Intellectual Property Rights & Biotechnology

Advancements of the biotechnology have been underlined by the various departments of the biotechnology. Interestingly, most creating nations don’t have solid IPR systems and achievement instalments. Licensed innovation (IP) is key to the biotechnology business, and carries with it a measurement, encouraging community-oriented action, regardless of whether it is a medication disclosure or clinical or advertisement related preliminaries.

Basically, collective movement is the cooperative energy between India’s capacity to give conditions to explore, clinical preliminaries and advancement, innovative lead and capital accessibility in created countries. The fruitful interpretation of these cooperative energies into economically reasonable applications and attractive items basically relies upon the similarity of guidelines that manage the enlistment and insurance of intellectual property, beginning from the shared procedure.

Importance of Biotechnology

The Biological Diversity Act, 2002 (hence referred to as the “BD Act”) establishes a system for access to genetic resources and benefit-sharing derived from them. Obtaining IPRs from the use of biological resources in India is subject to authorisation by the National Biodiversity Authority, according to Section 6 of the BD Act, which took effect on July 1st, 2004. (hereinafter referred to as NBA).

It is considered to be a science relating to life and that includes the utilization of innovation, drugs, and various valuable things. Present-day use of the term incorporates hereditary building just as tissue culture and cell advance. The idea envelops a wide scope of techniques for changing living beings as per human purposes – returning to the training of creatures, development of plants, and “upgrades” to these through reproducing plans that utilize counterfeit determination and hybridization.

For the learning of basic normal methods, the ability to isolate and escalate a particular quality from the enormous number in a living being’s genome (the finished arrangement of qualities or hereditary material present in a cell or life form). Doubtlessly, the closeness of complete genome movements for an expanding number of living things vows to change the way by which these sciences – and the undertakings subject to them.

How Intellectual Property Rights can Protect Biotechnology?

Innovation is safeguarded by intellectual property rights. In biotechnology, the inventor may also be protected by intellectual property rights, but in order to do so, one must demonstrate the uniqueness and inventiveness of the invention. The innovation is discussed in Section 2(1)(j) of the Patents Act of 1970. It states that an invention must be novel in order for it to be granted and protected.

Here is one case of how protected innovation rights work in the medicinal services industry. Government assurance permits organizations to utilize the ® image with a trademark name to show that it has an enrolled trademark and that nobody else can utilize that name. More than one organization may sell a similar substance compound, which implies a similar medication, however, just one organization can legitimately utilize the trademarked name to advertise that medication.

For instance, while numerous organizations sell the energizer tranquillize fluoxetine hydrochloride, just Eli Lilly can call it Prozac. In like manner, no one but Roche can utilize the trademarked name Tamiflu to showcase a medication called Oseltamivir that is intended to forestall and treat flu. Trademarks aren’t simply utilized with drugs, in any case; they’re additionally utilized with medical clinic names, doctor practice names and different elements with particular marking. This is vital to organizations right now, where marking, promoting and pictures are focal parts of business tasks and vital situating.

As another instance, biotechnology organizations use licenses to secure their protected innovation rights to medicate conveyance gadgets. AstraZeneca possesses the licensed innovation rights to the Symbicort Turbuhaler, which is the medication budesonide/formoterol in a dry powder inhaler for the support treatment of asthma and COPD. Other human services organizations use licenses to secure their protected innovation rights to gadgets, for example, braces, prostheses, vision testing machines and the PC frameworks utilized in social insurance the executives.

Indian Pharmaceutical Industry

The Trademark Law Treaty (TLT) and the Patent Law Treaty (PLT) have come a long way since they were practically nonexistent before 1970 and are now a significant provider of goods and services for the human services sector, covering around 95 cents of the country’s medical needs. The industry currently holds the top spot among businesses based on science and technology and with sizable operating capacity in the complex industry of pharmaceutical development and production. Regarding innovation, quality, and the range of manufactured medications, developing nations hold very high ranks.

From straightforward migraine pills to modern anti-toxins and complex cardiovascular mixes, pretty much every sort of medication is presently made domestically. Worldwide organizations related to this area have invigorated, helped and initiated this dynamic advancement in the previous years and assisted with putting developing countries on the medical guide to the universe. The medical segment developing is exceptionally divided into enlisted elements with serious value rivalry and government value control. It has extended radically over the most recent two decades.

Governments’ Role in Biotechnology

The innovation strategy of the legislature and the Vision Statement on Biotechnology has been given by DBT to give a system and give vital heading to various divisions to quicken the pace of improvement of biotechnology in developing countries. This arrangement further intends to chalk out the way of progress in divisions, for example, farming and nourishment biotechnology, modern biotechnology, restorative and therapeutic drug, demonstrative biotechnology, bio-building, nanotechnology, clinical biotechnology, condition and intellectual property and, patent law, copyright law, trademark law, design law etc.

Licensing Biotechnology Inventions in India 

The IPO considers biotechnological developments to be identified with living elements of characteristic starting point, such as creatures, people including parts thereof, living elements of fake starting point, such as small scale life forms, immunisations, transgenic animals and plants, organic materials, such as DNA, plasmids, qualities, vector, tissues, cells, replication, forms identifying with living elements, forms relating to organic material, s, In accordance with Section 3 of the Indian Patent (Amendment) Act 2005, the accompanying biotechnological advancements are not regarded as patentable inventions.

