Real-Money Gaming (RMG) is basically the act of betting or wagering or investing, money or any other monetary entity, on any sort of contest in which one party wins while the other one loses, so as to claim the winners prize and earn more than what was originally invested or betted or wagered. So it is quite imperative that RMG is a sophisticated business structure. In a normal and typical RMG setup, there is a manager or operator who overlooks the entire setup, a pool of investors who are hoping to maximise their profits, a pool of money that contains all the investments from each investor. Now, the investors, as well as their investment, are divided into different groups based upon the contestant they wager upon or the outcome of the contest that they wager upon, depending upon the situation. Finally, when the contest is complete and the winning contestant has been announced, the entire pool of investment money is divided among the investors who had wagered upon the winning contestant, proportionate to their wager amount. Thereby, the investors who had wagered on the losing contestant lose the entirety of their investment. The most common examples of such a setup include, Horse race betting, Poker, Cricket betting, Football Betting, Online game betting, etc.
It is critical to understand here that the RMG has several angles. Upon preliminary glance, it might seem that RMG is just another gambling contraption. This view might be substantiated by the fact that RMG shares many features of typical gambling mechanisms like winner-takes-all, pool of money, addiction to earn-money-fast idea, etc. , however it is crucial to understand and analyse the concept of RMG without being obliged to any such prejudices.
RMG may be classified into 2 divisions depending upon the factors that determine the outcome of an RMG. The First division includes the concept of ‘game of chance’ in RMG, wherein the RMG involves such a contest, the outcome of which is totally dependent upon the sheer luck of the investor. For example, Roulette, slot machines, etc. The Second division includes the concept of ‘game of skill’ in RMG, wherein the RMG involves such a contest, the outcome of which is possible to be calculated and predicted out of sheer skills, intuition, experience and aptitude of the investor. For example, Poker, Fantasy sport betting, etc. Therefore, we can see that, RMG does not absolutely imply a setup based upon the principles of gambling, it can also include a mechanism of business that rewards the investor who has higher skill or aptitude in that particular game.
It seems, therefore, that imposition of any restrictions upon RMG would not be a reasonable choice since the same might hamper the opportunity of many skilled and able investors to earn what they deserve. The same logic has been adopted by many countries worldwide including USA, EU, UK, and subsequently they have legalised the business structure of RMG by adding certain regulations and safety measures for the investors. RMG operators go above and above to safeguard the user when it comes to “trust” and “bots,” employing “Random Number Generation” (RNG) methods that have been independently verified by a third party as a standard instrument for guaranteeing procedural fairness of cards. They also include very powerful machine learning-based “anti-fraud” algorithms that ensure high game integrity and player safety against intra-player collusion. Every participant’s KYC has been verified, and the industry is moving to “video KYC,” which will verify the end user’s identity and age.
Further, Skill-based games like “Poker” are gaining in popularity, says Shivanandan Pare, Executive Director & CEO of Gaussian Networks, since they have a good possibility of making some money. It truly is a component of a bigger ecosystem. According to him, the scale of the global gaming market has already surpassed that of the music and film industries combined. I think the decade for streaming websites would be 2010–2020, while the decade for gaming would be 2020–2030. According to a joint report by Sequoia India and BCG, the market for mobile gaming now generates around $1.5 billion in revenue, and by 2025, it is anticipated to reach $5 billion. Given that it has shown the aptitude and skill sets necessary to meet international gaming standards, India will soon be seen as one of the industry’s leaders. Gamers are progressively entering competitions to showcase their gaming prowess and to represent their nation internationally. Mobile gaming has enabled many Indian players and streamers to support themselves and mix their interests with their jobs.
Therefore, it is quite reasonable that India must step into the shoes of aforementioned countries and become a leading player in RMG. Under the Section 30 of The Indian Contract Act, 1872, any agreement made by way of wager is void in nature and unenforceable in the Indian Courts of Justice. However, the same section provides an exception to the wagering on horse racing. This shows that the enactment is strictly in favour of the second division of RMG that includes the concept of ‘game of skills’. Being a matter of the State List according to the Schedule 7 of The Constitution of India, gaming and gambling laws in India are governed by regulations that vary from state to state. This would imply that something that is legal in one state may be illegal in another. Gambling is severely banned in India, with the exception of a few specific activities like lotteries and horse racing. While proponents of regulated gambling contend that it may be a significant source of state revenue, critics of gambling assert that it promotes crime, corruption, and money laundering.
In India, there are two types of games: games of skill and games of chance. The state of AP vs. K. Satyanarayana case from 1968 found that rummy is a game of skill. However, the Court stated in its ruling that it might constitute a crime under AP legislation if there is gambling present or if the gambling establishment is profiting from the game of rummy. SC also noted that the three-card game, often known as brag, flush, and other names, is just a game of chance. This rationale was reflected further in the judgements, M.J. Sivani v. State of Karnataka (1995) and Dr. K.R. Lakshmanan v. State Of Tamil Nadu And Anr (1996).
Further, In the matter of G. Network Private Limited vs. Monica lakhanpal, the Delhi District Court, after relying upon order 36 rule(1) of CPC, declared that:
Up until December 4, 2017, the question of whether poker is a game of skill or chance was never raised in court. According to the Gujarat Prevention of Gambling Act of 1887, poker is a game of chance and is, thus, considered gambling in the case of Dominance games pvt. Ltd. v. state of Gujarat. Due to the fact that poker evolved from the chance-based game teen patti. Poker wagering or betting entails a stake because it is an essential component of the game.
In a recent case, Justice Sanjay Kishan Kaul and Justice Dinesh Maheshwari, members of the Supreme Court’s review panel, had approved Dream11’s fantasy sports structure as a game of skill. Varun Gumber had filed a review case, which the court summarily dismissed, asking for the reopening and review of the Supreme Court’s dismissal order relating to the 2017 Punjab & Haryana High Court decision declaring fantasy sports to be a game of skill.
The Supreme Court ultimately rejected seven petitions. Three of these petitions centred on the question of whether the GST should be applied based on determining whether fantasy sports qualify as betting and gambling. The Supreme Court determined in one decision that only the question of whether GST should be applied by courts can be raised in relation to fantasy sports’ legitimacy as a legitimate company and game of skill.
Additionally, a court made up of Justice Nariman and Justice Gavai dismissed the petition on legality in July 2021 and stated that the problem of fantasy sports being a game of skill rather than gambling or betting is no longer res integra, meaning the legal issue has been definitively addressed. In September 2022, Justice Gavai and Justice CT Ravi Kumar issued an order based on the 2021 order to reject a further SLP on the subject. Varun Gumber filed a review petition, claiming that the Punjab and Haryana High Court’s decision contained an obvious mistake. After careful consideration, the petition was dismissed on the merits as well as for tardiness, with the bench observing that the judgements appear to be error-free. Accordingly, the order stated that no revisiting of the subject is necessary.
