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The Competition Act, 2002

Chapter I – Preliminary

EXTRAORDINARY

PART II — Section 1

PUBLISHED BY AUTHORITY

NO. 12 NEW DELHI, TUESDAY, JANUARY 14, 2003 / PAUSA 24, 1924

Separate paging is given to this Part in order that it may be filed as a separate compilation.

MINISTRY OF LAW AND JUSTICE

(Legislative Department)

New Delhi, the 14th January, 2003/Pausa 24, 1924 (Saka)

The following Act of Parliament received the assent of the President on the 13lh January, 2003 and is hereby published for general information:—

THE COMPETITION ACT, 2002

No. 12 OF 2003

[13thJanuary, 2003.]

An Act to provide, keeping in view of the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Fifty-third Year of the Republic of India as follows:—

Section 1. Short title, extent and commencement

(1) This Act may be called the Competition Act, 2002.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

Section 2. Definitions

In this Act, unless the context otherwise requires,—

(a) “acquisition” means, directly or indirectly, acquiring or agreeing to acquire—

(i) shares, voting rights or assets of any enterprise; or

(ii) control over management or control over assets of any enterprise;

(b) “agreement” includes any arrangement or understanding or action in concert,—

(i) whether or not, such arrangement, understanding or action is formal or in writing; or

(ii) whether or not such arrangement, understanding or action is intended to be enforceable by legal proceedings;

(c) “cartel” includes an association of producers, sellers, distributors, traders or service providers who, by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or, trade in goods or provision of services;

(d) “Chairperson” means the Chairperson of the Commission appointed under sub-section (1) of section 8;

(e) “Commission” means the Competition Commission of India established under sub-section (1) of section 7;

(f) “consumer” means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, whether such purchase of goods is for resale or for any commercial purpose or for personal use;

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person whether such hiring or availing of services is for any commercial purpose or for personal use;

(g) “Director General” means the Director General appointed under sub-section (1) of section 16 and includes any Additional, Joint, Deputy or Assistant Directors General appointed under that section;

(h) “enterprise” means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.

Explanation.-—For the purposes of this clause,—

(a) “activity” includes profession or occupation;

(b) “article” includes a new article and “service” includes a new service;

(c) “unit” or “division”, in relation to an enterprise, includes—

(i) a plant or factory established for the production, storage, supply, distribution, acquisition or control of any article or goods;

(ii) any branch or office established for the provision of any service;

(i) “goods” means goods as defined in the Sale of Goods Act, 1930 (8 of 1930) and includes—

(A) products manufactured, processed or mined;

(B) debentures, stocks and shares after allotment;

(C) in relation to goods supplied, distributed or controlled in India, goods imported into India;

(j) “Member” means a Member of the Commission appointed under sub-section (/) of section8 and includes the Chairperson;

(k) “notification” means a notification published in the Official Gazette;

(l) “person” includes—

(i) an individual;

(ii) a Hindu undivided family;

(iii) a company;

(iv) a firm;

(v) an association of persons or a body of individuals, whether incorporated or not, in India or outside India;

(vi) any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);

(vii) any body corporate incorporated by or under the laws of a country outside India;

(viii) a co-operative society registered under any law relating to cooperative societies;

(ix) a local authority;

(x) every artificial juridical person, not falling within any of the preceding sub-clauses;

(m) “practice” includes any practice relating to the carrying on of any trade by a person or an enterprise;

(n) “prescribed” means prescribed by rules made under this Act;

(o) “price”, in relation to the sale of any goods or to the performance of any services, includes every valuable consideration, whether direct or indirect, or deferred, and includes any consideration which in effect relates to the sale of any goods or to the performance of any services although ostensibly relating to any other matter or thing;

(p) “public financial institution” means a public financial institution specified under section 4A of the Companies Act, 1956 (1 of 1956) and includes a State Financial, Industrial or Investment Corporation;

(q) “regulations” means the regulations made by the Commission under section 64;

(r) “relevant market” means the market which may be determined by the Commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets;

(s) “relevant geographic market” means a market comprising the area in which the conditions of competition for supply of goods or provision of services or demand of goods or services are distinctly homogenous and can be distinguished from the conditions prevailing in the neighbouring areas;

(t) “relevant product market” means a market comprising all those products or services which are regarded as interchangeable or substitutable by the consumer, by reason of characteristics of the products or services, their prices and intended use;

(u) “service” means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising;

(v) “shares” means shares in the share capital of a company carrying voting rights and includes—

(i) any security which entitles the holder to receive shares with voting rights;

(ii) stock except where a distinction between stock and share is expressed or implied;

(w) “statutory authority” means any authority, board, corporation, council, institute, university or any other body corporate, established by or under any Central, State or Provincial Act for the purposes of regulating production or supply of goods or provision of any services or markets therefor or any matter connected therewith or incidental thereto;

(x) “trade” means any trade, business, industry, profession or occupation relating to the production, supply, distribution, storage or control of goods and includes the provision of any services;

(y) “turnover” includes value of sale of goods or services;

(z) words and expressions used but not defined in this Act and defined in the Companies Act, 1956 (1 of 1956) shall have the same meanings respectively assigned to them in that Act.

Chapter II – Prohibition of Certain Agreements, Abuse of Dominant Position and Regulation of Combinations – Prohibition of agreements

Section 3. Anti competitive agreements

(1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.

(2) Any agreement entered into in contravention of the provisions contained in subsection (1) shall be void.

(3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which—

(a) directly or indirectly determines purchase or sale prices;

(b) limits or controls production, supply, markets, technical development, investment or provision of services;

(c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way;

(d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition:

Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.

Explanation.—For the purposes of this sub-section, “bid rigging” means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding

(4) Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including—

(a) tie-in arrangement;

(b) exclusive supply agreement;

(c) exclusive distribution agreement;

(d) refusal to deal;

(e) resale price maintenance,

shall be an agreement in contravention of sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India.

Explanation.—For the purposes of this sub-section,—

(a) “tie-in arrangement” includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods;

(b) “exclusive supply agreement” includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person;

(c) “exclusive distribution agreement” includes any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods;

(d) “refusal to deal” includes any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought;

(e) “resale price maintenance” includes any agreement to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged.

(5) Nothing contained in this section shall restrict—

(i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under—

(a) the Copyright Act, 1957 (14 of 1957);

(b) the Patents Act, 1970 (39 of 1970);

(c) the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of 1999);

(d) the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999);

(e) the Designs Act, 2000 (16 of 2000);

(f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37 of 2000);

(ii) the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export.

Section 4. Abuse of dominant position

Prohibition of abuse of dominant position

(1) No enterprise shall abuse its dominant position.

(2) There shall be an abuse of dominant position under sub-section (1), if an enterprise.—-

(a) directly or indirectly, imposes unfair or discriminatory—

(i) condition in purchase or sale of goods or service; or

(ii) price in purchase or sale (including predatory price) of goods or service,

Explanation.— For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition;

or

(b) limits or restricts—

(i) production of goods or provision of services or market therefore; or

(ii) technical or scientific development relating to goods or services to the prejudice of consumers; or

(c) indulges in practice or practices resulting in denial of market access; or

(d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or

(e) uses its dominant position in one relevant market to enter into, or protect, other relevant market.

Explanation.—For the purposes of this section, the expression—

(a) “dominant position” means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to—

(i) operate independently of competitive forces prevailing in the relevant market; or

(ii) affect its competitors or consumers or the relevant market in its favour;

(b) “predatory price” means the sale of goods or provision of services, at a. price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors.

Section 5. Combination

Regulation of combinations

The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if—

(a) any acquisition where—

(i) the parties to the acquisition, being the acquirer and the enterprise, whose control, shares, voting rights or assets have been acquired or are being acquired jointly have,—

(A) either, in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;

or

(ii) the group, to which the enterprise whose control, shares, assets or voting rights have been acquired or are being acquired, would belong after the acquisition, jointly have or would jointly have,—

(A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or

(b) acquiring of control by a person over an enterprise when such person has already direct or indirect control over another enterprise engaged in production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service, if—

(i) the enterprise over which control has been acquired along with the enterprise over which the acquirer already has direct or indirect control jointly have,—

(A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;

or

(ii) the group, to which enterprise whose control has been acquired, or is being acquired, would belong after the acquisition, jointly have or would jointly have,—

(A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or

(C) any merger or amalgamation in which—

(i) the enterprise remaining after merger or the enterprise created as a result of the amalgamation, as the case may be, have,—

(A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees, three thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;

or

(ii) the group, to which the enterprise remaining after the merger or the enterprise created as a result of the amalgamation, would belong after the merger or the amalgamation, as the case may be, have or would have,—

(A) either in India, the assets of the value of more than rupees four-thousand crores or turnover more than rupees twelve thousand crores; or

(B) in I ndia or outside India, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars.

Explanation.— For the purposes of this section,—

(a) “control” includes controlling the affairs or management by—

(i) one or more enterprises, either jointly or singly, over another enterprise or group;

(ii) one or more groups, either jointly or singly, over another group or enterprise;

(b) “group” means two or more enterprises which, directly or indirectly, are in a position to —

(i) exercise twenty-six per cent. or more of the voting rights in the other enterprise; or

(ii) appoint more than fifty percent, of the members of the board of directors in the other enterprise; or

(iii) control the management or affairs of the other enterprise;

(c) the value of assets shall be determined by taking the book value of the assets as shown, in the audited books of account of the enterprise, in the financial year immediately preceding the financial year in which the date of proposed merger falls, as reduced by any depreciation, and the value of assets shall include the brand value, value of goodwill, or value of copyright, patent, permitted use, collective mark, registered proprietor, registered trade mark, registered user, homonymous geographical indication, geographical indications, design or layout-design or similar other commercial rights, if any, referred to in sub-section (5) of section 3.

Section 6. Regulation of combinations

(1) No person or enterprise shall enter into a combination which causes or is likely to cause an appreciable adverse effect on competition within the relevant market in India and such a combination shall be void.

(2) Subject to the provisions contained in sub-section (1), any person or enterprise, who or which proposes to enter into a combination, may, at his or its option, give notice to the Commission, in the form as may be specified, and the fee which may be determined, by regulations, disclosing the details of the proposed combination, within seven days of—

(a) approval of the proposal relating to merger or amalgamation, referred to in clause (c) of section 5, by the board of directors of the enterprises concerned with such merger or amalgamation, as the case may be;

(b) execution of any agreement or other document for acquisition referred to in clause (a) of section 5 or acquiring of control referred to in clause (h) of that section.

(3) The Commission shall, after receipt of notice under sub-section (2), deal with such notice in accordance with the provisions contained in sections 29, 30 and 31.

(4) The provisions of this section shall not apply to share subscription or financing facility or any acquisition, by a public financial institution, foreign institutional investor, bank or venture capital fund, pursuant to any covenant of a loan agreement or investment agreement.

(5) The public financial institution, foreign institutional investor, bank or venture capital fund, referred to in sub-section (4\ shall, within seven days from the date of the acquisition, file, in the form as may be specified by regulations, with the Commission the details of the acquisition including the details of control, the circumstances for exercise of such control and the consequences of default arising out of such loan agreement or investment agreement, as the case may be.

Explanation.—For the purposes of this section, the expression—

(a) “foreign institutional investor” has the same meaning as assigned to it in clause (a) of the Explanation to section 115AD of the Income-tax Act, 1961(43 of 1961);

(b) “venture capital fund” has the same meaning as assigned to it in clause (b) of the Explanation to clause (23 FB) of section 10 of the Income-tax Act, 1961(43 of 1961);.

Chapter III – Competition Commission of India

Section 7. Establishment of Commission

(1) With effect from such date as the Central Government may, by notification, appoint, there shall be established, for the purposes of this Act, a Commission to be called the “Competition Commission of India”.

(2) The Commission shall be a body corporate by the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued,

(3) The head office of the Commission shall be at such place as the Central Government may decide from time to time.

(4) The Commission may establish offices at other places in India.

Section 8. Composition of Commission

(1) The Commission shall consist of a Chairperson and not less than two and not more than ten other Members to be appointed by the Central Government:

Provided that the Central Government shall appoint the Chairperson and a Member during the first year of the establishment of the Commission.

(2) The Chairperson and every other Member shall be a person of ability, integrity and standing and who, has been, or is qualified to be, a judge of a High Court; or, has special knowledge of, and professional experience of not less than fifteen years in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which, in the opinion of the Central Government, may be useful to the Commission.

(3) The Chairperson and other Members shall be whole-time Members.

Section 9. Selection of Chairperson and other Members

The Chairperson and other Members shall be selected in the manner as may be prescribed.

Section 10. Term of office of Chairperson and other Members

(1) The Chairperson and every other Member shall hold office as such for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment:

Provided that no Chairperson or other Member shall hold office as such after he has attained,—

(a) in the case of the Chairperson, the age of sixty-seven years;

(b) in the case of any other Member, the age of sixty-five years.

(2) A vacancy caused by the resignation or removal of the Chairperson or any other Member under section 11 or by death or otherwise shall be filled by fresh appointment in accordance with the provisions of sections 8 and 9.

(3) The Chairperson and every other Member shall, before entering upon his office, make and subscribe to an oath of office and of secrecy in such form, manner and before such authority, as may be prescribed.

(4) In the event of the occurrence of a vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the senior-most Member shall act as the Chairperson, until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.

(5) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the senior-most Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes the charge of his functions.

Section 11. Resignation, removal and suspension of Chairperson and other members

(1) The Chairperson or any other Member may, by notice in writing under his hand addressed to the Central Government, resign his office:

Provided that the Chairperson or a Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.

(2) Notwithstanding anything contained in sub-section (1), the Central Government may, by order, remove the Chairperson or any other Member from his office if such Chairperson or Member, as the case may be,—

(a) is, or at any time has been, adjudged as an insolvent; or

(b) has engaged at any time, during his term of office, in any paid employment, or

(c) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or

(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member; or

(e) has so abused his position as to render his continuance in office prejudicial to the public interest;

or

(f) has become physically or mentally incapable of acting as a Member.

(3) Notwithstanding anything contained in sub-section (2), no Member shall be removed from his office on the ground specified in clause (d) or clause (e) of that subsection unless the Supreme Court, on a reference being made to it in this behalf by the Central Government, has, on an inquiry, held by it in accordance with such procedure as may be prescribed in this behalf by the Supreme Court, reported that the Member, ought on such ground or grounds to be removed.

Section 12. Restriction on employment of Chairperson and other Members in certain cases

The Chairperson and other Members shall not, for a period of one year from the ‘ date on which they cease to hold office, accept any employment in, or connected with the management or administration of, any enterprise which has been a party to a proceeding before the Commission under this Act:

Provided that nothing contained in this section shall apply to any employment under the Central Government or a State Government or local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).

Section 13. Financial and administrative powers of Member Administration

The Central Government shall designate any Member as Member Administration who shall exercise such financial and administrative powers as may be vested in him under the rules made by the Central Government:

Provided that the Member Administration shall have authority to delegate such of his financial and administrative powers as he may think fit to any other officer of the Commission subject to the condition that such officer shall, while exercising such delegated powers continue to act under the direction, superintendence and control of the Member Administration.

Section 14. Salary and allowances and other terms and conditions of service of Chairperson and other Members

(1) The salary, and the other terms and conditions of service, of the Chairperson and other Members, including travelling expenses, house rent allowance and conveyance facilities, sumptuary allowance and medical facilities shall be such as may be prescribed.

(2) The salary, allowances and other terms and conditions of service of the Chairperson or a Member shall not be varied to his disadvantage after appointment.

Section 15. Vacancy, etc. not to invalidate proceedings of Commission

No act or proceeding of the Commission shall be invalid merely by reason of—

(a) any vacancy in, or any defect in the constitution of, the Commission; or

(b) any defect in the appointment of a person acting as a Chairperson or as a Member; or

(c) any irregularity in the procedure of the Commission not affecting the merits of the case.

Section 16. Appointment of Director General, etc.

(1) The Central Government may, by notification, appoint a Director General and as many Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers, as it may think fit, for the purposes of assisting the Commission in conducting inquiry into contravention of any of the provisions of this Act and for the conduct of cases before the Commission and for performing such other functions as are, or may be, provided by or under this Act

(2) Every Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants and officers, shall exercise his powers, and discharge his functions, subject to the general control, supervision and direction of the Director General.

(3) The salary, allowances and other terms and conditions of service of the Director General and Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants or officers, shall be such as may be prescribed.

(4) The Director General and Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants or officers shall be appointed from amongst persons of integrity and outstanding ability and who have experience in investigation, and knowledge of .accountancy, management, business, public administration, international trade, law or economics and such other qualifications as may be prescribed.

Section 17. Registrar and officers and other employees of Commission

(1) The Commission may appoint a Registrar and such officers and other employees as it considers necessary for the efficient performance of its functions under this Act.

(2) The salaries and allowances payable to and other terms and conditions of service of the Registrar and officers and other employees of the Commission and the number of such officers and other employees shall be such as may be prescribed.

Chapter IV – Duties, Powers and Functions of Commission

Section 18. Duties of Commission

Subject to the provisions of this Act, it shall be the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India: Provided that the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign country.

Section 19. Inquiry into certain agreements and dominant position of enterprise

(1) The Commission may inquire into any alleged contravention of the provisions contained in subsection (1) of section 3 or sub-section (1) of section 4 either on its own motion or on—

(a) receipt of a complaint, accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association; or

(b) a reference made to it by the Central Government or a State Government or a statutory authority.

(2) Without prejudice to the provisions contained in sub-section (1), the powers and functions of the Commission shall include the powers and functions specified in sub-sections (3) to (7).

(3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under section 3, have due regard to all or any of the following factors, namely:—

(a) creation of barriers to new entrants in the market;

(b) driving existing competitors out of the market;

(c) foreclosure of competition by hindering entry into the market;

(d) accrual of benefits to consumers;

(e) improvements in production or distribution of goods or provision of services;

(f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.

(4) The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under section 4, have due regard to all or any of the following factors, namely:—

(a) market share of the enterprise;

(b) size and resources of the enterprise;

(c) size and importance of the competitors;

(d) economic power of the enterprise including commercial advantages over competitors;

(e) vertical integration of the enterprises or sale or service network of such enterprises;

(f) dependence of consumers on the enterprise;

(g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise;

(h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers;

(i) countervailing buying power;

(j) market structure and size of market;

(k) social obligations and social costs;

(l) relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition;

(m) any other factor which the Commission may consider relevant for the inquiry.

