All about Law of torts.

What is Tort?

The word tort has been derived from a Latin word “tortum” which means twisted or crooked. According to Salmond, “Tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract, or, the breach of trust, or, other merely equitable obligation.”

It is different from breach of contract and trust. Tort is when the act of one party causes some harm to the other party due to negligence, carelessness on the part of another party. The one who sues is known as ‘plaintiff’ and the one who is sued is known as ‘defendant’.

The person who causes such harm shall be made liable to pay compensation to the injured party (plaintiff), this compensation can be in the form of money. This money received in the form of compensation is known as ‘damages’. In order to claim damages, there must be some breach of duty towards plaintiff which resulted in such injury.

Even if the harm which is caused was not intentional but due to carelessness or negligence, then also the other party can be sued. Tort allows people to hold the other person accountable for the injuries suffered by them.

Essentials of Law of Tort

Act/omission: To constitute a tort there must be an act, which can either be negative or positive. There must be some breach of duty to constitute such wrongful act or omission. It means there was a duty to do or not to do a certain action, or to behave in a particular manner which a reasonable man is expected to act under certain circumstances. If a corporation maintains a children park which has a poisonous plant but fails to put proper fencing. If one of the children eats a fruit from that tree and dies, then the corporation can be held liable for such an omission. A person cannot be held liable for social or moral wrong. For example, if somebody fails to help a starving man then he cannot be held liable because it is a moral wrong unless some legal duty can be proved.

Legal Damage: In order to constitute tort, breach of legal duty must be there. The legal right vested with the plaintiff should have been breached i.e certain act or omission have resulted in the breach of legal duty. The action can be instituted if there is a breach of legal right. For the injury sustained by the plaintiff, damages could be claimed by him. Legal damage could be understood more clearly with the help of following maxims:

1. Injuria sine damnum: “Injuria” means unauthorised interference with the right of the plaintiff. “Damnum” means harm or loss suffered in terms of comfort, money, health etc. When there is violation legal right without any harm to the plaintiff, the plaintiff can approach the court. In Ashby v. White, the plaintiff was detained by the defendant, a returning officer. The plaintiff was a qualified voter at the parliamentary election but due to detention, his voting right was violated. The plaintiff sued the defendant for violation of his legal right. Since there is a right there is also a remedy available for it. Similarly, in Bhim Singh v. State of J&K, plaintiff was an MLA of J&K who was detained wrongfully by the police officer while he was going to attend Assembly session. The fundamental right of personal liberty was violated and moreover, he was not presented before the magistrate within the requisite period. Here the wrongful and malicious act of the defendant was actionable so court awarded exemplary damages of Rs 50,000 to Bhim Singh. 2. Damnum sine injuria: According to this maxim, there is some injury caused to the plaintiff without any unauthorised interference to plaintiff’s legal right. A person cannot claim damages in law even if the injury is caused due to the deliberate act of the defendant, as long as the other party is exercising his legal right. For example, a defendant set up a school exactly in front of the school of the plaintiff. The plaintiff suffered loss because of the rival school as he has to lower the fees and many students took admission in defendant’s school. There is no remedy available for the loss suffered by him. The defendant has not done anything in excess of his legal right. Development of law of torts in India

To deal with the malicious behavior of the people tort existed in Hindu and Muslim law but it can be said that tort was formally introduced by the Crown in India. It is based on the principles of equity, justice, and good conscience. The law of torts is based on the principles of ‘common law’ which is mainly the English law of torts. The application of the law of tort is an applied selectively in Indian courts keeping in mind if it suits the circumstances of Indian society. Justice Bhagwati in M.C Mehta v. Union of India observed that: “We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.” Is it Law of tort or Law of Torts?

Winfield theory of tort: According to the law of “tort” theory, all the unjustifiable harm for which there is no excuse will be treated as a tort. The Chief supporter of this theory in Winfield, according to him if any injury is done to the neighbor he can sue the other person no matter if the wrong happened has a particular name or not. The person held liable should prove lawful justification. Indian judiciary supported Winfield’s theory in the case of M.C Mehta v. Union of India. Salmond theory of torts: Salmond was the supporter of the law of “torts”, according to him the liability under this law arises only when the wrong is covered under one or other nominate torts. This theory is also known as Pigeon hole theory. In order to succeed under this theory, the plaintiff should place the wrong under the already present torts. Each theory is correct from its point of view it depends on the question of approach or looking at things from a certain angle.

Types of torts

Intentional tort

In order to commit an intentional tort, some action must be done with a purpose i.e there must be an intention to commit an act. For the welfare of the society, it is generally assumed that no one should attack the other person intentionally. For example, if you hit a person with an iron rod on the head, there was an intention to cause injury to that person in a particular way. Intentional tort includes the following Battery: When some force is applied physically to the body of another person in an offensive manner which causes some harm is called battery. Battery constitutes the offensive touching which is not consented by the other party. Even if the person did not intend to injure the other person but if he has the knowledge that his act could harm someone in any way then also the battery is constituted. The personal liberty of the person is interfered in any way with the intention to cause harm. Common examples of the battery include hitting a person with a stick, punching someone on the face. Elements of battery include: There must be an intent to use some physical force. There must be actual physical contact with the body of another person. There must be some harm.

2. Assault:

When the act of one person creates an apprehension in the mind of another person that such act is likely or intended to cause such harm. It could range from pointing a gun at a person to verbally threatening a person. Apprehension should not be confused with fear. Apprehension is when a person is aware that the injury is imminent. There is an assault if a person threatens to shoot another while pointing a gun another him, even if the victim later discovers that the gun was not loaded. Unlike the battery, there is no physical contact in an assault. For example, if a person makes a flinch but does not actually punch the person then there is an assault. Essential elements of assault are: There must be an apprehension of harm. There must be an intention to use force.

