Month: April 2021

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Blog Intellectual Property Law

Trademark Dilution

By: Muskan Sharma

Introduction

Trademark Dilution is an act when someone uses a trademark, without any authority, that tarnishes or blurs the image of a famous mark. Dilution is a type of violation of a trademark, in which the defendant’s use, though not causing the likelihood of confusion, blurs distinctiveness or tarnishes the image of the plaintiff’s famous mark. The protection provided by Section 29(4) of the Trademarks Act, 1999, to the dissimilar goods and services, is based upon the ‘doctrine of dilution’.

The irony is that the expression ‘dilution’ has not been used expressly anywhere in the Trademarks Act, 1999. A plain reading of Section 29(4) of the Trademarks Act, 1999 reveals that a person infringes an already registered trademark if he, not being a person authorized with the permitted use, uses a trademark which—

  1. is similar to or identical with the already registered trademark, and
  2. is used to represent those goods and services which are way different from those for which the trademark was first registered, and
  • the registered trademark is a famous mark, and
  1. is detrimental to the distinctive characteristics of the registered trademark.

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Importance of Doctrine of Dilution

The purpose behind the protection of trademarks is to avoid weakening or dilution of trademarks. If the subsequent user resorts to the use of the similar or near the similar mark in respect of the same goods or services, it would not only decrease the value of the famous mark i.e. trademark of the prior user but ultimately result in dilution of the mark itself. Such an invasion made by the subsequent user is nothing but a commercial invasion. It may yield greater profits to the subsequent user for sometime but will harm the market in the long run.

A Trademark is like a property and no unauthorized person is allowed to commit trespass on it. Such a kind of dilution or weakening of the famous mark, therefore, need not be accompanied by the element of confusion.

In Caterpillar Inc. v. Mehtab Ahmed[1], the Delhi High Court has highlighted the importance of the ‘Doctrine of Dilution’. The Delhi High Court observed:

“So far as doctrine of dilution is concerned, it is an independent and distinct doctrine. The underlying object of this doctrine is that there is presumption that the relevant customers start associating the mark or trade mark with a new and different source. It results in smearing or partially affecting the descriptive link between the mark of the prior user and its goods. In other words, the link between the mark and the goods is blurred. It amounts to not only reducing the force or value of the trade mark but also it gradually tapers the commercial value of the marks slice by slice. Such kind of dilution is not a fair practice that is expected in trade and commerce”[2].

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Trademark Dilution in India and USA

Indian Courts have recognized the following as essentials of dilution under Section 29(4) of the Trademarks Act, 1999:

  1. The impugned mark should be similar or identical to the injured mark,
  2. The one claiming injury caused by dilution must prove that his trademark is a famous mark,
  • The use of the impugned mark is without any due cause and authorization, and
  1. The use of the impugned mark amounts to taking unfair advantage of the reputation of the famous mark or is detrimental to the distinctive characteristics of the famous mark.

The US Courts have a stricter approach than Indian Courts. In India, the trademark needs to have a reputation whereas according to the US laws, the trademark should be a famous mark. In the US, the user of an averagely well-known trademark cannot claim for dilution of a trademark. A clear distinction has to be made between a mark with a reputation and a famous mark. Dilution rights are indeterminate in nature and therefore, the standard of fame required to claim dilution rights should be high. A trademark that is not distinct and famous cannot be diluted.

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In the USA, the Trademark Dilution Revision Act, 2006 has been enacted to deal with Trademark Dilution. The Act provides that to determine whether the impugned mark satisfies the required degree of fame, the following factors should be taken into account:

  1. The extent, duration, and geographic reach of publicity and advertising of the trademark, whether publicized or advertised by the owner or third party,
  2. The volume, amount, and geographic extent of sale of goods or services offered under the representation of the famous mark,
  • The extent of the recognition of the famous mark, and
  1. Whether the famous mark was registered in some register or under any previous legislation.

Forms of Trademark Dilution

Trademark dilution does not cause confusion and comes mainly into two forms:

  1. Blurring, and
  2. Tarnishment

Take the example of ‘Coca Cola’ and ‘Coke’. Both the names and the shape of the bottle in which the beverage often comes are famous marks. If a third firm markets its product as ‘Coca Cola’, it will lead to ‘trademark infringement’. If a third firm markets its product as ‘Sugary Cola’ in Coke-shaped bottles, it can weaken the uniqueness of the characteristics of the bottle. This will amount to Blurring. However, if another firm sells vodka and label it as ‘Coca Cola Vodka’, it can damage the brand image associated with the name ‘Coca Cola’. It will amount to tarnishment.

Therefore, a conclusion can be drawn that when it affects characteristics associated with the name of a famous brand or a famous mark, it is blurring. However, if the process leads to the weakening of the distinctiveness of the name of the famous brand or famous mark, it is tarnishment.

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Dilution by Blurring

Blurring refers to the subverting of the distinctiveness caused by the unauthorized use of a famous mark on dissimilar products. Blurring takes place when a third party uses a trademark in such a way that it decreases the likelihood that the famous mark will be a unique identifier of the prior registered products and services. It hinders the market growth of the owner of the famous mark being used.

Dilution by Tarnishment

Dilution of a trademark may also be performed by either sullying or impairing a distinctive quality of a trademark of an already existing user. This is usually known as ‘dilution by tarnishment’. The purpose behind such an invasion is to degrade, tarnish, or dilute the distinctive quality of a trademark. For instance, if an attempt is made to communicate an idea that a particular product of a senior user is injurious to the health or is inferior in quality and some epithet is used in the advertisement. If one has to convey the idea that Coca Cola is not good for health, and his advertisement campaign states Drink Cocaine in the same font and script as used by the senior user, he will be considered liable for dilution of a trademark.

The act of dilution of a trademark by way of tarnishment is mostly with regard to strong, well-recognized, and famous trademarks. It has the effect of weakening or diminishing the identification value and strength of the trademark. There is no need to establish the likelihood of confusion with regard to affiliation, source, and connection. This is so as some potential buyers may be confused as to the source or affiliation while others may identify the source or affiliation without any hassle.

Landmark Cases

  • Bata India Ltd. v. M/S. Pyare Lal & Co. Meerut City & Ors.[3]

The Plaintiff company ‘Bata India Ltd.’ came to know about ‘Batafoam’ which used to deal in sofas, cushions, mattresses, and similar items. ‘Batafoam’ was using the name ‘Bata’ in the same form and style and an average customer would’ve mistaken both the trademarks as the same.

