LLM Paper 4 Penal Laws

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1.

ORGANIZED CRIMES UNDER MCOCA


Maharashtra Control of Organized Crime Act, 1999 is a law enacted by Maharashtra to combat
organized crime and terrorism. Organized crime has for quite some years now come up as a threat
for the society. It steals national wealth and encourages social evils like illegal trade of narcotics,
kidnapping, collection of protection money etc. Criminals make a great use of wire and oral
communications while commissioning of crime. The interception of such communications to obtain
evidence against them was becoming necessary and if at all they were caught then police needed to
have more powers to hold them back into custody. The legal framework, that is the penal and
procedural laws and the adjudicatory system, are found to be rather inadequate to curb or control
the menace of organized crime. Therefore the government decided to enact special laws with
stringent and deterrent provisions to control the organized crime.

It was introduced in the Legislative Assembly by Mr. Gopinath Munde and was passed by the
Maharashtra State Legislative Assembly. Maharashtra Control of Organised Crime Act grants the
State police, powers to, investigate and prosecute crime syndicates, including intercepting
communications, and secret witnesses and seizing property. It is a significant tool to fight organised
crime in India.

Every offence under this act is recognised as a cognizable offence with necessary precautions under
the Code of Criminal Procedure Act.

What is organized crime?

Organized crime means any continuing unlawful activity by an individual, singly or jointly, either as a
member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat
of violence or intimidation or coercion, or other unlawful means, with the objective of gaining
pecuniary benefits, or gaining undue economic or other advantage for himself or any person or
promoting insurgency.[1]

Like the recent case of spot fixing, it is speculated that the money of underworld mafia is involved.
According to the police the accused persons were acting on command of people like Dawood
Ibrahim Kaskar and Chota Shakeel who have a continuous past record of organized crimes,
provisions of MCOCA have been invoked against the accused.

MCOCA Act Sections

Few important sections of the MCOCA bare act in the following table:

Maharashtra Control of Organised Crime Act MCOCA act Punishment


Section and Offence
Section 3 (1) (i): Committing an organised Death or life imprisonment.
crime resulting in the death of any person.
Section 3 (1) (ii): Committing any other Imprisonment of up to five years to
organised crime. life and a minimum fee.
Section 3(2): Conspiring to, aiding in or Imprisonment of up to five years to
knowingly facilitating an organised crime. life and a minimum fee.
Section 3 (3): Concealing a member of an Imprisonment of up to five years to
organised crime syndicate. life and a minimum fee.
Section 3 (4):
Membership in an organised crime syndicate.
Imprisonment of up to five years to
Holding any property derived from organised life and a minimum fee.
crime or funds from the syndicate.

Imprisonment of up to three years


to life and a minimum fee.
Section (4): possessing a movable or an Imprsionment of up to three to ten
immovable property on behalf of an years, minimum fee, and forfeiture
organised crime syndicate. of the property.
Section 24: Public servants helping to carry Imprisonment of up to three years
out an organised crime or failing to take to life.
lawful measures under the MCOCA act.
Disobeying orders from the Special Court.

Applicability

1. The Maharashtra Control of Organised Crime act is applicable in the entire state of Maharashtra
and the union territory of Delhi
2. The MCOCA act will override all other Indian laws and will prevail over any other Indian law if
such a conflict arises.

What crimes come under M.C.O.C.A.?

 Committing offence of organized crime which results to death;


 Being a member of organized crime;
 Aiding or Abetting or knowingly facilitating the commission of organized crime or helping in
preparation of such acts. For eg- Communicating or handing over documents, passing and
publishing of information or documents which is helping in commission of organized crime;
 Giving shelter or concealing any member of organized crime;
 Holding or looking after any property derived or obtained from commission of organized crime
or property in possession on behalf of organized crime.

There has to be a “continuing unlawful activity” by individual or a group neither as a member of an


organized crime syndicate or on behalf of such syndicate. To consider an act a continuing there are
conditions which needs to be fulfilled. Firstly, it has to be a cognizable offence punishable with
imprisonment for three years or more.[3] Second, more than one charge-sheet must have been filed
before a competent court within the preceding period of 10 years and the court must have taken
cognizance of such offence. Due to the peculiarity of this law it is necessary to sustain the charges
against at least one of the accused in order to sustain the charge of conspiracy against the remaining
accused, who might have acted on his or her behalf.

It was generally considered that assisting means helping with finances but the help does not
necessarily means monetary but it could be ‘any’ kind of assistance to the criminals responsible or
helping in commission of organized crime.
MCOCA Act Provisions

Few key provisions of the MCOCA act are as follows:

1. Sections 5 to 8 of the MCOCA bare act provides the establishment of Special courts for offences
under this act and such courts can be established by the state government of Maharashtra.
2. No anticipatory bill is allowed for a person who is accused of an offence in this act.
3. By the Code of Criminal Procedure, this act allows the appointment of special public prosecutors
appointed to conduct trials.
4. The competent authority has to state reasons for his or her surveillance order and interception of
any communication cannot be extended beyond a period of 60 days.
5. All surveillance orders are within the review of the State government of Maharashtra and the High
Court. It provides for a legal committee to be chaired by the chief secretary of the state including the
secretaries of the Judiciary department and the Home department.
6. In the case of emergencies, a police officer, who is not below the rank of Assistant Director General
of Police can order surveillance without the prior permission of the authority in charge.
7. A special court can provide protection to the witnesses (following a supreme court ruling).

How to decide whether M.C.O.C.A. has to be applied instead of other laws?

M.C.O.C.A, generally, deals with prevention and control of criminal activity by organized crime
syndicate or gangs within India. Its aim is to minimize the unlawful activities done by organized
criminal groups.

It’s emphasis is on crime and pecuniary benefits arising from it. Activities which benefit or favours
monetarily but could extend up to insurgency. Generally, it is about the cases of spoken or written
words or any other form of visual representation. It isn’t about terrorism, bombs, guns etc.

Unlawful activity used in M.C.O.C.A. is not some terrorist attack or insurgency.

It punishes for promoting insurgency but not for insurgency per se.

2. REFORMATIONS IN INDIAN PENAL CODE


Introduction
Under colonial rule, India was governed by the laws made by the Britishers. This was for the
convenience of the colonial empire and so that they could attain the objective of their ruling. The
laws were stringent and harsh on Indians and criminalised many activities according to the English
beliefs and legal system. Indian Penal Code (IPC) was formalised under the British Rule around 150
years ago. It specifies crimes and their punishments. Although the IPC is allegedly one of the
strongest criminal laws and is extensive in its scope, the changing times have felt the requirement of
revamping this old law and making it more relevant for modern democratic India. There have been
many amendments over the years in the IPC, but there are many areas and provisions in this law
that still need restructuring. Introducing certain amendments to the Indian Penal Code will ensure
that the crimes that have evolved in recent times are also addressed. This should be done by keeping
in mind democratic values and human rights.

Understanding the laws under the Indian Penal Code


Indian Penal Code, 1860 is the criminal code of India. It defines various activities that are considered
to be a crime, their scope, nature, and penalties and punishments levied for the same. IPC is a
comprehensive criminal code that covers the essential elements of criminal law. Unlike the Criminal
Procedure Code (CrPC) it does not lay down the criminal procedure but only the various crimes and
their punishments. IPC extends to the whole of India. It consists of 511 sections divided into 23
chapters. The objective of IPC was to implement the same criminal law across the country so that
there are no inconsistencies. It has been amended various times to cope with the changing times.

Historical background
The IPC was introduced in India during the colonial rule as an attempt to bring a common criminal
code in India and remove the defects of Mohammad law that prevailed in India at that time. This
code had its roots primarily in English law but it was also based on some elements of the Napoleonic
Code and Louisiana Civil Code of 1825. One of the first attempts to bring a penal code was in the
year 1827 when the Elphinstone Code was introduced under the guidance of Governor Elphinstone.
In 1833, the Charter Act was introduced which provided for the enactment of laws in India. Under
this Act, the first law commission of India was established in 1834. The law commission under the
chairmanship of Lord Thomas Babington Macaulay drafted the IPC and the complete draft was
presented in the parliament in 1856. Several changes and alterations were suggested by Barnes
Peacock before the code was presented in the Legislative Assembly. IPC was finally passed on 6th
October 1860. This delay in passing the law was due to the famous revolt of 1857. IPC came into
force on 1st January 1862 in India. However, it did not apply to the princely states as they had their
legal system. After independence, India adopted this comprehensive code with open arms.

Need to revamp IPC


With the changes in society, perspectives of people, and the nature of crimes, the laws need to
evolve as well. Although the IPC enacted in 1860 was ahead of its time and has been in India for one
and a half-century, it has not kept pace with the progressive times. The Act brought in by the British
to meet their needs and objectives has somewhere failed to serve the people in modern times. It is
based on the colonial attitude of Britishers to rule India. Revamping of IPC is thus required to shift
the power from the rulers to the people. The restructuring of IPC is needed as many of its provisions
have become obsolete with changing economic developments and technological advances. Crimes
like mob lynching, financial crimes, white-collar crimes, economic crimes, etc, have not found proper
recognition in the IPC. There is also uneven punishment for crimes of grievous hurt, For example, a
chain-snatching incident can be life-threatening as well, but under IPC this is not taken into
consideration and an equivalent punishment is not provided for the same. It is booked under
robbery or theft depending upon the police. Therefore, to standardize the punishment, IPC needs
renewal.

There have been many amendments to ensure that IPC evolves with time, but it has not been
amended totally since the date of enactment. Although certain amendments to the provisions of IPC
have been made, as supported by the decisions of the courts. For example in the cases of adultery
and the decriminalisation of homosexuality. IPC is based on the deterrent theory prevalent at that
time but the criminal law needs to shift from the deterrent or distributive theory to the reformative
theory of punishment. Some of the changes that need to be brought are:
1. A gender-neutral definition of rape is required. Section 375 of IPC does not include men,
hijras, and boys as the victims of rape and only considers women as victims of rape.
2. Sedition under Section 124 A of the IPC was inserted by the Britishers in 1898 to control
the uprisings against them and to suppress the freedom movements. However, in recent
times this section is often misused against people who criticize the government.
3. Section 57: Life Imprisonment as a punishment is at the discretion of the court as to the
number of years. It depends more on the nature of the crime that has been committed.
But, when it comes to the calculation of fractions of punishment, it is fixed for 20 years.
This takes away the discretionary power of a judge and differences arise upon choosing
the approach of giving punishments.
4. Under Section 294, the act of annoying someone by performing any obscene act in public
places is punishable. However, the word ‘obscene’ is not defined under the Act and this is
often misused by the police.
5. The punishments provided under Chapter 3 are very conservative. It only provides for
imprisonment or fine. There is no mention of community service or reforming the criminal
in any way.

Earlier amendments
Over the years, the nature and extent of crime have changed. The British made criminal code though
was ahead of its time, needed amendments. The IPC has been amended about 77 times. However
many recommendations from the 42nd report of the law commission 1971 have still not been
adopted. The provisions for anti-dowry laws and stringent punishment for rape laws are some of
them. Two of the major amendments were the criminal law amendment of 2013 and the Criminal
Law Amendment Bill of 2018.

 Criminal (Amendment) Act, 2013


The bill introduced before the enactment of this Act was also called the anti-rape bill. The Act was
introduced to make the rape laws in India more stringent. This amendment widened the definition
of rape by including oral sex and the infiltration of other objects into women’s bodies as a crime.
Considering the rising number of rapes in India and the severity of the heinous crime, this was a
huge step. Stalking had also been criminalized under this act. It also considered the capturing and
watching of women in a private demonstration against her will, to be a crime.

 Criminal Amendment Act, 2018


This Act was furthered to strengthen the rape laws. The quantum of punishment was increased from
at least 7 to 10 years. Provisions for punishment for rape of a girl under 12 years and 16 years were
also added under it.

 The insertion of Section 153 A and 509 was made to counter the racially motivated crimes.
However, this did not receive support from all the states to that extent.

Evaluating the political agenda behind restructuring IPC


The Union Home Ministry proposed the idea to revamp the IPC, which was introduced during the
British rule in India, based on the “master-servant” spirit. Under the Bureau of Police Research and
Development, a committee has also been set up to look into the changes to be brought. The agenda
for the government to rebuild this law which has been in force for so many years is to fulfill the
democratic aspirations of the people and to ensure speedy justice and simplify legal procedures.
Although the ministry claims the real reason to do this is to ensure speedy justice and the
simplification of the legal system, one cannot help but think if there is any hidden political agenda
behind this. IPC forms one of the basic criminal laws in the country that applies to all people. The
changes in the IPC are surely required, however, the changes can be easily made to suit any one
party or any politician. Changes should, therefore, be subjected to public opinion before being
implemented.

Reforming the criminal system


IPC is a well-written code that has been amended many times over the years to bring a change in the
criminal system. However, many scholars believe that the criminal system cannot be reformed just
by revamping the IPC. The implementation of the code should also be efficient to ensure success. IPC
cannot be enforced by the same police structures. Police reforms are needed for the changes in IPC
to facilitate its successful operation. We need a change in the attitude of the police towards
complainants, quick registration of first information reports (FIRs), and swift response against
crimes. To change the attitude of the police towards the delivery of justice, many internal, external,
and structural changes are also required. The police need to improve upon the available human
resources, quality of investigations, and be more efficient. Additionally, it should be ensured that
there is no external pressure on the police.