(5) For determining whether a market constitutes a “relevant market” for the purposes of this Act, the Commission shall have due regard to the “relevant geographic market” and “relevant product market”.

(6) The Commission shall, while determining the “relevant geographic market”, have due regard to all or any of the following factors, namely:—

(a) regulatory trade barriers;

(b) local specification requirements;

(c) national procurement policies;

(d) adequate distribution facilities;

(e) transport costs;

(f) language;

(g) consumer preferences;

(h) need for secure or regular supplies or rapid after-sales services.

(7) The Commission shall, while determining the “relevant product market”, have due regard to all or any of the following factors, namely:—

(a) physical characteristics or end-use of goods;

(b) price of goods or service;

(c) consumer preferences;

(d) exclusion of in-house production;

(e) existence of specialised producers;

(f) classification of industrial products.

Section 20. Inquiry into combination by Commission

(1) The Commission may, upon its own knowledge or information relating to acquisition referred to in clause (a) of section 5 or acquiring of control referred to in clause (b) of section 5 or merger or amalgamation referred to in clause (c) of that section, inquire into whether such a combination has
caused or is likely to cause an appreciable adverse effect on competition in India:

Provided that the Commission shall not initiate any inquiry under this sub-section after the expiry of one year from the date on which such combination has taken effect.

(2) The Commission shall, on receipt of a notice under sub-section (2) of section 6 or upon receipt of a reference under sub-section (1) of section 21, inquire whether a combination referred to in that notice or reference has caused or is likely to cause an appreciable adverse effect on competition in India.

(3) Notwithstanding anything contained in section 5, the Central Government shall, on the expiry of a period of two years from the date of commencement of this Act and thereafter every two years, in consultation with the Commission, by notification, enhance or reduce, on the basis of the wholesale price index or fluctuations in exchange rate of rupee or foreign currencies, the value of assets or the value of turnover, for the purposes of that section.

(4) For the purposes of determining whether a combination would have the effect of or is likely to have an appreciable adverse effect on competition in the relevant market, the Commission shall have due regard to all or any of the following factors, namely:—

(a) actual and potential level of competition through imports in the market;

(b) extent of barriers to entry into the market;

(c) level of combination in the market;

(d) degree of countervailing power in the market;

(e) likelihood that the combination would result in the parties to the combination being able to significantly and sustainably increase prices or profit margins;

(f) extent of effective competition likely to sustain in a market;

(g) extent to which substitutes are available or arc likely to be available in the market;

(h) market share, in the relevant market, of the persons or enterprise in a combination, individually and as a combination;

(i) likelihood that the combination would result in the removal of a vigorous and effective competitor or competitors in the market;

(j) nature and extent of vertical integration in the market;

(k) possibility of a failing business;

(l) nature and extent of innovation;

(m) relative advantage, by way of the contribution to the economic development, by any combination having or likely to have appreciable adverse effect on competition;

(n) whether the benefits of the combination outweigh the adverse impact of the combination, if any.

Section 21. Reference by statutory authority

(1) Where in the course of a proceeding before any statutory authority an issue is raised by any party that any decision which such statutory authority has taken or proposes to take. is or would be, contrary to any of the provisions of this Act, then such statutory authority may make a reference in respect of such issue to the Commission.

(2) On receipt of a reference under sub-section (1), the Commission shall, after hearing the parties to the proceedings, give its opinion to such statutory authority which shall thereafter pass such order on the issues referred to in that sub-section as it deems fit:

Provided that the Commission shall give its opinion under this section within sixty days of receipt of such reference.

Section 22. Benches of Commission

(1) The jurisdiction, powers and authority of the Commission may be exercised by Benches thereof.

(2) The Benches shall be constituted by the Chairperson and each Bench shall consist of not less than two Members.

(3) Every Bench shall consist of at least one Judicial Member.

Explanation.—For the purposes of this sub-section, “Judicial Member” means a Member who is, or has been, or is qualified to be, a Judge of a High Court.

(4) The Bench over which the Chairperson presides shall be the Principal Bench and the other Benches shall be known as the Additional Benches.

(5) There shall be constituted by the Chairperson one or more Benches to be called the Mergers Bench or Mergers Benches, as the case may be, exclusively to deal with matters referred to in sections 5 and 6.

(6) The places at which the Principal Bench, other Additional Bench or Mergers Bench shall ordinarily sit, shall be such as the Central Government may, by notification, specify.

Section 23. Distribution of business of Commission amongst Benches

(1) Where any Benches are constituted, the Chairperson may, from time to time, by order, make provisions as to the distribution of the business of the Commission amongst the Benches and specify the matters, which may be dealt with by each Bench.

(2) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench, the decision of the Chairperson thereon shall be final.

(3) The Chairperson may—

(i) transfer a Member from one Bench to another Bench; or

(ii) authorise the Members of one Bench to discharge also the functions of the Members of other Bench:

Provided that the Chairperson shall transfer, with the prior approval of the Central Government, a Member from one Bench situated in one city to another Bench situated in another city.

(4) The Chairperson may, for the purpose of securing that any case or matter which, having regard to the nature of the questions involved, requires or is required in his opinion or under the rules made by the Central Government in this behalf, to be decided by a Bench composed of more than two Members, issue such general or special orders as he may deem fit.

Section 24. Procedure for deciding a case where Members of a Bench differ in opinion

If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.

Section 25. Jurisdiction of Bench

An inquiry shall be initiated or a complaint be instituted or a reference be made under this Act before a Bench within the local limits of whose jurisdiction—

(a) the respondent, or each of the respondents, where there are more than one, at the time of the initiation of inquiry or institution of the complaint or making of reference, as the case may be, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the respondents, where there are more than one, at the time of the initiation of the inquiry or institution of complaint or making of reference, as the case may be, actually and voluntarily resides or carries on business or personally works for gain provided that in such case either the leave of the Bench is given, or the respondents who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation.—A respondent, being a person referred to in sub-clause (iii) or sub-clause (vi) or sub-clause (vii) or sub-clause (viii) of clause (l) of section 2, shall be deemed to carry on business at its sole or principal place of business in India or at its registered office in India or where it has also a subordinate office at such place.

Section 26. Procedure for inquiry on complaints under Section 19

(1) On receipt of a complaint or a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information, under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter.

(2) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission.

(3) Where on receipt of a complaint under clause (a) of sub-section (1) of section 19, the Commission is of the opinion that there exists no prima facie case, it shall dismiss the complaint and may pass such orders as it deems fit, including imposition of costs, if necessary.

(4) The Commission shall forward a copy of the report referred to in sub-section (2) to the parties concerned or to the Central Government or the State Government or the statutory authority, as the case may be.

(5) If the report of the Director General relates on a complaint and such report recommends that there is no contravention of any of the provisions of this Act, the complainant shall be given an opportunity to rebut the findings of the Director General.

(6) If, after hearing the complainant, the Commission agrees with the recommendation of the Director General, it shall dismiss the complaint.

(7) If, after hearing the complainant, the Commission is of the opinion that further inquiry is called for, it shall direct the complainant to proceed with the complaint.

(8) If the report of the Director General relates on a reference made under sub-section (/) and such report recommends that there is no contravention of the pro visions of this Act, the Commission shall invite comments of the Central Government or the State Government or the statutory authority, as the case may be, on such report and on receipt of such comments, the Commission shall return the reference if there is no prima facie case or proceed with the reference as a complaint if there is a prima facie case.

(9) If the report of the Director General referred to in sub-section (2) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.

Section 27. Orders by Commission after inquiry into agreements or abuse of dominant position

Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:—

(a) direct any enterprise or’association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, t’o discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be;

(b) impose such penalty, as it may deem fit which shall be not more than ten per cent. of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse:

Provided that in case any agreement referred to in section 3 has been entered into by any cartel, the Commission shall impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty equivalent to three times of the amount of profits made out of such agreement by the cartel or ten per cent. of the average of the turnover of the cartel for the last preceding three financial years, whichever is higher;

(c) award compensation to parties in accordance with the provisions contained in section 34;

(d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission;

(e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any:

(f) recommend to the Central Government for the division of an enterprise enjoying dominant position;

(g) pass such oilier order as it may deem fit.

Section 28. Division of enterprise enjoying dominant position

(1) The Central Government, on recommendation under clause (f) of section 27, may, notwithstanding anything contained in any other law for the time being in force, by order in writing, direct division of an enterprise enjoying dominant position to ensure that such enterprise does not abuse its dominant
position.

(2) In particular, and without prejudice to the generality of the foregoing powers, the order referred to in sub-section (1) may provide for all or any of the following matters, namely:—

(a) the transfer or vesting of property, rights, liabilities or obligations;

(b) the adjustment of contracts either by discharge or reduction of any liability or obligation or otherwise;

(c) the creation, allotment, surrender or cancellation of any shares, stocks or securities;

(d) the payment of compensation to any person who suffered any loss due to dominant position of such enterprise;

(e) the formation or winding up of an enterprise or the amendment of the memorandum of association or articles of association or any other instruments regulating the business of any enterprise;

(f) the extent to which, and the circumstances in which, provisions of the order affecting an enterprise may be altered by the enterprise and the registration thereof;

(g) any other matter which may be necessary to give effect to the division of the enterprise.

(3) Notwithstanding anything contained in any other law for the time being in force or in any contract or in any memorandum or articles of association, an officer of a company who ceases to hold office as such in consequence of the division of an enterprise shall not be entitled to claim any compensation for such cesser.

Section 29. Procedure for investigation of combination

(1) Where the Commission is of the opinion that a combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India, it shall issue a notice to show cause to the parties to combination calling upon them to respond within thirty days of the receipt of the notice, as to why investigation in respect of such combination should not be conducted.

(2) The Commission, if it is prima facie of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall, within seven working days from the date of receipt of the response of the parties to the combination, direct the parties to the said combination to publish details of the combination within ten working days of such direction, in such manner, as it thinks appropriate, for bringing the combination to the knowledge or information of the public and persons affected or likely to be affected by such combination.

(3) The Commission may invite any person or member of the public, affected or likely to be affected by the said combination, to file his written objections, if any, before the Commission within fifteen working days from the date on which the details of the combination were published under sub-section (2).

(4) The Commission may, within fifteen working days from the expiry of the period specified in sub-section (3), call for such additional or other information as it may deem fit from the parties to the said combination.

(5) The additional or other information called for by the Commission shall be furnished by the parties referred to in sub-section (4) within fifteen days from the expiry of the period specified in sub-section (4).

(6) After receipt of all information and within a period of forty-five working days from the expiry of the period specified in sub-section (5), the Commission shall proceed to deal with the case in accordance with the provisions contained in section 31.

Section 30. Inquiry into disclosures under sub-section (2) of section 6

Where any person or enterprise has given a notice under sub-section (2) of section 6. The Commission shall inquire—

(a) whether the disclosure made in the notice is correct;

(b) whether the combination has, or is likely to have, an appreciable adverse effect on competition.

Section 31. Orders of Commission on certain combinations

(1) Where the Commission is of the opinion that any combination does not, or is not likely to, have an appreciable adverse effect on competition, it shall, by order, approve that combination including the combination in respect of which a notice has been given under sub-section (2) of section 6.

(2) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall direct that the combination shall not take effect.

(3) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination, to the parties to such
combination.

(4) The parties, who accept the modification proposed by the Commission under subsection (3), shall carry out such modification within the period specified by the Commission.

(5) If the parties to the combination, who have accepted the modification under subsection (4), fail to carry out the modification within the period specified by the Commission, such combination shall be deemed to have an appreciable adverse effect on competition and the Commission shall deal with such combination in accordance with the provisions of this Act.

(6) If the parties to the combination do not accept the modification proposed by the Commission under sub-section (3), such parties may, within thirty working days of the modification proposed by the Commission, submit amendment to the modification proposed by the Commission under that sub-section.

(7) If the Commission agrees with the amendment submitted by the parties under subsection (6), it shall, by order, approve the combination.

(8) If the Commission does not accept the amendment submitted under sub-section (6), then, the parties shall be allowed a further period of thirty working days within which such parties shall accept the modification proposed by the Commission under sub-section (3).

(9) If the parties fail to accept the modification proposed by the Commission within thirty working days referred to in sub-section (6) or within a further period of thirty working days referred to in sub-section (8), the combination shall be deemed to have an appreciable adverse effect on competition and be dealt with in accordance with the provisions of this Act.

(10) Where the Commission has directed under sub-section (2) that the combination shall not take effect or the combination is deemed to have an appreciable adverse effect on competition under sub-section (9), then, without prejudice to any penalty which may be imposed or any prosecution which may be initiated under this Act, the Commission may order that—

(a) the acquisition referred to in clause (a) of section 5; or

(b) the acquiring of control referred to in clause (b) of section 5; or

(c) the merger or amalgamation referred to in clause (c) of section 5, shall not be given effect to:

Provided that the Commission may, if it considers appropriate, frame a scheme to implement its order under this sub-section.

(11) If the Commission does not, on the expiry of a period of ninety working days from the date of publication referred to in sub-section (2) of section 29, pass an order or issue direction in accordance with the provisions of sub-section (1) or sub-section (2) or sub-section (7), the combination shall be deemed to have been approved by the Commission.

Explanation.—For the purposes of determining the period of ninety working days specified in this subsection, the period of thirty working days specified in sub-section (6) and a further period of thirty working days specified in sub-section (8) shall be excluded.

(12) Where any extension of time is sought by the parties to the combination, the period of ninety working days shall be reckoned after deducting the extended time granted at the request of the parties.

(13) Where the Commission has ordered a combination to be void, the acquisition or acquiring of control or merger or amalgamation referred to in section 5, shall be dealt with by the authorities under any other law for the time being in force as if such acquisition or acquiring of control or merger or amalgamation had not taken place and the parties to the combination shall be dealt with accordingly.

(14) Nothing contained in this Chapter shall affect any proceeding initiated or which may be initiated under any other law for the time being in force.

Section 32. Acts taking place outside India but having an effect on competition in India

The Commission shall, notwithstanding that,—

(a) an agreement referred to in section 3 has been entered into outside India; or

(b) any party to such agreement is outside India; or

(c) any enterprise abusing the dominant position is outside India; or

(d) a combination has taken place outside India; or

(e) any party to combination is outside India; or

(f) any other matter or practice or action arising out of such agreement or dominant position or combination is outside India, have power to inquire into such agreement or abuse of dominant position or combination if such agreement or dominant position or combination has, or is likely to have, an appreciable adverse effect on competition in the relevant market in India.

Section 33. Power to grant interim relief

(1) Where during an inquiry before the Commission, it is proved to the satisfaction of the Commission, by affidavit or otherwise, that an act in contravention of sub-section (1) of section 3 or sub-section (1) of section 4 or section 6 has been committed and continues to be committed or that such act is about to be committed, the Commission may, by order, grant a temporary injunction restraining any party from carrying on such act until the conclusion of such inquiry or until further orders, without giving notice to the opposite party, where it deems it necessary.

(2) Where during the inquiry before the Commission it is proved to the satisfaction of the Commission by affidavit or otherwise that import of any goods is likely to contravene sub-section (1) of section 3 or subsection (1) of section 4 or section 6, it may, by order, grant a temporary injunction restraining any party from importing such goods until the conclusion of such inquiry or until further orders, without giving notice to the opposite party, where it deems it necessary and a copy of such order granting temporary injunction shall be sent to the concerned authorities.

(3) The provisions of rules 2A to 5 (both inclusive) of Order XXXIX of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall, as far as may be, apply to a temporary injunction issued by the Commission under this Act, as they apply to a temporary injunction issued by a civil court, and any reference in any such rule to a suit shall be construed as a reference to any inquiry before the Commission.

Section 34. Power to award compensation

(1) Without prejudice to any other provisions contained in this Act, any person may make an application to the Commission for an order for the recovery of compensation from any enterprise for any loss or damage shown to have been suffered, by such person as a result of any contravention of the provisions of Chapter II, having been committed by such enterprise.

(2) The Commission may, after an inquiry made into the allegations mentioned in the application made under sub-section (1), pass an order directing the enterprise to make payment to the applicant, of the amount determined by it as realisable from the enterprise as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions of Chapter II having been committed by such enterprise.

(3) Where any loss or damage referred to in sub-section (1) is caused to numerous persons having the same interest, one or more of such persons may, with the permission of the Commission, make an application under that sub-section for and on behalf of, or for the benefit of, the persons so interested, and thereupon, the provisions of rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply subject to the modification that every reference therein to a suit or decree
shall be construed as a reference to the application before the Commission and the order of the Commission thereon.

Section 35. Appearance before Commission

A complainant or defendant or the Director General may either appear in person or authorise one or more chartered accountants or company secretaries or cost accountants or legal practitioners or any of his or its officers to present his or its case before the Commission.

Explanation.—For the purposes of this section,—

(a) “chartered accountant” means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;

(b) “company secretary” means a company secretary as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 (56 of 1980) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;

(c) “cost accountant” means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;

(d) “legal practitioner” means an advocate, vakil or an attorney of any High Court, and includes a pleader in practice.

Section 36. Power of Commission to regulate its own procedure

(1) The Commission shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Commission shall have powers to regulate its own procedure including the places at which they shall have their sittings, duration of oral hearings when granted, and times of its inquiry.

(2) The Commission shall have, for the purposes of discharging its functions umder this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908(5 of 1908), while trying a suit, in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses or documents;

(e) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;

(f) dismissing an application in default or deciding it ex parte;

(g) any other matter which may be prescribed.

(3) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Commission shall be deemed to be a civil court for the purposes of section 195 (2 of 1974) and Chapter XXVI of the Code of Criminal Procedure, 1973.

(4) The Commission may call upon such experts, from the fields of economics, commerce, accountancy, international trade or from any other discipline as it deems necessary, to assist the Commission in the conduct of any inquiry or proceeding before it.

(5) The Commission may direct any person—

(a) to produce before the Director General or the Registrar or an officer authorised by it, such,books, accounts or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of which may be required for the purposes of this Act;

(b) to furnish to the Director General or the Registrar or any officer authorised by it, as respects the trade or such other information as may be in his possession in relation to the trade carried on by such person, as may be required for the purposes of this Act.

