Indian Penal Code Research Papers (original) (raw)

lawweb.in /2017/10/guidelines-for-examination-of-child.html It is trite that the children have been accorded special treatment by the legislature (of various countries) and courts because of their special needs. The environment of a court... more

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- Criminal Law, Police, Children's Rights, Investigation
- by Vandana Wadhwa
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- Human Geography, Spatial Analysis, Quantitative, Refugees

What explains the global variation in laws criminalizing homosexual
conduct? Recent research has claimed that British colonialism is largely responsible for the criminalization of homosexuality around the world. This article utilizes a newly constructed dataset that includes up-to-date data on 185 countries to assess this claim. We find that British colonies are much more likely to have criminalization of homosexual conduct laws than other colonies or other states in general. This result holds after controlling for other variables that might be expected to influence the likelihood of repressive lesbian, gay, bisexual and transgender (LGBT) rights legislation. However, we also find that the evidence in favour of the claim that British imperialism ‘poisoned’ societies against homosexuality is weak. British colonies do not systematically take longer to decriminalize homosexual conduct than other European colonies.

The official act or official function referred to in the relevant provisions obviously mean acts or functions which the concerned public servant can perform in his official capacity and not in the capacity of a private citizen. The appellant, admittedly, was working as a Tax Recovery Clerk in the Thane Municipal Corporation and had nothing to do with the demolition of the illegal constructions. The not reporting of the matter to the Encroachment Department, which was said to be the act for which bribe was being demanded, cannot be said to be an official act of the appellant in his capacity as a public servant. The favour which the appellant was to show to the complainant in return for the bribe, viz., 'of not reporting the matter to the Encroachment Department', had nothing to do with the official duties of the appellant. Not reporting of the matter would be an act performed by the appellant in his private capacity and not in his official capacity. When the complainant had made illegal construction, it could be reported to the Encroachment Department by any person. The appellant had nothing to do with the work of the Encroachment Department and there is not even an assertion to that effect. The work carried out by the complainant was obvious and could be noticed by anyone. For reporting or not reporting such matter, anybody could similarly demand gratification from the complainant. The appellant's position as a Tax Recovery Clerk in the Thane Municipal Corporation, in no manner gave the status of an official act to his not reporting the matter to the Encroachment Department. Thus, what the appellant allegedly agreed to do in return for a bribe was not his official act and was an act purely in his personal capacity, to which the provisions of the P.C.Act do not apply. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1152 OF 2004 RAVINDRA MAHADEO KOTHAMKAR )...APPELLANT V/s. THE STATE OF MAHARASHTRA )...RESPONDENT CORAM : ABHAY M. THIPSAY, J. DATE : 9th OCTOBER 2015. Citation; 2015(4) Crimes 222 Bombay - See more at: http://www.lawweb.in/2015/12/whether-person-can-be-prosecuted-for.html?#sthash.S1tssX2A.dpuf

- by lawyer bharat
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- Criminal Law, Criminal Procedure, Indian Law, Corruption

With the advent of a postmodern society that questions the established fabric of 'culture' and attempts to deconstruct conventional gender roles, various pertinent issues have emerged. One of these issues is forcible sexual assault on a woman without her consent, recognized as the offence of rape. It is considered to be one of the most heinous offences which can be committed against the person of an individual and demands urgent attention due to the spike in the rate of its occurrences. In this article, an attempt has been made to formulate a uniform sentencing policy for rape convicts and to analyse the ramifications of allowing out-of-court compromises, between the convict and the victim, upon such a policy. It begins by tracing the extent of sexual violence in India, defining and discussing the offence of rape as provided in the Indian Penal Code. Thereafter it examines how courts have dealt with the question of allowing rape convicts to make compromises with the victims by, for instance, agreeing to marry them and the effects such compromises have on the overall sentence of the offender. It further explores the need for maintain uniformity with regard to the sentencing policy for rape cases in light of the fundamental principles of sentencing laid down by Indian as well as international courts. The article concludes with certain recommendations about the creation and implementation of such a uniform sentencing policy in rape cases.
https://nujssacj.wordpress.com/2018/08/31/developing-a-uniform-sentencing-policy-for-rape-with-special-reference-to-the-issue-of-compromise/

- by Shantanu Pachauri
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- Criminal Law, Criminal Procedure, Criminal Justice, Rape

Unless the marital rape results in the wife succumbing to injuries, the story never steps out of the four walled room. She has been taken control of and molded by her in laws to fit right in, making her a robot in denial mode. Hence, such injustice done to her is anything but a crime, in her controlled eyes. It is that offence which never gets reported and the criminal roams around freely waiting to repeat his actions in the night that follows.

