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OTHER LAWS VISAKHAPATNAM STATE TAX DEPARTMENT

2 DESCRIPTION PAGE No. CIVIL PROCEDURE CODE1908 1. Place of filing of suit 2-3 2. Issue and service of summons 3-16 3. Summoning and attendance of witnesses 16-27 4. Attendance of witnesses confined or detained in prisons 27-30 5. Hearing of the suit and examination of witnesses 30-36 CRIMINAL PROCEDURE CODE1973 6. When search-warrant may be issued 37-38 7. Search of place suspected to contain stolen property, forged documents 38-40 8. Direction, etc, of search-warrants 40-40 9. Form of warrant of arrest and duration 40-41 10. Warrants to whom directed 41-41 11. Warrant directed to police officer 41-41 12. Where warrant may be executed 41-41 13. Warrant forwarded for execution outside jurisdiction 41-41 14. Warrant directed to police officer for execution outside jurisdiction 42-45 15. Persons in charge of closed place to allow search 45-47 16. Disposal of things found in search beyond Jurisdiction 47-48 17. Arrest 49-51 INDIAN EVIDENCE ACT 1872 18. Facts which need not be proved 52-54 19. Facts admitted need not be proved 54-54 20. Oral evidence 55-56 21. Documentary evidence 56-57 22. Secondary Evidence 57-58

3 23. Proof of documents by primary evidence 59-59 24. Cases in which secondary evidence relating to documents may be given 59-59 25. Special provisions as to evidence relating to electronic record 60-60 26. Admissibility of electronic records 60-63 27. Proof of signature and handwriting of person alleged to have 63-64 signed or written document produced 28. Proof of execution of document required by law to be attested 64-64 29. Proof where no attesting witness found 64-64 30. Admission of execution by party to attested document 65-65 31. Proof when attesting witness denies the execution 65-65 32. Proof of document not required by law to be attested 65-65 33. Comparison of signature, writing or seal with others admitted or proved 65-66 34. Burden of Proof 66-67 35. On whom burden of proof lies 67-68 36. Burden of proof as to particular fact 68-69 37. Burden of proving that case of accused comes within exceptions 69-70 38. Burden of proving fact specially within knowledge 70-71 39. Burden of proving death of person known to have been 71-71 alive within thirty years 40. Burden of proving that person is alive who has not been 71-71 heard of for seven years 41. Burden of proof as to relationship in the case of partners, 72-72 landlord and tenant, principal and agent 42. Burden of proof as to ownership 72-72 43. Proof of good faith in transactions where one party is 72-73 in relation of active confidence 44. Presumption as to certain offences 73-74

4 45. Court may presume existence of certain facts 74-77 46. Production of document 77-77 47. Translation of document 78-78 48. Giving, as evidence, of document called for and produced on notice 78-78 49. Using, as evidence, of document, production of which was refused on notice 78-79 INDIAN PENAL CODE1860 50. Absconding to avoid service of summons orother proceeding 80-80 51. Classification of offence 80-81 52. Preventing service of summons or other proceeding, or preventing 81-82 publication thereof 54. Non-attendance in obedience to an order from public servant 82-83 55. Omission to produce document to public servant by person 83-84 legally bound to produce it 56. Omission to give notice or information to public servant by person 85-86 legally bound to give it 57. Furnishing false information 86-88 58. Refusing oath or affirmation when duly required by public servant to make it 88-88 59. Refusing to answer public servant authorised to question 88-89 60. Refusing to sign statement 89-90 61. False statement on oath or affirmation to public servant or person 90-90 authorised to administer an oath or affirmation 62. False information, with intent to cause public servant to use his lawful power 90-92 to the injury of another person 63. Resistance to the taking of property by the lawful authority of a public servant 92-93 64. Illegal purchase or bid for property offered for sale by authority of public servant 93-94 65. Obstructing public servant in discharge of public functions 94-95 66. Omission to assist public servant when bound by law to give assistance 95-96

5 67. Disobedience to order duly promulgated by public servant 96-97 68. Threat of injury to public servant 97-98 69. Threat of injury to induce person to refrain from applying 98-99 for protection to public servant 70. Giving false evidence 99-101 71. Fabricating false evidence 101-102 72. Punishment for false evidence 102-103 73. Giving or fabricating false evidence with intent to procure conviction 104-104 of capital offence 74. If innocent person be thereby convicted and executed 104-104 75. Giving or fabricating false evidence with intent to procure conviction 105-105 of offence punishable with imprisonment for life or imprisonment 76. Using evidence known to be false 106-106 77. Issuing or signing false certificate 106-107 78. Using as true a certificate known to be false 107-107 79. False statement made in declaration which is by law receivable as evidence 107-108 80. Using as true such declaration knowing it to be false 108-109 81. Causing disappearance of evidence of offence, or giving false information 109-111 to screen offender 82. Intentional omission to give information of offence by person bound to inform 111-112 83. Giving false information respecting an offence committed 112-112 84. Destruction of document to prevent its production as evidence 112-113 85. False personation for purpose of act or proceeding in suit or prosecution 113-114 86. Fraudulent removal or concealment of property to prevent its seizure 114-115 as forfeited or in execution 87. Fraudulent claim to property to prevent its seizure as forfeited or in execution 115-115 88. Fraudulently suffering decree for sum not due 115-116 89. Dishonestly making false claim in Court 117-117

6 90. Fraudulently obtaining decree for sum not due 117-118 91. False charge of offence made with intent to injure 118-119 92. Public servant disobeying direction of law with intent to save person from 119-120 punishment or property from forfeiture 93. Public servant in judicial proceeding corruptly making report,etc 120-121 contrary to law 94. Commitment for trial or confinement by Person having authority 121-122 who knows that he is acting contrary to law 95. Intentional omission to apprehend on the part of public servant 122-123 bound to apprehend 96. Intentional omission to apprehend on the part of public servant bound 123-125 to apprehend person under sentence or lawfully committed 97. Escape from confinement or custody negligently suffered by public servant 125-126 98. Resistance or obstruction by a person to his lawful apprehension 126-127 99. Resistance or obstruction to lawful apprehension of another person 127-129 100.Omission to apprehend, or sufferance of escape, on part of public servant, 129-130 in cases not otherwise, provided for 101.Resistance or obstruction to lawful apprehension, or escape or rescue 130-130 in cases not otherwise provided for 102.Unlawful return from transportation 130-131 103.Violation of condition of remission of punishment 131-131 104.Intentional insult or interruption to public servant sitting 131-132 in judicial proceeding INDIAN CONTRACT ACT1872 105."Coercion" defined 133-133 106."Undue influence" defined 133-134

7 107."fraud defined 134-135 108."Misrepresentation" defined 135-135 109."Contingent contract" defined 135-136 110."Contract of indemnity"defined 136-136 111."Contract of guarantee", "surety", "principal debtor" and "creditor" 136-136 112.Surety'sliability 136-136 113.Continuing guarantee 136-137 114."Bailment", "bailor" and "bailee" defined 137-137 115.Delivery to bailee how made 137-137 116.Bailor's duty to disclose faults in goods bailed 137-138 117.Care to be taken by bailee 138-138 118.Bailee when not liable for loss, etc, of thing bailed 138-138 119.Termination of bailment by bailee's act inconsistent with conditions 138-138 120.Liability of bailee making unauthorised use of goods bailed 138-139 121.General lien of bankers, factors, wharfinger, attorneys and policy brokers 139-139 122."Pledge", "Pawnor", and "Pawnee" defined 139-140 123.Pawnee's right of retainer 140-140 124.Pawnee not to retain for debt or promise other than for which goods 140-140 pledged – presumption in case of subsequent advances 125.Pawnee's right as to extraordinary expenses incurred 140-140 126.Pawnee's right where pawnor makes default 141-141 127.Defaulting pawnor's right to redeem 141-141 128.Pledge by mercantile agent 141-142 129."Agent" and "principal" defined 142-142 130.Who may employ agent 142-142 131.Who may be an agent 142-143 132.Consideration not necessary 143-143 133.Agent's authority may be expressed or implied 143-143

8 134.Definitions of express and implied 143-143 135.Extent of agent's authority 143-144 136.Agent's authority in an emergency 144-144 137.When agent cannot delegate 144-144 138."Sub-agent" defined 144-144 139.Representation of principal by sub-agent properly appointed 144-145 140.Agent's responsibility for sub-agent appointed without authority 145-145 141.Relation between principal and person duly appointed by agent 145-146 to act in business of agency 142.Agent's duty in naming such person 146-146 143.Right of person as to acts done for him without his authority, 146-146 effect of ratification 144.Ratification may be expressed or implied 146-146 145.Knowledge requisite for valid ratification 146-147 146.Effect of ratifying unauthorized act forming part 147-147 Of a transaction 147.Ratification of unauthorized act cannot injure third person 147-147 148.Termination of Agency 147-147 149.Termination of Agency, where agent has an interest in subject- matter 148-148 150.When principal may revoke agent's authority 148-148 151.Revocation where authority has been partly exercised 148-148 152.Compensation for revocation by principal, or renunciation by agent 148-149 153.Notice of revocation or renunciation 149-149 154.Revocation and Renunciation may be expressed or implied 149-149 155.When termination of agent's authority takes effect as to agent, 149-149 and as to third persons 156.Agent's duty on termination o agency by principal's death or insanity 149-150 157.Termination of Sub-agent's authority 150-150

9 158.Agent's duty in conducting principal's business 150-150 159.Skill and Diligence required from agent 150-151 160.Agent's accounts- Agent's duty of communicate with principal 151-151 161.Right to principal when agent deals, on his own account, in business 151-151 of agency without principal's consent 162.Principal's right to benefit gained by agent dealing on his own 151-152 account in business of agency 163.Agent's right of retainer out of sums received on principal's account 152-152 164.Agent's duty to pay sums received for principal 152-152 165.When agent's remuneration becomes due 152-153 166.Agent not entitled to remuneration for business misconducted 153-153 167.Agent's lien on principal property 153-153 168.Agent to be indemnified against consequences of lawful acts 153-153 169.Agent to be indemnified against consequences of acts done in good faith 153-154 170.Non-Liability of employer of agent to do a Criminal Act 154-154 171.Compensation to agent for injury caused by principal's neglect 154-154 172.Enforcement and Consequences of agent's contracts 154-154 173.Principal how far bound, when agent exceeds authority 154-155 174.Principal not bound when excess of agent's authority is not separable 155-155 SALE OF GOODS ACT,1930 175.Document of title to goods 156-156 176.Contract of Sale of Goods 156-157 177.Distinction between Sale and Agreement to Sell 157-158 178.Sale and Bailment 158-159 179.Sale and Contract for Work and Labour 159-159 180.Sale and Hire Purchase Agreement 159-160

10 181.Subject matter of Contract of Sale of Goods 160-163 182.Effect of Perishing of Goods 163-164 183.Price 164-164 184.Conditions and Warranties (Sections 10-17) 164-172 185.Doctrine of Caveat Emptor 173-174 186.Passing of Property or Transfer of Ownership (Sections 18-20) 174-179 187.Transfer of Title by Person not the Owner (Section 27-30) 179-182 188.Performance of the Contract of Sale 182-187 189.Unpaid Seller (Sections 45-54) 187-191 190.Auction Sales (Section 64) 191-192 191.Trading Contracts involving rail or Sea Transit 192-193 The General Clauses Act,1897 192.Computation of time 194-194 193.Measurement of distance 194-194 CUSTOMS ACT1962 194.Entry of goods on importation 195-197 195.Clearance of goods for home consumption 197-198 196.Procedure in case of goods not cleared, warehoused or transhipped within 199-200 [thirtydays] after unloading 197.Storage of imported goods in warehouse pending clearance 200-200 198.Entry of goods for exportation 200-201 199.Clearance of goods for exportation 201-201 200.Appointing of public warehouses 201-202 201.Licensing of private warehouses 202-203 202.Warehousing bond 203-205 203.Permission for deposit of goods in a warehouse 205-206 204.Period for which goods may remain warehoused 206-209

11 205.Control over warehoused goods 209-210 206.Payment of rent and warehouse charges 210-210 207.Owner's right to deal with warehoused goods 210-211 208.Manufacture and other operations in relation to goods in a warehouse 211-212 209.Power to exempt imported materials used in the manufacture 212-213 of goods in warehouse 210.Removal of goods from one warehouse to another 213-213 211.Clearance of warehoused goods for home consumption 213-214 212.Clearance of warehoused goods for exportation 214-215 213.Allowance in case of volatile goods 215-216 214.Goods not to be taken out of warehouse except as provided by this Act 216-216 215.Goods improperly removed from warehouse, etc 216-217 216.Cancellation and return of warehousing bond 217-218 217.Procedure for Clearance of Imported and Export Goods (IMPORTS) 218-229 218.Procedure for Clearance of Imported and Export Goods (EXPORTS) 229-239 THE NEGOTIAL INSTRUMENTS ACT1881 219.Dishonour Of Cheques – The Negotial Instruments Act 240-240 220.Requirmnts of valid notice U/S 138 of the N.I. Act 240-241 221.where should the complaint be lodged 241-242 222.Power to direct interim compensation 242-243 223.Applicability of Section 143A– Retrospective or Prospective? 243-244 224.Power Of Appellate Court To Order Payment Pending Appeal 244-244 Against Conviction 225.Applicability of Section 148 – Retrospective or Prospective? 244-245 226.Why Section 143A Is Prospective And Section 148 Is Retrospective? 245-245 227.Amendments and Court decisions 245-253

2 I. CIVIL PROCEDURE CODE 1908 PLACE OF FILING OF SUIT 20. Other suits to be instituted where defendants reside or cause of action arises— Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction— (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. [Explanation].—A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. Illustrations

3 (a) A is a tradesman in Calcutta; B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business. (b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at Benaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court. ORDER V-ISSUE AND SERVICE OF SUMMONS Issue of Summons 1. Summons— (1)When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified: Provided that no such summons shall be issued when the defendant has

4 appeared at the presentation of the plaint and admitted the plaintiff's claim : [Provided further that where a summons has been issued, the Court may direct the defendant to file the written statement of his defence, if any, on the date of his appearance and cause an entry to be made to that effect in the summons.] (2) A defendant to whom a summons has been issued under sub-rule (1) may appear— (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. (3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court. 2. Copy or statement annexed to summons— Every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. 3. Court may order defendant or plaintiff to appear in person— (1) where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified.

5 (2) Where the Court sees reason to require the personal appearance of the plaintiff on the same day, it shall make an order for such appearance. 4. No party to be ordered to appear in person unless resident with certain limits— No party shall be ordered to appear in person unless he resides— (a) within the local limits of the Court's ordinary original jurisdiction, or (b) without such limits but at place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the Court-house. 5. Summons to be either to settle issues or for final disposal— The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly : Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. 6. Fixing day for appearance of defendant— The day for the appearance of the defendant shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons; and the day shall be so fixed as to allow the defendant sufficient time

6 to enable him to appear and answer on such day. 7. Summons to order defendant to produce documents relied on by him— The summons to appeal and answer shall order the defendant to produce all documents in his possession or power upon which he intends to rely in support of his case. 8. On issue of summons for final disposal, defendant to be directed to produce his witnesses— Where the summons is for the final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to relay in support of his case. Service of Summons 9. Delivery or transmission of summons for service— (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates. (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him by post or in such other manner as the Court may direct. 10. Mode of service— Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as

7 he appoints in this behalf, and sealed with the seal of the Court. 11. Service on several defendants— Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant. 12. Service to be on defendant on person when practicable, or on his agent— Wherever it is practicable service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. 13. Service on agent by whom defendant carries on business— (1) In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service. (2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or chartered. 14. Service on agent in charge in suits for immovable property— Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property.

8 15. Where service may be on an adult member of defendant's family— Where in a suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on his at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation.—A servant is not a member of the family within the meaning of this rule.] 16. Person served to sign acknowledgement— Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons. 17. Procedure when defendant refuses to accept service, or cannot be found— Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the

9 serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. 18. Endorsement of time and manner of service— The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons. 19. Examination of serving officer.— Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit. [128][19A. Simultaneous issue of summons for service by post in addition to personal service— (1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in rules 9 to 19 (both

10 inclusive), also direct the summons to be served by registered post, acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain: Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary. (2) When an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant : Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having lost or mislaid, or for other reason, has been received by the Court within thirty days from the date of the issue of the summons]. 20. Substituted service— (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the

11 ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. [129][(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.] (2) Effect of substituted service—Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted, time for appearance to be fixed—Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require. 20A. [Service of summons by post.] Rep. by the Code of Civil Procedure (Amendment) Act, 1976 ( 104 of 1976), s. 55 (w.e.f. 1-2-1977). 21. Service of summons where defendant resides within jurisdiction of another Court— A summons may sent by the Court by which it is issued, whether within or without the State, either by one of its officers or by post to any Court (not being the High Court) having jurisdiction in the place where the defendant resides.

12 22. Service within presidency-towns of summons issued by Courts outside— Where as summons issued by any Court established beyond the limits of the towns of Calcutta, Madras and Bombay is to be served within any such limits, it 23. shall be sent to the Court of Small Causes within whose jurisdiction it is to be served. 24. Duty of Court to which summons is sent— The Court to which a summons is sent under rule 21 or rule shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue, together with the record (if any) of its proceedings with regard thereto. 24. Service on defendant in prison— Where the defendant is confined in a prison, the summons shall be delivered or sent by post or otherwise to the officer in charge of the prison for service on the defendant. 25. Service where defendant resides out of India and has no agent— Where the defendant resides out of India and has no agent in India empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him by post, if there is postal communication between such place and the place where the Court is situate : Provided that where any such defendant [130][resides in Bangladesh or Pakistan] the summons, together with a copy thereof, may be sent for service on the defendant, to any Court in that country (not being the High Court)

13 having jurisdiction in the place where the defendant resides: Provided further that where any such defendant is a public officer in Bangladesh or Pakistan (not belonging to the Bangladesh or, as the case may be, Pakistan military naval or air forces)] or is servant of a railway company or local authority in that country, the summons, together with a copy thereof, may be sent for service on the defendant, to such officer or authority in that country as the Central Government may, by notification in the Official Gazette, specify in this behalf. [26. Service in foreign territory through Political Agent or Court— Where— (a) in the exercise of any foreign jurisdiction vested in the Central Government, a Political Agent has been appointed, or a Court has been established or continued, with power to serve a summons, issued by a Court under this code, in any foreign territory in which the defendant actually and voluntarily resides, caries on business or personally works for gain, or (b) the Central Government has, by notification in the Official Gazette, declared, in respect of any Court situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid, that service by such Court of any summons issued by a Court under this Code shall be deemed to be vaild service, the summons may be sent to such Political Agent or Court, by post, or otherwise, or if so directed by the Central Government, through the Ministry of

14 that Government dealing with foreign affairs, or in such other manner as may be specified by the Central Government for the purpose of being served upon the defendant : and, if the Political Agent or Court returns the summons with an endorsement purporting to have been made by such Political Agent or by the Judge or other officer of the Court to the effect that the summons has been served on the defendant in the manner hereinbefore directed, such endorsement shall be deemed to be evidence of service. 26A. Summonses to be sent to officer to foreign countries— Where the Central Government has, by notification in the Official Gazette, declared in respect of any foreign territory that summonses to be served on defendants actually and voluntarily residing or carrying on business or personally working for gain in that foreign territory may be sent to an officer of the Government of the the foreign territory specified by the Central Government, the summonses may be sent to such officer, through the Ministry of the Government of India dealing with foreign affairs or in such other manner as may be specified by the Central Government; and if such officer returns any such summons with an endorsement purporting to have been made by him that the summons has been served on the defendant, such endorsement shall be deemed to be evidence of service.] (2) Service on civil public or on servant of railway officer or on servant of railway company or local authority— Where the defendant is a public officer (not belonging to the Indian military naval or air forces, or is the servant of a railway company or local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send it for service on the

15 defendant to the head of the office in which he is ememployed together with a copy to be retained by the defendant. (3) Service on soldiers, sailors or airmen— Where the defendant is a soldier, sailor or airman, the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant. (4) Duty of person to whom summons is delivered or sent for service— (1) Where a summons is delivered or sent to any person for service under rule 24, rule 27 or rule 28, such person shall be bound to serve it if possible and to return it under his signature, with the written acknowledgement of the defendant, and such signature shall be deemed to be evidence of service. (2) Where from any cause service is impossible, the summons shall be returned to the Court with a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non- service. 30. Substitution of letter for summons— (1) The Court may, notwithstanding anything hereinbefore contained, substitute for a summons a letter signed by the Judge or such officer as he may appoint in this behalf, where the defendant is, in the opinion of the Court, of a rank entitling him to such mark of consideration. (2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated in a summons, and, subject to the provisions of sub-rule

16 (3) , shall be treated in all respects as a summons. (3) A letter so substituted may be sent to the defendant by spot or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; and where the defendant has an agent empowered to accept service, the letter may be delivered or sent to such agent. ORDER XVI-SUMMONING AND ATTENDANCE OF WITNESSES 1. List of witnesses and summons to witnesses— (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such person for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such part shows sufficient cause for the omission to mention the name of such witness in the said list.

17 (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf.] [186][1A. Production of witnesses without summons— A subject to the provisions of sub-rule (3) of rule 1, and party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.] 2. Expenses of witnesses to be paid into Court on applying for summons— (1) The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day's attendance. (2) Experts—In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case. (3) Scale of expenses—Where the Court is subordinate to High Court, regard shall be had, in fixing the scale of such expenses to a any rules made in that behalf.

18 [(4)] Expenses to be directly paid to witnesses—Where the summons is served directly by the party on a witness, the expenses referred to in sub-rule (1) shall be paid to the witness by the party or his agent. 3. Tender of expenses to witness— The sum so paid into Court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally. 4. Procedure where insufficient sum paid in— (1) Where it appears to the Court or to such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses or reasonable remuneration, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and, in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid. (2) Expenses of witnesses detained more than one day—Where it is necessary to detain the person summoned for a longer period than one day, the Court may, from time to time, order the party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period, and, in default of such deposit being made, may order such sum to be levied by attachment and sale of the movable property of such party; or the Court may discharge the person summoned without requiring him

19 to give evidence, or may other order such levy and discharge such person as aforesaid. 5. Time, place and purpose of attendance to be specified in summons— Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is required to attend, and also whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document, which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy. 6. Summons to produce document— Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. 7. Power to require persons present in Court to give evidence or produce document— Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power. [188][7A. Summons given to party for service— (1) The Court may, on the application of any party for the issue of a summons for the attendance of any person, permit such party to effect service of such summons on such person and shall, in such a case, deliver the summons to such party for service.

20 (2) The service of such summons shall be effected by or on behalf of such party by delivering or tendering to the witness personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court. (3) The provisions of rules 16 and 18 of Order V shall apply to a summons personally served under this rule as if the person effecting service were a serving officer. (4) If such summons, when tendered, is refused or if the person served refuses to sign and acknowledgement of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant. (5) Where a summons is served by a party under this rule, the party shall not be required to pay the fees otherwise chargeable for the service of summons.] 8. Summons how served— Every summons [189][under this Order, not being a summons delivered to a party for service under rule 7A,] shall be served as nearly as may be in the same manner as a summons to a defendant and the rules in Order V as to proof of service shall apply in the case of all summonses served under this rule. 9. Time for serving summons— Service shall in all cases be made a sufficient

21 time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required.