(6) If the Commission is of the opinion that any agreement referred to in section 3 or “abuse of dominant position referred to in section 4 or the combination referred to in section 5 has caused or is likely to cause an appreciable adverse effect on competition in the relevant market in India and it is necessary to protect, without further delay, the interests of consumers and other market participants in India, it may conduct an inquiry or adjudicate upon any matter under this Act after giving a reasonable oral hearing to the parties concerned.

Section 37. Review of orders of Commission

Any person aggrieved by an order of the Commission from which an appeal is allowed by this Act but no appeal has been preferred, may, within thirty days from the date of the order, apply to the Commission for review of its order and the Commission may make such order thereon as it thinks fit:

Provided that the Commission may entertain a review application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from preferring the application in time:

Provided further that no order shall be modified or set aside without giving an opportunity of being heard to the person in whose favour the order is given and the Director General where he was a party to the proceedings.

Section 38. Rectification of orders

(1) With a view to rectifying any mistake apparent from the record, the Commission may amend any order passed by it under the provisions of this Act.

(2) Subject to the other provisions of this Act, the Commission may make—

(a) an amendment under sub-section (1) of its own motion;

(b) an amendment for rectifying any such mistake which has been brought to its notice by any party to the order.

Explanation.—- For the removal of doubts, it is hereby declared that the Commission shall not, while rectifying any mistake apparent from record, amend substantive part of its order passed under the provisions of this Act.

Section 39. Execution of orders of Commission

Every order passed by the Commission under this Act shall be enforced by the Commission in the same manner as if it were a decree or order made by a High Court or the principal civil court in a suit pending therein and it shall be lawful for the Commission to send, in the event of its inability to execute it, such order to the High Court or the principal civil court, as the case may be, within the local limits of whose jurisdiction,—

(a) in the case of an order against a person referred to in sub-clause (iii) or sub-clause (vi) or subclause (vii) of clause (l) of section 2, the registered office or the sole or principal place of business of the person in India or where the person has also a subordinate office, that subordinate office, is
situated;

(c) in the case of an order against any other person, the place, where the person concerned voluntarily resides or carries on business or personally works for gain, is situated, and thereupon the court to which the order is so sent shall execute the order as if it were a decree or order sent to it for execution.

Section 40. Appeal

Any person aggrieved by any decision or order of the Commission may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Commission to him on one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908):

Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days:

Provided further that no appeal shall lie against any decision or order of the Commission made with the consent of the parties.

Chapter V – Duties of Director General

Section 41. Director General to investigate contravention

(1) The Director General shall, when so directed by the Commission, assist the Commission in investigating into any contravention of the provisions of this Act or any rules or regulations made thereunder.

(2) The Director General shall have all the powers as are conferred upon the Commission under subsection (2) of section 36.

(3) Without prejudice to the provisions of sub-section (2), sections 240 and 240A of the Companies Act, 1956 (1 of 1956), so far as may be, shall apply to an investigation made by the Director General or any other person investigating under his authority, as they apply to an inspector appointed under that Act.

Chapter VI – Penalties

Section 42. Contravention of orders of Commission

(1) Without prejudice to the provisions of this Act, if any person contravenes, without any reasonable ground, any order of the Commission, or any condition or restriction subject to which any approval, sanction, direction or exemption in relation to any matter has been accorded, given, made or granted under this Act or fails to pay the penalty imposed under this Act, he shall be liable to be detained in civil prison for a term which may extend to one year, unless in the meantime the Commission directs his release and he shall also be liable to a penalty not exceeding rupees ten lakhs.

(2) The Commission may, while making an order under this Act, issue such directions to any person or authority, not inconsistent with this Act, as it thinks necessary or desirable, for the proper implementation or execution of the order, and any person who commits breach of. or fails to comply with, any obligation imposed on him under such direction, may be ordered by the Commission to be detained in civil prison for a term not exceeding one year unless in the meantime the Commission directs his release and he shall also be liable to a penalty not exceeding rupees ten lakhs.

Section 43. Penalty for failure to comply with directions of Commission and Director General

If any person fails to comply with a direction given by—

(a) the Commission under sub-section (5) of section 36; or

(b) the Director General while exercising powers referred to in sub-section (2) of section 41, the Commission shall impose on such person a penalty of rupees one lakh for each day during which such failure continues.

Section 44. Penalty for making false statement or omission to furnish material information

If any person, being a party to a combination,—

(a) makes a statement which is false in any material particular, or knowing it to be false; or

(b) omits to state any material particular knowing it to be material, such person shall be liable to a penalty which shall not be less than rupees fifty lakhs but which may extend to rupees one crore, as may be determined by the Commission.

Section 45. Penalty for offences in relation to furnishing of information

(1) Without prejudice to the provisions of section 44, if any person, who furnishes or is required to furnish under this Act any particulars, documents or any information,—

(a) makes any statement or furnishes any document which he knows or has reason to believe to be false in any material particular; or

(b) omits to state any material fact knowing it to be material; or

(c) wilfully alters, suppresses or destroys any document which is required to be furnished as aforesaid, the Commission shall impose on such person a penalty which may extend to rupees ten lakhs.

(2) Without prejudice to the provisions of sub-section (1), the Commission may also pass such other order as it deems fit.

Section 46. Power to impose lesser penalty

The Commission may, if it is satisfied that any producer, seller, distributor, trader or service provider included in any cartel, which is alleged to have violated section 3, has made a full and true disclosure in respect of the alleged violations and such disclosure is vital, impose upon such producer, seller, distributor, trader or service provider a lesser penalty as it may deem fit, than leviable under this Act or the rules or the regulations:

Provided that lesser penalty shall not be imposed by the Commission in cases where proceedings for the violation of any of the provisions of this Act or the rules or the regulations have been instituted or any investigation has been directed to be made under section 26 before making of such disclosure:

Provided further that lesser penalty shall be imposed by the Commission only in respect of a producer, seller, distributor, trader or service provider included in the cartel, who first made the full, true and vital disclosures under this section:

Provided also that the Commission may, if it is satisfied that such producer, seller, distributor, trader or service provider included in the cartel had in the course of proceedings,—

(a) not complied with the condition on which the lesser penalty was imposed by the Commission; or

(b) had given false evidence; or

(c) the disclosure made is not vital,

and thereupon such producer, seller, distributor, trader or service provider may be tried for the offence with respect to which the lesser penalty was imposed and shall also be liable to the imposition of penalty to which such person has been liable, had lesser penalty not been imposed.

Section 47. Crediting sums realised by way of penalties to Consolidated Fund of India

All sums realised by way of penalties under this Act shall be credited to the Consolidated Fund of India.

Section 48. Contravention by companies

(1) Where a person committing contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable lo any punishment if he proves that the contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such contravention.

(2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that contravention and shall be liable to be proceeded against and punished accordingly.

Explanation.—For the purposes of this section,—

(a)”company” means a body corporate and includes a firm or other association of individuals: and

(b) “director”, in relation to a firm, means a partner in the firm.

Chapter VII – Competition Advocacy

Section 49. Competition advocacy

(1) In formulating a policy on competition (including review of laws related to competition), the Central Government may make a reference to the Commission for its opinion on possible effect of such policy on competition and on receipt of such a reference, the Commission shall, within sixty days of making such reference, give its opinion to the Central Government, which may thereafter formulate the policy as it deems fit.

(2) The opinion given by the Commission under sub-section (1) shall not be binding upon the Central Government in formulating such policy.

(3) The Commission shall take suitable measures, as may be prescribed, for the promotion of competition advocacy, creating awareness and imparting training about competition issues.

Chapter VIII – Finance, Accounts and Audit

Section 50. Grants by Central Government

The Central Government may, after due appropriation made by Parliament by law in this behalf, make to the Commission grants of such sums of money as the Government may think fit for being utilised for the purposes of this Act.

Section 51. Constitution of Fund

(1) There shall be constituted a fund to be called the “Competition Fund” and there shall be credited thereto—

(a) all Government grants received by the Commission;

(b) the monies received as costs from parties to proceedings before the Commission;

(d) the fees received under this Act;

(e) the interest accrued on the amounts referred to in clauses (a) to (c).

(2) The Fund shall be applied for meeting—

(a) the salaries and allowances payable to the Chairperson and other Members and the administrative expenses including the salaries, allowances and pension payable to the Director General, Additional, Joint, Deputy or Assistant Directors General, the Registrar and” officers and other employees of the Commission;

(b) the other expenses of the Commission in connection with the discharge of its functions and for the purposes of this Act.

(3) The Fund shall be administered by a committee of such Members of the Commission as may be determined by the Chairperson.

(4) The committee appointed under sub-section (3) shall spend monies out of the Fund for carrying out the objects for which the Fund has been constituted.

Section 52. Accounts and Audit

(1)The Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.

(2) The accounts of the Commission shall be audited by the Comptroller and Auditor-General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Commission to the Comptroller and Auditor-General of India.

Explanation.—For the removal of doubts, it is hereby declared that the orders of the Commission, being matters appealable to the Supreme Court, shall not be subject to audit under this section.

(3) The Comptroller and Auditor-General of India and any other person appointed by him in connection with the audit of the accounts of the Commission shall have the same rights, privileges and authority in connection with such audit as the Comptroller and Auditor-General of India generally has, in connection with the audit of the Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Commission.

(4) The accounts of the Commission as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded annually to the Central Government and that Government shall cause the same to be laid before each House of Parliament.

Section 53. Furnishing of returns, etc., to Central Government

(1) The Commission shall furnish to the Central Government at such time and in such form and manner as may be prescribed or as the Central Government may direct, such returns and statements and such particulars in regard to any proposed or existing measures for the promotion of competition advocacy, creating awareness and imparting training about competition issues, as the Central Government may, from time to time, require.

(2) The Commission shall prepare once in every year, in such form and at such time as may be prescribed, an annual report giving a true and full account of its activities during the previous year and copies of the report shall be forwarded to the Central Government.

(3) A copy of the report received under sub-section (2) shall be laid, as soon as may be after it is received, before each House of Parliament.

Chapter IX – Miscellaneous

Section 54. Power to exempt

The Central Government may, by notification, exempt from the application of this Act, or any provision thereof, and for such period as it may specify in such notification—

(a) any class of enterprises if such exemption is necessary in the interest of security of the State or public interest;

(b) any practice or agreement arising out of and in accordance with any obligation assumed by India under any treaty, agreement or convention with any other country or countries;

(c) any enterprise which performs a sovereign function on behalf of the Central Government or a State Government:

Provided that in case an enterprise is engaged in any activity including the activity relatable to the sovereign functions of the Government, the Central Government may grant exemption only in respect of activity relatable to the sovereign functions.

Section 55. Power of Central Government to issue directions

(1) Without prejudice to the foregoing provisions of this Act, the Commission shall, in exercise of its powers or the performance of its functions under this Act, be bound by such directions on questions of policy, other than those relating to technical and administrative matters, as the Central Government may give in writing to it from time to time:

Provided that the Commission shall, as far as practicable, be given an opportunity to express its views before any direction is given under this sub-section.

(2) The decision of the Central Government whether a question is one of policy or not shall be final.

Section 56. Power of Central Government to supersede Commission

(1) If at any time the Central Government is of the opinion—

(a) that on account of circumstances beyond the control of the Commission, it is unable to discharge the functions or perform the duties imposed on it by or under the provisions of this Act; or

(b) that the Commission has persistently made default in complying with any direction given by the Central Government under this Act or in the discharge of the functions or performance of the duties imposed on it by or under the provisions of this Act and as a result of such default the financial position of the Commission or the administration of the Commission has suffered; or

(c) that circumstances exist which render it necessary in the public interest so to do, the Central Government may, by notification and for reasons to be specified therein, supersede the Commission for such period, not exceeding six months, as may be specified in the notification:

Provided that before issuing any such notification, the Central Government shall give a reasonable opportunity to the Commission to make representations against the proposed supersession and shall consider representations, if any, of the Commission.

(2) Upon the publication of a notification under sub-section (1) superseding the Commission,—

(a) the Chairperson and other Members shall as from the date of supersession, vacate their offices as such;

(b) all the powers, functions and duties which may, by or under the provisions of this Act, be exercised or discharged by or on behalf of the Commission shall, until the Commission is reconstituted under sub-section (3), be exercised and discharged by the Central Government or such authority as the Central Government may specify in tins behalf;

(c) all properties owned or controlled by the Commission shall, until the Commission is reconstituted under sub-section (3), vest in the Central Government.

(3) On or before the expiration of the period of supersession specified in the notification issued under subsection (1), the Central Government shall reconstitute the Commission by a fresh appointment of its Chairperson and other Members and in such case any person who had vacated his office under clause (a) of sub-section (2) shall not be deemed to be disqualified for re-appointment.

(4) The Central Government shall cause a notification issued under sub-section (1) and a full report of any action taken under this section and the circumstances leading to such action to be laid before each House of Parliament at the earliest.

Section 57. Restriction on disclosure of information

No information relating to any enterprise, being an information which has been obtained by or on behalf of the Commission for the purposes of this Act, shall, without the previous permission in writing of the enterprise, be disclosed otherwise than in compliance with or for the purposes of this Act or any other law for the time being in force.

Section 58. Members, Director General, Registrar, officers and other employees, etc. of Commission to be public servants

The Chairperson and other Members and the Director General, Additional, Joint, Deputy or Assistant Directors General and Registrar and officers and other employees of the Commission shall be deemed, while acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

Section 59. Protection of action taken in good faith

No suit, prosecution or other legal proceedings shall lie against the Central Government or Commission or any officer of the Central Government or the Chairperson or any Member or the Director-General, Additional, Joint, Deputy or Assistant Directors General or Rcgistrar or officers or other employees of the Commission for anything which is in good faith done or intended to be done under this Act or the rules or regulations made thereunder.

Section 60. Act to have overriding effect

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Section 61. Exclusion of jurisdiction of civil courts

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

Section 62. Application of other laws not barred

The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

Section 63. Power to make rules

(1) The Central Government may, by notification, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-—

(a) the manner in which the Chairperson and other Members shall be selected under section 9;

(b) the form and manner in which and the authority before whom the oath of office and of secrecy shall be made and subscribed to under sub-section (3) of section 10;

(c) the financial and administrative powers which may be vested in the Member Administration under section 13;

(d) the salary and the other terms and conditions of service including travelling expenses, house rent allowance and conveyance facilities, sumptuary allowance and medical facilities to be provided to the Chairperson and other Members under sub-section (1) of section 14;

(e) the salary, allowances and other terms and conditions of service of the Director General, Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers under sub-section (3) of section 16;

(f) the qualifications for appointment of the Director General, Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers under sub-section (4) of section 16;

(g) the salaries and allowances and other terms and conditions of service of the Registrar and officers and other employees payable, and the number of such officers and employees under sub-section (2) of section 17;

(h) for securing any case or matter which requires to be decided by a Bench composed of more than two Members under sub-section (4) of section 23;

(i) any other matter in respect of which the Commission shall have power under clause (g) of subsection (2) of section 36;

(j) the promotion of competition advocacy, creating awareness and imparting training about competition issues under sub-section (3) of section 49;

(k) the form in which the annual statement of accounts shall be prepared under sub-section (1) of section 52;

(l) the time within which and the form and manner in which the Commission may furnish returns, statements and such particulars as the Central Government may require under sub-section (1) of section 53;

(m) the form in which and the time within which the annual report shall be prepared under sub-section (2) of section 53;

(n) the manner in which the monies transferred to the Central Government shall be dealt with by that Government under the fourth proviso to sub-section (2) of section 66;

(o) any other matter which is to be, or may be, prescribed, or in respect of which provision is to be, or may be, made by rules.

(3) Every notification issued under sub-section (3) of section 20 and section 54 and every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session, or in two or more successive sessions, and if. before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or rule, or both Houses agree that the notification should not be issued or rule should not be made, the notification or rule shall thereafter have effect only in such modified form or
be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule, as the case may be.

Section 64. Power to make regulations

(1) The Commission may, by notification, make regulations consistent with tills Act and the rules made thereunder to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing provisions, such regulations may provide for all or any of the following matters, namely:—

(a) the cost of production to be determined under clause (b) of the Explanation to section 4;

(b) the form of notice as may be specified and the fee which may be determined under sub-section (2) of section 6;

(c) the form in which details of the acquisition shall be filed under subsection (5) of Section 6;

(d) the fee which may be determined under clause (a) of sub-section (1) of section 19;

(e) any other matter in respect of which provision is to be, or may be, made by regulations.

(3) Every regulation made under this Act shall be laid, as soon as may be after it is made. before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation, or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.

Section 65. Power to remove difficulties

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as may appear to it to be necessary for removing the difficulty:

Provided that no such order shall be made under this section after the expiry of a period of two years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

Section 66. Repeal and saving

(1) The Monopolies and Restrictive Trade Practices Act, 1969 is hereby repealed and the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of section 5 of the said Act
(hereinafter referred to as the repealed Act) (54 of 1969) shall stand dissolved.

(2) On the dissolution of the Monopolies and Restrictive Trade Practices Commission, the person appointed as the Chairman of the Monopolies and Restrictive Trade Practices Commission and every other person appointed as Member and Director General of Investigation and Registration, Additional, Joint, Deputy, or Assistant Directors General of Investigation and Registration and any officer and other employee of that Commission and holding office as such immediately before such dissolution shall vacate their respective offices and such Chairman and other Members shall be entitled to claim compensation not exceeding three months’ pay and allowances for the premature termination of term of their office or of any contract of service:

Provided that the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission appointed on deputation basis to the Monopolies and Restrictive Trade Practices Commission, shall, on such dissolution, stand reverted to his parent cadre, Ministry or Department, as the case may be:

Provided further that the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission, employed on regular basis by the Monopolies and Restrictive Trade Practices Commission, shall become, on and from such dissolution, the officer and employee, respectively, of the Central Government with the same rights and privileges as to pension, gratuity and other like matters as would have been admissible to him if the rights in relation to such Monopolies and Restrictive Trade Practices Commission had not been transferred to, and vested in, the Central Government and shall continue to do so unless and until his employment in the Central Government is duly terminated or until his remuneration, terms and conditions of employment are duly altered by that Government:

Provided also that notwithstanding anything contained in the Industrial Disputes Act, 1947(14 of 1947), or in any other law for the time being in force, the transfer of the services of any Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee, employed in the Monopolies and Restrictive Trade Practices Commission, to the Central Government shall not entitle such Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority:

Provided also that where the Monopolies and Restrictive Trade Practices Commission has established a provident fund, superannuation, welfare or other fund for the benefit of the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or the officers and other employees employed in the Monopolies and Restrictive Trade Practices Commission, the monies relatable to the-officers and other employees whose services have been transferred by or under this Act to the Central Government shall, out of the monies standing, on the dissolution of the Monopolies and Restrictive Trade Practices Commission to the credit of such provident fund, superannuation, welfare or other fund, stand transferred to, and vest in, the Central Government and such monies which stand so transferred shall be dealt with by the said Government in such manner as may be prescribed.