Suggestions

1. The state’s suggestions should be taken into consideration. And surveys should be
conducted by legal researchers to identify the offences that need to be added and the
existing offences that need to be modified.
2. The laws which are outdated and not relevant in the present times should be identified
and empirical research should be done for the same. The problems with the enforceability
of the provisions should also be checked.
3. The rate of sexual offences is very high in India. Despite the various amendments, there
are many loopholes in the law. Considering this, a separate chapter can be created
dealing with the various sexual offences and their punishment.
4. The chapters in IPC can also be classified on the basis of the nature of liability such as
mild, moderate, and major liability.
5. To avoid duplicity and confusion, separate chapters on cyber laws, economic offences,
etc. should be added to IPC.
6. Illustrations provided with various sections are now totally outdated from the standpoint
of today’s standards. They were relevant when the case law was not developed so the
need to replace them is quite significant.
7. IPC should not have any political biases and should not be in favor of any political party. It
should equal and protect the interests of the citizens. It should uphold the principles of
democracy and a fair justice system.

Conclusion
Reforming the criminal justice system is not just a one-step process. Revamping IPC is a major step
to modernize the criminal law of India and make it in accordance with the Indian democracy. The
Britishers used IPC to their advantage and to put away freedom fighters, it was based on the
deterrent theory. But now a shift has to be made from a deterrent to a reformative system.
Revamping IPC will ensure that the criminal system will become more reliable and have the potential
to understand and answer the reasons behind today’s crimes. It will also ensure that certain
provisions of this age-old code that are not relevant today, are repealed. For example, Section 377 of
IPC which criminalised homosexuality and was based on the victorian regime, was decriminalised in
accordance with the changes in the modern era. Earlier, amendments made to code were
fragmented and failed to bring about a significant change to the IPC as a whole. Fulfilling political
agendas should not be the reason behind adding specific provisions. Although revamping IPC will
lead to reforming the criminal justice system, additional changes in the police structure are also
needed. Even if IPC is reformed, its implementation will be a challenge that the government will
have to overcome.

3. INFORMATION TECHNOLOGY ACT - FEATURES, OBJECTIVES,


DIGIAL SIGNATURE & OFFENCES
The Information Technology Act, 2000 or ITA, 2000 or IT Act, was notified on October 17, 2000. It is the
law that deals with cybercrime and electronic commerce in India.

In 1996, the United Nations Commission on International Trade Law (UNCITRAL) adopted the model law
on electronic commerce (e-commerce) to bring uniformity in the law in different countries.

Further, the General Assembly of the United Nations recommended that all countries must consider this
model law before making changes to their own laws. India became the 12th country to enable
cyber law after it passed the Information Technology Act, 2000.

While the first draft was created by the Ministry of Commerce, Government of India as the ECommerce
Act, 1998, it was redrafted as the ‘Information Technology Bill, 1999’, and passed in May 2000.

Objectives of the Act

The Information Technology Act, 2000 provides legal recognition to the transaction done via electronic
exchange of data and other electronic means of communication or electronic commerce transactions.

This also involves the use of alternatives to a paper-based method of communication and information
storage to facilitate the electronic filing of documents with the Government agencies.

Further, this act amended the Indian Penal Code 1860, the Indian Evidence Act 1872, the Bankers’ Books
Evidence Act 1891, and the Reserve Bank of India Act 1934. The objectives of the Act are as follows:

i. Grant legal recognition to all transactions done via electronic exchange of data or other electronic
means of communication or e-commerce, in place of the earlier paper-based method of
communication.
ii. Give legal recognition to digital signatures for the authentication of any information or matters
requiring legal authentication
iii. Facilitate the electronic filing of documents with Government agencies and also departments
iv. Facilitate the electronic storage of data
v. Give legal sanction and also facilitate the electronic transfer of funds between banks and financial
institutions
vi. Grant legal recognition to bankers under the Evidence Act, 1891 and the Reserve Bank of India
Act, 1934, for keeping the books of accounts in electronic form.

Features of the Information Technology Act, 2000

a. All electronic contracts made through secure electronic channels are legally valid.
b. Legal recognition for digital signatures.
c. Security measures for electronic records and also digital signatures are in place
d. A procedure for the appointment of adjudicating officers for holding inquiries under the Act is
finalized
e. Provision for establishing a Cyber Regulatory Appellant Tribunal under the Act. Further, this
tribunal will handle all appeals made against the order of the Controller or Adjudicating Officer.
f. An appeal against the order of the Cyber Appellant Tribunal is possible only in the High Court
g. Digital Signatures will use an asymmetric cryptosystem and also a hash function
h. Provision for the appointment of the Controller of Certifying Authorities (CCA) to license and
regulate the working of Certifying Authorities. The Controller to act as a repository of all digital
signatures.
i. The Act applies to offences or contraventions committed outside India
j. Senior police officers and other officers can enter any public place and search and arrest without
warrant
k. Provisions for the constitution of a Cyber Regulations Advisory Committee to advise the Central
Government and Controller.

Applicability and Non-Applicability of the Act

Applicability

According to Section 1 (2), the Act extends to the entire country, which also includes Jammu and
Kashmir. In order to include Jammu and Kashmir, the Act uses Article 253 of the constitution. Further, it
does not take citizenship into account and provides extra-territorial jurisdiction.

Section 1 (2) along with Section 75, specifies that the Act is applicable to any offence or contravention
committed outside India as well. If the conduct of person constituting the offence involves a computer
or a computerized system or network located in India, then irrespective of his/her nationality, the
person is punishable under the Act.

Lack of international cooperation is the only limitation of this provision.

Non-Applicability

According to Section 1 (4) of the Information Technology Act, 2000, the Act is not applicable to the
following documents:
1. Execution of Negotiable Instrument under Negotiable Instruments Act, 1881, except cheques.
2. Execution of a Power of Attorney under the Powers of Attorney Act, 1882.
3. Creation of Trust under the Indian Trust Act, 1882.
4. Execution of a Will under the Indian Succession Act, 1925 including any other testamentary
disposition
by whatever name called.
5. Entering into a contract for the sale of conveyance of immovable property or any interest in such
property.
6. Any such class of documents or transactions as may be notified by the Central Government in the
Gazette.

Advent of Information Technology Act, 2000


In India, electronic and certificate-based digital signatures are controlled by the Information
Technology Act,2000 also known as the IT Act, and the Rules made under the act and these
are Information Technology (Certifying Authorities) Rules 2000, Digital Signature (End Entity) Rules,
2015 and Information Technology (Use of Electronic Records and Digital Signature).

Digital Signature
A digital signature is defined in Section 2(1)(p) of the Information Technology Act,2000. A digital
signature is a mathematical algorithm that is regularly used to validate the originality and if the
message is true and genuine. A digital signature is a computerized fingerprint that is distinct to a
person or independent organization and it is used to protect the information in the digital message
or document. In the case of emails, the email itself becomes part of the digital signature. In simple
words, a digital signature is a present-day alternative to the traditional way of signing documents on
paper with ink.

A digital signature is a kind of electronic signature that is used to verify the name of the sender of a
message or the signer of a document. It makes sure that the document or message is genuine and
the documents that are sent are untouched. Digital signature gives 2 algorithms.

1. Private key or user secret key


2. Verifying signature that includes the user’s public key. The output of the signature process is called
the digital signature.

Under Information Technology it is relevant to describe the basis of cryptography. So, public-key
cryptography is the method accepted by the IT Act to protect any computerized document. Public
key cryptography is the creation of cryptography that permits users to exchange without any danger
to access shared secret keys.

Authentication using Digital Signature


The verification of electronic records is done by creating a digital signature that is a mathematical
expression of subject matter in a message. Cryptography secures the privacy of data by replacing it
with a changed version that can be redone to reveal the original data only to someone who has the
proper key.
A key is an arrangement that manages the operation of cryptographic transformation. It involves 2
processes i.e., encryption and decryption. Encryption is the process of modifying a plain message
into a cipher text. In decryption, the several of chipper text into the original message.

Digital Signature Certificate


A digital signature certificate (DSC) is equal to a physical or paper certificate. DSC is a procedure to
show the authenticity of electronic documents. It is needed to be presented electronically to show
the identity, access information, or sign document digitally. The Central Government has appointed
the Controller of Certifying Authority that will grant a license to the Certifying Authorities to issue
DSC to the user.

Types of Digital Signature Certificate


There are 3 types of digital signatures based on security level i.e. class 1, class 2, and class 3
certificate.

Class 1 certificate: It is not legally recognized. It is based on confirmation of valid email and not
direct verification.

Class 2 certificate: This is based on the identification of the person that is required to be verified
against a reliable pre-verified database.

Class 3 certificate: is a person in the presence of the Registration Authority proves his identity.

Lastly, businesses in India are using digital signatures to sign documents like invoices, reports,
contracts, agreements, HR letters, and other such documents.

Features of Digital Signature

1. AUTHENTICATION

It means that the digital signature will help the receiver to recognize who has sent the message or
authenticate the source of the message.

2. INTEGRITY

It may be so that while sending the message the document may get altered in this case the receiver
will be able to know the originality of the message.

3. NON – REPUDIATION

The sender cannot refuse that he did not send any message.

Advantages of Digital Signature

1. DIGITAL SIGNATURE ARE SECURE

Digital signatures using cryptographic algorithms cannot be copied, unlike handwritten signatures
which can be forged and copied. Slightest, change to a digitally signed document makes the
signature invalid.

2. DIGITAL SIGNATURE ENSURES AUTHENTICATION


It means that an electronic document signed will be legally valid, which stands in court just like any
other paper document.

3. DIGITAL SIGNATURE ENSURES NON-REPUDIATION

The digital signature is created using a distinctive set of algorithms within a digital certificate issued
to the signer after doing analysis by Certifying Authority. The signer is the true authorizer of his
authentication (signature).

4. LEGALLY VALID IN MOST COUNTRIES

A digital signature is legally valid in most of the countries that have laws on e-signature. Though it
recognizes electronic signature the need to have a highly secure digital signature for signing an
electronic document

5. COST EFFECTIVE AND EFFICIENT

New businesses and governments are welcoming the concept of digitally signing the document to
make or have paperless transactions, with the implementation of e-signature, the entire process has
become convenient, effective, has reduced the cost, and documents are secured.

6. TRACKING DIGITAL SIGNATURE DOCUMENT

Any digital document that is digitally signed can be traced effortlessly and located in a short time.

7. TIME -STAMPED OF DIGITAL SIGNATURE

Time stamping will allow the digital signature to give a clear indication of when the document was
signed.

8. SPEED

With e-signatures, it has become easy for the parties to sign any documents with a digital signature,
as they don’t have to wait for the paper document to receive it from the courier. Any contract can
be signed by the concerned parties instantly no matter where they are geographical.

Disadvantages of Digital Signature

1. EXPIRE

Just like any other electronic device or technology it’s based and dependent on the technology. In
times of rapid growth of sophisticated technology, many such products have a short life.

2. SOFTWARE

The sender and the recipient have to purchase the verification software for the working of digital
signature.

3. COMPATIBILITY
The standards of digital signature are different and most of them are contradictory to each other
and create confusion while sharing digitally signed documents.

Documents on Which Digital Signature is Valid


Certain documents need a notarial process or the documents are required to be a physical signature.
Some documents are also required to be registered by the Registrar or sub-registrar to be legally
enforceable.

 Negotiable instrument such as promissory note or bill of exchange other than cheque.
 Trust deeds
 Power of attorney
 A Will and testamentary deposition
 Real estate contract (lease/ sales agreement)

Offenses UNDER THE IT ACT, 2000

1. Tampering with computer source documents:


Section 65 of this Act provides that Whoever knowingly or intentionally conceals, destroys or alters
or intentionally or knowingly causes another to conceal, destroy or alter any computer source code
used for a computer, computer Programme, computer system or computer network, when the
computer source code is required to be kept or maintained by law for the being time in force, shall
be punishable with imprisonment up to three year, or with fine which may extend up to two lakh
rupees, or with both.
Explanation:
For the purpose of this section “computer source code” means the listing of programmes, computer
commands, design and layout and programme analysis of computer resource in any form.

Object:
The object of the section is to protect the “intellectual property” invested in the computer. It is an
attempt to protect the computer source documents (codes) beyond what is available under
the Copyright Law.

This section extends towards the Copyright Act and helps the companies to protect the source code
of their programmes.

Section 65 is tried by any magistrate. This is cognizable and non- bailable offense.
Imprisonment up to 3 years and or Fine up to Two lakh rupees.