22 10. Procedure whose witness fails to comply with summons— [190][(1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court— (a) shall, if the certificate of the serving officer has not been verified by affidavit, or if service of the summons has been effected by a party or his agent, or (b) may, if the certificate of the serving officer has been so verified. examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non-service of the summons.] (2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides. (3) In view of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the

23 attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12 : Provided that no Court of Small Causes shall make an order for the attachment of immovable property. 11. If witness appears attachment may be withdrawn— Where at any time after the attachment of his property, such person appears and satisfies the Court— (a) that he did not, without lawful excuse, fail to comply with the summons or intentionally avoid service, and (b) where he has failed to attend at the time and place named in a proclamation issued under the last proceeding rule, that he had no notice of such proclamation in time to attend. the Court shall direct that the property be released from attachment, and shall make such order as to the costs of the attachment as it thinks fit. 12. Procedure if witness fails to appear— [191][(1)] The Court may, where such person does not appear, or appears but fails so to satisfy the Court, impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to the attached and sold or, if already attached

24 under rule 10, to be sold for the purpose of satisfying all costs to such attachment, together with the amount of the said fine, if any: Provided that, if the person whose attendance is required pays into Court the Costs and fine aforesaid, the Court shall order the property to be released from attachment. [192] [(2) Notwithstanding that the Court has not issued a proclamation under sub-rule (2) of rule 10, nor issued a warrant nor ordered attachment under sub-rule (3) of that rule, the Court may impose fine under sub- rule (1) of this rule after giving notice to such person to show cause why the fine should not be imposed.] 13. Mode of attachment.—The provisions with regard to the attachment and sale of property in the execution of a decree shall, so far as they are applicable, be deemed to apply to any attachment and sale under this Order as if the person whose property is so attached were a judgment-debtor. 14. Court may of its own accord summon as witnesses strangers to suit.— Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary [193][to examine any person, including a party to the suit] and not called as witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document.

25 15. Duty of persons summoned give evidence or produce document— Subject as last aforesaid, whoever is summoned to appear and give evidence in a suit shall attend at the time an place named in the summons for that purpose, and whoever is summoned to produce a document shall either attend to produce it, or cause it to be produced, at such time and place. 16. When they may depart— (1) A person so summoned and attending shall, unless the Court otherwise directs, attend at each hearing until the suit has been disposed of. (2) On the application of either party and the payment through the Court of all necessary expenses (if any), the Court may require any person so summoned and attending to furnish security to attend at the next or any other hearing or until the suit is disposed of and, in default of his furnishing such security, may order him to be detained in the civil prison. 17. Application of rules 10 to 13— The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to apply to any person who having attended in compliance with a summons departs, without lawful excuse, in contravention of rule 16. 18. Procedure where witness apprehended cannot give evidence or produce document— Where any person arrested under a warrant is brought before the Court in custody and cannot, owing to the absence of the parties or any of them , give the evidence or produce the document which he has been summoned to

26 give or produce, the Court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, on such bail or security being given, may release him, and, in default of his giving such bail or security, any order him to be detained in the civil prison. 19. No witness to be ordered to attend in person unless resident within certain limits— No one shall be ordered to attend in person to give evidence unless he resides— (a) within the local limits of the Court's ordinary original jurisdiction, or (b) without such limits but at a place less than [194][one hundred] or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place were the Court is situate) less than [195][five hundred kilometers] distance from the Court-house : [196] [Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.] 20. Consequence of refusal of party to give evidence when called on by Court— Where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and there in his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.

27 21. Rules as to witnesses to apply to parties summoned— Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so for as they are applicable. ORDER XVIA-ATTENDANCE OF WITNESSES CONFINED OR DETAINED IN PRISONS 1. Definitions— In this Order,— (a) "detained" includes detained under any law providing for preventive detention; (b) "prison" includes— (i) any place which has been declared by the State Government, by general or special order, to be a subsidiary jail; and (ii) any reformatory, borstal institution or other institution of a like nature. 2. Power to require attendance of prisoners to give evidence— Where it appears to a Court that the evidence of a person confined or detained in a prison within the State is material in a suit, the Court may make an order requiring the officer in charge of the prison to produce that person before the Court to give evidence : Provided that, if the distance from the prison to the Court-house is more than

28 twenty-five kilometres, no such order shall be made unless the Court is satisfied that the examination of such person on commission will not be adequate. 3. Expenses to be paid into Court— (1) Before making any order under rule 2, the Court shall require the party at whose instance or for whose benefit the order is to be issued, to pay into Court such sum of money as appears to the Court to be sufficient to defray the expenses of the execution of the order, including the traveling and other expenses of the escort provided for the witness. (2) Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rule made by the High Court in that behalf. 4. Power of State Government to exclude certain persons from the operation of rule 2— (1) The State Government may, at any time, having regard to the matters specified in sub-rule (2) by general or special order, direct that nay person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made under rule 2, whether before or after the date of the order made by the State Government, shall have effect in respect of such person or class of persons.

29 (2) Before making an order under sub-rule (1), the State Government shall have regard to the following matters, namely :— (a) the nature of the offence for which, or the grounds on which, the person or class of persons have been ordered to be confined or detained in prison; (b) the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison; and (c) the public interest, generally. 5. Officer in charge of prison to abstain from carrying out order in certain cases— Where the person in respect of whom an order is made under rule 2 — (a) is certified by the medical officer attached to the prison as unfit to be removed from the prison by reason of sickness or infirmity; or (b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or (c) is in custody for a period which would expire before the expiration of the time required for comply with the order and for taking him back to the prison in which he is confined or detained ; or (d) is a person to whom an order made by the State Government under rule 4

30 applies,the officer in charge of the prison shall abstain from carrying out the Court's order and shall send to the Court a statement of reason for so abstaining. 6. Prisoner to be brought to Court in custody—In any other case, the officer in charge of the prison shall, upon delivery of the Court's order, cause the person named therein to be taken to the Court so as to be present at the time mentioned in such order, and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorises him to be taken back to the prison in which he is confined or detained. 7. Power to issue commission for examination of witness in prison—(1) Where it appears to the Court that the evidence of a person confined or detained in a pison, whether within the State or elsewhere in India, is material in a suit but the attendance of such person cannot be secured under the preceding provisions of this order, the Court may issue a commission for the examination of that person in the prison in which he is confined or detained. (2) The provisions of Order XXVI shall, so far may be, apply in relation to the examination on commission of such person in prison as they apply in relation to the examination on commission of any other person.] ORDER XVIII- HEARING OF THE SUIT AND EXAMINATION OF WITNESSES 1 . Right to begin— The plaintiff has the right to begin unless the defendant

31 admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. 2 . Statement and production of evidence— (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case. [201] [(4) Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage.] 3 . Evidence where several issues— Where there are several issues, the burden of proving some of which lies on the party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then

32 be entitled to reply generally on the whole case. [3A . Party to appear before other witnesses— Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded permits him to appear as his own witness at a later stage.] 4 . Witnesses to be examined in open Court— The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the judge. 5 . How evidence shall be taken in appealable cases —In cases in which an appeal is allowed, the evidence of each witness shall be,— (a) taken down in the language of the Court,— (i) in writing by, or in the presence and under the personal direction and superintendence of, the Judge, or (ii) from the dictation of the Judge directly on a typewriter, or (b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge.] 6 . When deposition to be interpreted— Where the evidence is taken down in language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence as taken

33 down in writing shall be interpreted to him in the language in which it is given. 7 . Evidence under Section 138.— Evidence taken down under section 138 shall be in the form prescribed by rule 5 and shall be read over and signed and, as occasion may require, interpreted and corrected as if it were evidence taken down under that rule. 8 . Memorandum when evidence not taken down by Judge— Where the evidence is not taken down in writing by the Judge, [208][or from his dictation in the open Court, or recorded mechanically in his presence,] he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record. 9 . When evidence may be taken in English— (1) Where English is not the language of the Court, but all the parties to the suit who appear in person, and the pleaders of such of the parties as appear by pleaders, do not object to having such evidence as is given in English, being taken down in English, the Judge may so take it down or cause it to be taken down. (2) Where evidence is not given in English but all the parties who appear in person, and the pleaders of such of the parties as appear by pleaders, do not object to having such evidence being taken down in English, the Judge may take down, or cause to be taken down, such evidence in English.]

34 10 . Any particular question and answer may be taken down— the Court may, of its own motion or on the application of any party or his pleader, take down any particular question and answer, or any objection to any question, if there appears to be any special reason for so doing. [211]11 . Questions objected to and allowed by Court— Where any question put to a witness is objected to by a party or his pleader, and the Court allows the same to be put, the Judge shall take down the question, the answer, the objection and the name of the person making it, together with the decision of the Court thereon. 12 . Remarks on demeanour of witnesses— The Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination. 13 . Memorandum of evidence in unappealable cases— In cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record.] 14 . [Judge unable to make such memorandum to record reasons of his liability.] Rep. by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), s. 69 (w.e.f. 1-2-1977).

35 15 . Power to deal with evidence taken before another Judge— (1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it. (2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 24. [216]16 . Power to examine witness immediately— (1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner herein before provided. (2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties. (3) The evidence so taken shall be read over to the witness, and if he admits it to be correct, shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit.

36 17 . Court may recall and examine witness— The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit. 17A . Production of evidence not previously known or which could not be produced despite due diligence— Where a party satisfies the Court that after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just.] 18 . Power of Court to inspect— The Court may at any stage of a suit inspect any property or thing concerning which any question may arise [and where the Court inspects any property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit.]

37 II. CRIMINAL PROCEDURE CODE 1973 Search-warrants 93. When search-warrant may be issued (1) (a) Where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such document or thing is not known to the Court to be in the possession of any person, or (c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained (2) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified

38 (3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority 94. Search of place suspected to contain stolen property, forged documents, etc (1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable— (a) to enter, with such assistance as may be required, such place, (b) to search the same in the manner specified in the warrant, (c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to

39 which this section applies, (d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safety, (e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies (2) The objectionable articles to which this section applies are— (a) counterfeit coin; (b) pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 ( 52 of 1962); (c) counterfeit currency note; counterfeit stamps; (d) forged documents;

40 (e) false seals; (f) obscene objects referred to in section 292 of the Indian Penal Code (45 of 1860); (g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f) General provisions relating to searches 99. Direction, etc, of search-warrants The provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be, apply to all search-warrants issued under section 93, section 94, section 95 or section 97 38.When a warrant is directed to a person other than a police officer, any other person may aid in the execution of such warrant, if the person to whom the warrant is directed be near at hand and acting in the execution of the warrant. 70.Form of warrant of arrest and duration.- (1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.

41 (2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. 72. Warrants to whom directed.- (1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same. (2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them. 74.Warrant directed to police officer.- A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed. 77. Where warrant may be executed.- A warrant of arrest may be executed at any place in India . 78. Warrant forwarded for execution outside jurisdiction.- (1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such Court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and the Executive Magistrate or District Superintendent or Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the manner herein before provided. (2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under section 81 to decide whether bail should or should not be granted to the person.

42 79. Warrant directed to police officer for execution outside jurisdiction.- (1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed. (2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant. (3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the Court which issued it. When search warrant may be issued. 93. (1) (a) Where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub- section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such document or thing is not known to the Court to be the possession of any person, or (c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search- warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained. (2) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.

43 (3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority. 94. Search of place suspected to contain stolen property, forged documents, etc. (1) If a District Magistrate, Sub- divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that only such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable- (a) to enter, with such assistance as may be required, such place, (b) to search the same in the manner specified in the warrant, (c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies, (d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safety, (e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies. (2) The objectionable articles to which this section applies are- (a) counterfeit coin; (b) pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889 ), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962 ); (c) counterfeit currency note; counterfeit stamps; (d) forged documents; (e) false seals; (f) obscene objects referred to in section 292 of the Indian Penal Code (45 of 1860 ); (g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f).

44 95. Power to declare certain publications forfeited and to issue search warrants for the same. Where- (a) any newspaper, or book, or (b) any document, wherever printed, appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860 ), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any Magistrate may by warrant authorise any police officer not below the rank of sub- inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be. (2) In this section and in section 96,- (a) " newspaper" and" book" have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867 ); (b) " document" includes any painting, drawing or photograph, or other visible representation. (3) No order passed or action taken under this section shall be called in question in any Court otherwise than in accordance with the provisions of section 96. 96. Application to High Court to set aside declaration of forfeiture. (1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub- section (1) of section 95. (2) Every such application shall, where the High Court consists of three or more Judges, be heard and determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of less than three Judges, such Special Bench shall be composed of all the Judges of that High Court. (3) On the hearing of any such application with reference to any newspaper, any copy of such newspaper may be given in evidence in aid of the proof of the

45 nature or tendency of the words, signs or visible representations contained in such newspaper, in respect of which the declaration of forfeiture was made. (4) The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any such matter as is referred to in sub- section (1) of section 95, set aside the declaration of forfeiture. (5) Where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those Judges. 97. Search for persons wrongfully confined. If any District Magistrate, Sub- divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search- warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper. 100. Persons in charge of closed place to allow search (1) Whenever any place liable to search of inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein (2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47 (3) Where any person in or about such place is reasonably suspected of

46 concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it (6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person (7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to

47 such person (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860) Comments (i) Public witnesses may not be joined, but attempt must be made to join the public witnesses; Sadhu Singh v State of Punjab, (1997) 3 Crimes 55 (PH) (ii) There can be cases when public witnesses are reluctant to join or are not available All the same, the prosecution must show a genuine attempt having been made to join public witnesses; Sadhu Singh v State of Punjab, (1997) 3 Crimes 55 (PH) (iii) A stereo-type statement of non-availability of any Public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness, Sadhu Singh v State of Punjab, (1997) 3 Crimes 55 (PH) 101. Disposal of things found in search beyond jurisdiction

48 When, in the execution of a search-warrant at any place beyond the local jurisdiction of the Court which issued the same, any of the things for which search is made, are found, such things, together with the list of the same prepared under the provisions hereinafter contained, shall be immediately taken before the Court issuing the warrant, unless such place is nearer to the Magistrate having jurisdiction therein than to such Court, in which case the list and things shall be immediately taken before such Magistrate; and unless there be good cause to the contrary, such Magistrate shall make an order authorising them to be taken to such Court

49 ARREST The Hon'ble Supreme Court, in D.K.Basu Vs State of West Bengal, has laid down specific guidelines required to be followed while making arrests. The principles laid down by the Hon'ble Supreme Court are given hereunder: 1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register 2. That the police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. 3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives

50 outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. 5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. 6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is. 7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The 'Inspection Memo' must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. 8. The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well. 9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record. 10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

51 A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

52 III. INDIAN EVIDENCE ACT 1872 PART II - PROOF CHAPTER III - Facts which need not be proved 56. Fact judicially noticeable need not be proved - No fact of which the Court will take judicial notice need be proved. 57. Facts of which Court must take judicial notice - The Court shall take judicial notice of the following facts; 1. All laws in force in the territory of India; 2. All public Acts passed or hereafter to be passed by Parliament of United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed; 3. Articles of War for the Indian Army, Navy of Air force; 4. The course of proceeding of parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the Legislature established under any law for the time being in force in Province or in the States;

53 5. The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland; 6. All seals of which English Courts take judicial notice; the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown representative; the seals off Court of Admiralty and Maritime jurisdiction and of Notaries Public and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India; 7. The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any state, if the fact of their appointment to such office is notified in any official Gazette; 8. The existence, title and national flag of every State or Sovereign recognized by the Government of India; 9. The divisions of time, the geographical divisions of the world, and public festivals, facts and holidays notified in the Official Gazette; 10. The territories under the dominion of the Government of India; 11. The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons;

54 12. The names of the members and officers of the Court, and of their deputies and subordinate officers and assistants and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it; 13. The rule of the road on land or at sea. In all these cases, and also on all matters of public history, literature, science or art, the Court may report for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so. 58. Facts admitted need not be proved - No fact need be proved in any proceeding, which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings; Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.

55 CHAPTER IV Of oral evidence (c) Proof of facts by oral evidence - All facts, except the contents of documents, may be proved by oral evidence. (d) Oral evidence must be direct - Oral evidence must, in all cases, whatever, be direct; that is to say; If it refers to a fact which could be seen, it must be the evidence of a witness who says he seen it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds -

56 Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable. Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection. CHAPTER V - Of documentary evidence 61. Proof of contents of documents - The contents of documents may be proved either by primary or by secondary evidence. 62. Primary evidence - Primary evidence means the document itself produced for the inspection of the Court. Explanation 1. - Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterparts, each counterpart being

57 executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2. - Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original. 63. Secondary Evidence - Secondary evidence means and includes. 1. Certified copies given under the provisions hereinafter contained; 2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies; 3. Copies made from or compared with the original;

58 4. Counterparts of documents as against the parties who did not execute them; 5. Oral accounts of the contents of a document given by some person who has himself seen it. Illustrations (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photo graph or machine copy of the original, is secondary evidence of the original.

59 64. Proof of documents by primary evidence - Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65. Cases in which secondary evidence relating to documents may be given - Secondary evidence may be given of the existence, condition or contents of a document in the following cases: (a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; (b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) When the original is of such a nature as not to be easily movable; (e) When the original is a public document within the meaning of Section 74;

60 (f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collections. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible. In case(b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 65A. Special provisions as to evidence relating to electronic record.—The contents of electronic records may be proved in accordance with the provisions of section 65B.] 65B. Admissibility of electronic records.—

61 (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:— (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

62 (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether— (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,— (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

63 (c) dealing with any of the matters to which the conditions mentioned in sub- section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section,— (a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.] 67. Proof of signature and handwriting of person alleged to have signed

64 or written document produced - If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his hand writing. 68. Proof of execution of document required by law to be attested - If a document is required by law to be attested it shall not be sued as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to he process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied. 69. Proof where no attesting witness found - If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.

65 70. Admission of execution by party to attested document - The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. 71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document its execution may be proved by other evidence. 72. Proof of document not required by law to be attested - An attested document not required by law to be attested may be proved as if it was unattested. 73. Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which s to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such

66 person. This section applies also with any necessary modifications, to finger- impressions. PART III - PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII - Of the burden of proof 101. Burden of Proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts, which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustration

67 (a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. (b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies to be true. A must prove the existence of those facts. 102. On whom burden of proof lies. - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustration (a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession.

68 Therefore, the burden of proof is on A. (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. 103. Burden of proof as to particular fact. - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustration A prosecuted B for theft and wishes the Court to believe that B admitted the theft to C.A must prove the admission.

69 B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it. 104. Burden of proving fact to be proved to make evidence admissible - The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. Illustrations a. A wishes to prove a dying declaration by B.A must prove B's death. b. B wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost. 105. Burden of proving that case of accused comes within exceptions - When a person is accused of any offence, the burden f proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

70 Illustrations (a) A, accused of murder, alleges, that by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. (b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A. (c) Section 325 of the Indian Penal Code (XLV of 1860) provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under Section 352. The burden of proving the circumstances bringing the case under Section 335 lies on A. 106. Burden of proving fact specially within knowledge - When any

71 fact is specially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had ticket is on him. 107. Burden of proving death of person known to have been alive within thirty years. - When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 108. Burden of proving that person is alive who has not been heard of for seven years. - Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

72 109. Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent - When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it. 110. Burden of proof as to ownership - When the question is, whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. 111. Proof of good faith in transactions where one party is in relation of active confidence. - Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. Illustrations (a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of

73 transaction is on the attorney. (b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the trans 111A. Presumption as to certain offences. - (1) Where a person is accused of having committed any offence specified in sub-section (2), in- (a) any area declared to be disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or (b) any area in which there has been, over a period of more than one month, extensive disturbance of the public peace, and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary is shown, that such person had committed such offence. (2) The offences referred to in sub-section (1) are the following, namely - (a) an offence under section 121, section 121-A, section 122 or Section

74 123 of the Indian Penal Code (45 of 1860); (b) criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860) 114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration The Court may presume - (a) That a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; (b) That an accomplice is unworthy of credit, unless he is corroborated in material particular; (c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;

75 (d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence; (e) That judicial and official acts have been regularly performed; (f) That the common course of business had been followed in particular cases; (g) That evidence which could be and is not produced would, if produced be unfavorable to the person who withholds it; (h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavorable to him; (i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it - As to illustration (a) - A shopkeeper has in his till marked rupee soon

76 after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business; As to illustration (b) - A, a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery; B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself; As to illustration (bb) - A crime is committed by several persons, A,B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable; As to illustration (c) - A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person, completely under A's influence; As to illustration (d) - It is proved a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course; As to illustration (e) - A judicial act, the regularity of which is in question, was performed under exceptional circumstances;

77 As to illustration (f) - The question is, whether a letter was received, it is shown to have been posted, but the usual course of the post was interrupted by disturbances; As to illustration (g) - A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family; As to illustration (h) - A man refuses to answer question which he is not compelled by law to answer but the answer, to it might cause loss to him in matters unconnected with the matter in relation to which it is asked; As to illustration (i) - A bond is in possession of the obliger, but the circumstances of the case are such that he may have stolen it. 161. Production of document - A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or its admissibility. The validity of any such objection shall be decided on by the Court. The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

78 Translation of document - If for such purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit direct the translator to keep the contents secret, unless the document is to be given in evidence; and if the interpreter disobeys such direction, he shall be held to have committed an offence under Section 166 of the Indian Penal Code (XLV of 1860). 163. Giving, as evidence, of document called for and produced on notice - When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so. 164. Using, as evidence, of document, production of which was refused on notice - When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court. Illustration

79 A sues B on an agreement and gives B notice to produce it. At the trail, A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.

80 IV. INDIAN PENAL CODE 1860 CHAPTER X - OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC SERVANTS 172. Absconding to avoid service of summons or other proceeding Whoever absconds in order to avoid being served with a summons, notice or order, proceeding from any public servant legally competent, as such public servant, to issue such summons, notice or order, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the summons or notice or order is to attend in person or by agent, or to produce a document in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. CLASSIFICATION OF OFFENCE Para I: Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. Para II: Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by any

81 Magistrate—Non-compoundable. 173. Preventing service of summons or other proceeding, or preventing publication thereof — Whoever in any manner intentionally prevents the serving on himself, or on any other person, of any summons, notice or order, proceeding from any public servant legally competent, as such public servant, to issue such summons, notice or order, or intentionally prevents the lawful affixing to any place or any such summons, notice or order, or intentionally removes any such summons, notice or order from any place to which it is lawfully affixed, or intentionally prevents the lawful making of any proclamation, under the authority of any public servant legally competent, as such public servant, to direct such proclamation to be made, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the summons, notice, order or proclamation is to attend in person or by agent, or to produce a document in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. CLASSIFICATION OF OFFENCE

82 Para I: Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. Para II: Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. 174. Non-attendance in obedience to an order from public servant — Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place of time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Illustrations

83 (a) A, being legally bound to appear before the High Court at Calcutta, in obedience to a subpoena issuing from that Court, intentionally omits to appear. A has committed the offence defined in this section. (b) A, being legally bound to appear before a District Judge, as a witness, in obedience to a summons issued by that District Judge intentionally omits to appear. A has committed the offence defined in this section. CLASSIFICATION OF OFFENCE Para I: Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. Para II: Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. 175. Omission to produce document to public servant by person legally bound to produce it — Whoever, being legally bound to produce or deliver up any document of any public servant, as such, intentionally omits so to produce or deliver

84 up the same, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or, if the document is to be produced or delivered up to a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Illustration A, being legally bound to produce a document before a District Court, intentionally omits to produce the same. A has committed the offence defined in this section. CLASSIFICATION OF OFFENCE Para I: Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both—Non-cognizable—Bailable—Triable by the Court in which the offence is committed, subject to the provisions of Chapter XXVI or, if not committed in a Court, any Magistrate—Non-compoundable. Para II: Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by the Court in which the offence is committed, subject to the provisions of Chapter XXVI; or, if not committed in a Court, any Magistrate—Non- compoundable.

85 176. Omission to give notice or information to public servant by person legally bound to give it — Whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, as such, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or, if the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both, or, if the notice or information required to be given is required by an order passed under sub-section (1) of section 565 of the Code of Criminal Procedure, 1898 (5 of 1898) 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. CLASSIFICATION OF OFFENCE Para I: Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.