The Hon’ble Allahabad High Court held that this action of the defendant of using Bata’s trademark will cause damage to the reputation of the plaintiff. It is a trespass on the right of the plaintiff over the trademark ‘Bata’. Bata’ is neither a fancy name nor a paternal name and not related to the defendant in any case. It is a name well-known in the shoe industry. The Court observed that the defendant is causing not just deception in the minds of the buyers but an injury to the plaintiff as well.

  • Daimler Benz Aktiegesellchaft and Anr Hybo Hindustan[4]

The Delhi High Court observed that the use of the trademark ‘Benz’ for underwear by the defendant whereas the plaintiff has been already using the same trademark ‘Benz’ for cars would be discrimination against the usage of the pre-acquired trademarks by the plaintiffs. The Delhi High Court, therefore, granted the injunction which the plaintiff sought against the defendant.

  • Ford Motor Company CR Borman[5]

In the present case, the question before the Court was whether the use of the trademark ‘Ford’ to represent shoes by the defendant amounts to an infringement of the plaintiff’s right over the famous mark ‘Ford’ to represent automobiles.

The Court observed that the use of a famous mark for two different classes of products also amounts to tarnishment of a trademark. Therefore, the defendant’s action of using the trademark ‘Ford’ to represent shoes does amount to an infringement of the plaintiff’s right over the famous mark ‘Ford’ to represent automobiles.

  • ITC Ltd. v. Philip Morris Products SA[6]

The plaintiff was the owner of the ‘WELCOMEGROUP’ logo containing a device displaying folded hands. In a suit for dilution of trademark, the Hon’ble Court stated that the plaintiff has to pass a more stringent test (than the deceptive similarity standard) of proving similarity or identity. The observed that a global look, rather than a focus only on the mutual elements of the mark, is to be taken while deciding if the impugned or junior mark infringes, by dilution of an existing registered mark. The plaintiff’s mark resembles a ‘W’ but the gesture of ‘Namaste’ is discernible. All the defendant’s previous marks resemble ‘M’ (Maybe Marlboro). Considering the overall marks for the logo, without cataloguing minutely the dissimilarities or similarities, this court discerns no ‘similarity’ or ‘identity’ in the overall presentation of the two marks.

  • Bayerische Motoren Werke AG Om Balajee Automobile (India) Private Limited[7]

In the present suit, the applicant moved an application before the Delhi High Court seeking ad interim injunction against the defendant for using ‘DMW’ mark for e-rickshaws it manufactures. The plaintiff pleaded that ‘BMW’ is a famous mark and represents the existence of ‘Bayerische Motoren Werke’, A German automobile manufacturing company. The defendant used a deceptively similar mark for e-rickshaws. The last two letters of both the trademarks are ‘M’ and ‘W’ and the first letter of both marks ‘B’ and ‘D’ are phonetically similar. Therefore, the mark ‘DMW’ and ‘BMW’ are deceptively similar.

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The Delhi High Court observed that the defendant had adapted to the essential features of the famous mark of the plaintiff and the phonetic and visual resemblance was apparent. ‘DMW’ mark was supposed to cause confusion in the minds of the buyers due to the deceptive similarity between the two.

The Court held that in the case of famous marks like ‘BMW’, the use of a phonetically and visually similar trademark by the defendant does constitute infringement under Section 29(4) of the Trademarks Act, 1999 because it is detrimental to the reputation of plaintiff’s famous mark ‘BMW’. It was further held that the ‘deceptively similar’ standard was not a part of the infringement under Section 29(4) of the Trademarks Act, 1999, and the question of deceptive similarity would not arise in trademark dilution cases.

Conclusion

Trademark Dilution is, therefore, a process of trademark infringement where the subsequent use of a trademark dilutes the essence of a famous mark and uses the diluted mark for his own publicity and advertisement. Trademark dilution can be carried out by two methods namely, Blurring and Tarnishment. The idea behind the protection of famous marks from the process of trademark dilution is to preserve their uniqueness and distinctive characters. It also prevents the birth of confusion in the minds of buyers with respect to the goods and services associated with a brand’s famous mark.

In India, the trademark dilution regime is governed by Section 29(4) of the Trademarks Act, 1999 whereas in the US, the trademark dilution regime is regulated by the Trademark Dilution Revision Act, 2006. In India, there needs to be some level of reputation of the already registered trademark to constitute a case of trademark dilution whereas in the US, the already registered trademark should be a famous one to constitute a case of trademark dilution. The concept of Trademark Dilution under both regimes is similar to a great extent but there are slight distinctions like the standard of ‘reputation’ and ‘fame’.

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[1] 2002 (25) PTC 438 (Del)

[2] Ibid.

[3] AIR 1985 All 242

[4] AIR 1994 Delhi 236

[5] MIPR 2008 (3) 418

[6] 2010 (42) PTC 572 (Del)

[7] CS (COMM) 292/2017

Categories
Blog Intellectual Property Law

IP and MSMEs: The Climacteric Role of Intellectual Property in the Future of MSMEs

By: Rushika M

“Intellectual Property is the oil of the century. Look at the richest men a hundred years ago; they all made their money extracting natural resources or moving them around. All (of) today’s richest men have made their money out of intellectual property.”

-Mark Getty

  1. Introduction

Intellectual property is an important legal and cultural issue.[1] The increasing speed of technological advancement and economic integration in recent years has highlighted the importance of intellectual property[2] and put great stress on the knowledge and ability of persons, businesses and entities to protect their intellectual property rights. One of the sectors of society most affected by its lack of cognizance and perception of intellectual property is the Micro, Small and Medium Enterprises (hereinafter “MSME”) sector. Therefore, the importance and pre-eminence of intellectual property for the MSME sector is the keynote of this article.

  1. What are MSMEs?

As previously mentioned, MSME stands for Micro, Small and Medium Enterprises. As the term suggests, MSMEs essentially refer to small businesses in the private sector. Across the world, regulators and financial institutions apply parameters such as the strength of employees, annual sales valuation, fixed assets valuation, loan size proxies and similar parameters to define MSMEs and classify entities accordingly. Even the World Bank classifies MSMEs based on three criteria: (i) employee strength; (ii) size of assets; and (iii) annual sales.[3]

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In India, the classification of MSMEs is made under the Micro, Small and Medium Enterprises Development Act, 2006 wherein, the three categories of entities are defined under section 6 of the Act,[4] in respect of their investment in Plant and Machinery or Equipment and their turnover value as follows:

  • Enterprises whose investment does not exceed one crore rupees or turnover does not exceed five crore rupees are Micro enterprises;
  • Enterprises whose investment does not exceed ten crore rupees and turnover does not exceed fifty crore rupees are Small enterprises; and
  • Enterprises whose investment does not exceed fifty crore rupees and turnover does not exceed two hundred crore rupees are Medium Enterprises.