CASE LAWS
Frios v. State of Kerela[xvi]:
Facts: In this case, it was declared that the FRIENDS application software as a protected system. The
author of the application challenged the notification and the constitutional validity of software
under Section 70. The court upheld the validity of both.
It included tampering with source code. Computer source code the electronic form, it can be printed
on paper.
Held: The court held that Tampering with Source code is punishable with three years jail and or two
lakh rupees fine of rupees two lakh rupees for altering, concealing and destroying the source code.
Syed Asifuddin case[xvii]:
Facts: In this case, the Tata Indicom employees were arrested for manipulation of the electronic 32-
bit number (ESN) programmed into cell phones theft were exclusively franchised to Reliance
Infocom.
Held: Court held that Tampering with source code invokes Section 65 of the Information Technology
Act.
Parliament Attack Case:
Facts: In this case, several terrorists attacked Parliament House on 13 December 2001. In this Case,
the Digital evidence played an important role during their prosecution. The accused argued that
computers and evidence can easily be tampered and hence, should not be relied.
In Parliament case, several smart device storage disks and devices, a Laptop was recovered from the
truck intercepted at Srinagar pursuant to information given by two suspects. The laptop included the
evidence of fake identity cards, video files containing clips of the political leaders with the
background of Parliament in the background shot from T.V news channels. In this case design of
Ministry of Home Affairs car sticker, there was game “wolf pack” with user name of ‘Ashiq’, there
was the name in one of the fake identity cards used by the terrorist. No back up was taken.
Therefore, it was challenged in the Court.
Held: Challenges to the accuracy of computer evidence should be established by the challenger.
Mere theoretical and generic doubts cannot be cast on the evidence.
2. Hacking with the computer system:
Section 66 provides that- (1) Whoever with the intent to cause or knowing that he is likely to cause
wrongful loss or damage to the public or any person destroys or deletes or alters any information
residing in a computer resource or diminishes its value or utility or affects it injuriously by any
means, commits hacking.
(2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine
which may extend up to two lakh rupees, or with both.

Explanation: The section tells about the hacking activity.


Punishment: Imprisoned up to three years and fine which may extend up to two lakh rupees Or with
both.

CASE LAWS
R v. Gold & Schifreen[xviii]:
In this case, it is observed that the accused gained access to the British telecom Prestl Gold
computers networks file amount to dishonest trick and not a criminal offense.

R v. Whiteley[xix]:
In this case, the accused gained unauthorized access to the Joint Academic Network (JANET) and
deleted, added files and changed the passwords to deny access to the authorized users.
The perspective of the section does not merely protect the information but to protect the integrity
and security of computer resources from attacks by unauthorized person seeking to enter such
resource, whatever may be the intention or motive.

Cases Reported In India:


Official website of Maharastra government hacked. The official website of the government of
Maharashtra was hacked by Hackers Cool Al- Jazeera, and claimed them they were from Saudi
Arabia.

3. Publishing of obscene information in electronic form:


Section 67 of this Act provides that Whoever publishes or transmits or causes to be published in the
electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is
such as to tend to deprave and corrupt persons who are likely, having regard to all relevant
circumstance, to read see or hear the matter contained or embodied in it, shall be punished on first
conviction with imprisonment of either description for a term which may extend to five years and
with fine which may extend to one lakh rupees and in the event of a second or subsequent
conviction with imprisonment of either description for a term which may extend to ten years and
also with fine which may extend to two lakh rupees.

CASE LAWS:
The State of Tamil Nadu v. Suhas Katti.
Facts: This case is about posting obscene, defamatory and annoying message about a divorcee
woman in the Yahoo message group. E-mails were forwarded to the victim for information by the
accused through a false e-mail account opened by him in the name of the victim. These postings
resulted in annoying phone calls to the lady. Based on the complaint police nabbed the accused. He
was a known family friend of the victim and was interested in marrying her. She married to another
person, but that marriage ended in divorce and the accused started contacting her once again. And
her reluctance to marry him he started harassing her through the internet.[xx]
Held: The accused is found guilty of offenses under section 469, 509 IPC and 67 of the IT Act
2000 and the accused is convicted and is sentenced for the offense to undergo RI for 2 years
under 469 IPC and to pay fine of Rs.500/-and for the offense u/s 509 IPC sentenced to undergo 1
year Simple imprisonment and to pay fine of Rs.500/- and for the offense u/s 67 of IT Act 2000 to
undergo RI for 2 years and to pay fine of Rs.4000/- All sentences to run concurrently.”
The accused paid fine amount and he was lodged at Central Prison, Chennai. This is considered the
first case convicted under section 67 of Information Technology Act 2000 in India.
In a recent case, a groom’s family received numerous emails containing defamatory information
about the prospective bride. Fortunately, they did not believe the emails and chose to take the
matter to the police. The sender of the emails turned out to be the girl’s step-father, who did not
want the girl to get married, as he would have lost control over her property, of which he was the
legal guardian.

Avnish Bajaj (CEO of bazzee.com – now a part of the eBay group of companies) case.
Facts: There were three accused first is the Delhi schoolboy and IIT Kharagpur Ravi Raj and the
service provider Avnish Bajaj.
The law on the subject is very clear. The sections slapped on the three accused were Section
292 (sale, distribution, public exhibition, etc., of an obscene object) and Section 294 (obscene acts,
songs, etc., in a public place) of the Indian Penal Code (IPC), and Section 67 (publishing information
which is obscene in electronic form) of the Information Technology Act 2000. In addition, the
schoolboy faces a charge under Section 201 of the IPC (destruction of evidence), for there is
apprehension that he had destroyed the mobile phone that he used in the episode. These offenses
invite a stiff penalty, namely, imprisonment ranging from two to five years, in the case of a first-time
conviction, and/or fines.
Held: In this case, the Service provider Avnish Bajaj was later acquitted and the Delhi schoolboy was
granted bail by Juvenile Justice Board and was taken into police charge and detained into
Observation Home for two days.
4. Power of Controller to give directions:
Section 68 of this Act provides that (1) The Controller may, by order, direct a Certifying Authority or
any employee of such Authority to take such measures or cease carrying on such activities as
specified in the order if those are necessary to ensure compliance with the provisions of this Act,
rules or any regulations made thereunder.
(2) Any person who fails to comply with any order under sub-section (1) shall be guilty of an offense
and shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine
not exceeding two lakh rupees or to both.

Explanation: Any person who fails to comply with any order under subsection (1) of the above
section, shall be guilty of an offense and shall be convicted for a term not less than three years or to
a fine exceeding two lakh rupees or to both.
The offense under this section is non-bailable & cognizable.

Punishment: Imprisonment up to a term not exceeding three years or fine not exceeding two lakh
rupees.

5. Directions of Controller to a subscriber to extend facilities to decrypt information:


Section 69 provides that- (1) If the Controller is satisfied that it is necessary or expedient so to do in
the interest of the sovereignty or integrity of India, the security of the State, friendly relations with
foreign States or public order or for preventing incitement to the commission of any cognizable
offense; for reasons to be recorded in writing, by order, direct any agency of the Government to
intercept any information transmitted through any computer resource.
(2) The subscriber or any person in charge of the computer resource shall, when called upon by any
agency which has been directed under sub-section (1), extend all facilities and technical assistance to
decrypt the information.

(3) The subscriber or any person who fails to assist the agency referred to in subsection shall be
punished with imprisonment for a term which may extend to seven years.
Punishment: Imprisonment for a term which may extend to seven years. The offense is cognizable
and non- bailable.

6. Protected System:
Section 70 of this Act provides that –
(1) The appropriate Government may, by notification in the Official Gazette, declare that any
computer, computer system or computer network to be a protected system.
(2) The appropriate Government may, by order in writing, authorize the persons who are authorized
to access protected systems notified under sub-section (1).
(3) Any person who secures access or attempts to secure access to a protected system in
contravention of the provision of this section shall be punished with imprisonment of either
description for a term which may extend to ten years and shall also be liable to fine.

Explanation: This section grants the power to the appropriate government to declare any computer,
computer system or computer network, to be a protected system. Only authorized person has the
right to access to protected system.
Punishment: The imprisonment which may extend to ten years and fine.

7. Penalty for misrepresentation:


Section 71 provides that- (1) Whoever makes any misrepresentation to, or suppresses any material
fact from, the Controller or the Certifying Authority for obtaining any license or Digital Signature
Certificate, as the case may be, shall be punished with imprisonment for a term which may extend to
two years, or which fine which may extend to one lakh rupees, or with both.
Punishment: Imprisonment which may extend to two years or fine may extend to one lakh rupees or
with both.
8. Penalty for breach of confidentiality and privacy:
Section 72 provides that- Save as otherwise provide in this Act or any other law for the time being in
force, any person who, in pursuance of any of the powers conferred under this Act, rules or
regulation made thereunder, has secured assess to any electronic record, book, register,
correspondence, information, document or other material without the consent of the person
concerned discloses such material to any other person shall be punished with imprisonment for a
term which may extend to two years, or with fine which may extend to one lakh rupees, or with
both.
Explanation: This section relates to any person who in pursuance of any of the powers conferred by
the Act or it allied rules and regulations have secured access to any: Electronic record, books,
register, correspondence, information, document, or other material.
If such a person discloses such information, he will be punished. It would not apply to disclosure of
personal information of a person by a website, by his email service provider.

Punishment: Term which may extend to two years or fine up to one lakh rupees or with both.

9. Penalty for publishing Digital Signature Certificate false in certain particulars:


Section 73 provides that – (1) No person shall publish a Digital Signature Certificate or otherwise
make it available to any other person with the knowledge that-
(a) The Certifying Authority listed in the certificate has not issued it; or
(b) The subscriber listed in the certificate has not accepted it; or
(c) The certificate has been revoked or suspended unless such publication is for the purpose of
verifying a digital signature created prior to such suspension or revocation.
(2) Any person who contravenes the provisions of sub-section (1) shall be punished with
imprisonment for a term which may extend to two years, or with fine which may extend to one lakh
rupees, or with both.

Explanation: The Certifying Authority listed in the certificate has not issued it or, The subscriber
listed in the certificate has not accepted it or the certificate has been revoked or suspended.
The Certifying authority may also suspend the Digital Signature Certificate if it is of the opinion that
the digital signature certificate should be suspended in public interest.

A digital signature may not be revoked unless the subscriber has been given opportunity of being
heard in the matter. On revocation, the Certifying Authority need to communicate the same with the
subscriber. Such publication is not an offense it is the purpose of verifying a digital signature created
prior to such suspension or revocation.

Punishment: Imprisonment of a term of which may extend to two Years or fine may extend to 1 lakh
rupees or with both.

CASE LAWS:
Bennett Coleman & Co. v. Union of India[xxi]
In this case, the publication has been stated that ‘publication means dissemination and circulation’.
In the context of the digital medium, the term publication includes and transmission of information
or data in electronic form.

10. Publication for fraudulent purpose:


Section 74 provides that- Whoever knowingly creates, publishes or otherwise makes available a
Digital Signature Certificate for any fraudulent or unlawful purpose shall be punished with
imprisonment for a term which may extend to two years, or with fine which extends to one lakh
rupees, or with both.
Explanation: This section prescribes punishment for the following acts:
Knowingly creating a digital signature certificate for any

1. fraudulent purpose or,


2. unlawful purpose.

Knowingly publishing a digital signature certificate for any

1. fraudulent purpose or
2. unlawful purpose

Knowingly making available a digital signature certificate for any

1. fraudulent purpose or
2. unlawful purpose.
Punishment: Imprisonment for a term up to two years or fine up to one lakh or both.

11. Act to apply for offense or contravention committed outside India:


Section 75 provides that- (1) Subject to the provisions of sub-section (2), the provisions of this Act
shall apply also to any offense or contravention committed outside India by any person irrespective
of his nationality.
For the purposes of sub-section (1), this Act shall apply to an offense or
Contravention committed outside India by any person if the act or conduct constituting the offense
or contravention involves a computer, computer system or computer network located in India.

Explanation: This section has a broader perspective including cyber crime, committed by cyber
criminals, of any nationality, any territoriality.
CASE LAW:
R v. Governor of Brixton prison and another[xxii]
Facts: In this case the Citibank faced the wrath of a hacker on its cash management system, resulting
in illegal transfer of funds from customers account into the accounts of the hacker, later identified as
Valdimer Levin and his accomplices. After Levin was arrested he was extradited to the United States.
One of the most important issues was the jurisdictional issue, the ‘place of origin’ of cyber crime.
Held: The Court held that the real-time nature of the communication link between Levin and
Citibank computer meant that Levin’s keystrokes were actually occurring on the Citibank computer.
It is thus important that in order to resolve the disputes related to jurisdiction, the issue of
territoriality and nationality must be placed by much broader criteria embracing principles of
reasonableness and fairness to accommodate overlapping or conflicting interests of states, in spirit
of universal jurisdiction.

12. Confiscation:
Section 76 provides that- Any computer, computer system, floppies, compact disks, tape drives or
any other accessories related thereto, in respect of which any provisions of this Act, rules, orders or
regulations made thereunder has been or is being contravened, shall be liable to confiscation. :
Provided that where it is established to the satisfaction of the court adjudicating the confiscation
that the person in whose possession, power or control of any such computer, computer system,
floppies, compact disks, tape drives or any other accessories relating thereto is found is not
responsible for the contravention of the provisions of this Act, rules orders or regulations made
thereunder, the court may, instead of making an order for confiscation of such computer, computer
system, floppies, compact disks, tape drives or any other accessories related thereto, make such
other order authorized by this Act against the person contravening of the provisions of this Act,
rules, orders or regulations made thereunder as it may think fit.

Explanation: The aforesaid section highlights that all devices whether computer, computer system,
floppies, compact disks, tape drives or any other storage, communication, input or output device
which helped in the contravention of any provision of this Act, rules, orders, or regulations made
under there under liable to be confiscated.

13. Penalties or confiscation not to interfere with other punishments:


Section 77 provides that – No penalty imposed or confiscation made under this Act shall prevent
the imposition of any other punishment to which the person affected thereby is liable under any
other law for the time being in force.
Explanation: The aforesaid section lays down a mandatory condition, which states the Penalties or
confiscation not to interfere with other punishments to which the person affected thereby is liable
under any other law for the time being in force.
Power to investigate offenses:
Section 78 provides that – Notwithstanding anything contained in the Code of Criminal Procedure,
1973, a police officer not below the rank of Deputy Superintendent of Police shall investigate any
offense under this Act.