86 Para II: Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. Para III: Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. 177. Furnishing false information — Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Illustrations (a) A, a landholder, knowing of the commission of a murder within the limits of his estate, wilfully misinforms the Magistrate of the district that

87 the death has occurred by accident in consequence of the bite of a snake. A is guilty of the offence defined in this section. (b) A, a village watchman, knowing that a considerable body of strangers has passed through his village in order to commit a dacoity in the house of Z, a wealthy merchant residing in a neighbouring place, and being bound under clause, 5, section VII, Regulation III, 1821, of the Bengal Code, to give early and punctual information of the above fact to the officer of the nearest police station, wilfully misinforms the police officer that a body of suspicious characters passed through the village with a view to commit dacoity in a certain distant place in a different direction. Here A is guilty of the offence defined in the later part of this section. Explanation —In section 176 and in this section the word "offence" includes any act committed at any place out of India, which, if committed in India, would be punishable under any of the following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and the word "offender" includes any person who is alleged to have been guilty of any such act. CLASSIFICATION OF OFFENCE Para I: Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.

88 Para II: Punishment—Imprisonment for 2 years, or fine, or both—Non- cognizable—Bailable—Triable by any Magistrate—Non-compoundable. 178. Refusing oath or affirmation when duly required by public servant to make it — Whoever refuses to bind himself by an oath or affirmation to state the truth, when required so to bind himself by a public servant legally competent to require that he shall so bind himself, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. CLASSIFICATION OF OFFENCE Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by the court in which the offence is committed, subject to the provisions of Chapter XXVI; or, if not committed in a court, any Magistrate—Non-compoundable. 179. Refusing to answer public servant authorised to question — Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching

89 that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. CLASSIFICATION OF OFFENCE Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by the court in which the offence is committed, subject to the provisions of Chapter XXVI; or, if not committed in a court, any Magistrate—Non-compoundable. 180. Refusing to sign statement — Whoever refuses to sign any statement made by him, when required to sign that statement by a public servant legally competent to require that he shall sign that statement, shall be punished with simple imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. CLASSIFICATION OF OFFENCE Punishment—Simple imprisonment for 3 months, or fine of 500 rupees, or both— Non-cognizable—Bailable—Triable by the court in which the

90 offence is committed, subject to the provisions of Chapter XXVI; or, if not committed in a court, any Magistrate—Non-compoundable. 181. False statement on oath or affirmation to public servant or person authorised to administer an oath or affirmation — Whoever, being legally bound by an oath or affirmation to state the truth on any subject to any public servant or other person authorized by law to administer such oath or affirmation, makes, to such public servant or other person as aforesaid, touching the subject, any statement which is false, and which he either knows or believes to be false or does not believe to be true, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years and fine—Non-cognizable— Bailable— Triable by Magistrate of the first class—Non-compoundable. 182. False information, with intent to cause public servant to use his lawful power to the injury of another person —

91 Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant— (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or (b) to use the lawful power of such public servant to the injury or annoyance of any person, 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. Illustrations (a) A informs a Magistrate that Z, a police-officer, subordinate to such Magistrate, has been guilty of neglect of duty or misconduct, knowing such information to be false, and knowing it to be likely that the information will cause the Magistrate to dismiss Z. A has committed the offence defined in this section. (b) A falsely informs a public servant that Z has contraband salt in a secret place knowing such information to be false, and knowing that it is likely that the consequence of the information will be a search of Z’s premises,

92 attended with annoyance to Z. A has committed the offence defined in this section. (c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village. He does not mention the name of any person as one of his assistants, but knows it to be likely that in consequence of this information the police will make enquiries and institute searches in the village to the annoyance of the villages or some of them. A has committed an offence under this section. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non- compoundable. 183. Resistance to the taking of property by the lawful authority of a public servant — Whoever offers any resistance to the taking of any property by the lawful authority of any public servant, knowing or having reason to believe that he is such public servant, 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.

93 CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non- compoundable. 184. Obstructing sale of property offered for sale by authority of public servant — Whoever intentionally obstructs any sale of property offered for sale by the lawful authority of any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 month or fine of 500 rupees, or both— Non-cognizable—Bailable—Triable by any Magistrate—Non- compoundable. 185. Illegal purchase or bid for property offered for sale by

94 authority of public servant — Whoever, at any sale of property held by the lawful authority of a public servant, as such, purchases or bids for any property on account of any person, whether himself or any other, whom he knows to be under a legal incapacity to purchase that property at that sale, or bids for such property not intending to perform the obligations under which he lays himself by such bidding, shall be punished withimprisonment of either description for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 month, or fine of 200 rupees, or both— Non-cognizable—Bailable—Triable by any Magistrate—Non- compoundable. 186. Obstructing public servant in discharge of public functions — Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

95 CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 months, or fine of 500 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non- compoundable. 187. Omission to assist public servant when bound by law to give assistance — Whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both; and if such assistance be demanded of him by a public servant legally competent to make such demand for the purposes of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. CLASSIFICATION OF OFFENCE

96 Para I: Punishment—Simple imprisonment for 1 month, or the fine of 200 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. Para II: Punishment—Simple imprisonment for 6 months, or fine of 500 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. 188. Disobedience to order duly promulgated by public servant — Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, 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.

97 Explanation — It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section. CLASSIFICATION OF OFFENCE Para I: Punishment—Simple imprisonment for 1 month, or fine of 200 rupees, or both—Cognizable—Bailable—Triable by any Magistrate— Non-compoundable. Para II: Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—Cognizable—Bailable—Triable by any Magistrate— Non-compoundable. 189. Threat of injury to public servant — Whoever holds out any threat of injury to any public servant, or to any

98 person in whom he believes that public servant to be interested, for the purpose of inducing that public servant to do any act, or to forbear or delay to do any act, connected with the exercise of the public functions of such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—Non- cognizable— Bailable—Triable by any Magistrate—Non-compoundable. 190. Threat of injury to induce person to refrain from applying for protection to public servant — Whoever holds out any threat of injury to any person for the purpose of inducing that person to refrain or desist from making a legal application for protection against any injury to any public servant legally empowered as such to give such protection, or to cause such protection to be given, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. CLASSIFICATION OF OFFENCE

99 Punishment—Imprisonment for 1 year, or fine, or both—Non- cognizable— Bailable—Triable by any Magistrate—Non-compoundable. CHAPTER XI - OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 191. Giving false evidence — Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. Explanation 1 —A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2 —A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know. Illustrations

100 (a) A, in support of a just claim which B has against Z for one thousand rupees, falsely swears on a trial that he heard Z admit the justice of B’s claim. A has given false evidence. (b) A, being bound by an oath to state the truth, states that he believes a certain signature to be the handwriting of Z, when he does not believe it to be the handwriting of Z. Here A states that which he knows to be false, and therefore gives false evidence. (c) A, knowing the general character of Z’s handwriting, states that he believes a certain signature to be the handwriting of Z; A in good faith believing it to be so. Here A’s statement is merely as to his belief, and is true as to his belief, and therefore, although the signature may not be the handwriting of Z, A has not given false evidence. (d) A, being bound by an oath to state the truth, states that he knows that Z was at a particular place on a particular day, not knowing anything upon the subject. A gives false evidence whether Z was at that place on the day named or not. (e) A, an interpreter or translator, gives or certifies as a true interpretation or translation of a statement or document which he is bound by oath to interpret or translate truly, that which is not and which he does not believe to be a true interpretation or translation. A has given

101 false evidence. 192. Fabricating false evidence — Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence". Illustrations (a) A, puts jewels into a box belonging to Z, with the intention that they may be found in that box, and that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence. (b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in a Court of Justice. A has fabricated false evidence.

102 (c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes a letter in imitation of Z’s handwriting, purporting to be addressed to an accomplice in such criminal conspiracy, and puts the letter in a place which he knows that the officers of the Police are likely to search. A has fabricated false evidence. 193. Punishment for false evidence — Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Explanation 1 — A trial before a Court-martial; is a judicial proceeding. Explanation 2 — An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. Illustration

103 A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence. Explanation 3— An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. Illustration A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding. A has given false evidence. CLASSIFICATION OF OFFENCE Para I: Punishment—Imprisonment for 7 years and fine—Non- cognizable— Bailable—Triable by Magistrate of the first class—Non- compoundable. Para II: Punishment—Imprisonment for 3 years and fine—Non- cognizable— Bailable—Triable by any Magistrate.

104 194. Giving or fabricating false evidence with intent to procure conviction of capital offence — Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital by the law for the time being in force in India shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; if innocent person be thereby convicted and executed — and if an innocent person be convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished either with death or the punishment hereinbefore described. CLASSIFICATION OF OFFENCE Para I: Punishment—Imprisonment for life, or rigorous imprisonment for 10 years and fine—Non-cognizable—Non-bailable—Triable by Court of Session—Non-compoundable. Para II: Punishment—Death or as above—Non-cognizable—Non- bailable— Triable by Court of Session—Non-compoundable.

105 195. Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment.— Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which by the law for the time being in force in India is not capital, but punishable with imprisonment for life, or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished. Illustration A gives false evidence before a Court of Justice, intending thereby to cause Z to be convicted of a dacoity. The punishment of dacoity is imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, with or without fine. A, therefore, is liable to imprisonment for life or imprisonment, with or without fine. CLASSIFICATION OF OFFENCE Punishment—The same as for the offence—Non-cognizable—Non- bailable— Triable by Court of Session—Non-compoundable.

106 196. Using evidence known to be false — Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence. CLASSIFICATION OF OFFENCE Punishment—The same as for the giving or fabricating false evidence— Non-cognizable—According as offence of giving such evidence is bailable or non-bailable—Triable by court by which offence of giving or fabricating false evidence is triable—Non-compoundable. 197. Issuing or signing false certificate — Whoever issues or signs any certificate required by law to be given or signed, or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false evidence. CLASSIFICATION OF OFFENCE Punishment—The same as for the giving or fabricating false evidence—

107 Non-cognizable—Bailable.—Triable by court by which offence of giving false evidence is triable—Non-compoundable. 198. Using as true a certificate known to be false — Whoever corruptly uses or attempts to use any such certificate as a true certificate, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence. CLASSIFICATION OF OFFENCE Punishment—The same as for the giving or fabricating false evidence— Non-cognizable—Bailable—Triable by Court by which offence of giving false evidence is triable—Non-compoundable. 199. False statement made in declaration which is by law receivable as evidence — Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.

108 CLASSIFICATION OF OFFENCE Punishment—The same as for the giving or fabricating false evidence— Non-cognizable-Bailable—Triable by court by which offence of giving false evidence is triable—Non-compoundable. COMMENTS No specific averment in the complaint that certain averments in the affidavit before Rent Control Officer are false complaint cannot be held as maintainable; Chandrapal Singh v. Maharaj Singh, AIR 1982 SC 1236. 200. Using as true such declaration knowing it to be false — Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence. Explanation — A declaration which is inadmissible merely upon the ground of some informality, is a declaration within the meaning of sections 199 to 200. CLASSIFICATION OF OFFENCE

109 Punishment—The same as for giving or fabricating false evidence—Non- cognizable—Bailable—Triable by court by which offence of giving false evidence is triable—Non-compoundable. 201. Causing disappearance of evidence of offence, or giving false information to screen offender — Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; If a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; If punishable with imprisonment for life.—and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

110 If punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. Illustration A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine. CLASSIFICATION OF OFFENCE Para I: Punishment—Imprisonment for 7 years and fine—According as the offence in relation to which disappearance of evidence is caused is cognizable or non-cognizable—Bailable—Triable by Court of Session— Non-compoundable. Para II: Punishment—Imprisonment for 3 years and fine—Non- cognizable— Bailable—Triable by Magistrate of the first class—Non- compoundable. Para III: Punishment—Imprisonment for a quarter of the longest term

111 provided for the offence, or fine or both—Non-cognizable—Bailable— Triable by court by which the offence is triable—Non-compoundable. 202. Intentional omission to give information of offence by person bound to inform.— Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine, or both—Non- cognizable— Bailable—Triable by any Magistrate—Non-compoundable. COMMENTS Assuming that the prosecution has not positively proved that the death was homicidal yet from the medical evidence it is clear that it was not a natural death and consequently the death should at least be noted as one of suicide. Even in the cause of suicide an offence of abetment punishable under section 306 is inherent. Therefore, even in the case of suicide there is an obligation on the person who knows or has reason to believe that such a suicidal death has occurred, to give information; Bhagwan Swarup

112 v. State of Rajasthan, (1991) Cr LJ 3123 (3133) (SC). 203. Giving false information respecting an offence committed — Whoever knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Explanation.— In sections 201 and 202 and in this section the word "offence", includes any act committed at any place out of India, which, if committed in India, would be punishable under any of the following sections, namely, 302, 304, 382, 392 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—Non- cognizable— Bailable—Triable by any Magistrate—Non-compoundable. 204. Destruction of document to prevent its production as evidence —

113 Whoever secretes or destroys any document which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant, as such, or obligates or renders illegible the whole or any part of such document with the intention of prevention the same from being produced or used as evidence before such Court or public servant as aforesaid, or after he shall have been lawfully summoned or required to produce the same for that purpose, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—Non- cognizable— Bailable—Triable by Magistrate of the first class—Non- compoundable. 205. False personation for purpose of act or proceeding in suit or prosecution — Whoever falsely personates another, and in such assumed character makes any admission or statement, or confesses judgment, or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

114 CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—Non- cognizable— Bailable—Triable by Magistrate of the first class—Non- compoundable. 206. Fraudulent removal or concealment of property to prevent its seizure as forfeited or in execution — Whoever fraudulently removes, conceals, transfers or delivers to any person any property or any interest therein, intending thereby to prevent that property or interest therein from being taken as a forfeiture or in satisfaction of a fine, under a sentence which has been pronounced, or which he knows to be likely to be pronounced, by a Court of Justice or other competent authority, or from being taken in execution of a decree or order which has been made, or which he knows to be likely to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—Non-

115 cognizable— Bailable— Triable by any Magistrate—Non-compoundable. 207. Fraudulent claim to property to prevent its seizure as forfeited or in execution — Whoever fraudulently accepts, receives or claims any property or any interest therein, knowing that he has no right or rightful claim to such property or interest, or practices any deception touching any right to any property or any interest therein, intending thereby to prevent that property or interest therein from being taken as a forfeiture or in satisfaction of a fine, under a sentence which has been pronounced, or which he knows to be likely to be pronounced by a Court of Justice or other competent authority, or from being taken in execution of a decree or order which has been made, or which he knows to be likely to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—Non- cognizable— Bailable— Triable by any Magistrate—Non-compoundable. 208. Fraudulently suffering decree for sum not due —

116 Whoever fraudulently causes or suffers a decree or order to be passed against him at the suit of any person for a sum not due or for a larger sum that is due to such person or for any property or interest in property to which such person is not entitled, or fraudulently causes or suffers a decree or order to be executed against him after it has been satisfied, or for anything in respect of which it has been satisfied, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Illustration A institutes a suit against Z. Z knowing that A is likely to obtain a decree against him, fraudulently suffers a judgment to pass against him for a larger amount at the suit of B, who has no just claim against him, in order that B, either on his own account or for the benefit of Z, may share in the proceeds of any sale of Z’s property which may be made under A’s decree. Z has committed an offence under this section. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—Non- cognizable— Bailable— Triable by Magistrate of the first class—Non- compoundable.

117 209. Dishonestly making false claim in Court — Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a Court of Justice any claim which he knows to be false, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—Non- cognizable— Bailable—Triable by Magistrate of the first class—Non- compoundable. 210. Fraudulently obtaining decree for sum not due — Whoever fraudulently obtains a decree or order against any person for a sum not due or for a larger sum than is due, or for any property or interest in property to which he is not entitled, or fraudulently causes a decree or order to be executed against any person after it has been satisfied or for anything in respect of which it has been satisfied, or fraudulently suffers or permits any such act to be done in his name, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. CLASSIFICATION OF OFFENCE

118 Punishment—Imprisonment for 2 years, or fine, or both—Non- cognizable— Bailable—Triable by Magistrate of the first class—Non- compoundable. 211. False charge of offence made with intent to injure — Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. CLASSIFICATION OF OFFENCE Para I: Punishment—Imprisonment for 2 years, or fine, or both—Non- cognizable—Bailable—Triable by Magistrate of the first class—Non- compoundable.

119 Para II: Punishment—Imprisonment for 7 years and fine—Non- cognizable— Bailable—Triable by Magistrate of the first class—Non- compoundable. Para III: Punishment—Imprisonment for 7 years, and fine—Non- cognizable— Bailable—Triable by Court of Session—Non-compoundable. 217. Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture — Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—Non-

120 cognizable— Bailable—Triable by any Magistrate—Non-compoundable. 218. Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture — Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—Cognizable— Bailable— Triable by Magistrate of the first class—Non-compoundable. 219. Public servant in judicial proceeding corruptly making report, etc., contrary to law —

121 Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years, or fine, or both—Non- Cognizable— Bailable—Triable by Magistrate of the first class—Non- compoundable. 220. Commitment for trial or confinement by person having authority who knows that he is acting contrary to law — Whoever, being in any office which gives him legal authority to commit persons for trial or to commitment, or to keep persons in confinement, corruptly or maliciously commits any person for trial or to confinement, or keeps any person in confinement, in the exercise of that authority knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

122 CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years, or fine, or both—Non- cognizable— Bailable—Triable by Magistrate of the first class—Non- compoundable. 221. Intentional omission to apprehend on the part of public servant bound to apprehend — Whoever, being a public servant, legally bound as such public servant to apprehend or to keep in confinement any person charged with or liable to apprehended for an offence, intentionally omits to apprehend such person, or intentionally suffers such person to escape, or intentionally aids such person in escaping or attempting to escape from such confinement, shall be punished as follows, that is to say:— with imprisonment of either description for a term which may extend to seven years, with or without fine, if the person in confinement, or who ought to have been apprehended, was charged with, or liable to be apprehended for, an offence punishable with death; or with imprisonment of either description for a term which may extend to three years, with or without fine, if the person in confinement, or who ought to have been apprehended, was charged with, or liable to be apprehended

123 for, an offence punishable with imprisonment for life or imprisonment for a term which may extend to ten years; or with imprisonment of either description for a term which may extend to two years, with or without fine, if the person in confinement, or who ought to have been apprehended, was charged with, or liable to be apprehended for, an offence punishable with imprisonment for a term less than ten years. CLASSIFICATION OF OFFENCE Para I: Punishment—Imprisonment for 7 years, with or without fine— According as the offence in relation to which such omission has been made in cognizable or non-cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable. Para II: Punishment—Imprisonment for 3 years, with or without fine— Cognizable—Bailable—Triable by Magistrate of the first class—Non- compoundable. Para III: Punishment—Imprisonment for 2 years, with or without fine— Cognizable—Bailable—Triable by Magistrate of the first class—Non- compoundable. 222. Intentional omission to apprehend on the part of public servant bound to apprehend person under sentence or lawfully committed

124 Whoever, being a public servant, legally bound as such public servant to apprehend or to keep in confinement any person under sentence of a Court of Justice for any offence or lawfully committed to custody, intentionally omits to apprehend such person, or intentionally suffers such person to escape or intentionally aids such person in escaping or attempting to escape from such confinement, shall be punished as follows, that is to say:— with imprisonment for life or with imprisonment of either description for a term which may extend to fourteen years, with or without fine, if the person in confinement, or who ought to have been apprehended, is under sentence of death; or with imprisonment of either description for a term which may extend to seven years, with or without fine, if the person in confinement or who ought to have been apprehended, is subject, by a sentence of a Court of Justice, or by virtue of a commutation of such sentence, to imprisonment for life or imprisonment for a term of ten years or upwards; or with imprisonment of either description for a term which may extend to three years, or with fine, or with both, if the person in confinement, or who ought to have been apprehended is subject, by a sentence of a Court of Justice, to imprisonment for a term not exceeding to ten years or if the person was lawfully committed to custody. CLASSIFICATION OF OFFENCE

125 Para I: Punishment—Imprisonment for life, or imprisonment for 14 years, with or without fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable. Para II: Punishment—Imprisonment for 7 years, with or without fine— Cognizable—Non-bailable—Triable by Magistrate of the first class—Non- compoundable. Para III: Punishment—Imprisonment for 3 years, or fine, or both— Cognizable— Bailable—Triable by Magistrate of the first class—Non- compoundable. 223. Escape from confinement or custody negligently suffered by public servant — Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, negligently suffers such person to escape from confinement, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. CLASSIFICATION OF OFFENCE Punishment—Simple imprisonment for 2 years, or fine, or both—Non-

126 cognizable— Bailable—Triable by any Magistrate—Non-compoundable. 224. Resistance or obstruction by a person to his lawful apprehension.— Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Explanation — The punishment in this section is in addition to the punishment for which the person to be apprehended or detained in custody was liable for the offence with which he was charged, or of which he was convicted.

127 CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—Cognizable— Bailable— Triable by any Magistrate—Non-compoundable. 225. Resistance or obstruction to lawful apprehension of another person — Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of any other person for an offence, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained for an offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; or, if the person to be apprehended, or the person rescued or attempted to be rescued, is charged with or liable to be apprehended for an offence punishable with imprisonment for life or imprisonment for a term which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; or, if the person to be apprehended, or the person attempted to be rescued, is charged with or liable to be apprehended for an offence punishable with death, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; or, if the person to

128 be apprehended or rescued, or attempted to be rescued, is liable under the sentence of a Court of Justice, or by virtue of a commutation of such a sentence, to imprisonment for life or imprisonment, for a term of ten years or upwards, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; or, if the person to be apprehended or rescued, or attempted to be rescued, is under sentence of death, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine. CLASSIFICATION OF OFFENCE Para I: Punishment—Imprisonment for 2 years, or fine, or both— Cognizable— Bailable—Triable by any Magistrate—Non-compoundable. Para II: Punishment—Imprisonment for 3 years and fine—Cognizable— Non-bailable—Triable by Magistrate of the first class—Non- compoundable. Para III & IV: Punishment—Imprisonment for 7 years and fine— Cognizable—Non-bailable—Triable by Magistrate of the first class. Para V: Punishment— Imprisonment for life or imprisonment for 10 years and fine—Cognizable—Non-bailable— by Court of Session.

129 Triable 225A. Omission to apprehend, or sufferance of escape, on part of public servant, in cases not otherwise, provided for — Whoever, being a public servant legally bound as such public servant to apprehend, or to keep in confinement, any person in any case not provided for in section 221, section 222 or section 223, or in any other law for the time being in force, omits to apprehend that person or suffers him to escape from confinement, shall be punished— (a) if he does so intentionally, with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and (b) if he does so negligently, with simple imprisonment for a term which may extend to two years, or with fine, or with both. CLASSIFICATION OF OFFENCE Para I: Punishment—Imprisonment for 3 years, or fine, or both—Non- cognizable—Bailable—Triable by Magistrate of the first class—Non- compoundable.

130 Para II: Punishment—Simple imprisonment for 2 years, or fine, or both— Non-cognizable—Bailable—Triable by any Magistrate. 225B. Resistance or obstruction to lawful apprehension, or escape or rescue in cases not otherwise provided for — Whoever, in any case not provided for in section 224 or section 225 or in any other law for the time being in force, intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself or of any other person, or escapes or attempts to escape from any custody in which he is lawfully detained, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine, or both—Cognizable— Bailable—Triable by any Magistrate—Non-compoundable. 226. Unlawful return from transportation — Rep. by the Code of Criminal Procedure (Amendment) Act, 1995 (26 of

131 1995), sec. 117 and Sch. (w.e.f. 1-1-1956). 227. Violation of condition of remission of punishment — Whoever, having accepted any conditional remission of punishment, knowingly violates any condition on which such remission was granted, shall be punished with the punishment to which he was originally sentenced, if he has already suffered no part of that punishment, and if he has suffered any part of that punishment, then with so much of that punishment as he has not already suffered. CLASSIFICATION OF OFFENCE Punishment—Punishment of original sentence, or if part of the punishment has been undergone, the residue—Cognizable—Non- bailable—Triable by the court by which the original offence was triable— Non-compoundable. 228. Intentional insult or interruption to public servant sitting in judicial proceeding — Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to

132 one thousand rupees, or with both. CLASSIFICATION OF OFFENCE Punishment—Simple Imprisonment for 6 months, or fine of 1,000 rupees or both— Non-cognizable—Bailable—Triable by the Court in which the offence is committed, subject to the provisions of chapter XXVI—Non- compoundable.