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  1. Role of Intellectual Property in MSMEs

Across the world, the MSME sector significantly contributes to socio-economic growth and development of nations. In India alone, an approximation of 6.3 crore MSMEs contribute to 29% of India’s GDP from national and international trade operations.[5] Their contribution to entrepreneurial development and employment in the country is also tremendous. In light of the same, it is of considerable prudence to secure and protect the interests of MSMEs as they are also consequential to the economy at large.

Conventionally, MSMEs have relied on the creation and accumulation of tangible assets such as land, machinery and office equipment, along with their revenue and receivables, to boost their financial standing, valuation and prestige in the industry.[6] However, by dint of scientific and technological developments in the recent past, MSMEs have been catapulted into a quest of an entirely different nature wherein each entity is competing to amass intellectual property of the greatest value. It is hence the actuality of the present day that intellectual property shall play a colossal role in determining the ensuing path of the MSME sector.

Primarily, intellectual property enables MSMEs to protect their ideas and innovations. MSMEs spend large amounts of money, time and resources in the research and development of various works, technologies and products. However, their work is often taken advantage of and commercially exploited as their ideas are copied, or cheap replicas or imitation products are produced and passed off as the product of the MSME or sold by competitors. In either case, MSMEs are the entities that suffer great economic losses and setbacks. Intellectual property rights protect and safeguard MSMEs against these very dangers apprehended, and in cases of violation or infringement of rights, provide MSMEs with adequate remedies and reliefs to secure their interests.

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Secondly, intellectual property allows MSMEs to harness the commercial value of their work in the form of revenue verticals, licensing agreements, further research and development arrangements, etc. thereby allowing MSMEs to recoup their investments and also encouraging further investments in innovation and scientific advancement.[7]

Thirdly, intellectual property plays a significant role in the establishment and promotion of the MSME’s brand identity.[8] Not only does it prevent other entities from imitating the MSMEs creations, it also protects the image of the MSME from being tarnished or impersonated by others. Thus, intellectual property enables MSMEs to retain the authenticity and originality of their identity.

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Further, intellectual property adds to the value chain of business at each level, may it be the stage of ideas and innovations, research and development, or the actual production of the good or commodity. Even at the marketing and distribution level, intellectual property constantly adds value to the product and to that of the MSME. Some intellectual properties hold a greater individual valuation than the sum total of all the other tangible assets of the enterprise combined.[9] Therefore, effective intellectual property management is key to enhancing the corporate and monetary worth of the MSME.

Finally, effective intellectual property management also aids MSMEs in attracting potential investors, in accessing financial resources and in entering new market areas.[10]

  1. Conclusion

From the above, it is evident that intellectual property plays an indispensable role in securing the socio-legal and economic interests of MSMEs. Not only does intellectual property provide a clearly discernable competitive advantage to MSMEs, it is in fact quintessential to the growth and subsistence of MSMEs in the future. Inadequate knowledge and protection of intellectual property could quite possibly result in the closure of various MSMEs as large corporate entities with massive resources dominate the industry and create legal monopolies under the garb of intellectual property protection. Therefore, the acute need of the hour is for MSMEs to recognize and appreciate the role of intellectual property in determining the future of the MSME sector and in preventing its apprehended downfall.

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[1] BCS, The Chartered Institute of IT, “Leaders in Computing: Changing the Digital World” (BCS, The Chartered Institute of IT, 2011)

[2] HE Dr. Talal Abu-Ghazaleh, https://www.talalabughazaleh.com/page.aspx?page_key=key_in_his_word#:~:text=%22The%20increasing%20speed%20of%20technological,effectively%20serve%20the%20global%20community.%22 (last visited April 25, 2021).

[3] International Finance Corporation, “Micro, Small and Medium Enterprise Finance in India”, (International Finance Corporation, 2012). https://openknowledge.worldbank.org/bitstream/handle/10986/26553/114457-WP-IN-MSME-Report-03-01-2013-PUBLIC.pdf?sequence=1&isAllowed=y

[4] Micro, Small and Medium Enterprises Act, 2006, §6, No. 27 of 2006, Acts of Parliament, 2006 (India).

[5] India Brand Equity Foundation, https://www.ibef.org/industry/msme.aspx#:~:text=India%20has%20approximately%206.3%20crore,2.1%20million)%20units%20in%202019 (last visited April 25, 2021).

[6] Rahul Bagga, “Why MSMEs should treat Intellectual Property Rights assets”, Economic Times (April 25, 2021, 11:58 p.m.), https://economictimes.indiatimes.com/small-biz/sme-sector/why-msmes-should-treat-intellectual-property-rights-as-assets/articleshow/69304077.cms?from=mdr

[7] National Institute for Micro, Small and Medium Enterprises, https://nimsme.org/IPR-and-Its-Implications-for-MSMEs (last visited April 25, 2021).

[8] Siddharth Mahajan, “MSMEs must protect their ideas; investment in IP protection is asset not expense”, Financial Express (April 25, 2021, 11:58 p.m.), https://www.financialexpress.com/industry/msme-other-msmes-must-protect-their-ideas-investment-in-ip-protection-is-asset-not-expense/1801781/#:~:text=Intellectual%20Property%20Rights%20(IPRs)%20are,%26%20Medium%20Enterprises%20(MSMEs).

[9] Altacit Global, https://www.altacit.com/resources/ip-management/msmes-and-intellectual-property-rights/ (last visited April 25, 2021).

[10] DK Sinha, “Need of Intellectual Property Rights (IPR) for MSMEs”, Your Article Library (April 25, 2021, 11: 58 p.m.), https://www.yourarticlelibrary.com/law/need-of-intellectual-property-rights-ipr-for-msmes/41149.

Categories
Blog Intellectual Property Law

The Android Schism: Google LLC v. Oracle America, Inc.