Senior Attorney Gopal Jain offered the following statement in response to the latest development: “It is crucial to note that the Supreme Court of India dismissed this review petition on the basis of merits and unequivocally said that there was no mistake apparent in the decision of the Hon’ble High Court of Punjab and Haryana. The legality of the fantasy sports format provided by Dream11 in the nation has now been examined by a total of 9 Supreme Court justices, who have all consistently concluded that it is an activity protected by Article 19(1)(g) of the Constitution as a game of skill. It should be emphasised that the argument against categorising fantasy sports as gambling for the purposes of taxation has already been resolved, leaving the court to consider simply whether or not the GST should be applied to fantasy sports as a legal form of commerce. As a result, any attempt to classify Fantasy Sports as “betting” in the eyes of the law is no longer under discussion because the matter has been decided upon based on both the facts and the law”.
The Rajasthan High Court decided that Fantasy Sports did not constitute gambling in 2019 in the Ravindra Singh Chaudhary vs. Union of India case since its players would require abilities like those of a genuine sports team management. The State’s prohibition on playing online card games like rummy, poker, etc. has been overturned by the Tamil Nadu High Court in a recent decision. These favourable advances about the distinction between “games of chance” and “games of skill” will go a long way toward establishing a narrative in favour of gaming as opposed to gambling.
The latest development in this regard is the amendment done by the Ministry of Electronics and Information Technology (MeitY) in the IT Rules, 2021, that were scheduled to be executed on April 6, 2023. The Amendments mark a turning point for India’s real money online gambling sector, which has long sought national regulations in place of state-specific legislation. While the Amendments offer centrally administered rules, they do not take the role of state-level anti-gambling legislation. As a result, State-level activity may continue despite the Amendments. In accordance with the Government’s overarching goal of eliminating prescriptive legislation and improving the ease of doing business in India, the Amendments propose a light-touch, co-regulatory framework between MeitY and registered self-regulatory bodies (SRB). The Amendments differ from the prior draft proposed by MeitY in January (“Proposed Amendments”) in that they weaken or loosen a few requirements for online gaming intermediaries (or “OGI”). However, other requirements that the sector had criticised in the Proposed Amendments, such strict KYC standards, have been kept.
Real money gaming providers are required by MeitY’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, to register with a self-regulatory body (SRB) that will evaluate whether the game is “permissible” or not. In a press conference on Wednesday, Minister of State for Electronics and Information Technology Rajeev Chandrasekhar said that three SRBs will shortly be acknowledged. “There will now be more governmental oversight on how SRBs function,” Shambhavi Ravishankar, an advisor at Ikigai Law, told The Hindu. Most of the standards in the guidelines are already included in the industry’s best practices for responsible gaming. According to Mr. Chandrasekhar, if these games are not declared “permissible,” they will not be covered by the amendment and the States may be able to retaliate against them for being betting or gambling sites. As a result, games that are approved will be permitted to function lawfully, even if they need deposits in the hopes of winning. Mr. Chandrasekhar stated that video games without monetary exchange do not require consulting an SRB, allaying the conventional gaming sector’s worries about the current form of the Rules. The real-money gambling sector embraced the change. Joy Bhattacharjya, the director general of the Federation of Indian Fantasy Sports (FIFS), described the Rules as a “pivotal moment” for the sector. As our members begin the compliance process, “We look forward to engaging with MeitY to seek necessary clarifications,” the speaker stated. The I&B Ministry’s advice should not apply to real money games that are validated by SRBs and are thus permitted by IT standards, according to Ms. Ravishankar.
Marriage is a social legal contract between a spouse who expects to live with each other for the rest of their lifetime. A ceremony is arranged to establish that they have taken a decision to live together. It is believed that those ceremonies will increase their bond. In our life everything doesn’t happen as we planned. There are couples who would like to end their marriages. They may have physical or mental problems in which leads them to take this decision.
These decisions may be mutual or from one side alone. For such terminations, they approach court expecting a legal dissolution of their marriage. We call that as Divorce. There are two types of divorce mutual divorce and contested divorce. But court can’t grant divorce for every person who claims for it. There is a procedure for everything. We have these procedures because marriage is not only about two people.
Marriage involves two families and children of the spouse. We should consider the future of the children, family and spouse. As we all know every religion has their own rituals, events and believes for marriages, they also have their own methods and rules for divorce too. Our Indian courts strive hard to unite the spouse for regulating our society. But there may be circumstances where a person experiences harassment from their own partner.
In this situation, we can’t expect the victim to live with his/ her spouse for their life. Our courts are very keen while deciding to whom divorce should be given. There are few Acts that governs marriage and divorce in India. They are the Family Courts Act, 1984, Indian Divorce Act, 1869, Hindu Marriage Act, 1955, etc.
But what are the causes of divorce? What are the significant of divorce? What maintenance the partner will be receiving? Who will get the custody of the child? How effective is the counselling process prescribed by the court? As we are also somehow connected to this institution called marriage, every citizen of India should be aware of it. Our paper will throw lights on the basics of Indian Divorce laws that every person should know.
Divorce: Personal Law Perspective
Religion plays a major role in framing personal laws. Even though we are governed by our own personal laws, these laws get their source from their own religion. It is important to understand the concept of divorce in early days with respect to a religious phenomenon. In our country, 3 religion plays a major role namely, Hinduism, Christianity and Islam.
Hinduism: According to Hinduism, marriage is a not a contract, it is a samskara or rite of passage, Thus, there is no space for revoking marriage in Hindu culture. When a Hindu couple performs sapthapthi (seven steps around the fire) they are tied by a strong bond. From Hindu mythology it can be observed that there is no concept of divorce in early Hindu culture but there are some domestic misunderstandings which lead to judicial separation, Lord Sita was deserted by Lord Rama when she is pregnant, here we can observe that a Judicial separation was considered as the solution for marital problems in ancient Hindu culture.
Divorce, however, is not seen between God and his consort. In Vishnu temples, Lakshmi shrines are always separate from Vishnu’s. In Dwarka, Rukmini stands separate from Krishna. In Pandharpur, Satyabhama stands in a shrine separate from Krishna. These examples clearly say that there is no space for divorce in ancient Hindu tradition and judicial separation has its own history in Hindu culture is so far concerned.
Christianity: The concept of divorce can be traced in the Bible but it was interpreted in two different ways by the two different branches of Christianity. The Roman Catholic Church never accepts the concept of divorce, according to them, marriage is a strong bond which can’t be broken. A marriage can only end when one of the partners dies. A civil divorce may be granted to a Roman Catholic couple but they can’t remarry in Roman Catholic Church Since their previous marriage is still exist in the eyes of God. On the other hand, the Church of England permits divorce for a couple when the marriage is truly broken, they believe in the concept of divorce. According to them, marriage is a true bond and it can be cancelled when it can be repaired. In general, Christians believe in marriage and they avoid divorces, even when they face marital difficulties, they try to solve it as they promise before God to stay together.