133 V. INDIAN CONTRACT ACT 1872 IMPORTANT TERMINOLOGY: "Coercion" defined "Coercion" is the committing, or threating to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. 16. "Undue influence" defined 66. A contract is said to be induced by "under influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. 67. In particular and without prejudice to the generally of the foregoing principle, a person is deemed to be in a position to dominate the will of another - (h) where he hold a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (i) where he makes a contract with a person whose mental capacity is

134 temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872) 17. "fraud defined "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agents, with intent to deceive another party thereto his agent, or to induce him to enter into the contract; 69. the suggestion as a fact, of that which is not true, by one who does not believe it to be true; 70. the active concealment of a fact by one having knowledge or belief of the fact;

135 71. a promise made without any intention of performing it; 72. any other act fitted to deceive; 73. any such act or omission as the law specially declares to be fraudulent. 18. "Misrepresentation" defined "Misrepresentation" means and includes - (1) the positive assertion, in a manner not warranted by the information of the person making it, of that whichis not true, though he believes it to be true; 74. any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or anyone claiming under him; by misleading another to his prejudice, or to the prejudice of any one claiming under him; 75. causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is subject of the agreement. 31."Contingent contract" defined

136 A "contingent contract" is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen. 125. "Contract of indemnity" defined A contract by which one party promises to save the other from loss caused to him by the contract of the promisor himself, or by the conduct of any other person, is called a "contract of indemnity". 126. "Contract of guarantee", "surety", "principal debtor" and "creditor" - A "contract of guarantee" is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the "surety", the person in respect of whose default the guarantee is given is called the "principal debtor", and the person to whom the guarantee is given is called the "creditor". A guarantee may be either oral or written. 128. Surety's liability The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract. 129. Continuing guarantee

137 A guarantee which extends to a series of transaction, is called, a "continuing guarantee". "Bailment", "bailor" and "bailee" defined - A "bailment" is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the direction of the person delivering them. The person delivering the goods is called the "bailor". The person to whom they are delivered is called the "bailee".Explanation: If a person already in possession of the goods of other contracts hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailor of such goods, although they may not have been delivered by way of bailment. 149. Delivery to bailee how made - The delivery to be bailee may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or of any person authorised to hold them on his behalf. 150. Bailor's duty to disclose faults in goods bailed - The bailor is bound to disclose to the bailee faults in the goods bailed, of which the bailor is aware, and which materially interfere with the

138 use of them, or expose the bailee to extraordinary risk; and if he does not make such disclosure, he is responsible for damage arising to the bailee directly from such faults. 151. Care to be taken by bailee - In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quantity and value as the goods bailed. 152. Bailee when not liable for loss, etc, of thing bailed - The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in section 151. 153. Termination of bailment by bailee's act inconsistent with conditions - A contract of bailment is voidable at the option of the bailor, if the bailee does any act with regard to the foods bailed, inconsistent with the conditions of the bailment. 154. Liability of bailee making unauthorised use of goods bailed -

139 If the bailee makes any use of the goods bailed which is not according to the conditions of the bailment, he is liable to make compensation to the bailor for any damage arising to the goods from or during such use of them. Bailee's particular lien - Where the bailee has, in accordance with the purpose of the bailment, rendered any service involving the exercise of labour or skill in respect of the goods bailed he has in the absence of a contract to the contrary, a right to retain such goods until he receives due remuneration for the services he has rendered in respect of them. 171. General lien of bankers, factors, wharfinger, attorneys and policy brokers - Bankers, factor, wharfingers, attorneys of a High Court and policy brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other person have a right retain, as a security for which balance, goods, bailed to them, unless is an express contract to that effect. 172. "Pledge", "Pawnor", and "Pawnee" defined -

140 The bailment of goods as security for payment of a debt or performance of a promise is called "pledge". The bailor is in this case called "pawnor". The bailee is called "pawnee". 173. Pawnee's right of retainer - The pawnee may retain the goods pledged, not only for payment of the debt or the performance of the promise, but for the interests of the debt, and all necessary expenses incurred by him in respect to the possession or for the preservation of the goods pledged. 174. Pawnee not to retain for debt or promise other than for which goods pledged - presumption in case of subsequent advances - The pawnee shall not, in the absence of a contract to that effect, retain the goods pledged for any debt or promise of other than the debtor promise for which they are pledged; but such contract, in the absence of anything to the contrary, shall be presumed in regard to subsequent advances made by the pawnee. 175. Pawnee's right as to extraordinary expenses incurred - The pawnee is entitled to receive from the pawnor extraordinary expenses incurred by him for the preservation of the goods pledged.

141 176. Pawnee's right where pawnor makes default - If the pawnor makes default in payment of the debt, or performance, at the stipulated time, or the promise, in respect of which the goods were pledged, the pawnee may bring as suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale. If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater that the amount so due, the pawnee shall pay over the surplus to the pawnor. 177. Defaulting pawnor's right to redeem - If a time is stipulated for the payment of the debt, or performance of the promise, for which the pledged is made, and the pawnor makes default in payment of the debt or performance of the promise at the stipulated time, he may redeem the goods pledged at any subsequent time before the actual sale of them; but he must, on that case, pay, in addition, any expenses which have arisen from his default. 178. Pledge by mercantile agent -

142 Where a mercantile agent is, with the consent of the owner, in possession of goods or the documents of title to goods, any pledge made by him, when acting in the ordinary course of business of a mercantile agent, shall be as valid as if he were expressly authorised by the owner of the goods to make the same; provided that the pawnee acts in good faith and has not at the time of the pledge notice that the pawnor has not authority to pledge. Explanation : In this section, the expression "mercantile agent" and "documents of title" shall have the meanings assigned to them in the Indian Sale of Goods Act, 1930 (3 of 1930). 182. "Agent" and "principal" defined - An "agent" is a person employed to do any act for another, or to represent another in dealing with third persons. The person for whom such act is done, or who is so represented, is called the "principal". 183. Who may employ agent - Any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent. 184. Who may be an agent -

143 As between the principal and third persons, any person may become an agent, but no person who is not of the age of majority and sound mind can become an agent, so as to be responsible to the principal according to the provisions in that behalf herein contained. 185. Consideration not necessary - No consideration is necessary to create an agency; 186. Agent's authority may be expressed or implied - The authority of an agent may be expressed or implied. 187. Definitions of express and implied - An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case. 188. Extent of agent's authority - An agent, having an authority to do an act, has authority do every lawful thing which is necessary in order to do so such act.An agent having an

144 authority to carry on a business, has authority to do every lawful thing necessary for the purpose, or usually done in the course, of conducting such business. 189. Agent's authority in an emergency - An agent has authority, in an emergency, to do all such acts for the purpose of protecting his principal from loss and would be done by a person or ordinary prudence, in his own case, under similar circumstances. 190. When agent cannot delegate - An agent cannot lawful employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub-agent may, or, from the nature or agency, a sub- agent must, be employed. 191. "Sub-agent" defined - A "sub-agent" is a person employed by, and acting undue the control of, the original agent in the business of the agency. 192. Representation of principal by sub-agent properly appointed -

145 Where a sub-agent is properly appointed, the principal is, so far as regards third persons, represented by the sub-agent, and is bound by and responsible for his acts, as if he were an agent originally appointed by the principal.Agent's responsibility for sub-agent: The agent is responsible to the principal for the acts of the sub-agent.Sub-agent's responsibility: The sub-agent is responsible for his acts to the agent, but not to the principal, except in cases of fraud, or wilful wrong. 193. Agent's responsibility for sub-agent appointed without authority- Where an agent, without having authority to do so, has appointed a person to act as a sub-agent stands towards such person in the relation of a principal to an agent, and is responsible for his act both to the principal and to third person; the principal is not represented, by or responsible for the acts of the person so employed, nor is that person responsible to the principal. 194. Relation between principal and person duly appointed by agent to act in business of agency - When an agent, holding an express or implied authority to name another person to act for the principal in the business of the agency, has named another person accordingly, such person is not a sub-agent, but

146 an agent of the principal for such part of the business of the agency as is entrusted to him. 195. Agent's duty in naming such person - In selecting such agent for his principal, an agent is bound to exercise the same amount of discretion as a man or ordinary prudence would exercise in his own case; and, if he does this, he is not responsible to the principal for the acts of negligence of the agent so selected. 196. Right of person as to acts done for him without his authority, effect of ratification - Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if they had been performed by his authority. 197. Ratification may be expressed or implied - Ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts are done. 198. Knowledge requisite for valid ratification - No valid ratification can be made by a person whose knowledge of the

147 facts of the case is materially defective. 199. Effect of ratifying unauthorized act forming part of a transaction - A person ratifying any unauthorized act done on his behalf ratifies the whole of the transaction of which such act formed a part. 200. Ratification of unauthorized act cannot injure third person - An act done by one person on behalf of another, without such other person's authority, which, if done with authority, would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect. 201. Termination of Agency - An agency is terminated by the principal revoking his authority, or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.

148 202. Termination of Agency, where agent has an interest in subject- matter - Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. 203. When principal may revoke agent's authority - The principal may, save as is otherwise provided by the last preceding section, revoke the authority given to his agent at any time before the authority has been exercised so as to bind the principal. 204. Revocation where authority has been partly exercised - The principal cannot revoke the authority given to his agent after the authority has been partly exercised, so far as regards such acts and obligations as arise from acts already done in the agency. 205. Compensation for revocation by principal, or renunciation by agent - Where there is an express or implied contract that the agency should be continued for any period of time, the principal must make compensation to the agent, or the agent to the principal, as the case may

149 be, for any previous revocation or renunciation of the agency without sufficient cause. 206. Notice of revocation or renunciation - Reasonable notice must be given of such revocation or renunciation; otherwise the damage thereby resulting to the principal or the agent, as the case may be, must be made good to the one by the other. 207. Revocation and Renunciation may be expressed or implied - Revocation and renunciation may be expressed or may be implied in the conduct of the principal or agent respectively. 208. When termination of agent's authority takes effect as to agent, and as to third persons - The termination of the authority of an agent does not, so far as regards the agent, take effect before it becomes known to him, or, so far as regards third persons, before it becomes known to them. 209. Agent's duty on termination o agency by principal's death or insanity - When an agency is terminated by the principal dying or becoming of unsound mind, the agent is bound to take, on behalf of the

150 representatives of his late principal, all reasonable steps for the protection and preservation of the interests entrusted to him. 210. Termination of Sub-agent's authority - The termination of the authority of an agent causes the termination (subject to the rules herein contained regarding the termination of an agent's authority) of the authority of all sub-agents appointed by him. 211. Agent's duty in conducting principal's business - An agent is bound to conduct the business of his principal according to the directions given by the principal, or, in the absence of any such directions, according to the custom which prevails in doing business of the same kind at the place where the agent conducts such business. When the agent acts otherwise, if any loss be sustained, he must make it good to his principal, and, if any profit accrues, he must account for it. 212. Skill and Diligence required from agent - An agent is bound to conduct the business of the agency with as much skill as is generally possessed by persons engaged in similar business, unless the principal has notice of his want of skill. The agent is always bound to act with reasonable diligence, and to use such skill as he possesses; and to make compensation to his principal in respect of the

151 direct consequences of his own neglect, want of skill or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such neglect, want of skill or misconduct. 213. Agent's accounts - An agent is bound to render proper accounts to his principal on demand. 214. Agent's duty of communicate with principal - It is the duty of an agent, in cases of difficulty, to use all reasonable diligence in communicating with his principal, and in seeking to obtain his instructions. 215. Right to principal when agent deals, on his own account, in business of agency without principal's consent - If an agent deals on his own account in the business of the agency, without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him. 216. Principal's right to benefit gained by agent dealing on his own

152 account in business of agency - If an agent, without the knowledge of his principal, deals in the business 6f the agency on his own account instead of on account of his principal, the principal is entitled to claim from the agent any benefit which may have resulted to him from the transaction. 217. Agent's right of retainer out of sums received on principal's account - An agent may retain, out of any sums received on account of the principal in the business of the agency, all moneys due to himself in respect of advances made or expenses properly incurred by him in conducting such business, and also such remuneration as may be payable to him for acting as agent. 218 . Agent's duty to pay sums received for principal - Subject to such deductions, the agent is bound to pay to his principal all sums received on his account. 219. When agent's remuneration becomes due - In the absence of any special contract, payment for the performance of any act is not due to the agent until the completion of such act; but an

153 agent may detain moneys received by him on account of goods sold, although the whole of the goods consigned to him for sale may not have been sold, or although the sale may not be actually complete. 220. Agent not entitled to remuneration for business misconducted - An agent who is guilty of misconduct in the business of the agency is not entitled to any remuneration in respect of that part of the business which he has misconducted.221. Agent's lien on principal property - In the absence of any contract to the contrary, an agent is entitled to retain goods, papers, and other property, whether movable or immovable, of the principal received by him, until the amount due to himself for commission, disbursements and services in respect of the same has been paid or accounted for to him. 222. Agent to be indemnified against consequences of lawful acts - The employer of an agent is bound to indemnify him against the consequences of all lawful acts done by such agent in exercise of the authority conferred upon him. 223. Agent to be indemnified against consequences of acts done in good faith -

154 Where one person employs another to do an act, and the agent does the act in good faith, the employer is liable to indemnify the agent against the consequences of that act, though it causes an injury to the rights of third persons 224. Non-Liability of employer of agent to do a Criminal Act - Where one person employs another to do an act which is criminal, the employer is not liable to the agent, either upon an express or an implied promise, to indemnify him against the consequences of that act. 225. Compensation to agent for injury caused by principal's neglect - The principal must make compensation to his agent in respect of injury caused to such agent by the principal's neglect or want of skill. 226. Enforcement and Consequences of agent's contracts - Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences, as if the contracts had been entered into and the acts done by the principal in person. 227. Principal how far bound, when agent exceeds authority -

155 When an agent does more than he is authorised to do, and when the part of what he does, which is within his authority, can be separated from the part which is beyond his authority, so much only of what he does as is within his authority is binding as between him and his principal. 228. Principal not bound when excess of agent's authority is not separable - Where an agent does more than he is authorised to do, and what he does beyond the scope of his authority cannot be separated from what is within it, the principal is not bound to recognise the transaction.

156 VI. SALE OF GOODS ACT, 1930 The law relating to sale of goods is contained in the Sale of Goods Act, 1930. It has to be read as part of the Indian Contract Act, 1872 [Sections 2(5) and (3)]. "document of title to goods" includes a bill of lading, dock warrant, warehouse keeper's certificate, wharfinger’s certificate, railway receipt, [multimodal transport document,], warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented ; Contract of Sale of Goods According to Section 4, a contract of sale of goods is a contract whereby the seller: (i) transfers or agrees to transfer the property in goods (ii) to the buyer, (iii) for a money consideration called the price. It shows that the expression "contract of sale" includes both a sale where the seller transfers the ownership of the goods to the buyer, and an agreement to sell where the ownership of goods is to be transferred at a future time or subject to some conditions to be fulfilled later on. The following are thus the essentials of a contract of sale of goods:

157 Bilateral contract: It is a bilateral contract because the property in goods has to pass from one party to another. A person cannot buy the goods himself. (i) Transfer of property: The object of a contract of sale must be the transfer of property (meaning ownership) in goods from one person to another. (ii) Goods: The subject matter must be some goods. (iii) Price or money consideration: The goods must be sold for some price, where the goods are exchanged for goods it is barter, not sale. (iv) All essential elements of a valid contract must be present in a contract of sale. Distinction between Sale and Agreement to Sell The following points will bring out the distinction between sale and an agreement to sell: (a) In a sale, the property in the goods sold passes to the buyer at the time of contract so that he becomes the owner of the goods. In an agreement to sell, the ownership does not pass to the buyer at the time of the contract, but it passes only when it becomes sale on

158 the expiry of certain time or the fulfillment of some conditions subject to which the property in the goods is to be transferred. (b) An agreement to sell is an executory contract, a sale is an executed contract. (c) An agreement to sell is a contract pure and simple, but a sale is contract plus conveyance. (d) If there is an agreement to sell and the goods are destroyed by accident, the loss falls on the seller. In a sale, the loss falls on the buyer, even though the goods are with the seller. (e) If there is an agreement to sell and the seller commits a breach, the buyer has only a personal remedy against the seller, namely, a claim for damages. But if there has been a sale, and the seller commits a breach by refusing to_ deliver the goods, the buyer has not only a personal remedy against him but also the other remedies which an owner has in respect of goods themselves such as a suit for conversion or detinue, etc. Sale and Bailment A "bailment" is a transaction under which goods are delivered by one person (the bailor) to another (the bailee) for some purpose, upon a contract that they be returned or disposed of as directed after the purpose is accomplished (Section 148 of the Indian Contact Act, 1872). The property in the goods is not intended to and does not pass on delivery though it may sometimes be the intention of the parties that it

159 should pass in due course. But where goods are delivered to another on terms which indicate that the property is to pass at once the contract must be one of sale and not bailment. Sale and Contract for Work and Labour The distinction between a "sale" and a "contract for work and labour" becomes important when question of passing of property arises for consideration. However. these two are difficult to distinguish. The test generally applied is that if as a result of the contract, property in an article is transferred to one who had no property therein previously, for a money consideration, it is a sale. Where it is otherwise it is a contract for work and labour. Sale and Hire Purchase Agreement "Sale", is a contract by which property in goods passes from the seller to the buyer for a price. A "hire purchase agreement' is basically a contract of hire, but in addition, it gives the hirer an option to purchase the goods at the end of the hiring period. Consequently, until the final payment, the hirer is merely a bailee of goods and ownership remains vested in the bailor. Under such a contract, the owner of goods delivers the goods to person who agrees to pay certain stipulated periodical payments as hire charges. Though the possession is with the hirer, the ownership of the goods remains with the original owner. The essence of hire purchase agreement is that there is no agreement to buy, but only an option is given to the

160 hirer to buy by paying all the installments or put an end to the hiring and return the goods to the owner, at any time before the exercise of the option. Since the hirer does not become owner of the goods until he has exercised his option to buy, he cannot pass any title even to an innocent and bona fide purchaser. The transaction of hire-purchase protects the owner of the goods against the insolvency of the buyer, for if the buyer becomes insolvent or fails to pay the installments, he can take back the goods, as owner. And if the hirer declines to take delivery of the goods, the remedy of the owner will be in damages for non-hiring and not for rent for the period agreed. It is important to note the difference between a hire purchase agreement and mere payment of the price by installments, because the latter is a sale, only the payment of price is to be made by installments. The distinction between the two is very important because, in a hire- purchase agreement the risk of loss or deterioration of the goods hired lies with the owner and the hirer will be absolved of any responsibility therefore, if he has taken reasonable care to protect the same as a bailee. But it is otherwise in the case of a sale where the price is to be paid in instalments. Subject matter of Contract of Sale of Goods Goods The subject matter of the contract of sale is essentially goods. According to Section 2(7) "goods'" means every kind of movable property' other than actionable claims and money and includes stock

161 and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be served before sale or under the contract of sale. . “Actionable claims” and money are not goods and cannot be bought and sold under this Act. Money means current money, i.e., the recognized currency in circulation in the country, but not old and rare coins which may be treated as goods. An actionable claim is what a person cannot make a present use of or enjoy, but what can be recovered by him by means of a suit or an action. Thus, a debt due to a man from another is an actionable claim and cannot be sold as goods, although it can be assigned. Under the provisions of the Transfer of Property Act, 1882, goodwill, trademarks, copyrights, patents are all goods, so is a ship. As regards water, gas, electricity, it is doubtful whether they are goods (Rash Behari v. Emperor, (1936) 41 C.W.N.225; M.B. Electric Supply Co. Ltd. v. State of Rajasthan, AIR (1973) RaJ. 132). Goods may be (a) existing, (b) future, or (c) contingent. The existing goods may I be (i) specific or generic, (ii) ascertained or unascertained. Existing Goods Existing goods are goods which are either owned or possessed by the seller at the time of the contract. Sale of goods possessed but not owned by the seller would' be by an agent or pledgee. Existing goods are specific goods which are identified and agreed upon at the time of the contract of sale. Ascertained goods are either specific goods at the time of the contract or are ascertained or identified to the contract later on

162 i.e. made specific. Generic or unascertained goods are goods which are not specifically identified but are indicated by description. If a merchant agrees to supply a radio set from his stock of radio sets, it is a contract of sale of unascertained goods because it is not known which set will be delivered. As soon as a particular set is separated or identified for delivery' and the buyer has notice of it, the goods are ascertained and become specific goods. Future Goods Future goods are goods to be manufactured or produced or acquired by the seller after the making of the contract of sale. A agrees to sell all the mangoes which will be produced in his garden next season. This is an agreement for the sale of future goods. [Section 2(6)] Contingent Goods Where there is a contract for the sale of goods, the acquisition of which by the seller depends upon a contingency which may or may not happen - such goods are known as contingent goods. Contingent goods fall in the class of future goods. A agrees to sell a certain TV set provided he is able to get it from its present owner. This is an agreement to sell contingent goods. In such a case, if the contingency- does not happen for no fault of the seller, he will not be liable for damages. Actual sale can take place only .of specific goods and property in

163 goods passes from the seller to buyer at the time of the contract, provided the goods are in a deliverable state and the contract is unconditional. There can be an agreement to sell only in respect of future or contingent goods. Effect of Perishing of Goods In a contract of sale of goods, the goods may perish before sale is complete. Such a stage may arise in the following cases: (i) Goods perishing before making a contract Where in a contract of sale of specific goods, the goods without the knowledge of the seller have, at the time of making the contract perished or become so damaged as no longer to their description in the contract, the contract is void. This is based on the rule that mutual mistake of fact essential to the contract renders the contract void. (Section 7) If the seller was aware of the destruction and still entered into the contract, he is estopped from disputing the contract. Moreover, perishing of goods not only includes loss by theft but also where the goods have lost their commercial value. (ii) Goods perishing after agreement to sell Where there is an agreement to sell specific goods and subsequently, the goods without any fault of any party perish or are so damaged as no longer to answer to their description in the agreement before the risk passes to the buyer, the agreement is thereby avoided. The provision applies only to sale of specific goods. If the sale is of unascertained goods.