3. False imprisonment:

It is the unlawful confinement of the person without his will. It is not necessary that person should be put behind the bars, a mere impossibility of escape against the will of the person from a certain area is enough to constitute a tort of false imprisonment. It includes the use of physical force(actual expression of force is not always necessary), a physical barrier like a locked room, invalid use of legal authority. False arrest is the part of false imprisonment which includes detaining of the person by the police without lawful authority. Essential elements are : There must be an intention Period of confinement Knowledge of the plaintiff Place of confinement Malicious prosecution falls within the category of false imprisonment. It not only includes malicious proceedings and arrests instituted falsely but also includes malicious search, malicious bankruptcy and liquidation proceedings. In order to prove malicious prosecution, these essentials should be kept in mind: There must be malice towards the plaintiff The absence of reasonable cause Prosecution by the defendant Damage was suffered by the plaintiff as a result of the prosecution

4. Trespass:

It is the intentional, unreasonable invasion of the property, land, person or goods. The unreasonable interference can cause harassment or harm to the other person, no matter how slight it is. The legal right of the owner of the property is infringed because he is deprived of his right to enjoy the benefit of the property by the misappropriation or exploitation of his right. Types of trespass are: Trespass to person: When a wrong is done to the individual and in some way personal liberty and interference is caused to the body of the person. It is an invasion of person’s right to freedom. The dignity of the person is protected by it, even if no physical injury is caused. For example, taking the fingerprints of a person forcefully. It consists of following torts: assault, battery, and false imprisonment.

Trespass to land: Unlawful interference to the land of some other person is the trespass to land. Land here includes not only the building and the surface but also the subsoil and airspace. Even if there is no damage done to the property but if the person enter the land of another person without his permission, then it is trespass. If a delivery boy was supposed to deliver the goods at the front door of the house but seeing the house open he enters one of the rooms to which he was not entitled, then he has done trespass to land. A person will not be liable for trespass if he enters the premises or land to save the life of another person. For example, if a person sees in a baby trapped in a fire in a house, then if he enters the house to save him he will not be guilty of trespass. The owner of the property owes some duty to the guest. If any guest is injured on the property in possession of the owner then the owner can be held liable. Trespass to chattels: Also referred as trespass to personal property or goods, it is the interference or unauthorised use of person’s lawful possession of property without his permission. Chattel can be referred to personal property whether moving or not but it does not apply to land or real property. For example, two friends were studying together. After they were done with studies one of the friends took the book of another assuming it to his book. There is trespass to chattel as there was an intention to take the book. So the mistake of ownership cannot be used as a defense in this case. The person can recover actual damages which are measured by the diminished value of the chattel that resulted from the defendant’s actions.

5. Defamation:

It is an injury or harm caused to the reputation, goodwill or character of the person. There are two types of defamation in the form of Libel and Slander. Libel is the publication of a false statement which is likely to cause harm to the reputation of another person. Publication means it should come into the notice of the third party. It must be in printed form for example writings, pictures, cartoons, statues etc. When the false spoken statement results in lowering the reputation of another person then it is slander. In, Harash Mendiratta v. Maharaj Singh, it was held that only the person who has been defamed can maintain an action and not his friends, family or relatives. Sometimes the statement may appear to be innocent but there might be some hidden meaning to it. In order to file a suit for defamation, the plaintiff must prove such hidden meaning. Defamation in the law of tort deals mainly with libel. To prove that the statement was libelous, it must be False Written Defamatory Published If the defamation is proved when a suit is instituted, damages can be given to the plaintiff as compensation and in some cases, injunction can also be granted to restrain certain publication because of which a person has an apprehension of being defamed. Some of the defenses to defamation are: A substantially true report was published. When the case has been decided by the court it is not defamatory to express any opinion on the merit of the case in good faith. Any truth which is published for the public interest.

Tort-based on Negligence

Negligence is the absence of reasonable care which is imposed on all persons so as not to place the other person at foreseeable risk of harm through his conduct. It is the failure to act is a particular way by taking into account the apprehended injury that could be sustained due to carelessness to one party. Elements of negligence are:

Duty: There must be some duty or an obligation which one person owes to another. If the defendant fails to fulfill the duty which he owes to the plaintiff in the eyes of law then he can be held liable. So at first, it should be assessed whether the defendant owes any duty of care to the plaintiff or not. Sometimes the relationship between the plaintiff and defendant creates a legal duty or obligation to act in a certain manner. For instance, the doctor owes a duty of care to the plaintiff i.e to treat the patient in an appropriate manner. If the doctor while treating the patient left a ring in his abdomen, then he can be said to be negligent in giving appropriate medical treatment. The doctor owed a duty of care towards his patient which he failed to do so. Breach: once it has been assessed that defendant owes a duty of care to the plaintiff, it should be further established that there was some breach of duty i.e one person failed to exercise a take. “Amount of care” means the care which a reasonable person would have taken in those circumstances. Whether there was any breach of duty is both a subjective and objective test. The defendant can be said to be negligent if he knew that his action would affect the other person if he does not act in a particular way, for eg. if the owner of the dog knows that his dog is of ferocious nature then he should put some warning on the gate like “Beware of dog” or “Enter at your own risk”. If he fails to do so then he can be held negligent in taking such care. Causation (cause in fact): This element aims at establishing that there should be some negligence on the part of the defendant which caused such injury or harm to the plaintiff. The plaintiff should prove that the loss suffered was caused by the defendant. The (but for) rule is used in proving the causation i.e whether the injury suffered would have happened but for the action of the target of your suit.

Proximate cause: If a person cannot foresee that something bad could happen to another person then how could he be held liable. To make the person liable for alleged action it should be proved that his action was the remote/closest cause for the injuries sustained. If the act is foreseeable then only the person is liable otherwise not, for eg. If a motorcyclist hit the pedestrian on the road due to which he suffered a severe injury on the head. Seeing the sight on the internet, a woman whose house was on the road had a heart failure. The motorcyclist was liable to the pedestrian as he failed to take reasonable care while driving. But he is not liable to the woman who had a heart attack because that was not foreseeable.

Damages: The last element of negligence is damages. The person who had sustained injury should be compensated for such harm. The test of (reasonable person) is important to decide if the plaintiff is entitled to compensation or not. The compensation given to the plaintiff should be capable of putting him back in the position in which he was before the incident took place. For eg., if the car driver hit the motorcyclist due to which he sustained injuries and had to miss work, the compensation that the car driver could be made to pay should bear his medical expenses, lost earnings and the pain and suffering endured by him.