(3) All cases pertaining to monopolistic trade practices or restrictive trade practices pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement’of this Act, including such cases, in which any unfair trade practice has also been alleged, shall, on such commencement, stand transferred to the Competition Commission of India and shall be adjudicated by that Commission in accordance with the provisions of the repealed Act as if that Act had not been repealed.

(4) Subject to the provisions of sub-section (3), all cases pertaining to unfair trade practices other than those referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement of this Act shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission shall dispose of such cases as if they were cases filed under that Act:

Provided that the National Commission may, if it considers appropriate, transfer any case transferred to it under this sub-section, to the concerned State Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986) and that State Commission shall dispose of such case as if it was filed under that Act.

(5) All cases pertaining to unfair trade practices referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India shall dispose of such cases as if they were cases filed under that Act,

(6) All investigations or proceedings, other than those relating to unfair trade practices, pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.

(7) All investigations or proceedings, relating to unfair trade practices, other than those referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969(54 of 1969) and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.

(8) All investigations or proceedings relating to unfair trade practices referred to in clause (x) of subsection (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969(54 of 1969), and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India and the Competition Commission of India may conduct or order for conduct of such investigation in the manner as it deems fit.

(9) Save as otherwise provided under sub-sections (3) to (8), all cases or proceedings pending before the Monopolies and Restrictive Trade Practices Commission shall abate.

(10) The mention of the particular matters referred to in sub-sections (3) to (8) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.

The Cinematograph Act, 1952

Chapter I – PRELIMINARY

1. Shot title, extent and commencement. –

ACT NO. 37 OF 1952 1* [21st March, 1952.]

An Act to make provision for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematographs. Be it enacted by Parliament as follows:-

(1) This Act may be called the Cinematograph Act, 1952.

(2) Parts I, II and IV extends to the whole of India1[***] and Part III extends to2[the Union territories] only.

(3) This Act shall come into force on such date3as the Central Government may, by notification in the Official Gazette, appoint:

4[Provided that Parts I and II shall come into force in the State of Jammu and Kashmir only on such date after the commencement of the Cinematograph (Amendment) Act, 1973 (26 of 1973), as the Central Government may, by notification in the Official Gazette, appoint.]

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1. The words “except the State of Jammu and Kashmir” omitted by Act 25 of 1973, sec. 2 (w.e.f. 28-5-1973).

2. Subs. by Act 3 of 1959, sec. 2, for “Part C States” (w.e.f. 12-3-1959).

3. Came into force on 28-7-1952, vide S.R.O. 1066, dated the 10th June, 1952, published in the Gazette of India, 1952, Pt. II, Sec. 3, p. 945.

4. The proviso added by Act 25 of 1973, sec. 2 (w.e.f. 28-5-1973).

2. Definitions –

In this Act, unless the context other wise requires,-

(a) “adult” means a person who has completed his eighteenth year;

1[(b) “Board” means the Board of Film Certification constituted by the Central Government under section 3;]

2[(bb) “certificate” means the certificate granted by the Board under section 5A;]

(c) “cinematograph” includes any apparatus for the representation of moving pictures or series of pictures;

(d) “district magistrate”, in relation to a presidency-town, means the Commissioner of police;

3[(dd) “film” means a cinematograph film;]

(e) “place” includes a house, building, tent and any description of transport, whether by sea, land or air;

(f) “prescribed” means prescribed by rules made under this Act;

4[(g) “regional officer” means a regional officer appointed by the Central Government under section 5 and includes an additional regional officer and an assistant regional officer;

(h) “Tribunal” means the Appellate Tribunal constituted under section 5D.]

COMMENTS

(i) The definition of the expression “Cinematograph” includes VCR/VCP/TV Projector as the said equipments achieve/serve the same purpose as the traditional media for exhibition of moving pictures. It must be so interpreted to take into account new and subsequent scientific developments in the field as it cannot be confined to traditional interpretation of such apparatus or simply compartmentalised. Hence, licence is necessary to carry on business of running a video parlour; Samrat Video Parlour v. State of Haryana, AIR 1993 SC 2328.

(ii) Even if the screen is separate and not inbuilt in the television set, exhibition of films through VCR/VCP/TV Projector is permissible to only a ‘licensee’ carrying on the business of running such video parlour; Regal Video v. State of Haryana, AIR 1993 SC 2372.

(iii) It is settled view that video tapes come within the expression ‘Cinematograph’ in view of the extended definition in section 2(c) which includes apparatus for the re-presentation of moving pictures or series of pictures as copy of the video should be created in respect of a cinematograph under the Act; State of Andhra Pradesh v. Nagoti Venkataramana, 1996 PTR 179.

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1. Subs. by Act 49 of 1981, sec. 2, for clause (b) (w.e.f. 1-6-1983).

2. Ins. by Act 49 of 1981, sec. 2 (w.e.f. 1-6-1983).

3.Ins. by Act 3 of 1959, sec. 3 (w.e.f. 12-3-1959).

4. Ins. by Act 49 of 1981, sec. 2 (w.e.f. 1-6-1983).

2-A. Construction of reference to any law not in force or any functionary not in existence in the State of Jammu and Kashmir-

Any reference in this Act to any law which is not in force, or any functionary not in existence, in the state of Jammu and Kashmir, shall, in relation to that Stat, be construed as a reference to the corresponding law in force, or to the corresponding functionary in existence, in that State.

—-

1. Ins. by Act 25 of 1973, sec. 3 (w.e.f. 28-5-1973).

Chapter II – CERTIFICATION OF FILMS FOR PUBLIC EXHIBITION

3. Board of Film Censors —

13. Board of Film Censors

(1) For the purpose of sanctioning films for public exhibition, the Central Government may, by notification in the official Gazette, constitute a Board to be called the2[Board of Film Certification which shall consist of a Chairman and3not less than twelve and not more than twenty five] other members appointed by the Central Government.

(2) The Chairman of the Board shall receive such salary and allowance as may be determined by the Central Government, and the other members shall receive such allowances or fees for attending the meetings of the Board as may be prescribed.

(3) The other terms and conditions of service of the members of the Board shall be such as may be prescribed

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1. Section 3, 4, 5, 5A, 5B, 5C and 6 subs. by Act 3 of 1959, sec. 4, for sections 3, 4, 5 and 6 (w.e.f. 12-3-1959).

2. Subs. by Act 49 of 1981, sec. 3, for “Board of Film Censors” (w.e.f. 1-6-1983)

3. Subs. by Act 49 of 1981, sec. 3, for “not more than nine” (w.e.f. 1-6-1983).

4. Examination of films –

1[4. Examination of films.—(1) Any person desiring to exhibit any film shall in the prescribed manner make an application to the Board for a certificate in respect thereof, and the Board may, after examining or having the film examined in the prescribed manner,—

(i) sanction the film for unrestricted public exhibition:2[***]

3[Provided that, having regard to any material in the film, if the Board is of the opinion that it is necessary to caution that the question as to whether any child below the age of twelve years may be allowed to see such a film should be considered by the parents or guardian of such child, the Board may sanction the film for unrestricted public exhibition with an endorsement to that effect; or]

(ii) sanction the film for public exhibition restricted to adults; or

4[(iia) sanction the film for public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film; or]

5[(iii) direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition under any of the foregoing clauses; or]

(iv) refuse to sanction the film for public exhibition.

(2) No action under6[the proviso to clause (i), clause (ii), clause (iia), clause (iii) or clause (iv)] of sub-section (1) shall be taken by the Board except after giving an opportunity to the applicant for representing his views in the matter.]

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1. Section 3, 4, 5, 5A, 5B, 5C and 6 subs. by Act 3 of 1959, sec. 4, for sections 3, 4, 5 and 6 (w.e.f. 12-3-1959).

2. The word “or” omitted by Act 49 of 1981, sec. 4 (w.e.f. 1-6-1983).

3. The proviso added by Act 49 of 1981, sec. 4 (w.e.f. 1-6-1983).

4. Ins. by Act 49 of 1981, sec. 4 (w.e.f. 1-6-1983).

5. Subs. by Act 49 of 1981, sec. 4, for clause (iii) (w.e.f. 1-6-1983).

6. Subs. by Act 49 of 1981, sec. 4, for “clause (ii), clause (iii) or clause (iv)” (w.e.f. 1-6-1983).

5. ADVISORY PANELS-. –

15.ADVISORY PANELS-(1) For the purpose of enabling the Board of efficiently discharge its functions under this Act, the Central Government may establish at such regional centers as it thinks fit, advisory panels each of which shall consist of such number of persons being persons qualified in the opinion of the Central Government may think fit to appoint thereto.

(2) At each regional center there shall be as many regional officers as the Central Government may think fit to appoint and rule made in this behalf may provide for the association of regional officers in the examination of films.

(3) The Board may consult in such manner as may be prescribed any advisory panel in respect of any film for which an application for a certificate has been made.

(4) It shall be the duty of every such advisory panel whether acting as a body or in committees as may be provided in the rules made in this behalf to examine the film and to make such recommendations to the Board as it thinks fit.

(5) The members of the advisory panel shall not be entitled to any salary but shall receive such fees or allowances as may be prescribed.

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1. Section 3, 4, 5, 5A, 5B, 5C and 6 subs. by Act 3 of 1959, sec. 4, for sections 3, 4, 5 and 6 (w.e.f. 12-3-1959).

5-A. CERTIFICATION OF FILMS. –

1[5A. Certification of films.—2[(1) If, after examining a film or having it examined in the prescribed manner, the Board considers that—

(a) the film is suitable for unrestricted public exhibition, or, as the case may be, for unrestricted public exhibition with an endorsement of the nature mentioned in the proviso to clause (i) of sub-section (1) of section 4, it shall grant to the person applying for a certificate in respect of the film a “U” certificate or, as the case may be, a “UA” certificate; or

(b) the film is not suitable for unrestricted public exhibition, but is suitable for public exhibition restricted to adults or, as the case may be, is suitable for public exhibition restricted to members of any profession or any class of persons, it shall grant to the person applying for a certificate in respect of the film an “A” certificate or, as the case may be, a “S” certificate.

and cause the film to be so marked in the prescribed manner:

Provided that the applicant for the certificate, any distributor or exhibitor or any other person to whom the rights in the film have passed shall not be liable for punishment under any law relating to obscenity in respect of any matter contained in the film for which certificate has been granted under clause (a) or clause (b).]

(2) A certificate granted or an order refusing to grant a certificate in respect of any film shall be published in the Gazette of India.

(3) Subject to the other provisions contained in this Act, a certificate granted by the Board under this section shall be valid throughout India for a period of ten years.]

COMMENTS

(i) Mere grant of certification to other films, which have more or similar obscene or pornographic scenes could not automatically entitle a producer of film to a certification under section 5A; Ms. A. Arulmozhi v. Government of India, AIR 2006 Mad 49.

(ii) The particular film must conform to the requirements of law so as to be entitled to a certification. It is irrelevant if other films granted certification have more or similar obscene or pornographic scenes or events. The producer of such film is not entitled to avail the protection under Article 14 of the Constitution of India; B.K. Adarsh v. Union of India, AIR 1990 AP 100.

(iii) Contemporary and moral standards as well as the effect on viewer, especially young and adolescent are the relevant factors, in determination of obscenity for the purposes of this Act; B.K. Adarsh v. Union of India, AIR 1990 AP 100.

(iv) A film has to cater to the tastes of different kinds of people and thus, different topics are covered, before the film ends. Therefore, the ultimate reaction when the film ends and whether it offends any strata of the society are the two crucial factors considered in determination of certification thereof; P.Jagajeevan Ram v. Government of India, AIR 1989 Mad 149.

(v) Where in a film, there were repeated assertions of the heroine whose father procured a false caste certificate for her to gain advantages of reservation and of her father to the effect that Constitution of India led both of them to cheat and impersonate and advocates framers of reservation policy should be punished, instead of punishing the father-daughter duo, the main thrust was to project to the public at large that the reservation policy itself was retrograde making it framers punishable. It certainly, amounted to contravention of the provisions of this Act as it was a grave provocation to gullible and rural masses to take law in their hands and punish the framers of the Constitution; P. Jagajeevan Ram v. Government of India, AIR 1989 Mad, 149.

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1. Section 3, 4, 5, 5A, 5B, 5C and 6 subs. by Act 3 of 1959, sec. 4, for sections 3, 4, 5 and 6 (w.e.f. 12-3-1959).

2. Subs. by Act 49 of 1981, sec. 5, for sub-section (1) (w.e.f. 1-6-1983)

5-B. PRICIPLES FOR GUIDANCE IN CERTIFYING FILMS. –

1[5B. Principles for guidance in certifying films.—(1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of

2[the sovereignty and integrity of India] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.

(2) Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.]

COMMENTS

(i) The court exercising writ jurisdiction would not ordinarily substitute its view for the view of an expert. But where the decision of the Central Board of Film Certification entrenches upon the fundamental right to the freedom of speach and expression, it is not merely the function but the duty and responsibility of the court to intervene; F.A. Picture International v. Central Board of Film Certification, AIR 2005 Bom 145.

(ii) Videograph is controlled by the provisions of this Act. An interview and videograph of condemned prisoners is also subject to issuance of license under this section of the Act; M.Hasan v. Government of Andhra Pradesh; AIR 1998 AP 35.

(iii) The film “Bandit Queen” dealt with the life of a village female child transformed to a dreaded dacoit due to social evil and brutalities, to which was subjected. Scenes of nudity and rape therein and use of expletive were permitted being in aid of them. Held, scenes were intended not to arouse prurient or lascivious thoughts but a sense of revulsion against perpetrators and pity for victim. Hence, grant of ‘A’ certificate subject to certain conditions, was in compliance with the reguisite guidelines; Bobby Art International v. Om Pal Singh Hoon, AIR 1996 SC 1846.

(iv) Where an application for grant of censorship certificate is made before an authority concerned, a duty is cast upon the latter to pass such orders as may be appropriate, and expeditiously. The court is not competent to state whether the film can be released for public exhibition or not in the absence of any order passed by such authority concerned, or otherwise interfere with or step into the shoes of such authority concerned. However, the court exercised its power to direct the authority concerned to pass orders within the time specified by the court; R.K. Star Productions v. Union of India, AIR 1995 Mad 4.

(v) If the authority concerned refuses to grant the censor certificate or impose restrictions, the onus lies heavily on it to justify the decision with reasons for such refusal or restrictions, if such decision adversely affects the fundamental right granted under Article 19(1)(a) of the Constitution; Union of India v. Cinemart Foundation, AIR 1993 SC 171.

(vi) A scene where the heroine justifies the crime of procurement of false caste certificate holds the reservation policy as retrograde and even suggests punishment of framers of Constitution instead of those committing such crime, it amounted to infringement of the guidelines framed for the purpose of this Act; P. Jagajeeven Ram v. Government of India, AIR 1989 Mad 149.

(vii) The bodily movement suggestive of the girl (heroine) being touched at various erotic points of her body in an unusual scene where the same heroine is being sexually assaulted by an unsatisfied invisible spirit/soul, amount to vulgar display of sheer eroticism thereby violating the prohibitions contained in the guidelines issued by the Central Government under sub-section (2) of section 5B; Ramanlal Lalbhai Desai v. Central Board of Film Certification, Bombay, AIR 1988 Bom 278.

(viii) Prolonged and unduly long exposure of the nude body of the heroine in three rape and one attempted rape scenes, and also during the intimate love-making scene with the hero, without any relevance to the elements of the film’s story at various intervals, blatantly violates the guidelines issued by the Central Government under sub-section (2) of section 5B; Ramanlal Lalbhai Desai v. Central Board of Film Certification, Bombay, AIR 1988 Bom 278.

(ix) Mere display of pictures and sculptures (in the bedroom) which are not otherwise banned does not amount to obscenity or in any way, cater to the lascivious taste of prurient; Ramanlal Lalbhai Desai v. Central Board of Film Certification, Bombay, AIR 1988 Bom 278.

(x) Neither the immolation by sati is in any way the same thing as the glorification of sati nor are the supernatural/superstitious elements in the film unconventional, insensitive and irresponsible to the values and standards of the society to warrant refusal of certificate; Ramanlal Lalbhai Desai v. Central Board of Film Certification, Bombay, AIR 1988 Bom 278.

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1. Section 3, 4, 5, 5A, 5B, 5C and 6 subs. by Act 3 of 1959, sec. 4, for sections 3, 4, 5 and 6 (w.e.f. 12-3-1959).

2. Ins. by Act 49 of 1981, sec. 6 (w.e.f. 1-6-1983).

5-C. APPEALS. –. –

1[25-C. APPEALS. –(1) Any person applying for a certificate in respect of a film who is aggrieved by any order of the Board –

(a) Refusing to grant a certificate ; or

(b) Granting only an “A” certificate ; or

(c) Granting only a “S” certificate ; or

(d) Granting only a “UA” certificate ; or

(e) Directing the applicant to carry out any excisions or modifications,may, within thirty days from the date of such order, prefer an appeal to the Tribunal :

Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the aforesaid period of thirty days, allow such appeal to be admitted within a further period of thirty days.

(2) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order appealed against where such statement has been furnished to the appellant and by such fees, not exceeding rupees one thousand, as may be prescribed.