  1. Living elements of the characteristic root, for example, creatures, plants, in entire or any parts thereof, plant assortments, seeds, species, qualities also, smaller scale living beings.
  2. Any procedure of assembling or generation identifying with such living substances.
  3. Any strategy for treatment, for example, therapeutic, careful, therapeutic, prophylactic indicative also, remedial, of people or creatures or on the other hand different medications of comparable nature.
  4. Any living substance of fake beginning, for example, transgenic creatures and plants, or any part thereof.
  5. Natural materials, for example, organs, tissues, cells, infections and all the way toward getting them ready. Basically natural procedures for the creation of plants and creatures, for example, a technique for intersection or reproducing.

Rights of Plant Varieties

PBRs are used to protect new plant varieties by granting limited commercial rights to promote another variety or its regeneration material for 20 to 25 years. The selection must be unique, specific, consistent, and stable.

This insurance prevents anyone from expanding or marketing the collection without the owner’s permission. However, there may be exceptions made for research and the use of seed saved by a rancher for replanting. According to the International Union for the Protection of New Varieties of Plants, the protection of Genera and a few designated species is covered in section 3 of the plant variety protection system.

Patents

A patent is a limited legal right granted to an inventor to prevent anybody else from producing, using, selling, or offering to sell the invention in the country that granted the patent right, as well as from bringing it into that country. Licenses in horticultural biotechnology may cover things like plant modification methods, vectors, qualities, and more. Furthermore, transgenic plants or animals are allowed in countries that authorise the protection of higher living beings. The inventions are protected by Section 3.5 of the Patents Act of 1970..

Conclusion

Obligations and resources would provide a crucial foundation for the development of skilled and effective medical use for the creation of developing nations. The medical sector in emerging nations will make sure that the vast population of this sub-landmass has access to basic pharmaceuticals at affordable prices and will also continue to provide employment for a sizable number of people.

The core curriculum should be designed to ensure that the newly certified drug specialist has the knowledge and skills necessary to start practising skillfully in a variety of contexts, including network and emergency clinic drug stores and the pharmaceutical business. Then, each person who does medicine should have a long-term commitment to continue with capable progress. master

To create and promote a model educational programme, it may be necessary to establish national schools of drug stores. Medication authorities need to learn how to investigate medication officials and conduct results checks. By using suitable preparation and compensation, drugstore calling should manage the potential for drugstore practise at system and crisis facility calm stores. Structures of Medicine into a regular game plan of prescription of things to seek universally inclusive human administrations in addition to, providing human administrations for all – especially for the welfare of the poor.

India has cruised through the venture from a condition of an all-out absence of IP attention to the current situation with the proactive quest for IP in the outskirts territories of innovation. Having released India’s IT potential in the later past, the opportunity has now come to bridle the colossal qualities and energies of the nations in the Biotechnology Sector.

Robbery

Robbery is the crime of stealing money or property from a bank, shop, or vehicle, often by using force or threats. The gang members committed dozens of armed robberies. The man was serving a sentence for robbery with violence. Synonyms: theft, stealing, fraud, steaming [informal] More Synonyms of robbery.

The word “rob” came via French from Late Latin words (e.g., deraubare) of Germanic origin, from Common Germanic raub “theft”.1 Criminal slang for robbery includes “blagging” (armed robbery, usually of a bank) or “stick-up” (derived from the verbal command to robbery targets to raise their hands in the air), and “steaming” (organized robbery on underground train systems)..

Section 390 of the Indian Penal Code defines robbery . According to this section robbery is the aggravated form of either theft or extortion because in all robbery there is either theft or extortion. The offence of theft becomes robbery if , in order to the committing of the theft , or while committing the theft , or in carrying away or attempting to carry away the property obtained
by theft , the offender , for that end ,voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint , or fear of instant death or of instant hurt , or of instant wrongful restraint .
The offence of extortion becomes robbery if , the offender , at the time of committing the extortion , is in the presence of the person put in fear , and commits the extortion by putting that person in fear of instant death or of instant hurt , or of instant wrongful restraint to that person or to some other person , and , by so putting in fear, induces the person so put in fear
then and there to deliver up the thing so extorted .

Explanation to the section clarifies that the offender is said to be present if he is sufficiently near to put the other person in fear of instant death or of instant hurt , or of instant wrongful restraint .

Essential ingredients of the offence of robbery are as follows :-

i) Offender committed theft as defined in section 378 in the process

ii) Offender caused or attempted to cause to some persons —
a) fear of death , or hurt or wrongful restraint ,
b) fear of instant death , or of instant hurt or of instant wrongful restraint ,


iii) Offender did such act either —-
a)in order to the committing of the theft , or
b) while committing the theft , or
c) in carrying away or attempting to carry away the property.

While, Extortion is robbery if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person, so put in fear then and there to deliver up the thing extorted. Sec. 392 deals with the punishment for robbery. Section 394 of the IPC prescribes the punishment for voluntarily causing hurt while committing or attempting to commit robbery.

IN WHAT CIRCUMSTANCES ROBBERY AMOUNTS TO DACOITY?