164 the perishing of the whole quantity of such goods in the possession of the seller will not relieve him of his obligation to deliver. (Section 8) Price No sale can take place without a price. Thus, if there is no valuable consideration to support a voluntary surrender of goods by the real owner to another person, the transaction is a gift, and is not governed by the Sale of Goods Act. Therefore, price. which is money consideration for the sale of goods, constitutes the essence for a contract of sale. It may be money actually paid or promised to b/3 paid. If a consideration other than money is to be given, it is not a sale. Modes of Fixing Price (Sections 9 and 10) The price may be fixed: (i) at the time of contract by the parties themselves, or (ii) may be left to be determined by the course of dealings between the parties, or (iii) may be left to be fixed in some way stipulated in the contract, or (iv) may be left to be fixed by some third-party. Where the contract states that the price is to be fixed by a third-party and he fails to do so, the contract is void. But if the buyer has already taken the benefit of the goods, he must pay a reasonable price for them. If the third-party's failure to fix the price is due to the fault of one of the parties, then that party is liable for an action for damages. Where nothing is said by the parties regarding price, the buyer must pay a reasonable price, and the market price would be a reasonable price. Conditions and Warranties (Sections 10-17)

165 The. parties are at liberty to enter into a contract with any terms they please. As a rule, before a contract of sale is concluded, certain statements are made by the parties to each other. The statement may amount to a stipulation, forming part of the contract or a mere expression of opinion which is not part of the contract. If it is a statement by the seller on the reliance of which the buyer makes the contract, it will amount to a stipulation. If it is a mere commendation by the seller of his goods it does not amount to a stipulation and does not give the right of action. . The stipulation may either be a condition or a warranty. Section 12 draws a clear distinction between a condition and a warranty. Whether a stipulation is a condition or only a warranty is a matter of substance rather than the form of the words used. A stipulation may be a condition though called a warranty and vice versa. Conditions If the stipulation forms the very basis of the contract, or is essential to the main purpose of the contract. it is a condition. The breach of the condition gives the aggrieved party a right to treat the contract as repudiated. Thus, if the seller fails to fulfill a condition, the buyer may treat the contract as repudiated, refuse the goods and. if he has already paid for them, recover the price. He can also claim damages for the breach of contract. Warranties If the stipulation is collateral to the main purpose of the contract, i.e.. is a subsidiary promise, it is a warranty. The effect of a breach of a warranty is that the aggrieved party cannot repudiate the contract but

166 can only claim damages. Thus, if the seller does not fulfil a warranty. the buyer must accept the goods and claim damages for breach of warranty. Section 11 states that the stipulation as to time of payment are not to be deemed conditions (and hence not to be of the essence of a contract of sale) unless such an intention appears from the contract. Whether any other stipulation as to time (e.g., time of delivery) is the essence of the contract or not depends on the terms of the contract. When condition sinks to the level of warranty In some cases a condition sinks or descends. to the level of a warranty. The first two cases depend upon the will of the buyer. but the third is compulsory and acts as estoppel against him. (a) A condition will become a warranty where the buyer waives the condition, or (b) A condition will sink to the level of a warranty where the buyer treats the breach of condition as a breach of warranty; or (c) Where the contract is indivisible and the buyer has accepted the goods or part thereof. the breach of condition can only be treated as breach of warranty: The buyer can only claim damages and cannot reject the goods or treat the contract as repudiated. Sometimes the seller may be excused by law from fulfilling any condition or warranty and the buyer will not then have a remedy in damages. Implied Warranties/Conditions Even where no definite representations have been made, the law

167 implies certain representations as having been made which may be warranties or conditions. An express warranty or condition does not negative an implied warranty or condition unless inconsistent therewith. There are two implied warranties: Implied Warranties [Section 14(b), 14(c) and 16(3)] (a) Implied warranty of quiet possession: If the circumstances of the contract are such as there is an implied warranty that the buyer shall have and enjoy quiet possession of the goods. (b) Implied warranty against encumbrances: There is a further warranty that the goods are not subject to any right in favour of a third-party, or the buyer's possession shall not be disturbed by reason of the existence of encumbrances. This means that if the buyer is required to, and does discharge the amount of the encumbrance, there is breach of warranty, and he is entitled to claim damages from the seller. Implied Conditions [Sections 14(a), 15(1), (2), 16(1) and Proviso 16(2), and Proviso 16(3) and 12(b) and 12(c)]. Different implied conditions apply under different types of contracts of sale of goods, such as sale by description, or sale by sample, or sale by description as well as sample. The condition, as to title to goods applies to all types of contracts, subject to that there is apparently no other intention. Implied Conditions as to title There is an implied condition that the seller, in an actual sale, has the

168 right to sell the goods, and, in an agreement to sell, he will have to it when property is to pass. As a result, if the title of the seller turns out to be defective, the buyer is entitled to reject the goods and can recover the full price paid by him. In Rowland v. Divali (1923) 2 K.B. SOD, 'A' had bought a second hand motor car from 'B' and paid for it. After he had used it for six months, he was deprived of it because the seller had no title to it. It was held that 'A' could recover the full price from 'B' even though he had used the car for six months, as the consideration had totally failed. Implied conditions under a sale by description In a sale by description there are the following implied conditions: (a) Goods must correspond with description: Under Section 15, when there is a sale of goods by description, there is an implied condition that the goods shall correspond with description. In a sale by description, the buyer relies for his information on the description of the goods given by the seller, e.g. in the contract or in the preliminary negotiations. Where 'A' buys goods which he has not seen, it must be sale by description, e.g., where he buys a 'new Fiat car' from 'B' and the car is not new, he can reject the car. Even if the buyer has seen the goods, the goods must be in accordance with the description (Beale v. Taylor (1967) All E.R. 253). (b) Goods must also be of merchantable quality: If they are bought by

169 description from dealer of goods of that description. [Section 16(2)]. Merchantable quality means that the goods must be such as would be acceptable to a reasonable person, having regard to prevailing conditions. They are not merchantable if they have defects which make them unfit for ordinary use, or are such that a reasonable person knowing of their condition would not buy them. 'P' bought black yarn from' '0' and, when delivered, found it damaged by the white ants. The condition of merchantability was broken. But, if the buyer has examined the goods, there is no implied condition as regards defects which such examination ought to have revealed. If, however, examination by the buyer does not reveal the defect, and he approves and accepts the goods, but when put to work, the goods are found to be defective, there is a breach of condition of merchantable quality. The buyer is given a right to examine the goods before accepting them. But a mere opportunity without an actual examination, however, cursory, would not suffice to deprive him of this right. (c) Condition as to wholesomeness: The provisions, (i.e., eatables) supplied must not only answer the description, but they must also be merchantable and wholesome or sound. 'F' bought milk from 'A' and the milk contained typhoid. germs. 'F's wife became infected and died. 'A' was liable for damages. Again, 'C' bought a bun at 'M's bakery, and broke one of his teeth by biting on a stone present in the bun. 'M' was held liable. (d) Condition as to fitness for a particular purpose: Ordinarily, in a

170 contract of sale, there is no implied warranty or condition as to the quality of fitness for any particular purpose of goods supplied. But there is an implied condition that the goods are reasonably fit for the purpose for which they are required if: (i) the buyer expressly or i,mpliedly makes known the intended purpose, so as to show that he relies on the seller's skill and judgement, and (ii) the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not). There is no such condition if the goods are bought under a patent or trade name. In Priest v. Last (1903) 2 K.B. 148, a hot water bottle was bought by the plaintiff, a draper, who could not be expected to have special skill knowledge with regard to hot water bottles, from a chemist, who sold such articles. While being used by the plaintiff's wife, the bottle bursted and injured her. Held, the seller was responsible for damages. In Grant v. Australian Knitting Mills (1936) 70 MLJ 513, 'G' purchased woollen underpants from 'M' a retailer whose business was to sell gCJods of that description. After wearing the underpants, G developed some skin diseases. Held, the goods were not fit for their only use and 'G' was entitled to avoid the contract and claim damages. Implied conditions under a sale by sample (Section 15) In a sale by sample:

171 (a) there is an implied condition that the bulk shall correspond with the sample in quality; (b) there is another implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample; (c) it is further an implied condition of merchantability, as regards latent or hidden defects in the goods which would not be apparent on reasonable examination of the sample. "Worsted coating" quality equal to sample was sold to tailors, the cloth was found to have a defect in the fixture rendering 'the same unfit for stitching into coats. The seller was held liable even though the same defect existed in the sample, which was examined. Implied conditions in sale by sample as well as by description In a sale by sample as well as by description, the goods supplied must correspond both with the samples as well as with the description. Thus, in Nichol v. Godis (1854) 158 E.R. 426, there was a sale of "foreign refined rape-oil having warranty only equal to sample". The oil tendered was the same as the sample, but it was not "foreign refined rape-oil" having a mixture.of it and other oil. It was held that the seller was liable, and the buyer could refuse to accept. Implied Warranties Implied warranties are those which the law presumes to have been incorporated in the contract of sale inspite of the fact that the parties have not expressly included them in a contract of sale. Subject to the

172 contract to the contrary, the following are the implied warranties in the contract of sale: (i) Warranty as to quite possession: Section 14(b) provides that there is an implied' warranty that the buyer shall have and enjoy quiet possession of goods'. If the buyer's possession is disturbed by anyone having superior title than that of the seller, the buyer is entitled to hold the seller liable for breach of warranty. (ii) Warranty as to freedom from encumbrances: Section 14(c) states that in a contract for sale, there is an implied warranty that the goods shall be so free from any charge or encumbrances in favor, or of any third party not declared or known to the buyer before or at the time when the contract is made'. But if the buyer is aware of any encumbrance on the goods at the time of entering into the contract, he will not be entitled to any compensation from the seller for discharging the encumbrance. (iii) Warranty to disclose dangerous nature of goods: If the goods are inherently dangerous or likely to be dangerous and the buyer is ignorant of the danger, the seller must warn the buyer of the probable danger: (iv) Warranties implied by the custom or usage of trade: Section 16(3) provides that an implied warranty or conditions as to quality or fitness for a particular purpose may be annexed by the usage of trade.

173 Doctrine of Caveat Emptor The term caveat emptor is a Latin word which means "let the buyer beware". This principle states that it is for the buyer to satisfy himself that the goods which he is purchasing are of the quality which he requires. If he buys goods for a particular purpose, he must satisfy himself that they are fit for that purpose. Section 6 provides that "subject to the provisions of this Act and of any other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale". In simple words, it is not the seller's duty to give to the buyer the goods which are fit for a suitable purposeof the buyer. If he makes a wrong selection, he cannot blame the seller if the goods turn out to be defective or do not serve his purpose. The principle was applied in the case of Ward v. Hobbs. (1878) 4 A.C. 13, where certain pigs were sold by auction and no warranty was given by seller in respect of any fault or error of description. The buyer paid the price for healthy pigs. But they were ill and all but one died of typhoid fever. They also infected some of the buyer's own pigs. It was held that there was no implied condition or warranty that the pigs were of good health. It was the buyer's duty to satisfy himself regarding the health of the pigs. Exceptions to the doctrine of Caveat Emptor: (1) Where the seller makes a false representation and the buyer relies on it. (2) When the seller actively conceals a defect in the goods which is not visible on a reasonable examination of the same.

174 (3) When the buyer, relying upon the skill and judgement of the seller, has expressly or impliedly communicated to him the purpose for which the goods are required. (4) Where goods are bought by description from a seller who deals in goods of that description. Passing of Property or Transfer of Ownership (Sections 18-20) The sole purpose of a sale is the transfer of ownership of goods from the seller to the buyer. It is important to know the precise moment of time at which the property in the goods passes from the seller to the buyer for the following reasons: (a) The general rule is that risk follows the ownership, whether the delivery has been made or not. If the goods are lost or damaged by accident or otherwise, then, subject to certain exceptions, the loss falls on the owner of the goods at the time they are lost or damaged. (b) When there is a danger of the goods being damaged by the action of third parties it is generally the owner who can take action. (c) The rights of third parties may depend upon the passing of the property if the buyer resells the goods to a third-party, the third-party will only obtain a good title if the property in the goods has passed to the buyer before or at the time of the resale. Similarly, if the seller, in breach of his contract with the buyer, attempts to sell the goods to a

175 third party in the goods, has not passed to the buyer, e.g., where there is only an agreement to sell. (d) In case of insolvency of either the seller or the buyer, it is necessary to know whether the goods can be taken over by the official assignee or the official receiver. It will depend upon whether the property in the goods was with the party adjudged insolvent. Thus in this context, ownership and possession are two distinct concepts and these two can at times remain separately with two different persons. Passing of property in specific goods In a sale of specific or ascertained goods, the property passes to the buyer as and when the parties intended to pass. The intention must be gathered from the terms of the contract, the conduct of the parties, and the circumstances of the case. Unless a contrary intention appears, the following rules are applicable for ascertaining the intention of the parties: (a) Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property passes to the buyer when the contract is made. Deliverable state means such a state that the buyer would be bound to take delivery of the goods. The fact that the time of delivery or the time of payment is postponed does not prevent the property from passing at once. (Section 20) (b) Where there is a contract for the sale of specific goods not in a

176 deliverable state, i.e., the seller has to do something to the goods to put them in a deliverable state, the property does not pass until tpat thing _ is done and the buyer has notice of it. (Section 21) A certain quantity of oil was brought. The oil was to be filled into casks by the seller and then taken away by the buyer. Some casks were filled in the presence of buyer but, before the remained could be filled, a fire broke out and the entire quantity of oil has destroyed, Held, the buyer must bear the loss of the oil which was put into the casks (i.e., put in deliverable state) and. the seller must bear the loss of the remainder (Rugg v. Minett (1809) 11 East 10). (c) Where there is a sale of specific goods. in a deliverable state, but the seller is bound to weigh, measure, test or do something with reference to the goods for the purpose of ascertaining the -price, the property to the goods for the purpose of ascertaining the price, does not pass until that thing is done and the buyer has notice of it. (Section 22) (d) When goods are delivered to the buyer on approval or "on sale return", the property therein passes to the buyer: (i) when he signified his approval or acceptance to the seller, or does any other act adopting the transaction; (ii) if he retains the goods, without giving notice of rejection, beyond the time fixed for the return of goods, or if no time is fixed, beyond a reasonable time. Ownership in unascertained goods

177 The property in unascertained or future goods does not pass until the goods are ascertained. Unascertained goods are goods defined by description only, for example, 100 quintals of wheat, and not goods identified and agreed upon when the contract is made. Unless a different intention 'appears, the following rulees are applicable for ascertaining the intention of the parties in regard to passing of property in' respect of such goods: (a) The property in unascertained or future goods sold by description passes to the buyer when goods of that description and in deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller. Such assent may be express~ or implied and may be given either before or after the appropriation is made. (Section 23) (b) If there is a sale of a quantity of goods out of a large quantity, for example, 50 quintals of rice out of a heap in B's godown, the property will pass on the appropriation of the specified quantity by one party with the assent of the other. (c) Delivery by the seller of the goods to a carrier or other buyer for the purpose of transmission to the buyer in pursuance of the contact is an appropriation sufficient to pass the property in the goods. (d) The property in goods, whether specific or unascertained, does not

178 pass if the seller reserves a right of disposal of the goods. Apart from an express reservation of the right of disposal, the seller is deemed to reserve the right of disposal in the following two cases: (i) where goods are shipped and by the bill of lading of the goods deliverable to the order or the seller or his agent. (ii) When the seller sends the bill of exchange for the price of the goods to the buyer for this acceptance, together with the bill of lading, the property in the goods does not pass to the buyer unless he accepts the bill qf exchange. Passing of Risk (Section 26) The general rule is that goods remain at the seller's risk until the ownership is transferred to the buyer. After the ownership has passed to the buyer, the goods are at the buyer's risk whether the delivery has been made or not. For example, 'A' buys goods of 'B' and property has passed from 'B' to 'A': but the goods remain in 'B's warehouse and the price is unpaid. Before delivery, 'B's warehouse is burnt down for no fault of 'B' and the goods are destroyed. 'A' must pay 'B' the price of the goods, as he was the owner. The rule is resperit demino- the loss falls on the owner. But the parties may agree that risk will pass at the time different from the time when ownership passed. For eg. the seller may agree to be responsible for the goods even after the ownership is passed to the buyer or vice versa. In Consolidated Coffee Ltd. v. Coffee Board, (19803 see 358), one of the

179 terms adopted by coffee board for auction of coffee was the property in the coffee, knocked down to a bidder would not pass until the payment of price and in the meantime the goods would remain with the seller but at the risk of the buyer, In such cases, risk and property passes on at different stages. In Multanmal Champalal v. Shah & Co., AIR (1970) Mysore 106, goods were dispatched by the seller from Bombay to Bellary through a public carrier. According to the terms of the contract, the goods were to remain the property of the seller till the price was paid though the risk was to pass to the buyer when they were delivered to public carrier for dispatch. When the goods were subsequently lost before the payment of the price (and the consequent to the passing of the property to the buyer), the Court held that the loss was to be borne by the buyer. It was further held in the same case that the buyer was at fault in delaying delivery unreasonably and therefore on that ground also he was liable for the loss, because such loss would not have arisen but for such delay. Thus, where delivery has been delayed through the fault of either the buyer or the seller, the goods are at the risk of the party at fault, as regards any loss which might not have occurred but for such fault. Transfer of Title by Person not the Owner (Section 27-30) The general rule is that only the owner of goods. can sell the goods. Conversely, the sale of an article by a person who is not or who has not the authority of the owner, gives no title to the buyer. The rule is

180 expressed by the maxim; "Nemo dot quod non habet" i.e., no one can pass a better title than what he himself has. As applied to the sale of goods, the rule means that a seller of goods cannot give a better title ~o the buyer than he himself possess. Thus, even bona fide buyer who buys stolen goods from a thief or from a transfree from such a thief can get no valid title to them, since the thief has no title, nor could he give one to any transferee. Example: 1. A, the hirer of goods under a hire purchase agreement, sells them to B, then B though, a bonafide purchaser, does not acquire the property in the goods. At most he can acquire such an interest as the hirer had. 2. A finds a ring of B and sells it to a third person who purchases it for value and in good faith. The true owner, Le. B can recover from that person, for A having no title to the ring could pass none the better. Exception to the General Rule The Act while recognizing the general rule that no one can give a better title than what he himself has, laid down important exceptions to it. Under the exceptions the. buyer gets a better title of the goods than the seller himself. These exceptions are given below: (a) Sale by a mercantile agent: A buyer will get a good title if he buys in good faith from a mercantile agent who is in posession either of the goods or' documents of title of goods with the consent of the owner, and who sells the goods in the ordinary course of his

181 business. (b) Sale by a co-owner: A buyer who buys in good faith from one of the several joint owners who is in sale possession of the goods with the permission of his co-owners will get good title to the goods. (c) Sale by a person in possession under a voidable contract: A buyer buys in good faith from a person in possession of goods under a contract which is voidable, but has not been. rescinded at the time of the sale. (d) Sale by seller in possession after sale: Where a seller, after having sold the goods, continues in possession of goods, or documents of title to the goods and again sells them by himself or through his mercantile agent to a person who buys in good faith and without notice of the previous sale, such a buyer gets a good title to the goods. (e) Sale by buyer in possession: If a person has brought or agreed to buy goods obtains, with the seller's consent, possession of the goods or of the documents of title to them, any sale by him or by his mercantile agent to a buyer who takes in good faith without notice of any lien or other claim of the original seller against the goods, will give a good title to the buyer. In any of the above cases, if the transfer is by way of pledge or pawn only, it will be valid as a pledge or pawn. (f) Estoppel: If the true owner stands by and allows an innocent buyer to pay over money to a third-party, who professes to have the

182 right to sell an article, the true owner will be estopped from denying the third-party's right to sell. (g) Sale by an unpaid seller: Where an unpaid seller has exercised his right of lien or stoppage in transit and is in possession of the goods, he may resell them and the second buyer will get absolute right to the goods. (h) Sale by person under other laws: A pawnee, on default of the pawnee to repay, has a right to sell the goods, pawned and the buyer gets a good title to the goods. The finder of lost goods can also sell under certain circumstances. The Official Assignee or Official Receiver, Liquidator, Officers of Court selling under a decree, Executors, and Administrators, all these persons are not owners, but they can convey better title than they have. 12. Performance of the Contract of Sale It is the duty of the seller and buyer that the contract is performed. The duty of the sellers is to deliver the goods and that of the buyer to accept the goods and pay for them in accordance with the contract of sale. Unless otherwise agreed, payment of the price and the delivery of the goods and concurrent conditions, i.e., they both take place at the same time as in a cash sale over a shop counter., Delivery (Sections 33-39) Delivery is the voluntary transfer of possession from one person to another. Delivery may be actual, constructive or symbolic. Actual or physical delivery takes place where the goods are handed over by the seller

183 to the buyer or his agent authorised to take possession of the goods. Constructive delivery takes place when the person in possession of the goods acknowledges that he holds the goods on behalf of and at the disposal of the buyer. For example, where the seller, after having sold the goods,may hold them as bailee for the buyer, there is constructive delivery. Symbolic delivery is made by indicating or giving a symbol. Here the goods themselves are not delivered. but the "means of obtaining possession" of goods is delivered, e.g, by delivering the key of the warehouse where the goods are stored, bill of lading which will entitle the holder to receive the goods on the arrival of the ship. Rules as to delivery The following rules apply regarding delivery of goods: (a) Delivery should have the effect of putting the buyer in possession. (b) The seller must deliver the goods according to the contract. (c) The seller is to deliver the goods when the buyer applies for delivery; it is theduty of the buyer to claim delivery. (d) Where the goods at the time of the sale are in the possession of a third person, there will be delivery only when that person acknowledges to the buyer that he holds the goods on his. behalf.. (e) The seller should tender delivery so that the buyer ca~ take the goods. It is no duty of the seller to send or carry the goods to the buyer unless the contract so provides. But the goods must be in a deliverable state at the time of delivery or tender of delivery. If by the contract the seller is bound to send the goods to the buyer, but no time is fixed, the seller is bound to send them within a reas9nable

184 time. (f) The place of delivery is usually stated in the contract. Where it is so stated, the goods must be delivered at the specified place during working hours on a working day. Where no place is mentioned, the goods are to be delivered at a place at which they happen to be at the time of the contract. of sale and if not then in existence they are to be delivered at the price they are produced. (g) The seller has to bear the cost of delivery unless the contract otherwise provides. While the cost of obtaining delivery is said to be of the buyer, the cost of the putting the goods into deliverable state must be borne by the seller. In other word, in the absence of an agreement to the contrary, the expenses of and incidental to making delivery of the goods must be borne by the seller, the expenses of and incidental to receiving delivery must be borne by the buyer. (h) If the goods are to be delivered at a place other than where they are, the risk of deterioration in transit will, unless otherwise agreed, be borne by the buyer. (i) Unless otherwise agreed, the buyer is not bound to accept delivery in instalments. Acceptance of Goods by the Buyer Acceptance of the goods by the buyer takes place when the buyer: (a) intimates to the seller that he has accepted the goods; or (b) retains the goods, after the lapse of a reasonable time without intimating to the seller that he has rejected them; or

185 (c) does any act on the goods which is inconsistent with the ownership of the seller, e.g., pledges or resells. If the seller sends the buyer a larger or smaller quantity of goods than ordered, the buyer may: (a) reject the whole; or (b) accept the whole; or (c) accept the quantity be ordered and reject the rest. If the seller delivers, with the goods ordered goods of a wrong description, the buyer may accept the goods ordered and reject the rest, or reject the whole. Where the buyer rightly rejects the goods, he is not bound to return the rejected goods to the seller. It is sufficient if he intimates to seller that he refuses to accept them. In that case, the seller has to remove them. Instalment Deliveries When there is a contract for the sale of goods to be delivered in stated instalments which are to be separately paid for, and either the buyer or the seller commits a breach of contract, it depends on the terms of the contract whether the breach is a repudiation of the whole contract or a severable breach merely giving right to claim for damages. Suits for Breach of Contract Were the property in the goods has passed to the buyer, the seller may sue himfor the price.Where the price is payable on a certain day regardless of delivery, the seller may sue for the price, if it is not paid on

186 that day, although the property in the goods has not passed. Where the buyer wrongfully neglects or refuses to accept the goods and pay for them, the seller may sue the buyer for damages for non- acceptance.Where the seller wrongfully neglects or refuses to deliver the goods to the buyer,the buyer may sue him for damages for non-delivery. Where there is a breach of warranty or where the buyer elects or is compelled to treat the breach of condition as a breach of warranty, the buyer cannot reject the goods. He can set breach of warranty in extinction or dimunition of the price payable by him and if loss suffered by him is more than the price he may sue for the damages. If the buyer has paid the price and the goods are not delivered, the buyer can sue the seller for the recovery of the amount paid. In appropriate cases the buyer can also get an order from the Court that the specific goods ought to be delivered. Anticipatory Breach Where either party to a contract of sale repudiates the contract before the date of delivery, the other party may, either treat the contract as still subsisting or wait till the date of delivery, or he may treat the contract as rescinded and sue for damages for the breach. In case the contract is treated as still subsisting it would be for the benefit of both the parties and the party who had originally repudiated will not be deprived of: (a) his right of performance on the due date in spite of his prior repudiation or

187 (b) his rights to set up any defence for non-performance which might have actually arisen after the date of the prior repudiation. Measure of Damages The Act does not specifically provide for rules as regards the measure of damages except stating that nothing in the Act shall affect the right of the seller or the buyer to recover interest or special damages in any case were by law they are entitled to the same. The inference is that the rules laid down in Section 73 of the Indian Contract Act will apply. Unpaid Seller (Sections 45-54) Who is an unpaid seller? (Section 45) The seller of goods is deemed to be unpaid seller: (a) When the whole of the price has not bee~ paid or tendered; or (b) When a conditional payment was made by a bill of exchange or other negotiable instrument, and the instrument has been dishonoured. Rights of an Unpaid Seller against the Goods An unpaid seller's right against the goods are: (a) A lien or right of retention (b) The right of stoppage in transit. (c) The right of resale. (d) The right to withhold delivery. (a) Lien (Sections 47-49 and 54) An unpaid seller in possession of goods sold, may exercise his lien on the goods, i.e., keep the goods in

188 his possession and refuse to deliver them to the buyer until the fulfilment or tender of the price in cases where: (i) the goods have been sold without stipulation as to credit; or (ii) the goods have been sold on credit, but the term of credit has expired; or (iii) the buyer becomes insolvent. The lien depends on physical possession. The seller's lien is possessory lien, so that it can be exercised only so long as the seller is in possession of the goods. It can only be exercised for the non-payment of the price and not for any other charges. . A lien is lost (i) When the seller delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer, without reserving the right of disposal of the goods; (ii) When the buyer or his agent lawfully obtains possession of the goods; (iii) By waiver of his lien by the unpaid seller. (b) Stoppage in transit (Sections 50-52) The right of stoppage in transit is a right of stopping the goods while they are in transit, resuming possession of them and retaining possession until payment of the price. The right to stop goods is available to an unpaid seller (i) when the buyer becomes insolvent; and

189 (ii) the goods are in transit. The buyer is insolvent if he has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due. It is not necessary that he has actually been declared insolvent by the Court. The goods are in transit from the time they are delivered to a carrier or other bailee like a wharfinger or warehousekeeper for the purpose of transmission to the buyer and until the buyer takes delivery of them. The transit comes to an end in the following cases: (i) If the buyer obtains delivery before the arrival of the goods at their destination; (ii) If, after the arrival of the goods at their destination, the carrier acknowledges to the buyer that he holds the goods on his behalf, even if further destination of the goods is indicated by the buyer. (iii) If the carrier wrongfully refuses to deliver the goods to the buyer. If the goods are rejected by the buyer and the carrier or other bailee holds them, the transit will be deemed to continue even if the seller has refused to receive them back. The right to stop in transit may be exercised by the unpaid seller either by taking actual possession of the goods or by giving notice of the seller's claim to the carrier or other person having control of the goods. On notice being given to the carrier he must redeliver the goods to the seller, who must pay the expenses of the redelivery.