Islam: Islam religion gave a different view on divorce, Divorce is granted when the marital bond between the couple is completely broken, which can’t be repaired. The Quran establishes two further means to avoid hasty divorces.
For a menstruating woman, Al-Baqarah 2:228 prescribes the waiting (Iddah) period before the divorce is finalized, as three-monthly periods. Similarly, for a non-menstruating woman, At-Talaq 65:4 prescribes the waiting period. From this it can be observed that the religion gives plenty of time to reconcile their marital bond, divorce is only granted when there is no chance for reconcile.
Some of the commonly known form of divorce in Islam religions are:
By Husband- Talaq-Ul-Sunnat, Talaq-Ul-Biddat, Ila and Zihar
By Wife- Talaq-i-Tafweez, Lian and Khula
My Mutual Agreement- Mubarat
On the other hand, in the early days, the Holly Quran provides many benefits to Muslim men, with some restrictions. Particularly with respect to the concept of divorce, Men have more powers than Women, Women’s consent is not attracted in many Divorce cases. But latter Gender Equality was up held by the Indian Judicial System in the famous case Shayara Bano, they struck down the concept of Triple Talaq which means Instant divorce.
Causes and Needs of Divorce
A statistic says that one out of a hundred marriages in India end in divorce. Though it is comparatively low than the rest of the countries, it’s quite a large number. Now let’s see the causes of these divorces.
According to Section 10 of Indian Divorce Act, 1869 and Section 13(1)(i) of The Hindu Marriage Act, 1955, husband or wife could petition for divorce if they found that their partner has involved in adultery. This is required because the person affected may no longer get any sexual satisfaction, love and affection from the partner who went with another person for the same needs. But there are no provisions regarding adultery in Muslim laws.
In the case of Revathi vs Union of India, the court held that neither the husband nor the wife could not prosecute the other for the purpose of adultery. Recently in the famous case of Joseph Shine vs Union of India, adultery was decriminalized as they thought that gender equality is important in adultery too.
Maintenance Rights of Divorcee
Maintenance is the concept which comes into the play when a couple approaches the court of justices for divorce. Since Maintenance has it is own link with divorce, Maintenance is also different in all the three different religions. Maintenance is a concept which allows one person to get financial support from his/ her spouse even, after divorce. Factors like the monthly income of husband and wife, the financial status of husband and wife are considered by the court before granting Maintenance. Generally, the court keeps an eye on the maintenances of the children also while granting the maintenances.
The husband and wife have to provide financial support to the minor child, even after divorce. It can’t be generalized that wife is the party who gets the maintenance always, there are some legal provisions which allows a man to get maintenance from his wife after divorce. Section 24 of Hindu marriage act says that maintenance pendente lite and expenses of proceedings can be granted in favour of both husband and wife and Section 25 of Hindu Marriage act allow the court to grant lifetime maintenance to both Husband and wife whose financial status is low. Delhi High court made an observation in a case that when the husband has no self-income to run his life can claim maintenance from his wife after divorce.
Bombay High court made different interpretation which gives more clarity section 24 of Hindu Marriage Act, it was held in a case that her husband is entitled to get maintenance under Section 24 of the Act. In a case, it was held that since the wife is in employment, the husband cannot make himself wholly depend on her income through a device under Section 24 of the Act. In the absence of any handicap or impediment to earning, to grant maintenance to such able-bodied person equipped with skill would promote idleness, which is opposed to the spirit of Section 24 of the Act.
Maintenance in case of women is different Women has a special right called Right to Streedhana Streedhana is the property gained by a woman at the time of marriage, it is different from dowry. Women have the full right over these properties even after the divorce.
Maintenance under Hindu Law:
A Hindu couple who got married under the Hindu Marriage Act can get maintenance through the Hindu Adoption and Maintenance Act. The Court is the final authority which can solve the disputes in case of deciding the maintenance amount.
Maintenance under Muslim Law:
According to the Muslim belief, Men has to maintain his wife and family. The term Maintenance under Muslim law is called NAFAQA and it involves lodging, food and sustenance. They are governed by Muslim women (Protection of Rights on Divorce) Act, 1986. A wife can claim a reasonable fair amount from her ex-husband within the prescribed IDDAT period, and Muslim men have to give the promised Dower or Meher.
If the wife is pregnant claim can be made for an amount for at least 2 years from the date of birth of a child. If they had a child in wife’s custody then, the wife can claim maintenance for the child till she remarries or until the child is dependent. The marriage contract may also stipulate the payment of special allowances by the husband, and in presence of these, it becomes the obligation of the husband to pay these to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc.
Maintenance under Christian Law:
Indian Divorce Act comes into play with respect to claim made by Christian couples, according to the Act, the amount of maintenance can’t be more than one- fifth of husband’s income. Maintenance will not be provided if women remarry or found to be chaste.
Overall, it is seen and observed that rights of a woman in divorce in India has been duly protected under all the personal law. Besides the personal law, the rights of a woman in divorce in India is also protected by secular law which will protect a woman irrespective of her religious belief. An instance for this is Protection of Women from Domestic Violence Act, 2005 and Section 125 of Code of Criminal Procedure.
Custody Of Children After Divorce
The termination of the marriage contract through Divorce will never end the bond with their children. The saddest truth is that the real sufferer is the child who is going loose one of their parents.
The real problem of divorce starts when the court grants divorce for the couple who are parents too. The court has to decide the custody of the children of divorced parents. Further, there is need to understand the child property rights after divorce in India. Many ways are identified to solve this problem. In general, The Guardians and Wards Act, 1890 is the act which governs the legal procedure pertaining to the custody/guardianship of children in India. The common 3 types of guardianships are as follows:
The Joint Physical Custody concept was newly evolved concept in which both the parents will have a right to legal custody of the child but one of them will have the physical custody, where the child resides with one parent will be the primary care taker too.
Under this method court decides one of the parents be unfit to take care of the child thus, the court decides to grant the other parent to be the guardian for the child.
Both the biological parents are not going to be the guardian, in such cases court may appoint a person as a guardian of the child under Indian Guardians and Wards Act, 1890.
Every Law relating to marriage, divorce, maintenance, adoption, custody have their base from different religions similarly, these custody rules also have 3 different religious background
Under Hindu Law:
The mother is who usually gets the custody of a minor child if the child is below the age of five and if the child is more than the age of 9 the child’s consent is considered by the court. If the mother is proven to be neglect court may not provide the custody of the child to mother. And if the case is about an older boy’s fathers are given more priority and if it is about the elder girl then the mother is given more priority.