Section 391 of the Indian Penal Code provides that when five or more persons conjointly commit or attempt to commit a robbery , or where the whole number of persons conjointly committing or attempting to commit a robbery , and persons present and aiding such commission or attempt , amount to five or more , every person so committing , attempting or aiding , is said to commit the offence of dacoity. The offence of robbery takes the character of dacoity when it is committed conjointly by five or more persons . The words conjointly refers to united or concerted action of the persons participating in the transaction .

State of Maharashtra v. Vinayak Utekar,Cri. L.J. 3988 (Bom.) the accused snatched the gold buttons from the shirt of a person and ran away. While running away, he was caught by the informant to whom the accused gave a knife- blow. The Court held the accused guilty under Section 390 for the offence of robbery as it could not be contended that the accused gave knife blow only to get himself freed from the clutches of the informant and not to ensure the taking away of the gold buttons which was a stolen property.

Hardayal Prem v. State of Rajasthan, AIR. 1991 S.C. 269 two accused persons were charged for the offence under Section 302, 304 and 392 for murder and robbery However, one of them appealed against his conviction and sentence and he was acquitted by the appellate Court. The Court also ordered the acquittal of the other accused who had not appealed holding that it was the demand of justice to recognise his right of acquittal when the accused who had appealed was acquitted by the Court..

Harinder Singh v. State of Punjab,AIR. 1992 S.C. 1976 the gunman working Punjab State Transport Corporation robbed the cashier of his own corporation and locked him inside the room after causing him injuries. Thereafter he was absconding for about 212 months. The cashier had reported this incident to one of the prosecution witnesses immediately after this robbery. The gunman was held guilty of the offence under Section 392/397 and his conviction was upheld by the Supreme Court and appeal was dismissed.

WHEN EXTORTION IS ROBBERY?

Extortion becomes robbery when the offender at the time of committing the offence of extortion is in the presence of the person put in fear and commits extortion by putting that person in fear of instant death, instant wrongful restraint or instant hurt to that person or some other person and by doing so induces the person, so put in fear to then and there deliver the thing that has been extorted.

Thus, extortion becomes robbery when the following conditions are satisfied;

1) When a person commits extortion by putting another in the fear of instant death, wrongful restraint or hurt 2) Then the offender induces the person under such fear to deliver the property at that very instant; then and there. 3) The offender is in the near presence of such a person put in fear at the time of

WHEN THEFT IS ROBBERY ?

Theft is robbery when in order to commit theft or while committing theft, or while carrying away or attempting to carry away property obtained by theft, the offender voluntarily causes or attempts to cause to any person death, subject him/her to wrongful restraint or cause hurt or induce fear of instant death, instant wrongful restraint or causing instant hurt. Thus, theft becomes robbery when the following conditions are satisfied;

when the offender voluntarily causes or attempts to cause: 1) Death, wrongful restraint or hurt or 2) Fear of instant death, instant wrongful restraint or instant hurt.

And the above act(s) is done 1) while committing the theft 2) To commit the theft 3) While carrying away the property obtained by theft or 4) While attempting to carry away property obtained by theft

Punishment for robbery

Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.

CLASSIFICATION OF OFFENCE
Para I: Punishment—Rigorous imprisonment for 10 years and fine—Cognizable— Non-bailable—Triable by Magistrate of the first class—Non-compoundable.
Para II: Punishment—Rigorous imprisonment for 14 years, and fine— Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.

Conclusion:

Robbery is seen as the more severe variation of theft or extortion. Therefore, the elements of theft as described under Section 378 and extortion as specified under Section 383 must be present in transitively to constitute theft amounting to robbery or extortion amounting to robbery. However, there must be a component of immediate threat, immediate injury, or imminent death for robbery to become robbery from extortion or robbery from stealing. Therefore, it is crucial to grasp the distinctions between the three offences since, although they may seem similar to the layperson, they are distinct in the legal world.

Theft

The dictionary meaning of Theft is “the act of stealing”, specifically “the felonious taking and removing of personal property with intent to deprive the rightful owner of it.” The offence of theft is provided in Section 378 to Section 460, Chapter 17, Offence Against Property, of Indian Penal Code, 1860. Theft, in layman terms means the taking of a person’s property without the consent of the owner and Section 378 of the Indian Penal Code, 1860 (IPC) has provided a proper legal definition of theft.

It is defined under Section 378 of the Indian Penal Code. It states that any person with a dishonest intention to take any movable property out of the possession of a person without the person’s consent to whom it belongs move that property is said to commit theft. 

There are five main ingredients of theft:

  • Dishonest intention to take property;
  • Property should be moveable;
  • The property must be taken out of possession of another person;
  • Property should be taken without the person’s consent;
  • Property should be moved, in order to such taking.
  1. Dishonest intention to take property

It is the main ingredient of the theft. Any property which is taken will not amount to theft until the intention was dishonest. And the intention of the person who is taking the property was to cause wrongful gain to one person and wrongful loss to another person.Taking the definition of Dishonestly in Section 24 and Wrongful gain and Wrongful loss in section 23 together a person can be said to have dishonest intention if in taking a property, it is his intention to cause gain by unlawful means of the property to which the person who is gaining is not legally entitled.

