Indian Penal CodeQ- 1.Define crime, discuss its essential elements.Ans- it is very difficult to give a correct and precise definition of crime, Glanville Williams, admitted the impossibility of having a workable content based definition of crime, points out that the definition of crime is one of the sharp intellectual problem of law.Likewise Russell also admitted that to define crime is a task which so far has not been satisfactorily accomplished by any writer.Such a difficulty in ultimate analysis arises due to the changing nature of crime, an outcome of equally dynamic criminal and penal policy of a state.However some sociologists, perceiving crime as a social phenomenon feel that criminal law in a sense, protects certain social interests, and any act which threatens or poses threat to this interests is define as crime.In general terms crime is defined as an act punishable by law as forbidden by statue or injurious to the public welfare. It is very wide definition, any thing which is injurious to public welfare is crime, in modern complex society there are many things which are injurious or against the public welfare for example selling contaminated food molestation of young children, etc.Blackstone defines crime:An act committed or omitted in violation of a public law either forbidding or commanding it. But in this definition we have to understand what public law is?According to Austinian public law is identical with constitutional law. That being so the crime would then mean an act done in violation of constitutional law. The definition thus would cover only the political offence leaving aside a vast area of other criminal behavior.Blackstone also defines crime as violation of the public rights and duties due to the whole community considered as a community in its social aggregate capacity.Stephen slightly modifies this definition and presents it in the following form:A crime is a violation of a right considered in reference to the evil tendency of such violation as regards the community at large.Blackstone defines crime only the violation of public rights, while Stephen includes the element of violation of public duties as well.But for example a directors of a company fail to manage its affairs properly the mill is closed, workers are rendered unemployed, production of a commodity essential for the society is stopped. Will it not be an act which is injurious to public or the society?Can we prosecute the directors for any crimes? The answer certainly not then what is crime?A crime is those forms of legal wrong which are regarded by the law as being especially injurious to the public at large.`Stephen further defines crime is an act forbidden by law and which is at the same time revolting to the moral sentiments of the society.If we look up to the penal codes of different countries we find that there are certainly some acts which though not immoral are highly criminal and at the same time there may be acts which are highly immoral but not criminal.Austin: A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury; a wrong which is pursued by the sovereign or his subordinates is a crime.Thus according to Austin in case of civil wrong a State does not interfere until the wrong has been committed and proceedings are initiated by the injured party or by some other person acting on his behalf . in case of criminal wrong proceeding can be instituted by the sovereign or his subordinate along. There are many cases of crimes under the Indian Penal Code where prosecution cannot be launched unless a complaint is made by the aggrieved party. It is only in case of serious crimes that the State may on its own initiative take action to punish the wrong doer by initiation of criminal proceedings in its own name. for example in case of adultery under section 497 or criminal elopement under section 498 of the IPC a complaint by the person aggrieved is necessary. No court shall take cognizance of the offence under the section unless a complaint is made by the husband of the victim woman.Donald also admitted the same thing Crime is a social injury and an expression of subjective opinion varying in time and place.Conclusion: A pattern of human behavior prohibited by criminal law at a given time in a given society, thus, depends upon the specific features of its organization. A human conduct that, according to the policy-makers comes within the ambit of the prescribed sanctioned of a state of the purpose of criminal law can be labeled as Crime. An act or activities prohibited by Law (IPC).Elements of CrimeThe fundamental principal of criminal liability is that there must be a wrongful act- actus reus, combined with a wrongful intention-mens rea. This principle is embodied in the maxim, actus non facit reum nisi mens sit rea. Meaning an act does not make one guilty unless the mind is also legally blameworthy.

Actus Reus: Comprises the following:1. Human Conduct or an Activity.2. The Result of the Act Prohibition by Law.Illustration: A shoots at B using a rifle intentionally and B dies. A physical act that attracts criminal sanctions.Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act". Which, when proved beyond a reasonable doubt in combination with the mens rea,.Conduct: Result but not prohibition by law (than no crime) i.e. Solders kills the enemy.Mens Rea: No act per se (itself) is criminal, the act becomes a crime only when it is done with a guilt mind. The jurist determines the Mens Rea."guilty mind", produces criminal liability in the common law-based criminal law jurisdictions.Illustration. A blacksmith is seized by a gang of robbers and he forced to break the doors of a house for robbery to enter, and the robbers committed a robber y. Q- Whether the Act is voluntary or not.A- NoQ- Whether the accused have foresight of the consequences.A-YesConclusion- If there would be two Yes in the above citation then only it becomes crimes.Illustration: A while shooting at a tiger kills B, who was behind the bush , cancelled (hidden) from his view.

Intention to Kill (intention to caused death). Is a basic rule. Intention is to bring about a desired act. Presumption of Intention- Natural and probable consequences should be presumed.Consent- Intention to have sexual pleasure from a person without her consent.Knowledge Direct appeal to your senses. Here the probability is very high (against to commit the act against Law).Exp to purchase a stolen good. Theft-To taking possession without the consent of the owner. Motives- Intention and motives are two different thing in a crime. Motive may be to get anything, Intention to Kill the person. Motive may be good or bad, but intention is bad than it becomes crime. Motive leads to intention , and ulterior intention is motive. IN FIXING CRIMINAL LIABILITY MOTIVE MAY BE IRRELAVANT, BUT INTENTION IS MAINTAIN OR MAIN ELEMENT.Recklessness (irresponsibility)- Basic principle of fixing a criminal liability. Is the combination of : Foresight and Indifference. DOING SOMETHING WITHOUT THE KNOWLEDGE BUT THE FORESIGHT.Illustration:A steal food to feed the starving child.Motive- To save the life of a child- God.Intention To steal some food-Bad

Q-2-Mens Rea- mental Element of Crime.Mens Rea- One of the main characteristic of our legal system is that the individuals liability to punishment for crimes depends, among other things, on certain mental conditions. The liability of conviction of an individual depends not only on his having done some outward acts which the law forbids, but on his having done them in a certain frame of mind or with a certain will. Mens rea means a mental state, in which a person deliberately violates a law. Thus mens rea means intention to do the prohibited actThese are known as mental elements in criminal liability. Therefore an act in order to be a crime must be committed with a guilty mind,Actus non facit reum nisi mens sit rea, is a well know principle of natural justice meaning no person could be punished in a proceeding of criminal nature unless it can be shown that he had a guilty mind.In justice concept, actus Reus represents the physical aspect of crime and mens rea the mental aspect, which must be criminal and co-operate with the former. Actus reus has been defined as such result of human conduct as the law seeks to prevent. Mens rea which is a technical term generally taken to mean some blameworthy mental condition or mind at fault, covers a wide range of mental states and conditions the existence of which would give a criminal hue to actus reus. No act is per se criminal; it becomes criminal only when the actor does it with guilty mind. Development of Mens Reain the earliest time it was the fundamental presumption that a man in every case intended to do what he has done. The English criminal law began with strict criminal liability, and there was no clear distinction between the Tort and crime.Therefore the mental attitude of a person was an irrelevant consideration in so far as trial and punishment was concerned.But later on bodily punishment came as a substitute of the payment of damages. It was then the importance of mens rea or the mental attitude of a person, at the time of commission of crime was realized. With the passage of time requirement of mens rea as an essential element of a crime has firmly taken in its roots.Mans rea in its rootNow it is the combination of act ( actus rea) and intent mens rea which makes a crime. And the maxim Actus non facit reum nisi mens sit rea means act alone does not make a man guilty unless his intentions were so. Is a well know principle of natural justice.There can be no crime large or small without any evil intent. The responsibility in crimes must depend on the doing of a willed or voluntary act and a particular intent behind that act. Most conscious and voluntary acts are directed towards a particular result or consequence. When one acts to produce a particular consequence he is said to do that act with that intention.