CONCLUSION
Due to the increase in digital technology, various offenses are increasing day by day. Therefore, the
IT Act 2000 need to be amended in order to include those offenses which are now not included in
the Act. In India, cybercrime is not of high rate. Therefore, we have time in order to tighten the
cyber laws and include the offenses which are now not included in the IT Act 2000.[xxiii]
Since the beginning of civilization, man has always been motivated by the need to make progress
and better the existing technologies. This has led to tremendous development and progress which
has been a launching pad for further developments. Of all the significant advances made by mankind
from the beginning to date, probably the most important of them is the development of the
Internet.

However, the rapid evolution of the Internet has also raised numerous legal issues and questions. As
the scenario continues to be still not clear, countries throughout the world are resorting to different
approaches towards controlling, regulating and facilitating electronic communication and
commerce.

4. OBSCENITY UNDER INDIAN PENAL CODE & EXEMPTIONS

Introduction
We are living in the 20th century, in the era of developing thoughts and new culture, with the people
having new and old traditions with their different culture and sentiments, that makes us a member
of society. A unique gesture of a person to present himself or his work makes someone or the whole
society uncomfortable. But is the gesture really violating someone’s sentiments or it’s just a unique
or new thought to express himself or his work? This difference in thinking makes the word obscenity
obscure, so it is too difficult to know what really Obscene and what is not.
India has over 450 million monthly active internet users and has become the country with the
second most number of internet users in the world. It has led to a subsequent rise in crimes such as
cyber-bullying, circulation of obscene content, blackmailing, etc.

The word obscene came from a Latin term Obscenus which means ‘offensive’ especially modesty.
The Oxford dictionary defines obscene as “offensive or disgusting by accepted standards of morality
and decency”, looks like a simple word with a simple meaning. But as we know law does not work
with a dictionary or not with some simple meanings. The meaning of the word obscene not as easy
to settle on for lawyers, it is a challenge to set up criteria of obscenity. Because the terms which are
used to define obscenity like- Lascivious, Prurient, Deprave and Corrupt have not been clearly
defined, leaving room for interpretation by the judiciary. Literature, art, gesture, movie or any scene
in videos also come under obscene content if they violate contemporary community standards.

THE INDIAN PENAL CODE 1860

Section 292 and 293 of IPC prohibit publication and sale of obscene books, pamphlets, inter alia
representation which shall be deemed to be ‘lascivious or appeals to the prurient interests’, which
can include obscene advertisements.

292. Sale, etc., of obscene books, etc.—


(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals
to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect
of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who
are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or
embodied in it.]
262
[(2) ] Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for
purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his
possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any
other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or
having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or
in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason
to believe that any such obscene objects are for any of the purposes aforesaid, made, produced,
purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into
circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to
engage in any act which is an offence under this section, or that any such obscene object can be
procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section, shall be punished 263 [on
first conviction with imprisonment of either description for a term which may extend to two years,
and with fine which may extend to two thousand rupees, and, in the event of a second or
subsequent conviction, with imprisonment of either description for a term which may extend to five
years, and also with fine which may extend to five thousand rupees].
264
[(Exception) —This section does not extend to—
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure— (i) the
publication of which is proved to be justified as being for the public good on the ground that such
book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of
science, literature, art or learning or other objects of general concern, or (ii) which is kept or used
bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in— (i) any
ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and
Remains Act, 1958 (24 of 1958), or (ii) any temple, or on any car used for the conveyance of idols, or
kept or used for any religious purpose.]]

293. Sale, etc., of obscene objects to young person.-- Whoever sells, lets to hire, distributes,
exhibits or circulates to any person under the age of twenty years any such obscene object as is
referred to in the last preceding section, or offers or attempts so to do, shall be punished 1[on first
conviction with imprisonment of either description for a term which may extend to three years, and
with fine which may extend to two thousand rupees, and, in the event of a second or subsequent
conviction, with imprisonment of either description for a term which may extend to seven years, and
also with fine which may extend to five thousand rupees

Section 294 prohibits obscene acts and songs. Whoever, to the annoyance of others:

 Does any obscene act in any public premises, or


 Signs, recites or utters any obscene song, vulgar words, in or near any public place.
shall be punished with the confinement of either description for a term which may extend to three
months, or with fine, or with both.

Any offense related to obscenity in electronic form can be tried under the IT Act and not under the
IPC as Section 81 of the IT Act clearly states its overriding effect. But as per the facts and
circumstances of the case, provisions of both the IT Act as well as IPC could be attracted, as done in
the case of Avnish Bajaj v. the State (NCT of Delhi), 2008.

Section 354D was added to the IPC via the Criminal Law Amendment Act, 2013 after the heinous
gang rape and murder of victim Jyoti Singh, commonly referred to as the Nirbhaya case. It includes
an individual’s monitoring a woman’s internet history like their email or any other form of
communication. Therefore, collecting pictures of girls from their social media profiles would come
under the ambit of this section. The offender would be punished for three years and would also have
to pay a fine upon conviction.

Section 463 defines forgery, wherein any individual who makes any false documents or false
electronic record or part of a document or electronic record, with intent to cause damage or injury
would be said to have committed the offense of forgery. Section 465 provides punishment for
forgery, which is imprisonment of up to two years or fine, or both. Further, Section 471 talks about
the usage of forged documents or electronic records as genuine and imposes the same penalty on
forging such a document. Digitally altering a picture would fall within the purview of making false
electronic records.

Section 509 deals with words, gestures, or acts committed with the intention to insult the modesty
of a woman. Outraging of the modesty of a woman is a section that is frequently used along with
other sections of IPC involving sexual assault. Messages passing inappropriate comments upon the
body or physique of the girls whose images were circulated in the group would come under the
purview of this section. The punishment provided under this section is imprisonment up to one year,
or fine, or both.
There are many case laws related to obscenity in India. Like many other concepts and conventions,
the meaning of obscenity changes from case to case. Some famous example and recent examples of
Obscenity mentioned below:

 Milind Soman, a youth icon, actor and model, recently posted a picture of himself on his
Twitter handle in which he is running nude on the Goa beach in the state to mark his
birthday with a Caption – Happy Birthday to me, 55 and running. He was arrested by the
Goa Police under section 294 of IPC for promoting the obscene act in a public place and
also section 67 of Information and Technology act for publication of obscene content on
the social media but according to him, he was promoting his fitness. (see here)
 Recently, the Goa Police had arrested actor and model Poonam Pandey and her Husband for
allegedly trespassing on government property and shooting an objectionable video at a
dam in South Goa.
 In 2018, there was a case relating to obscenity AIB Roast Obscenity case, in which, many
Bollywood celebrities like Ranveer Singh, Arjun Kapoor, Deepika Padukone and famous
director Karan Johar and many others were accused in an obscenity case.

Some famous Landmark Judgment related to Obscenity are mentioned below:

 Aveek Sarkar v. State of West Bengal (see here) in this case a German Magazine published a
photograph of Boris Becker, a renowned tennis player, posing nude with his fiancée
Barbara Feltus, an actress covering her breasts with his hand. The picture was taken by
Feltus’ father. The article that contained this image was republished in the Indian
newspapers and magazine. After this, a complaint was filed against the newspaper under
Section 292 of IPC. But the Supreme Court of India ruled that the half-nude image of Boris
Becker with his fiancée was not obscene, after applying the community standard test, and
the reason is that the image is not obscene because it did not excite sexual passion or to
deprave or corrupt minds of people.
 Ranjeet D. Udeshi v. State of Maharashtra 1964 (see here) In this case, Ranjeet D. Udeshi is
one of the owners of the bookstall. At that time, there was a book named Lady
Chatterley’s Lover (see here) which was banned because the book had some obscene
content and he found some copies of the book. He was guilty under Section 292 of IPC, in
his appeal in the highest Court he contended that: (1) the section was void because it
violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the
constitution of India. (2) even if the section was lawful, the book was not obscene
content. (3) it must be pointed out by the plaintiff that he sold the book with the motive
to corrupt the buyer and that he knew that the book was not obscene.

Conclusion
The word obscenity is from one of those words whose meanings are vague or not clear in our Indian
Law. What is obscene content or not totally depends upon the lawyers and the judges and how they
interpret the word obscene. It is true that the definition of word obscenity would change from time
to time. What is obscene in the present day should not be treated as obscene in the future. We
know laws have to change from time to time but there is a need for a proper definition of obscenity.
It is too important to mention in the present time the appropriate degree of obscenity in movies,
web shows, arts, images or pictures, literature, has not yet been defined in our country.
In our country, where multiple religions and cultures exist, there is bound to conflict among them.
When these types of issues relating to someone’s culture or religion are touched and the artists
express their ideas or views over these types of sensitive issues, they should not be intercepted
merely because these are serious issues and they might hurt the sentiment of certain groups or
communities. All the works relating to art, literature, etc. do not generate hatred among the people.
Sometimes it is necessary to educate the people in a manner which is subtle and gentle to reduce
the tension in our society.

5. ELECTION OFFENCES

Introduction
Chapter IXA, Section 171 deals with offenses related to Elections in the Indian Penal Code. Elections in India
are no short of a festival and concern the people immensely. This Chapter was introduced by Section 2 of
the Indian Elections Offences and Inquiries Act, 1920,. It prescribes punishments for offences such as bribery,
personation, undue influence, making false statements to malign someone’s reputation during elections, etc.
The main object of this chapter is to ensure free and fair elections and to allow people to freely practice their
voting rights.

Objective
In terms of political affairs, liberty and equality are the fundamental factors to ensure concerning the concept
of free and fair elections. Free and fair elections connote that nobody is influenced while exercising their legal
right; that they can make and form decisions on their own, and have their personal choice free from the
bondage of another, without any malice or undue influence of another. Elections are crucial to ensure the
smooth running of a state and must be carried out in a fair manner. When a person castes his/her vote, he/she
is not under any influence or control of a party discipline, religion, sex, language, caste, creed, etc. One is also
not bound to corrupt practices such as bribery or using cheap tactics to smear someone’s election campaign.
Thus, free and fair elections are the epitome of a democratic nation.

Offences relating to Elections in Indian Penal Code

Bribery

As per Section 171B, a person is said to commit bribery when he/she gives gratification to someone
with the object of inducing such person with regards to practicing his/her electoral right, or as a
reward, after such person has exercised his/ her electoral right after being induced. The person
taking such bribe and being induced into practicing his/her electoral right differently is also guilty of
the offence of bribery.

For this section, a person is said to give gratification when they offer/attempt to give/ offer or
attempt to procure gratification. The person accepting or attempting to get gratification for changing
his/her pre-decided course and acting according to the wish of the one giving such gratification shall
be said to have received gratification.

A person committing the offence of bribery shall be punished with imprisonment which may extend
to one year, or a fine, or both, under the provisions of Section 171E. However, a person bribed by
the act of treating shall have to pay a fine only. “Treating” means providing or accepting food, drink,
entertainment or provision as gratification.
Undue influence at an election

Section 171C deals with undue influence at an election. It refers to the voluntary interruption or an
attempt to interrupt the free exercise of an electoral right. Interference with the free exercise of an
electoral right as per this provision includes-

 Threatening (with injury of any kind) a candidate or a voter or a person in whom a


candidate/voter is interested in, or;
 Misleading or attempting to induce a candidate/voter to believe that they, or any person
that they are interested in, shall be subjected to Divine displeasure or spiritual censure.
Exercise of a legal right without any mala fide intent to interfere with someone’s voting right,
declaration of public policy or a promise of public action does not count as interference as per the
meaning of this section.

As per Section 171F, undue influence at an election is punishable with imprisonment which may
extend to one year, or a fine, or both.

Personating at an election

Section 171D says that a person attempting to vote twice or vote by using unfair means is guilty of
the offense of personation. Each one is to cast their own vote. For example, a person applying for a
voting paper by using someone else’s name, whether living or dead, or under a fictitious name, or
has voted in such an election and wants to vote again is guilty of personation. A person abetting or
attempting to procure a voting paper by using any other person for their cause shall also be guilty of
the offense of personation.

It is important to note that a person authorized to vote as proxy for an elector under any law which
is at force at that time shall not be guilty of this offence.

Personation at an election is punishable with imprisonment which may extend to one year, or a fine,
or both as per Section 171F.

False statement in connection with an election

Section 171G states that whoever makes/publishes a statement in public, knowing/believing it to be


false or not believing it to be true, and disguising it to be a statement of fact, with an attempt to
malign the character or conduct of a candidate to disrupt the result of elections shall be punishable
with fine.

Illegal payments in connection with elections

As per Section 171(h), a person responsible for incurring/authorizing expenses to promote their
election campaign, which may include holding public meetings, press conferences, advertising,
circulars or publications, without any general or special authority in writing of a candidate shall be
punishable with a fine which may extend to Rs. 500.

However, if such a person, who has borne expenses not exceeding Rs. 10 without authority manages
to obtain authority in writing of the candidate within days from the date on which such expenses
were incurred, this provision would not be applicable as such person would be deemed to have
acted with the permission of the candidate.

Failure to keep election accounts

As per Section 171(i) of the Code, a person who is responsible for keeping an account for the
expenses incurred in connection with an election, as per the law which is in force at that time or as
per a rule which has the force of law, when fails to do so, shall be punishable with a fine which may
extend up to Rs. 500.