Under Muslim Law:
In Muslim law, Mother is given the Right of Hizanat (right to custody) of her child in all cases. This right will be given to father only when the mother is convicted for any misconduct.
Under Christian Law:
When it comes to a Christian family, both the parents will be given legal authority to be the guardian of the child but the problem arises when it comes to the residence of the child. Court has to decide only about the residence of the child after divorce.
With the divorce, all of your rights and responsibilities towards each other dissolve and you are no more responsible for the events happen in your partner’s life. This can be the devastating situation in your life, but remember that you’re not the only one and moreover, you will be back to your most desired days of freedom i.e., “Singlehood”. Here, the question arises that “how will you compromise to remarry after divorce?” According to the studies, it is found that it gets difficult to trust anyone, believe in the commitments and imagine a happy married life again, but the life must go-on. As far as child property rights after divorce is concerned, the same is governed by personal law of parents as well as the child. There is a separate Article on this subject of property distribution. However, what is important is the fact that child property rights after divorce is duly protected under the personal law as well as secular law of india.
What Does Law in India Says About Remarriage After Divorce?
There is a frequent question which clients ask is “Can you get Married right after a divorce”? Let’s talk about what does law says in India for the remarriage after getting the divorce?
The answer is yes, you can get married right after a divorce. However, in the case of decree of divorce, both the parties have to wait for at least a period of 90 days before tying knot with some other person or getting married again. Further, while answering the question “Can you get Married right after a divorce” one has to keep in mind if the divorce is by consent or by contest.
Section 15 of the Hindu Marriage Act, 1955
Decree of Divorce: 90-days period for the appeal is given to both the parties from the day of decree of divorce and if there is no appeal made during this period, then either of the parties become eligible to remarry after the given appeal period gets over.
Mutual Consent Divorce: But, in case of mutual consent divorce, there is no such limitation for remarrying after the divorce as it has a very genuine reason that the divorce has been already granted on the grounds of the agreement of both the parties, so in such case the question for appeal later doesn’t arise. Here, either of the divorced parties can remarry any day again after the divorce is granted.
Can I sue my spouse after divorce?
Another frequently asked question by client is “can I sue my spouse after divorce”? The answer is yes, you can, for any civil or criminal wrong. However, as far as matrimonial/property issues are concerned, the things are not that simple. In one such kind of case in 2018, the Supreme Court of India has upheld the order passed by the Rajasthan High Court that- “the absence of an ongoing domestic relationship doesn’t stop a court from granting relief to an aggrieved woman. After the Supreme Court’s verdict, a woman can file a complaint of domestic abuse under the domestic violence law against her husband even after their divorce or separation. This was recorded in a marital dispute matter.
The appeal said if the domestic violence law which came into the existence in October 2006, was allowed to be applied retrospectively then it could be misused. Most of the times, the marriage end is antagonistic and the law could be proven as the weapon in the wife’s hand to take the revenge.
At that time, court rejected the appeal and said, “If the aggrieved individual had been in a domestic relationship at any point of time even prior to coming into the force of the Act and was subjected to domestic abuse, the individual is entitled to invoke the remedial measures provided under the Act.”
Now the law has changed which says that, even after the dissolution of marriage, if an ex-husband attempts any kind of misbehave, abuse or violence with his ex-wife such as stalking her, trying to threaten or intimidate her or her family members then that woman can get the protection from the law. She can also knock the door of court if her ex-husband tries to wrongfully ditch her from the shared property or household which is jointly owned by them.
This Article is written by Mr. Pankaj Ailani, an Intern with our law firm, under the guidance and supervision of the Seniors of the Firm.
As per Article 21 of the Constitution of India, “No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India”. It also covers a just and fair trial without any arbitrary procedure, which confers that arrest should not only be legal but also justified. In this context, this article consists of the procedural and constitutional rights of the accused before and after the arrest in India. Except when exceptions are created, the accused person, unless and until provided otherwise, is considered innocent until proven guilty before the court of law.
1. Article 22 of the Constitution of India deals with the protection against arrest and detention in certain cases:
2. Section 50 of the Code of the Criminal procedure (Cr.P.C.) states that the person arrested has to be informed of the grounds of arrest and his right to bail:
3. Section 50-A of the Code of the Criminal procedure (Cr.P.C.) talks about the obligation of the police officer making the arrest to inform about the arrest to a nominated person –
4. Section 55 of the Code of the Criminal procedure (Cr.P.C.) deals with arrests when a police officer deputes a subordinate to arrest the accused without a warrant.
5. Section 75 of the Code of the Criminal procedure (Cr.P.C.) provides that the police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested and, if so required, shall show him the warrant.
A landmark judgment of Joginder Kumar v. State it was held that although the police had the absolute legal powers to arrest a person in a criminal case, every arrest had to be justified. Arrests could not be made routinely, merely on an allegation or a suspicion of their involvement in a crime.
Every arrest should be made after the police officer reached a reasonable satisfaction after the Investigation that the complaint was genuine and bona fide, the accused was complicit in the Crime, and the arrest was necessary and justified.
1. Article 22 (2) of the Constitution of India provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of detention to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
2. Section 57 of the Code of the Criminal procedure (Cr.P.C.) stipulates that the subject to the terms of the arrest, a police officer who arrests without a warrant should produce the arrested individual without undue delay before the Magistrate with jurisdiction or a police officer in charge of the police station.
3. Section 76 of the Code of the Criminal procedure (Cr.P.C.) states that the person who is arrested is to be brought before Court without delay.
As mentioned in Section 57 that such delay shall not, in any case, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
Section 50 (2) of the Code of the Criminal procedure (Cr.P.C.) states that where a police officer arrests without warrant any person other than a person accused of a non-bailable offense, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.
Article 14 of the Constitution of India states that every person is equal before the law means that every person in the dispute shall have equal treatment.
The Supreme Court has held in several judgments that a speedy trial is guaranteed by Article 21 of the Constitution. The right to a speedy trial is first mentioned in that landmark document of English law, the Magna Carta. In the case of Huissainara Khatoon v. Home Secretary, State of Bihar, the Hon’ble court held that the State could not avoid its constitutional obligation to provide a speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure a speedy trial, and whatever is necessary for this purpose must be done by the State.
In Ashim v. National Investigation Agency, Hon’ble Supreme Court held that the deprivation of personal liberty without ensuring a speedy trial is inconsistent with Article 21 of the Constitution of India.
1. Article 22 of the Constitution provides that no arrested person shall be denied the right to consult a legal practitioner of his choice.
2. Section 41D of the Code of the Criminal procedure (Cr.P.C.) provides that when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.