Illustration: A owns a necklace, and B finds it in A’s house. The necklace is in A’s possession and if B dishonestly takes it. B commits theft. 

2. Property should be movable

To commit theft property should be movable. Property which is capable of being carried around is said to be a movable property. Any property or a thing which is permanently attached to the earth said to be an immovable property and will not be a subject of theft. But it will become a subject of theft when it is severed from the earth and capable of being moved without the consent of a person in whose possession it is.

Illustration: A standing tree which is attached to the earth is said to be immovable property. But it will become movable when it is cut down. 

Further, immovable property can be converted into movable property and once it has been converted such property becomes capable of stealing. In Avatar Singh v. State of Punjab AIR 1965 SC 666  Electricity was categorised as immovable property but stealing of electricity has been made punishable offence by the Indian Electricity Act, 1910 which was letter replaced by Electricity Act, 2003.

Case Law: Pyarelal Bhargava Vs. the State of Rajasthan 1963 AIR 1094 1963 SCR SUPL In this case, an office file from the chief engineer office was removed temporarily and was given to the private party for a day, it amounts to theft. The Hon’ble court held that to commit theft the loss needed to be permanent. Even property dispossession is temporary, a person taking the property intended to restore it is said to commit theft. 

3. The property must be taken out of possession of another person

Any property which is stolen should be in possession of another person. Until the property is removed no offence has been committed.If a property belongs to no one there cannot be theft that is res nullius (things belonging to no one). The offence of theft comes in to existence when property is removed from somebody’s possession without his consent. There cannot be a theft of a dead body buried in a cemetery or theft or other thing which belongs to no one. However, if a corpse lying out of the deceased’s house for being taken to buried ground, it is seized by some person and carried without the consent of the relatives of deceased and thrown into river, it is no theft under section 378 but it is an offence under Section 297(offering indignity to a human corpse) Indian Penal Code.

Illustration: Y finds a mobile phone which belongs to X on a sofa in X’s house. A mobile phone was in the possession X if Y removes it dishonestly, Y commits theft. Here mobile phone was in possession of X.

Case Law: Rakesh Vs. State of NCT of Delhi 2015, In this case, the Hon’ble court held that mere intention of the offender to take property dishonestly out of the possession of a person without his consent is no offence. Until the property is removed, no offence has been committed. The actual removal of property from another person’s possession is necessary, as mentioned in Section 378 of IPC.

4. Property should be taken without the person’s consent

If a property of a person in possession is taken without his prior consent (express or implied) will amount to commit theft. The offence will take place when the offender takes the property dishonestly and without the consent of that person. 

Illustration: S, being an R’s friend, enters the house of R and runs away with the ring which was on R’s table, without R’s consent. S has committed theft. As here R’s consent is not present.

Case Law :K.N. Mehra Vs. the State of Rajasthan AIR 369, 1957 SCR 623 In this case, the Supreme Court held that proof of intention to cause permanent deprivation of property or to obtain wrongful gain is not necessary for the purpose of proving dishonest intention. Absence of a person’s consent to whom the property belongs at the time of moving it and the presence of dishonest intention at the time of taking that property are the essentials to commit theft.

5. Property should be moved, in order of such taking

Moving a property with a dishonest intention is an initial stage of committing a theft. So, the property should be moved, to commit an offence. 

Illustration: A goes to B’s house, and sees a diamond necklace lying on the table. A hides that necklace at B’s place and thinks whenever he will visit next time. He’ll take it. Here, A commits no theft as the property has not been moved.

Punishment for theft is given under Section 380 of IPC.  Whoever commits theft shall be punished with 3 years of imprisonment or fine or with both.

Section 381: Theft by Clerk or Servant of property in possession of Master. Any Person being a clerk or servant commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Section 382: Theft after preparations made for causing death, hurt or restraint in order to the committing of theft.. Any person who commits theft, having made preparations for causing death or hurt or restraint or fear of any of these in order to commit theft or in order to the effecting of his escape after the committing of such theft or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years with fine.

Conclusion:

Theft in the broad sense and theft as defined by the IPC are similar to two separate paths. Even ownership is irrelevant to theft. Possession is all that is required for theft. If the first move is done dishonestly, a theft has already occurred. The stealing offence requires dishonest motives. Only material possessions are considered stolen. Consent is another element in the theft crime. Consent may be expressed or implicit. However, transporting any physical object without permission will be considered larceny.

Difference between Hacking and Phishing

Phishing and hacking are driven by similar intents as both are primarily used to defraud people in some way. However, phishing relies on people voluntarily providing information while hacking involves forcefully gaining unauthorized access to it, such as by disabling the security measures of a computer network.

What is hacking?

The act of obtaining unauthorised information is known as hacking. A hacker who gains access to an account can use it against the person or business and, in the worst situations, demand a ransom to release the information.

Chapter XI Section 66 of IT Act, 2000 particularly deals with the act of hacking. Section 66(1) defines a hack as, any person, dishonestly or fraudulently, does any act referred to in Section 43 is called hacking, and Section 66(2) prescribes the punishment for it. Hacking is a punishable offense in India with imprisonment up to 3 years, or with fine up to two lakh rupees, or with both.