190 The seller's right of lien or stoppage ,in transit is not affected by any sale on the part of the buyer unless the seller has assented to it. A transfer, however, of the bill of lading or other document of seller to a bona fide purchaser for value is valid against the seller's right. (c) Right of re-sale (Section 54): The unpaid seller may re-sell: (i) where the goods are perishable; (ii) where the right is expressly reserved in the contract; (iii) where in exercise of right of lien or stoppage in transit, the seller gives notice to the buyer of his intention to re-sell, and the buyer, does not payor tender the price within a reasonable time. ' If on a re-sale, there is a deficiency between the price due and amount realized, the re-seller is entitled to recover it from the buyer. If there is a surplus, he can keep it. He will not have these rights if he has not given any notice and he will have to pay the buyer any profits. (d) Rights to withhold delivery: If the property in the goods has passed, the unpaid seller has right as described above. If, however, the property has not passed, the unpaid seller has a right of withholding delivery similar to and coextensive with his rights of lien and stoppage in transit. Rights of an unpaid seller against the buyer (Sections 55 and 56) An unpaid seller may sue the buyer for the price of the goods in case of breach of contract where the property in the goods has passed to the buyer or he has wrongfully refused to pay the price according to the terms of the contract. The seller may sue the buyer even if the property in

191 the goods has not passed where the price is payable on a certain day. Under Section 56, the seller may sue the buyer for damages or breach of contract where the buyer wrongfully neglects or refuses to accept and pay for the goods. Thus an unpaid sellers rights against the buyer personally are: (a) a suit for the price. (b) a suit for damages. Auction Sales (Section 64) A sale by auction is a public sale where goods are offered to be taken by bidders. It is a proceeding at which people are invited to complete for the purchase of property by successive offer of advancing sums. Section 64 lays down the rules regulating auction sales. Where goods are put up for sale in lots, each, lot is prima facie deemed to be the subject of a separate contract of sale. The sale is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner. Until such announcement is made, any bidder may retract his bid. A right to bid may be reserved expressly by or on behalf of the seller. Where such right is expressly so reserved, the seller or any other person on his behalf may bid at the auction. Where the sale is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person. Any sale in contravention of this rule may be treated as

192 fraudulent by the buyer. The sale may be notified to be subject to a reserved price. Where there is such notification, every bid is a conditional offer subject to its being up to the reserve price. Where an auctioneer inadvertently knocks down to a bidder who has bid less than the reserved price, there is no contract of sale. If the seller makes use of pretended bidding to raise the price, the sale is voidable at the option of the buyer. Trading Contracts involving rail or Sea Transit In the case of a contract for the sale of goods which are to be shipped by sea a number of conditions are attached by the parties or by custom and practice of merchants. Some of the important types of such contracts are given below: (a) F.O.B(Free on Board): Under an F.O.B. contract, it is the duty of the seller to put the goods on board a ship at his own expenses. The property in goods passes to the buyer only after the goods have been put on board the ship, usually named by the buyer. The seller must notify the buyer immediately that the goods have been delivered on board, so that the buyer may insure them. If he fails to do so the goods shall be deemed to be at seller's risk during such sea transit. (b) F.O.R.(Free on Rail): Similar position prevails in these contracts as in the case of F.O.B contracts. (c) C .I.F. or C.F.I. (Cost insurance and freight): A CIF contract is a contract for the sale of insured goods lost or not lost to be implemented by transfer of proper documents.

193 In such types of contracts, the seller not only bears all the expenses of puting the goods on board the ship as in an F.O.B. contract but also to bear the freight and insurance charges. He will arrange for an insurance of the goods for the benefit of the buyer. On the tender of documents, the buyer is required to pay and then take delivery. He has a right to reject the goods if they are not according to the contract. (d) Ex-Ship: Here the seller is bound to arrange the shipment of the goods to the port of destination, and to such further inland destination as the buyer may stipulate. The buyer is not bound to pay until the goods are ready for unloading from the ship and all freight charges paid. The goods travel at the seller's risk but he is not bound to insure them.

194 VII. The General Clauses Act, 1897 10. Computation of time – (1) Where, by any (Central Act) or regulation made after the commencement of this Act, any act or proceeding is directed to allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open. Provided that nothing is this section shall apply to any act or proceeding to which the (Indian Limitation Act, 1877 (15 of 1877), applies. This section applies also to all (Central Acts) and Regulations made on or after the fourteenth day of January 1887. 11. Measurement of distance – In the measurement of any distance, for the purpose of any (Central Act) or Regulation made after the commencement of this Act, that distance shall, unless a different intention appears, be measured in a straight line on a horizontal plane.

195 VIII. CUSTOMS ACT 1962 46. Entry of goods on importation. - (1) The importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form : Provided that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same. (2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor.

196 (3) A bill of entry under sub-section (1) may be presented at any time after the delivery of the import manifest or import report as the case may be : Provided that the #[Commissioner of Customs] may in any special circumstances permit a bill of entry to be presented ## [before the delivery of such report]: ###[Provided further that a bill of entry may be presented even before the delivery of such manifest if the vessel or the aircraft by which the goods have been shipped for importation into India is expected to arrive within thirty days from the date of such presentation.] (4) The importer while presenting a bill of entry shall at the foot thereof make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, relating to the imported goods. (5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa.

197 # Substituted by Finance Act, 1995 ## Substituted w.e.f. 11.7.1978 by Customs, Central Excise and Salt and Central Board of Revenue (Amendment ) Act, 1978 (25 of 1978) ### Substituted by s. 63 of Finance Act, 1996 47. Clearance of goods for home consumption. - #[(1)] Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption. *[(2) Where the importer fails to pay the import duty under sub-section (1) ##[within ### [five days] excluding holidays] from the date on which the bill of entry is returned to him for payment of duty, he shall pay interest at #### [such rate, not below ###[ten per cent]. and not exceeding thirty-six per cent. per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette], on such duty till the date of payment

198 of the said duty: Provided that where the bill of entry is returned for payment of duty before the commencement of the Customs (Amendment) Act, 1991 and the importer has not paid such duty before such commencement, the date of return of such bill of entry to him shall be deemed to be the date of such commencement for the purpose of this section.] **[Provided further that if the Board is satisfied that it is necessary in the public interest so to do, it may, by order for reasons to be recorded, waive the whole or part of any interest payable under this section.] # Renumbered w.e.f. 23.12.1991 by Customs (Amendment) Act, 1991 * Inserted w.e.f. 23.12.1991 by Customs (Amendment) Act, 1991 ** Inserted by Finance Act, 1995 ## Substituted by Finance Act, 1999. Earlier it was " within seven days" ### Substituted w.e.f. 11.5.2002 by Finance Act, 2002. Earlier it was " two days" #### Substituted by Finance Act, 2000

199 48. Procedure in case of goods not cleared, warehoused, or transhipped within # [thirty days] after unloading. - If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped within ## [thirty days] from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof: Provided that - (a) animals, perishable goods and hazardous goods, may, with the permission of the proper officer, be sold at any time; (b) arms and ammunition may be sold at such time and place and in such manner as the Central Government may direct. Explanation. - In this section, "arms" and "ammunition" have the meanings respectively assigned to them in the Arms Act, 1959 (54 of 1959).

200 # Substituted by Customs (Amendment) Act, 1991. Earlier it was " two months" ## Substituted by Customs (Amendment) Act, 1991. Earlier it was " forty five days" 49. Storage of imported goods in warehouse pending clearance. - Where in the case of any imported goods, whether dutiable or not, entered for home consumption, the # [Assistant Commissioner of Customs or Deputy Commissioner of Customs] is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time, the goods may, pending clearance, be permitted to be stored in a public warehouse, or in a private warehouse if facilities for deposit in a public warehouse are not available; but such goods shall not be deemed to be warehoused goods for the purposes of this Act, and accordingly the provisions of Chapter IX shall not apply to such goods. # Substituted by Finance Act, 1999 50. Entry of goods for exportation. - (1) The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of

201 goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form. (2) The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its contents. 51. Clearance of goods for exportation. - Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation. WAREHOUSING 57. Appointing of public warehouses. - At any warehousing station, the #[Assistant Commissioner of Customs or Deputy Commissioner of Customs], may

202 appoint public warehouses wherein dutiable goods may be deposited. $[Omitted] # Substituted by Finance Act, 1999 $ w.e.f. 23.12.1991 "without payment of duty" omitted by Customs (Amendment) Act, 1991 58. Licensing of private warehouses. - (1) At any warehousing station, the #[Assistant Commissioner of Customs or Deputy Commissioner of Customs] may license private warehouses wherein dutiable goods imported by or on behalf of the licensee, or any other imported goods in respect of which facilities for deposit in a public warehouse are not available, may be deposited.$ [Omitted] (2) The #[Assistant Commissioner of Customs or Deputy Commissioner of Customs] may cancel a licence granted under sub-section (1) - (a) by giving one month's notice in writing to the licensee; or (b) if the licensee has contravened any provision of this Act or the rules or regulations or committed breach of any of the conditions of the licence :

203 Provided that before any licence is cancelled under clause (b), the licensee shall be given a reasonable opportunity of being heard. (3) Pending an enquiry whether a licence granted under sub-section (1) should be cancelled under clause (b) of sub-section (2), the # [Assistant Commissioner of Customs or Deputy Commissioner of Customs] may suspend the licence. # Substituted by Finance Act, 1999 $ w.e.f. 23.12.1991 "without payment of duty" omitted by Customs (Amendment) Act, 1991 59. Warehousing bond. - #[(1) The importer of any goods specified in $[omitted] sub-section (1) of section 61, which have been entered for warehousing and assessed to duty under section 17 or section 18 shall execute a bond binding himself in a sum equal to twice the amount of the duty assessed on such goods— (a) to observe all the provisions of this Act and the rules and regulations in respect of such goods; (b) to pay on or before a date specified in a notice of demand,—

204 (i) all duties, and interest, if any, payable under sub-section (2) of section 61; (ii) rent and charges claimable on account of such goods under this Act, together with interest on the same from the date so specified ## [at such rate, not below eighteen per cent. and not exceeding thirty-six per cent. per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette]; and (c) to discharge all penalties incurred for violation of the provisions of this Act and the rules and regulations in respect of such goods.] (2) For the purposes of sub-section (1), the ### [Assistant Commissioner of Customs or Deputy Commissioner of Customs] may permit an importer to enter into a general bond in such amount as the ### [Assistant Commissioner of Customs or Deputy Commissioner of Customs] may approve in respect of the warehousing of goods to be imported by him within a specified period. (3) A bond executed under this section by an importer in respect of any goods shall continue in force notwithstanding the transfer of the goods to any other person or the removal of the goods to another warehouse :

205 Provided that where the whole of the goods or any part thereof are transferred to another person, the proper officer may accept a fresh bond from the transferee in a sum equal to twice the amount of duty assessed on the goods transferred and thereupon the bond executed by the transferor shall be enforceable only for a sum mentioned therein less the amount for which a fresh bond is accepted from the transferee. # substituted w.e.f. 23.12.1991 by Customs (Amendment) Act, 1991 $ w.e.f. 13.5.1994 "clause (a) of " Omitted by Finance Act, 1994 ## Substituted by finance Act, 2000 ### Substituted by finance Act, 1999 60. Permission for deposit of goods in a warehouse. - When the provisions of # [section 59 $[Omitted]] have been complied with in respect of any goods, the proper officer may make an order permitting the deposit of the goods in a warehouse.$$ [Omitted] # Substituted w.e.f. 23.12.1991 by by Customs (Amendment) Act, 1991

206 $ w.e.f. 13.5.1994 "or Section 59A" omitted by Finance Act, 1994 $$ w.e.f. 23.12.1991 "without payment of duty" omitted by Customs (Amendment) Act, 1991 #[61. Period for which goods may remain warehoused. — (1) Any warehoused goods may be left in the warehouse in which they are deposited or in any warehouse to which they may be removed, - (a) in the case of capital goods intended for use in any hundred per cent export oriented undertaking, till the expiry of five years;* *(aa) in the case of goods other than capital goods intended for use in any hundred percent export -oriented undertaking, till the expiry of three years; and; (b) in the case of any other goods, till the expiry of one year, after the date on which the proper officer has made an order under section 60 permitting the deposit of the goods in a warehouse : Provided that - ## [(i) in the case of any goods which are not likely to deteriorate, the period specified in *[ clause (a) or or clause (aa) or clause (b)] may, on sufficient cause being shown, be extended-

207 (A) in the case of such goods intended for use in any hundred per cent export oriented undertaking, by the Commissioner of Customs for such period period as he may deem fit; and (B) in any other case, by the Commissioner of Customs, for a period not exceeding six months and by the Chief Commissioner of Customs for such further period as he may deem fit;] (ii) in the case of any goods referred to in clause (b), if they are likely to deteriorate, the aforesaid period of one year may be reduced by the ### [Commissioner of Customs] to such shorter period as he may deem fit: Provided further that when the licence for any private warehouse is cancelled, the owner of any goods warehoused therein shall, within seven days from the date on which notice of such cancellation is given or within such extended period as the proper officer may allow, remove the goods from such warehouse to another warehouse or clear them for home consumption or exportation. #### [(2) Where any warehoused goods - (i) specified in *[sub-clause (a) or sub-clause (aa)] of sub-section (1), remain in a warehouse beyond the period specified in that sub-section by reason of extension of the aforesaid period or otherwise, interest at such rate as is specified in section 47 shall be payable, on the amount of duty

208 payable at the time of clearance of the goods in accordance with the provisions of section 15 on the warehoused goods, for the period from the expiry of the said warehousing period till the date of payment of duty on the warehoused goods; (ii) specified in sub-clause (b) of sub-section (1), remain in a warehouse beyond a period of *[Ninety Days], interest shall be payable at such rate or rates not exceeding the rate specified in section 47, as may be fixed by the Board, on the amount of duty payable at the time of clearance of the goods in accordance with the provisions of section 15 on the warehoused goods, for the period from the expiry of the said *[ninety days] till the date of payment of duty on the warehoused goods:] Provided that the Board may, if it considers it necessary so to do in the public interest, by order and under circumstances of an exceptional nature, to be specified in such order, waive the whole or part of any interest payable under this section in respect of any warehoused goods : Provided further that the Board may, if it is satisfied that it is necessary so to do in the public interest, by notification in the Official Gazette, specify the class of goods in respect of which no interest shall be charged under this section. Explanation. — For the purposes of this section, "hundred per cent export

209 oriented undertaking"has the same meaning as in Explanation 2 to sub- section (1)of section 3 of the Central Excises and Salt Act, 1944 (1 of 1944). # w.e.f. 13.5.1994, substituted by Finance Act, 1994. ## w.e.f. 11.5.2002, substituted by Finance Act, 2002 ### substituted by Finance Act, 1995 #### substituted by Finance Act, 1999 *w.e.f. 14.5.2003 Prior to 14.5.2003 62. Control over warehoused goods. - (1) All warehoused goods shall be subject to the control of the proper officer. (2) No person shall enter a warehouse or remove any goods there from without the permission of the proper officer. (3) The proper officer may cause any warehouse to be locked with the lock of the Customs Department and no person shall remove or break such lock.

210 (4) The proper officer shall have access to every part of a warehouse and power to examine the goods therein. 63. Payment of rent and warehouse charges. - (1) The owner of any warehoused goods shall pay to the warehouse-keeper rent and warehouse charges at the rates fixed under any law for the time being in force or where no rates are so fixed, at such rates as may be fixed by the # [Commissioner of Customs]. (2) If any rent or warehouse charges are not paid within ten days from the date when they became due, the warehouse-keeper may, after notice to the owner of the warehoused goods and with the permission of the proper officer cause to be sold (any transfer of the warehoused goods notwithstanding) such sufficient portion of the goods as the warehouse-keeper may select. # Substituted by Finance Act, 1995 64. Owner's right to deal with warehoused goods. - With the sanction of the proper officer and on payment of the prescribed fees, the owner of any goods may either

211 before or after warehousing the same -inspect the goods; (a) separate damaged or deteriorated goods from the rest; (b) sort the goods or change their containers for the urpose of preservation, sale, export or disposal of the goods; (c) deal with the goods and their containers in such manner as may be necessary to prevent loss or deterioration or damage to the goods; (d) show the goods for sale; or (e) take samples of goods without entry for home consumption, and if the proper officer so permits, without payment of duty on such samples. 65. Manufacture and other operations in relation to goods in a warehouse. - (1) With the sanction of the # [Assistant Commissioner of Customs or Deputy Commissioner of Customs] and subject to such conditions and on payment of such fees as may be prescribed, the owner of any warehoused goods may carry on any manufacturing process or other operations in the warehouse in relation to such goods. (2) Where in the course of any operations permissible in relation to any warehoused goods under sub-section (1), there is any waste or refuse, the following provisions shall apply : - (a) if the whole or any part of the goods resulting from such operations

212 are exported, import duty shall be remitted on the quantity of the warehoused goods contained in so much of the waste or refuse as has arisen from the operations carried on in relation to the goods exported : Provided that such waste or refuse is either destroyed or duty is paid on such waste or refuse as if it had been imported into India in that form; (b) if the whole or any part of the goods resulting from such operations are cleared from the warehouse for home consumption, import duty shall be charged on the quantity of the warehoused goods contained in so much of the waste or refuse as has arisen from the operations carried on in relation to the goods cleared for home consumption. # Substituted by Finance Act, 1999 66. Power to exempt imported materials used in the manufacture of goods in warehouse. - If any imported materials are used in accordance with the provisions of section 65 for the manufacture of any goods and the rate of duty leviable on the imported materials exceeds the rate of duty leviable on such goods, the Central Government, if satisfied that in the interests of the establishment or development of any domestic industry it is necessary so to do, may, by notification in the Official Gazette, exempt the imported

213 materials from the whole or part of the excess rate of duty. 67. Removal of goods from one warehouse to another. - The owner of any warehoused goods may, with the permission of the proper officer, remove them from one warehouse to another $[Omitted] , subject to such conditions as may be prescribed for the due arrival of the warehoused goods at the warehouse to which removal is permitted. $ w.e.f. 23.12.1991 "without payment of duty" omitted by Customs (Amendment) Act, 1991 68. Clearance of warehoused goods for home consumption. - The importer of any warehoused goods may clear them for home consumption, if - (a) a bill of entry for home consumption in respect of such goods has been presented in the prescribed form; (b) the import duty leviable on such goods and all penalties, rent, interest and other charges payable in respect of such goods have been paid; and

214 (c) an order for clearance of such goods for home consumption has been made by the proper officer. *Provided that the owner of any warehoused goods may, at any time before an order for clearance of goods for home consumption has been made in respect of such goods, relinquish his title to the goods upon payment of rent, interest, other charges and penalties that may be payable in respect of the goods and upon such relinquishment, he shall not be liable to pay duty thereon. ** Provided further that the owner of any such warehoused goods shall not be allowed to relinquish his title to such goods regarding which an offence appears to have been committed under this Act or any other law for the time being in force. 69. Clearance of warehoused goods for exportation. - (1) Any warehoused goods may be exported to a place outside India without payment of import duty if - (a) a shipping bill or a bill of export has been presented in respect of such goods in the prescribed form;

215 (b) the export duty, penalties, rent, interest and other charges payable in respect of such goods have been paid; and (c) an order for clearance of such goods for exportation has been made by the proper officer. (2)Notwithstanding anything contained in sub-section (1), if the Central Government is of the opinion that warehoused goods of any specified description are likely to be smuggled back into India, it may, by notification in the Official Gazette, direct that such goods shall not be exported to any place outside India without payment of duty or may be allowed to be so exported subject to such restrictions and conditions as may be specified in the notification. 70. Allowance in case of volatile goods. - (1) When any warehoused goods to which this section applies are at the time of delivery from a warehouse found to be deficient in quantity on account of natural loss, the #[Assistant Commissioner of Customs or Deputy Commissioner of Customs] may remit the duty on such deficiency. (2) This section applies to such warehoused goods as the Central

216 Government, having regard to the volatility of the goods and the manner of their storage, may, by notification in the Official Gazette, specify. # Substituted by the Finance Act, 1999 71. Goods not to be taken out of warehouse except as provided by this Act. - No warehoused goods shall be taken out of a warehouse except on clearance for home consumption or re-exportation, or for removal to another warehouse, or as otherwise provided by this Act. 72. Goods improperly removed from warehouse, etc. - (1 ) In any of the following cases, that is to say, - (a) where any warehoused goods are removed from a warehouse in contravention of section 71; (b) where any warehoused goods have not been removed from a warehouse at the expiration of the period during which such goods are permitted under section 61 to remain in a warehouse; (c) where any warehoused goods have been taken under section 64 as samples without payment of duty;