3. Section 303 of the Code of the Criminal procedure (Cr.P.C.) deals with the rights of the person against whom proceedings are instituted. Any person accused of an offense before a Criminal Court or against whom proceedings are created under this Code may be defended by a pleader of his choice.
4. Article 39 A of the Constitution of India states that the State shall secure that the operation of the legal system promotes justice based on equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.
In the landmark case of Khatri v. the State of Bihar, Hon’ble Justice P.N. Bhagwati made it mandatory for Session Judges to inform the accused of their rights to free legal aid and to advise individuals if they are unable to retain a counsel to defend themselves caused by poverty or destitution. In Sheela Barse v. Union of India, the Hon’ble Court ruled that a person’s fundamental right to a speedy trial is contained in Article 21 of the Indian Constitution. Also, in the case of Suk Das v. Union Territory of Arunachal Pradesh, Hon’ble Justice P. N. Bhagwati stated that India has many illiterate people unaware of their rights. As a result, it is critical to developing legal literacy and awareness among the general public and is also an essential component of legal aid.
5. Section 304 of the Code of the Criminal procedure (Cr.P.C.) provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State.
When a confession or statement is made in court, the magistrate must determine whether the announcement was made voluntarily or not. No one can be compelled to speak in court against their will. The right to remain silent is not recognized in any law, but it can be based on constitutional provisions or the Indian Evidence Act. The right to a fair trial is important because it helps ensure that people are treated fairly in court.
Article- 20(2) of the Constitution of India reiterates that no person, whether accused or not, cannot be compelled to be a witness against himself. This act of exposing oneself is the principle of self-incrimination. In the Landmark judgment of Nandini Sathpathy v. P.L. Dani & Others, the Court noted that Article 20(3) existed in the form of general fundamental right protection and was available to every accused person in India. Still, its wording was not very specific about which situations it applied to. Also, no one can forcibly extract statements from the accused, and the accused has the right to keep silent during interrogation.
Section 54 of the Code of the Criminal procedure (Cr.P.C.) stipulates that when a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody, that the examination of his body will afford evidence which will disprove the commission by him of any offense or which will establish the commission by any other person of any crime against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for vexation or delay or for defeating the ends of justice.
1. Section 55A of the Code of the Criminal procedure (Cr.P.C.) deals with the health and safety of an arrested person- It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.
2. Section 358 of the Code of the Criminal procedure (Cr.P.C.) deals with the compensation to persons who got arrested groundlessly-
3. Section 41A of The Code of the Criminal procedure (Cr.P.C.) provides the notice of appearance of arrested person before a police officer.
In Arnesh Kumar v. State of Bihar & Anr, the Supreme Court had inter-alia directed that the notice of appearance in section 41A CrPC should be served on the accused before making the arrest. The Court had issued the direction to prevent unnecessary arrests, which, in the opinion of the Court, bring humiliation, curtail freedom and cast scars forever. The endeavor of the court was to ensure that police officer do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. The Supreme Court also gave the following directions:
The judgment of the Supreme Court in Munawar v. The State of M.P., since the police had failed to issue a notice under Section 41A Cr.P.C., as mandated by the Supreme Court in Arnesh Kumar Vs. the state of Bihar, the applicants ought to have been straightway admitted to interim bail.
4. Section- 46 of the Code of the Criminal procedure (Cr.P.C.) stipulates the mode of arresting an accused person, including submission to the custody by the accused, physically touching the body, or to a body. Except when the person to be arrested is accused of an offense punishable by death or life imprisonment, when the accused person is attempting to resist his arrest by becoming violent and aggressive unnecessarily, or when the accused is trying to flee, the police officer must not cause the death of the accused person while attempting to arrest the person.
5. Section 49 of the Code of the Criminal procedure (Cr.P.C.) stipulates that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
In D.K. Basu v. State of West Bengal Supreme Court held that under Section 49, the police are not permitted to use more restraint than is necessary to prevent the person’s escape. The court further stated that the police officer would be held in contempt of court and subject to a departmental inquiry if they could not carry out his duties correctly. Any High Court with jurisdiction over the case above may be approached for such a dispute.
6. Section 41B of the Code of the Criminal procedure (Cr.P.C.) states the arrest procedure and duties of the officer making an arrest. Unless the memorandum is attested by a member of his family, inform the person arrested that he has a right to have a relative or a friend named by him be informed of his arrest.
7. 41D of the Code of the Criminal procedure (Cr.P.C.) stipulates that when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.
Modern constitutional law has come a long way in terms of protecting and safeguarding the rights of persons guilty of crimes. Patrol officers are especially prone to making mistakes since they serve under public scrutiny and are expected to achieve speedy results. India has a significant problem with illegal arrests and custodial deaths, primarily caused by unlawful arrests. According to India’s legal system, which supports the concept of “Innocent until proven guilty,” an accused person has certain rights as an arrested person that are untouched whenever a police officer knocks on his door to make an arrest. The Supreme Court of India in D.K. Basu v. West Bengal is not being effectively implemented. There should be proper execution of provisions and guidelines stated in this case to ultimately assist in decreasing the proportion of illegal arrests and resulting custodial deaths.
As we all recollect that the Finance Act 2022 was passed with some changes to the Finance Bill introduced on February 1, 2022.
The Bill stated that a tax of 30% would be charged on income arising from Virtual Digital Assets w.e.f. April 1, 2022 and TDS @ 1% will become applicable w.e.f. July 1, 2022.
Pursuant to the above, the Central Board of Direct Taxes, Ministry of Finance, Department of Revenue, on June 22, 2022, came out with detailed guidelines for removal of difficulties under Section 194S(6) of the Income Tax Act, 1961.
Chapter XVII of the Income Tax Act, 1961 deals with provisions relating to collection and recovery of tax. A new Section (Section 194S) was introduced vide Finance Act, 2022 which provides for Payment on Transfer of Virtual Digital Assets. The said provision will become applicable for FY 2022-23 w.e.f. July 1, 2022.
The new section mandates a person, who is responsible for paying to any resident any sum by way of consideration for transfer of a virtual digital asset (VDA), to deduct an amount equal to 1% of such sum as income tax thereon. The tax deduction is required to be made at the time of credit of such sum to the account of the resident or at the time of payment, whichever is earlier.
Provided that in a case where the consideration for transfer of virtual digital asset is:
(a) wholly in kind or in exchange of another virtual digital asset, where there is no part in cash; or
(b) partly in cash and partly in kind but the part in cash is not sufficient to meet the liability of deduction of tax in respect of whole of such transfer, the person responsible for paying such consideration shall, before releasing the consideration, ensure that tax required to be deducted has been paid in respect of such consideration for the transfer of virtual digital asset.