Defenses: i) Volenti non fit injuria: If a person acts voluntarily and is aware of the risk associated, he cannot recover damages if he suffers harm. This is the voluntary acceptance of risk. The person should be free to make a choice when the employer forces an employee to take the risk of which he is aware but is not willing to undertake. Here, the defense cannot be used by the employer if an injury is sustained by the employee because the employer had forced the employee to undertake the risk against his will. Essential of Volenti non fit injuria: There was knowledge of risk by the plaintiff He voluntarily undertook such risk ii) Contributory negligence: When the damage which the plaintiff has suffered was partly due to his fault and partly due to the fault of the defendant, this constitutes contributory negligence. In order to prove contributory negligence, it must be proved that the plaintiff failed to take reasonable care for his safety. In a collision between two cars, the defendant was driving negligently at high speed. It was discovered that the plaintiff was not wearing seat belt due to which he sustained the higher amount of injuries than if he had been wearing a seatbelt. The plaintiff failed to take reasonable care which was expected on his part. So he is liable for contributory negligence. iii) Ex turpi causa: it means no defense or legal remedy can be initiated if the cause of action which arose was due to the illegal conduct of the plaintiff i.e no action can be found on a bad cause. For example, Mr. Anil took a lift in a car which he knows was stolen by the other person. Later, the car met with an accident, Mr. Anil cannot initiate an action against the other party under this principle. Strict liability under law of tort

It is the type of tort in which the defendant is held responsible for the injuries sustained. The plaintiff need not prove whether the tort occurred or not, he can sue the defendant for defective action. Under certain circumstances, if any wrong happens then the perpetrator can be held responsible for such an act when the activities are known to be fundamentally dangerous. This rule is applicable in India as much as in England. For example, ‘X’ stores flammable propane tank in a factory near to ‘Y’ house. As the consequence of mischief of rat the tank was set on fire tank because of which Y’s property was damaged. Although there was no fault of ‘X’, still ‘X’ is liable as ‘Y’ suffered because of him. In Ryland v. Fletcher, the defendants employed independent contractors to construct a reservoir on their land for providing water to his mill. The contractor failed to seal the unused mines which he found while digging. When the water was filled in the reservoir, it burst through the shafts wand and water flooded in plaintiff’s mines. Although the defendant has no idea about the shaft and was not negligent. The incident took place because of the fault of the contractor still the defendant was held liable. Following torts must be present to constitute the tort of strict liability: Some dangerous thing must have been brought by a person on his land. The thing kept on land must have escaped. Non-natural use of land. Exception to this rule: i) Plaintiff’s own fault: If some intrusion by the plaintiff in defendant’s property causes some harm to him then the defendant cannot be held liable. In Ponting v Noakes, the plaintiff’s horse ate some poisonous leaves from the defendant’s tree after which he died. The defendant was not held liable as it was the wrongful intrusion by plaintiff’s horse. No damage would have been done if the horse would not have entered defendant’s property. ii) Act of god: Circumstances which are not under the control of human beings or which are not foreseeable fall under this rule. The defendant cannot be held liable if some natural event leads to the escape of dangerous thing. iii) Consent of the plaintiff: If the plaintiff has consented to the accumulation of some dangerous thing on plaintiff’s land and the source of danger was for the common benefit of both the plaintiff and defendant then defendant cannot be held liable for such escape. iv) Act of third party: If the act of third person causes some harm to the plaintiff over which the defendant has no control or the person is not defendant’s servant then he cannot be held liable under this rule. If the act of third party is foreseeable then due care must be taken by the defendant. v) Statutory Authority: Act done under the authority of statue is a defense provided there is no negligence. Another liability which arose after the case of M.C Mehta v. Union of India was that of Absolute liability. According to this liability, if a person is engaged in some dangerous activity which is the source of his commercial gain then he owes some duty of care to the society if the escape of dangerous thing could cause catastrophic damage. He cannot take the exception of act of god or third party. In M.C Mehta v. Union of India, oleum gas leaked from one of the unit of Shriram Foods fertilizer Industry in the city Delhi. Due to the leakage of this gas, many people were affected. If the rule of strict liability would have been applied in this situation then it would have been easy for the defendant to escape by saying that the damage was due the act of stranger. The Supreme Court was of the opinion that they do not have to follow the 19th century rule of English Law and could evolve a new rule suitable to the economic and social conditions existing in India. The court in this case by applying the rule of absolute liability held the defendant liable. As per the directions of the court, the organisations who filed the case could claim the compensation on behalf of the victims Other Tort

Nuisance: It is derived from a French word “nuire” which means to annoy or harm. The person in possession of the property is entitled to free use and enjoyment of his land and property without any unauthorised interference. If any interference is caused then the tort of nuisance has occurred. It is different from trespass which is the interference of plaintiff’s possession through some tangible object or material whereas nuisance is the interference with the right accessory to possession.

Elements of nuisance: There must be some wrongful act committed by the defendant. The wrongful act must result in some injury to the legal right of the plaintiff.

Kinds of Nuisance

Public Nuisance: When the act of the person affects a large number of people then it is termed as public nuisance. The aim of this tort is to avoid unwarranted disturbance and ensure the right to safety and right to enjoy the possession peacefully. For instance, shooting firecrackers in the middle of the road. The claimant should prove that they have suffered “special damage” over and above the effects on the other affected people in the “class”.

Private Nuisance: It is the interference with the enjoyment or use of land or some right connected to it. The interference can be caused due to things like smell, noise or any kind of vibration etc. For example, damage caused to the health of person due to noxious fumes or the breaking of the window by a cricket ball. In order to initiate the tort of private nuisance, the person should prove that there was some interference, then the interference caused was unreasonable. Nuisance can be caused either to property or some physical discomfort.

Defenses

If a private nuisance continues for 20 years then it is a special defense and the right to continue a private nuisance may be acquired as an easement by prescription. This type of nuisance can be enjoyed for a period of 20 years and after that, it will be legalised. If a statute has allowed or authorised to do a particular act, all remedies, whether by way of indictment or action, are taken away, provided that every reasonable precaution consistent with the exercise of the statutory power has been taken away.

Remedies

Damages: To restore the plaintiff in the position he was if the tort would not have been committed, damages are awarded to the claimant. The injury caused includes not only physical injury but also emotional, economic or reputational injury and many other. Damages payable to the plaintiff are made in terms of money. Damages depend upon the cause, fact and the circumstances of the case. Damages can be awarded more than that claimed by the defendant. Injunction: it is granted to refrain the party from further continuing an act. Sometimes damages are not enough to compensate the party, the act which is causing such harm needs to be permanently to be stopped. It is granted at the discretion of the court.