Exceptions to mens rea.Crime = Voluntary + foresight of the consequences- Act done under compulsion.If the consequence not looked for the act may be voluntary but not intentional. For any criminal liability there must be a voluntary act, this preposition drive from the maxim-Actus me invite factus non est mens actus which means and act done by me against my will is not my act. This maxim support the doctrine of Mens Rea- for no person can be held liable for an act done under fear or compulsion. For example:A holds B and compels him at gun point to open the lock of Cs house. Here Bs act not a willed or intentional act.The basic requirement of the principle of Mens Rea is that accused must have been aware of all those elements in his act which make it the crime with which he charged.

Commission of OffenceOffence against state, police, nuisance, and stick liability etc mens rea is not requiring. Application of Mens Rea in Indian Penal Code

Technically the application of mens rea is not applied to the offences under IPC. Every office is very clear under IPC 1860. The definition not only states what accused might have done, that also states about the state of his mind with regard to the act when he was doing it. Each definition of the offence is complete In itself. The word Mens Rea are not use anywhere in IPC. However the equivalent words to those of mens rea in the IPC code very frequently such expressions are Dishonestly (S24),Fraudulently (s.25), reason to believe (s.26),voluntarily (s.39).Moreover Chapter IV of IPC General exceptions (s.76 to s.106) is provided the circumstances when options of criminal intent may be presumed.Case Reference1. Sankaran Sukumaran V/s Krishnan Saraswathi (1984 Cr Lj 317) SC held that Mens rea is an essential ingredient of the offence under section 494 (bigamy), where the second marriage has been entered in a bona fide belief that the first marriage was not subsisting, no office under this section committed.2. C. Veerudu V/s State of Andhra Pradesh (1989 CRLJ 52 (AP) Sc held thatu/s 498 (A) cruelty means willful conduct. Willful conduct includes mens rea.3. Banvarila Agarwal v/s Surya Narayan (1994 Crlj 370) SC held that.The intention of the accused must be dishonest and there must be mens rea.

Conclusion: in modern statutory offenses the maxim has no longer applicable and the statutes are to be regarded as themselves prescribing the mental element which is pre-requisite to a conviction. So mens rea is an essential element of crime, in every penal statue unless the same either expressly or by necessary implication is ruled out by the statues. Act to be voluntary:Act means a conscious or willed movement. It is a conduct, which results from the operation of the will . According to Austin any movement of the body, which is not in consequence of the determination of the will is not a voluntary act. It is only a voluntary act that amounts to an offence. Illustration:A fire at a wild animal but his fire missed and hit B who is behind the bush and B dies.Here A would not be liable because he has no intention to kill B, but on the other hand if A know B is there behind the bush then he will be liable.Intention + Act + Result = CrimeCrime = Vulnerary + foresight of the consequences. CONSTITUANT PART OF CRIME1. Actus Reus- An Act which is prohibited by Law. It is the physical part of a crime.2. Mens Rea- Mental element in crime. Intention. mens rea means a mental state, in which a person deliberately violates a law. Thus mens rea means intention to do the prohibited act. In Allrd v. Selfridge, it was held,.intention to do an act which is made penal by statute or by common law.

DESIRE IS CONSTRUCTED TO WILL AND THIS WILL FORMS MOTIVE AND THIS MOTIVE FORMS INTENTION AND INTENTION FORMS ATTEMPT AND ATTAMPTS FORM COMMISION OF OFFENCE.Actus non facit reum, nisi mens sit rea '- 'An act does not make a person legally liable unless the mind is legally blameworthy'.

Offence against state, police, nuisance, and stick liability etc mens rea is not require.

Q- Define Section 34, and Section 149.Or Differentiate between common intention and common object.OrExplain the law relating to joint offenders under the IPC.

OrExplain the facts and principles laid down in Barendra Kumar Ghosh V/s Emperor (AIR 1925 PC 1)

Ans-

There is a close resemblance between common intention and common object, though both of them belong to different categories of the office in criminal law.

(However joint offender is not defined under IPC, however various provisions of the IPC contemplated joint liability of each person who have committed a criminal act or offence in furtherance of common intention)

The principle of joint liability is defining u/s 34, and 149 of IPC.

Exceptions of Section 34 -When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Exceptions of S34:

1. Principle of Joint Liability:Section 34 of IPC explains the principle of joint liability, in doing the criminal act with common intention. This section attract the principle of joint liability. A joint liability of a person is determined according to the manner in which he becomes associated with commission of the crime. Normally a person may be participant in a crime in the following ways: When he himself commit a crime. When he share in commission of it. When he, with a view to the commission of crime, sets some third agency to work, that is he makes some third party his own agent for committing the crime. When he helps the offender, after the commissions of the crime committing the crime.

2. Several Person:in this section several person means two or more than two person, criminal act must be done by several persons.It is held in sachin jana and another v/s state of west Bengal that act done by two or more persons jointly and intentionally can be taken as if done by each of them individually himself

These word of this section deals with those cased when it is difficult to distinguish precisely the part taken by each of the participant, it is deem necessary to declare all person liable for the criminal act..

. Furtherance of Common Intention: S34 deals with the doing of separate acts, similar or distinct acts by several people. If the criminal act is done in furtherance of common intention, each person is liable for the result of such act. Once is prove the criminal act was done in furtherance of common intention of all, each person is liable for the criminal act as if it were done by him alone. Section 34 is mainly intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in further of the common intention of all or to prove exactly what part was taken by each of them. When such participation is establish section 34 can be attracted. Sc 3does not say- common intention to all nor does it says an intention common to all but it says in furtherance of common intention.

It is held in sevaram v/s state of UP that: the direct proof of common intention is seldom available. It can only be inferred form circumstances appearing from proved facts.

Sec34 does not create distinctive substantive offence; it is only a role of evidence.

Essential ingredient of S.34:

There must be a criminal act. The criminal act done by several person. The act is done in furtherance of common intention of all.

Cases:

Nandu rasto v/s state of Bihar:

Criminal conspiracy is the essential ingredient of common intention u/s34, of IPC. Participant in criminal act in some manner was also essential but physical presence at scene of occurrence is not always necessary.

Barendra Kumar Ghosh v/s Emperor:

It has been observed that though the accused did not played any role to kill the post master but he was standing outside to stand and wait , which prove he was helping in the criminal conspiracy.

Exception of Common intention:

Private defense: In Subramanian v/s State of Tamil Nadu, -That if the appellant acted in exercise of their right of private defense of property it cannot be said that they committed a criminal act in furtherance of a common intention because it is protected u/s 96 of IPc.

Section 149: every member of unlawful assembly guilty of offense committed in prosecution of common object- if an offense committed by any member of an unlawful assembly in prosecution of common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who ,at the time of the committing of that offense, is a member of the same assembly, is guilty of that offense.