This deduction is not required to be made in the following cases:-
(i) the consideration is payable by a specified person and the value or aggregate value of such consideration does not exceed fifty thousand rupees during the financial year; or
(ii) the consideration is payable by any person other than a specified person and the value or aggregate value of such consideration does not exceed ten thousand rupees during the financial year.
“Specified person” means a person,
If the PAN of the deductee (buyer) is not available, then the tax at the time of transfer of VDA will be deducted at the rate of 20%. Further, if an individual has not filed his/her income tax return, then TDS will be deducted at a higher rate of 5% (as against normal rate of 1%), if the payer is not a specified person.
A new TDS certificate in Form16E has been introduced. The buyer who deducts tax at the time of making payment will be required to issue Form 16E to the seller of VDA within 15 days from the due date of furnishing the challan-cum-statement in Form26QE.
It is pertinent to note that these guidelines will apply to cases where transfer of VDA is taking place on or through an Exchange and also other transactions like peer to peer and others, where the provisions of section 194S of the Act shall apply to the extent and in the manner as clarified by the CBDT.
Primarily the responsibility to deduct tax is of the buyer. Therefore in peer to peer transactions, the buyer is required to deduct tax. However, when the trades are being conducted through an exchange, the responsibility to deduct tax will vary depending on the parties involved (Buyer, Exchange or Broker) and the ownership of the VDA.
While TDS on loss making transactions is refundable, the inability to offset crypto losses against gains still needs to be addressed. The clarification issued by CBDT has come as a breather to the investors who are now in a position to invest and trade. This initiative by the Government will go a long way in creating an ecosystem for virtual digital assets which will be beneficial to all stakeholders.
The Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) is enacted to protect the rights of women. The Domestic Violence Act not only covers those women who are or have been in a relationship with the abuser but it also covers those women who have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. Even those women who are sisters, widows, mothers, single women, or living in any other relationship with the abuser are entitled to legal protection under the Domestic Violence Act.
Section 2(a) of the Domestic Violence Act defines “aggrieved person” as any woman who is, or has been, in a domestic relationship with the Abuser and who alleges to have been subjected to any act of domestic violence by the Abuser.
This act has a wider meaning to “aggrieved person” which includes women in live in relationships. Supreme Court of India in the case of D. Veluswamy v. D. Patchaiammal has enumerated ingredients of live in relationships as follows:
The term shared household is defined under the Domestic Violence Act as a household where the person aggrieved lives or at any stage has lived in a domestic relationship with the abuser and includes such a household whether owned or tenanted either jointly by the aggrieved person and the abuser, or owned or tenanted by either of them in respect of which either the aggrieved person or the abuser or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the abuser is a member, irrespective of whether the abuser or the aggrieved person has any right, title or interest in the shared household.
Any person who has reason to believe that domestic violence has been or is likely to be inflicted upon her can inform about the same to a protection officer appointed under Section 8(1) of the Act. It would be better if such a protection officer is a woman herself.
Such women would be informed of her rights by the protection officer, a police officer, service providers (any voluntary association registered under law working with the objective of protecting the rights and interests of women), or a magistrate who has received the complaint or was present when the offence occurred. These rights are:
It must also be mentioned here that if the appointed protection officer does not perform her/his duties she/he can be liable to imprisonment upto 1 year and fine upto Rs. 20,000.
Upon receipt of domestic violence complaints, the protection officer must make a domestic incident report to the Magistrate. This report should also claim relief for a protection order if the aggrieved person desires. Such magistrate ( to whom the report is made) would be Magistrate of 1st class or the Metropolitan Magistrate who is exercising jurisdiction in the area where:
The copies of the report should also be forwarded to the Police Officer in charge of the Police station within local limits of which the domestic violence allegedly took place. Apart from this, it is the duty of the protection officers to ensure that the aggrieved person gets all benefits as mentioned as her rights and maintains a list of the service providers, shelter homes and medical facilities in an area.
Once an application is filed to the magistrate on by the aggrieved person, someone on the behalf of the aggrieved person or a protection officer, the magistrate will fix the date of the first hearing. Such a date is usually not beyond three days from the date of receipt of an application by the magistrate. Also, the magistrate will endeavor to dispose of the application made within 60 days from the first hearing.
Once the date of the first hearing has been set by the magistrate, a notice shall be given to the protection officer who shall inform the informant and any other person, prescribed by the magistrate. This shall be done by the protection officer within 2 days from the date of receipt unless an extension is given by the magistrate.
Under Section 14 of the Act, the magistrate may ask the Abuser or the aggrieved party (singly or jointly) to undergo counselling with a member of the service provider. Such a person must have experience in counselling.
Under Section 15 of the Act, the magistrate can take the help of a person, preferably a woman, for discharging his functions. Such a person should preferably be working in the promotion of family welfare.
If after hearing both the parties, the magistrate is satisfied that domestic violence took place, the magistrate can pass a protection order in favour of the aggrieved party. Such protection order restricts the respondent from:
The magistrate may also direct the respondent to pay monetary relief to the aggrieved person for expenses incurred and losses suffered by her. Such relief may include (but is not limited to):
The magistrate may also grant the custody of a child or children to the aggrieved person or person making an application on her behalf. He may also specify the visitation arrangements as well. In case he feels that visitation by the respondent would be harmful to the child, the magistrate may even refuse to allow such a visit.
The magistrate may also pass an order directing the respondent to pay compensation to the aggrieved person for the injuries, mental torture and emotional distress caused to her because of the domestic violence.
In case the magistrate feels it is necessary and is satisfied that the respondent has caused domestic violence and may continue to do so in the future, he may also pass interim and ex-parte orders.
In case there is a breach of the protection order given by the magistrate, the contemnor shall be liable with punishment upto a term extending to one year, or fine (at maximum 20,000 Rupees)
In the case of Krishna Bhatacharjee vs Sarathi Choudhury And Anr., the court laid down some guidelines that all courts must follow while dealing with a case under this Act. These are:
The law is not free of criticism. People have criticised it on some of the following grounds:
Some people have criticised the law on the basis of it being only civil, instead of both civil and criminal as it was meant to be. The criminal part of the law only gets triggered when the act of domestic violence is accompanied by some other offence, like not following the protection order given by the court.
As per the Act, the authority responsible for effective implementation of the Act is a Protection Officer, who is identified by the State Government. Such an officer is assigned the major role of assisting the court, initiating action on behalf of the aggrieved and looking after the services required by the victim like medical help, counselling, legal aid, etc. However, the people appointed under the Act are people who are in practice not working full time. Most of the time, in fact, this duty is given as an additional charge to those who are already in Government services. These people are mostly not qualified to fit into this role.
Many people have said that this law assumes men to be the sole perpetrators of domestic violence. Thus, by allowing only women to file a complaint about domestic violence, this law violates Article 14 and 15 of the Indian Constitution and discriminates against men.
The Protection of Women from Domestic Violence Act, 2005 which was implemented in October 2006 is very promising legislation that combines civil remedies and criminal procedures to provide effective remedies to the women who become victims of domestic violence. The act provides for protection officers, medical facilities, free of cost orders, etc. which helps the aggrieved women in protecting themselves and their loved ones.
However, the Act is not free of certain problems. Clearly, the implementation of the Act needs to be made more concrete. The Human Rights Watch has found that police often do not file a First Information Report (FIR), i.e, the first step to initiating a police investigation, especially if the aggrieved person is from an economically or socially backward community. Most of the domestic violence, sexual violence, and marital rape cases in India never go reported. Lack of trained counsellors who can help domestic abuse victims and little access to legal aid also adds to the misery of these victims. Issues like these need to be solved so as to ensure that women get the justice they truly deserve.
Every country’s constitution enforces certain laws for the purpose of maintaining order and protecting the society from crimes. These laws are broadly classified into two categories i.e. Civil Law & Criminal Law.
The Civil law lays emphasis on resolving the dispute like family dispute, rent, matters, disputes relating to the sale and so forth. On the other hand, Criminal law stress on punishment to the offender, who breaches the law by acts such as, murder, rape, theft, smuggling etc.
Thus, the Indian Penal Code (IPC) is a substantive law which defines various crimes/ offences that are punishable in India and prescribes the punishment laid down for the commission of that crime/offence.
Indian Penal Code popularly known as I.P.C is the primary criminal law of India that takes into account every material aspect of the criminal law. It was enacted in the year 1862, during the British period, since then it has been amended many times. It defines all possible crimes and their related punishments that can take place in the country. The code is divided into 23 chapters which encompass 511 sections, covering different types of offences, punishments and exceptions. Under this code, the punishments are divided into five major sections, i.e. Death, imprisonment for life, general imprisonment, forfeiture of property and fine. The law applies to every individual who is an Indian origin.
Cr.P.C on the other hand, as the name suggests, is the procedural law. It lays down the procedure that is to be mandatory followed while pursuing a case. Cr.P.C also lays down the procedure to be followed by the police while doing their duty like filing of F.I.R; investigation, filing of charge sheet, etc. Cr.P.C aims at providing the proper mechanism for the imposition of criminal law in the country, by setting up the necessary machinery for arresting criminals m investigating cases, presenting criminals before the courts, collecting evidence, determining the guilt or innocence of the Accused, imposing penalties on the accused. In short, it describes the entire procedure for investigation trial, bail, interrogation arrest and so on.
Cr.P.C is main legislation on procedure for administration of substantive criminal law in India It was enacted in 1973 and came into force on 1 April, 1974.
The Indian Penal Code, most popularly referred to as I.P.C was established in the year 1860. It is also regarded as the main criminal code of India which covers all the substantial elements of the criminal law. The origin of I.P.C dates back to 1834 when the first law commission had recommended for it to be found. It is also called the general penal code of India and extends to the whole of India. It comprises of total twenty-three chapters and 511 sections overall. It has been amended over 75 times up till now. It is interesting to note that the Indian Penal Code is also said to be cogently drafted which has been able to survive major jurisdictions without major amendments, which proves that it indeed was ahead of its time.
Enacted in 1973, the Code of Criminal Procedure first came into force in 1974. The Code of Criminal Procedure can be described as the machinery which provides a mechanism for the main criminal law which is I.P.C.
It details the procedure for:-
In addition to the above, Cr.P.C also deals with the prevention of crime, family maintenance, public nuisance etc. The Code of Criminal Procedure, 1973 has undergone over 17 amendments. The Supreme Court, High Court, various level magistrates and police are the law enforcing bodies which function under the Code of Criminal Procedure, 1973.
| I.P.C | Cr.P.C |
|---|---|
| I.P.C is the fundamental criminal law which is enforced in the country. | Cr.P.C denotes the procedure that needs to be followed in terms of a criminal case. |
| I.P.C is a substantive law by nature. | Cr.P.C can be termed as being procedural in nature. |
| I.P.C is regarded as the general penal code. | Cr.P.C consolidates the general penal code. |
| I.P.C is a comprehensive code that lists down crimes and punishments for them. | Cr.P.C also has the guidelines for the court developments and power of the judges which the IPC does not. |
| Cr.P.C lists down the procedure to enact them. |
The Supreme Court held that a party who does not perform one of the essential promises in a contract is not entitled to discretionary relief of specific performance of the very contract.
The said judgment was held in the case of Surinder Kaur (d) thr. LR. Jasinderjit Singh (d) thr. LRs. vs Bahadur Singh (d) thr. LRs.” (Civil Appeal No. 7424-7425 of 2011) decided on 11.09.2019.
Whether a vendee who does not perform one of his promises in a contract can obtain the discretionary relief of specific performance of that very contract?
Mohinder Kaur entered into an agreement with Bahadur Singh in year 1964 whereby she agreed to sell the suit land for total consideration of Rs. 5605/. Out of this, Rs. 1000/- was paid as earnest money at the time of execution of agreement to sell and agreed that balance amount is to be paid at the time of registration of the sale deed. The possession was handed over to the vendee at the time of agreement. Since there was some litigation with regard to property and it was agreed between the party that the sale deed would be executed within one month from the date of decision of court.
It was further agreed between the parties that if the case is not decided within one year, then the second party shall pay to the first party the customary rent for the land.
Bahadur Singh didn’t pay the rent even till the filing of the present suit instead denied his liability to pay the same. Later, suit for specific performance was filed him. In resisting the suit for specific performance, the defendant had raised the plea that since the plaintiff had admittedly failed to pay the rent of the land in terms of Clause 3 of the agreement, he was not entitled to a decree for specific performance.
The bench observed that the payment of rent was an essential term of the contract. Plaintiff had failed to perform his part of the contract. Explanation (ii) to Section 16(c) clearly lays down that the plaintiff must prove performance or readiness or willingness to perform the contract according to its true construction. The bench further observed that plaintiff was not entitled to claim the discretionary relief of specific performance of the agreement having not performed his part of the contract even if that part is held to be a distinct part of the agreement to sell. The vendee Bahadur Singh by not paying the rent for 13 long years to the vendor Mohinder Kaur, even when he had been put in possession of the land on payment of less than 18% of the market value, caused undue hardship to her. He, by not paying the rent did not act fairly forfeited his right to get the discretionary relief of specific performance.
Referring to Section 20 of the Specific Relief Act, the bench said that the relief of specific performance is discretionary. Merely because the plaintiff is legally right, the Court is not bound to grant him the relief. It is true, that the Court while exercising its discretionary power is bound to exercise the same on established judicial principles and in a reasonable manner. Obviously, the discretion cannot be exercised in an arbitrary or whimsical manner.