Chapter IX Section 43 of IT act, 2000 prescribes a penalty for the damage to computer or computer system. It is a common thing which happens whenever a computer system is hacked. Black hats damage the system that they hack and steal the information. This enumerative provision includes a lot of activities.

Chapter XI Section 65 of the said act makes tampering with computer source documents an offense. Section 72 of the same chapter makes the breach of confidentiality and privacy, a punishable offense. This is the most common aftermath of hacking.

All the above-mentioned provisions mandatorize the need of mala fide i.e. intention to cause harm which is absent in ethical hacking therefore ethical hacking is not illegal in India.

What is phishing?

Phishing is a fraud where someone sends you links to take your sensitive data. It can be an email that seems to be from a bank or a link that appears to require you to check in to your account once more. By leading you to a website or link and forcing you to share your account credentials, the Sender in this situation gains access to your accounts and vital information.

Given that phishing involves a practice where data is extracted from the virtual world, it is treated as a cybercrime and as such, is subject to the provisions of the Information and Technology Act, 2000 ( (‘IT Act). The provisions dealing with the crime were incorporated via the 2008 amendment. The provisions that have been incorporated and regulate the crime of phishing are :

  • Section 43 – extracting or accessing data without consent
    Section 43 stipulates that if an individual accesses another person’s computer system or network for the purposes of downloading, accessing, disrupting, denying or corrupting the data contained therein, without the consent of the owner – then that person may be held liable under this provision.
  • Section 66 – Punishment for phishing
    The provision under Section 66 of the IT Act prescribes the punishment that can be inflicted for the act of stealing a victims account by a phisher. The punishment includes either imprisonment for a term that can exceed up to three years or a fine that can exceed up to five lakh rupees, or both, depending on the severity of the crime.
  • Section 66A – spreading false information
    The provision stipulates that the act of spreading information knowing that it is false, with the intent of causing some form of damage to the victim would be punishable. The provision additionally, outlines the offences that attract the punishment prescribed under the provision.
  • Section 66C
    The provisions under this Section forbids the use of passwords, electronic signatures, or any other feature which is a unique identification of any person. Phishers commit fraudulent actions while disguising themselves as the legitimate owner of the account and carrying out fraudulent acts.

What is the difference?

Hacking and Phishing, both are ways to obtain personal information; the difference is in the methodology. A phish occurs when a user is baited with an email, phone call, text messages and is tricked into “voluntarily” responding with information. Victims are tricked by individuals posing as known people by using forged phishing email or website and making them look official enough to make them act.

In a hack, information is extracted involuntarily, forcing the perpetrator to first take over your computer system, through brute force or more sophisticated methods, to access the sensitive data—that’s not the case with phishing.

In all fairness, there are ethical hackers—known as penetration or pen testers– who attack systems on behalf of owners to explore and document security weaknesses but they are different from the above.

Who are the victims?

Any individual, organization – small or large, across any verticals, and in any country can be vulnerable.  The Motives for such attacks can involve espionage—stealing secrets–or could be monetary. A prime target for cyber thieves are an organization’s servers–that’s where the data is stored, and where the pot of gold lies in the form of sensitive data.

Conclusion:

Phishing and hacking are both internet crimes. Phishing involves using fake websites or emails that claim to be from a trusted entity. They are designed to trick people into divulging their personal information, such as bank account details or online passwords. Generally Phishing and hacking, one needs to first understand hackers. One can easily assume them to be intelligent and highly skilled in computers. In fact, breaking a security system requires more intelligence and expertise than actually creating one.

Criminal Breach of Trust

The Indian Penal Code of 1860 under Chapter XVII provides for offences against property. Criminal breach of trust is considered as an offence against property under this Chapter and Sections 405 to 409 deals with the specific provisions concerning the criminal breach of trust.

  • Criminal: Criminal refers to something related to a wrong or crime or something prohibited by law.
  • Breach: Breach can be defined as breaking the agreement, violating rules and regulations, or contravention of some rule.
  • Trust: Trust can be defined as some kind of fiduciary relationship or a belief in something; to be honest and sincere. For example, the relationship between master and servant, lawyer and client, etc. 

The definition of criminal breach of trust provided under Section 405 can be construed as any dishonest use or disposition of property by one person upon whom the other person has entrusted his property and owing to this dishonest use or disposition the latter should have suffered breach of trust as the act must have been committed in discharge of such trust. For example, A may lend his car to his friend B to use it for transportation. B, instead, uses it for transporting illegal goods like ivory. Here, B is guilty of criminally breaching A’s trust.

Essentials of Criminal Breach of Trust

The following essentials must be fulfilled to hold anybody liable for the offence of criminal breach of trust:

  1. A person must be entrusted with some property or should have any dominion (control or authority) over the property.
  2. That the person:
    (a) must have dishonestly misappropriated or converted the property for his own use, or
    (b) should dishonestly use or dispose of that property or willfully make any other person to misappropriate the property.
  3. Such an act must be done in violation of any law of trust or any legal contract of trust.