References http://www.legalserviceindia.com/article/l129-Torts-In-India.html https://legal-dictionary.thefreedictionary.com/trespass https://injury.findlaw.com/torts-and-personal-injuries/trespass-to-chattels.html https://www.slideshare.net/shantanu_leo/defamation-law-in-india https://www.slideshare.net/airlawacademy/law-of-torts-its-evolution-in-india-80392234 https://taxguru.in/corporate-law/types-nuisance-remedies.html R K Bangia

Analysis of Indecent representation of womens Act 1986

AUTHOR - VIKAS MAN SINGH Abstract- The indecent representation of women in the society through various medias and perceiving them as a sexual objects is detrimental to the growth and development of a women and also affect their dignity and values in life. The indecent representation of womens act along with other Acts prohibits all such kind of indecent representation of women which affects the public morality. Also various provisions in international law and IN CEDAW prohibits any such acts which affects the dignity and integrity of a women. After analyzing the Act and it’s relationship with CEDAW we find many improvement which is needed to be made in this act. which will make this Act more effective and will help to curb all those acts which affects the women. What is indecent representation of women. The Indecent representation of womens Act punishes the indecent representation of Women , which means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals.It states that no person shall publish or cause to publish or cause to be published or arrange to take part in the publication or exhibition of any advertisement which contains indecent representation of women in any form. 'In the Act, advertisement' includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas. Important Provisions of the indecent representation of womens Act of 1986. 1. Prohibition of advertisements containing indecent representation of women This section talks about the Prohibition of advertisements containing indecent representation of women. It provides that “No person shall publish, or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement which contains indecent representation of women in any form.” Here Advertisement means and includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas; 2.Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women This section talks about the Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women. It says that“No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form” Exceptions Certain exception to this rule is also provided under this section, in which it is Provided that “nothing in this section shall apply to— (a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure— (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art, or learning or other objects of general concern; or (ii) which is kept or used bona fide for religious purposes; (b) any representation sculptured, engraved, painted or otherwise represented on or in— (i) any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and Remains Act, 1958 (24 of 1958); or (ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose; (c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952), will be applicable. [Here Ancient monuments" means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years, and includes- (i) the remains of an ancient monument. (ii) the site of an ancient monument, (iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and (iv) the means of access to, and convenient inspection of, an ancient monument;] 3.Powers to enter and search T his section provides for the Powers to enter and search. And it says that (1) Subject to such rules as may be prescribed, any Gazetted Officer authorised by the State Government may, within the local limits of the area for which he is so authorised,— (a) enter and search at all reasonable times, with such assistance, if any, as he considers necessary, any place in which he has reason to believe that an offence under this Act has been or is being committed; (b) seize any advertisement or any book, pamphlet, paper, slide film, writing, drawing, painting, photograph, representation or figure which he has reason to believe contravenes any of the provisions of this Act; (c) examine any record, register, document or any other material object found in any placementioned in clause (a) and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act: Provided that no entry under this sub-section shall be made into a private dwelling house without a warrant: Provided further that the power of seizure under this sub-section may be exercised in respect of any document, article or thing which contains any such advertisement, including the contents, if any, of such document, article or thing, if the advertisement cannot be separated by reason of its being embossed or otherwise from such document, article or thing without affecting the integrity, utility or saleable value thereof. (2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to any search or seizure under this Act as they apply to any search or seizure made under the authority of a warrant issued under section 94 of the said Code. (3) Where any person seizes anything under clause (b) or clause (c) of sub-section (1), he shall, as soon as may be, inform the nearest Magistrate and take his orders as to the custody thereof. 4.Penalty This Section provides for the Penalty which says that Any person who contravenes the provisions of section 3 or section 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees. 5. Offences by companies This section talks about the Offences by companies, and it provides that Where an offence under this Act has been committed by acompany, every person, who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. Also Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be proceeded against and punished accordingly. This section says that Offences under this Act is cognizable and bailable. Which reads as; (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under this Act shall be bailable. (2) An offence punishable under this Act shall be cognizable. Womens and Advertisements: Use of women to promote a concept or product is going on increasing Women are used in TV commercials as weapon of persuasion. Women in many cultures make the majority of consumption decisions; hence they are important target of these advertisers. Positive Impact of Advertisements on Women includes Consumer education, Public Service Advertisements which educates women. Advertisements brings awareness about various issues women need to know. For example: the advertisements of contraceptives inform women about safe sex. Advertisements also offer a career to women as models and fashion design. Advertisements do update women on the latest fashion trends; there by making them more stylish and elegant. But, most of the advertisements make women victims of cheap advertising techniques . The represention of women in indecent ways for whatever commercial ends, is the worst thing done. Other Laws prohibiting indecent representation of women and obscenity 1.Indian penal code, 1860 The Indian Penal Code 1860 contains S. 292 which deals with the sale of obscene books, pamphlet, inter alia representation which shall be deemed to be lascivious or appeals to the prurient interest, which can include obscene advertisements. Indian Penal Code is included as safety legislation to prevent the indecent representation of women in advertisements, because of the logic that Indecent Representation of women can be obscene’, which means that a law curbing obscenity came of help. The word, obscenity denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. It cannot be denied that it is an important interest of society to suppress obscenity. In Ranjit D. Udeshi Vs State of Maharashtra, the test of obscenity was established. The appellant, a bookseller, sold a copy of the uncensored edition of “Lady Chatterley's Lover". He was convicted under s. 292, Indian Penal Code, it was ruled that in judging a work, stress should not be laid upon a word here and a word there, or a passage here and a passage there. Though the work as a whole must be considered, the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort. In this connection the interests of contemporary society and particularly the influence of the impugned book on it must not be overlooked. Where, obscenity and art are mixed, art must so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked. It is necessary that a balance should be maintained between "freedom of speech and expression" and "public decency or morality"; but when the latter is substantially transgressed the former must give way. And in Chandrakant Kalyandas Kakodar v/s. State of Maharashtra and Ors, it held that there was no fixed rules to determine obscenity." The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. 2.The Information Technology Act, 2000: Section 67 of the IT Act is the most serious legislative measure against pornography. The section reads as under: Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees. The important ingredients of an offence under section 67 are publishing, or transmitting, or causing to be published, pornographic material in the electronic form. 3.Cable Television Networks (Regulation) Act, 1995: The Cable Television Networks (Regulation) Act, 1995 prohibits the transmission of advertisements on the cable network which are not in conformity with the Advertisement Code. The Advertisement Code is set out under Rule 7 of the Cable Television Network Rules, 1994. Contravention of these provisions attracts liabilities. The Advertisement Code states that no advertisement shall be permitted which derides any race, caste, color, creed and nationality. In Rule 7 (2) (vi) it states that no advertisement shall be permitted which, in its depiction of women violates Constitutional guarantee to all citizens. In particular, no advertisement shall be permitted which portrays a derogatory image of women. Women must not be portrayed in a manner that emphasizes passive, submissive qualities and encourages them to play a subordinate, secondary role in family and society. The Cable operator shall ensure that the portrayal of the female form, in programmes carried in his cable service is tasteful and aesthetic and is with well established norms of good taste and decency. The Act further states that no advertisement which exploits social evils like dowry and child marriage must be permitted. 