- by Aiman R Khan
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- Domestic Violence, Rape, Rape and Sexual Assault Law, Rape Culture

Il volume è strutturato come un insieme di sguardi che osservano, da più angolazioni, un argomento complesso e articolato qual è quello della violenza di genere, soffermandosi su alcune delle peculiari modalità tramite cui, nelle aree... more

- by Società Editrice Fiorentina and +4
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- Adivasi Studies, Donne, Hijras and gender in India, Indian Penal Code

Meaning of Rape and related provisions in the Indian Penal Code along with detail over changing trend of legislation on this subject matter

- by ads legal
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- Rape, Legal, Indian Penal Code

Psychiatry and law approach the problem of human behaviour from different philosophical perspectives. The Criminal law is, however, ‘a practical, rational, normative science which, draws upon theoretical science but is concerned with the issue of passing judgment on human conduct’.
Mental diseases need to be explicable in reference to their severity and gravity especially having the instinct towards crime. Psychopathy is one of the most dangerous mental diseases and provides a theoretical and practical challenge to the Criminal law and the Criminal Justice System.
Due to the lack of information and awareness about psychopaths they are generally considered as monsters, not patients, moreover, rather than punitive a therapeutic approach should be followed for the benefit of society, human rights, and psychopaths.
Efforts have been made in countries like U.K. and U.S.A. in this direction. Special laws have been promulgated keeping in view the scientific fact that mentally ill offenders are not criminals but victims in their own ways as they are generally unaware of the disease and the consequences of the crime committed by them. There is an urgent need to create mass awareness of this disease and to make separate sentencing policy for psychopaths.

- by Prof.(Dr.) Priya Sepaha
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- Criminology, Indian Penal Code

Defence of Involuntary Intoxication under the Indian Penal Code

- by Prachi Verma
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- Criminal Law, Death Penalty, Indian Penal Code, DEFENCE OF INTOXICATION

Two years after the Supreme Court dismissed a review petition filed in Suresh Koushal vs Naz Foundation, in which the court had held Section 377 of the Indian Penal Code to be constitutional, the case has been listed for Tuesday in a... more

- by Siddharth Narrain
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- Criminal Law, Constitutional Law, Gender and Sexuality, LGBT Issues

This essay focuses on the definition of ‘consent’ in the context of rape, which was introduced in the Indian Penal Code by the Criminal Law (Amendment) Act of 2013. The first part assesses the standard of consent under Section 375 and its subsequent application by the Courts. Examining the Delhi High Court’s detailed and controversial engagement with the concept of consent in Mahmood Farooqui v. State (NCT of Delhi), I argue that reforms introducing a consent definition couched in affirmative terms, without shifting the evidentiary burden of proof were inadequate. The second part examines the affirmative consent standard in light of Catherine MacKinnon’s recent proposal for a rape definition based on gender inequality and not consent. While assessing the workability of MacKinnon’s definition focused on unequal or coercive circumstances, I argue that any remodeling of the consent standard should have both equality and autonomy at its core.

- by Joy Sarker
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- Cruelty, Indian Penal Code

-Acid attack is a deep-rooted evil which has emerged as the contemporary form of violence against both the sexes. The crime of acid attack is a premediated act of violence wherein acid is thrown on the face or other body parts of the victim with the intention of deforming not only his/her body but also his/her life. From past many decades the situation of acids attacks has worsened considerably putting all hands of legislators, jurists, judges as well as of researchers on deck to curb this social evil. There are a number of reasons which motivate the outpour of such actions, most common of which is the REJECTION, or some internal or social DISPUTE. This paper explains the various physical, psychological and socio-economic consequences which ensue upon the victims of acid attacks. Furthermore, the paper sets out the various legal provisions to combat the menace of acid attack and how the recent amendments have changed the Indian legal system with respect to vitriolage. Efforts have been made to highlight the shortcoming of the judiciary and the police while dealing with the acid attacks.