Entrusting a Property
The word “entrusting” does not contain any legal definition under the Code. In general terms, it basically means handing over possession of some property onto another person. Generally, such transfer of possession does not alienate ownership or other proprietary rights.
Furthermore, “entrusting” property requires the creation of some fiduciary relationship. In other words, the person receiving the property must be in a legal position of trust. In other words, the person entrusting the property must only transfer possession over it for a specific purpose.
Dishonestly violating the Trust
The crux of this offence requires the person in possession of the property breaches trust with mala fide intentions. This is clear from the use of the word “dishonestly” in Section 405. Therefore, a dishonest intention is important; merely committing a mistake is not enough. Secondly, this dishonest intention must translate into misappropriation or misuse of the
property. Even its disposal is sufficient is such disposal violates a law or a legal contract regulating the trust.

Dishonest Misappropriation, Conversion for own use, or dishonest disposal of Property

There must be misappropriation, conversion for own use, or disposal of property to constitute a criminal breach of trust. Not only that, such misappropriation/ conversion/ disposal must be with a dishonest intention, viz., with an intention to cause ‘wrongful losses’ to the owner.

In the case,Jaikrishnadas Manohardas Desai Vs. STate of Bambay, it was held that criminal breach of trust can be inferred by proving that there was entrustment of property, or dominion over property, and the person who was entrusted with it failed to account for it.

Violation of direction of law or legal Contract

There must be a violation of the direction of law or a Contract. The direction of law refers to statutory as well as departmental directions, rules, practices, and directions issued by authorities in the exercise of their administrative powers

Punishment for Criminal Breach of Trust

Punishment for the offence of criminal breach of trust is provided under Section 406 of IPC. Therefore whoever commits the offence of criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

In certain special transactions like transportation of goods, some persons may be in positions of trusts. For example, they may work as carriers, or warehouse-keepers. The punishment for breaching trust under such cases includes imprisonment up to 7 years with fine.
Similarly, persons like office clerks and employees also enjoy a position of trust inherently under their duties. If they criminally breach that trust, their punishment also includes imprisonment up to 7 years with fine.
Even public servants, bankers, merchants, brokers, attorneys or agents enjoy positions of trust with respect to properties. For example, a person may entrust his property with his advocate under a power of attorney agreement. Breach of trust by such persons is punishable with higher imprisonment up to 10 years with fine.

Criminal Trust Breach Forms by Particular Group of People

Criminal Breach of Trust by Carrier, or wharfinger, or warehouse-keeper (Section 407)

Section 407 encompasses Criminal breach of trust by the following categories of persons:

1. Carrier: A common carrier is defined under the Carriers ACT of 1865 as an individual, enterprise, or company (other than the government) that conveys products for money from one location to another, through land or inland waterways, for all individuals (consignors).

2. Wharfinger: A wharfinger is defined as “one who owns or keeps a wharf, for the purpose of receiving and shipping merchandise to or from it, for hire”

 Warehouse-keeper: In ordinary usage, a warehouse keeper is one who is in charge of operating, storing and handling cargo deposited in the warehouse.

Criminal Breach of Trust by clerk or servant (Section 408)

Section 408 encompasses Criminal breach of trust by the following categories of persons:

1. Clerk: A clerk is a white-collar employee who does routine office activities. Recordkeeping, filing, staffing service counters, screening callers, and other administrative duties are standard responsibilities for clerical employees.

2. Servant: In the general sense, a servant is an employee who works for the master, however, does not hold any power to exercise authority on behalf of the master.

Criminal Breach of Trust by Public Servant, or by Banker, Merchant, or Agent (Section 409)

This is a graver form of criminal breach of trust as it involves persons who hold a special trust with the public at large or have enormous control over the property entrusted to them. Under the section, persons in such an arrangement are broadly identified as:

1. Public servant: Section 21 of the IPC defines ‘public servant’. Broadly, the term refers to a person holding any office or position in a public body.

2. Banker: A banker is a person who conducts banking operations such as receiving deposits, lending money, withdrawing funds, and exchanging money. In other terms, a banker is someone who works directly in the banking industry.

3. Merchant: A merchant is someone who trades in items made by other people, particularly in other countries.

4. Factor: A factor is a commission-based trader who receives and sells items on commission. A factor is a mercantile fiduciary who transacts business in his own name while keeping his principal undisclosed.

5. Broker: A broker is a person or company that facilitates transactions between buyers and sellers in lieu of a commission after the transaction is completed. A broker who also serves as a seller or a buyer is considered a principal in the transaction.

6. Attorney: The term “attorney” refers to a person who has been designated by another to do a task in his or her absence and who has the power to act in the place and on behalf of the person to whom he or she has been authorized.

 Agent:Sec 182 of the Indian Contract Act, 1872 defines an ‘agent’ as a person employed to do any act for another, or to represent another in dealings with a third person. An agent can be made liable under the section only when he or she dishonestly misappropriates or converts for personal use. It must be noted that an agent cannot be made liable for merely exercising control or taking decisions against the principal’s lawful directions as the agent is not bound by them.

Ram Narain Popli vs Central Bureau of Investigation (2003)3 SCC 641.In this case, the court defined the term ‘entrustment‘ of any property. Entrustment means handing over the possession of the property for some purpose that may not infer the proprietary rights.