Suggested Reforms
The Fifth Law Commission proposed certain reforms to the currently existing Chapter IX-A of the IPC
relating to substantial changes. However, none of these provisions had been taken into accord and
compiled to date. The reforms include-

 Amending the definition of ‘electoral rights’- The current definition is exclusive of the right
of a candidate to withdraw his/her candidature from elections. The definition should be
modified to include the phrase “ to withdraw or not to withdraw” his/her candidature.
 The subclauses related to bribery and its prescribed punishment i.e Section 171B and 171E
should be combined as one section for a better understanding.
 The offense of bribery shall be taken seriously and a relatively stringent punishment must be
prescribed for it as it certainly interferes, to a large extent, with a smooth and fair election
process.
 The definition of undue influence is to be narrowed down and supposed to include violent
means of interfering with the free exercise of legal rights.
 Similar to the recommendation of bribery, both subclauses relating to personation i.e. IPC
Sections 171D and 171F should be combined for a better understanding.
 The punishment for making false statements must be made more stringent as it may have
adverse impacts on the minds of people and the reputation of the candidate. Instead of
dismissing with a fine only, imprisonment for a period extending up to 2 years is
suggested.
 The commission also deleted Section 171F and 171I as they have become redundant and
obsolete.
However, none of these recommendations were taken into account by the legislature or the
fourteenth law commission.

Landmark Judgments

E Anoop v State of Kerala, 2012

The petitioner had allegedly appeared at the polling station at Mokeri Government U.P. School in
Peringalam constituency, and changed his name and presented himself as Kuttikkattu Pavitharan in
the polling booth. He did so to obtain a voting paper even though he wasn’t the person he claimed
to be, nor was he a person belonging to that constituency/booth. The court held him guilty of the
offense of personation under Section 171D and 171F.
Iqbal Singh v. Gurdas Singh, 1975

In this case, the respondent was elected from a constituency in Punjab as a Member of Parliament.
The petitioner alleged that a minimum of 15,000 invalid votes had been cast, due to which the
respondent had been declared elected, and that the accused had allegedly distributed huge sums of
money to Harijans under the pretext of aiding them to construct Dharamshalas, and also gave out
several gun licenses as gratification to induce voters to vote for them.

The appellant contended that this gratification was liable to be admitted as the corrupt practice of
bribery and that the free legal rights of voters had been influenced and tampered with.

The accused failed to establish that 15,000 invalid votes had been cast. According to Rule 56 of
Election Rules, a ballot paper devoid of both, the mark and signature of the polling officer shall be
invalid. The same was not the case here.

“Gratification”, if to be included under bribery, shall only be used to refer to cases where a material
advantage is conferred on offering a gift. The license given in this case did not provide any material
advantage and hence couldn’t be said to be included under bribery. Apart from that, bribery
necessities the existence of bargaining of votes. Since there was no evidence regarding the
bargaining of votes in exchange for gun licenses, the issues did not stand ground and the case was
dismissed.

Raj Raj Deb vs Gangadhar, 1962

The respondent was the younger brother of the Raja of Puri in Odisha. The petitioner alleged that
the appellant wrongly used this fact to his benefit during election campaigning in the district of
Satyapadi, where he said that he was “Chalanti Bishnu” himself, and induced people to vote for him
by saying that if they don’t do so, they will be displeasing Lord Jagannath himself and every vote
given to him was a vote given to Lord Jagannath. He threatened Divine displeasure and spiritual
displeasure if his directions were not followed. Apart from that, he was also alleged that the appeals
had been made to the villagers to cast their votes on the ground of his caste, Khandayat. He also
used Nila Ghakra, which is the religious symbol of Lord Jagannath for his election campaigning.

The court held it to contravene Section 171F of IPC.

Veeraghavan v. Rajnikanth, 1997

The respondent, Mr. Rajnikanth is an established film actor with a massive fan following all over
Indian and especially in Tamil Nadu. The petitioner, a lawyer in the Supreme Court has accused him
of exercising undue influence over people as on the eve of the election, the respondent presented a
tele-campaign presentation where he urged the voters to accept Rs 500 or Rs. 1000 from the
petitioner, and still not vote for him.

The issue was whether this would attract IPC Section 171B, which deals with bribery and IPC Section
171C, which deals with undue influence.

The speech, as translated said that the voters of Tamil Nadu couldn’t be swayed by these tactics and
couldn’t be corrupted; therefore, if the opponent offered money as a bargain for votes, do not
hesitate and accept it, but still, exercise their legal rights freely as the people of Tamil Nadu could
not be bought.
The Court said that the respondent in the speech never advised to demand and receive a bribe. The
offending speech wasn’t so offending and it had no trace of mandate or imposition of restraint on
the voters to refrain from doing what they wished to do. The said sections of IPC were not applicable
and the respondent was thereby not guilty of any offense and the case was dismissed.

Conclusion
It is evident that these age-old punishments have become mostly redundant and not that strict to
avoid happening of the offenses. Every participating candidate in elections participates intending to
win and sees themselves as the most viable option. To work towards this goal, they may adopt unfair
means and tamper with the fair mechanism of carrying out elections. Offences relating to elections
need to be taken seriously and the punishment revised to ensure a fair election procedure.
Recommendations by the fifth law commission need to be considered and changes made
accordingly.

6. OBJETIVES, AFTER CARE & TYPES OF HOME UNDER JUVENILE


JUSTICE ACT
The laws relating to the child, having its seeds right from the enactment of the Constitution of India
in the form of fundamental rights under Article 15(3) read with Directive Principles of State Policy
under Article 39(e) & (f) along with fundamental duties under Article 51A, was the need of the
society. The laws relating to the child was also expedient to be enacted due to accession by the
Government of India to the Convention on the rights of the child, 1992, the standards set in UN rules
for the administration of justice, 1985, UN rules for the protection of juveniles deprived of their
liberty, 1990 and Hague Convention on Adoption,1993. And therefore, the law was enacted in the
year 1986 in form of Juvenile Justice Act and the same was, as per the above said natural
phenomenon of changes, changed time to time accordingly Le. Juvenile Justice (Care and Protection)
Act, 2000 and Juvenile Justice Act, 2015.

The Juvenile Justice (Care and protection of Children) Act, 2015:

The frightful incident of “Nirbhaya Delhi Gang Rape Case”, on December 16, 2012, shocked the
whole nation and many debates were started among the legal fraternity and socialists. The main
reason and issue of the debate was the involvement of the accused, who was just six months short
to attain the age of 18 years. The involvement of the accused in such a heinous crime of rape forced
the Indian Legislation to introduce a new law and thus, the Indian Parliament came up with a new
law which is known as “ Juvenile Justice (Care and Protection) Act, 2015. It came into force on 15
January 2016.

The Juvenile Justice Act, 2015 replaced the Juvenile Justice (Care and Protection of Children), 2000,
so that juveniles in conflict with the law, involved in Heinous Offences, can be tried as adults. There
are differing views on whether juveniles should be tried as adults. Some argue that the current law
does not act as a deterrent for juveniles committing heinous crimes. Whereas others are of the
opinion that the UN Convention on the Rights of the Child requires all signatory countries to treat
every child under the age of 18 years as equal. The provision of trying a juvenile as an adult
contravenes the Convention. The main features of the new Act are as follows:
o The Act permits juveniles between the age group of 16-18 years to be tried as adults for
heinous offences.
o Any 16-18 years old, who commits a lesser, i.e., the serious offence may be tried as an adult
only if he is apprehended after the age of 21 years.
o Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) will be constituted in each
district.
o The JJB will conduct a preliminary inquiry to determine whether a juvenile offender is to be
sent for rehabilitation or be tried as an adult.
o The CWC will determine institutional care for children in need of care and protection.
o The eligibility of adoptive parents and the procedure for adoption have been included in the
Act.
o Penalties for cruelty against a child, offering a narcotic substance to a child, and abduction or
selling a child have been prescribed.

Objects of the Act:

Former Chief Justice of India, Justice V.K. Krishna Iyer once stated that we need a penal code
because the child is the father of a man and if we’re neglecting the underdevelopment in children,
then we would be guilty of many faults and errors related to abandoning our children. The following
are the objectives of the Juvenile Justice (Care and Protection of Children) Act, 2015.

o To lay down the basic principles for administering justice to a juvenile or the child in the Act;
o To make the juvenile justice system meant for a juvenile or the child more appreciative of
the developmental needs in comparison to the criminal justice system as applicable to
adults;
o To bring the juvenile law in conformity with the United Convention on the Rights of the
Child;
o To prescribe a uniform age of eighteen years for both boys and girls;
o To ensure speedy disposal of cases as enshrined under Article 21 of the Constitution of India
by the authorities envisaged under this Act regarding juvenile or the child within a time limit
of four months;
o To spell out the role of the State as a facilitator rather than doer by involving voluntary
organizations and local bodies in the implementation of the proposed legislation;
o To create special juvenile police units with a humane approach through sensitization and
training of police personnel;
o To enable increased accessibility to juvenile or the child by establishing Juvenile Justice
Boards and Child Welfare Committees and Homes in each district or group of districts;
o To minimize the stigma and in keeping with the developmental needs of the juvenile or the
child, to separate the Act into two parts—one for juveniles in conflict with the law and the
other for the juvenile or the child in need of care and protection;
o To provide for effective provisions and various alternatives for rehabilitation and social
reintegration such as adoption, foster care, sponsorship, and aftercare of abandoned,
destitute, neglected, and delinquent juvenile and child.
o To allow juveniles between the age group of 16-18 years to be tried as adults for heinous
offenses.

Observation Homes
An Observation Home (hereinafter referred to as OH) is a child-care facility that is “for the
temporary reception, care, and rehabilitation of any kid claimed to violate the law, while an inquiry
is pending.” as per Section 47 of the JJ Act 2015, the State Government shall create and operate
Observation Homes in each district or set of districts, either independently or through voluntary
organizations or non-governmental organizations (NGOs). The JJMR, 2016, Rule 29(1)(i) states that
separate OHs for boys and girls, as well as age-based segregation, should be implemented, taking
into account physical and mental health, as well as the severity of the offence committed.

During the pendency of any investigation, these homes will be constructed in every district or for a
group of districts for the temporary reception, care, and rehabilitation of any child believed to
violate the law. Rule 9 of the JJMR 2016 states that if a child cannot be brought before the Juvenile
Justice Board (JJB) or a single member due to odd hours or distance, the Child Wellbeing and
Protection Officer (CWPO) should hold the child in the OH or suitable facility and produce the child
before the JJB within 24 hours after arrest. If a child is denied bail, he or she may be placed in an OH.

Special homes
A Special Home is an institution that is responsible for “housing and providing rehabilitative
services” to children who have been found guilty of a crime and ordered by the JJB or the Children’s
Court to be placed there as defined under Section 2(56) of the JJ Act, 2015. Section 47(1) obliged the
State Government to create and maintain Special Homes also in each district or group of districts,
either independently or through volunteer organizations or non-governmental organizations (NGOs).

Rule 29 (1)(ii) of the JJMR 2016 states that there should be distinct Special Homes for girls beyond
the age of ten, boys between the ages of eleven and fifteen, and boys between the ages of sixteen
and eighteen. Children in the Special Home should be divided into groups based on the nature of
their offences and their mental and physical condition.

Place of Safety
A “Place of Safety” is a child-care facility for children who have been accused of or found to violate
the law as per Section 49 of the JJ Act 2015, at least one haven should be established by the state
government. Separate arrangements and facilities should be created for children or people under
investigation and children or people who have been convicted. As noted in Section 2(46) of the JJ Act
2015, it must not be a police station or a jail. It can be set up on its own or as part of an Observation
Home or Special Home. The person in charge of the safe-haven should be willing to accept the child
if the JJB or Children’s Court issues an order. After being found guilty, people can be held in a safe
facility while their case is being investigated and while they are being rehabilitated.

The JJB or Children’s Court can order a person to be transported to a safe place in six different
circumstances as per Section 18, 19, and 49 of the JJ Act 2015 along with Rule 29 of JJMR 2016:

1. For juveniles aged 16 to 18 years who are suspected of committing a heinous crime while
the investigation is ongoing;
2. Juveniles aged 16 to 18 years are found to have been involved in a heinous crime after the
investigation is completed;
3. For persons above the age of 18 who are accused of committing an offence while under
the age of 18 pending investigation;
4. For persons over the age of 18 who are found to be involved in an offence after the
investigation is completed;
5. For children placed in protective custody by the Board under clause (g) of sub-section (1)
of Section 18 of the Act because their conduct and behaviour are such that the JJB
believes it is not in the child’s or other children’s best interests to keep them in a Special
Home;
6. For a person whose claim to be a child is being investigated and is required to be kept in
protective custody.
Section 49 of the JJ Act states the setting up of a place of safety. It notes that a person above the age
of eighteen years or a child in conflict with the law who is between the ages of sixteen and eighteen
years who is suspected of or guilty of committing a heinous offence shall be placed in at least one
place of safety in a State listed under Section 41 of the JJ Act. Every place of safety must have
separate preparations and facilities for the accommodation of such children or persons throughout
the investigation process, as well as children or persons who have been convicted of committing an
offence. The State Government may prescribe the types of sites that can be recognized as places of
safety under subsection (1), as well as the amenities and services that can be offered there, through
laws.