Every company has some objectives. Some companies have objectives of making profits by carrying out trade and commerce while some companies primarily have charitable and non-profit objectives. Generally companies having non-profit objectives prefer to form Section 8 companies instead of regular NGOs and associations or Societies or Trusts. This is because Section 8 Company has limited liability, so their personal assets will not be used in paying debts of the company. Here are some advantages that these companies enjoy. These companies are referred to as a “Section 8 Company” because they get recognition under Section 8 of Companies Act, 2013.
The Companies Act defines “Section 8 company” as one whose objectives is to promote fields of arts, commerce, science, research, education, sports, charity, social welfare, religion, environment protection, or other similar objectives. These companies also apply their profits towards the furtherance of their cause and do not pay any dividend to their members.
These companies were previously defined under Section 25 of Companies Act, 1956 with more or less the same provisions. The new Act has, however, prescribed more objectives that Section 8 companies can have. Famous examples of Section 8 companies include Federation of Indian Chambers of Commerce and Industry (FICCI) and Confederation of Indian Industries (CII). The objective of these companies is facilitating the growth of trade and commerce and India.
A person or an association of persons intending to be registered under Section 8 of the Companies Act, 2013 as a limited company –
Section 8 companies require a grant of a license by the Central Government. All such licenses are revocable as well on the following grounds:
The Government can even order the company to be wound-up or amalgamated with another similar company under certain circumstances. The Government has to hear the company before passing such orders.
Section 8 companies can wind-up or dissolve themselves either voluntarily or under orders given by the Central Government. If any assets remain after satisfaction of debts and liabilities upon such winding-up, the National Company Law Tribunal can order the transfer of these assets to a similar company. It can also order that they must be sold and the proceeds of this sale should be credited to the Insolvency and Bankruptcy Fund.
Any company that contravenes provisions of Section 8 is punishable with a fine ranging from Rs. 10 lakhs to Rs. 1 crore and directors and every officer of the company who are in default shall be punishable with imprisonment for a term which may extend to three years or with fine which shall not be less than twenty-five thousand rupees but which may extend to twenty-five rupees, or with both. Such officers can also face prosecution under stringent provisions of Section 447 (dealing with fraud) if proved that the any affairs of the company were conducted fraudulently.
A section 8 company yields an array of benefits, unlike a Society or Trust. Following is the list of advantages for companies registered under Section 8:
Following are the drawbacks that every company registered under Section 8 has to bear:
India still lacks behind in many areas in regard to education, healthcare, sports training etc. These aspects are provided by many nonprofit organizations. These NPO’s are the driving force behind the development of the society. The companies incorporated under Section 8 of the Companies Act, 2013 go a long way betterment of the society.
To motivate more people to help society, and award those who already do so, Incorporation of a company under Section 8 is a very convenient process. It does not take too much time and comes with a lot of advantages, and relaxed norms. All you need to ensure is that you fill the correct forms and carry the right documents you can get a Section 8 company incorporated easily. But above all you need to run it as per law, failing which consequences can be very high.
The Real Estate (Regulation & Development) Act, 2016 was formulated to safeguard the interest of home buyers and to infuse transparency and credibility into the otherwise unregulated real estate sector.
The Bill was passed by Rajya Sabha on 10th March 2016, by Lok Sabha on 15th March 2016 after multiple amendments to the regulations Act was executed on 1st May 2017.
The real estate sector has been one of the top most contributions to the country’s Gross Domestic Product (GDP) and employment creation. Surprisingly, inspite of being such an important part of the economy, the real estate sector was unregulated for numerous years. In order to regulate the aforesaid sector, the Indian Parliament passed a legislation called as the Real Estate Act, 2016 which was made effective on 1st May, 2016.
With the advent of RERA, there began a norm for strict compliance that has to be adhered by each and every developers, builder and construction giant in different part of the country. Most of the State has established their own RERA offices where they work under the establishment rules and regulations. However, the act is not retrospective in nature it mandates every people to be registered with the respective state RERA offices by the promotion of the Company within three months of the Commencement of the Act.
The RERA was enact to protect the interest of the homebuyers and boost investment in the sector. The provisions like timely completion and delivery of projects to the buyers.
One of the feathers of RERA is the requirement of registration of the real estate project by the “Promoter” with RERA which falls with the planning areas. In the absence of such registration, the promoter of the real estate project is not permitted to advertise market, sell or offer for sale, or invite persons to purchase in any manner in any real estate project or part of it.
A “Real Estate Project” is defined as the development of building. Converting an existing building or part of apartments, development of land into agreements/plot for purpose of selling and includes common areas, development works, all improvements and structures thereon and all easement, rights and appurtenances belonging to such building or land or structure.
The terms of section 3 of RERA, the following real estate projects are not required to be registered:
In addition to the registration of real estate projects, every real estate Agent is also required to get itself registered before facilitating the sale/purchase of any real estate project or part of it, by making an application along with requisite information/documents and fee.
In terms of Section 4 of RERA, an application require to be made by every promoter alongwith prescribed fee for registration of its real estate project and shall be inter alia accompanied with the prescribed document including:
The Registration granted shall be valid for period declared by the Promoter for completion of the real estate project or phase thereof as submitted in the affidavit along with the application for registration.
The Registration granted by the Authority may be extended by it upon receipt of application from the Promoter in this regard in the following circumstances:
RERA stipulates various compliances with respect to a real estate project. If the same are not complied with, the registration of already registered real estate project, may get revoked. The Authority may revoke a registration on the basis of a complaint received or suo moto by the Authority by giving 30 days notice in writing to the Promoter of such real estate project stating grounds of proposed revocation and instructing him to show cause as to why the registration should not be revoked. On the basis of the Promoter’s reply to the show cause notice, the Authority it’s may allow the real estate project to be registered or alternatively may cancel the registration.
Section 9 and Section 10 provides that Rs. 10,000/- (Rupees Ten Thousand Only) for every day during which such default continues, which may cumulatively extend upto 5% of cost of plot of real estate project for which sale or purchase has been facilitated as determined by RERA.
RERA like Act has been long overdue to reign in the real estate sector to ensure transparency and boost confidence among end users. With numerous examples of project delays, plan violations, lack of necessary approvals in commencement of a project, the Act comes as a breather for many current or future home buyers.
To eliminate promoters of low repute that seek to build shoddy projects without being accountable to anyone but are only interested in the cash inflow and who do not accept responsibility of any post construction defect. Such promoters shall find it hard to sustain themselves in the RERA regime.
The content of this document do not necessarily reflect the views / position of RKS Associate, but remains a probable view. For any further queries or follow up please contact RKS Associate at admin@rksassociate.com