—————-

1. Section 3, 4, 5, 5A, 5B, 5C and 6 subs. by Act 3 of 1959, sec. 4, for sections 3, 4, 5 and 6 (w.e.f. 12-3-1959).

2. Subs. by Act 49 of 1981, sec. 7, for section 5C (w.e.f. 1-6-1983).

5-D. CONSTITUTION OF APPELLATE TRIBUNAL. –

15-D. CONSTITUTION OF APPELLATE TRIBUNAL.(1) For the purpose of hearing appeals against any order of the Board under Section 5-C, the Central Government shall, by notification in the Official Gazette, constitute an Appellate Tribunal.

(2) The head office of the Tribunal shall be at New Delhi or at such other place as the Central Government may, by notification in the Official Gazette, specify.

(3) Such Tribunal shall consist of a Chairman and not more than four other members appointed by the Central Government.

(4) A person shall not be qualified for appointment as the Chairman of the Tribunal unless he is a retired Judge of a High Court, or is a person who is qualified to be a Judge of a High Court.

(5) The Central Government may appoint such persons who, in its opinion, are qualified to judge the effect of films on the public, to be members of the Tribunal.

(6) The Chairman of the Tribunal shall receive such salary and allowances as may be determined by the Central Government and the members shall receive such allowances or fees as may be prescribed.

(7) Subject to such rules as may be made in this behalf, the Central Government may appoint a Secretary and such other employees as it may think necessary for the efficient performance of the functions of the Tribunal under this Act.

(8) The Secretary to, and other employees of, the Tribunal shall exercise such powers and perform such duties as may be prescribed after consultation with the Chairman of the Tribunal.

(9) The other terms and conditions of service of the Chairman and members of, and the Secretary to, and other employees of, the Tribunal shall be such as may be prescribed.

(10) Subject to the provisions of this Act, the Tribunal may regulate its own procedure.

(11) The Tribunal may, after making such inquiry into the matter as it

considers necessary, and after giving the appellant and the Board an opportunity of being heard in the matter, make such order in relation to a film as it thinks fit and the Board shall dispose of the matter in conformity with such order.

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1. Ins. by Act 49 of 1981, sec. 8 (w.e.f. 1-6-1983).

5E-Suspension and revocation of certificate.—

15E-Suspension and revocation of certificate.

Suspension and revocation of certificate- (1) Notwithstanding anything contained in sub section (2) of Section 6,the Central Government may, by notification in the Official Gazette, suspend a certificate granted under this Part, for such period as it thinks fit or may revoke such certificate if it is satisfied that-

(i) The film in respect of which the certificate was granted, was being exhibited in a form other than the one in which it was certified , or

(ii) The film or any part thereof it being exhibited in contravention of the provisions of this part rules made there under.

(2) Where a notification under sub-section (1) has been published, the Central Government may require the applicant for certificate or any other person to whom the rights in the film have passed, or both, to deliver up the certificate and all duplicate certificates, if any, granted in respect of the film to the Board or to any person or authority specified in the said notification.

(3) No action under this section shall be taken except after giving an opportunity to the person concerned for representing his views in the matter.

(4) During the period in which a certificate remains suspended under this section, the film shall be deemed to be an uncertified film.

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1. Ins. by Act 49 of 1981, sec. 8 (w.e.f. 1-6-1983).

5-F. REVIEW OF ORDERS BY CENTRAL GOVERNMENT. –

(1) Where an applicant for a certificate or any other person to whom the rights in the film have passed, is aggrieved by any order of the Central Government under Section 5-E, he may, within sixty days of the date of publication of the notification in the Official Gazette, make an application to the Central Government for review of the order, setting out in such application the grounds on which he considers such review to be necessary:

Provided that the Central Government may, if it is satisfied that the applicant for a certificate or that other person was prevented by sufficient cause from filing an application for review within the aforesaid period of sixty days, allow such application to be filed within a further period of sixty days.

(2) On receipt of the application under sub-section (1), the Central Government may, after giving the aggrieved person a reasonable opportunity of being heard, and after making such further inquiry, as it may consider necessary, pass such order as it thinks fit, confirming, modifying or reversing its decision and the Board shall dispose of the matter in conformity with such order.

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1.Ins. by Act 49 of 1981, sec. 8 (w.e.f. 1-6-1983).

6. Revisional powers of the Central Government –

1[6. Revisional powers of the Central Government.—(1) Notwithstanding anything contained in this Part, the Central Government2[may, of its own motion, at any stage,] call for the record of any proceeding in relation to any film which is pending before, or has been decided by, the Board,3[or, as the case may be, decided by the Tribunal (but not including any proceeding in respect of any matter which is pending before the Tribunal)] and after such inquiry, into the matter as it considers necessary, make such order in relation thereto as it thinks fit, and the Board shall dispose of the matter in conformity with such order:

Provided that no such order shall be made prejudicially affecting any person applying for a certificate or to whom a certificate has been granted, as the case may be, except after giving him an opportunity for representing his views in the matter:

3[Provided further that nothing in this sub-section shall require the Central Government to disclose any fact which it considers to be against public interest to disclose.]

(2) Without prejudice to the powers conferred on it under sub-section (1), the Central Government may, by notification in the Official Gazette, direct that—

(a) a film which has been granted a certificate shall be deemed to be an uncertified film in the whole or any part of India; or

(b) a film which has been granted a “U” certificate3[or a “UA” certificate or a “S” certificate] shall be deemed to be a film in respect of which an “A” certificate has been granted; or

4[(c) the exhibition of any film be suspended for such period as may be specified in the direction:]

5[Provided that no direction issued under clause (c) shall remain in force for more than two months from the date of the notification.]

(3) No action shall be taken under clause (a) or clause (b) of sub-section (2) except after giving an opportunity to the person concerned for representing his views in the matter.

(4) During the period in which a film remains suspended under clause (c) of sub-section (2), the film shall be deemed to be an uncertified film.]

COMMENTS

The Legislature may, in certain cases overrule or nullify the judicial or executive decision by enacting an appropriate legislation. The executive cannot sit in an appeal or review or revise a judicial order; Union of India v. K.M. Shankarappa, AIR 2000 SC 3678.

—————–

1. Section 3, 4, 5, 5A, 5B, 5C and 6 subs. by Act 3 of 1959, sec. 4, for sections 3, 4, 5 and 6 (w.e.f. 12-3-1959).

2. Subs. by Act 49 of 1981, sec. 9, for ‘‘may at any stage’’ (w.e.f. 1-6-1983).

3. Ins. by Act 49 of 1981, sec. 9 (w.e.f. 1-6-1983).

4. Ins. by Act 19 of 1953, sec. 2 (w.e.f. 16-5-1953).

5. Subs. by Act 19 of 1953, sec. 2, for the proviso (w.e.f. 16-5-1953).

6-A.-Information and documents to be given to distributors and exhibitors with respect to certified films.

16-A.-Information and documents to be given to distributors and exhibitors with respect to certified films. Information and documents to be given to distributors and exhibitors with respect to certified films – Any person who delivers any certified film to any distributor or exhibitor shall, in such manner as may be prescribed, notify to the distributor or exhibitor, as the case may be, the title, the length of the film, the number and the nature of the certificate granted in respect thereof and the conditions, if any, subject to which it has been so granted, and any other particulars respecting the film which may be prescribed.

2[***]

1. Ins. by Act 19 of 1953, sec. 3 (w.e.f. 16-5-1953).

2. Section 6B omitted by Act 56 of 1984, sec. 2 (w.e.f. 27-8-1984) Earlier section 6B was inserted by Act 49 of 1981, sec. 10 (w.e.f. 1-6-1983).

7. Penalties for contraventions of this Part –

1[(1) If any person—

(a) exhibits or permits to be exhibited in any place—

(i) any film other than a film which has been certified by the board as suitable for unrestricted public exhibition or for public exhibition restricted to adults2[or to members of any profession or any class of persons] and which, when exhibited, displays the prescribed mark of the Board and has not been altered or tampered with in any way since such mark was affixed thereto,

(ii) any film, which has been certified by the Board as suitable for public exhibition restricted to adults, to any person who is not an adult,3[***].

2[(iia) any film which has been certified by the Board as suitable for public exhibition restricted to any profession or class of persons, to a person who is not a member of such profession or who is not a member of such class, or]

(b) without lawful authority (the burden of proving which shall be on him), alters or tampers with in any way any film after it has been certified, or

(c) fails to comply with the provision contained in section 6A or with any order made by the Central Government or by the Board in the exercise of any of the powers or functions conferred on it by this Act or the rules made thereunder,

4[5[he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to one lakh rupees, or with both, and in the case of a continuing offence with a further fine which may extend to twenty thousand rupees for each day during which the offence continues:

Provided that a person who exhibits or permits to be exhibited in any place a video film in contravention of the provisions of sub-clause (i) of clause (a) shall be punishable with imprisonment for a term which shall not be less than three months, but which may extend to three years and with fine which shall not be less than twenty thousand rupees, but which may extend to one lakh rupees, and in the case of a continuing offence with a further fine which may extend to twenty thousand rupees for each day during which the offence continues:

Provided further that a court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months, or a fine of less than twenty thousand rupees]]:

6[Provided further that] notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate, or any Judicial Magistrate of the first class specially empowered by the State Government in this behalf, to pass a sentence of fine exceeding five thousand rupees on any person convicted of any offence punishable under this Part:

7[Provided also] that no distributor or exhibitor or owner or employee of a cinema house shall be liable to punishment for contravention of any condition of endorsement of caution on a film certified as “UA” under this Part.]

(2) If any person is convicted of an offence punishable under this section committed by him in respect of any film, the convicting court may further direct that the film shall be forfeited to the Government.

(3) The exhibition of a film, in respect of which an “A” certificate8[or a “S” certificate or a “UA” certificate] has been granted, to children below the age of three years accompanying their parents or guardians shall not be deemed to be an offence within the meaning of this section.

————————

1. Subs. by Act 19 of 1953, sec. 4, for sub-section (1) (w.e.f. 16-5-1953).

2. Ins. by Act 49 of 1981, sec. 11 (w.e.f. 1-6-1983).

3. The word “or” omitted by Act 49 of 1981, sec. 11 (w.e.f. 1-6-1983).

4. Subs. by Act 49 of 1981, sec. 11, for certain words (w.e.f. 1-6-1983).

5. Subs. by Act 56 of 1984, sec. 3, for certain words (w.e.f. 27-8-1984).

6. Subs. by Act 56 of 1984, sec. 3, for “Provided that” (w.e.f. 27-8-1984).

7. Subs. by Act 56 of 1984, sec. 3, for “Provided further” (w.e.f. 27-8-1984).

8. Ins. by Act 49 of 1981, sec. 11 (w.e.f. 1-6-1983).

7-A. Power of seizure-

1[7A. Power of seizure.—(1) Where a film in respect of which no certificate has been granted under this Act is exhibited, or a film certified as suitable for public exhibition restricted to adults is exhibited to any person who is not an adult or a film is exhibited in contravention of any of the other provisions contained in this Act or of any order made by the Central Government2[,the Tribunal] or the Board in the exercise of any of the powers conferred on it, any police officer may,3[***] enter any place in which he has reason to believe that the film has been or is being or is likely to be exhibited, search it and seize the film.

(2) All searches under this Act shall be carried out in accordance with the provisions of the4[Code of Criminal Procedure, 1973 (2 of 1974)], relating to searches.

————————–

1. Ins. by Act 3 of 1959, sec. 5 (w.e.f. 12-3-1959).

2. Ins. by Act 49 of 1981, sec. 12 (w.e.f. 1-6-1983).

3. Certain word omitted by Act 49 of 1981, sec. 12 (w.e.f. 1-6-1983).

4. Subs. by Act 49 of 1981, sec. 12, for “Code of Criminal Procedure, 1898 (5 of 1898)” (w.e.f. 1-6-1983).

7-B. Delegation of powers by Board [(Note:- Original S. 7-B, renumbered as sub-section –

1[7B. Delegation of powers by Board.—2[(1)] The Central Government may, by general or special order, direct that any power, authority or jurisdiction exercisable by the Board under this Act shall,3[in relation to the certification of the films under this Part] and subject to such condition, if any, as may be specified in the order, be exercisable also by the Chairman or any other member of the Board, and anything done or action taken by the Chairman or other member specified in the order shall be deemed to be a thing done or action taken by the Board.]

41[(2) The Central Government may, by order and subject to such conditions and restrictions as may be prescribed, authorise the regional officer to issue provisional certificates.]

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1. Ins. by Act 3 of 1959, sec. 5 (w.e.f. 12-3-1959).

2. Section 7 renumbered as sub-section (1) thereof by Act 49 of 1981, sec. 13 (w.e.f. 1-6-1983).

3. Subs. by Act 49 of 1981, sec. 13, for “in relation to such matters” (w.e.f. 1-6-1983).

4. Ins. by Act 49 of 1981, sec. 13 (w.e.f. 1-6-1983).

7–C . Power to direct exhibition of films for examination.

1Power to direct exhibition of films for examination – For the purpose of exercising any of the powers conferred on it by this Act, the Central Government,2the Tribunal or the Board may require any film to be exhibited before it or before3any persons or authority (Note:- Subs. by Act 49 of 1981 specified by it in this behalf.

———————-

1. Ins. by Act 3 of 1959, sec. 5 (w.e.f. 12-3-1959).

2. Ins. by Act 49 of 1981, sec. 14 (w.e.f. 1-6-1983).

3. Subs. by Act 49 of 1981, sec. 14, for “any person” (w.e.f. 1-6-1983).

7-D.Vacancies, etc., not to invalidate proceeding.

1Vacancies, etc., not to invalidate proceeding – No act or proceeding of2[the Tribuna the Board or of any advisory panel shall be deemed to be invalid by reason only of a vacancy in, or any defect in the constitution of [the Tribuna (Note:- Ins. by ibid)] the Board or panel, as the case may be.

——————–

1. Ins. by Act 3 of 1959, sec. 5 (w.e.f. 12-3-1959).

2. Ins. by Act 49 of 1981, sec. 15 (w.e.f. 1-6-1983).

7-E.Members of the Board and advisory panels, to be public servants.

1Members of the Board and advisory panels to be public servants – All members of2the [the Tribunal, the Board and of any advisory panel shall, when acting or purporting to act in pursuance of any of the provisions of this Act, be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code (45 of 1860).

———————–

1. Ins. by Act 3 of 1959, sec. 5 (w.e.f. 12-3-1959).

2. Ins. by Act 49 of 1981, sec. 16 (w.e.f. 1-6-1983).

7-F.Bar of legal proceedings.

17-F.Bar of legal proceedings.Bar of legal proceedings –

No suit or other legal proceeding shall lie against2the Central Government, [the Tribunal, the Board, advisory panel or any officer or member of3the Central Government,the Tribunal, the Board or advisory panel, as the case may be, in respect of anything which is in good faith done or intended to be done under this Act.]

———————-

1. Ins. by Act 3 of 1959, sec. 5 (w.e.f. 12-3-1959).

2. Subs. by Act 49 of 1981, sec. 17, for “the Central Government, the Board” (w.e.f. 1-6-1983).

3. Subs. by Act 49 of 1981, sec. 17, for “the Central Government, the Board or” (w.e.f. 1-6-1983).

8. Power to make rules – .

(1) The Central Government may, by notification in the Official Gazette, make rules for the purpose of carrying into effect the provisions of this Part.

1(2) [(Note:- Subs. by Act 49 of 1981 (w.e.f. 1-6-1983) In particular, and without prejudice to the generality of the foregoing power, rules made under this section may provide for-

(a) The allowance or fees payable to the members of the Board.

(b) The terms an conditions of service of the members of the Board.

(c) The manner of making an application to the Board for a certificate and the manner in which a film has to be examined by the Board and the fees to be levied therefore.

(d) The association of regional officers in the examination of films, the conditions and restrictions subject to which regional officers may be authorised under Section 7-B to issue provisional certificates and the period of validity of such certificates.

(e) The manner in which the Board may consult any advisory panel in respect of any film.

(f) The allowance or fees payable to the members of advisory panel

(g) The marking of the films

(h) The allowances or fees payable to the members of the Tribunal

(i)The powers and duties of the Secretary to, and other employee of, the

Tribunal.

(j)The other terms and conditions of service of the Chairman and members of, and the Secretary to, and other employees of, the Tribunal

(k) The fees payable by the appellant to the Tribunal in respect of an appeal;

(l) The conditions (including conditions relating to the length of films in general or any class of films, in particular) subject to which any certificate may be granted, or the circumstances in which any certificate shall be refused.

(m) Any other matter which is required to be or may be prescribed.]

2(3) Every rule made by the Central Government under this Part shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session , for total period of thirty days which may be comprise in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall, thereafter, have effect only in such modified form or be of no effect, as the case may be so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]

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1. Subs. by Act 49 of 1981, sec. 18, for sub-section (2) (w.e.f. 1-6-1983).

2. Subs. by Act 25 of 1973, sec. 4, for sub-section (3) (w.e.f. 28-5-1973).

9. Power to exempt -.

The Central Government may, by order in writing exempt, subject to such conditions and restrictions, if any, as it may impose, the exhibition of any film or class of films from any of the provisions of this Part or of any rules made there under.

———————–

1. For such general exemption, see Gazette of India, 1952, Pt. II, Sec. 3, pp. 1578-1581.

Chapter III – REGULATION OF EXHIBITIONS BY MEANS OF CINEMATOGRAPHS

10. Cinematograph exhibitions to be licensed –

Save as otherwise provided in this Part, no person shall give an exhibition by means of a cinematograph elsewhere that in a place licensed under this Part or otherwise than in compliance with any conditions and restrictions imposed by such liecnes.

11. Licensing authority –

The authority having power to grant licences under this Part (hereinafter referred to as the licensing authority) shall be the district magistrate.

Provided that the State Government may, by notification in the Official Gazette, constitute, for the whole or any part of a1Union territory], such other authority as it may specify in the notification to be the licensing authority for the purposes of this Part.

—————

1. Subs. by Act 58 of 1960, sec. 3 and Sch. II, for “Part C State” (w.e.f. 26-12-1960).

12. Restrictions on powers of licensing authority –

(1) The licensing authority shall not grant a licence under this Part, unless it is satisfied that-

(a) The rules made under this Part have been substantially complied with, and

(b) Adequate precautions have been taken in the place, in respect of which the licence is to be given, to provide for the safety of persons attending exhibitions therein.

(2) Subject to the foregoing provisions of this section and to the control of the State Government, the licensing authority may grant licence under this Part to such persons s that authority thinks fit an on such terms and conditions and subject to such restrictions as it may determine.