Every year, the District Child Protection Unit (DCPU) is required under Model Rule 85 (iv) to perform
an evaluation of the child put in the place of safety and transmit the report to the Children’s Court.
There is uncertainty over whether a person or a kid who has crossed the age of 18 at the time of
apprehension or during the investigation should be placed in an institution. The JJ Act makes this
extremely plain. It stipulates (under Section 49) that the State Government shall establish at least
one place of safety in a state, fully registered under Section 41, in which such persons or children
shall be lodged if apprehended after the age of 18 years. A CICL between the ages of sixteen and
eighteen who is accused of or convicted of committing a serious crime will be placed in a Place of
Safety as well.

As observed in the Handbook of Advocates, when the child’s Place of Safety and Special Home is not
established in the district where the child’s family lives or in the district where the concerned
JJB/Court Children’s has jurisdiction over the child’s case, the child’s right to contact with family is
denied. All of this could have an impact on the child’s reformation assessment when he or she
reaches the age of 21. In such cases, the attorney can file a video-conferencing application. The lack
of rehabilitative services within the Place of Safety can also be brought to the attention of the
Children’s Court and the JJB. This implementation gap could also be brought to the attention of the
High Court Committee and Juvenile Justice.

Fit facility
The JJ Act allows for the temporary or short-term placement of children in a “Fit Facility.” Section 2
(27) defines a fit facility as one that is managed by the government or by a voluntary or non-profit
organization and is prepared to care for a child temporarily for a specific purpose.

Section 51(1) of the JJ Act 2015 empowers the JJB or the Child Welfare Commission (CWC) to
recognize a facility run by a governmental organization or a voluntary or non-governmental
organization (NGO) registered under any law currently in force as being fit to temporarily take
responsibility for a child for a specific purpose. This is done after a thorough investigation into the
facility’s and the organization’s suitability to care for the child in the manner that may be prescribed.

It’s critical to distinguish between a fitness centre and a residential residence. While a residential
home (Observation Home, Special Home, or Children’s Home) strives to provide long-term care, a Fit
Facility is simply supposed to care for the child temporarily. Some instances are as follows:

 A child with a substance abuse problem may be placed in a de-addiction centre by the CWC
or JJB if the institution is deemed suitable for the child.
 A specialized hospital may be deemed a suitable institution if a child is suffering from a
sickness that necessitates special treatment or quarantine.
 The JJB has the authority to release a child on probation and place him or her in a suitable
institution, as well as to order that the child be supervised by a Probation Officer who
must provide periodic reports in Form 10 for three years.
 After speaking with the child, the CWC may issue orders for the child to be placed in safe
care in a suitable facility until he or she can be put into a home or returned to their
parents or guardians.
According to Model Rule 11(8), if the child is placed in a fitness facility, the JJB shall consider the fit
facility or special home that is closest to the child’s parent or guardian’s house, unless it is not in the
best interest of the child to do so.

Any facility seeking to be recognized as a fit facility must meet the following requirements:

1. Meet the basic standards of care and protection for children;


2. Provide basic services to any child placed with it;
3. Prevent any form of cruelty, exploitation, neglect, or abuse of any kind to any child placed
with it; and
4. Follow the Board’s or Committee’s orders.

The procedure followed if a child runs away from a child care institution
Section 26 of the JJ Act 2015 describes the situation where if any child has escaped from an
Observation Home, Special Home, or other places of safety, or from the care of a person or
institution under whom the child was put by a JJB/Court Children’s order, can be taken into custody
by the police. The child must then be produced within 24 hours of the JJB that approved the original
order or the JJB closest to the location where the child was discovered. The JJB should figure out why
the child ran away and then issue instructions for the child to be returned to the same or a
comparable location or person. It can also include extra instructions for any specific actions that
must be taken in the child’s best interest.

There should be no further procedures brought against such a youngster. For example, if a child runs
away from an Observation Home because of sexual assault by a staff member, the JJB may opt to
move the child to a different facility. It could also mandate counselling and medical evaluations in
the child’s best interests, as well as direct the police to file an FIR.

Gaps within the CCIs

Systematic abuse

“It will not be an understatement to state that juvenile justice homes….have become India’s hell
holes where inmates are subjected to sexual assault and exploitation, torture and ill-treatment,
apart from being forced to live in inhuman conditions,” according to a 2013 report by the Asian
Centre for Human Rights (ACHR), “India’s Hell Holes: Child Sexual Assault In Juvenile Justice Homes.”
The study goes on to detail 39 examples of minors in juvenile justice facilities, including government-
run observation houses, children’s homes, shelter homes, and orphanages, being sexually assaulted
repeatedly.
Systemic abuse can be avoided by establishing a culture inside the institution that makes it
undesirable. A written code of behaviour for employees and visitors, awareness training for trustees,
staff, and children, and huge visible posters encouraging reporting are all examples of ways to foster
such a culture. Children can also be empowered through life skills training and the development of
child committees. Regular visits from partner charities and counsellors can also help to foster an
open and secure culture.

Gaps in funding and data collection

The Integrated Child Protection Scheme (ICPS) includes adequate funding for childcare facilities. In
practice, however, implementation varies from state to state, and funding is inconsistent and
unpredictable. Furthermore, while the Child Welfare Committee and the District Child Protection
Unit are in charge of overseeing childcare facilities, they lack current data on children and rely on
occasional inspections. We propose that, in addition to inspections, supervision be guided by child-
level data, which is difficult to falsify and represents reality on the ground.

The number of children in an institution and the outcomes achieved can be used to determine how
much money is disbursed under the ICPS. Data can be collected and kept up to date by digitizing the
various registers kept by the Juvenile Justice Department (JJ Act). We also need to gather outcome-
based data, such as BMI, illness prevalence, children requiring major medical intervention, and so
on. For example, doing six-monthly checkups is a fantastic approach to analyze BMI, disease
prevalence, children requiring serious medical intervention, and so on. Similarly, children’s
educational standing can be assessed once a year with an assessment test.

Lack of training for children

When children reach the age of 18, they must leave the institution, and most youngsters have little
assistance after that. Aftercare is a big gap in all institutions, and it isn’t even a focus area in most of
them.

While the child is in the institution, preparation should begin around the age of 14 or 15. Career
awareness, life skills, and basic financial literacy are all crucial in preparing a child for the day when
they must leave and become self-sufficient. By the time the child reaches the age of 18, they should
have a clear path to a respectable living and the support they need to get there. Not just financial
assistance is essential, but also mentoring and handholding, similar to how a parent would look after
a child during these formative years. CCI must form partnerships with nonprofits that can provide
follow-up services. The overarching goal must be rehabilitation, and until the problem of the “final
mile” is addressed, our corruption will become a reality.

Lack of technical staff

Most childcare facilities have good intentions but lack the necessary expertise and human resources.
For example, they require assistance in comprehending the JJ Act’s processes, documentation, and
compliance requirements, as well as the ICPS scheme’s compliance requirements. Similarly, the
trustees and employees need child care training or nutritionist assistance to improve their diet using
locally available food. Institutions also require ‘know how’ in areas such as life skills and vocational
training, as well as the preparation of child plans. Most childcare centres are too small and
inexperienced to provide these services.
Conclusion
As noted above, there are laws and rules in India concerning Childcare institutions but what is
required is a stricter implementation by the legislature then only we can expect a better life for the
juveniles, which is the ultimate purpose of the enactment of juvenile justice administration. The
objective of the enactment of the Act will be fulfilled only when there is a stricter implementation of
the laws relating to it.

7. OFFENCE OF NUISANCE

Introduction
The word “nuisance” has come up from the French word “nuire”, which means “to do hurt, or to
annoy”. Every person is entitled to the peaceful possession of his property. Any element of
disturbance or hindrance in the enjoyment of property rights would constitute a nuisance. According
to Stephen, any act that causes annoyance or injury to the defendant, concerning his enjoyment of
his property, and which does not constitute trespass, is a nuisance. According to Salmond, an act
that involves an unlawful release of an object into the plaintiff’s premises, which is deleterious to
the plaintiff’s general well-being, is a nuisance.

What is Nuisance?
Nuisance could be defined as unlawful interference in the peaceful enjoyment of one’s property, or
any right associated with it. There is a significant difference between trespass and nuisance. In the
former, there occurs a physical interference in the plaintiff’s possession of the land. Whereas in
latter, there is more of an indirect interference with the plaintiff’s right to property. For instance,
flinging pebbles at the plaintiff’s property would constitute trespass, whereas hindering the
plaintiff’s peaceful possession of the property by playing your radio at an unusually high volume
would result in a nuisance. Nuisance could occur either with respect to a particular individual’s
property rights or in the context of the general public’s property rights.

Public Nuisance
Section 3(48) of the General Clauses Act, 1897 declares public nuisance to be as defined by
the Indian Penal Code. According to Section 268 of the Indian Penal Code, public nuisance comes
into the picture when a person commits an act that causes common injury, danger, or annoyance to
the general public. Basically, any act that hinders either the property rights of the general public or
any other right. For instance, in Malton Board of Health v. Malton Manure Co., (1879), it was
declared that carrying on a trade/business that causes deafening noises is impermissible, as it would
cause a public nuisance. In order to avoid multiplicity of proceedings, a public nuisance is
unconcerned with individual rights. However, a person could sue the wrongdoer in his private
capacity, if the following conditions are satisfied-

 The person needs to show that the injury he faced was substantially greater than what the
rest of the public faced.
 The injury he faced must essentially have been direct, not merely consequential.
Nuisance as a crime
Public nuisance has been declared a crime under Section 268 of the Indian Penal Code. Public
nuisance occurs when a person commits an act that causes annoyance, or injures or threatens to
injure the rights of the general public, with respect to health, safety, morals, convenience, or welfare
of the general public. Basically, an act done to the detriment of the public, or an omission when the
act was necessary for the public good, would constitute a public nuisance. Examples include blocking
a public road, unlawfully digging up a pit on public grounds, exploding fireworks on the streets,
operating a house of prostitution, harbouring vicious dogs, and unlicensed prizefights.

In Leanse v. Egerton, the plaintiff, while passing by the defendant’s unoccupied premises, was struck
by a piece of glass that fell out of a broken window. An air raid on a Friday had caused the shattering
of the window. It was held that although the defendant’s offices were shut every Saturday and
Sunday due to the difficulty in finding labour on these days, the defendant’s agents ought to have
inspected the premises and taken reasonable steps to prevent such mishaps. Therefore, they were
held liable for committing public nuisance, since their act injured or threatened to injure the rights
of the general public.

In K Ramakrishnan v. State of Kerala (1999), the court declared public smoking of tobacco in any
form to constitute a public nuisance. Smoking is harmful to the public at large, thereby fulfilling the
requisites of public nuisance.

In Soltau v. De Held (1851), the plaintiff resided in close quarters to the roman catholic church. The
chapel bell of the church was rung all through day and night. It was held that the continuous ringing
of the bells constituted a public nuisance.

Punishment in public nuisance


Section 290 of the Indian Penal Code deals with the punishment attracted by an act of public
nuisance. According to it, any person guilty of committing public nuisance is to be punished with a
fine which may extend up to 200 rupees. However, Section 291 says that if an injunction has been
delivered against the defendant, and he still does not cease the act of nuisance, he would either be
punished for a term of imprisonment that may extend up to 6 months, or be charged a fine, or both.

Private Nuisance
When there is an unlawful interference with respect to a particular individual’s property rights, the
act constitutes a private nuisance. Thus, for private nuisance to occur, the following two conditions
must be satisfied-

 There must be an interference with the ‘peaceful possession’ of the plaintiff’s property.
 The interference must be unlawful, i.e., it must not satisfy any of the defences to the tort of
nuisance.
A private nuisance may occur in two modes. The first one is an injury to the plaintiff’s property, and
the second one being physical discomfort.

 Injury to property
In St. Helen’s Smelting Co. v. Tipping (1865), the plaintiff’s land was in close quarters to a copper
smelting factory, which had been operating for quite some time then. As a part of its regular
procedure, the factory emitted large quantities of noxious gases. The emission caused substantial
damage to a large number of trees on the plaintiff’s land. It was held that although the defendant
had lawfully been operating his business for a substantial amount of time, and the plaintiff himself
had come to the place of the nuisance, the claim was allowed. No matter how reputed a
trade/business is or how long it has been operating, if an individual does incur physical discomfort or
injury to his property, he could sue for private nuisance.

In Hollywood Silver Fox Farm Ltd. v. Emmett (1936), the plaintiff carried on a business of breeding
silver foxes in order to utilize their fur. Foxes are, by their very nature, of a nervous temperament,
and sudden scares could cause them to miscarry. The defendant, an animal rights activist, lived
adjacent to the plaintiff’s land. He did not approve of the plaintiff’s business and sought to have it
terminated. He wilfully asked his son to fire a gun in order to startle the foxes, and thus cause them
to miscarry. The plaintiff sought an injunction in order to prevent the defendant from committing
this act. His claim was allowed since the defendant’s act involved injury to the plaintiff’s property.

In Ram Raj Singh v. Babulal, the defendant carried on a trade that involved crushing bricks through a
brick crusher apparatus. The process resulted in the emission of a large quantity of dust in the
surrounding areas. The plaintiff, a medical practitioner, lived adjacent to the defendant’s premises.
He complained that the dust emitted as a result of the plaintiff’s trade was detrimental to his and his
patient’s health. In this case, since a large number of people were involved, the plaintiff’s act
constituted a public nuisance. However, the court issued an injunction order against the defendant
and granted special damages to the plaintiff.