- by Anuj Chauhan
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- Criminal Law, Indian Penal Code, Acid Attacks
- by Shantanu Pachauri and +1
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- Criminal Law, Criminal Procedure, Criminal Justice, Criminal Law Criminal Procedure Law

""Corporal punishment in educational institutions is a problem accosting the society the
world over. Its menace has neither spared the developing nations nor the developed ones.
The damage afflicted as result of corporal punishment to the all round physical and mental development of a child is acknowledged by one and all. What was once an accepted
practice endorsed by the education boards is now perceived correctly as a threat to the young nubile generations which would one day hold the reigns of our nation.
Initiatives have been taken by the United Nations to curb this issue globally prompting many countries to ban corporal punishment. India too has taken significant steps in curbing it by
various laws, directives issued by the legislative, judicial and central and state education bodies.
Despite these affirmative actions, sporadic incidences of corporal punishment do occur, leaving in their wake a maimed and helpless child and a rattled society.""

As per data published by the National Family Health Survey 2015-2016 which receives technical guidance from the Ministry of Health and Family Welfare, Government of India, 83% of married women between the ages of 15 and 49 who have suffered sexual abuse cite their current husbands as the perpetrators. The hard truth that emerges from this figure is that a large number of crimes against women in India takes place in their respective homes. The issue of marital rape in India is one example of violence against women where the victim suffers both physically and psychologically at the hands of somebody close to them. But unfortunately, marital rape is not recognised as a crime under the Indian law. The present paper focuses on examining some of the vital socio-cultural and legal reasons that play a significant role in prohibiting criminalisation of marital rape in India.

- by Amit Anand
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- Gender, Women, Violence Against Women, Marriage

Rape is “Malum in se”, which is a phrase used in Latin to describe something that is wrong or evil in itself. “Malum in se” is different from “Malum prohibitum” which is wrong only because it is prohibited. Rape is essentially a type of a sexual assault involving sexual intercourse or other forms of sexual penetration carried out against an individual without the consent of that individual. In India rape is defined by Section 375 of the Indian Penal Code (IPC) and according to the rape laws of this country, only a man can commit the act of rape and only a woman can be the victim of this crime. This paper aims to elaborate on the regressive and problematic nature of the notion that only women can be recognized as the victims of rape.

"The legal subordination of one sex to another is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other". 1 Individual Dignity is the realm of a civilized society. When a woman is treated with the real spirit of equality with that of a man then only a society is considered as civilized. Any system that treats women with indignity and inequality and discriminates between men and women invites the wrath of the Constitution. Any Legislation that might have got the stamp of serene approval, a few decades back, may have to meet its end with the efflux of time. In Manusmriti, Chapter 3, Verse 56, Manu told about the greatness of women and stated that, "where women are honoured, divinity blossoms and wherever women are dishonoured, all action no matter how noble it may be, remains unfruitful"-यत्र नायय स्तु पू ज्यन्ते रमन्ते तत्र दे वतााः । यत्रै तास्तु न पू ज्यन्ते सवाय स्तत्राफलााः क्र ियााः ॥ 56॥ Marriages in India exists in different forms, under Hindu marriage system it is considered as a sacrament and in Muslim marriage system it is a contract and for this system to function both wife and husband plays crucial role. It is exasperating that whenever it comes to the rights of women in the system of marriage our legislation is handcuffed with the patriarchal mindset. Man and woman are no different but pity to say that man still thinks after marrying a woman, he own her, he becomes owner of her mind, body and even soul. Such a thought is abominable, woman is not a puppet of man and she cannot be asked to think as the husband desires, for it slaughters her core identity.

The recent instance of invoking sedition laws in several instances has again raised questions on the undemocratic nature and validity of these laws in the present constitutional democracy. It is sad that these laws have survived the demise of colonial rule. The analysis of the application of the sedition laws by the various courts of India shows how they have become outdated for the present society and there are various recommendations for its application. In a democratic country like India, all citizens have the Fundamental Right to Freedom of Speech and Expression. Although, reasonable restrictions to such right allow law of Sedition, but the extent of such law is a question of prime importance. In our country where Rule of Law prevails, arbitrary charging a person for the offence of Sedition is an act, which is not in sync with constitutionalism. This paper is an attempt in bringing together all the debates of repealing and amending these laws. The existence of this law in our statute books and its criminalization seems unjustified in our democratic society.