(3) Any person aggrieved by the decision a licensing authority refusing to grant a licence under this Part may, within such time as may be prescribed, appeal to the State Government or to such officer as the State Government may speicfy in this behalf and the State Government or the officer, as the case may be, may make such order in the case as it or he thinks fit.

(4) The Central Government may, form time to time, issue directions to licensees generally or to any licensee in particular for the purpose of regulating the exhibition of any film or class of films, so that scientific films, films intended for educational purposes, films dealing with news and current events, documentary films or indigenous films secure and adequate opportunity of being exhibited, and where any such directions have been issued those directions shall be deemed to be additional conditions and restrictions subject to which the licence has been granted.

Notes

The exprssion “may” used in sub section (2) cannot be read as “shall” Tajdin Facerbhai v. Union Territory of Goa, AIR 1965 Goa 158.

If the licensing authority does not surrender its own judgement to the Government it is entitled in law to give weight to the opinion of the Government. Tajdin Facerbhai v. Union Territory of Goa, AIR 1965 Goa 158.

Where the appellant authority without passing any written order directed the Distrcit Magistrate to inform the petitioner that it was not possible to grant the licene as various directs were found under Cinematograph Rules, the order was fit to be set aside and a direction ws given to the Government to dispose of the appeal as per law. Tajdin Facerbhai v. Union Territory of Goa, AIR 1971 Goa 27.

The final order which the appellate passes in appeal is a quasi-judicial order. When it is a quasi-judicial order it must be a speaking order. Reasons must be given by the appellate authority for allowing or dismissing the appeal. Tajdin Facerbhai v. Union Territory of Goa, AIR 1971 Goa 27.

During the pendency of an application under sub section (3) of Section 12 a writ petition is maintainable. Tajdin Facerbhai v. Union Territory of Goa, AIR 1967 Goa158.

13. Power of Central Government or local authority to suspend exhibition of films in certain cases —

(1) The Lieutenant- Governor or, as the case may be, the Chief Commissioner, in respect of the1whole or any part of a Union territory], and the district magistrate in respect of the district within his jurisdiction, any, if he is of opinion that any film which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the film and during such suspension the film shall be deemed to be an uncertified film in the State, part or district, as the case may be.

(2) Where an order under sub section 91)has been issued by the Chief Commissioner or a district magistrate, as the case may be a copy thereof, together with a statement of reasons therefore, shall forthwith be forwarded by the person making the same to the Central Government, and the Central Government may either confirm or discharge the order.

(3) An order made under this section shall remain in tore for a period of two months from the date thereof, but the Central Government may, if it is of opinion that the order should continue in force, direct that the period of suspension shall be extended by such further period as it thinks fit.

———

1. Subs. by Act 58 of 1960, sec. 3 and Sch. II, for “whole Part C State or any part thereof” (w.e.f. 26-12-1960).

14. Penalties for contravention of this Part –

If the owner of person in charge of a cinematograph uses the same or allows it to be used, or if he owner or occupier of any place permits that place to be used in contravention of the provision of this Part or of the rules made there under, or of the condition and restrictions upon or subject to which any licence has been granted under this Part, he shall be punishable with fine which may extend to one thousand d rupees and, in the case of a continuing offence, with a further fine which may extend to one hundred rupees for each day during which the offence continues.

15. Power to revoke licence –

Where the holder of a licence has been convicted of an offence under Section 7 or Section 14, the licence may be revoked by the licensing authority.

16. Power to make rules – –

1(1)] The Central Government may, by notification in the Official Gazette, make rules-

(a) Prescribing the terms, conditions and restrictions, if any, subject to which licences may be grated under this part.

(b) Providing for the regulation of cinematograph exhibitions for securing the public safety.

(c) Prescribing the time within which and the conditions subject to which an appeal under sub section (3) of Section 12 may be preferred.

2(2) Every rule made by the Central Government under this Part shall be laid, as soon s may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree that the rule should be me made, the rule shall thereafter have effect only in such modified form or be of no effect, the case maybe, so, however, that any such modification or annulment shall be without prejudice the validity of anything previously done under that rule.

—————-

1. Section 11 renumbered as sub-section (1) thereof by Act 49 of 1981, sec. 19 (w.e.f. 1-6-1983).

2. Ins. by Act 49 of 1981, sec. 19 (w.e.f. 1-6-1983).

17. Power to exempt –

The Central Government may by order in writing exempt,1subject to such conditions and restrictions as it may impose, any cinematograph exhibition or class or cinematograph exhibitions from any of the provisions of this part or of any rules made there under.

Notes

As the expression Central Government in relation to anything done before the constitution means the Governor-General or Governor-General in Council, it is obvious that the Notification of 1942 issued by the Chief Commissioner of Delhi under Section 9 of Cinematograph Act, 1918 must be deemed to have been issued by the Central Government. It cannot be said to be inconsistent with the Act of 1952.

———————

1. For such general exemptions, see Gazette of India, 1954, Pt. II, Sec. 3, p. 240, Gazette of India, 1955, Pt. II, Sec. 3, p. 310.

Chapter IV – REPEAL

18. Repeal –

The cinematograph Act, 1918 (2 of 1918), is hereby repealed.

Provided that in relation to part A states and Part B states the repeal shall have effect only in so far as the said Act relates to the sanctioning of cinematograph films for exhibition.

Note

The wording of section 18 shows that the repeal of the Cinematograph Act, 1918 is confined to that portion of the old Act which is covered by Part II of the new Act. Section 6 is one of the repealed sections, but the issuing of the licences and the procedure provided therefore cannot be said to come within the wording of the repealing section. Bharat Bhushan v.p. C. Saxena, AIR 1955 All 82.

The Indian Evidence Act, 1872

Part I – RELEVANCY OF FACTS

Chapter I – Preliminary

1. SHORT TITLE, EXTENT, COMMENCEMENT. –

This Act may be called theIndian Evidence Act, 1872.

It extends to the whole of India1[except the State of Jammu and Kashmir] and applies to all judicial proceedings in or before any Court, including Courts-martial,2[other than Courts-martial convened under the Army Act] (44 & 45 Vict., c. 58) 3[the Naval Discipline Act (29 & 30 Vict., c. 109) or4[***] the Indian Navy (Discipline) Act, 1934 (34 of 1934)56[or the Air Force Act] (7 Geo. 5, c. 51) but not to affidavits7presented to any Court or Officer, nor to proceedings before an arbitrator; and it shall come into force on the first day of September, 1872.

———————–

  1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “except Part B States”.
  2. Ins. by Act 18 of 1919, sec. 2 and Sch. I. See section 127 of the Army Act (44 and 45 Vict., c. 58).
  3. Ins. by Act 35 of 1934, sec. 2 and Sch.
  4. The words “that Act as modified by” omitted by the A.O. 1950.
  5. See now the Navy Act, 1957 (64 of 1957)
  6. Ins. by Act 10 of 1927, sec. 2 and Sch. I.
  7. As to practice relating to affidavits, see, the Code of Civil Procedure, 1908 (Act 5 of 1908), sec. 30 (c) and Sch. 1, Order XIX. See also the Code of Criminal Procedure, 1973 (Act 2 of 1974), sections 295 and 297.

2. [Repeal of enactment.] Rep. By the Repealing Act,1938 (1 of 1938), S.2 and Sch..

[Repeal of enactment.] Rep. By the Repealing Act,1938 (1 of 1938), S.2 and Sch..

3. Interpretation clause –

In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:—

“Court”.—“Court” includes all Judges1and Magistrates,2and all persons, except arbitrators, legally authorized to take evidence.

“Fact”.—“Fact” means and includes—

(1) any thing, state of things, or relation of things, capable of being perceived by the senses;

(2) any mental condition of which any person is conscious.

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) That a man heard or saw something, is a fact.

(c) That a man said certain words, is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact.

“Relevant”.—One fact is said to be relevant to another when the one is

connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

“Facts in issue”.—The expression “facts in issue” means and includes—

any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.

Explanation.—Whenever, under the provisions of the law for the time being in force relating to Civil Procedure,3any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.
Illustrations

A is accused of the murder of B.

At his trial the following facts may be in issue:—

That A caused B’s death;

That A intended to cause B’s death;

That A had received grave and sudden provocation from B;

That A at the time of doing the act which caused B’s death, was, by reason of unsoundness of mind, incapable of knowing its nature.

“Document”.—“Document”4means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustrations

A writing5is a document;

Words printed, lithographed or photographed are documents;

A map or plan is a document;

An inscription on a metal plate or stone is a document;

A caricature is a document.

“Evidence”.—“Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry,

such statements are called oral evidence;

(2)6[all documents including electronic records produced for the inspection of the Court],

such documents are called documentary evidence.

“Proved”.—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

“Disproved”.—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

“Not proved”.—A fact is said not to be proved when it is neither proved nor disproved.

7[“India”.—“India” means the territory of India excluding the State of Jammu and Kashmir.]

8[the expressions “Certifying Authority”, “digital signature”, “Digital Signature Certificate”, “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act, 2000.]

Admissibility of contemporaneous tape-record

A contemporaneous tape-record is admissible under section 8 if (i) the conversation is relevant to the matters in issue; (ii) there is identification of the voice; (iii) the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record; R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157.

Court to scrutinize evidence

(i) It is the duty of court to scrutinize the evidence carefully and to see that acceptable evidence is accepted; State of Gujarat v. Gandabhai Govindbhai, 2000 Cr LJ 92 (Guj).

(ii) Court should adopt cautious approach for basing conviction on circumstantial evidence; State of Haryana v. Ved Prakash, 1994 Cr LJ 140 (SC).

Evidence of eye witness

(i) Having examined all the eyewitnesses even if other persons present nearby, not examined, the evidence of eyewitness cannot be discarded , courts are concerned with quality of evidence in a criminal trial. Conviction can be based on sole evidence if it inspires confidence; Sheelam Ramesh v. State of Andhra Pradesh, AIR 2000 SC 718: 2000 Cr LJ 51 (SC).

(ii) Where there are material contradictions creating reasonable doubt in a reasonable mind, such eye witnesses cannot be relied upon to base their evidence in the conviction of accused; Nathia v. State of Rajasthan, 1999 Cri LJ 1371 (Raj).

(iii) Evidence of an eye witness cannot be disbelieved on ground that his statement was not recorded earlier before he was examined in motor accident claim case by police; Fizabai v. Namichand, AIR 1993 MP 79.

(iv) Where court acquitted accused by giving benefit of doubt, it will not affect evidence of eye witnesses being natural witnesses; Krishna Ram v. State of Rajasthan, AIR 1993 SC 1386.

Identification by photo admissible

There is no legal provision that identification by photo is not admissible in evidence; Umar Abdul Sakoor Sorathia v. Intelligence Officer M.C. Bureau, 1999 Cr LJ 3972 (SC).

Interested witness

(i) It has been held regarding “interested witness” that the relationship is not a factor to affect credibility of witness; Rizan v. State of Chhattisgarh, AIR 2003 SC 976.

(ii) Testimony of injured eye witnesses cannot be rejected on ground that they were interested witnesses; Nallamsetty Yanasaiah v. State of Andhra Pradesh, AIR 1993 SC 1175.

(iii) The mechanical rejection of evidence on sole ground that it is from interested witness would invariably lead to failure or justice; Brathi alias Sukhdev Singh v. State of Punjab, 1991 Cr LJ 402 (SC).

Maxim “Falsus in uno falsus in omnibus”

(i) “Falsus in uno, Falsus in Omnibus” is not a rule of evidence in criminal trail and it is duty of the Court to engage the truth from falsehood, to shift grain from the chaff; Triloki Nath v. State of U.P., AIR 2006 SC 321.

(ii) The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. The maxim merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence“; Israr v. State of Uttar Pradesh, AIR 2005 SC 249.

Natural witness

Witnesses being close relations of deceased living opposite to house of deceased, are natural witnesses to be believed; Om Parkash v. State of Punjab, AIR 1993 SC 138.

Testimony: when to be relied

(i) The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds; Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311.

(ii) Rejection of whole testimony of hostile witness is not proper; Ashok Kumar v. P.M.A. Chanchal, AIR 1999 Guj 108.

(iii) Where evidence of some witnesses was found not safe for conviction, whole of their testimony should not be rejected; Nadodi Jayaraman v. State of Tamil Nadu, AIR 1993 SC 777.

(iv) The testimony of a single witness if it is straightforward, cogent and if believed is sufficient to prove the prosecution case; Vahula Bhushan alias Vehuna Krishna v. State of Tamil Nadu, 1989 Cr LJ 799: AIR 1989 SC 236.

———-

  1. Cf. the Code of Civil Procedure, 1908 (Act 5 of 1908), sec. 2, the Indian Penal Code (Act 45 of 1860), sec. 19; and, for a definition of “District Judge,” the General Clauses Act, 1897 (10 of 1897), sec. 3 (17).
  2. Cf. the General Clauses Act, 1897 (10 of 1897), sec. 3 (32) and the Code of Criminal Procedure, 1973 (Act 2 of 1974).
  3. See now the Code of Civil Procedure, 1908 (5 of 1908) as to the settlement of issues, see Sch. I, Order XIV.
  4. Cf. the Indian Penal Code (Act 45 of 1860), sec. 29 and the General Clauses Act, 1897 (10 of 1897), sec. 3 (18).
  5. Cf. definition of “writing in the General Clauses Act, 1897 (10 of 1897), sec. 3 (65).
  6. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for certain words “all documents produced for the inspection of the Court” (w.e.f. 17-10-2000).
  7. Subs. by Act 3 of 1951, sec. 3 and Sch., for the definition of “State“ and “States”, which was ins. by the A.O. 1950.
  8. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

4. “May presume” –

Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

“Shall presume”– Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

“Conclusive proof”– Where one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

Chapter II – Of the relevancy of facts

5. Evidence may be given of facts in issue and relevant facts –

Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Explanation – This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.1

Illustrations

(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.

At A’s trial the following facts are in issue –

A’s beating B with the club;

A’s causing B’s death by such beating;

A’s intention to cause B’s death.

(b) A suitor does not bring with him and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to product the bond or prove its contents at a subsequent stage of the proceedings otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.

———-

  1. See now the Code of Civil Procedure, 1908 (5 of 1908).

6. Relevancy of facts forming part of same transaction –

Facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact.

(b) A is accused of waging war against the1Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.

(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.

(d) The question is whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.

——–

  1. Subs. by the A.O. 1950, for “Queen”.

7. Facts which are occasion, cause or effect of facts in issue –

Facts Which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.

Illustrations

(a) The question is, whether A robbed B.

The facts that, shortly before the robbery B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant.

(b) The question is, whether A murdered B.

Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.

(c) The question is, whether A poisoned B.

The state of B’s health before the symptoms ascribed to poison and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts.

8. Motive preparation and previous or subsequent conduct –

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1. – The word “conduct” in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2. – When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

Illustrations

(a) A is tried for the murder of B.

The facts that, A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.

(b) A sues B upon a bond for payment of money. B denies the making of the bond.

The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, it relevant.

(c) A is tried for the murder of B by poison.

The fact that, before the death of B,A procured poison similar to that which was administered to B, is relevant.

(d) The question is, whether a certain document is the will of A.

The facts that not long before the date of the alleged will A made inquiry into matters to which the provisions of the alleged will relate that he consulted vakils in reference to making the will, and that he caused drafts or other wills to be prepared of which he did not approve, are relevant.

(e) A is accused of a crime.

The facts, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favorable to himself, on that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

(f) The question is, whether A robbed B.

The facts that, after B was robbed, C said in A’s presence – “the police are coming to look for the man who robbed B” and that immediately afterwards A ran away, are relevant.

(g) The question is, whether A owes B rupees 10,000.

The fact that, A asked C to lend him money, an that D said to C in A’s presence and hearing “Advice you The Orient Tavern to trust A, for he owes B 10,000 rupees” and that A went away without making any answer, are relevant facts.

(h) The question is, whether A committed a crime.

The facts that, A absconded after receiving a litter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.

(i) A is accused of a crime.

The facts that, after the commission of the alleged crime, he absconded or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.

(j) The question is whether A was ravished.

The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made, are relevant.

The facts that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.

(k) The question is whether A was robbed.

The fact that, soon after the alleged robbery, he made a complaint, relating to the offence, the circumstances under which, and the terms in which the complaint was made, are relevant.

The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.

Ground for rejection of testimony of eye witness

The conduct of an eye witness in non-disclosing the incident to anybody for a number of days, is highly unnatural one and is sufficient to reject his testimony;Ganpat Kondiba Chavanv.State ofMaharashtra,(1997) 2 Crimes 38 (Bom).

It is well settled that the conduct of a witness in not disclosing the incident to person(s) whom he must have met after the incident is indicative of the fact that he had not seen the accident;Ganpat KondibaChavanv.State of Maharashtra,(1997) 2 Crimes 38 (Bom).

Role of motive in an offence

If motive is proved, the case of prosecution becomes more easier to connect accused to the alleged incident;P.V. Narayanav.State of Andhra Pradesh,(1997) 2 Crimes 307 (AP).

Normally there is a motive behind every criminal act;Barikanoov.State of Uttar Pradesh,(1997) 1 Crimes 500 (All).

When motive is notsine qua non

Where the ocular evidence is very clear and convincing and the role of the accused person in the crime stands clearly established, establishment of motive is not asine qua nonfor proving the prosecution case;Yunis alias Kariyav.State of Madhya Pradesh, AIR 2003 SC 539.

It is well settled that where the direct evidence regarding the assault is worthy of the credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes the motive is shrouded in the mystery and it is very difficult to locate the same. If, however, the evidence of eye witnesses is credit-worthy and is believed by the court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant;Rajav. State,(1972) 2 Crimes 175.

Motive is a thing primarily known to the accused himself and it may not the possible for the prosecution in each and every case to find out the real motive behind the crime;Barikanoov.State of Uttar Pradesh, (1997)1 Crimes 500 (All).

It is well established that where there is an eyewitness account regarding the incident, the motive loses all its importance;Barikanoov.State of Uttar Pradesh,(1997) 1 Crimes 500 (All).

9. Facts necessary to explain or introduce relevant facts –

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

Illustrations

(a) The question is, whether a given document is the will of A.