4.Press council of india Act,1978 The Press Council Of India is a statutory body established by the Press Council Of India Act, 1978, for the purpose of preserving the freedom of the Press and of maintaining and improving the standards of newspapers and news agencies in India. S. 14 of the Act gives the power to censure. S.14(1) Where, on receipt of a complaint made to it or otherwise, the Council has reason to believe that a newspaper or news agency has offended against the standards of journalistic ethics or public taste or that an editor or working journalist has committed any professional misconduct, the Council may, after giving the newspaper, or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by regulations made under this Act and, if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist, as the case may be. In the Code -Newspapers should not publish an advertisement containing anything which is unlawful or illegal, or is contrary to good taste or to journalistic ethics or proprieties in the section elaborately dealing with advertisements, which by the inclusion of the term, good taste is to be noted. It also states that …The editors should insist on their right to have the final say in the acceptance or rejection of advertisements, specially those which border on or cross the line between decency and obscenity. Constitution of India,1950 “Womens have the inherent right to dignity” The expression 'life' assured in Article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure." Quality of life covered by Article 21 is something more than the dynamic meaning attached to life and liberty. Right to life includes right to human dignity. Right to live with human dignity enshrined in Article 21 derives life breath from the directive principles of State policy .In Maneka Gandhi V Union of India, it was ruled that right to life is not merely confined to physical existence but also includes within its ambit the right to live with human dignity. In Francis Coralie V Union of Territory of Delhi, it was held that right to life means something more than just physical survival and is not confined to protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world, but includes ‘ the right to live with human dignity. Women are human beings, So every right pertaining to human beings is not alien to women. Women have right to live a dignified life. In Chandra Raja Kumari V. Police Commissioner, Hyd, it had been held that right to live includes right to live with human dignity or decency and therefore holding of beauty contests is repugnant to dignity or decency of women and offends Art 21 of the Constitution. The Universal Declaration of Human Rights, International Covenant on Civil and Political Rights has recognized that human beings have dignity inseparable from them. Thus, the right to dignity being an inseparable part of right to life guaranteed under the Indian Constitution under Art.21 makes the enforcement of the laws possible by the initiation of a writ petition in the Supreme Court or High Courts under Art.32 and Art.226 respectively. Relation of Indecent representation of womens Act with CEDAW In its preamble, the Convention explicitly acknowledges that "extensive discrimination against women continues to exist", and emphasizes that such discrimination "violates the principles of equality of rights and respect for human dignity". As defined in article 1, discrimination is understood as "any distinction, exclusion or restriction made on the basis of sex in the political, economic, social, cultural, civil or any other field". The Convention gives positive affirmation to the principle of equality by requiring States parties to take "all appropriate measures, includinglegislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men"(article 3). Convention aims at enlarging our understanding of the concept of human rights, as it gives formal recognition to the influence of culture and tradition on restricting women's enjoyment of their fundamental rights. These forces take shape in stereotypes, customs and norms which give rise to the multitude of legal, political and economic constraints on the advancement of women. Noting this interrelationship, the preamble of the Convention stresses "that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality of men and women". States parties are therefore obliged to work towards the modification of social and cultural patterns of individual conduct in order to eliminate "prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women" (article 5). And Article 10(c) mandates the revision of textbooks, school programmes and teaching methods with a view to eliminating stereotyped concepts in the field of education. Finally, cultural patterns which define the public realm as a man's world and the domestic sphere as women's domain are strongly targeted in all of the Convention's provisions that affirm the equal responsibilities of both sexes in family life and their equal rights with regard to education and employment. Altogether, the Convention provides a comprehensive framework for challenging the various forces that have created and sustained discrimination based upon sex. Indecent representation of women and other international laws Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women, Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex, Discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity, Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields. The National Human Rights Commission and the State Human Rights Commission can look into violations of dignity of women, even in advertisements. Section 2(d) of the Protection of Human Rights Act, 1993, defines human rights as the rights relating to life, liberty, equality, and dignity of an individual guaranteed in the Constitution or embodied in the international Covenants and enforceable by Courts in India. The NHRC has taken cognizance of certain infringements of dignity of women in advertisements. Improvement which is required to be made in the present Act of 1986 1.The Indecent Representation of Women (Prohibition) Act, 1986, needs to be amended which prohibits indecent representation of women through advertisements or publications, writings and paintings (primarily the print media). To widen the scope of the Act to cover new forms of communication such as the internet, satellite based communication, cable television etc. 2. The Act should prohibits the publication or distribution of any material, which contain indecent representation of women. This provision does not apply to material, which may be published in the interest of science, literature or art or for bona fide religious purpose or for sculptures in ancient monuments or temples. 3.A new definitions of “indecent representation of women”, “electronic form” and “publish”. should be added. “Indecent representation of women” means the depiction of the figure or form of a woman in such a way that it has the effect of being indecent or derogatory or is likely to deprave or affect public morality. “Electronic form” means any information generated, sent or stored in media, magnetic and optical form (as defined in the Information Technology Act, 2000). “Publish” includes printing or distributing or broadcasting through audio visual media. 4. Amendment should be made in the definitions of “advertisement” and “distribution” to include all types of media (printed and electronic). 5.Penalties for various offences should be enhanced For representing women indecently, the penalty for the first offence can be increased to imprisonment of three years from two years and a fine between Rs 50,000 and Rs 1 lakh from Rs 2,000. For a subsequent offence, the term of imprisonment can be between two and seven years and fine between Rs 1 lakh and 5 lakh. Role of people and society in curbing the indecent representation of women The public can play an important role in curbing the indecent representations of women in advertisements, by objecting to it and by choosing not to remain silent. Cultural as well as religious constraints too cannot be over looked totally by the agencies. The media is the watch dog of justice. Media is accountable to the people. Media can play an important role in protesting the indecent representation of women in the media. Journalists have to make people aware of the laws helping them in this goal, through their writings. I would like to point out that a mass awakening only can make a change in the attitude of advertisements towards women. Public service Advertisements are doing their part- thanks to the Governments and NGOs. But women organizations, police, politicians, social workers, legal activists- all have to join hands to fight those indulging in indecent representation of women in advertisements. The advertisements portraying women in a vulgar way, whether it be in hoardings or other in other media, is tolerated and over looked by the people. For. e.g. there is a duty attached to officers under different acts like the Indecent Representation of Women (Prohibition )Act,1986 which can be resorted to remove hoardings with women pictured in a vulgar way. In these circumstances a writ of mandamus can be resorted to. By various cases, the Supreme Court has recognized that the advertisements were in the nature of commercial speech’, thereby liable to be protected under Art 19(1) (a). But it must be remembered that it is not a blanket protection because of the restrictions which includes inter alia grounds of morality and decency. He also points out that the models as well as the advertising agencies do have a right to livelihood and profession, but the so called social workers and activists and lawyers and media persons should come up to enlighten the society at large about the legal consequences of indecent acts. Conclusion After the analysis of this Act we reach to the conclusion that much have to be researched in this field to bring forth a comprehensive piece of legislation or amendments in the existing laws to deal with the vulgar portrayal of women in advertisements. Also the society should also take the responsibility to raise voice against any such kind of indecent representation which is derogatory to the image of womens.