- by Shantanu Pachauri and +1
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- Criminal Law, Criminal Justice, Constitutional Law, Democracy
- by Renjith Thomas
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- Jurisprudence, Indian Penal Code

Right of Private Defense under Indian penal code
Section 96 to 106 of Indian penal code

- by Imran R Dar
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- Criminology, Criminal Law, Critical Criminology, Indian Law

Now we move to the question of sentence vis-à-vis the benefit granted under the Probation of Offenders Act, 1958. In Azhar Ali Vs. State of West Bengal, (2013) 10 SCC 31, this Court while dealing with the question of applicability of 1958 Act to an offence under Section 354 of IPC, found as follows: “12. In the instant case, as the appellant has committed a heinous crime and with the social conditions prevailing in the society, the modesty of a women has to be strongly guarded and as the appellant behaved like a roadside Romeo, we do not think it is a fit case where the benefit of the 1958 Act should be given to the Appellant.” In State of Himachal Pradesh Vs. Dharam Pal, (2004) 9 SCC 681, this Court was dealing with probation of offenders in case of offence of attempt to commit rape. The finding of this Court in the said judgment is relevant for all the offences against the women, which is as follows: “6. According to us, the offence of an attempt to commit rape is a serious offence, as ultimately if translated into the act leads to an assault on the most valuable possession of a woman i.e. character, reputation, dignity and honour. In a traditional and conservative country like India, any attempt to misbehave or sexually assault a woman is one of the most depraved acts. The Act (Probation of Offenders Act, 1958) is intended to reform the persons who can be reformed and would cease to be a nuisance in the society. But the discretion to exercise the jurisdiction under Section 4 (of the Probation of Offenders Act, 1958) is hedged with a condition about the nature of the offence and the character of the offender.” In above case although this Court did not interfere with the benefit of probation granted by the High Court due to peculiar facts of the case however it did not approve the reasoning given by the High Court. In the present case the accused is not a minor, rather he has committed an offence against a minor girl who is helpless. Further, it is clear from the evidence on record that he ran away only when the prosecutrix screamed and PW3 came to the place of incident, which goes on to show that the accused could have had worse intentions. The offence is heinous in nature and there is no reason for granting benefit of probation in this case. The Trial Court has not given any special consideration to the character of the accused apart from the fact that this was the first conviction of the accused. We find this is far from sufficient to grant probation in an offence like outraging the modesty of a woman. REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 561 OF 2009 STATE OF RAJASTHAN … APPELLANT :Versus: SRI CHAND … RESPONDENT Citation; 2015 (4) Crimes 257 SC - See more at: http://www.lawweb.in/2015/12/whether-court-can-give-benefit-of.html?#sthash.sjRmie4v.dpuf

- by lawyer bharat
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- Criminal Law, Supreme Court, Indian Penal Code, Probation of Offenders
- by Parvathy P V
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- Criminal Law, Crimes Against Women, Indian Penal Code, Crime and deviance

The Mathura case, an unfortunate decision of the Supreme Court, sacrificing the dignity and human rights of women, led to public outcry, coupled with the intensification of pressure by the legal fraternity and social organisations, paved the way to the 84th Report. The role played by the legal fraternity by strongly responding against the judgment of the Supreme Court was extraordinary. The response against the judgment in Mathura case was an eye opener to the policy makers to make proper law to tackle with the indignity suffered by women.
This project is a case comment upon the judgment of the Supreme Court in the same case of Tukaram & Anr. v. State of Maharashtra (AIR 1979 SC 185), popularly known as the Mathura rape case.

- by Prachi Verma
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- Criminal Law, Rape and Sexual Assault Law, Indian Penal Code

A lot of modern democracies, especially in Asia, can point to the British colonial legacy as the source of their sedition laws. Recent political developments in India and multiple countries across the world regarding the crime of sedition have once again given rise to a debate on the ethical and legal validity of criminalizing the act of sedition. To provide a comparative look at the different legal scenarios in the world, this paper studies (anti)sedition laws in the United Kingdom, the United States of America, Malaysia and Hong Kong. The development of sedition as an offence in India has been studied, with special reference to the charges brought against Mahatma Gandhi himself, under the provisions of the Indian Penal Code which prohibit seditious behavior. A contrast is observed between the approach to sedition, seditious libel and plain criticism of public officials in the Eastern and Western parts of the world. Suppression of dissent is hardly a novel concept in a dictatorship or in an authoritarian State, which is why this paper focuses on sedition laws in democracies, both old and new. The prevalence of a multitude of factors including geo-politics, religious heterogeneity and even the age of a State is studied to provide context and perspective to existing legal frameworks in each country. The problems with the law as it is in India are succinctly identified and pointers are provided to find our way into the future, as a healthy, strong and evolving democratic power.

- by Sriram SL and +1
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- Constitutional Law, Democracy, Indian Law, India

This review article charts how the obscenity law has been a shaping influence across different forms of media in India, especially literature and art. By taking into account the effect of Section 292 of the Indian Penal Code on the lives and careers of a few renowned creative professionals, from Manto to M.F. Husain, this article reveals the shortcomings of a moralistic approach to obscenity. Over the course of the 20 th century and the early years of the 21 st , the law has undergone notable changes, some inspired by comparative law developments around the world and some unique to the Indian context. Through a thematic arrangement of case law, this paper attempts to throw light on the Indian judiciary's quest to gauge obscenity and penalize it. The various ideologies which are brought to bear on obscenity highlight the need for an objective test in this area. Moreover, by criticising the existing legislative definitions of obscenity and its doctrinal development over time, this paper will map the trajectories towards that objective standard.

- by Dikshit Sarma Bhagabati
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- Criminal Law, South Asian Studies, Victorian Literature, Post-Colonialism

Here, I delve into pre-colonial, colonial, and post-colonial Indian history in order to understand recent (as of December 2014) political changes affecting LGBT rights in India. Specifically, I sought to understand and unpack the supposed contradiction—understood as such by many Western observers—between the Indian Supreme Court recognizing transgender rights while upholding Section 377 of the Indian Penal Code, a colonial-era law that effectively criminalizes homosexuality. Previously, there had been much speculation about the subject in the media but no thorough attempts to illuminate the issue. This research paper, written at the conclusion of the graduate class 'Politics of Religion in South Asia' (Dr. Jonah Blank, Fall 2014, JHU-SAIS), was meant to fill that gap.

- by Shereen Shafi
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- Gender Studies, Anthropology, Social Anthropology, Sex and Gender
- by Rishima Rawat
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- Criminal Law, Indian Penal Code, Criminal Defences

N.B. This is not a primary study, rather a secondary analysis of collective information on Child Prostitution in Bangladesh.

In the chapter “Criminalizing Marital Rape in India” , authors have examined the issue of criminalisation of marital rape by evaluating various policy considerations which are identified as the dignity of an individual, sexual autonomy, institution of marriage and undesirable criminalization. The essay has also made an attempt to determine the judicial attitude in interpreting existing rape laws. Based on judicial attitude, policy considerations, existing legislative framework to deal with rape offences and definition of marital rape given by Justice Pardiwala it is suggested that the force rape, non-consensual unnatural offences etc. can be easily criminalised. However, as far as non-consensual sex is concerned it is desirable to criminalize the same.

- by KOPAL GARG and +1
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- Criminal Law, Criminal Justice, Legal Education, Legal History
- by Prof.(Dr.) Priya Sepaha
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- Human Trafficking, Surrogacy, Indian Penal Code, Surrogacy Laws in India

We have referred to these authorities to highlight that in matters of criminal defamation the heavy burden is on the Magistracy to scrutinise the complaint from all aspects. The Magistrate has also to keep in view the language employed in Section 202 CrPC which stipulates about the resident of the accused at a place beyond the area in which the Magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499 CrPC are satisfied. Application of mind in the case of complaint is imperative. 198. We will be failing in our duty if we do not take note of submission of Mr. Bhambhani, learned senior counsel. It is submitted by the learned senior counsel that Exception to Section 499 are required to be considered at the time of summoning of the accused but as the same is not conceived in the provision, it is unconstitutional. It is settled position of law that those who plead Exception must prove it. It has been laid down in M.A. Rumugam (supra) that for the purpose of bringing any case within the purview of the Eighth and the Ninth Exceptions appended to Section 499 IPC, it

- by lawyer bharat
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- Criminal Law, Civil Law, Supreme Court, Indian Law

A study of the space within a Gay night at clubs in Mumbai City based on Foucaut's Heterotopia.