Exceptions of Section 149:

Principle of vicarious liability. This section is the declaratory of the principle of vicarious liability of the members of an unlawful assembly for acts done in prosecution of common object of that assembly, all the members of that assembly will be vicariously liable for that offence even one or more, but not all committed the said office. Unlawful assembly: It is not necessary under any law that in all cases of unlawful assembly, with an unlawful object, the unlawful assembly must be unlawful object to attract this section. Also too attract section 149 of IPC, only member of unlawful assembly is not enough, the person should have understood that assembly as unlawful and was likely to commit any of the acts which fall within the purview of section 141 of IPC, and it must have been committed in prosecution of common object. Common object: the word Object means purpose or design to make it common, it must be share by all. It may be formed at any stage by all or few members. It may be modify or altered or abandoned at any state. Common object may be formed by express agreement after mutual consultation. The sharing of common object would, however, not necessarily require the member present and sharing the object to engage himself in doing an over act. Therefore this section is inapplicable in a case of sudden mutual fight between two parties, because of lack of common object.Essential ingredient of Section 149:

Unlawful assembly as contemplated my section 141 of IPC. Accused was a member of such assembly. The accused voluntarily joined that assembly. He knew the common object of that assembly. An office was committed by one or few member of that assembly. Offense must be committed in prosecution of common object of that assembly.

Case Ref:

Difference between Section 34 and section 149 of IPC

Base Section34Section 149

Nature of OffenseThis section is not a substantive office it is only a role of evidence. it always read with other substantive offices. Punishment cannot be imposed solely upon this section. For example if a person convicted u/s 302 r/w 34 of IPC can legally be convicted u/s 302 r/w 34.This section is a substantive offense, it also read with other sections. Punishment can be imposed solely upon this section Where as prosecution file a charge sheet u/s 149 the court me convert it to section 34 and impose conviction.

Principle elementCommon intention- the principle ingredient of this section is Common intention, any act which committed in furtherance of common intention attract this sectionCommon Object: the principle element of this section is Common Object, any act which committed in prosecution of common object. will attract this section

Range of Principle elementCommon intention within the meaning of section 34, is undefined and unlimited.Common object is defined and is limited to the five unlawful objects stated in section 141 of IPC.

Type of OffenseCommon Intention requires under this section may be of ANY TYPE.Common object require under this section must be one of the object mentioned u/s 141 of IPC.

NecessityPrior meeting of mind is necessary before wrongful act is done under this section. In Nanak Chand v/s State of Punjab Sc held that - common intention presupposes prior concert and meeting of minds, whereas a common object may be formed without that.Prior meeting of mind is not necessary under this section. Mere membership of an unlawful assembly at the time of committing the offense is sufficient. In the same case (Chand v/s State of Punjab)Sc held that there may be cases where the object of group is one, but the intention of participants differ.

LiabilityIt is a joint liability. A joint liability of a person is determined according to the manner in which he becomes associated with commission of the crime. It is of interpretative charater.It is a constructive liability and vicarious liability. all the members of that assembly will be vicariously liable for that offence even one or more, but not all committed the said office.

Number of PersonMinimum two people require attracting this section.Minimum five people require attracting this section.

Participation in CrimeActive participation in commission of crime is necessary.Merely membership of the unlawful assembly at the time of commissioning of crime would be sufficient for this section application, active participation is not necessary.

Q- Right of private defense extends under certain circumstances of causing deaths discuss.

Chapter IV (general exception), section 96 to 106 explain the provision of the Right of private defense. The right of private defense rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self defense.

Basic Principle: self preservation is the private instinct of every human being. Every man has the right of private defense his own body, property and the body and property of his nearer. This basic principle has been recognized in the IPC to give protection to the wrong doer, who commits a criminal act in the course of protecting his person, property, body and property of his nearest.

Russel: Justified the killing of an aggressor, against the exercise of the right of private defense for saving her body and property.

Bantham also justified the principle of self preservation in his principle of penal code, he admit that Magistrate (State) is not such capable to vigilance (save) every individual, nor the fear of law can restrain bad men as the fear of the sum total of individual resistance.

Right to private defense and IPC.

S.96, define that nothing is an office which is done in the exercise of the right of private defense, which lays done the general rule on the right of private defense. While S.97 which deals with the subject matter of the right of private defense of body and property and lays down the extent of the right of private defense, proclaims that every person, subject to restrictions contained in S.99, has a right to defend his own body and the body of another , against any office affecting human, and right to defend the property of his own and his nearer or any other person against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass. and S.99 lists the situation wherein the right to private defense of body as well as property is not available to an individual, s102 and s105 deal with commencement and continuation of right to private defense of body and property.Whereas SS.100,101,103,104 deals with the extant of harm (including voluntary death) that my be inflicted on the assailant in exercise of the right of body and of property respectively, while S.98 also provide the right of private defense against the lunatic person as well.

S100.Right of private defense of the body extends to causing death:

The right of private defense of the body extends to causing death is recognized by S100 of IPC, but this right is subject to the restrictions mentioned in the S.99 of IPC, to the voluntary causing of death or of any other harm to the assailant, when any one of the six situations stipulated therein arise in the committing of the offence of body extend to the causing of voluntary death of the actual or potential assailant if he through either of the specified assaults causes reasonable and immediate apprehension of death or grievous hurt in the mind of the accused. The categories of assault specified in the sections are:

1. Assault to kill.2. Assault to cause grievous hurt.3. Assault to commit rape.4. Assault to gratify unnatural lust.5. Assault to kidnap or abduct6. Assault to wrongfully confining a person and the accused cannot recourse to the public authority for his release.

Reasonable apprehension of Death or Grievous hurt Sufficient:

The first clause of s.100 stipulates that the right of private defense of body extends to causing death, when such an assault reasonably causes the apprehension that death will otherwise be the consequence of such assault.

the second clause of s100 stipulates that when an assault caused the reasonable apprehension that grievous hurt will otherwise be the consequence of such an assault, the right of private defense extends to causing of death.

In order to avail of such exception of criminal liability under this clause, what is require to be establish is that there was reasonable circumstances giving rise to reasonable apprehension of either death or grievous hurt. Such an apprehension of death or grievous hurt must be real or reasonable and not an illusory or imaginary. It must be present and imminent and not remote or distant one. The reasonable apprehension of cause of death or grievous hurt will be caused to him , however is required to be judged from the subjective point of view and it cannot be subject to microscopic and pedantic scrutiny.

The accused must be bona fide fear that death or grievous hurt would otherwise be the consequence of the assault if he done not defend. It is not essential that actual injury should be caused by the aggressor or the victim before the right of self defense can be availed of. Person apprehending danger is not required to wait for sustaining injury. Mere apprehension is sufficient to exercise his right of private defense.

Exception of Right to Private Defense

Right to private defense not available to aggressors.

There is no right to private defense can be claimed by the aggressors. It is available against any offense and therefore, where an act is done in exercise of the right of private defense, such act cannot rise to any right of private defense in favor of the aggressor in return. Chacko v/s state of kerala.

Quantum of injuries:

If a person exercising the right of private defense has the better of the aggressor, provided he does not exceed his right because the movement he exceeds it he commits and offense. The injuries given to the aggressor by the accused must be in propositioned the assault.

Free fight:

There is no defense available of right of private defense when there is a free fight between two parties or individual, one another using unlawful force against each other. Both the sides mean to fight from the start. And they have the same intention to give the injuries to other.

No right of private defense available in the following condition also:

Against lawful acts. Unlawful assembly.

Case Laws.

Vishwantha v/s Stateof UP AIR 1960 SC 67

SC held that appellant had the right of private defense of person under the fifth clause of s.100 IPc and did not cause more harm than was necessary and acquitted the appellant.