‘HURT’ AND ‘GRIEVOUS HURT’‘

INTRODUCTION:–

The famous words of Mahatma Gandhi – “Nobody can hurt me without my permission.” Now a days, majority of criminal cases, more in particular, in the Courts of Judicial Magistrate of First Class in India, are ‘Hurt’ cases such as offences punishable under section 323, 324, and 326 of Indian Penal Code,1860. There is no criminal Court without these cases. ‘Hurt’ is known as cause injury to, cause pain to, injure, maim, damage, wound, incapacitate, impair, mutilate, injure. In other words, it means ‘ be detrimental to’. If an illustration uses the word “wounds” as a verb, it does not differentiate between an injury of “simple nature” or “grievous nature”. A reference to Vedas and Upanishads disclose that such indications are in abundance. They are in the form of positive and negative injunctions, i.e Vidhis and Nishedhas. To quote a few: Tell the truth; Never tell untruth; Never hurt anyone; Follow Dharma; Treat your mother and father as God; and Perform only such acts which are not forbidden. There are several such Vidhis and Nishedhas. All they formed the foundation of the Smriti Laws. Out of eighteen topics of law laid in Manu and Yajnavalkya, the five topics which constituted the law of crime are Vakaparushya (defamation), Dandaparushya (assault), Steya (theft), Strisangrahana (Adultery and rape) and Sahasa (all the offences with violance including murder). To whom punishment in necessary in a hurt case? Narada lay down certain guiding principles for award of punishment in the case of Dandaparushya. When an altercation has committed and the both parties are excited, he who restrains himself is respected and the one who proceeds to assault is punished. How to determine whether a person has committed an offence or not? The general rule of the common law is that crime cannot be imputed to a man without mens rea. It is, of course, quite another question how the existence of that mens rea is to be established. So far as the English Law is concerned, Section 8 of the Criminal Justice Act of 1967 applies the necessary corrective to the grossness of the rule supposed to have been laid down.[1] This section provides that “A Court or jury in determining whether a person has committed an offence.- (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequences of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inference from the evidence as appear, proper in the circumstances”. [1] 1961 AC 290. The natural and probable consequences of a man’s act is only one of the factors from which his intention as to the result may be gathered. The intention is to be gathered from all the circumstances appearing in the evidence. Recently, in 2015, the Hon’ble Gujarat High Court[2] observed that in Indian Law, the objective test of the maxim would cover every degree of mens rea from negligence to intention, depending on the degree of probability of the consequences. What is injury? According to medical terminology, Injury means wound or trauma; harm or hurt; usually applied to damage inflicted on the body by an external force. In other words, as was observed in Mrs. Veeda Menezes vs Yusuf Khan And Anr[3], the expression “harm” has not been defined in the ‘Indian Penal Code: in its dictionary meaning it connotes hurt, injury; damage; impairment, moral wrong or evil. There is no warrant for the contention raised that the expression “harm” in s. 95 does not include physical injury. The expression “harm” is used in many sections of the Indian Penal Code. In sections. 81, 87, 88, 89, 91, 92, 100, 104 and 106 the expression can only mean physical injury. In s. 93 it means an injurious mental reaction. In s. 415 it means injury to a person in body, mind, reputation or property. In sections, 469 and 499 harm, it is plain from the context, is to the reputation of the aggrieved party. What does the word ‘Hurt’[4] mean? According to Section 319 IPC whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. Types of weapons: Sections 321 to 338 Indian Penal Code,1860 explain various types of ‘Hurts’ and ‘Grievous Hurt’ depending upon various circumstances in which the offence was committed. However, for Forensic point of view one should know what is “dangerous weapon or means”. The Section 326 IPC enumerates various things which are considered as dangerous weapon or mean. Self inflicted injuries are not covered. However, the opinion regarding whether the injury was self inflicted or not is left to the discretion of court. To cause hurt, in short, mostly in Indian villages and cities, the weapons such as sticks, kattuva, knife, stones, iron rod are being used against the victim. The weapons may be metallic, wooden, fibrous, stone like and even the parts of the body of the offender, viz, teeth, nails, feet, palm, hand fist, fingers, elbows and knees. It was also discussed that ‘Burns’ are caused by flame, heated objects and scalds by hot liquids and vapours or gases. Bodily harm may also be caused by corrosives, electricity, insecticide, high dose of drugs. [2] Criminal Misc.Application No. 3120 of 2014 [3] 1966 AIR, SCR 123, [4] Section 319 IPC-1860 Section 321 in The Indian Penal Code 321. Voluntarily causing hurt.—Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said “voluntarily to cause hurt”. The essential ingredients to constitute an offence under section 323 are as under: “(i) That the accused caused hurt to another person; (ii) That he caused such hurt voluntarily; (iii) That such a case was not covered under Section 334 I.P.C.” To bring home an offence under section 323 IPC, the prosecution is to prove (a) the victim suffered from bodily pain, disease or infirmity; (b) that the accused caused the aforesaid bodily pain etc.; (c) that the accused did so intentionally or with knowledge that in the process hurt would be caused. Section 324 in The Indian Penal Code: 324. Voluntarily causing hurt by dangerous weapons or means.—Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. “any instrument which, used as a weapon of offence, is likely to cause death”- Meaning:- In the case of Prabhu vs State Of M.P (2008), the Apex court held that the expression “any instrument which, used as a weapon of offence, is likely to cause death” has to be gauged taking note of the heading of the Section. What would constitute a `dangerous weapon’ would depend upon the facts of each case and no generalization can be made. As was noted by this Court in State of U.P. v. Indrajeet Alias Sukhatha[5] there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Sections 324 and 326 expression “dangerous weapon” is used. In some other more serious offences the expression used is “deadly weapon” (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable. The above position was highlighted in Mathai v. State of Kerala. [5] (2000(7) SCC 249) [6] (2005 (2) JT 365). An offence under section 324 IPC has the following essential ingredients: “(i) That the accused voluntarily caused hurt to another person; (ii) That such a hurt was in exception to cases provided under Section 334; (iii) That such hurt was caused (a) by means of any instrument for shooting, stabbing or cutting, or any instrument which used as a weapon of offence is likely to cause death; or (b) by means of five or any heated substance; or (c ) by means of any poison or any corrosive substance; or (d) by means of any explosive substance; or (e) by means of any substance which is deleterious to the human body to inhale, to swallow, or receive into the blood; or (f) by means of any animal.” To bring home an offence punishable under section 324, the prosecution is to prove (a) that the accused caused hurt i.e., caused bodily pain, or disease or infirmity (vide Section 319, I.P.C.) to another; (b) that it has been caused voluntarily i.e. with knowledge or intention to cause; (c ) that it has been caused by any instrument for shooting, stabbing or cutting, or by any instrument which qua weapon of offence is likely to cause death, or by means of fire or any heated substance or by means of any poison or any corrosive substance or by means of any explosive substance or by means of any substance which is deleterious to the human body to inhale to swallow or to receive into blood or by any means of any animal, and that the offence does not attract section 334, I.P.C. The word ‘instrument’:- The word ‘instrument’ has not been defined in the Indian Penal Code. Webster’ New International Dictionary. 1926 Edition, speaks of instrument as that by means of which any work is performed or result is effected; one that is made a means or is caused to serve a purpose, a medium means or agent. The Shorter Oxford English Dictionary[7], defines it as a thing with or through which something is done or effected a means, a tool, implement, weapon. a part of the body having special function. In the ordinary primary sense, an instrument has been defined as meaning that by means of which something is done one who, or that which, is made a means or caused to serve a purpose; the agent or means of anything; and more specifically, the means, or the implement or tool, by which work is done. WHAT IS GRIEVOUS HURT? Under Section 320 in The Indian Penal Code, 1860, the following kinds of hurt only are designated as “Grievous”: [7] Vol. 11933 Edition Grievous hurt.—The following kinds of hurt only are designated as “grievous”:— (First) — Emasculation. (Second) —Permanent privation of the sight of either eye. (Third) — Permanent privation of the hearing of either ear, (Fourth) —Privation of any member or joint. (Fifth) — Destruction or permanent impairing of the powers of any member or joint. (Sixth) — Permanent dis figuration of the head or face. (Seventh) —Fracture or dislocation of a bone or tooth. (Eight) —Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. Voluntarily causing grievous hurt.—Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said “voluntarily to cause grievous hurt.” Explanation.—A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing him¬self to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind. What is a Fracture? As was held in Hori Lal and Another vs State Of U.P[8], fracture has not been defined in the penal code. In the case of Po Yi Maung v. Ma E Tin[9], that the meaning of the word fracture would imply that there should be a break in the bone and that in the case of a skull bone it is not merely sufficient that there is a crack but that the crack must extend from the. outer surface of the skull to the inter surface. In Mutukdhar Singh v. Emperor[10] it was observed that if the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extent of the cut, whether a deep one or a mere scratch on the: surface of the bone, it will be difficult to infer that the injury is a grievous hurt within the meaning of s. 320 of the Panel Code. Considering these two rulings, the Hon’ble Apex Court held that both these assumptions are misleading. And it was held that It is not necessary that a bone should be cut through and through or that the crack must extend from the. outer to the inner surface or that there should be displacement of any fragment of the bone. If there is a break by cutting or ,splintering of the bone or there is a rupture or fissure in it, would amount to. a fracture within the meaning of cl. 7 of s. 320. What we have to see is whether the. cuts in the bones noticed in the injury report are only superficial or do they effect a break in them. [8] 1970 AIR 1969 [9] A.I.R. (1937′) Rang 253 [10] A.I.R. (1942) Pat. 376 Whether tooth is ‘instrument’, within the meaning of Sections 342 and 326 The Hon’ble Supreme Court in Shakeel Ahmed vs. State[11], Delhi held that the teeth of the human being cannot be considered as a deadly weapon as per the description of ‘deadly weapon’ enumerated under section 326 IPC. Thus, the offence committed by the present accused petitioner cannot be escalated to section 326 IPC. The counsel for the petitioner contended that the learned trial court, while relying upon the judgment of this Court held[12] that the injuries by the teeth comes under the provisions of section 326 IPC, whereas in the light of the law laid down by the Hon’ble Supreme Court in the above referred case, the judgment relied on by the learned trial court cannot be said to be a good law. NOTE:-Ratio laid down by the Hon’ble Allahabad High court in Jamil Hasan’s case is now NOT a good law wherein it was observed grievous injury caused by human teeth comes under section 326. The Primary function of human teeth is to bite food, to cut it by the incisors, canine, the premolar and the molar, and to reduce it into pieces and to render it into pulp masticate and then let the system swallow it for easy digestion. The purpose is thus biting or cutting. Man uses it as a means or agent for that purpose, that is to say as an instrument for biting, cutting, gnawing or grinding. But there can be no denying the fact that human teeth can be and are used as a weapon of attack or defence. It is a matter of common experience that urchins usually resort to teeth biting as a weapon of attack and defence. Women in distress, when over-powered and rendered helpless also indulge in the same manner of attack or defence. Human hands can be used as an instrument for causing hurt and even grievous hurt[13] . A direct authority is furnished by Chaurasi Manihi v. State of Bihar wherein his lordship Untwalia. J. held that tooth is an instrument for cutting and serves as weapon of offence and defence and. consequently, an injury caused by teeth bite would be an offence under Section 324 or 326 depending upon whether the injury is simple or grievous. This view is agreed by the Hon’ble Allahabad High Court in Jamil Hasan vs The State,[14] Shakeel Mohd vs State[15], wherein tooth is considered to be dangerous weapon to attract sections 324 and 326 of IPC. The essential ingredients to attract Section 326 are: Section 326 speaks of causing grievous hurt by means of any instrument for shooting, stabbing or cutting. Hon’ble Gujarat High Court held, an offence under section 326 has the following essential ingredients: [11] (2004) 10 SCC 103 [12] 1990 WLC (UC) 59 [13] Jamil Hasan’s case, 1974 CriLJ 867 infra [14] 1974 Cri LJ 867. [15] (2004) 10 SCC 103 “(i) That the accused caused grievous hurt to any person; (ii) That such hurt was caused voluntarily; (iii) That such grievous hurt (as contemplated under Section 320) was caused by any means given under Section 324 I.P.C.” To prove an offence under section 326 IPC, the prosecution is to establish (a) that the accused caused grievous hurt as contemplated in Section 320, I.P.C. (b) that the accused caused it voluntarily as envisaged in Section 322, I.P.C. (c ) that causing of such grievous hurt was made by means of an instrument for shooting, etc., or by means of any poison, etc., or by means of any substance which it is deleterious to the human body to inhale, etc., or by means of any animal. In the case of Prabhu vs State Of M.P (2008), the Apex court held that before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 must be strictly proved, and the eighth clause is no exception to the general rule of law that a penal statute must be construed strictly. As was held in Hori Lal And Anr vs State Of U.P[17], in order to justify conviction under s. 326. injuries must satisfy the requirements of cl. 7 or cl. 8 of s. 320 of the Indian Panel Code, otherwise they will be treated as simple injuries. Clauses 7 and 8 of s. 320 I.P.C. provide that an injury could only be designated as grievous if it is (l) a fracture or dislocation of a bone or tooth, or (2) any hurt which endangers life or which causes the sufferer to. be ,during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