Conclusion:

By going through Section 405 of the Indian Penal Code,1860 it is clear that there are two main ingredients of criminal breach of trust that are entrustment and dishonest misappropriation of the property. Therefore, in order to constitute an offence under Section 406 of the Indian Penal Code, 1860 it is pivotal that both the ingredients of the criminal breach of trust are fulfilled. The person handing over the property must have confidence in the person taking the property. so as to create a fiduciary relationship between them or to put him in position of trustee. The accused must be in such a position where he could exercise his control over the property i.e; dominion over the property. The term property includes both movable as well as immoveable property within its ambit. It has to be established that the accused has dishonestly put the property to his own use or to some unauthorized use. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust.


Abduction under IPC

Introduction


The literal meaning of abduction is the action of forcibly taking someone away against their will. Abduction is defined u/s 362 of IPC. This section merely gives a definition of the word ‘abduction’ which occurs in some of the penal provisions which follows. There is no such offence as abduction under the code, but abduction with certain intent is an offence. Force or fraud is essential.

Meaning :

Abduction in common language means carrying away of a person by fraud or force. In United Kingdom, Kidnapping is used for both minors and adults, whereas in India kidnapping is used for minors and abduction for adults. Section 362 in The Indian Penal Code – Abduction Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. In view of the definition, the word ‘force’ connotes actual force and not merely show or threat of force. It would be an offence to carry a grown-up woman by force against her own will even with the object of restoring her to her husband. [Allu vs Emperor, AIR 1925 Lah 512] The expression deceitful as used here, is wide enough to include inducing a girl to leave her guardian’s house on a pretext. It also implies the use of misrepresentation and fraud by act or conduct. (R. vs Cort (2004) 4 All ER 137 (CA)]

Examples – 

(1) If the intention is to cause secretly or wrongfully a person, section 364 IPC applies;

(2) If the intention is that the person abducted maybe murdered or so disposed of as to be put in danger of being murder section 364 of IPC applies;

(3) If the intention is to cause grievous hurt or to dispose of the person abducted as to put him/her in danger of being subjected to grievous hurt or slavery, or the unnatural lust of any person section 367 IPC applies;

In the case of Gurucharan Singh v. State of Haryana AIR 1972 SC 2661 the accused had put the victim under his pistol and threatened him. The accused then took her to the fields outside the village. The court observed that the accused in this case used an excess amount of force, and such use of force leads to abduction.

Essentials of Section 362

  1. Abducting by use of force or any deceitful means: – The abduction should be done by compelling or inducing a person by use of force or deceitful means. The expression force means consent obtain by force or use of force to commit abduction. Whereas, the expression deceitful means includes any misleading statement. The intention of the offender is the deciding element of the offence.
  2. Taking of a person from one place to another: – in order to commit the offence of abduction the movement of the abducted person is must and that to be with the use of force or any deceitful means. For example, if A enters the house of a girl B and lifted her in order to take her away, but when B raises alarm A dropped her and ran away, A will not be liable for abduction but he will be guilty for attempt to abduct.

In the case of Bahadur Ali v. King Emperor AIR 1923 Lah 158 a girl was kidnapped, although she tried to escape from that place, on the way she met the accused who made misrepresented her by saying that he is a police constable. The accused then fraudulently took her to his house and then demanded 600 Rupees from her mother. The court held the accused guilty of abduction and punished him.

Punishment:


Abduction is an auxiliary act, not punishable by itself, unless accompanied with some intent specified u/s 364-366. Hence, a particular purpose is necessary to punish an accused . Abduction is only an auxiliary act and is not punishable in it. Therefore, there is no general punishment for abduction in the Indian Penal Code. But some specific types of abduction attract the following punishments:

  • Abduction in order to murder- section, punishment 10 years + Fine
  • Abduction with intent to wrongfully confine a person- section, punishment 7 years + Fine
  • Abduction so as to compel a woman to marry- section, punishment 10 years + Fine
  • Abduction so as to subject a person to grievous hurt- section, punishment 10 years + Fine
  • Abducting a child less than 10 years of age in order to steal from a person- section, punishment 7 years + Fine

The distinction between Kidnapping and Abduction

BASISKIDNAPPINGABDUCTION
Age of the Aggrieved PartyFor the offence of Kidnapping, section 361 of IPC lays down that the age of the aggrieved person should be below 16 in case of males and below 18 in case of females.For the offence of Abduction, there is no provision of age. Any person who by force and deceit compelled another person to move from one place to another becomes liable for abduction
Removal from lawful GuardianshipDuring the offence of Kidnapping the aggrieved is removed from his/her lawful guardianship.In abduction, there is no concept of lawful guardianship.
MeansIn kidnapping, a person is taken away or is enticed from his/her lawful guardian. There is no such means of taking in Kidnapping.In abduction, certain improper means like force, fraud, deceit comes into play.
ConsentFor kidnapping, the consent of the person who is kidnapped is not necessary, it is only the consent of the lawful guardian that matters.For abduction, consent plays a vital role, if there is a presence of express and voluntary consent of the abducted person then such an act will not be a punishable offence.
Intention of the AccusedIn kidnapping, the intention of the person committing the offence is immaterial and irrelevant.In abduction, the intention of the accused plays a very vital role in order to ascertain whether he is guilty or not.
Continuity of the CrimeKidnapping completes as soon as the minor or the person who is of unsound mind is removed from the custody of his/her lawful guardian. Hence, it is not a continuing offence.Abduction continues from the time the person is removed till the time he is sent to another place. Hence, it is a continuing offence.