217 (d) where any goods in respect of which a bond has been executed under #[section 59 $[ Omitted]] and which have not been cleared for home consumption or exportation are not duly accounted for to the satisfaction of the proper officer, the proper officer may demand, and the owner of such goods shall forthwith pay, the full amount of duty chargeable on account of such goods together with all penalties, rent, interest and other charges payable in respect of such goods. (2) If any owner fails to pay any amount demanded under sub-section (1), the proper officer may, without prejudice to any other remedy, cause to be detained and sold, after notice to the owner (any transfer of the goods notwithstanding) such sufficient portion of his goods, if any, in the warehouse, as the said officer may select. # Substituted w.e.f. 23.12.1991 by by Customs (Amendment) Act, 1991 $ w.e.f. 13.5.1994 " or Sec 59A" omitted by Finance Act, 1994 73. Cancellation and return of warehousing bond. - When the whole of the goods covered by any bond executed under # [section 59 $[Omitted]] have been cleared for home consumption or exported or are otherwise duly accounted for, and when all amounts due on account of such

218 goods have been paid, the proper officer shall cancel the bond as discharged in full, and shall on demand deliver it, so cancelled, to the person who has executed or is entitled to receive it. # Substituted w.e.f. 23.12.1991 by by Customs (Amendment) Act, 1991 $ w.e.f. 13.5.1994 " or Sec 59A" omitted by Finance Act, 1994 VIIIA. Procedure for Clearance of Imported and Export Goods I. Import: Bill of Entry – Cargo Declaration: Goods imported in a vessel/aircraft attract customs duty and unless these are not meant for customs port/airport of arrival by particular vessel/aircraft and are intended for transit by the same vessel/aircraft or t another customs station or to any place outside India, detailed customs clearance formalities of the landed g followed by the importers. In regard to the transit goods, so long as these are mentioned in import report/IGM f place outside India, Customs allows transit without payment of duty. Similarly for goods brought in by particular v transshipment to another customs station detailed customs clearance formalities at the port/airport of landing ar and simple transshipment procedure has to be followed by the carrier and the concerned agencies. The cu formalities have to be complied with by the importer after arrival of the goods at the other customs station. The cases of transshipment of the goods after

219 unloading to a port outside India. Here also simpler procedure for tra been prescribed by regulations, and no duty is required to be paid. (Sections 52 to 56 of the Customs are relevant 2. For other goods, which are offloaded importers, have the option to clear the goods for home consumption the duties leviable or to clear them for warehousing without immediate discharge of the duties leviable in terms of provisions built in the Customs Act. Every importer is required to file in terms of the Section 46 an entry (which entry) for home consumption or warehousing in the form, as prescribed by regulations. 3. If the goods are cleared through the EDI system no formal Bill of Entry is filed as it is generated in the c but the importer is required to file a cargo declaration having prescribed particulars required for processing of the e clearance. 4. The Bill of entry, where filed, is to be submitted in a set, different copies meant for different purposes different colour scheme, and on the body of the bill of entry the purpose for which it will be used is generally ment EDI declaration. 5. The importer clearing the goods for domestic consumption has to file bill of entry in four copies; original a meant for customs, third copy for the importer and the fourth copy is meant for the bank for making remittances. 6. In the nonEDI system alongwith the bill of entry filed by the importer or his representative the following doc generally required: Signed invoice

220 Packing list Bill of Lading or Delivery Order/Airway Bill GATT declaration form duly filled in Importers/CHA’s declaration License wherever necessary Letter of Credit/Bank Draft/wherever necessary Insurance document Import license Industrial License, if required Test report in case of chemicals Adhoc exemption order DEEC Book/DEPB in original Catalogue, Technical write up, Literature in case of machineries, spares or chemicals as may be applicable Separately split up value of spares, components machineries Certificate of Origin, if preferential rate of duty is claimed No Commission declaration 7. While filing the bill of entry and giving various particulars as prescribed therein the correctness of the infor also to be certified by the importer in the form a declaration at the foot of the bill of entry and any misdec declaration has legal consequences, and due precautions should be taken by importer while signing these declarat 8. Under the EDI system, the importer does not submit documents as such for assessment but submit electronic format containing all the relevant information to the Service Centre. A signed paper copy of the declar the

221 service centre operator for nonrepudiability of the declaration. A checklist is generated for verification importer/CHA. After verification, the data is submitted to the system by the Service Centre Operator and system B/E Number, which is endorsed on the printed checklist and returned to the importer/CHA. No original documents stage. Original documents are taken at the time of examination. The importer/CHA also need to sign on the fina Customs clearance. 9. The first stage for processing a bill of entry is what is termed the noting of the bill of entry, visàvis, the carrier. In the nonEDI system the importer has to get the bill of entry noted in the concerned unit which checks sought to be cleared having been manifested in the particular vessel and a bill of entry number is generated and copies. After noting the bill of entry gets sent to the appraising section of the Custom House for assessment fun of duty etc. In the EDI system, the Steamer Agents get the manifest filed through EDI or by using the servi Custom House and the noting aspect is checked by the system itself – which also generates bill of entry number. 10. After noting/registration of the Bill of entry, it is forwarded manually or electronically to the concerned App the Custom House dealing with the commodity sought to be cleared. Appraising Wing of the Custom House h Groups dealing with earmarked commodities falling under different Chapter Headings of the Customs Tariff a further scrutiny for assessment, import permissibility etc. angle. Assessment:

222 11. The basic function of the assessing officer in the appraising groups is to determine the duty liability taking exemptions or benefits claimed under different export promotion schemes. They have also to check whethe restrictions or prohibitions on the goods imported and if they require any permission/license/permit etc., and if s are forthcoming. Assessment of duty essentially involves proper classification of the goods imported in the cust due regard to the rules of interpretations, chapter and sections notes etc., and determining the duty liability. correct determination of value where the goods are assessable on ad valorem basis. The assessing officer has to invoice and other declarations submitted alongwith the bill of entry to support the valuation claim, and adju transaction value method and the invoice value claimed for the basis of assessment is acceptable, or val redetermined having due regard to the provisions of Section 14 and the valuation rules issued thereunder, th various instructions on the subject. He also takes note of the contemporaneous values and other informati available with the Custom House. 12. Where the appraising officer is not very clear about the description of the goods from the document or as so the proper classification, which may be possible only to determine after detailed examination of the nature of the of its samples, he may give an examination order in advance of finalisation of assessment including orde representative sample. This is done generally on the reverse of the original copy of the bill of entry which is p authorized agent of the importer to the appraising staff posted

223 in the Docks/Air Cargo Complexes where th examined in the presence of the importer’s representative. 13. On receipt of the examination report the appraising officers in the group assesses the bill of entry. He in classification and valuation in the bill of entry indicating separately the various duties such as basic, countervailin safeguard duties etc., that may be leviable. Thereafter the bill of entry goes to Assistant Commissioner/Deputy C confirmation depending upon certain value limits and sent to comptist who calculates the duty amount taking into of exchange at the relevant date as provided under Section 14 of the Customs Act. 14. After the assessment and calculation of the duty liability the importer’s representative has to deposit the dut the treasury or the nominated banks, whereafter he can go and seek delivery of the goods from the custodians. 15. Where the goods have already been examined for finalization of classification or valuation no further exam by the dock appraising staff is required at the time of giving delivery and the goods can be taken delivery after ta orders and payment of dues to the custodians, if any. 16. In most cases, the appraising officer assessees the goods on the basis of information and details furnishe in the bill of entry, invoice and other related documents including catalogue, writeup etc. He also determines w are permissible for import or there are any restriction/prohibition. He may allow payment of duty and delivery of th is called second check/appraising basis in case there are no restriction/prohibition. In this method, the duties as calculated are paid in the Custom House and

224 appropriate order is given on the reverse of the duplicate copy of the the importer or his agent after paying the duty submits the goods for examination in the import sheds in the d examining staff. If the goods are found to be as declared andno other discrepancies/misdeclarations etc., a importer or his agent can clear the goods after the shed appraiser gives out of charge order. 17. Wherever the importer is not satisfied with the classification, rate of duty or valuation as may be de appraising officer, he can seek an assessment order. An appeal against the assessment order can be mad appellate authority within the time limits and in the manner prescribed. EDI Assessment: http://www.dov.gov.in/newsite3/clearance_procedure.asp 1/4 2/25/2016 Clearance Procedure 18. In the EDI system of handling of the documents/declarations for taking import clearances as mentioned declaration is transferred to the assessing officer in the groups electronically. 19. The assessing officer processes the cargo declaration on screen with regard to all the parameters as given a process. However in EDI system, all the calculations are done by the system itself. In addition, the system also information for calculation of duty, for example, when a particular exemption notification is accepted, the system extent of exemption under that notification and calculates the duty accordingly. Similarly, it automatically applies exchange in force while calculating. Thus no comptist is required in EDI system. If assessing officer needs any the

225 importer, he may raise a query. The query is printed at the service centre and the party replies to the query thr centre. 20. After assessment, a copy of the assessed bill of entry is printed in the service centre. Under EDI, docume examined at the time of examination of the goods. Final bill of entry is printed after ‘out of charge’ is given by the 21. In EDI system, in certain cases, the facility of system appraisal is available. Under this process, the declar is taken as correct and the system itself calculates duty which is paid by the importer. In such case, no ass involved. 22. Also, a facility of teleenquiry is provided in certain major Customs stations through which the status of through EDI systems could be ascertained through the telephone. If nay query is raised, the same may be got pri in the office of importer/exporter/CHA. Examination of Goods: 23. All imported goods are required to be examined for verification of correctness of description given in However, a part of the consignment is selected on random selection basis and is examined. In case the importe complete information with him at the time of import, he may request for examination of the goods before ass liability or, if the Customs Appraiser/Assistant Commissioner feels the goods are required to be examined before goods are examined prior to assessment. This is called First Appraisement. The importer has to request examination at the time of filing the bill of entry or at data entry stage. The reason for seeking First Appraisement to be given. On original copy of the bill of entry, the Customs Appraiser records the examination order and returns to the importer/CHA with the direction for examination, who is to take it to the

226 import shed for examination of shed. Shed Appraiser/Dock examiner examines the goods as per examination order and records his findings. In called for samples, he forwards sealed samples to the group. The importer is to bring back the said bill of entry officer for assessing the duty. Appraiser assesses the bill of entry. It is countersigned by Assistant/Deputy Com value is more than Rs. 1 lakh. 24. The goods can also be examined subsequent to assessment and payment of duty. This is called Secon Most of the consignments are cleared on second appraisement basis. It is to be noted that whole of the con examined. Only those packages which are selected on random selection basis are examined in the shed. 25. Under the EDI system, the bill of entry, after assessment by the group or first appraisement, as the case be presented at the counter for registration for examination in the import shed. A declaration for correctnes genuineness of the original documents needs to be made at this stage. After registration, the B/E is passed Appraiser for examination of the goods. Alongwith the B/E, the CHA is to present all the necessary documents. examination of the goods, the Shed Appraiser enters the report in System and transfers first appraisement B/E gives 'out of charge' in case of already assessed Bs/E. Thereupon, the system prints Bill of Entry and order triplicate). All these copies carry the examination report, order of clearance number and name of Shed Appraiser. each of B/E and the order are to be returned to the CHA/Importer, after the Appraiser signs them. One copy attached to the Customs copy of B/E and retained by the Shed Appraiser. Green Channel facility:

227 26. Some major importers have been given the green channel clearance facility. It means clearance of goods routine examination of the goods. They have to make a declaration in the declaration form at the time of filing of appraisement is done as per normal procedure except that there would be no physical examination of the goods. number are to be checked in such cases. However, in rare cases, if there are specific doubts regarding descripti the goods, physical examination may be ordered by the senior officers/investigation wing like SIIB. Execution of B 27. Wherever necessary, for availing duty free assessment or concessional assessment under differe notifications, execution of end use bonds with Bank Guarantee or other surety is required to be furnished. T executed in prescribed forms before the assessing Appraiser. Payment of Duty: 28. The duty can be paid in the designated banks or through TR6 challans. Different Custom Houses have au banks for payment of duty. It is necessary to check the name of the bank and the branch before depositing endorses the payment particulars in challan which is submitted to the Customs. Amendment of Bill of Entry: 29. Whenever mistakes are noticed after submission of documents, amendments to the of entry is carr approval of Deputy/Assistant Commissioner. The request for amendment may be submitted with the supporting example, if the amendment of container number is required, a letter from shipping agent is required. Amendment i be permitted after the goods have been given out of charge i.e. goods have been cleared on

228 sufficient proof by Deputy/Assistant Commissioner. Prior Entry for Bill of Entry: 30. For faster clearance of the goods, provision has been made in section 46 of the Act, to allow filing of bill arrival of goods. This bill of entry is valid if vessel/aircraft carrying the goods arrive within 30 days from the date of presentation of bill of entry. 31. The importer is to file 5 copies of the bill of entry and the fifth copy is called Advance Noting copy. The declare that the vessel/aircraft is due within 30 days and they have to present the bill of entry for final noting as is filed. Advance noting is available to all imports except for into bond bill of entry and also during the specia Vessel/Feeder vessel: 32. Often in case of goods coming by container ships they are transferred at an intermediate ports (like Ceyl vessel to smaller vessels called feeder vessels. At the time of filing of advance noting B/E, the importer does which vessel will finally bring the goods to Indian port. In such cases, the name of mother vessel may be filled i the bill of lading. On arrival of the feeder vessel, the bill of entry may be amended to mention names of both m feeder vessel Specialised Schemes. 33. The import of goods are made under specialised schemes like DEEC or EOU etc. The importer in such cas execute bonds with the Customs authorities for fulfillment of conditions of respective notifications. If the importer conditions, he has to pay the duty leviable on those goods. The amount of bond would be equal to the amount of the imported goods. The bank guarantee is also required alongwith the bond. However, the

229 amount of bank gu upon the status of the importer like Super Star Trading House/Trading House etc. Bill of Entry for Bond/Warehousi 34. A separate form of bill of entry is used for clearance of goods for warehousing. All documents as require with a Bill of Entry for home consumption are also required to be filed with bill of entry for warehousing. Th assessed in the same manner and duty payable is determined. However, since duty is not required to be pai warehousing of the goods, the purpose of assessing the goods at this stage is to secure the duty in case the go the warehouse. The duty is paid at the time of exbond clearance of goods for which an exbond bill of entry is duty applicable to imported goods cleared from a warehouse is the rate inforce on the date on which the go removed from the warehouse. (References: Bill of Entry (Forms) Regulations, 1976, ATA carnet (Form Bill of En Bill) Regulations, 1990, Uncleared goods (Bill of entry) regulation, 1972, , CBEC Circulars No. 22/97, dated 4/7/19 21/11/1997). II. Export: For clearance of export goods, the export or his agents have to undertake the following formalities: (a) Registration: 35. The exporters have to obtain PAN based Business Identification Number(BIN) from the Directorate General prior to filing of shipping bill for clearance of export goods. Under the EDI System, PAN based BIN is received System from the DGFT online. The exporters are also required to register authorised foreign exchange dealer cod export proceeds are

230 expected to be realised) and open a current account in the designated bank for credit o incentive. 36. Whenever a new Airline, Shipping Line, Steamer Agent, port or airport comes into operation, they ar registered into the Customs System. Whenever, electronic processing of shipping bill etc. is held up on account o of these entities, the same is to be brought to the notice of Assistant/Deputy Commissioner incharge of registering the new entity in the system. (b) Registration in the case of export under export promotion schemes: 37. All the exporters intending to export under the export promotion scheme need to get their licences/ registered at the Customs Station. For such registration, original documents are required. (c) Processing of Shipping Bill No EDI: 38. Under manual system, shipping bills or, as the case may be, bills of export are required to be filed in format Clearance Procedure the Shipping Bill and Bill of Export (Form) regulations, 1991. The bills of export are being used if clearance of taken at the Land Customs Stations. Different forms of shipping bill/bill of export have been prescribed for ex goods, export of dutiable goods and export under drawback etc. 39. Shipping Bills are required to be filed along with all original documents such as invoice, AR4, packi assessing officer in the Export Department checks the value of the goods, classification under Drawback

231 sch Drawback Shipping Bills, rate of duty/cess where applicable, exportability of goods under EXIM policy and other l DEEC/DEPB Shipping bills are processed in the DEEC group. In case of DEEC Shipping bills, the assessing off the description of the goods declared in the shipping bill and invoice match with the description of the resultant pr the DEEC book. If the assessing officer has any doubts regarding value, description of goods, he may call for goods from the docks. He may also call for any other information required by him for processing of shipping bill. the shipping bill after visual inspection of the sample or may send it for test and pass the shipping bill provisionally 40. Once, the shipping bill is passed by the Export Department, the exporter or his agent present the go appraiser (export) in docks for examination. The shed appraiser may mark the document to a Custom officer (usu for examining the goods. The examination is carried out under the supervision of the shed appraiser (export). If th other particulars of the goods are found to be as declared, the shed appraiser gives a ‘let export’ order, after w may contact the preventive superintendent for supervising the loading of goods on to the vessel. 41. In case the examining staff in the docks finds some discrepancy in the goods, they may mark the ship export department/DEEC group with their observations as well as sample of goods, if needed. The export departm the case and decide whether export can be allowed, or amendment in description, value etc. is required before ex any other action is required to be taken under the Customs Act, 1962 for misdeclaration of description of value et

232 (d) Processing of Shipping BillEDI: 42. Under EDI System, declarations in prescribed format are to be filed through the Service Centers of Custom generated for verification of data by the exporter/CHA. After verification, the data is submitted to the System Center operator and the System generates a Shipping Bill Number, which is endorsed on the printed checklist an exporter/CHA. For export items which are subject to export cess, the TR6 challans for cess is printed and give Center to the exporter/CHA immediately after submission of shipping bill. The cess can be paid on the strength the designated bank. No copy of shipping bill is made available to exporter/CHA at this stage. (e) Octroi procedure, Quota Allocation and Other certification for Export Goods: 43. The quota allocation label is required to be pasted on the export invoice. The allocation number of AEPC is the system at the time of shipping bill entry. The quota certification of export invoice needs to be submitted to Cu other original documents at the time of examination of the export cargo. For determining the validity date of the qu date needs to be the date on which the full consignment is presented to the Customs for examination and duly Computer System. In EDI System at Delhi Air cargo, the quota information is automatically verified from the AE system. 44. Since the shipping bill is generated only after the 'let export order' is given by Customs, the exporter may ma invoice or such other document as required by the Octroi authorities for the purpose of Octroi exemption.

233 (f) Arrival of Goods at Docks: 45. The goods brought for the purpose of examination and subsequent 'let export' is allowed entry to the Dock o the checklist and other declarations filed by the exporter in the Service Center. The Port authorities have to end of goods actually received on the reverse of the Check List. (g) System Appraisal of Shipping Bills: 46. In many cases the Shipping Bill is processed by the system on the basis of declarations made by the expo human intervention. In other cases where the Shipping Bill is processed on screen by the Customs Officer, he samples, if required for confirming the declared value or for checking classification under the Drawback Schedu give any special instructions for examination of goods, if felt necessary. (h) Status of Shipping Bill: 47. The exporter/CHA can check up with the query counter at the Service Center whether the Shipping Bill subm the system has been cleared or not, before the goods are brought into the Docks for examination and export. In c raised, the same is required to be replied through the service center or in case of CHAs having EDI connectiv respective terminals. The Customs officer may pass the Shipping Bill after all the queries have been satisfactorily (i) Customs Examination of Export Cargo: 48. After the receipt of the goods in the dock, the exporter/CHA may contact the Customs Officer designated present the check list with the endorsement of Port Authority and other declarations as aforesaid along

234 with all ori such as, Invoice and Packing list, AR4, etc. Customs Officer may verify the quantity of the goods actually re into the system and thereafter mark the Electronic Shipping Bill and also hand over all original documents to the D the Dock who many assign a Customs Officer for the examination and intimate the officers’ name and the examined, if any, on the check list and return it to the exporter or his agent. 49. The Customs Officer may inspect/examine the shipment along with the Dock Appraiser. The Customs O examination report in the system. He then marks the Electronic Bill along with all original documents and chec Appraiser. If the Dock Appraiser is satisfied that the particulars entered in the system conform to the descrip original documents and as seen in the physical examination, he may proceed to allow "let export" for the shipmen exporter or his agent. (j) Variation Between the Declaration & Physical Examination: 50. The check list and the declaration along with all original documents is retained by the Appraiser concerned variation between the declaration in the Shipping Bill and physical documents/examination report, the Appraise Electronic Shipping Bill to the Assistant Commissioner/Deputy Commissioner of Customs (Exports). He may physical documents to Assistant Commissioner/Deputy Commissioner of Customs (Exports) and instruct the exp to meet the Assistant Commissioner/Deputy Commissioner of Customs (Exports) for settlement of dispute. In c agrees with the views of the Department, the Shipping Bill needs to be processed accordingly. Where, howev disputes the view of the Department

235 principles of natural justice is required to be followed before finalisation of the (k) Stuffing / Loading of Goods in Containers 51. The exporter or his agent should hand over the exporter copy of the shipping bill duly signed by the Apprais Export" to the steamer agent who may then approach the proper officer (Preventive Officer) for allowing the ship container cargo the stuffing of container at Dock is dome under Preventive Supervision. Loading of both contai cargo is done under Preventive Supervision. The Customs Preventive Superintendent (Docks) may enter th packages actually stuffed in to the container, the bottle seal number particulars of loading of cargo container o system and endorse these details on the exporter copy of the shipping bill presented to him by the steamer ag difference in the quantity/number of packages stuffed in the containers/goods loaded on vessel the Superintend put a remark on the shipping bill in the system and that shipping bill requires amendment or changed quantity. S also may not be taken up for the purpose of sanction of Drawback/DEEC logging, till the shipping bill is suitably changed quantity. The Customs Preventive Officer supervising the loading of container and general cargo in to give "Shipped on Board" endorsement on the exporters copy of the shipping bill. (l) Drawal of Samples: 52. Where the Appraiser Dock (export) orders for samples to be drawn and tested, the Customs Officer may pro samples from the consignment and enter the particulars thereof along with details of the testing agency

236 in the There is no separate register for recording dates of samples drawn. Three copies of the test memo are prepared Officer and are signed by the Customs Officer and Appraising Officer on behalf of Customs and the exporter o disposals of the three copies of the test memo are as follows: Original – to be sent along with the sample to the test agency. Duplicate – Customs copy to be retained with the 2nd sample. Triplicate – Exporter’s copy. 53. The Assistant Commissioner/Deputy Commissioner if he considers necessary, may also order for sample purpose other than testing such as visual inspection and verification of description, market value inquiry, etc. (m) Amendments: 54. Any correction/amendments in the checklist generated after filing of declaration can be made at the service the documents have not yet been submitted in the system and the shipping bill number has not been g corrections are required to be made after the generation of the shipping bill No. or after the goods have been Export Dock, amendments is carried out in the following manners. If the goods have not yet been allowed "let export" amendments may be permitted by the Assistan (Exports). 2/25/2016 Clearance Procedure Where the "Let Export" order has already been given,

237 amendments may be permitted only by the Commissioner, Custom House, in charge of export section. In both the cases, after the permission for amendments has 55. been granted, the Assistant Com Commissioner (Export) may approve the amendments on the system on behalf of the Additional /Joint Commiss print out of the Shipping Bill has already been generated, the exporter may first surrender all copies of the shippin Appraiser for cancellation before amendment is approved on the system. (n) Export of Goods Under Claim for Drawback: 56. After actual export of the goods, the Drawback claim is processed through EDI system by the officers of D on first come first served basis. There is no need for filing separate drawback claims. The status of the shipping b of DBK claim can be ascertained from the query counter set up at the service center. If any query has been rais noticed, the same is shown on the terminal. A print out of the query/deficiency may be obtained by the authoriz exporter from the service center. The exporters are required to reply to such queries through the service cente come in queue of the EDI system only after reply to queries/deficiencies are entered by the Service Center. 57. All the claims sanctioned on a particular day are enumerated in a scroll and transferred to the Bank through bank credits the drawback amount

238 in the respective accounts of the exporters. Bank may send a fortnightly exporters of such credits made in their accounts. 58. The Steamer Agent/Shipping Line may transfer electronically the EGM to the Customs EDI system so t export of the goods is confirmed, to enable the Customs to sanction the drawback claims. (o) Generation of Shipping Bills: 59. After the "let export" order is given on the system by the Appraiser, the Shipping Bill is generated by th copies i.e., one Customs copy, one exporter’s copy (E.P. copy is generated after submission of EGM). After o out the appraiser obtains the signatures of the Customs Officer on the examination report and the representativ both copies of the shipping bill and examination report. The Appraiser thereafter signs & stamps both the copie bill at the specified place. 60. The Appraiser also signs and stamps the original & duplicate copy of SDF. Customs copy of shipping bill of the SDF is retained along with the original declarations by the Appraiser and forwarded to Export Departmen House. He may return the exporter copy and the second copy of the SDF to the exporter or his agent. 61. As regards the AEPC quota and other certifications, these are retained along with the shipping bill in th shipping bill is generated by the system. At the time of examination, apart from checking that the goods are cove certifications, the details of the quota entered into the system needs to be checked. (p) Export General Manifest:

239 62. All the shipping lines/agents need to furnish the Export General Manifests, Shipping Bill wise, to the Custo within 7 days from the date of sailing of the vessel. 63. Apart from lodging the EGM electronically the shipping lines need to continue to file manual EGMs along copy of the shipping bills as per the present practice in the export department. The manual EGMs need to b register at the Export Department and the Shipping lines may obtain acknowledgements indicating the date and t EGMs were received by the Export Department. 64. The above is the general procedure for export under EDI Systems. However special procedures exist for sp details of which may be obtained from the Public Notice/Standing Orders issued by the respective Commissionerates.