State of UP v/s Zalim and other.

SC held that mere apprehension of death is not the ground of right to private defense.

State of UP v/s Chattur sing

Honble court held that accused intention and premeditated notion to murder is clear and accused is liable to be convicted to be murder.

Conclusion:

Right to private defense is essentially a defensive right circumscribed by the IPC and it is available only when the circumstances clearly justify it. It is exercised only to repel unlawful aggression and to punish the aggressor for the offence committed by him. It is basically preventive in nature and not punitive. It is neither a right of aggression nor a reprisal. Its exercise cannot be vindictive or malicious.

Discuss the conditions where culpable homocide does not amount to murder.orDiscuss the law relating to grave and sudden provocation as laid down in IPC and state the extent to which it mitigates the responsibility of the accused for the offence of murder. Refer to case law to write your answer.

Is grave and sudden provocation a defense to charge of murder? If so under what circumstances and to what extent?

Culpable homicide is genus, but murder is its species. Elucidate?

Discuss the theory of grave and sudden provocation, and explain how it affects the liability for culpable homicide not amounting to murder.

Ans- Chapter XVI- section 299 to 304 dealt with culpable homicide and murder.

Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Ingredients of S.2991. With the Intention to causing death.2. With the intention of causing such bodily injury as is likely to cause death.3. With the knowledge that the offence likely by such act to cause death.

Section 299 defined Culpable Homicide in simple way. Culpable homicide are of two kinds:

I. Culpable homicide amounting to murder.II. Culpable homicide not amounting to murder.

Culpable homicide is the Genus, and murder is the Species. All murder are culpable homicide but not vice-versa, it has be held in Nara singh Challan v/s Sate of Orrisa (1997). Section 299 cannot be taken to be definition of culpable homicide not amounting to murder. Culpable homicide is the genus, section 300 defines murder which means murder is the species of culpable homicide. It is to be noted here that culpable homicide not amounting to murder is not defined separately in IPC, it is defined as part of Murder in the section 300 of IPC.

Section 300 Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, orCulpable Homicide is not amounting to murder:

Exception 1 to 5 of s300 of IPC defines conditions when culpable Homicide is not amounting to murder:I. Provocation.II. Right of private defense.III. Public servant exceeding his power.IV. Sudden fight.V. Consent.

Exception-1-culpable homicide is not amounting to murder if the offender, whilst deprive of self control by grave and sudden provocation, caused the death of the person who gave the provocation or causes the death of any person by mistake or accident.The above exception is subject to the following provisions:-1. The provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.2. The provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.3. The provocation is not given by anything done in the lawful exercise of the right of private defense.

Provocation must be grave: upheld in Venkatesan v/s State of Tamil Nadu (1997)

1. The test of grave and sudden provocation is whether a reasonable men belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to loss his self control.2. In India words and gestures may also, under certain circumstances, cause grave and sudden provocation.3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.

Illustrations:

1. Y gives a grave and sudden provocation to A. A on this provocation fires a pistol at Y neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not amounting to murder, but merely culpable homicide.2. A attempts to pull Zs nose, in the exercise of private defense, lays hold of A to prevent him from doing so. A is moved to sudden and violent passing in consequence kills Z. this is murder, in as much as the provocation was given by a thin done in exercise of the right of private defense.

Exceptions-2- Culpable homicide is not amounting to murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense.

Illustration- Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped shoots z dead. A has not committed murder but only culpable homicide.

Exceptions 3.- Culpable homicide is not murder if the offender, being a public servant, or aiding a public servant acting for the advancement of public justice exceeds the powers given to him by law, and caused death by doing an act which he , in good faith, believes to be lawful and necessary for the due discharge of this duty as such public servant and without ill will towards the person whose deaths is caused.

Exceptions 4- Culpable homicide is not amounting to murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation- it is immaterial in such cases which party offers the provocation or commits the first assault.

Exceptions- 5- culpable homicide is not amounting to murder when the murder whose death is caused, being above the age of 18 years, suffers death or take the risk of death with his own consent.

Scope In Raghunath v/s State of Haryana AIR 2003 SC 165, Sc held that It is no well settled principle of law that if two views are possible, one in favor of the accused and the other adversely against it, the view favoring the accused must be accepted.

Culpable homicide amounting to murder

Section 300 also defines the circumstance when culpable homicide turn into murder which is punishes u/s 302. Under following 4 circumstances:

Intention to causing death- I. Culpable homicide turn into murder if the act by which the deaths is caused is done with the Intention of Causing death orII. If an act done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, orIII. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, orIV. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing deaths or such injury as aforesaid.

Illustration

A, knows that Z is suffering such a disease that a blow is likely to cause his death, strike him with the intention of causing bodily injuries. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health.But if A, knowing that Z is laboring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.

A without any excuse fires loaded cannon into a crowd of person and kills one of them. A is guild of murder, although he may not have had a premeditated design to kill any particular individual.

In State of Rajashtan v/s Dhool Singh AIR 2004 SC 1264. SC held that Culpable homocide becomes murder if the attacker cause an injury which he knows is likely to cause death and, of course, consequent to such injury the victim should die.

Conclusion-

The main element which is distinguish between murder and culpable homicide is Intention or in presence of a special mens rea.If death is the most likely result of an act, it will be murder. If death is the likely result of an act, it will be culpable homicide not amounting to murder.

What is abetment? What are various methods by which abetment is possible?

Ans- Chapter V, section S 107 to 120, relating with Abetment.When several person s take part in the commission of an offence, each one of them may contribute in a manner and degree different from the others to the commission of it. The offence may be committed by the hands of one person at the instigation of another person, while some other may only be present for offering help at the time of commission of it, and still others may help the principal culprit in procuring the tolls. It is necessary, therefore, to mark the nature and degree of participation of each of the persons to determine their degree of culpability. However several gradations of action do not necessarily imply different measures of guilt with a view to distinctions in punishment.

In English Law, differently treat the principle offender who may be of first degree and accessories who may be second degree.

IPC- The Indian penal code makes a brad distinction between principals and abettors but does not recognize the accessory after the fact except that offenders has been made a substantive offence in some cases.

Under IPC abetment is constituted in the following ways:1. Instigating.2. Engaging3. Aiding.

Instigating- Means the act of inciting another to do a wrongful act. One may abet the commission of an offence by counseling, suggestions, encouraging, pouring or commanding another to do an act. In order to constitute abetment by instigation some active proceeding towards the preparation of the crime is necessary. To instigate means to actively suggest or stimulate by any means or language, direct or indirect, whether it take the form of express solicitation or of hints, insinuation or encouragement, or to provoke, incite, urge or encourage to do an act. Any form of language may be used but there must be reasonable certainty in regard to the meaning of the words which an inciter may use.

Illus-A and B discovering that C intended to commit theft in Zs house. Arrange together to persuade him to steal there from certain articles form them. Here A and B will be liable for abetment and C for theft.

Mere acquiescence, silent assent or verbal permission would not constitute instigation.

A tells B that he intends to murder C,B says do as you like, A kills C, here B cannot be said to have instigated.Reason- it was meant actively to suggest or stimulate the commission of an offence.

Willful misrepresentation or Concealment:Explanation I of section 107 of IPC says that instigation may be constituted of willful misrepresentation or willful concealment of a material fact by one who is bound to disclose it.