The state of A’s property and of his family at the date of the alleged will may be relevant facts.

(b) A sues B for a libel imputing disgraceful conduct to A;B affirms that the matter alleged to be libelous is true.

The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.

The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.

(c) A is accused of a crime.

The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 8, as a conduct subsequent to and affected by facts in issue.

The fact that, at the time when he left home he had sudden and urgent business at the place to which he went is relevant, as tending to explain the fact that he left home suddenly.

The details of the business on which he left are not relevant except in so far as they are necessary to show that the business was sudden and urgent.

(d) A sues B for inducing C to break a contract of service made by him with A.C, on leaving A’s service, says to A – “I am leaving you because B has made me better offer.” The statement is a relevant fact as explanatory of C’s conduct which is relevant as a fact in issue.

(e) A, accused of theft is seen to give the stolen property to B, who is seen to give it to A’s wife. B says as he delivers it “A says you are to hide this.” B’s statement is relevant as explanatory of a fact which is pat of the transaction.

(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.

Identification accused

(i) If the test identification parade regarding accused was not conducted properly and suffered from unexplained delay, he is entitled to benefit of doubt;Rajesh Govind Jageshav.State of Maharashtra, AIR 2000 SC 160: 2000 Cr LJ 380 (SC).

(ii) The possibility of wrong identification due to loss of memory cannot be discounted;Pravakar Beherav.State of Orissa, (1997) 2 Crimes 108 (Ori)

(iii) When conviction was based on evidence of eye witness and not on identification parade it cannot be set aside on ground that identification was not reliable;Mullagiri Vajiramv.State of Andhra Pradesh,AIR 1993 SC 1243.

(iv) In dacoity case where all witnesses identified suspects as culprits without margin of error creating doubt in mind of court, such identification is liable to be set aside;Tahir Mohamad, Kamad Girendra Singh and Badri Singhv.State of Madhya Pradesh,AIR 1993 SC 931.

(v) Where both the trial court and the Appellate Court had assessed the evidence in the proper perspective and attached much importance to the evidence in regard to the identification of the appellant in finding him guilty, the Supreme Court would not re-assess that evidence in absence of an exceptional ground necessitating such re-assessment;Ramdeo Rai Yadavv.State of Bihar,(1990) Cr LJ 1183 (SC).

(vi) If there is unexplained and unreasonable delay in putting up the accused persons for a test identification the delay by itself detracts from the credibility of the test;Raj Nathv. State of Uttar Pradesh,1988 Cr LJ 422: AIR 1988 SC 345.

(vii) The test identification parade conducted three and a half months after the dacoity took place, it would be wrong to convict the accused on single testimony;Wakil Singhv.State of Bihar,1981 BLJ 462.

10. Things said or done by conspirator in reference to common design –

Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose showing that any such persons was a party to it.

Illustration

Reasonable grounds exists for believing that A has joined in a conspiracy to wage war against the1Government of India.

The facts that, B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D Persuaded persons to join the conspiracy in Bombay. E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

Existence of conspiracy

If prima facie evidence of existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all;Jayendra Saraswati Swamigalv. State of Tamil Nadu, AIR 2005 SC 716.

Object

Section 10 has been deliberately enacted in order to make acts and statements of a co-conspirator admissible against the whole body of conspirators, because of the nature of crime;Badri Raiv.State of Bihar,AIR 1958 SC 953.

Significance of “common intention”

The words “common intention” signify a common intention existing at the time when the thing was said, done or written by the one of them. It had noting to do with carrying the conspiracy into effect;Mirza Akbarv.Emperor,AIR 1940 PC 176.

  1. Subs. by the A.O. 1950, for “Queen”.

11. When Facts not otherwise relevant become relevant –

Facts not otherwise relevant, are relevant.

(1) if they are inconsistent with any fact in issue or relevant fact;

(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Illustrations

(a) The question is, whether A committed a crime at Calcutta on a certain day.

The fact that, on that day, A was at Lahore, is relevant.

The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.

(b) The question is, whether A committed a crime.

The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant.

12. In suits for damages, facts tending to enable Court to determine amount are relevant –

In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded, is relevant.

13. Facts relevant when right or custom is in question –

Where the question is as to existence of any right or custom, the following facts are relevant:

(a) any transaction by which the right or custom in question was created, claimed modified, recognized, asserted or denied, or which was inconsistent with its existence;

(b) Particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted, or departed from.

Illustrations

The question is whether A has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father irreconcilable with the mortgage particular instances in which A’s father exercised the right or in which the exercise of the right was stopped by A’s neighbors, are relevant facts.

14. Facts showing existence of state of mind or of body or bodily feeling –

Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.

1Explanation 1 – A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally but in reference to the particular matter in question.

Explanation 2. – But where, upon the trail of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this Section, the previous conviction of such person shall also be a relevant fact.

Illustration

(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article.

The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen.

2(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew each and all of the articles of which he was in possession to be stolen.

The fact that, at the time of delivery A was possessed of a number of other pieces of counterfeit coin, is relevant.

The fact that, A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.

(c) A sues B for damage done by a god of B’s which B knew to be ferocious.

The facts that, the dog had previously bitten X, Y and Z and that they had made complaints to B are relevant.

(d) The question is, whether A, the acceptor of a bill of exchange, knew that the name of payee was fictitious.

The fact that, A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant as showing that A knew that the payee was a fictitious person.

(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B.

The fact of previous publications by A respecting B, showing ill-will on the part of A towards B is relevant, as proving A’s intention to harm B’s reputation by the particular publication in question.

The facts that, there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.

(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss.

The fact that, at the time when A represented C to be solvent, C was supposed to be solvent by his neighbors and by persons dealing with him, is relevant, as showing that A made the representation in good faith.

(g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor.

A’s defence is that B’s contract was with C.

The fact that A paid C for the work in question is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C’s own account, and not as agent for A.

(h) A is accused of the dishonest misappropriation of property which he had found, the question is whether, when he appropriated it, he believed in good faith, that the real owner could not be found.

The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not be found.

The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not good faith believe that the real owner of the property could not be found.

The fact that A knew, or had reason to believe, the notice was given fraudulently by C who had heard of the loss of the property and wished to set up a false claim to it, is relevant as showing that the fact that A knew of the notice did not disprove A’s good faith.

(i) A is charged with shooting at B with intent to kill him. In order to show A’s intent, the fact of A’s having previously shot at B may be proved.

(j) A is charged with sending heartening letters to B. Threatening letters previously sent by A to B may be proved, as showing the intention of the letters.

(k) The question is, whether A has been guilty of cruelty towards B, his wife.

Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant facts.

(l) The question is, whether A’s death was caused by poison.

Statement made by A during hiss illness as to his symptoms, are relevant facts.

(m) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured.

Statements made by A as to the state of his health at or near the time in question, are relevant facts.

(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured.

The fact that, B’s attention was drawn on other occasions to the defect of that particular carriage, is relevant.

The fact that, B was habitually negligent about the carriage which he let to hire is relevant.

(o) A is tried for the murder of B by intentionally shooting him dead.

The fact that, A on other occasions shot a B is relevant as showing his intention to shoot B.

The fact that, A was in the habit of shooting at people with intent to murder them, is irrelevant.

(p) A is tried for a crime.

The fact that, he said something indicating an intention to commit that particular crime is relevant.

The fact that, he said something indicating a general disposition to commit crimes of that class, is irrelevant.

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  1. Subs. by Act 3 of 1891, sec. 1, for the originalExplanation.
  2. Subs. by Act 3 of 1891, sec. 1, forIllustration(b).

15. Facts bearing on question whether act was accidental or intentional –

When there is a question whether an act was accidental or intentional,1or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrence, in each of which the person doing the act was concerned, is relevant.

Illustrations

(a) A is accused of burning down his house in order to obtain money for which it is insured.

The fact that, A lived in several houses successively each of which he insured, in each of which he insured, in each of which a fire occurred, and after each of which fires A received, payment from a different insurance office, are relevant, as tending to show that the fires were not accidental.

(b) A is employed to receive money from the debtors of B.

It is A’s duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive.

The question is, whether his false entry was accidental or intentional.

The facts that, other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant.

(c) A is accused of fraudulently delivering to B a counterfeit rupee.

The question is, whether the delivery of the rupee was accidental.

The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant, as showing that the delivery to B was not accidental.

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  1. Ins. by Act 3 of 1891, sec. 2.

16. Existence of course of business when relevant –

When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

Illustrations

(a) The question is, whether a particular letter was dispatched.

The facts that, it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant.

(b) The question is, whether a particular letter reached A. The fact that, it was posted in due course, and was not returned through the Dead Letter Office, are relevant.

Admissions

17. Admission defined –

An admission is a statement,1oral or documentary which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

Comment

Admissibility is substantive evidence of the fact

Admissibility is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness;Bishwanath Prasadv. Dwarka Prasad,AIR 1974 SC 117.

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  1. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for “oral or documentary” (w.e.f. 17-10-2000).

18. Admission by party to proceeding or his agent

Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to made them, are admissions.

By suitor in representative character– Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

Statements made by –

(1) by party interested in subject matter; persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested; or

(2)by person from whom interest derived; persons from whom the parties to the suit have derived their interest in the subject-matter of the suit,

are admissions, if they are made during the continuance of the interest of the persons making the statements.

19. Admissions by persons whose position must be proved as against party to suit-

Statements made by persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against the made if they are made whilst the person making them occupies such position or is subject of such liability.

Illustration

A undertakes to collect rent for B.

B sues A for not collecting rent due from C to B.

A denies that rent was due from C to B.

A statement by C that he owned B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.

20. Admission by persons expressly referred to by party to suit –

Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.

Illustration

The question is, whether a horse sold by A to B is sound A says to B “Go and ask CC knows all about it” C’s statement is an admission.

In eviction suit where person having power of attorney for tenant admits arrears of rent tenant subsequently cannot resile from such admission;Ram Sahaiv.Jai Prakash,AIR 1993 MP 147.

21. Proof of admission against persons making them, and by or on their behalf –

Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they con not be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases.

(1) An admission ma be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead it would be relevant as between third person under section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

Illustrations

(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged.

A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine nor con B Prove a statement by himself that the deed is gorged.

(b) A the captain of a ship, is tried for casting her away.

Evidence is given to show that the ship was taken out of her proper course.

A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statement, because they would be admissible between third parties, if he were dead under Section 32, Clause (2).

(c) A is accused of a crime committed by him at Calcutta.

He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day.

The statement in the date of the letter is admissible, because if A were dead it would be admissible under Section 32, Clause (2).

(d) A is accused of receiving stolen goods knowing them to be stolen.

He officers to prove that he refused to sell them below their value.

A may prove these statements though they are admissions, because they are explanatory of conduct influenced by facts in issue.

(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit.

He offers to prove that he asked a skilful person to examine the coins as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine.

A may prove these facts for the reasons stated in the last proceeding illustration.

22. When oral admission as to contents of documents are relevant –

Oral admissions as to the contents of a document are not relevant unless and until the party proposing them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

22A.When oral admissions as to contents of electronic records are relevant.-

1[22A. When oral admissions as to contents of electronic records are relevant.—Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.]

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  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

23. Admission in Civil cases, when relevant –

In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given

Explanation – Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under Section 126.

24. Confession by inducement, threat or promise when irrelevant in criminal proceeding –

A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise,1having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.

Extra judicial confession

Extra-judicial confession made to village Administrative Officer by accused is admissible; Shiv Kumar v. State by Inspector of Police, AIR 2006 SC 653.

It is difficult to rely upon the extra judicial confession as the exact words or even the words as nearly as possible have not been reproduced. Such statement cannot be said to be voluntary so the extra judicial confession has to be excluded from the purview of consideration for bring home the charge; C.K. Raveendran v. State of Kerala, AIR 2000 SC 369.

The extra-judicial confession cannot be sole basis for recording the confession of the accused, if the other surrounding circumstances and the materials available on the record do not suggest his complicity; Chaya Kant Nayak v. State of Bihar, (1997) 2 Crimes 297 (Pat).

An extra-judicial confession, if it is voluntary truthful, reliable and beyond reproach, is an efficacious piece of evidence to establish the guilt of the accused and it is not necessary that the evidence of extra-judicial confession should be corroborated on material facts; Laxman v. State of Rajasthan, (1997) 2 Crimes 125 (Raj).

Where confession was not disclosed to the wife of deceased but it was disclosed to the police officer and was not corroborated, the extrajudicial confession is not reliable; Surinder Kumar v. State of Punjab, AIR 1999 SC 215.

An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extra-judicial confession; Balwinder Singh v. State of Punjab, (1995) Supp (4) SCC 259.

It is well settled now that a retracted extra-judicial confession, though a piece of evidence on which reliance can be placed, but the same has to be corroborated by independent evidence. If the evidence of witness before whom confession made was unreliable and his conduct also doubtful and there is no other circumstance to connect accused with crime, conviction based solely on retracted extra-judicial confession is not proper and the accused is entitled to acquittal; Shakhram Shankar Bansode v. State of Maharashtra, AIR 1994 SC 1594.

The extra-judicial confession not trustworthy cannot be used for corroboration of any other evidence; Heramba Brahma v. State of Assam, AIR 1982 SC 1595.

Where confessional statement is inconsistent with medical evidence, conviction of accused solely based on extra-judicial confession is not proper; Chittar v. State of Rajasthan, 1994 Cr LJ 245 (SC).

Tape-recording of confession denotes influence and involuntariness. Accused is entitled to be acquitted; State of Haryana v. Ved Prakash, 1994 Cr LJ 140 (SC).

The confessional statement recorded by 1st Class Magistrate rightly held to be correct; Manguli Dei v. State of Orissa, 1989 Cr LJ 823: AIR 1989 SC 483.

The general trend of the confession is substantiated by some evidence, tallying with the particulars of confession for conviction of the accused; Madi Ganga v. State of Orissa, AIR 1981 SC 1165: 1981 Cr LJ 628: (1981) 2 SCC 224: 1981 SCC (Cr) 411.

When statement Amounts to confession

A statement in order to amount to a ‘confession’ must either admit in terms of offence, or at any rate substantially all the facts which constitute the offence; Veera Ibrahim v. State of Maharashtra, AIR 1976 SC 1167.

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  1. For prohibition of such inducements, etc., see the Code of Criminal Procedure, 1973 (2 of 1974), section 316.

25. Confession to police officer not to be proved –

No confession made to police officer1shall be proved as against a person accused of any offence.

Admissibility

Any confessional statement given by accused before police is inadmissible in evidence and cannot be brought on record by the prosecution and is insufficient to convict the accused; Ram Singh v. State of Maharashtra, 1999 Cr LJ 3763 (Bom).

Scope

If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by section 25; Aghnu Nagesia v. State of Bihar, AIR 1966 SC 119.

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  1. As to statements made to a police officer investigating a case, see the Code of Criminal Procedure, 1973 (2 of 1974), section 162.

26. Confession by accused while in custody of police not to be proved against him –

No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate1, shall be proved as against such person.

,2[Explanation.—In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George,3[***] or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882),4].

The confession made while in custody is not to be proved against the accused as the provisions of sections 25 and 26 do not permit it unless it is made before a magistrate; Kamal Kishore v. State (Delhi Administration), (1997) 2 Crimes 169 (Del).

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  1. A Coroner has been declared to be Magistrate for the purposes of this section, see the Coroners Act, 1871 (4 of 1871), section 20.
  2. Ins. by Act 3 of 1891, sec. 3.
  3. The words “or in Burma” omitted by the A.O. 1937.
  4. See now the Code of Criminal Procedure, 1973 (2 of 1974).

27. How much of information received from accused may be proved

Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

Applicability

For the application of section 27 the statement must be split into its components and to separate the admissible portion. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected; Mohd. Inayatullah v. State of Maharashtra, AIR 1976 SC 483.

Condition for operation

The condition necessary to bring the section 27 into operation is that the discovery of a fact in a consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved; Pulukuri Kottaya v. Emperor, AIR 1947 PC 119.

Discovered fact

A fact discovered in an information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered from the accused which was not within the knowledge of the police before recording the disclosure statement of the accused; Kamal Kishore v. State (Delhi Administration), (1997) 2 Crimes 169 (Del).

Where a witness was related to deceased and resident of another place, even then his evidence regarding recovery of weapons and clothes cannot be discarded; State of Madhya Pradesh v. Rammi, 1999 (1) JLJ 49.

Scope

Under section 27 it is not necessary that a disclosure statement must be signed by maker of the same or that thumb impression must be affixed to it; K.M. Ibrahim alias Bava v. State of Karnataka, 2000 Cr LJ 197 (Karn).

A confession made by an accused person while he is in custody must be excluded from evidence and permits the admission of such a confession under the condition prescribed by this section; Kamal Kishore v. State (Delhi Administration), (1997) 2 Crimes 169 (Del).

28. Confession made after removal of impression caused by inducement, threat or promise, relevant –

If such a confession as is referred to in Section 24 is made after the impression caused by any inducement, threat or promise has, in the opinion of the Court been fully removed it is relevant.

29. Confession otherwise relevant not to become irrelevant because of promise of secretary etc. –

If such a confession is otherwise relevant, it does not become it was made under a promise of secrecy. or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to question which he need not have answered, whatever may have been the form of those question, or because he was not warned that he was bound to make such confession, and that the evidence of it might be given against him.

30. Consideration of proved confession affecting person making it and others jointly under trail for same offence –

When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

1Explanation – “Offence” as used in this Section, includes the abutment of, r attempt to commit, the offence.

Illustrations

(a) A and B are jointly tried for the murder of C. It is proved that A said – “B and I murdered C”. the court may consider the effect of this confession as against B.

(b) A is on his trail for the murder of C. There is evidence to show that C was murdered by A and B, and that B said, “A and I murdered C”. The statement may not be taken into consideration by the Court against A as B is not being jointly tried.

Accused’s confession cannot be used against co-accused

The statement of the accused leading to the discovery, or the informatory statement amounting to confession of the accused, cannot be used against the co-accused with the aid of section 303; Kamal Kishore v. State (Delhi Administration), (1972) 2 Crimes 169 (Del).

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  1. Ins. by Act 3 of 1891, sec. 4.

31. Admissions not conclusive proof but may stop –

Admissions are not conclusive proof of the matters admitted, but they may operate as estopples under the provisions hereinafter contained.