 Physical discomfort
In order to satisfy this essential, the following two conditions must be followed-

 The act must not be within the defendant’s usual course of enjoyment of his property. In
order to constitute an act of nuisance, the defendant must have committed an act outside
the purview of his ordinary enjoyment of land.
 The act must cause physical/mental discomfort to an ordinary person in the locality.
In Imperial Gas Light and Coke v. Broadbent, the defendants were involved in a manufacturing
business that emitted large quantities of noxious gasses. The plaintiff’s residence in close quarters to
the defendant’s business premises. The plaintiff complained that the residual gases had caused
substantial damage to his trees and plants. Although he was awarded damages, the defendants did
not cease the act of nuisance. In a subsequent suit, the plaintiff managed to secure an injunction
prohibiting the defendants from continuing the act.

In Inglis v. Shots Iron Co., the defendants carried on a business that involved calcining coal and
ironstone. The plaintiff complained that the noxious vapours emitted from the defendants’ trade
caused him physical discomfort, and also caused significant damage to his tree plantations. His
appeal was granted.

Defences

 Prescriptive rights

An unlawful interference in the peaceful possession of the property would constitute a private
nuisance. However, the defendant could acquire the right to commit the nuisance, in the event of
the plaintiff not taking any steps to stop the defendant from committing the act of nuisance. In such
cases, the act of nuisance gets legalized ab initio, i.e, it is presumed that the plaintiff consented to it
at its very commencement. However, no prescriptive rights could be acquired in cases of public
nuisance, since public nuisance is a crime and thus prohibited by law.

In Sturges v. Bridgman, the plaintiff was a doctor who came to occupy a piece of land. Further, he
bought a shed from where he would carry on his business. The shed happened to be in close
quarters to a confectioner’s property. The doctor claimed that the confectioner’s act of grinding his
pestle and mortar was extremely noisy, and thus an interference in the peaceful enjoyment of his
property. It was held that although the defendant had been using machinery for more than 20 years,
the plaintiff was not affected by the noises until he started working in the shed. Thus, what
constitutes a nuisance is to be assessed on a case by case basis.

 Statutory Authority

For an act to come under the ambit of nuisance, it must essentially have been committed
‘unlawfully’. An act committed by a person fulfilling the duty imposed upon him by the state is
considered lawful, and thus, not nuisance. In Vaughan v. the Taff Vale Railway Company, the
defendant had been authorised under a statute to run locomotives. The defendant’s railway was
adjacent to a wood, which harboured inflammable grass. On account of the sparks emitted by the
locomotives, the wood was burned down. It was held that the defendant had not committed an act
of nuisance, since a statute had granted him the authority to commit the act.

Remedies
The most common way to remedy nuisance is monetary compensation. The object of providing
damages is to place the plaintiff in the same position as he was prior to the act of nuisance.
However, the plaintiff may also file for an injunction against the tortfeasor. An injunction, also
known as a restraint order, is a command by the court either prohibiting the plaintiff from
committing the wrongful act (prohibitive injunction) or ordering the plaintiff to do something in
order to cease the wrongful act (mandatory injunction).

Conclusion
Public nuisance has been declared a crime under Section 268 of the Indian Penal Code. It attracts a
penalty of a fine which may extend up to 200 rupees. In the event of the defendant continuing the
act in spite of being enjoined by a lawful authority not to, he would be punished for a term of
imprisonment that may extend up to 6 months, or with fine, or both (Section 291).

Since tort law is uncodified in the Indian legal system, what constitutes private nuisance is decided
on a case by case basis. The Indian courts have also borrowed a number of English law principles, as
well as court decisions from the common law system in order to help them assess cases of private
nuisance.

8. WAGING WAR AGAINST GOVERNMENT OF INDIA


Section 121
Waging, or attempting to wage war, or abetting waging of war, against the Government of India.-

“Whoever, wages war against the Government of India, or attempts to wage such war, or abets the
waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to
fine”.
It is a cognizable, non-bailable offence tried by session Court.

For example, Farhan by joining a revolt against the Government of India has committed the offence
mentioned above.

Historical background
Earlier the word used in section 121 was Queen. After the adoption of the constitution of India, it
was replaced by the word “Government of India” through the adoption of laws order in 1950.

In a republic country, the original power is vested in the hands of the people of the court and
sovereigns merely the representatives of the people, who are chosen to act on behalf of them. From
this one can conclude that the word government of India embodied in section 121 can be held as the
meaning of state or used interchangeably the people of the country as the repository of the
sovereignty of India which is manifested and expressed through the elected representatives or
Government[1].

Ingredients
Following are the ingredients of section 121-

[1] The accused waged or attempt to wage war or abetted the waging of war;

[2] Such a war was against the government of India.

In the case of Maganlal Radhakrishnan v. Emperor[2], following characteristics of the offence laid
down by the Supreme court-

1. No specific number of person is required to commit this offence

2. The number of people concerned and the manner in which they are equipped is immaterial.

3. True criteria are based on “Quo Animo”, did the gathering assemble

4.The object of the gathering must be attained by force and violence and object of a general public
nature thereby striking directly against the king’s authority.

5. There is no distinction between principal and accessory and everyone who takes part in the
unlawful act incurs the same guilt.

Meaning of Waging war against the Government


The concept of waging war can not only be understood by the concept of international law sense of
inter-country war involving military operations neither it means to punish the prisoners of war of
enemy countries. Leaving the legislative history, interpretation by various High Courts of expression
“ waging war against the government” during pre-independence can be contemplated that war here
in section 121 doesn’t only means conventional warfare between two NAtions, mere organizing or
joining the insurrection against the government of India is also a form of war.

The expression ‘waging war’ means and can only mean waging war in the manner usual in war. In
order to support a conviction under this section, it is not enough to show the person charged has
contrived to obtain possession of an armoury and have, when called upon to surrender it, used the
rifles and ammunitions so obtained against the government troops.

It was held in the case of Nazir khan V. state of Delhi[3], that seizure of armoury was a part of a
planned operation and that their intention in resisting the troops of the government was to
overwhelm to defeat these troops and go on and crush any further opposition which they might
meet until the leader of the operation got the full possession of the machinery of government of
yielded the demand of their leaders.

In paragraph 272 of the Judgement held in case of State (N.C.T of Delhi) v. Navjot Sandhu @ Afsan
Guru[4], Justice p. Venkatrama reddi., Speaking for the Court, addressing law commission report
said that “ We conceive the term waging war against the government” naturally to import the
person arraying Himself in defiance of the government in like manner and by like means as a foreign
enemy would do, and it seems to us, we presume it did to the authors of the code that definition of
the term so unambiguous would be superfluous.”

The new concept of waging war and caution against using old
The concept embodied in section 121 can not be misled with the meaning of conventional war
between the two countries, the normative phenomena of war as understood in an international
sense does not fit in the ambit of section 121.

The court must be cautious in adopting an approach which has the effect of bringing within the fold
of Section 121 all acts of the lawless and violent act resulting in destruction in public properties. And
all act of violent resistance to the armed personal to achieve certain political objectives. The
moment it is found that the object sought to be achieved is of general public nature or has a political
shade, the offensive violent acts targeted against the armed forces and public officials should not be
termed as an act of waging war.

The expression waging war should not be stretched too far to hold all the acts of disturbing public
peace and tranquillity against the government, a balanced and realistic approach called for
consideration irrespective of how it was viewed in the past of expression waging war.

Government of India
The expression used under section 121’ government of India’ ‘ is surely embodied with broader
concept nit with narrower or restricted way. In our consideration section, 121 government of India
used to imply the Indian states, the juristic embodiments of the sovereignty of the country that
derives its legitimacy from the people of India, the term government of India signify the notion of
sovereignty of a territorial unit is deemed to vest in the people of the territory and exercised by the
elected government[5].

Abets the waging of such war


If a person abets the other person to do the above-mentioned offence then such abetment is made
a special offence, it is not essential that as a result of the abetment the war should, in fact, be
waged. The main purpose of the instigation should be waging war.
It should not merely be a remote or incidental character but the thing principally aimed at by the
instigation hence there must be active suggestions and stimulations to use of violence. Although the
general law relating to abetment made a distinction between the successful attempt of abetment
and failed attempt, this section makes no such distinctions. There is also no distinction between the
principal and the accessory, and all who take a party shall be deemed to be guilty in the lawful act
incurred the same liability.

Abolition of Limited Estate in The Light of Hindu Succession Act, 1956

So long as a man only tries to inflame feelings to exercise the state of mind, he is not guilty of
anything more than sedition. One is guilty of instigating and thereby abetting the waging of war only
when he definitely and clearly incites to action.

Cases
Parliament Attack Case
A single most important factor which pimples to think that this is the case of waging war or
attempting to wage war against the government of India, as the target of attaching chosen by slain
terrorists and conspirators and the immediate object sought to be achieved thereby. The battlefront
chosen for this was “parliament”, a symbol of the sovereignty of the Indian republic.

Huge and powerful explosives, sophisticated arms and ammunition carried by the slain terrorist,
who indulge in ‘fidayeen’ operations with a definite purpose in view, is a clear indicator of grave
danger in store for the inmates of the house. The planned act, if executed. Would have spelt disaster
for the whole nation.

Even if the conspired purpose and objective fall short of installing some other authority or entity in
the place of an established government, it does not detract from the offence of wagering war.

Red fort attack Case

The evidence as to the transmission of thoughts sharing the lawful design would be sufficient for
establishing the conspiracy. Again there must have been some activity in pursuance of the
agreement. The appellant held guilty under section 121 & 121A and the conviction stood
correctly[6].

Section 121A
Whoever within or without India conspires to commit any of the offence punishable by section 121,
or conspire to overawe, by means of criminal force or the show of criminal force, the Central
Government or any State Government, shall be punished with imprisonment for life, or with
imprisonment of either description which may extend to 10 years, and shall also be liable to fine.

To constitute a conspiracy under this section, not necessary any act or illegal omission shall take
place in pursuance of thereof.

The reason behind this offence, to make conspiracy punishable because, the person who by
conspiring to bring out such results, set the whole matter in motion seem more criminal and far
more deserving of punishment than those who were their mere tool, and only took part in such an
assembly.

The world conspires to overawe by means of criminal force or the show of criminal force, the central
government, or any state government, in this section clearly embrace not merely a conspiracy to
raise a general insurrection but also a conspiracy to overawe the central government or any state
government by way of organising serious riots and tumultuous assembly[7].

Conclusion

Every country has possessed the problem of unnecessary sectarian strife and political hue agendas,
which ultimately affect the sovereignty of particular countries, and all this result can be accelerated
by the person who wanted to wage war against the government or attempt to wage war against the
government.

In respect of this, the particular government has the right to protect itself from these kinds of
activities, this gives a way of offences related to the state. One of the offences underlying was
section 121 & 121A. Which talks about waging war or attempting to wage war against the
government of India.

Attack like parliament act, Mumbai terror attack briefly placed this section important to protect the
sovereignty of India, hence anyone who tries or commits to wage war against the government of
India shall be punished as per the punishment mentioned under this section.

9. Protection of Witness Under MCOCA:


Section 19:

Protection of Witness:

(1) Notwithstanding anything contained in the Code, the proceedings under this Act may be held in
Camera, if the Special Court so desires.

(2) A Special Court may, on an application made by a witness in any proceeding before it or by the
Public Prosecutor in relation to such witness or on its own motion, take such measures as it deems
fit for keeping the identity and address of any witness secret.

(3) In particular, and without prejudice to the generality of the provisions of sub-section (2), the
measures which a Special Court may take under that sub-section may include,—

(a) the holding of the proceedings at a place to be decided by the Special Court;

(b) the avoiding of the mention of the names and addresses of the witnesses in its orders or
judgements or in any records of the case accessible to public;

(c) the issuing of any directions for securing that the identity and addresses of the witnesses are not
disclosed;

(d) that, it is in the public interest to order that all or any of the proceedings pending before such a
Court shall not be published in any manner.
(4) Any person who contravenes any direction issued under sub-section (3) shall be punishable with
imprisonment for a term which may extend to one year and with fine which may extend to one
thousand rupees.

For the protection of witness, it is laid down that, if not willing, the witness need not be produced in
Court. Thus, under such a judicial dispensation, there is no fear of victimisation. As per section 19(1)
of the MCOCA, 1999, notwithstanding anything contained in the Code, the proceedings under this
Act may be held in camera if the Special Court so desires.

As per section 19(2) of the MCOCA, 1999 a Special Court may, on an application made by a witness
in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own
motion, take such measures as it deems fit for keeping the identity and address of any witness
secret.

As per section 19(3) of the MCOCA, 1999 in particular, and without prejudice to the generality of the
provisions of sub-section (2), the measures which a Special Court may take under that sub-section
may include:

the holding of the proceedings at a place to be decided by the Special Court;

the avoiding of the mention of the names and addresses of the witnesses in its orders or judgements
or in any records of the case accessible to public;

the issuing of any directions for securing that the identity and addresses the witnesses are not
disclosed;

that, it is in the public interest to order that all or any of the proceeding pending before such a Court
shall not be published in any manner.

As per Section 19(4) of the MCOCA, 1999 any person who contravenes any direction issued under
subsection (3) shall be punishable with imprisonment for a term, which may extend to one year and
with fine that may extend to one thousand rupees.