Conclusion:

Co-operation between legal systems, governmental agencies, and non-governmental organisations is crucial to combating child trafficking. To combat this issue, cooperation among states should be fostered through consistency in punitive measures. The national application of these international humanitarian tools and the endorsement of international instruments can achieve this consistency.

The number of abduction and kidnapping cases is enormous and is only increasing. There is a dire need to prevent these horrendous crimes and stop the culture of kidnapping and abduction from spreading, especially when it is done for marriages, forced sexual intercourses and forced begar etc. These children require safe release, medical, psychological and legal assistance as such acts take away the good days of childhood away from them as they are subjected to mental and physical torture.

In addition to the states working together to combat these offences, it is also important to foster international cooperation. Furthermore, it must be recognised that a criminal would engage in these behaviours while avoiding the law. Together with increased public awareness, non-governmental organisations and official entities must act to prevent these crimes.

    Kidnapping under IPC

    Kidnapping,Section 359 according to Walker, is the common name for the common law offence of carrying away, or secreting, of any person against his will,or against the will of his lawful guardians. It may be constituted by false imprisonment, which is total restraint of a person and his confinement without lawful authority or justification.

    The word “kidnapping” has been derived from the word ‘kid’ meaning child and ‘napping’ to steal. Thus the word literally means “child stealing”. Kidnapping under the code is not confined to child stealing. It has been given wider connotation as meaning carrying away of a human being against his/her consent, or the consent of some person legally authorized to accord consent on behalf of such person.

    Conditions, Of Kidnapping In IPC:

    India has comprehensive legislation to counter kidnapping,with the Indian Penal Code outlining 10 specific offences related to the purpose of the kidnapping. These are-

    Kidnapping a minor for purposes of begging;

    Kidnapping in order to murder;

    Kidnapping for ransom;

    Kidnapping with the intent to secretly and wrongfully confine a person;

    Kidnapping a woman to compel her into marriage;

    Procuration of a minor girl;

    The importation of a girl from a foreign country;

    Kidnapping in order to subject a person to grievous harm, including slavery kidnapping a child under 10 years old;

    Stealing or buying a minor for the purpose of prostitution.

    Scope: –


    The offence of kidnapping has a wide scope under the penal code as Sec. 359 and 361, IPC do not spell-out any territorial jurisdiction for committing the offence. Moreover, these provision is gender neutral which ensure the protection of male as
    well as girl child. The rig our of the law travels with the ward/ subject and any person involving himself or herself in the offence of kidnapping or procuring a minor girl at any point of time would also come within the purview of provisions of kidnapping

    Kinds of Kidnapping:

    Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship.

    Kidnapping from India: Section 360

    Whoever conveys any person beyond the limits of India without the consent of that person,or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India.

    Essential ingredients: The following are the essential ingredients of the offence under this section:

    1) Conveyance of a person: To convey means to carry from one place to another. The conveyance or carrying is a continuous process until the destination is reached. In the case of any offence under this section,the destination must be some foreign territory.

    2) Beyond the limits of India: these words in the section indicate that for an offence under it must be to some foreign territory.

    3) Without the consent of that person or of some person legally authorized to consent on behalf of that person: A consent given under a misapprehension of fact, is not true consent.

    Kidnapping from lawful guardianship: Section 361

    Whoever takes or entices any minor under sixteen years of age male, or under eighteen years of age if a female, or any person of unsound mind,out of the keeping of the lawful guardian of such minor or person of unsound mind,without the consent of such guardian,is said to kidnap such minor or person from lawful guardianship The offence under this section may be committed in respect of either a minor or a person of unsound mind. To kidnap a grown-up person, therefore would not amount to an offence under it.

    The object of this section is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons.

    Ingredients: This section has four main essentials:

    1. Taking or enticing away a minor person or a person of unsound mind.

    2. Such minor must be under the age of sixteen years ,if male, or under the age of eighteen years, if a female.

    3. Thetakingawayorenticingmustbeoutofthekeepingofthelawfulguardianof such minor or person of unsound mind.

    4. Such enticing away must be without the consent of the lawful guardian.

    Meaning of Taking or Enticing:
    There has been a lot of deliberation in Indian Courts from time to time on the connotation of the terms “taking” or “enticing” used in section 361. Although it is sufficient to show that there was either taking or enticing for the offence to be committed, the terms vary a lot in their literal and legal content. ‘Taking’ excludes the idea of force on the part of the kidnapper and
    means “to cause to go” or “to escort”.9 In fact, the kidnapper may take the minor’s (or the unsound person’s) consent and still “take” him/her out of the keeping of his/her lawful guardian. The connotation of the term “Taking” was discussed in an in-depth manner in the case of S. Varadarajan v. State of Madras. AIR 1965 SC 942

    ‘Enticing’ is inducing a minor to go of her own accord to the kidnapper. There is distinction between taking and enticing. The mental attitude of child is immaterial in the case of taking when the child is taken away. But the word ‘entice’ involves the idea of inducement or allurement. Biswanath Mallick vs State of Orissa, 1995 Cr.LJ 1416 (Ori)

    Punishment for Kidnapping: Sec 363

    Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine.