by Aggarwals Associates | Jun 29, 2022 | General
Defamation is both a criminal as well as a civil offence in India. Defamation as a civil offence is punishable under the law of torts, wherein the accused person is punished through the award of damages. While in criminal law, defamation is codified under the Indian Penal Code, 1860, hereinafter referred to as IPC, under which the accused has to go under the imprisonment prescribed by law. Before moving ahead, it is imperative to know the meaning of defamation.
What is defamation?
In simple terms, defamation is saying or writing something about any person that hurts the reputation of such person. It can either be written or oral. In legal language, defamation is of two types one is libel and another is slander. Libel is a written or published defamatory statement, whereas slander is defamation that is spoken by the accused person. Markedly, in both cases, the defamatory statement should converse to a third party.
What are the elements of defamation?
The rudimentary elements of defamation are given below:-
- The presence of defamatory content is required. Such content must injure the reputation of another person by exposing such person to hatred, contempt or ridicule.
- The claimant should be identified in such a defamatory statement. The content must clearly address a particular person or a very small segment.
- There must be a publication of the defamatory statement either in oral or written form.
What types of remedies are available?
In India, making disparaging remarks against someone is a civil and criminal offence. Therefore, an individual whose reputation got damaged can avail of remedies under both the laws.
Civil Remedy: – The remedy for defamation in civil law is provided under the Law of Torts. In a civil defamation case, an aggrieved person can move to the court to seek damages in form of monetary compensation from the accused. Once all the conditions of defamation as mentioned hereinabove are satisfied, a defamation suit subsists, and the wrongdoer has to take defense. If he/she fails to lead supporting evidence, the suit is decided in favour of the victim.
Criminal Remedy: – Under criminal law, the remedy is available under Sections 499 to 502 of IPC. Under which, a wrongdoer can be punished with simple imprisonment up to two years, or with a fine or with both. In a criminal case, the intention to cause defamation is a crucial element. In absence of intention, the knowledge that the said publication is going to harm someone’s reputation,
What are the exceptions to defamation under criminal law?
There are ten exceptions to defamation listed in Section 499 of IPC, the first of which is ‘the defence of truth.’ The trust must meet two requirements in order to be a viable defence in a defamation lawsuit. It must be factually accurate and it must be in the public interest. In general, the alleged defamatory remark ceases to be disagreeable if it is based on a public document, including court records. The following are the additional exceptions:-
- Public servant’s behaviour in public.
- Any person’s behaviour in relation to a public issue.
- Publication of court proceedings reports.
- Court’s decision on the case’s merits or the conduct of the witnesses and other parties involved.
- Merits of public performance.
- Censure passed in good faith by a person in a position of legitimate authority.
- The accusation made in good faith to the appropriate party.
- In good faith, a person makes an accusation to protect their own or another person’s interests.
In concluding words, to avoid liability under the aforementioned criminal defamation statute, publishers, filmmakers and other media platforms as well as individuals who publish content must be aware of it. A number of publications, films and television programmers have been outlawed in India due to their defamatory material. In the light of the aforementioned, it is always recommended that parties exercise caution and conduct a legal assessment of their content to identify any defamation issues and resolve them before publishing.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Jun 21, 2022 | General
Disputes regarding the grandchildren’s rights on grandparents’ property have been a common issue for ages. Therefore lawmakers had to specify the inheritance law regarding the ancestral property. The right of grandchildren to take over their grandparents’ property is determined as per the applicable law of succession. However, there is no uniform law of inheritance. Inheritance laws are primarily governed by religious backing. Since succession and inheritance are subject to numerous individual laws, depending upon the religion. To illustrate, Hindus have separate prevailing principles while other religions follow their own civil laws for dividing property.
What is the meaning of inheritance?
In layman’s language, it consists of rights be it in money, property and other financial assets, which an individual acquires after the death of a relative. While in legal terms, a person can succeed in or inherit one’s property in two ways i.e. testate and intestate. When an individual dies after leaving behind a Will regarding the distribution of his/her property, then said the transfer of property is called testamentary succession. On the other hand, if a person dies without making any Will, then his/her property is divided among his/her heirs through the law of intestate succession.
Hindu Law
As per Hindu law, a property can be either ancestral or self-acquired. Therefore, before determining the right of grandchildren on their grandparents’ property, it is crucial to understand the nature of the property whether it is self-acquired or ancestral.
Rights of grandchildren in ancestral property: –
Before putting light on the rights of grandchildren over ancestral property, it is important to know about the meaning of ancestral property. A property that passes undivided down up to four generations of a family is known as ancestral property. Therefore, any property which is inherited by a Hindu by his father, grandfather, or great grandfather comes under the definition of ancestral property.
Hindu law identifies the concept of coparceners, which is a small unit within a joint Hindu family and made of male lineal descendants of four generations. Nonetheless, after amendment in the Hindu Succession Act, hereinafter Succession Act in 2005, daughters are also included as coparceners along with sons.
Moving ahead, in ancestral property, the coparcener has a birthright. Therefore, if the grandchild is a coparcener, he/she is vested with birthright in the ancestral property belonging to the grandfather. Rights of grandchildren in self-acquired property: –
A property that is purchased by a person from his own income, receives as a gift, a share of property acquired as a result of partition in ancestral property, or acquires as a legal heir through a testamentary document, is known as self-acquired property. Being an absolute owner a person can dispose of such property according to his/her desires. Hence, grandchildren have no birthright in self-acquired property. According to Succession Act, the self-acquired property of a Hindu male who dies without a will may be dissolved by succession among four types of heirs. These are given below:-
- Class I heirs
- Class II heirs (If no one is there in Class I)
- Agnates (If no one is there in Class II)
- Cognates (If no one is there in agnates)
To exemplify, if the grandfather dies without bequeathing will in favour of any person, the property belonging to him will be divided as per Section 8 of the Succession Act (As mentioned above). Under these circumstances, grandchildren will not get any share in the property as grandchildren are not included in the list of Class I heirs. It is the father i.e son of the grandfather who will get a share out of the property being a part of the Class I heirs’ list.
Nevertheless, if the father expired before the demise of the grandfather, grandchildren become entitled to the share of such property as children of predeceased son are included in Class I heirs.
Other Personal Laws
Under Muslim law, there is no difference between self-acquired property and ancestral property. Basically, the inheritance of grandchildren relies upon their mentioning in the Will executed by the grandparent.
Notably, in absence of any personal law for a succession of any particular religion, the provisions of the Indian Succession Act will apply. Similarly, Sections 31 to 49 of the Indian Succession Act dealt with Christian’s succession. Indian Succession Act recognizes three categories of heirs i.e. Spouse (widow/widower), lineal descendants (descendants born out of lawful marriage for e.g. children, grandchildren), and kindred or consanguinity (blood relations through a lawful marriage).
While Sections 50 to 56 of the Indian Succession Act deal with Parsis’ succession, wherein according to Section 53 of the Indian Succession Act, if an intestate dies leaving behind a deceased son, then the widow and children of the deceased son take a share out of the intestate’s property. Hence, in both segments i.e. Christian and Parsis, grandchildren have a right to claim a share in the grandfather’s property in certain situations.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Jun 6, 2022 | General
“Bail is rule, jail is exception”
In general terms, bail is a provisional release of an accused under legal custody by undertaking a promise to put an appearance before the court whenever required. The right of default bail builds up when the investigating agency fails to complete the investigation within a specified time. The provision regarding default/statutory bail enshrines under Section 167 (2) of the Code of Criminal Procedure, hereinafter referred to as Cr.P.C. It provides down that upon the expiration of a particular period, if the charge sheet has not been filed by the investigating agency, the accused immediately becomes entitled to seek bail.
It is marked here that the accused can claim it as a matter of right, since it is not subject to the discretion of the court.
When does the accused become eligible to seek default bail?
The right of default bail accumulates where it is not feasible for the police to complete the investigation within 24 hours. As per Section 167 of Cr.P.C. under these circumstances, the police officer shall produce the accused to the nearest Judicial Magistrate and seek orders for either police or judicial custody. For most offences, the time period for completion of the investigation and presenting the final report before the court is 60 days. Nonetheless, for the offences which attract the death penalty or imprisonment for life, or punishment of not less than 10 years, the time period for completing the investigation is 90 days.
Generally speaking, an accused cannot be kept behind bars beyond 60-90 days in case of not filing a final report before the court.
What is the time limit in special enactments?
The time limit of 60-90 days is for penal offences. The special enactments like the Narcotic Drugs and Psychotropic Substances Act, 1985, and the Unlawful Activities (Prevention) Act, 1967 provide more time for the investigating agencies to complete the investigation. To illustrate, under the Narcotic Drugs and Psychotropic Substances Act, the time period is 180 days, which can be extended up to one year.
Similarly, as per the provisions of the Unlawful Activities (Prevention) Act, the default limit is 90 days, which could be deferred to another 90 days. Remarkably, this extension can be granted only upon the report submitted by Public Prosecutor stating the developments made in the investigation and mentioning reasons to keep the suspect in continued incarceration.
Computation of time period:
In Rakesh Kumar Paul versus State of Assam, (2017) 15 SCC, the Hon’ble Top Court held that while computing a period of 60 or 90 days of custody, the day on which the accused was remanded to the judicial custody should be excluded, and the day on which challan is filed in the court, should be included.
Is it a fundamental right?
The Hon’ble Apex in its recent pronouncement in a case titled as Bikramjit Singh versus State of Punjab, Criminal Appeal No. 667 of 2020, observed that “the right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167 (2) of the Code, but is part of the procedure established by law under Article 21of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167 (2) are fulfilled.”
Can the accused be asked to deposit money?
The answer to this query is negative since the court cannot impose harsh conditions like depositing money on the accused while granting default bail. The Hon’ble Supreme Court in Saravanan versus State represented by Inspector of Police, Criminal Appeal No. 681682 of 2020, clarified the said proposition by observing that imposing such condition while releasing the accused on default bail would frustrate the very object and purpose of default bail under Section 167 (2) Cr.P.C.
Conclusion: –
The right to statutory bail proceeds under the assertion that the accused must enforce his/her right to be released on default bail by way of filing an application. The Magistrate’s exercise of power depends upon the application moved by the accused. There are two positions when the right to default bail would be extinguished. Firstly if the accused fails to furnish bail bonds or comply with the terms and conditions of the bail order within a given time period. Secondly, if the accused fails to apply for statutory bail upon the expiry of the specified time period, and subsequently, a charge sheet or application seeking an extension of time is filed by the prosecution.
Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S Nagar, Mohali
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