Forfeiture and Attachment of Property:

Section 20:

Forfeiture and Attachment of Property:

(1) Where a person has been convicted of any offence punishable under this Act, the Special Court
may, in addition to awarding any punishment, by order in writing, declare, that any property,
movable or immovable or both, belonging to the accused and specified in the order, shall stand
forfeited to the State Government, free from all encumbrances.

(2) Where any person is accused of any offence under this Act, it shall be open to the Special Court
trying him, to pass an order that all or any properties, movable or immovable or both, belonging to
him, shall, during the period of such trial, be attached, and where such trial ends in conviction , the
properties so attached shall stand forfeited to the State Government, free from all encumbrances.

(3) (a) If, upon a report in writing made by an investigating police officer with the approval of the
supervisory officer referred to in subsection (1) of section 14, any Special Court has reason to believe
that any person, who has committed an offence punishable under this Act has absconded or is
concealing himself so that he may not be apprehended, such Court may, notwithstanding anything
contained in section 82 of the Code, publish a written proclamation requiring him to appear at a
specified place and at a specified time not less than fifteen days but not more than thirty days from
the publication of such proclamation : Provided that, if the investigating police officer concerned
fails to arrest the accused, who has absconded or is concealing himself, within a period of three
months from the date of registering the offence against such person, the officer shall, on the expiry
of the said period, make a report to the Special Court for issuing the proclamation.

(b) The Special Court issuing a proclamation under clause (a) may, at any time, order the attachment
or any property, movable or immovable or both, belonging to the proclaimed person, and thereupon
the provisions of sections 83 to 85 of the Code shall apply to such attachment as if such attachment
were made under that Code.

(c) If, within six months from the date of attachment, any person, whose property is, or has been, at
the disposal of the State Government under sub-section (2) of section 85 of the Code, appears
voluntarily or is apprehended and brought before the Special Court by whose order the property
was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such
Court that he did not abscond or conceal himself for the purpose of avoiding apprehension and that
he had not received such notice of the proclamation as to enable him to attend within the specified
time therein, such property or, if the same has been sold, the net proceeds of the same and the
residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the
attachment, be delivered to him.

10. ADULTERATION OF DRUGS


Drug:

According to Section 2(b) of the Drugs and Cosmetics Act, 1940 “drug” includes–

(i) all medicines for internal or external use of human beings or animals and all substances intended
to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in
human beings or animals, including preparations applied on human body for the purpose of
repelling insects like mosquitoes;

(ii) such substances (other than food) intended to affect the structure or any function of the human
body or intended to be used for the destruction of vermin or insects which cause disease in human
beings or animals, as may be specified from time to time by the Central Government by notification
in the Official Gazette;

(iii) all substances intended for use as components of a drug including empty gelatin capsules; and
(iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or
prevention of disease or disorder in human beings or animals, as may be specified from time to time
by the Central Government by notification in the Official Gazette, after consultation with the Board.

Adulterated Drug:

According to Section 9A of the Drugs and Cosmetics Act, 1940. for the purposes of Chapter III, a drug
shall be deemed to be adulterated,–

(a) if it consists, in whole or in part, of any filthy, putrid or decomposed substance; or

(b) if it has been prepared, packed or stored under insanitary conditions whereby it may have been
contaminated with filth or whereby it may have been rendered injurious to health;

(c) if its container is composed in whole or in part, of any poisonous or deleterious substance which
may render the contents injurious to health; or

(d) if it bears or contains, for purposes of colouring only, a colour other than one which is prescribed;
or

(e) if it contains any harmful or toxic substance which may render it injurious to health; or

(f) if any substance has been mixed therewith so as to reduce its quality or strength.

Section 274 IPC:

Adulteration of Drugs:

Whoever adulterates any drug or medical preparation in such a manner as to lessen the efficacy or
change the operation of such drug or medical preparation, or to make it noxious, intending that it
shall be sold or used for, or knowing it to be likely that it will be sold or used for, any medicinal
purpose, as if it had not undergone such adulteration, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both.

Ingredients of Section 274:

Accused adulterates any drug or medical preparation;

His intention is to lessen the efficacy or change the operation of such drug or medical preparation, or
to make it noxious; and

He has knowledge that the drug will be sold or used for, any medicinal purpose, as if it had not
undergone such adulteration.

Nature of Offence:

Non-cognizable, bailable and triable by any Magistrate

Punishment:
Imprisonment of either description for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.

Section 275 IPC:

Sale of Adulterated Drugs:

Whoever, knowing any drug or medical preparation to have been adulterated in such a manner as to
lessen its efficacy, to change its operation, or to render it noxious, sells the same, or offers or
exposes it for sale, or issues it from any dispensary for medicinal purposes as unadul-terated, or
causes it to be used for medicinal purposes by any person not knowing of the adulteration, shall be
punished with imprisonment of either description for a term which may extend to six months, or
with fine which may extend to one thousand rupees, or with both.

The section not only prohibits sale of adulterated drugs but also its issuance from a dispensary. The
expression ‘exposes it for sale’ does not necessarily mean that the drug must be exposed to view; it
is sufficient if it is contained in a packet or in other wrappings.

Ingredients of Section 275:

Accused knows that the drug or medical preparation he is selling to have been adulterated;

He knows that the adulteration is made to lessen its efficacy, to change its operation, or to render it
noxious; and

Still, he sells or offers or exposes it for sale, or issues it from any dispensary for medicinal purposes
as unadul-terated;

or causes it to be used for medicinal purposes by any person not knowing of the adulteration He has
knowledge that the drug will be sold or used for, any medicinal purpose, as if it had not undergone
such adulteration.

Nature of Offence:

Non-cognizable, bailable and triable by any Magistrate

Punishment:

Imprisonment of either description for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.

Section 276 IPC:

Sale of Drug as a Different Drug or Preparation:

Whoever knowingly sells, or offers or exposes for sale, or issues from a dispensary for medicinal
purposes, any drug or medical prepara-tion, as a different drug or medical preparation, shall be
pun-ished with imprisonment of either description for a term which may extend to six months, or
with fine which may extend to one thousand rupees, or with both.
This section does not refer to adulteration at all. The liability has been fixed by this section not for
the injury caused but for selling, offering or exposing for sale, or for issuing any drug or medical
preparation.

Ingredients of Section 276:

Accused knowingly sells, or offers or exposes for sale, or issues from a dispensary for medicinal
purposes, any drug or medical prepara-tion; and

the drug or medical prepara-tion is being sold is a different drug or medical preparation.

Nature of Offence:

Non-cognizable, bailable and triable by any Magistrate

Punishment:

Imprisonment of either description for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.

11. BEGGAR UNDER JUVENILE JUSTICE ACT


Protection of Child Beggars

(A) Juvenile Justice Act, 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) is the primary law for
children in the country.

The Section 2 (14) (ii) of the Act, 2015, considers a child being in force or is found begging, or living
on the street as a “child in need of care and protection”.

As per Section 76 of JJ Act, whoever employs or uses any child for the purpose of begging or causes
any child to beg shall be punishable with imprisonment.

The Act provides a security net of service delivery structures along with measures for institutional
and non-institutional care, to ensure the comprehensive well being of children in distress situations.

The primary responsibility of execution of the Act rests with the States/UTs.

(B) Child Protection Services (CPS)

The Ministry implements a centrally sponsored scheme CPS under the umbrella Integrated Child
Development Services scheme.

It supports the children in difficult circumstances including child beggars and destitute children.
Under the scheme, institutional care is provided through Child Care Institutions (CCIs), as a
rehabilitative measure.

The programmes and activities in CCIs inter-alia include age-appropriate education, access to
vocational training, recreation, health care, counselling etc.

The scheme supports 24×7 emergency outreach/ helpline service for children in distress conditions.

The service is accessible through a dedicated toll-free number, 1098 from anywhere in India.

(C) Rehabilitation measures

The Ministry of Social Justice and Empowerment, has undertaken a pilot project for Comprehensive
Rehabilitation of Persons engaged in the act of begging.

It is currently held in ten (10) cities; namely Delhi, Mumbai, Chennai, Ahmadabad, Hyderabad,
Bangalore, Lucknow, Patna, Nagpur and Indore.

The initiative aims for identification, rehabilitation, counselling, skill development of beggars.

It includes education of children engaged in begging/children of persons engaged in the begging.

The children of today are assets of tomorrow. Yet education, which is a fundamental right to every
child in our country, is still a dream for many children in India, especially the ones who are poor,
downtrodden and in dire need.

12. SEDITION UNDER IPC


What is sedition under I.P.C? Are punishments justified? Express your opinion.

Sedition, as defined under Section 124A of the Indian Penal Code (IPC), 19860, refers to any act or
speech that seeks to bring hatred or contempt towards the government established by law, or
promotes disaffection or dissatisfaction against it. The section criminalizes acts that are considered
seditious, such as attempts to overthrow the government, inciting violence or public disorder, or
creating a feeling of enmity or disloyalty among the public.

The concept of sedition and its interpretation through relevant case laws.

Kedar Nath Singh v. State of Bihar (1962):

In this landmark case, the SC examined the constitutional validity of Section 124A. The court held
that for an act to be considered seditious, it must involve an intention or tendency to incite violence
or public disorder. Mere criticism of the government or expressing dissenting opinions, without any
incitement to violence, does not amount to sedition. The court emphasized the importance of
safeguarding freedom of speech and expression, stating that the section should be interpreted
narrowly to avoid its abuse.
Balwant Singh v. State of Punjab (1995):

In this case, the Supreme Court clarified that mere sloganeering or raising political slogans, even if
they were against the government, did not constitute sedition unless they incited violence or public
disorder. The court emphasized that individuals have the right to express their opinions, even if they
are critical of the government, as long as it does not amount to incitement to violence.

Regarding the justification of punishments for sedition, opinions differ. There are strikingly clear and
convincing justifications by proponents and critics alike.

Proponents argue that sedition laws are necessary to safeguard national security and maintain
public order. They assert that acts or speeches that incite violence or threaten the stability of the
government should be punishable to ensure the safety and well-being of the country and its citizens.

Critics express concerns about the potential misuse of sedition laws to stifle dissent and suppress
freedom of speech Article 19(1)(a). They argue that these laws can be employed to target individuals
or groups critical of the government, leading to a chilling effect on free expression and impeding
democratic values.

In my opinion, the use of sedition laws should be approached with caution. While it is crucial to
protect national security and maintain public order, it is equally important to safeguard fundamental
rights, including freedom of speech and expression. Punishments for sedition should be
proportionate, and the interpretation and application of the law should be guided by principles of
reasonableness, necessity, and the protection of individual liberties.

It is essential to strike a balance between preserving national security and upholding the values
enshrined in the Constitution. The sedition law should be used sparingly and only in cases where
there is a clear and imminent threat to public order or national security. Regular scrutiny and review
of the law, along with proper safeguards, can help prevent its misuse and ensure that punishments
are justified and aligned with democratic principles.

13. CONTROLLER UNDER IT ACT. HIS FUNCTIONS


Role of the Controller under IT Act-2000

The IT Act presents for the Controller of Certifying Authorities (CCA) to license and adjust the
running of Certifying Authorities. The Certifying Authorities (CAs) issue digital signature certificates
for electronic authentication of users. The Controller of Certifying Authorities (CCA) has been
appointed with the aid of the Central Government under phase 17 of the Act for functions of the IT
Act. The Office of the CCA came into existence on November 1, 2000.

It ambitions at selling the growth of E-Commerce and E- Governance thru the wide use of virtual
signatures. The Controller of Certifying Authorities (CCA) has established the Root Certifying
Authority (RCAI) of India underneath section 18(b) of the IT Act to digitally signal the general public
keys of Certifying Authorities (CA) within the country. The RCAI is operated as according to the
requirements laid down under the Act.

The CCA certifies the public keys of CAs the use of its own non-public key, which permits customers
in the our on-line world to verify that a given certificate is issued by a licensed CA. For this reason it
operates, the Root Certifying Authority of India (RCAI). The CCA additionally continues the
Repository of Digital Certificates, which incorporates all the certificates issued to the CAs inside the
country.

The Controller may additionally carry out all or any of the following functions:

1) Supervises the activities of Certifying Authorities.

2) Certifies public keys of the Certifying Authorities.

3) Drafts the requirements to be maintained by way of Certifying Authorities.

4) Specifies the qualifications and revel in of employees of the Certifying Authorities.

5) Specifies the situations below which the Certifying Authority shall conduct their business;

6) Specifies the contents of written, revealed or visual materials and commercials that may be
distributed or utilized in a Digital Signature Certificate and the general public key;

7) Specifies the format and content of a Digital Signature Certificate and the important thing;

8) Specifies the layout wherein Certifying Authorities shall keep the bills.

9) Specifies the terms and situations for the appointment of the auditors and their remuneration.

10) Helps the Certifying Authorities in organizing any digital machine and law of such gadget.

11) Specifies the way wherein the Certifying Authorities shall address the subscribers.

12) Resolves any warfare that arises between the Certifying Authorities and the subscribers;

13) Lays down the duties of the Certifying Authorities;

14) Maintains a database containing the disclosure record of ever Certifying Authority.

15) Maintains the database of public keys in a way that it is available to the general public.

16) Issues the license to issue the Digital Signature Certificate.

17) Can suspend the license if he isn’t pleased with the validity of the applicant.

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