- by Vishal Langthasa
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- LGBT Issues, Homosexuality and Literature, Homophobia, Homosexuality

Arrest means the deprivation of a person of his liberty by legal authority or by apparent legal authority. It means preventing a person from making his movement and from moving according to his free will amounts to arrest of such person. The exigencies of the circumstances may require a person to be arrested without warrant if such person is reasonably suspected to have committed a cognizable offence. Even in case of a non-cognizable offence immediate arrest without warrant may become necessary to ascertain the name and address of the offender perpetrating the crime.

- by Harshita Sharma
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- Criminal Procedure, Public Administration, Magistrates and Authority, Police

To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that:- (i) there was common intention on the part of several persons to commit a particular crime and (ii) the crime was actually committed by them in furtherance of that common intention. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Common intention is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention.

- by lawyer bharat
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- Criminal Law, Law of evidence, Indian Law, Supreme Court of India
- by Parvathy P V
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- Criminal Law, Rape and Sexual Assault Law, IPC, Sexual Offences and Rape
- by Neeti Nair
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- Religion, Legal History, South Asian History, Indian Penal Code

Freedom of expression is fundamental to democracy for a democratic society constitutes diversity in thought and opinion. A democratic government must realize that criticism and condemnation underpin democracy, as well as dissent and opposition, for free speech and robust political debate are cornerstones of a democratic society. Limitations to such freedom exist in law as in sedition but a clear distinction in the law between free speech and conduct calculated to affect a seditious intent is fundamental. For sedition is historically associated with stifling and punishing criticism of the established authority to reign in political dissidents. Sedition punishes speech and as such, is a potential instrument of political suppression.

- by Ishtiak Hossain Ninad
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- Constitutional Law, Bangladesh, Indian Penal Code, Sedition

Whenever a sexual crime is committed in a gruesome manner it is generally mystified with
psychological crime. Conversely, sexual crime and psychological crime are different in their
action and commission. To understand the difference between the two it is necessary to study the
detail of these crime and criminals. Sexual crimes mean a crime involving sexual assault like,
incest, rape, child assault and sodomy whereas psychological crime involves, insanity,
Schizophrenia, split-personality, unsoundness of mind and pschopathy. Motive plays the most
important role to analyze any crime and in both the cases motive is different. In sexual crime
motive is usually lust, obsession, pleasure, fun, revenge and sometimes abnormal behavior,
whereas in psychological crime it is always a disease due to which offender commits offence not
with any motive. Sexual criminals have remorse and they also try to hide their act while
psychological criminals do not have any remorse and they do not hide their act. Moreover,
sexual criminals understand the consequence of their act but psychological criminals are not
aware of it. Similarly sexual criminals can make out the difference between right and wrong
whereas psychological criminals fail to understand this. There must be clear bifurcation between
the two in the society for the better understanding. It is pertinent to discuss the judicial response
in this regard. It is difficult to make an estimate of criminal behaviour of persons with mental
disorders with precision because of the difficulty in obtaining reliable data. Thereby making the
understanding of sexual and psychological crime is a challenging task.

- by Prof.(Dr.) Priya Sepaha
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- Psychopathy, Crime, Punishment, Indian Penal Code

- by Shantanu Pachauri
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- Criminal Law, Criminal Procedure, Criminal Justice, Rape

In Pandurang Dattatraya Khandekar vs. Bar Council of Maharashtra & Ors. (1984) 2 SCC 556, this Court held that “… “8. There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.” Therefore, the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank. In the given case, there is no evidence to prove that A-6 was abetting or aiding the original conspirators. However, it is beyond doubt that a lawyer owes an “unremitting loyalty” to the interests of the client and it is the lawyer’s responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under Sections 420 and 109 of IPC along with other conspirators without proper and acceptable link between them. It is further made clear that if there is a link or evidence to connect him with the other conspirators for causing loss to the institution, undoubtedly, the prosecuting authorities are entitled to proceed under criminal prosecution. Such tangible materials are lacking in the case of the respondent herein.” IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 102 of 2012 RAMESHBHAI VALLABHBHAI KORAT....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI Date : 24/07/2014 Citation; 2015(3) Crimes 524 GUJ

- by lawyer bharat
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- Criminal Law, Cheating and Plagiarism, Professional Ethics, Fraud

perjury has been defined as willful restraining from telling truth. the laws in India are not so stringent but cases like best bakery case has been held as throwing light on plight of indian laws and the protection of witnesses.

- by Preeti sharma
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- Indian Penal Code