By Rushika M

“The fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world.”-    Justice Breyer                                                                                                   Introduction

‘Android’ is not a concept unfamiliar to most of us. It is a software platform and an operating system that provides computer programmers with the necessary infrastructure to develop new programs and applications. Since its launch in the year 2008, its valuation has quickly multiplied into billions of dollars. While the aforementioned is common knowledge, the dispute relating to the development of Android is rarely known to most. However, the latter, being of immense significance to the tech and legal industry alike, is the keynote of this article.

Background and Facts of the Case

The programming language Java, originally developed at Sun Microsystems which was later acquired by the tech giant Oracle, is one of the most popular and widely used programming languages today. Consequently, computer programmers spend years learning the language and subsequently using it. Essentially, the platform enabled users to write programs using Java code that could be run on any desktop or laptop computer, regardless of the underlying software. This is possible through a tool called Application Programming Interface (API) which allows users to use prewritten codes in their own programs to build certain functions without requiring them to write their own codes from the scratch to perform the same functions.

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The facts of the instant case[1] are thus, as follows. When in the year 2005 Google acquired Android, Inc., it initially entered into dialogue with Sun about the possibility of licensing the entire Java platform for its new smartphone technology Android. However, the idea of Android being about an open-source platform with minimal restrictions did not gel with the interoperability policy of Sun as the same would undermine the free and open business model conceived by Google. Consequently, Google built its own platform with original codes of millions of new lines. However, wanting millions of programmers who were already familiar with Java to be able to easily work with its new Android platform, it also copied approximately 11,500 lines of code from the Java SE program that were part of the API tool.

Subsequently, upon acquiring Sun Microsystems, Oracle brought a suit against Google for copyright infringement and hence the present dispute arose.

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In the first instance, the District Court ruled in favour of Google while deciding that the code was not the kind of creation to which the protections of copyright law were extended. In the second instance on appeal, the Federal Court ruled in favour of Oracle, finding that the code was indeed copyrightable and Google’s use was more than required, and hence could not be treated as fair use. Consequently, Google filed a petition for certiorari before the Supreme Court of the United States in respect of which the hon’ble court has recently rendered its decision.

In the instant case, two questions were presented before the Hon’ble Court.

  • Whether the code in respect of which infringement was alleged was copyrightable?
  • Whether Google’s use of such code was saved by the defense of ‘fair use’?

Judgement of the Supreme Court

As previously mentioned, Google’s petition posed two important questions before the hon’ble court. In respect of the first question, the court was of the opinion that given the rapidly changing technological, economic, and business-related circumstances, it must not answer more than was necessary to resolve the dispute. Therefore, for arguments sake, it decided to assume that the entire Sun Java API fell within the definition of that which could be copyrighted. Instead, it decided to focus on the second question posed before it.

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In respect of the second question, i.e., whether Google was entitled to the defense of fair use, the court applied the considerations as laid down in leading cases such as Campbell v. Acuff-Rose Music, Inc.[2] and the statutory factors as provided under the Copyright Act.[3] In doing so, its decision was based on the following four parameters:

  • The nature of the copyrighted work;
  • The purpose and character of the use;
  • The amount and substantiality of the portion used;
  • Market effects.

With regards to the first parameter, the court found that the nature of the copyrighted work pointed towards fair use for two notable reasons, First, Google wrote its own programs to perform each task that its API would call up. Second, it recognized that some works were closer to the core of copyright than others and found that Java’s declaring code, if copyrightable, was further from copyright than most computer programs.

Answering in respect of the second parameter, the court was of the view that Google’s use of the copyrighted work was not only consistent with the constitutional objective of copyright law, i.e., creative “progress”, but was also transformative in nature and hence, on this issue too, the court found in favour of fair use by Google.

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On the third issue of the amount and substantiality of the portion used, it discussed two possibilities: (i) that the use of 11,500 lines, i.e., 37 packages may be prima facie substantial, (ii) that if millions of lines of Java code were considered, the use was merely 0.4% of Java’s code. Further, it recalled the judgments wherein the court held that it was not the quantity of copyrighted material used but rather the quality that must be considered. If the portion used was small, but nonetheless formed the heart of the work, then it would amount to an infringement. The Supreme Court hence considered whether it was necessary for Google to use all the codes that it had or was the use excessive. It found that such use was indeed necessary to accomplish Google’s objective and hence was ‘substantially’ fair use.

Finally, deciding on the fourth parameter, the court considered the uncertain nature of Sun’s ability to compete in Android’s marketplace, the sources of its loss of revenue, and the risk of creativity-related harms to the public, and decided that the parameter of ‘market effects’ also weighed in favour of fair use.

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Hence, in light of the abovementioned findings, the court concluded as follows:

“We reach the conclusion that in this case, where Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google’s copying of the Sun Java API was a fair use of that material as a matter of law.”

Analysis and Conclusion

Google and Oracle’s dispute has been a long-standing one. Many interested parties in the technological industry and the legal fraternity have keenly awaited this judgement that could quite drastically alter the course of copyright jurisprudence.

The decision of the Supreme Court in the instant case, appears at the outset, to be fair and well-reasoned. Considering the lack of technical knowledge of the judiciary, especially in respect of recent and continually evolving technologies and software, the judgement clearly lays out sound explanations in deciding on various parameters. However, a striking observation from the judgement is the conspicuous distinction drawn between computer programs and traditional copyrightable concepts. This distinction could manifest as a dangerous precedent for copyright protections and could possibly even dilute them to a great extent. Further, although the judgement appears to be favourable to various software and computer programmers today, this distinction treating computer programs differently could subsequently prove to be disadvantageous to these very programmers.

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In conclusion, it is stated that at present, the anticipated impact of the instant judgement is based merely on assumptions and conjecture. The denouement of this judgment however, will only be known as courts decide further disputes on similar issues while treating the judgment in the case of Google LLC v. Oracle America,[4] Inc. as precedent.

[1] Google LLC v. Oracle America, Inc., MANU/USSC/0003/2021.

[2] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

[3] Copyright Law of the United States of 2020, 17 U.S.C., §107, https://www.copyright.gov/title17/title17.pdf.

[4] Supra, 1.

Categories
Blog Criminal Law

How to file a Criminal Complaint in India

By:-Muskan Sharma

What is a Criminal Complaint?

A Criminal Complaint is a complaint consisting of such facts and circumstances forming part of the commission of an offence. In India, the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) is the penal law stating all the offences, except as provided under any other law. The Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) is the procedural law that governs the criminal regime from the stage of lodging a criminal complaint to convicting/acquitting the accused person.