Instigation by Letter: Instigation may be direct or it may be by a letter. Where A writes a letter to B instigating thereby to murder C, the offence of abetment by instigation is completed as soon as the contents of the letter become know to B. if the letter never reaches B, it is only an attempt to abet but not abetment.

Abetment by Engaging

Abetment by conspiracy: abetment of conspiracy consist when two or more person engage in a conspiracy for doing a thing which is illegal thing or act or illegal omission.Thus in order to constituted abetment by conspiracy following conditions must be there:1. A conspiracy between two or more person.2. An act or illegal omission may take place of that conspiracy.

Conspiracy means an agreement between two or more persons:To do an illegal act orTo do an act which is not illegal by illegal means.

Thus clause II of section 107 of IPC, is a mere combination of person or agreement is not enough , an act or illegal omission must also take place in pursuance of the conspiracy and the act or illegal omission must also be in order to the doing of the thing agreed upon between them.

But for an offence u/s 120A a mere agreement is enough, if the agreement is to commit an offence.

Clause 2 has to be read together with Explanation 5 of section 108, which provides that it is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commit it. It would be sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

Conviction for conspiracy-No person can be convicted for conspiracy, if the charge against all other conspirators has failed, or if other alleged conspirators are acquitted.

Abetment by Aid-

A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing. It would be clear if we read clause 3 of s107 with explanation 2, that a person cannot be held guilty of aiding the doing of an act when the act has not been done at all.Mere intention to facilitate, is not sufficient to constitute abetment, unless the act which it is intended to facilitate actually take place.

Illustration- A servant keeps open the gate of his masters house, so that thieves may come, and thieves do not come. But the servant intended and informed thieves the door is open and they can come, he would be held liable for abetment.

Mere giving of aid- A mere giving of help is not amount of abetment, until the person who provides the aid does not know that an offence was being committed or constituted.

Illustration-

A wanted to kill B, he perused C to call B, C calls B and B is murdered, here C provide the aid, but he did not know that A wanted to kill B. So he would not be held liable for abetment.

Mere presence does not amount to aiding-

Mere presence at the commission of an office done not amount to intentional aid, unless it was intended to have that effect., and the present aware that an offence is about to be committed an office, or he actively support or present hold some position, authority, or rank in committing the offence.

Aid by illegal omission-

When law impose a duty on someone and he intentionally for adding some one in an illegal, failed to discharge his duty he shall be liable for abetment.

Q-Define wrongful restraint and wrongful confinement and distinguish between the two.Section 339. Wrongful restraintWhoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has right to proceed, is said wrongfully to restrain that person.Wrongful restraint means preventing a person from going to a place where he has a right to go. In wrongful confinement, a person is kept within certain limits out of which he wishes to go and has a right to go. In wrongful restraint, a person is prevented from proceeding in some particular direction though free to go elsewhere. In wrongful confinement, there is restraint from proceeding in all directions beyond a certain area. One may even be wrongfully confined in one's own country where by a threat issued to a person prevents him from leaving the shores of his land.Object The object of this section is to protect the freedom of a person to utilize his right to pass in his. The slightest unlawful obstruction is deemed as wrongful restraint. Physical obstruction is not necessary always. Even by mere words constitute offence under this section. The main ingredient of this section is that when a person obstructs another by causing it to appear to that other that it is impossible difficult or dangerous to proceeds as well as by causing it actually to be impossible, difficult or dangerous for that to proceeds.

Ingredients:1. An obstruction.2. Obstruction prevented complainant from proceeding in any direction.

Obstruction:-Obstruction mans physical obstruction, though it may cause by physical force or by the use of menaces or threats. When such obstruction is wrongful it becomes the wrongful restraint. For a wrongful restraint it is necessary that one person must obstruct another voluntarily. In simple word it means keeping a person out of the place where his wishes to, and has a right to be.

This offence is completed if ones freedom of movement is suspended by an act of another done voluntarily.Restraint necessarily implies abridgment of the liberty of a person against his will.

What is require under this section is obstruction to free movement of a person, the method used for such obstruction is immaterial. Use of physical force for causing such obstruction is not necessary. Normally a verbal prohibition or remonstrance does not amount to obstruction, but in certain circumstances it may be caused by threat or by mere words. Effect of such word upon the mind of the person obstructed is more important than the method.Obstruction of personal liberty:Personal liberty of a person must be obstructed. A person means a human being, here the question arises whether a child of a tender age who cannot walk of his own legs could also be the subject of restraint was raised in Mahendra Nath Chakarvarty v. Emperor. It was held that the section is not confined to only such person who can walk on his own legs or can move by physical means within his own power. It was further said that if only those who can move by physical means within their own power are to be treated as person who wishes to proceed then the position would become absurd in case of paralytic or sick who on account of his sickness cannot move. Another points that needs our attention here is whether obstruction to vehicle seated with passengers would amount to wrongful restraint or not.An interesting judgment of our Bombay High Court in Emperor v. Ramlala : "Where, therefore a driver of a bus makes his bus stand across a road in such a manner, as to prevent another bus coming from behind to proceed further, he is guilty of an offence under Sec. 341 of the Penal Code of wrongfully restraining the driver and passengers of another bus". "It is absurd to say that because the driver and the passengers of the other bus could have got down from that bus and walked away in different directions, or even gone in that bus to different destinations, in reverse directions, there was therefore no wrongful restraint" is the judgment of our High Court which is applicable to our busmen who suddenly park the buses across the roads showing their protest on some issues. Illustrations-I. A was on the roof of a house. B removes the ladder and thereby detains A on the roof.II. A and B were co-ower of a well. A prevented B from taking out water from the well .Section 340. Wrongful confinement.Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.

Object The object of this section is to protect the freedom of a person where his personal liberty has totally suspended or abolish, by voluntarily act done by another.Ingredients:I. Wrongful confinement of person.

1. Wrongful restraint of a person2. Such restraint must prevent that person from proceeding beyond certain limits.

Prevent from proceedings: Wrongful confinement is a kind of wrongful restraint, in which a person kept within the limits out which he wishes to go, and has right to go.There must be total restraint of a personal liberty, and not merely a partial restraint to constitute confinement.For wrongful confinement proof of actual physical obstruction is not essential.

Circumscribing Limits:

Wrongful confinement means the notion of restraint within some limits defined by a will or power exterior to our own.

Moral force: Detention through the excise of moral force, without the accomplishment of physical force is sufficient to constituted this section.

Base Section339- RestraintSection 340-Confinement

Degree of OffenseWrongful restraint is not a serious offence, and the degree of this offense is comparatively lees then confinement.Wrongful confinement is a serious offence, and the degree of this offense is comparatively intensive then restraint.

Principle elementVoluntarily wrongful obstruction of a person personal liberty, where he wishes to, and he have a right to.Voluntarily wrongfully restraint a person where he wishes to, and he has a right to, within a circumscribing limits.

Personal libertyIt is a partial restraint of the personal liberty of a person. A person is restraint is free to move anywhere other than to proceed in a partial direction.it is a absolute or total restraint or obstruction of a personal liberty.

NatureConfinement implies wrongful restraint.Wrongful confinement not implies vice-versa.

NecessityNo limits or boundaries are requiredCertain circumscribing limits or boundaries requires.

Conclusion persuasion is not obstruction, physical presence, for obstruction is not necessary, reasonable apprehension of force is sufficient, restraint implies will and desire are some of the salient features of such decisions. Q. What are the aims and objects of the CPA, 1986? Describe the constitution, functions and the procedure of District Forum under the CPA.What are the provisions of appeal under the CPA and before which authority an appeal lies against an order of an agency?Explain the composition, jurisdiction, and powers of State Consumer Forum (State Consumer Redressal Commission) under CPA.Define and discuss the word"consumer" and "service" under CPA. Illustrate with cases.