THE CRIMINAL LAW (AMENDMENT) ACT, 2013:- Because of recommendation of His lordship Verma’s Committee, the Act, which is known as the Criminal Law (Amendment) Act, 2013, has been brought about several significant changes to the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973.

Acid Attacks :- The Amendment has made special provisions for acid attacks. Acid has been defined as any substance which has a corrosive nature; it may include bleach, bathroom and toilet acid, Harpic, etc. Under the new section 326A a person who throws or administers acid on another person and causes damage or deformity is liable for an imprisonment that is not less than ten years, and may extend to life imprisonment. Any fine that is collected under section 326A is granted to the victim for medical expenses. An attempt to throw acid upon a person is met with imprisonment of up to seven years, but not less than five years for the attacker, under section 326B. Is Section 324 of IPC Compoundable? In the Code of Criminal Procedure (Amendment) Act of 2005 , Section 324 IPC (causing hurt by dangerous weapons or means), which by all relevant standards qualify as a compoundable 1970 AIR 1969 Act No. 25 of 2005 effective from 23.06.2006 offence, was omitted. In Diwaker Singh vs. State of Bihar, the Hon’ble Apex Court made an observations which are extracted here under: “Further, we are of the opinion that Section 324 IPC and many other offences should be made compoundable’’. The Law Commission in its 154th and 177th Reports recommended that the offences punishable under section 324 and 325 IPC together with several other offences may be shifted to the Table appended to Section 320 (1) so that it can be compounded without the permission of the Court. The Law Commission in its 237th Report also recommended that the offence punishable under section 324 IPC can be compounded. Of course, under section 320 of the Code of Criminal Procedure,1973, this offence is non-compoundable. But, in the State of Andhra Pradesh, according to a recent judgment reported[18], Darapuneni Raj Kumar Vs State of Andhra Pradesh, a different view has been expressed that this offence can be compounded if both parties are agreed for compromise. The Hon’ble High Court of Andhra Pradesh clearly held that section 324 of IPC can be compounded with permission of the court by the injured.

CONCLUSION:- ‘Hurt’ is a harm, wounding, pain, soreness, throbbing, discomfort, smarting, stinging, aching, pangs. In all criminal courts, most of the cases are ‘voluntarily causing hurt’ cases. When there is a amicable settlement between the parties in non-compoundable hurt cases like 324 and 326 IPC, it is evident from the rulings of our judiciary that lenient view is being taken. The approach of the Hon’ble Supreme Court of IPC in the cases of B.S. Joshi vs.State of Haryana; Nikhil Merchant vs. CBI and Manoj Sharma vs. State are illustrative of this approach. The Law Commission in its 237th recommend that Section 324 IPC should be reinducted into the ambit of section 320 CrPC and it should retain its original position in Table 2 appended to sub-section (2) thereof. Medical documentary evidences like medicolegal reports on hurts prepared by the medical practitioners are very important for the courts in making their legal judgments. The type of wounds and weapons, legal categories of hurts and their ages must be specifically noted in the injury reports: Medicolegal training and experiences strengthen the abilities of the medical expert witnesses. In my view, to reduce pendency of these cases, it is the duty of the Government of India to take immediate steps to amend section 320 of Cr.P.C to compound section 324 of IPC cases. The victim may have received compensation from the offender or the attitude of the parties towards each other may have changed for good. The victim is prepared to condone the offensive conduct of the accused who became chastened and repentant. Criminal law needs to be attuned to take note of such situations and to provide a remedy to terminate the criminal proceedings in respect of certain types of offences. That is the rationale behind compounding of offences. Incidentally, the compounding scheme relieves the courts of the burden of accumulated cases. Be sure to taste your words before you spit them out. I conclude this remembering the great words of Buddha, ‘If you truly loved yourself, you could never hurt anyone.’ 2015(1) ALD (Crl) 280