240 IX. THE NEGOTIAL INSTRUMENTS ACT 1881 DISHONOUR OF CHEQUES – THE NEGOTIAL INSTRUMENTS ACT The remedy provided in the Negotiable Instruments Act 1881 is under section 138.In order to invoke the provisions of N.I.Act, any one of the following should have happened: ❖ The cheque should have been presented to bank within a period of six months of the date on which it is drawn or within the period of validity, whichever is earlier, ❖ The payee or the holder in due course of such cheque should have made a demand for the payment of such money by giving a notice, in writing, to the drawer of the cheque within thirty days of the receipt of the information by him from the bank regarding the return of the cheque unpaid, and ❖ The drawer of such cheque should have failed to make the payment of the said amount of money to the payee or the holder in the due course of the cheque, within fifteen days of the receipt of the said notice. ➢ In case of companies every officer shall be deemed to be guilty of offence, who was in charge of and was responsible to the company for the conduct of the business of the company. REQUIRMNTS OF VALID NOTICE U/s 138 OF THE N.I. ACT:

241 ✓ The notice should specifically make allegation of dishonoring of cheque for the reason of insufficiency of funds and the notice should also specify that the notice so issued is by virtue of section 138 of the N.I.Act. ✓ The notice should contain the date, number of the cheque, the name of the bank on which it is drawn upon, the amount for which it is drawn and the date of the issue of cheque in case of post dated cheques ✓ The notice should mention the consequences the accused may be held liable to face ✓ The notice shall make specific demand of the amount of the cheque Suman Sethi Vs. Ajay K. Churiwal & Anr. (2000) 21 corporate courier 72 (S.C) ✓ The complaint should have been filed within a period of one month from the expiry of fifteen days after the receipt of the notice by the drawer. ➢ Dishonour of blank cheques are not covered under section 138 of N.I.Act Taher N. Khambhati Vs. Vinayak Enterprises, Sec.Bad (III) (1995) CCR 401 (AP). WHERE SHOULD THE COMPLAINT BE LODGED?

242 The cause of action can be said to arise at the place where the bank to which the cheque was issued is located and it can also be a place where the cheque is issued or delivered. The complaint can be laid at a place where the cheque is dishonored and also at a place where the cheque was issued. ➢ Mohammed Kunhi Vs. Abdul Kajeed 1 (1996) CCR 609 (Ker) ➢ Muralidharan Vs. Pareed 1992 (1) KLT 59 The Negotiable Instrument Act, 1881 (“the NI Act”) came into being as an Act to define and amend the law relating to promissory note, bill of exchange and cheques. The NI Act has been amended time and again to ensure and enhance the trust in negotiable instruments. Indian courts are riddled with the colossal problem of pending cases, with almost 20 per cent of the pending litigation pertains only to cheque dishonor disputes under section 138 of the Negotiable Instruments Act, 1881. The Central Government through The Negotiable Instrument (Amendment) Act, 2018 has notified amendments to the NI Act by incorporating several new provisions. The insertion of such new provisions in the NI Act is a welcome step aimed at addressing the issue of undue delay, efficacy and efficiency in cases related to dishonor of cheques. This article focuses on two important amendments to the NI Act i.e. Section 143A and Section 148. These sections empower the courts to direct the drawer to provide interim compensation during the pendency of the criminal complaint and the criminal appeal. SECTION 143A – POWER TO DIRECT INTERIM COMPENSATION The insertion of Section 143A empowers the Court while trying an offence under Section 138 of the NI Act, to direct the drawer of the cheque to pay interim compensation to the complainant on two occasions:

243 (a) in a summary trial or summon case, where the drawer pleads not guilty to the accusation made in the complaint and (b) in any other case, upon framing charges. The payment of interim measures ensures that the interest of the Complainant is protected in the interim period before the charges are proved against the Drawer. The intent behind this provision is to provide aid to the Complainant during the pendency of the proceedings under Section 138 of the NI Act. The quantum of such interim compensation would be upto 20% of the amount of the cheque. If the Drawer is found guilty under Section 138, the amount of interim compensation would be deductible from the final compensation payable to Complainant. Being equitable, the Section also does not prejudice the Drawer in case of his acquittal by the Court. In such a case, the Court shall order the Complainant to return the amount of interim compensation to the Drawer within a period of 60-90 days along with interest thereon. Applicability of Section 143A– Retrospective or Prospective? The Apex Court in the matter of G.J. Raja Vs. Tejraj Surana[1] faced with the question as to whether Section 143A of the NI Act is retrospective in operation and can be invoked in case where the offence punishable under Section 138 of the NI Act were committed much prior to the introduction of Section 143A. In the said case, it was held that the Section 143A has two dimensions. Firstly, the section creates a liability in as much as a Drawer of the cheque can be directed to pay up to 20% of the cheque amount to the complainant, without being found guilty in the eyes of law. Secondly, the Apex Court also observed that the said section makes available the machinery for recovery, as if the interim compensation were arrears of land revenue. Thus, it not only creates a new disability or an obligation but also exposes the accused to coercive methods of recovery of such interim compensation through the machinery of the State as if the interim compensation represented arrears of land revenue. The Apex Court held that Section 143A of the NI Act must, therefore, be held to be prospective in nature and confined to cases where offence were

244 committed after the introduction of Section 143A, in order to force an accused to pay such interim compensation. SECTION 148 – POWER OF APPELLATE COURT TO ORDER PAYMENT PENDING APPEAL AGAINST CONVICTION. Section 148 has been introduced in the NI Act, for cases where an appeal is filed against conviction of the drawer under Section 138 of NI Act. It provides that the Appellate Court may order the Appellant to deposit such sum which shall be a minimum of twenty percent of the fine or compensation awarded by the trial court. Further, the same is to be in addition to the payment of interim compensation under Section 143A of the NI Act. This provision is again a welcome step and would give respite the Complainant even if appeal is preferred. This provision would certainly dissuade the drawers from attempting to thrive on prolixity. Under this Section the Court is free to determine the sum payable in the course of the appeal, considering the facts and circumstances of each case. However, if the appellant is acquitted, then the Court shall direct the complainant to repay the amount to the appellant with interest. The procedure relating to repayment or interim compensation is similar to the procedure as laid down under Section 143 A of the Amended Act. Applicability of Section 148 – Retrospective or Prospective? The Supreme Court has clarified that the Section 148 of the Amendment Act, shall have a retrospective effect (applicable to the Complaints filed prior to 1st September 2018) in respect of appeal against the order of conviction and sentence for the offence under Section 138 of the NI Act. While dealing with the case of Surinder Singh Deshwal @ Col. S.S. Deshwal & Ors.[2] Vs. Virender Gandhi where appeals were filed against a common judgment of the Punjab and Haryana High Court dated 10.09.2019 dismissing 28 petitions filed by the appellants under Section 482 of Cr.P.C, the Apex Court observed that the object and purpose of the enactment of Section 138 of the NI Act was being frustrated because of the delay tactics of drawers of dishonoured cheques by filing of appeals and obtaining stay on proceedings which led to the Parliament to amend Section 148 of the NI Act. It was further observed that the

245 amendment in Section 148 does not take away and/or affect any vested right of appeal of the appellants. The Court held that if such a purposive interpretation is not adopted then the objective and purpose of the Section 148 would be frustrated. WHY SECTION 143A IS PROSPECTIVE AND SECTION 148 IS RETROSPECTIVE? The Supreme Court of India while deciding the G.J. Raja’s[3] has clarified as to why Section 143A is prospective in nature and Section 148 is retrospective in nature, despite of the fact that both the sections were introduced by the Amendment Act 20 of 2018 from 1st September 2018. The Court noticed that Section 143A of the Amendment Act applies at the trial stage that is even before the pronouncement of guilt or order of conviction. Whereas, Section 148 of the NI Act applies at the appellate stage, where the accused is already found guilty of the offence under Section 138 of the NI Act. The Court also pointed out that there is no provision in Section 148 of the NI Act which is similar to Sub-Section (5) of section 143A of the Act. However, as a matter of fact, no such provision akin to Sub-section (5) of Section 143A was required as Sections 421 and 357 of the Cr.P.C., which apply post-conviction, are adequate to take care of such requirements. In that sense said Section 148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143A of the NI Act. CONCLUSION The amendments to the NI Act are a great effort aimed at strengthening efficacy and expediency which will help in speedy disposal of cases and also discourage the frivolous and unnecessary litigation. Further, it upholds the interests of the complainant by providing interim compensation and ordering payment by the accused in case of appeal against conviction. The Amendment Act, certainly, a positive step enhancing the credibility of cheques and would give impetus to the trade and commerce.

246 Section 143A of the Amended Act Section 143-A of the Amended Act empowers any court while trying an offence for dishonour of a cheque to direct the drawer, who is the issuer of the cheque, to pay interim compensation to the complainant. The amount of compensation payable cannot exceed 20% of the amount as stated in the cheque. This amount has to be paid within a stipulated time period of 60 days from the date of the order passed by the court, or further within the extended period of 30 days, as may be directed by the court on showing sufficient cause for the delay caused. Section 148 of the Amended Act According to the Amended Act, Section 148 states that in the event of the conviction of the drawer of the cheque, if the drawer proceeds to file an appeal, the appellant court has the power to order the drawer of a cheque to deposit an amount. This deposited amount in such case has to be a minimum of 20% of the fine or compensation awarded by the Magistrate Court in the appeal preferred against his/her conviction. However, if the appellant is acquitted, then the Court shall direct the complainant to repay to the appellant the amount so released, with interest. Decision passed by the Supreme Court in view of Section 148 In one of its recent judgments, the Supreme Court held that Section 148 of the Amended Act, shall have a retrospective effect (applicable to complaints which were filed prior to 1st September 2018) in respect of the appeals against the order of conviction and sentence for the offence under Section 138 of the Act.

In Surinder Singh Deswal @ Col. S.S. Deswal vs. Virender Gandhi1, criminal complaints were field against the appellants (herein – original accused)for the offences committed under section 138 of the Act prior to 2nd September 2018. The trial court had convicted the appellants. Further when an appeal was filed, the first appellate court, considering the provisions of the Section 148 of the Amended Act directed the appellants to deposit 25% of the amount/compensation awarded by the trial court. A further appeal was raised, wherein the High Court of Punjab and Haryana dismissing the appeal confirmed the order that was passed by the appellant court and the additional sessions judge. Aggrieved by the dismissal of the application and the confirmation of the order, the appellants challenged the same before the Apex court and contended that Section 148 of the Amended Act should not be applicable with respect to criminal proceedings already initiated prior to the enforcing of the Amended Act. Explaining the objective of the amendment, the Supreme Court was of the view that the Amended Act has been enforced with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to the payees of dishonoured cheques, to discourage frivolous and unnecessary litigation which would save time and money. The amendments have been made to help strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy. Another contention was raised regarding Section 357(2) of the Criminal Procedure Code, 1973. This Section states that once an appeal against the 247

248 order of the conviction is preferred, fine is not recoverable till the decision of the appeal.The appellants quoting this Section, were of the view that the first appellate Court did not have the onus to pass an order directing the appellants to deposit 25% of the amount. However,the bench of the Apex Court observed that, "The opening word of amended Section 148 of the N.I. Act is that "notwithstanding anything contained in the Code of Criminal Procedure ". Therefore, irrespective of the provisions of Section 357(2) of the Code of Criminal Procedure, pending appeal before the first appellate court, challenging the order of conviction and sentence Under Section 138 of the N.I. Act, the appellate court is conferred with the power to direct the Appellant to deposit such sum pending appeal which shall be a minimum of 20% of the fine or compensation awarded by the trial Court." Further, question was also raised regarding the usage of the word "may" in Section 148 of the Amended Act. The Supreme Court on this contention was of the view that, "Considering the amended Section 148 of the N.I. Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the N.I. Act, though it is true that in amended Section 148 of the N.I. Act, the word used is "may", it is generally to be construed as a "rule" or "shall" and not to direct to deposit by the appellate court is an exception for which special reasons are to be assigned." The Supreme Court had accordingly dismissed the appeal and upheld the judgments of the lower courts. Decision passed by the High Court of Bombay The High Court of Bombay in its judgement, Ajay Vinodchandra Shah vs. The State of Maharashtra & Anr.2, has held that Sections 143-A and 148 of the

249 Amended Act are applicable to the cases pending in trial as well as in appeal, which have been filed prior to 1st September 2018. In the instant case, the petitioner had filed writ petitions challenging the legality and constitutionality of the order passed by the learned sessions court. The sessions court directed the petitioner to deposit 25% of the amount of the compensation as a condition precedent to maintain the order of the bail or to entertain the appeal preferred by the petitioner. The first issue, in the present case was whether the provisions of the Amended Act can apply only to those complaints which are filed after 1st September 2018 or to the complaints or appeals which are already pending wherein the court scan pass the orders only after 1st September 2018. The second issue was whether these provisions are ultra vires the Constitution of India. The High Court of Bombay held that, "The word 'retrospective' is to be understood or read with meaningful, purposive interpretation. It is incorrect to accept that it is to be made not applicable to the cases which are filed only after 1.9.2018 and not applicable to the cases pending earlier in the trial as well as appellate Court. Huge number of cases under section 138 of the Act are pending in the Courts. In these cases, if the plea is recorded or charge is not framed, then, the trial Court can invoke its powers under section 143A after 1.9.2018 and can impose interim compensation which shall not exceed 20% of the amount of cheque. Same is the case in appeals. If the appeals are pending, the Court can pass interim orders under section 148...". The High Court of Bombay on comparing Sections 143-A and 148 of the Amended Act quoted the difference between the two provisions and

250 observed that under Section 143A, the accused is yet to face a trial. Under subsection (2) thereof, the interim compensation under sub-section (1) shall not exceed 20% of the amount of the cheque. However, under Section 148, the High Court of Bombay may order the appellant to deposit such sum which a minimum of shall be 20% of the fine. The High Court of Bombay said that this reflects the intention of the Legislature that a person at the stage of trial is always considered innocent till he is found guilty and, therefore, the ceiling of 20% compensation is mentioned. However, in the appeal, after the first Court holds the accused guilty, then the appellate Court is given the power to pass order directing the accused to deposit the amount which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. It is further stated in section 148 of the Amended Act that the amount payable under this subsection shall be in addition to any interim compensation paid by the appellant under section 143A of the Amended Act. Though the granting of interim relief is a common thread running through both the sections, they are unidentical. It was further observed that the criminal trial court under Section 357 of the Criminal Procedure Code,1973 has power to grant compensation to the complainant, making it evident that the power to give compensation has been in existence with the criminal court before the Amended Act also. And thus, by virtue of this amendment, at what stage the amount of compensation can be granted has been given more clarity. The High Court of Bombay further held that Sections 143A and 148 of the Amended Act are not ultra vires and that the right to be on bail and enjoy liberty should not be taken away in case of bailable offences unless some special ground is made out.

251 Thus, the High Court of Bombay had allowed the writ petitions partly by imposing a condition on the accused to deposit 20% of the total amount of the compensation. Further, the stipulated time of 60 days to deposit the said amount was extended till 90 days, till the pendency of the litigation. The orders of putting conditions of cancellation of bail or suspension of sentence in the event of non-payment were additionally set aside. Decision passed by the High Court of Punjab and Haryana The Punjab and Haryana High Court ("High Court") through its judgement, Ginni Garments & Anr vs. Sethi Garment & Anr[3had a different interpretation of the law and has held that the Section 143-A of the Amended Act has no retrospective effect whereas the Section 148 of the Amended Act will apply to the pending appeals pending on date of enforcement of this provision. The High Court, through this judgement disposed off a bunch of 14 petitions challenging the orders passed by the trial courts under Section 138 of the Act. The sole argument in all these petitions was that under Section 143-A and Section 148 of the Amended Act, the courts below cannot be deemed to have any retrospective authority,to pass the order imposing the liability of payment of the amounts, mentioned in the impugned orders, in the pending trial or in the pending appeals. The High Court observed that Section 143-A of the Amended Act casts a substantive obligation upon the accused.The High Court observed that, "Since the amended provision provides for enforcement of recovery of interim compensation by way of coercive procedure, it is nothing but an obligation imposed upon the accused. Section 3 of the Specific Relief Act has clarified the

252 meaning of term 'obligation' by defining that any duty enforceable under law is an obligation. As per General Clauses Act, this definition has to be read in all Central Acts unless defined otherwise in the relevant Act. Such an 'obligation' having consequences qua the property rights of the accused cannot; but be treated; as substantive provision effecting his substantive right by casting a substantive obligation upon him, to make the payment of money; and if not paid, making him subject to legal deprivement/disability qua his properties. Therefore, it has to be held that Section 143-A of the Act cast a substantive obligation upon the accused and thereby effect the substantive right of the accused. Since the Amendment Act has not made the provision applicable retrospectively, specifically, to pending cases, hence, it cannot be applied retrospectively, to pending cases; which arose from the default of the accused which has taken place before coming into force of this provision." The High Court was of the view that Section 143-A of the Amended Act is not shown to be a step in furtherance to the procedure of the trial authorizing the trial court to pass any order, having consequences against the accused qua the steps of the trial;in case of non-payment of interim compensation. Regarding Section 148 of the Amended Act, the High Court was of the view that the situation under Section 148 is drastically different. Section 148 of the Amended Act provides that in case the accused/appellant is acquitted by an appellate court, then an amount awarded by the such court which is an interim compensation, shall be returned to him by the complainant, along-with interest and that no other disqualification is to be inflicted upon the accused/applicant qua defense or prosecution of appeal by him.Further, the procedure of recovery of fine/ compensation from a convict-appellant of a pending appeal has pre-existed in the Criminal

253 Procedure Code making it clear that no new aspect of fine or compensation from the appellant is being created through this amended provision. The High Court stated that, "Since the provisions for recovery of fine or compensation from the appellant/convict already existed in the existing procedure relating to the recovery, therefore, the provision introduced vide Section 148 of the Act; which relates only to recovery of amount partly, as interim measure, has to be treated purely procedural only, which is otherwise also beneficial for the appellant as compared to the pre-existing provisions. Hence it has to be held that provision of Section 148 of the Act shall govern all the appeals pending on date of enforcement of this provision or filed thereafter." The High Court thus dismissed the petitions which were challenging the order of the appellate Court, directing the appellant to deposit 20% or more of the amount of fine or compensation as awarded by the trial Court. Footnotes 1. Criminal Appeal Nos. 917-944 of 2019 2. Criminal Writ Petition Nos. 258, 259 and 260 of 2019 3. MANU/PH/0330/2019

254 X. GENERAL PROCEDURES TO BE FOLLOWED IN RECOVERY OF ARREARS AS PER THE PROVISIONS OF THE A.P.R.R. ACT 1864 Before proceeding to initiate the proceedings under R.R.ACT 1864, officer shall get authorization of the Deputy Commissioner of the Division. 1. A demand notice in FORM-4 shall be served upon the defaulter a) Shall specify the amount due b) Service shall be 1. By delivering a copy to the defaulter OR 2. By delivering it to the adult male member of the family OR 3. To the authorized agent OR 4. By affixing in some conspicuous part of the land to be attached 2. ATTACHMENT a) Shall be through notice in FORM-5 b) Shall be affixed on some conspicuous part of the land in presence of mediators c) The notice shall be published in district Gazette by addressing to Collector for allocation of a Gazette number for this purpose. The concerned clerk in collectorate shall be approached personally to prevent delay.

255 d) The attachment shall be proclaimed on the land by TOM TOM (Section 27 of the ACT read with Rule 32, Village Officers & Ryots manual chapter IV) 3. MANAGEMENT OF ATTACHED PROPERTY a) Wherever required, the management of attached property shall be assumed b) An agent shall be appointed with necessary office establishment c) Notice of Assumption shall be in Form -6 (copy shall be served to defaulter if available or shall be affixed on some conspicuous part of the land and it shall be duly published in district gazette.) d) Expense and salary shall be defrayed from the income from the property. e) If the income is too meagre the management shall be entrusted to any revenue officer by the collector. 4. SALE NOTICE e) This shall be issued at least one month before the date of sale. One month at the least shall be from the date mentioned in FORM-5. It is advisable to fix a date at least 45 days from the date in FORM-5. f) The notice shall be in FORM-7 g) This notice shall be in English language and the language of the District.

256 h) Shall be affixed in some conspicuous part of the land preferably in presence of mediators. i) Shall be caused to be displayed in Collector’s Office, nearest Police Station with reference to the land, in concerned SRO’s Office. 5. NOTICE OF SALE OF LAND a. This notice shall be issued (FORM-7A)before the actual sale of land (Rule 11) b. Shall be in English language and the language of the District c. The version in the language of the district shall be published at least 15 days before the intended date of sale. NOTE: No more land than required to defray the arrears shall be sold. If necessary the required portion of the land shall be marked and shall be specified in FORM-7. But however the protection is the Collector can sell whole OR part of the land. 6. SALE a. The sale shall be by public auction and shall be knocked down to the highest bidder. b. Every participant shall deposit 15% of the amount ad EMD c. Agents appearing shall disclose the name of their principal d. Within 30 days from the date of auction, the remaining amount shall be paid in full.

257 e. In case of non-payment by the highest bidder, the 15% EMD shall be forfeited and resale shall be conducted at the cost of the bidder. f. Upon expiry of 30 days time, the sale shall be confirmed in FORM-8 g. A copy of the certificate shall be sent to the registrar’s office h. It shall be displayed in the nearest Police Station, cutchery, Collector’s office and other places mentioned before. 7. PROCLAMATION OF SALE a. The sale certified in FORM –8 shall be proclaimed through FORM-10 b. This shall be published in the District Gazette c. Shall be displayed in Collector’s Office, cutchery, SRO’s office, nearest Police Station and other places mentioned afore.