Importance of a Criminal Complaint

A Criminal Complaint sets the criminal law regime into motion.

In Emperor v. Khwaja Nazir Ahmed[1], it was observed that an FIR provides early information as to the alleged offence, to record the facts of the case before they are forgotten or glorified, and to provide the same to the Court as evidence for the investigation of the case.

Though FIR is not considered as evidence and has almost nil evidentiary value, it can be used to corroborate the statements of the accused, witnesses, victim, and other persons involved in the offence.

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Therefore, a Criminal complaint serves the following purposes:

  1. Early Disclosure of information as to the commission of an offence.
  2. Prevent the accused from becoming a habitual offender.
  3. Justice to be served to the victim.
  4. Commencement of the investigation as to the commission of the alleged offence.

Information that constitutes an FIR

A Criminal Complaint or an FIR should contain the following information:

  1. Whether the complainant is an eye witness to the incident, heard about the incident, or is a victim himself/herself.
  2. Nature of the offence.
  • Name and other details of the victim (if aware).
  1. Name and other details of the accused (if aware).
  2. Date and time of the occurrence.
  3. Place of the occurrence.
  • Description of the incident as a step-by-step process along with the surrounding circumstances.
  • Name and other details of all the witnesses to the occurrence.
  1. Whether any traces were left behind by the accused.
  2. Any other material circumstances.

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Information does not constitute an FIR

It must be noted that not all information can be termed as a ‘criminal complaint’ or ‘FIR’. Only the information that is disclosed to the officer-in-charge of the concerned Police Station and reveals the commission of a cognizable offence can constitute an FIR. Also, only the earliest version of the case can constitute an FIR.

In case of multiple FIRs registered in a single case, the earliest report to the police officer will reach the officer-in-charge as the FIR.

Telephonic Information

If the telephonic information received by the concerned police officer discloses neither the name of the accused nor the offence committed, it will not amount to an FIR or Criminal Complaint. The same has been stated by the Supreme Court in Ravishwar Manjhi & Ors. v. State of Jharkhand[2].

In Soma Bhai v. State of Gujarat[3], a complaint was reported to the sub-inspector and before reducing the information to writing, the sub-inspector looked for instructions from the main police station at Surat via telephone message. It was observed that information written down by the sub-inspector was an FIR but the message received by the sub-inspector was too vague and cryptic to be called an FIR.

In T.T. Anthony v. State of Kerala[4], it was observed by the Supreme Court that apart from cryptic information received via telegram or telephone, the information recorded first in the station house diary by the officer-in-charge is the FIR.

In Thaman Kumar v. State of Union Territory of Chandigarh[5], it was held that telephonic message conveyed by the Constable on Night Patrol Duty does not constitute an FIR.

In Vikram & Ors. v. State of Maharashtra[6], PW2 informed the police officer on telephone and missed out on some of the details. The Supreme Court observed that a cryptic and anonymous message conveyed to a police officer via telephone, which does not disclose the commission of a cognizable offence, cannot be considered as an FIR. It was further observed that merely because the information was first in point of time, it cannot be called an FIR.

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In Animireddy Venkata Ramana and Ors. v. Public Prosecutor, High Court of Andhra Pradesh[7], it was held that information received by an officer-in-charge via telephone about the commission of a crime is not an FIR but merely a call to make the Police come to the crime scene merely. It is not expected of an officer-in-charge of a police station to go to the crime scene only after the registration of an FIR.

In Sidhartha Vashist @ Manu Sharma v. State of NCT of Delhi[8], it was again observed that a cryptic message received via telephone should not be treated as an FIR as the intent of such a communication is only to get the police to the crime scene. The intention can be culled out from a reading of Section 154 of the CrPC which provides that if the information is provided orally, should be reduced to writing.

Ways to file a Criminal Complaint

To set the criminal law into motion, the first step is to report the commission of a crime. There are two ways to report the commission of a crime, which are as follows:

  1. One may go to the nearest Police Station and provide all the information related to the commission of a crime to the concerned police officer. If the information disclosed reveals the commission of a cognizable offence, the concerned police officer will lodge an FIR (First Information Report) under Section 154 of the CrPC.
  2. If the information disclosed reveals the commission of a non-cognizable offence, the concerned police officer will lodge an NCR (Non-Cognizable Report) under Section 155 of the CrPC. The concerned police officer then forwards the NCR to the Magistrate and has no power to investigate such a case without the order of the Magistrate.
  3. Apart from this, in petty incidents like Lost and Found, Missing person, and similar incidents, one can go to the state police portal and file an e-FIR. The service of e-FIR has made it easy for the citizens to report their petty cases and not go to the police station every now and then. Surprisingly, there are no provisions that expressly regulate the procedure to be followed after the filing of an e-FIR. Hence, there is a dire need for some more provisions in the criminal law regime of India that can govern the procedure of registering e-FIR and the procedure to be followed afterward.

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Essentials of an FIR

The expression ‘FIR (First Information Report)’ is not used anywhere in the CrPC. However, Section 154 of the CrPC provides the essential conditions to be satisfied during disclosure of the commission of the alleged offence to the officer-in-charge of the police station, which are as follows:

  1. The offence alleged to have been committed must be a cognizable offence.
  2. The officer-in-charge of the police station must receive such information.
  3. The complainant must reduce all the information to writing and sign it. If the complainant provides the information to the officer-in-charge orally, then the officer-in-charge or his subordinate police officer may reduce it to writing.
  4. The information reduced in writing be read over to the complainant and provided to him for signing it.
  5. The information recorded should be entered into the Daily Diary, General Diary, Station Diary, or such other diary or register as prescribed by the appropriate Government.

After the filing of FIR, the officer-in-charge has to conduct a preliminary inquiry. In Lalita Kumari v. Govt. of Uttar Pradesh[9], the Supreme Court held that the purpose of preliminary inquiry is to determine whether the allegations in the criminal complaint make out a cognizable offence. It was further observed by the Supreme Court that action should be taken against the concerned police officer if no FIR is registered even after the disclosure of a cognizable offence.

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Remedies for non-registration of FIR

There is a dire need to expand the scope of e-FIR as the service is available only for petty crimes and also because the police officials often deny registering a criminal complaint. However, the expansion of the scope of the service of e-FIR is not in our hands. Therefore, if there is a refusal to register our police complaint, we may adopt any of the following remedies:

  1. One may reach out to police officers of higher ranks and let them know about the complaint.
  2. One may write a letter or application to the Superintendent of Police stating all the material facts and circumstances of the complaint under Section 154(3) of the CrPC. The Superintendent of Police may either investigate the case himself or order an investigation.
  3. One may file a private complaint to the Magistrate under Section 200 of the CrPC. The Magistrate is then, supposed to decide on the issue of cognizance.
  4. If the police do not co-operate in the investigation and one is not sure of the court procedures to be followed, one may take the aid of various bodies like SHRCs/NHRC, NCW, NCPCR, NCSC, etc.

What is Zero FIR?

Zero FIR is an FIR that can be filed at any police station regardless of the jurisdiction. A Zero FIR is ultimately transferred to another police station having jurisdiction to conclude the investigation. The purpose behind lodging a Zero FIR is to obtain evidence in cases involving sexual assault, murder, road rage, and so on. In such cases, it is pertinent to obtain evidence and conduct an investigation as the evidence is capable of being manipulated or corrupted.

Also, it doesn’t let the police officials avoid their duty to investigate an offence. Therefore, the officer-in-charge cannot refuse to register an FIR in such a case merely on the ground of lack of jurisdiction.

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Evidentiary Value of a Criminal Complaint

A complaint made to the police has no evidentiary value for the following reasons:

  1. It is not made during the trial.
  2. It is not given on oath.
  3. It is not tested by cross-examination.
  4. It is not a substantial piece of evidence and the only purpose of an FIR is to set the criminal law regime in motion.
  5. A statement made before a police officer is not admissible as evidence as stated in Sections 25 and 26 of the Indian Evidence Act, 1872.

Also, an unreasonable or undue delay in filing an FIR also gives rise to suspicion on the complainant.

However, FIR can be used to corroborate the statements made by the accused, victim, and witnesses during the trial and other types of evidence.

[1] (1945) 47 BOMLR 245

[2] AIR 2009 SC 1262

[3] AIR 1975 SC 1453

[4] AIR 2001 SC 2637

[5] AIR 2003 SC 3975

[6] AIR 2007 SC 1893

[7] AIR 2008 SC 1603

[8] AIR 2010 SC 2352

[9] (2014) 2 SCC 1

Categories
Blog

Condonation of Delay under The Limitation Act, 1963

By: Chinmay Mehta

INTRODUCTION:

The Limitation Act, 1963, of which the concept of Condonation of Delay is a component, was enacted on 5th October, 1963, which came into force on, 1st January, 1964. The essence behind the statutes of Limitation has been well expressed by Lord Plunkett in the following words,

“Time holds in one hand a scythe; in the other hand an hour-glass. The scythe mows down the evidence of our rights, the hour glass measures the period which renders that evidence superfluous.”

The Object behind the Act is not to create or define causes of action, but simply to prescribe the period within which existing rights can be enforced in Courts of Law.1 The Act is based on the well-known Latin maxim: vigilantibus, nor dormientibus jura subveniunt. This means that the law assists the vigilant, not those who sleep over their rights. The Act in its many Sections and Articles, attempts to put down a comprehensive guide for litigants in matters of Limitation, laying down the many circumstances and periods within which a Suit must be brought the Court of Law, or otherwise, stand to be rejected at the very threshold.

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The Law of Limitation does not create or extinguish rights, except in case of acquisition of title to immovable property by prescription under Section 27 of the Limitation Act.

However, what if a litigant has, in fact been vigilant, but there were certain circumstances which hindered him in filing his Suit on time? He cannot be deprived of his Right to Sue without any fault on his part, where there were other forces at play preventing him in doing so. This is where the component of Condonation of Delay comes into play.

OVERVEW:

What does Condonation mean, in context of the Limitation Act? In simple terms, Condonation is a discretionary remedy exercised by the Courts of Law wherein on an Application made before it by the party who wishes to have an Appeal/Application admitted after the prescribed period, pleads before the Court “a sufficient cause”, which hindered it to file the Appeal/Application on time.

If satisfied, the Court would then condone the delay, i.e., disregard it and have the Appeal/Application admitted as if no delay has occurred and then proceed to hear it.

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However, it must be noted, that since the remedy is discretionary in nature, the Court is not bound to condone the delay just because an Application was filed, making out a sufficient cause for the delay. The Court may very well be justified in rejecting the Application, if not satisfied with what’s been averred.

A study of Section 5 of the Act:

The Limitation Act enunciates the principle of Condonation, quite early on, in Section 5 of the Act, which reads as under:

Extension of prescribed period in certain cases—Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or application within such period.

Explanation—The fact the appellant or applicant was missed by any order, practise or judgement of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

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The Supreme Court has held that the words “sufficient cause” in Sec. 5 should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the Appellant.2

The following can be said to constitute sufficient cause in the context of the Act:

  1. There have been some significant changes in the law of the land.
  2. The Applicant was suffering from a serious illness.
  3. The Applicant was undergoing imprisonment.
  4. The Applicant is a pardanashin
  5. Delay in procuring copies from officials. Here, it must be shown that the attempt to procure the copy, on the part of the Applicant was vigilantly initiated, but it was because of a delay on the part of the concerned officials, which hindered the Applicant in obtaining it and in filing his Appeal/Application on time.
  6. The delay was caused on account of any action or inaction on the part of the lawyer and not the litigant.

(The list is by no means, exhaustive. There are several situations which may constitute sufficient cause depending on the facts and circumstances of each case. Since the term has not been defined by the Act itself, the Courts enjoy vast discretion here.)

Also, it must be noted that the Section only governs Appeals and Applications. Thus, if a Suit is filed after the prescribed period, it is liable to be rejected on threshold and no Application seeking Condonation of Delay will be entertained by the Courts. A Suit must always be filed within the Limitation period and not beyond it.

What if a person, in good faith, initiates proceedings in a Court which does not possess the requisite jurisdiction to entertain it? If this is done as a bonafide mistake, the time so consumed in litigating before the wrong Court may be condoned by the Courts at their discretion.

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Also, if a person, as a bonafide mistake, takes the wrong course of action i.e., files a Writ Petition, when, the right course of action would be to file an Appeal, the time consumed in such Writ Petition may be condoned.3

Applicability under Special Law/Statutes:

A question would arise as to whether the law laid down in Section 5 of the Limitation Act affects the working of the Arbitration and Conciliation Act, 1996. Let’s take Section 34 of the said Act, for instance which speaks about setting aside an Arbitral Award. Clause 3 of the Section states that,

An Application for setting aside may not be made after three months have elapsed from the date on which the party making the Application had received the Arbitral Award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the Arbitral Tribunal. Provided that if the Court is satisfied that the Applicant was prevented by sufficient cause from making the Application within the said period of three months it may entertain the Application within a period of thirty days but not thereafter.

The Himachal Pradesh High Court has, in a case, held that this provision in the Arbitration Act is evidently a substitute for the provisions of Section of the Limitation Act and by necessary implication, it excludes the applicability of Section 5 to Applications under Section 34 of the 1996 Act. The expression ‘but not thereafter’ as used in the proviso expressly debars a court from entertaining an Application for setting aside an award thereafter. Section 5 has no application to a case falling under Section 34(3) of the 1996 Act.4

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Also, Section 29(2) of the Limitation Act lays down that it would be the governing law as far as Limitation is concerned, unless its working is expressly excluded by the Special Law in question.

The Supreme Court has also held that the crucial words in the language used in Section 34 of the 1996 Act are ‘but not thereafter’, this amounts to express exclusion within the meaning of Section 29(2) of the Limitation Act and would therefore bar the application of that Act, hold otherwise is would render the above phrase wholly otiose. Apart from the language, express exclusion may also follow from the scheme and object of the special or local law.5

Relevant Judgements:

  • Collector Land Acquisition v. Mst. Katiji & Ors 6:

The Supreme Court laid down certain guidelines which need to be followed while administering the doctrine of Condonation of Delay:

  1. Ordinarily, the litigant does not stand to benefit by instituting an appeal late.
  2. If the Court is refusing to condone the delay, it can result in a meritorious matter being discarded and the roots of justice being defeated, However, when a delay is condoned, the highest that can happen is that the case will be decided on merits i.e., a decision based on evidence rather than on technical and procedural grounds.
  3. “Every day’s delay must be explained”, does not mean the doctrine is to be applied in an irrational manner. It must be applied in a sensible manner and not literally.
  4. Between substantial justice and technical considerations, the former deserves to be preferred for the other. Other side cannot claim that injustice is done because of a bonafide delay.
  5. There is no presumption that the delay is caused deliberately. The litigant has nothing to gain by resorting to delays and to run a serious risk.
  • New India Insurance Co. Ltd. v. Smt. Shanti Misra 7:

It was enunciated by the Supreme Court here, that the discretion conferred by Section 5 cannot be interpreted in a way that it converts a discretionary remedy into a rigid rule. Also, it was held that the term “sufficient cause” is something which cannot be defined by hard and fast rules.

  • Vedabai alias Vaijayantabai Baburao Patil v. Shantaram Baburao Patil and others 8:

The Supreme Court held, inter alia, that: in exercising discretion under sec. 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the considerations of prejudice to the other side will be a relevant factor so that the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping mind that in construing the expression “sufficient cause” the principle of advancing substantial justice is of prime importance.

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  • Ramlal v. Rewa Coalfields Ltd.9:

It was held that want of diligence till the last date of limitation would not disqualify a person from applying for condonation of delay. Therefore, the delay that requires to be explained is from the date the time was running out till the date of filing appeal or the application, as the case may be.

Conclusion:

Thus, it can be said that the Limitation Act does take care of and looks into all the exigencies and circumstances which go about in filing a case on time. A delay does not mean you are deprived of your Right to Litigate. On the other hand, it also takes care of circumstances where it would not actually be in the interests of justice to condone a delay, by giving ample discretion to the Courts in that regard. A study of the judgements as compiled above, also reflects that this discretion is more or less applied with care and caution and in keeping in view, the fair principles of justice. Having said that, we as litigants must take note of the fact, that there are sound reasons behind filing a case on time and it would not only be in the interests of justice but also in our collective interests to be vigilant in recognizing our rights and making sure we do not make use of these broad parameters and leeway given by the law for unlawful gains and benefits but, in fact, (and law) use them judiciously.

1 Liv v. Ramji, 3 Bom. 207

2 Perumon Bhagvathy Devasom v. Bhargavi Amma (2008) 8 SCC 321

3 Bhansali v. State of Madras, A.I.R. 1968, Mad. 373

4 State of Himachal Pradesh v. M/s Kataria Builders, 2003(1) CCC 169 (H.P)

5 Bhansali v. State of Madras, A.I.R. 1968, Mad. 373

6 1987 A.I.R. 1353, 1987 S.C.R. (2) 387

7 1976 A.I.R. 237, 1976 SCR (2) 266

8 A.I.R. 2001 SC 2582: 2001 (5) Supreme 266: 2001 (5) JT 608

9 A.I.R. 1962 SC 361

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Categories
Blog Criminal Law

Insanity as a defense under Indian Penal Code

By: Soumya Verma

Chapter IV of Indian Penal Code

Insanity is one of the defenses available in the Indian Penal Code mentioned under General Exceptions Chapter IV. General exceptions are those exceptions which are mentioned separately under the Code which a person can take to defend his case. These exceptions acts as a shield to protect the defendant under certain circumstances given from S.76-S.106. An offence when fall under these circumstances becomes no offence. The word offence means anything punishable by Indian Penal Code or under any special or local law. A separate chapter has been dedicated to sum up all the exceptions that makes the defendant non guilty in a case, so that repetition is avoided in every section. All the sections of Indian Penal Code have to be read along with these general exceptions mentioned under Chapter IV.

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Therefore these exceptions form a part of every offence, but the burden of proof is on the defendant who claims that his case falls under any of these exceptions in the court of law. We can categorically divide the exceptions under seven heads:

  1. Judicial Acts (S.77, S.78)
  2. Mistake of fact (S.76, S.79)
  3. Accident (S.80)
  4. Absence of Criminal Intent (S.81-86, S.92-94)
  5. Consent (S.87, S.90)
  6. Trifling Acts (S.95)
  7. Private Defense (S.96-106)

Till the time accused does not comes up with any of these defenses that run from S.76-S.106, the court shall presume non existence of such circumstances. When the evidence produced by any of the parties, whether prosecution or defense suggests that facts of the case falls under any of these exceptions, then the presumption of not considering the case falling under any of the general exceptions will be removed and the Court shall consider and decide on the facts and circumstances of the case and evidences products that the general exceptions will apply or not. Investigating officer of a case has to investigate a case keeping in mind all the general exceptions and decide whether an offence has actually been committed or it amounts to a no offence. The burden of proving a case has to be beyond reasonable doubt.

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Introduction to Insanity as a Defense

An act or omission in order to be a crime must satisfy two conditions of being a guilty act done with a guilty mind. This is what we mean by the term “Actus Non Facit Reum Nisi Mens Sit Rea” which is, an act does not make a person liable till the time it is done with a guilty mind. Both gulity act and intention to do that guilty act has to be there. Insanity comes within the general exceptions because it is a mental state which makes a person unfit to be in his cognitive faculties or to understand the probable consequences and nature of the act which he/she is doing. To be benefitted by this exception on has to insure that insanity should be of such an extent that it makes the accused completely incapable of knowing the nature of the act. If a person acts insane sometimes and the other time he understands the nature of what he is doing, then in  that case the Court will decide on the facts and circumstances of the case whether he was capable of knowing the consequences and nature of the acts when he committed it or not. Or in words we can say whether he was insane or not at the time of commission of the offence.

(S.84) ” Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable, of knowing the nature of the act, or that he is doing what is wrongor contrary to law.”

McNaughten Rule

Defense of insanity was developed in England in a case of R v. Daniel Mc Naughten decided y the House of Lords. In this case Mc Naughten killed the secretary of the Prime Minister of England believing him to be the Prime Minister as he consider the Prime Minister responsible or all his problems. So while he went to kill the Prime Minister, his secretary was killed by mistake. When McNaughten was being tried by the court he showed records of his mental condition before the court and pleaded insanity to be the cause of his action. His plea was accepted and he was not found guilty. This issue was discussed in the House of the Lords and a set of rules was laid down famously known as the Mc Naughten Rules to decide the culpability of an insane person.

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From the rules laid down we can conclude that:  Law presumes every person to be reasonable and sane, to know the law of the land and the consequential result of his act. In case of insanity, human beings deviate from this ordinary presumption and therefore the burden to prove his extraordinary mental condition of insanity is on him. Loss of reason has to there at the time of commission of the offence and such loss should be of such an extent that made the accused fully unaware of the nature and quality of the act in question.

Following are main points of Mc Naughten Rules:

  • Every man is to be presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved.
  • An insane person is punishable “if he knows” at the time of crime. To establish the defense of insanity, the accused, by defect of reason or disease
  • Of mind, is not in a position to know the nature and consequence, the insane person must be considered in the same situation as to responsibility
  • As if the facts with respect to which the delusion exists were real
  • It was the jury’s role to decide whether the defendant was insane.

Types of Insanity

There are two kinds of insanity Legal and Medical. Legal insanity is the only focus of the court of law and attracts the defense of Section 84 while medical insanity is not to be taken in account by the court. Legal insanity means a state when a person does not understand the nature of the act his is doing. While medical insanity could be of many kinds like an odd behaviour because of not proper functioning of the brain, or a weak intellect etc. will be treated by a medical practitioner as insanity but the court will not consider these as a valid defense under S.84 till the time it satisfies the criteria of legal insanity.

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We do not use the word ‘insanity’ under the Indian Penal Code, but unsoundness of mind which is equivalent to insanity. During investigation, the investigating officer has to subject the accused to medical examination in cases where a previous history of unsoundness of mind of accused is there, so that his current mental position could be fairly judged. This will help the prosecution to strengthen his case. In cases where there is a medical history of insanity, there will be no exemption given to the defendant  from the burden of proof because he needs to specifically prove his claim that the act is question was committed under insanity, and just the fact that there is medical history of his insanity will not serve his claim.

Time of Commission of Offence Matters

Time of commission of offence becomes the most crucial point, as it is during this time that the accused person’s mental condition is to be judged. Not knowing the nature of the act or in cases where he knows the nature then not knowing whether it is wrong or contrary to law will be looked upon to apply S.84. behaviour of the accused immediately before and after the commission of the offence becomes important. In case the accused committed the murder over a trifling matter is not a ground to claim insanity.

In cases where a person becomes insane and sane at certain intervals, then the time of commission of the said offence becomes all the more important because he can commit the offences during the time he was sane and had full knowledge of his act.

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Unsoundness of Mind

Unsoundness of mind can be from the time of birth or arising out from a disease later. In case where a person killed his sleeping  friend by cutting off his head thinking that it would be fun to see when he will wake up and find his head back, we can say that such act was done under unsoundness of mind. But in case where a man sacrificed his son to the deity believing that it will bring good luck to his family, cannot be said to be done under unsoundness of mind because he had full knowledge of what he was doing and its nature because he was expecting good fortune in return of such act. Which means he was fully aware about the nature and consequences of the act. In case muder is done in a sudden impluse and no pre determined motive and intention to kill, will not treated as unsoundness of mind. Just because it was done in a sudden span of time and not by a proper motive and plan does not matter, it will not be the same as a fit of insanity.

Case Laws

Hari Kumar Gond v. State od Madhya Pradesh[1], In this case Supreme Court held that there is no exact definiton of unsoundness of mind given in IPC. We generally treat it to be equivalent to insanity, but even insanity is not defind in law. It could be said to widely cover various degrees of mental disorders. So every mentally ill person cannot be said be be legally insane. A distinction is necessary between mental insanity and legal insanity. Court is concerned only with mental insanity and not legal insanity.

In case of Ratan Lal v. State of Madhya Pradesh[2], Court established that the crucial point of time at which the unsound mind should be proved is the time when the offence was committed and whether the accused was in such a state of mind as to be entitled to benefit from Section 84 can only be decided from the circumstances that preceded, attendant and subsequent to the event that may be relevant in determining the mental condition of the accused ast the time of the commission of the offence but not those remote in time.

Conclusion

According to my view, the concept of insanity we follow in our country suits our needs. There are different concepts that we do not apply in India and it might be included in our laws as the time suggest. We should trust our Parliament and Law Commission to come up with what is better for us at the right point of time. Presently it would be better if we have a concrete defition of the term ‘insanity’ or ‘unsoundness of mind’ as it would highlight the diffrence of understanding that court and medical experts have over the same word. It would also reduce the misuse of this exception.

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[1] (2008) 16 SCC 109

[2] JT 2002 (7) SC 627