Makingmoney quickly is a very tempting proposition. Businesses, companies, shopkeepers, retailers, and sellers are all interested in maximizing their profits. In doing so, very often they neglect the best interests of the buyer. Many times, a buy gets a defective product, or a product that fails to perform as promised. Besides losing money put in purchasing a product, some times, due to defects in the product, the buyer is injured as well. In all such cases, there is a violation of a legal right of the buyer and he is entitled to sue the seller. Before enactment ofthe Consumer Protection Act, 1986, filing a civil suit for damages was the only option available to an aggrieved buyer. However, such a suit is very expensive and time consuming, because of which, buyers were not able to use this mechanism for relatively smaller amounts. This gave a field day to the traders because making substandard products or not delivering on promises was a cheap option to make quick money, after all, very few buyers would go to court. A common man was completely helpless because of no control and penalty over unscrupulous sellers.

In this background, the CPA 1986 gave power in the hands of the buyer by allowing an easier and cheaper way to redress their grievances, thereby holding the sellers accountable for their actions more often. It provides redress to a consumer when the purchased product is defective or when there is a deficiency in service.The following are aims and objectives of this act -1. The most important objective of this act is to provide a fast and cheap way for consumers to hold the sellers accountable for their products or services.2. Justice to consumers.3. Protection of consumers from fraudsters or companies selling substandard products and services.4. Penalty to sellers for substandard product or service.5. Check on sellers and service providers.Besides the above objectives, Section 6 of CPA 1986 also provides certain rights as objectives to the consumers. These are -1. Right to be protected against goods that are hazardous or dangerous to life and property.2. Right to be informed about the quality, quantity, potency, purity, standard and price or a product and service.3. Right to competitive pricing.4. Right to be heard and to be assured that consumer interest will receive due consideration at appropriate forum.5. Right to redressal against unfair trade practices and exploitation of consumers.6. Right to consumer education.It is a complete code in the sense that it provides complete details of the constitution and jurisdiction of the commission and procedure for filing the complaint and appealing the decision. It does not depend on CPC and the cases can be finalized completely under this act. In fact, as held inAnsal Properties vs Chandra Bhan Kohli 1991, Consumer Disputes Redressal Agencies provide complete machinery for justice including a final appeal to the Supreme Court and so are outside the scope of High Courts and HCs can't entertain writ petitions against their judgments.

UnderSection 9of this act, three agencies are established to hear consumer complaints -1. A Consumer Disputes Redressal Forum in each district (For amounts up to 20 Lakhs)2. A Consumer Disputes Redressal Commission in each state.(For amounts from 20 Lakhs to 1 Cr)3. A National Consumer Disputes Redressal Commission in the center. (For amounts above 1 cr)

District Forum

Composition (Section 10)

1. Each District Forum shall consist of -a. A person who is, or who has been or is qualified to be, a District Judge, who shall be its Presidentb. two other members, one of whom shall be a woman, who shall have the following qualifications, namely -1. be not less than thirty-five years of age,2. posses a bachelor's degree from a recognized university,3. be persons of ability, integrity and standing,4. and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs, or administration1-A. Every appointment under sub-section (1) shall be made by the State Government on the recommendation of selection Committee consisting of the following namely:1. The President of the State Commission - Chairman,2. Secretary, Law Department of the State - Member,3. Secretary, in charge, of the Department dealing with Consumer affairs in the State - Member.2. Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years/ whichever is earlier:

3. The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government.

Jurisdiction (Section 11)1. Pecuniary Jurisdiction- Subject to other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the Compensation if any, claimeddoes not exceed rupees twenty lakhs.2. Territorial Jurisdiction -A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, -1. The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides orcarries on business or has a branch office, or] personally works for gain or2. Any of the opposite parties where there are more then one, at the time of the institution of the complaint, actually and voluntarily resides, orcarries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, orcarry on business or have a branch office, or personally works for gain, as the case may be, acquiesce in such institution; or3. The cause of action, wholly or in part arises.For a complaint to lie in a district forum, at least a part of the transaction of the actual business must have occurred in that district. InNational Insurance Co vs Sonic Surgical 2003, a fire accident took place in Ambala and a part of the claim was partly processed in Chandigarh. It was held that merely processing of claim in one place does not form a ground to file a case in that district.

Functioning of a District Forum

Who can file a complaint (Section 12)The following can file a complaint -1. The consumer to whom the goods or services have been sold or are agreed to be sold.2. Any recognized consumer association even if the consumer is not a member of the association. Recognized means any voluntary association registered under Companies Act 1956 or any other law for the time being in force.3. One or more consumers, where there are numerous consumers all having same interest, with the permission of district forum.4. The state or central government.The complaint must be accompanied with such amount of fee and payable in such manner as may be prescribed.The forum may accept or reject the complaint. The complainant must be given an opportunity to be heard before rejection. The acceptance or rejection will be decided in 21 days.

Procedure on admission of complaint (Section 13)Upon acceptance of the complaint, the forum will send a copy to the opposite party within 21 days, who has to respond with his version of the complaint within 30 days (extendable by 15 days). Upon receipt of the response, the forum will give its decision. If no response is received, the forum will give and ex parte decision. An effort will be made by the forum to make a decision within 3 months of date of receipt of notice by the opposite party where no goods testing needs to be done or within 5 months otherwise.

Powers (Findings) of District Forum (Section 14)If, after conducting the procedure in Section 13, the forum finds that there was a defect in the product or a deficiency in service or that any of the allegations in the complaint are true, it can ask the opposite party to do any of the following -1. to remove the defect pointed out by an appropriate laboratory from the goods in questions.2. to replace the goods with new goods of similar description which shall be free from any defect.3. to return to the complainant the price or as the case may be, the charges paid by the complainant.4. to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.5. to discontinue the unfair trade practice or restrictive trade practice or not to repeat it.6. not to offer the hazardous product for sale.7. to cease manufacture of hazardous goods and to desist from offering services that are hazardous.8. when injury has been suffered by may customer who are not easily identifiable, the opposite party may be required to pay such sum as the forum deems fit.9. to issue any corrective advertisement to neutralize the effect of any misleading advertisement.10. to provide adequate costs to parties.The District Forum also has the power to grant punitive damages in such circumstances as it deems fit.The forum must take into account all the evidence and the documents produced by the parties and the order of the forum should be a speaking order, which means that it should detail the reasons behind the order. InK S Sidhu vs Senior Executive Engineer 2001, the complaint was dismissed by the District Forum by a non speaking order. It did not discuss the evidence or the documents submitted before it and thus it was held that the order was unjust and fit to be set aside.

Provisions for Appeal (Section 15)From District Forum to State Commission (Section 15)Any person aggrieved by an order by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order. The state commission may entertain an appeal after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it with in that period. With the appeal, the appellant must deposit 50% of the amount that he is required to pay or 25000/- (whichever is less).

From State Commission to NationalCommission(Section 19)Any person aggrieved by an order by the State Commissionmay prefer an appeal against such order to the National Commission within a period of 30 days from the date of the order. The commission may entertain an appeal after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it with in that period. With the appeal, the appellant must deposit 50% of the amount that he is required to pay or 35000/- (whichever is less).

As persection 19-A, appeal to the State Commission or the National Commission shall be heard as expeditiously as possible and an effort shall be made to dispose off the appeal within a period of 90 days from the date of admission. If the appeal is disposed of after this time, the commission shall state the reasons for the delay.

From NationalCommissionto Supreme Court(Section 23)Any person aggrieved by an order made by the National Commission in exercise of its power conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order. Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period. Provided Further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person had deposited in the prescribed manner fifty per cent. of that amount or rupees fifty thousand, whichever is less.]

State Commission

Composition (Section 16)

1. Each State Commission shall consist of - a. a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President : Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court; b. two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman : Provided that every appointment made under this clause shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely :- (i) President of the State Commission - Chairman, (ii) Secretary of the Law Department of the State - Member, (iii) Secretary, in charge of Department dealing with consumer affairs in the State - Member.

2. The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the State Commission shall be such as may be prescribed by the State Government.

3. Every member of the State Commission shall hold office for a term of five years or up to the age of sixty-seven years, whichever is earlier and shall not be eligible for re-appointment.

4. Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a member before the commencement of the Consumer Protection (Amendment) Act, 1993, shall continue to hold such office as President or member, as the case may be, till the completion ] of his term.

Jurisdiction (Section 17)1. Pecuniary Jurisdiction- Subject to other provisions of this Act, the State Commission shall have jurisdiction to entertain complaints where the value of the goods or services and the Compensation, if any, claimed exceeds rupees 20 lakhs but does not exceed rupees 1 crore.2. Territorial Jurisdiction -It can entertain appeals against the orders of any District Forum of the state.As persection 17 A, on the application of the complainant or of its own motion, the State Commission may, at any stage of the proceeding, transfer any complaint pending before the District Forum to another District Forum within the State if the interest of justice so requires.

Procedure (Section 18)The provisions of sections 12, 13 and 14 and the rules made there under for the disposal of complaints by the District Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the State Commission.

National Commission

Composition (Section 20)

1. The National Commission shall consist of-a. a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall be its President Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of India b. not less than four, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall have the following qualifications, namely:- (i) be not less than thirty-five years of age; (ii) possess a bachelor's degree from a recognized university; and (iii) be persons of ability, integrity and standing and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration:

Provided that not more than fifty per cent, of the members shall be from amongst the persons having a judicial background

Provided also that every appointment under this clause shall be made by I. Central Government on the recommendation of a Selection Committee consisting the following, namely:- (a) a person who is a Judge of the Supreme Court, to be nominated by the Chief Justice of India - Chairman: (b) the Secretary in the Department of Legal Affairs in the Government of India - Member; (c) Secretary of the Department dealing with consumer affairs in the Government of India - Member;

Jurisdiction (Section 21)

Subject to the other provisions of this Act, the National Commission shall have jurisdiction - (a) to entertain - (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs; and (ii) appeals against the orders of any State Commission; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

Power and Procedure (Section 22)

The National Commission shall, in the disposal of any complaints or any proceedings before it, have - (a) the powers of a civil court as specified in sub-sections (4), (5) and (6) of section 13; (b) the power to issue an order to the opposite party directing, him to do any one or more of the things referred to in clauses (a) to (i) of sub-section (1) of section14, and follow such procedure as may be prescribed by the Central Government.

Section 22A.Power to set aside ex parte orders- Where an order is passed by the National Commission ex parte against the Opposite party or a complainant, as the case may be, the aggrieved party may apply to theCommission to set aside the said order in the interest of justice.

Section 22B. Transfer of cases- On the application of the complainant or of its own motion, the National Commission may, at any stage of the proceeding, in the interest of justice, transfer any complaint pending before the District Forum of one State to a District Forum of another State or before one State Commission to another State Commission

Who is Consumer?As per Section 2 (1) (d) of CPA 1986 - "Consumer" means any person who, - (i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii)Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person whohires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned personbut does not include a person wo avails of such services for any commercial purpose;

Based on this definition, the following are essential elements of a Consumer -

1. Buys goods or Hires Services -Physical products such as Car, TV, Utensils etc as well as intangible services ranging from Hair Cutting Saloon to Banking etc. are both valid purchases for being a consumer. The scope of services is quite wide and more and more things are coming into its ambit slowly. For example, in the landmark case ofIndian Medical Association vs VP Shantha and others 1995, SC held that patients treated by a medical professional is also a consumer of medical services and is covered by CPA.

2. For consideration- To be a consumer, paying consideration is a must. However, consideration may be an immediate payment or a promise of future payment in full or in part. It can also be any arrangement of deferred payments. Further, unlike in Sale of Goods Act, consideration need not only be in the form of money but transaction of services, exchange or barter is also valid. InMotor Sales & Service vs Renji Sebastian 1991, the complainant booked a motor cycle to be delivered on a given date for a consideration. His turn was ignored. The dealer was ordered to give him the motorcycle for the price of that date and also 500/- as compensation.

3. For personal Use- The goods or service must be bought for personal use. Originally, a person who bought a product or a service for commercial use was not considered a consumer but after the amendment in 1993, use of such goods for making a livelihood is accepted. Thus, a self employed person who buys a Photocopy machine for his own shop is a consumer. However, goods must not be bought for resale.InAnant Raj Agencies vs TELCO 1996, a company bought a car for personal use of a director of the company. It was held that since the car was bought for personal use and not for commercial use or for making a profit on a large scale, the company was a consumer.

4. Use by the purchaser or any body else -It is not necessary that only the purchaser of the goods or services be the user. Anybody who uses the goods or services with due permission of the purchaser, is also a consumer. Thus, in a landmark case ofSpring Meadows Hospital vs Harjot Ahluwalia AIR 1998, SCheld that the parents of the child who was treated by the hospital were hirers of the service while the child was the beneficiary and thus both were consumers.

What is a Service?

As perSection 2 (1) (o)"Services" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,housing construction entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

Based on this definition, the scope of services is quite wide. It will not be an exaggeration to says that any thing for which a customer pays and that is not a physical product is a service. Cinema halls, Health clubs, University, College, are all service providers.In the landmark case ofIndian Medical Association vs VP Shantha and others 1995, SC held that patients treated by a medical professional is also a consumer of medical services and is covered by CPA.InUnion of India vs Mrs S Prakash 1991, Telephone facility was held as a service and the telephone rental paid by the consumer was the consideration for the service.

The service must be a paid service. Free or non-profit services do not fall under this category and claims cannot be made regarding such services under the CPA. InA Srinivas Murthy vs Chairman, Bangalore Development Authority 1991, the question before the court was whether a tax payer is a consumer or not. A person, who paid house tax, was bitten by a stray dog and he sued Bangalore Development Authority for not taking care of the menace of stray dogs. It was held that there was no quid pro quo between the tax and the services rendered by BDA. The removal of stray dogs was a voluntary action of BDA and was done free of cost. Thus, the complainant was not a consumer and removal of dogs was not a service under this act.

Just like a defect, which renders a product not as useful as promised, there can be a deficiency in service, which render a service not as useful as promised at the time of sale. CPA 1986 allows consumers of services to take action against service providers for compensating for the deficiency in the promised service. As persection 2(1)(g), "Deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.Thus, inMahanagar Telephone Nigam vs Vinod Karkare 1991, when a complaint withthe telephone dept. was pending for more than six months, it was held to be a deficiency in service.

InIndian Airlines vs S N Singh 1992, a metallic wire was present in the food given to a traveler because of which his gums were hurt. He was awarded 2000 Rs as compensation for deficiency in service.

Q. Define the right of private defence. When does a person not have this right? When does this right extend to causing death? When does this right start and when does it end?

It is said that the law of self defence is not written but is born with us. We do not learn it or acquire it some how but it is in our nature to defend and protect ourselves from any kind of harm. When one is attacked by robbers, one cannot wait for law to protect oneself. Bentham has said that fear of law can never restrain bad men as much as the fear of individual resistance andifyou take away this right then you become accomplice of all bad men.

IPC incorporates this principle in section 96, which says,

Section 96- Nothing is an offence which is done in the exercise of the right of private defence.

It makes the acts, which are otherwise criminal, justifiable if they are done while exercising the right of private defence. Normally, it is the accused who takes the plea of self defence but the court is also bound take cognizance of the fact that the accused aced in self defence if such evidence exists.

In Section 97 through 106, IPC defines the characteristics and scope of private defence in various situations.

Section 97- Every person has a right, subject to the restrictions contained in section 99, to defend - first - his own body or body of any other person against any offence affecting the human body. second - the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

This allows a person to defend his or anybody else's body or property from being unlawfully harmed. Under English law, the right to defend the person and property against unlawful aggression was limited to the person himself or kindred relations or to those having community of interest e.g. parent and child, husband and wife, landlord and tenant, etc. However, this section allows this right to defend an unrelated person's body or property as well. Thus, it is apt to call it as right to private defence instead of right to self defence.

It is important to note that the right exists only against an act that is an offence. There is no right to defend against something that is not an offence. For example, a policeman has the right to handcuff a person on his belief that the person is a thief and so his act of handcuffing is not an offence and thus the person does not have any right under this section.

Similarly, an aggressor does not have this right. An aggressor himself is doing an offence and even if the person being aggressed upon gets the better of the aggressor in the exercise of his right to self defence, the aggressor cannot claim the right of self defence. As held by SC inMannu vs State of UP AIR 1979, when the deceased was waylaid and attacked by the accused with dangerous weapons the question of self defence by the accused did not arise.

The right to private defence of the body existsagainst any offence towards human body, the right to private defence of the property exists only against an act that is either theft, robbery, mischief, or criminal trespass or is an attempt to do the same.

InRam Rattan vs State of UP 1977, SCobserved that a true owner has every right to dispossess or throw out a trespasser while the trespasses is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing the possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking resource to the remedies available under the law.

Restrictions on right to private defence

As with any right, the right to private defence is not an absolute right and is neither unlimited. It is limited by the following restrictions imposed by section 99 -

Section 99- There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office though that act may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised - The right of private defence in no case extends to the inflicting of more harm that it is necessary to inflict for the purpose of defence.

Explanation 1- A person is not deprived of his right of private defence against an act done or attempted to be done by a public servant, as such, unless he knows or has reason to believe that the person doing the act is such public servant.Explanation 2- A person is not deprived of his right of private defence against an act done or attempted to be done by the direction of a public servant, unless he knows or has reason to believe that the person doing the act is acting by such direction, or unless such person states the authority under which he acts or if he has authority in writing, unless he produces such authority if demanded.

Upon carefully examining this section, we can see that the right to private defence is not available in the following conditions -1. when an act is done by a public servant or upon his direction and the act1. is done under colour of his office - an off duty police officer does not have the right to search a house and right to private defence is available against him.A police officer carrying out a search without a written authority, cannot be said to be acting under colour of his office. If the act of a public servant is ultra vires, the right of private defence may be exercised against him.2. the act does not cause the apprehension of death or grievous hurt - for example, a police man beating a person senselessly can cause apprehension of grievous hurt and the person has the right of private defence against the policeman.3. is done under good faith - there must be a reasonable cause of action on part of the public servant. For example, a policeman cannot just pick anybody randomly and put him in jail as a suspect for a theft. There must be some valid ground upon which he bases his suspicion.4. the act is not wholly unjustified - The section clearly says that the act may not be strictly justified by law, which takes care of the border line cases where it is not easy to determine whether an act is justified by law. It clearly excludes the acts that are completely unjustified. For example, if a policeman is beating a person on the street on mere suspicion of theft, his act is clearly unjustified and the person has the right to defend himself.

However, this right is curtailed only if the person knows or has reasons to believe that the act is being done by a public servant. For example, if A tries to forcibly evict B from an illegally occupied premises, and if B does not know and neither does he have any reason to believe that A is a public servant or that A is acting of the direction of an authorized public servant, B has the right to private defence.

InKanwar Singh's case 1965, a team organized by the municipal corporation was trying to round up stray cattle and was attacked by the accused. It was held that the accused had no right of private defence against the team.2. when the force applied during the defence exceeds what is required to for the purpose of defence. For example, if A throws a small pebble at B, B does not have the right to shoot A. Or if A, a thief, is running back leaving behind the property that he tried to steal, B does not have the right to shoot A because the threat posed by A has already subsided.In many situations it is not possible to accurately determine how much force is required to repel an attack and thus it is a question of fact and has to be determined on a case by case basis whether the accused was justified in using the amount of force that he used and whether he exceeded his right to private defence.

InKurrim Bux's case 1865, a thief was trying to enter a house through a hole in the wall. The accused pinned his head down while half of his body was still outside the house. The thief died due to suffocation. It was held that the use of force by the accused was justified.However, inQueen vs Fukira Chamar, in a similar situation, a thief was hit on his head by a pole five times because of which he died. It was held that excessive force was used than required.3. when it is possible to approach proper authorities - No man has the right to take the law into his hands and so when he has the opportunity to call proper authorities, he does not have the right to private defence. It usually happens when there is a definite information about the time and place of danger. But law does not expect that a person must run away to call proper authorities. The question whether a person has enough time depends on the factors such as -1. the antecedent knowledge of the attack.2. how far the information is reliable and precise.3. the opportunity to give the information to the authorities.4. the proximity of the police station.InAjodha Prasad vs State of UP 1924, the accused received information that they were going to get attacked by some sections of the village. However, they decided that if they separated to report this to the police they will be in more danger of being pursued and so they waited together. Upon attack, they defended themselves and one of the attackers was killed. It was held that they did not exceed the right of private defence.

Right to private defence of body up to causing death

Section 100 of IPC specifies six situations in which the right of private defence of body extends even to causing death.

Section 100- The right of private defence of the body extends under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions here in after enumerated, namely -

First - such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.Second - such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.Third - An assault with the intention of committing rape.Fourth - An assault with the intention of gratifying unnatural lust.Fifth - As assault with the intention of kidnapping or abducting.Sixth - An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Even though this section authorizes a person to cause death of another in certain situation, it is also subject to the same restrictions as given in section 99. Thus, a person cannot apply more force than necessary and must contact the authorities if there is an opportunity.

InViswanath vs State of UP AIR 1960, when the appellant's sister was being abducted from her father's home even though by her husband and there was an assault on her body by the husband, it was held that the appellant had the right of private defence of the body of his sister to the extent of causing death.

To be able to extend this right up to causing death, the apprehension of grievous hurt must be reasonable. In case ofSheo Persan Singh vs State of UP 1979, the driver of a truck drove over and killed two persons sleeping on the road in the night. People ahead of the truck stood in the middle of the road to stop the truck, however, he overran them thereby killing some of them. He pleaded right to private defence as he was apprehensive of the grievous hurt being caused by the people try