Statements by persons who cannot be called as witnesses

32. Case in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant –

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases –

(1) When it relates to cause of death– When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) Or is made in course of business– When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods securities or property of any kind; or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him.

(3) Or against interest of maker– When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true it would expose him or would have exposed him to criminal prosecution or to a suit for damages.

(4) Or gives opinion as to public right or custom, or matters of general interest– When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest of the existence of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

(5) Or relates to existence of relationship– When the statement relates to the existence of any relationship1by blood, marriage or adoption between persons as to whose relationship1by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

(6) Or is made in will or deed relating to family affairs– When the statement relates to the existence of any relationship1by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

(7) Or in document relating to transaction mentioned in section 13, Clause (a).– When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).

(8) Or is made by several persons and express feelings relevant to matter in question– When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Illustrations

(a) The question is, whether A was murdered by B ; or

A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or

The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.

Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that, on a given day, the solicitor attended A at a place mentioned, in Calcutta , for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchant’s firm, by which she was chartered, to their correspondents in London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land. A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact.

(f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant.

(h) The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased banya in the ordinary course of his business is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact.

(l) The question is, what was the date of the birth of A. A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married. An entry in a memorandum-book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.

Admissibility of dying declaration

It would be very unsafe and hazardous to sustain the conviction of the accused charged for offences under section 302 read with section 34 IPC on the basis of dying declaration recorded by special executive magistrate and police officer separately; Dada Machindra Chaudhary v. State of Maharashtra , 1999 Cr LJ 4009 (Bom).

Where there were infirmities in declaration regarding state of deceased to make oral dying declaration and unnatural conduct of witness to whom dying declaration was allegedly given by the deceased which was disclosed to the police after two days of death of deceased, accused was entitled to the benefit of doubt; Ram Sai v. State of Madhya Pradesh, 1994 Cr LJ 138 (SC).

Where father of deceased son lodged F.I.R. after admitting him in hospital and mentioned about oral dying declaration with necessary details, such dying declaration given to interested persons is reliable; Vishram v. State of Madhya Pradesh, AIR 1993 SC 258.

Where deceased victim knew assailants and gave their names to his family members at first opportunity, his dying declaration could be relied upon; Prakash v. State of Madhya Pradesh , AIR 1993 SC 65.

Admissions are not conclusive

There is no doubt that admissions are a good piece of evidence and they can be used against its maker. Admissions are, however, not conclusive and unless they constitute estoppel, the maker is at liberty to prove that they are mistaken or are untrue; Jagdish Prasad v. Sarwan Kumar , AIR 2003 P&H 3.

Dying declaration

That the FIR as well as the statement given by the injured to the investigating officer is not admissible as dying declaration under section 32; Sukhar v. State of Uttar Pradesh , 2000 Cr LJ 29 (SC).

Dying declaration must be made by deceased only

The declaration made by the deceased cannot be called dying declaration because it was not voluntary and answers were not given by her, it was her husband who was answering; Suchand Pal v. Phani Pal, AIR 2004 SC 973.

If the court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration; Kusa v. State of Orissa, AIR 1980 SC 559.

When dying declaration doesnot require further corroboration

Once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration; Khushal Rao v. State of Bombay, AIR 1958 SC 22.

When more than one dying declarations

In case of two conflicting dying declarations one recorded by doctor in the presence of two more doctors and second by a person attested by Sarpanch, in second one being not proved by competent witness cannot be relied upon; Harbans Lal v. State of Haryana, AIR 1993 SC 819.

Where there are more than one dying declarations and they are inconsistent there it is not possible to pick out one such declaration wherein accused is implicated and base the conviction on the sole basis of that dying declaration; Kamla v. State of Punjab, AIR 1993 SC 374.

Among three dying declarations recorded by doctor, police and Magistrate with no infirmity in any, the fact that third declaration was not in question and answer form is not material; Ganpat Mahadeo Mane v. State of Maharashtra, AIR 1992 SC 1180.

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  1. Ins. by Act 18 of 1872, sec. 2.

33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated –

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a letter stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept our of the way by the adverse party or if his presence cannot be obtained without, an amount of delay of expense which, under the circumstances of the case, the Court considers unreasonable;

Provided –

That the proceeding was between the same parties or their representatives in interest;

That the adverse party in the first proceeding had the right and opportunity to cross examine;

That the questions in issue were substantially the same in the first as in the second proceeding.

Explanation – A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Relevancy of evidence given by witness

Evidence given by a witness in a judicial proceeding is relevant for the purpose of proving a particular fact in later stage of the same judicial proceeding, when the witness cannot be found or is dead; Nandram v. State of Madhya Pradesh, 1995 FAJ 1 (MP).

Statements made under special circumstances

34. [Entries in books of account including those maintained in an electronic form] when relevant –

1Entries in books of accounts including those maintained in an electronic form], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

Illustration

A sues B for Rs. 1,000, and shows entries in his account-books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt.

Admissibility

Entries in account books regularly kept in the course of business are admissible though they by themselves cannot create any liability; Ishwar Dass v. Sohan Lal, AIR 2000 SC 426.

Unbound sheets of paper are not books of account and cannot be relied upon; Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35.

Books of account being only corroborative evidence must be supported by other evidence; Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35.

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  1. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for “Entries in the books of account” (w.e.f. 17-10-2000).

35. Relevancy of entry in public [record or an electronic record] made in performance of duty –

An entry in any public or other official book, register or1[record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or 1[record or an electronic record] is kept, is itself a relevant fact.

Relevancy of Baptism certificate

It has been held regarding proof about legitimacy of child that the Birth Certificate proceeding on the basis of Baptism Certificate, containing fact that Baptism record was read and checked before the god parents and signed by person along with god parents, such certificate is valid. Thus, Birth Certificate proceeding on basis of Baptism Certificate, legally recognised legitimacy; Luis Caetano Viegan v. Esterline Mariana R.M.A. Da’Costa, AIR 2003 SC 630.

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  1. Subs. by the Act 21 of 2000, sec. 92 and Sch. II, for “record” (w.e.f. 17-10-2000).

36. Relevancy of statements in maps, charts and plans –

Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of1the Central Government or any State Government, as to matters usually represented or stated in such maps, charts, or plans are themselves facts.

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  1. Subs. by the A.O. 1948, for “any Government in British India.

notifications –

When the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any Act of Parliament1[of the United Kingdom], or in any2[Central Act, Provincial Act, or3[a State Act], or in a Government notification or notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any Dominion, colony or possession of His Majesty is a relevant fact.]

4[***]

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  1. Ins. by the A.O. 1950.
  2. The original words were “Act of the Governor General of India in Council or of the Governors in Council of Madras or Bombay, or of the Lieutenant Governor in Council of Bengal, or in a notification of the Government appearing in the Gazette of India, or in the Gazette of any L.G. or in any printed paper purporting to be the London Gazette or the Government Gazette of any colony or possession of the Queen, is a relevant fact”. This was amended first by the Repealing and Amending Act, 1914 (10 of 1914) and then by the A.O. 1937, the A.O. 1948 and the A.O. 1950 to read as above.
  3. Subs. by Act 3 of 1951 sec. 3 and Sch., for “an Act of the Legislature of Part A State or a Part C State”.
  4. The last para added by Act 5 of 1899, sec. 2, and omitted by Act 10 of 1914, sec. 3 and Sch. II.

38. Relevancy of statements as to any law contained in law books –

When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant.

39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers

1[39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.—When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.]

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  1. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for section 39 (w.e.f. 17-10-2000).

Judgments of courts of justice, when relevant

40. Previous judgments relevant to bar a second suit or trail –

The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is, whether such Court ought to take cognizance of such suit or to hold such trail.

41. Relevancy of certain judgments in probate etc., jurisdiction –

A final judgment, order or decree of a Competent Court, in exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or to take away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing not as against any specified person but absolutely, is relevant when the existence of any legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof –

That any legal character which it confer accrued at the time when such judgment, order or decree come into operation;

That any legal character to which it declares and such person to be entitled, accrued to that person at the time when such judgment,1order or decree declares it to have accrued to that person;

That any legal character to which it takes away from any such person ceased at the time from which such judgment,1order or decree declared that it had cased or should cease.

And that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment,1order or decree declares that it had been or should be his property.

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  1. Ins. by Act 18 of 1872, sec. 3.

42. Relevancy and effect of judgment, order or decrees, other than those mentioned in Section 41. –

Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the inquiry; nut such judgments, orders or decrees are not conclusive proof of that which they state.

Illustrations

A sues B for trespass on his land, B alleges the existence of a public right of way over the land, which A denies.

The existence of a decree in favour of the defendant, in a suit by A against C or a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of ways exists.

43. Judgment etc., other than those mentioned in Section 40 to 42 when relevant –

udgments, orders or decrees other then those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant, under some other provision of this Act.

Illustrations

(a) A and B separately sue C for a libel which reflects upon each of them C in each case says that the matter alleged to libelous is true and the circumstances are such that it is probable true in each case, or in neither.

A obtains a decree against C for damages on the ground that C filed The Orient Tavern make out his justification. The fact is irrelevant as between B and C.

(b) A prosecutes B for adultery with C, A’s wife.

B denies that C is A’s wife, but the court convicts B of adultery.

Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. CC says that she never was A’s wife.

The judgment against B is irrelevant as against C.

(c) A prosecuted B for stealing a cow, from him, B is convicted.

A, afterwards, sues C for cow. Which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.

(d) A has obtained a decree for the possession of land against A,C,B’s son murders A in consequence.

The existence of the judgment is relevant, as showing motive for a crime.

1(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under Section 8 as showing the motive for the fact in issue.

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  1. Ins. by Act 3 of 1891, sec. 5.

44. Fraud or collusion in obtaining judgment, or incompetence of Court may be proved –

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40,41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Opinion of third persons, when relevant

45. Opinions of experts –

When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing1or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art,2or in questions as to identity of handwriting1or finger impressions, are relevant facts.

Such person called experts.

Illustrations

(a) The question is, whether the death of A was caused by poison.

The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.

(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.

The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.

The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant.

Conflict of opinion of Experts

When there is a conflict of opinion between the experts, then the Court is competent to form its own opinion with regard to signatures on a document; Kishan Chand v. Sita Ram, AIR 2005 P&H 156.

Expert opinion admissibility

Requirement of expert evidence about test firing to find out whether double barrel gun is in working condition or not, not necessary; Jarnail Singh v. State of Punjab, AIR 1999 SC 321.

The evidence of a doctor conducting post mortem without producing any authority in support of his opinion is insufficient to grant conviction to an accused; Mohd Zahid v. State of Tamil Nadu, 1999 Cr LJ 3699 (SC).

Opinion to be received with great caution

The opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution; Ram Narain v. State of Uttar Pradesh, AIR 1973 SC 2200.

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  1. Ins. by Act 5 of 1899, sec. 3. For discussion in Council as to whether “finger impressions” include “thumb impressions”, see Gazette of India, 1898, Pt. VI, p. 24.
  2. Ins. by Act 18 of 1872, sec. 4.

46. Facts bearing upon opinions of experts –

Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts when such opinions are relevant.

Illustrations

(a) The question is, whether A was poisoned by a certain poison.

The fact that other persons who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.

(b) The question is, whether an obstruction to a harbour is caused by a certain seawall.

The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time is relevant.

Admissibility

The science of identification of footprints is not a fully developed science and therefore if in a given case, evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence; Mohd. Aman v. State of Rajasthan, (1997) 4 Supreme 635.

47. Opinions as to handwriting, when relevant –

When the Court has to form an opinion as to the person by whom document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

Explanation – A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received document purporting to be written by that person in answer to documents written by himself to under his authority and addressed to that person, or when in the ordinary course of business document purporting to be written by that person have been habitually submitted to him.

Illustrations

The question is whether a given letter is in the handwriting of A, a merchant in London.

B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. G is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted thee letters purporting to be written by A for the purpose advising with him thereon.

The opinions of B,C and D on the question, whether the letter is in the handwriting of A, are relevant though neither B, C or D ever saw A, write.

47A. Opinion as to digital signature when relevant –

147A. Opinion as to digital signature when relevant.—When the Court has to form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.

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  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

48. Opinion as to existence of right or custom when relevant –

When the Court has to form an opinion as to existence of any general custom or right, the opinions as to the existence of such custom or rights, of persons who would be likely to know of its existence if it existed, are relevant.

Explanation – The expression “general custom or right” includes customs or right common The Orient Tavern any considerable class of persons.

Illustrations

The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.

49. Opinion as to usage’s, tenants, etc., when relevant –

When the Court has to form an opinion as to –

the usage’s and tenants of any body of men or family,

the constitution and government of any religious or charitable foundation,

or

the meaning of words or terms used in particular districts or by particular classes of people,

the opinions of persons having special means of knowledge thereon, are relevant facts.

50. Opinion on relationship, when relevant –

When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).

Illustrations

(a) The question is, whether A and B were married.

The fact that they were usually received and treated by their friends as husband and wife, is relevant.

(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.

Contradiction in evidence of relationship of witness of triffle nature, not material in a partition suit; Gowhari Das v. Santilata Singh, AIR 1999 Ori 61.

51. Grounds of opinion when relevant –

Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

Illustration

An expert may give an account of experiments performed by him for the purpose of forming his opinion.

Character when relevant

52. In civil cases character to prove conduct imputed irrelevant –

In civil cases, the fact that the character of any person concerned is such as to render probable or improbably any conduct imputed to him, is irrelevant except in so far as such character appears from facts otherwise relevant.

53. In criminal cases, previous good character relevant –

In criminal proceedings the fact that the person accused is of good character, is relevant.

1[“53A. In a prosecution for an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”.]

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  1. Inserted by Section 53 of “The Criminal Law (Amendment) Act, 2013″
  2. 1Previous bad character not relevant, except in reply.- In criminal proceedings the fact that the accused person had a bad character is irrelevant, unless evidence has been given that he has a character in which case it becomes relevant.

54. Previous bad character not relevant except in reply –

Explanation 1. – This section does not apply to cases in which the bad character of any person is itself a fact in issue.

Explanation 2. – A previous conviction is relevant as evidence of bad character.

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  1. Subs. by Act 3 of 1891, sec. 6, for section 54.

55. Character as affecting damages –

In civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant.

Explanation – In Section 52,53,54 and 55, the word “character” includes both reputation and disposition; but1except as provided in Section 54, evidence may be given only a general reputation and general disposition and not of particular acts by which reputation or disposition was shown.

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  1. Ins. by Act 3 of 1891, sec. 7.

Part II – ON PROOF

Chapter III – Facts which need not be proved

56. Fact judicially noticeable need not be proved –

No fact of which the Court will take judicial notice need be proved

Judicial notice of fact that many blind persons have acquired great academic distinctions, can be taken by court; Jai Shankar Prasad v. State of Bihar, AIR 1993 Pat 22.

57. Facts of which Court must take judicial notice –

The Court shall take judicial notice of the following facts;

  1. 1All laws in force in the territory of India;
  2. All public Acts passed or hereafter to be passed by Parliament2of United Kingdom, and all local and personal Acts directed by Parliament2of the United Kingdom to be judicially noticed;
  3. Articles of War for3the Indian Army,4Navy of Air force;
  4. 5The course of proceeding of parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the Legislature established under any law for the time being in force in Province or in the States;
  5. The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;
  6. All seals of which English Courts take judicial notice; the seals of all the6Courts in7India and of all Courts out of5India established by the authority of8the Central Government or the Crown representative; the seals off Court of Admiralty and Maritime jurisdiction and of Notaries Public and all seals which any person is authorized to use by the9Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in7India;
  7. The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any state, if the fact of their appointment to such office is notified in any10official Gazette;
  8. The existence, title and national flag of every State or Sovereign recognized by11the Government of India;
  9. The divisions of time, the geographical divisions of the world, and public festivals, facts and holidays notified in the Official Gazette;
  10. The territories under the dominion of11the Government of India;
  11. The commencement, continuance and termination of hostilities between11the Government of India and any other State or body of persons;
  12. The names of the members and officers of the Court, and of their deputies and subordinate officers and assistants and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;
  13. The rule of the road,12on land or at sea.

In all these cases, and also on all matters of public history, literature, science or art, the Court may report for its aid to appropriate books or documents of reference.

If the Court is called upon by any person to take judicial notice of any fact it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

What court may take judicial notice

Court may take judicial notice of widespread malaise of illegal immigration and exploitation of young-ones by unauthorised recruiting agents; M.D.K. Immigration Consultant, Chandigarh v. Union of India, 2000 Cr LJ 252 (P&H).

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  1. Subs. by the A.O. 1950, for para (1).
  2. Ins. by the A.O. 1950.
  3. Subs. by the A.O. 1950, for “Her Majesty’s”.
  4. Subs. by Act 10 of 1927, sec. 25 and Sch. I, for “or Navy”.
  5. Subs. by the A.O. 1950, for para 4.
  6. Subs. by the A.O. 1948, for “Courts of British India”.
  7. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.
  8. Subs. by the A.O. 1937, for the “the G.G. or any L.G. in Council”.
  9. Subs. by the A.O. 1950, “any Act of Parliament or other”.
  10. Subs. by the A.O. 1937, for “the Gazette of India, or in the Official Gazette of any L.G.”.
  11. Subs. by the A.O. 1950, for “the British Crown”.
  12. Ins. by Act 18 of 1872, sec. 5.

58. Facts admitted need not be proved –

No fact need be proved in any proceeding, which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings;

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.

Implied admission

Implied admission in written statement cannot be allowed to be withdrawn. However, the plaintiff can be insisted upon to prove his case; Uttam Chand Kothari v. Gauri Shankar Jalan , AIR 2007 Gau 20.

Chapter IV – Of oral evidence

59. Proof of facts by oral evidence –

All facts, except the1contents of documents, may be proved by oral evidence.

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  1. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for “contents of documents” (w.e.f. 17-10-2000).

60. Oral evidence must be direct –

Oral evidence must, in all cases, whatever, be direct; that is to say;

If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds –

Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.

Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

Chapter V – Of documentary evidence

61. Proof of contents of documents –

The contents of documents may be proved either by primary or by secondary evidence.

Admission of contents

Admission of documents amounts to admission of contents but not its truth; Life Insurance Corporation of India v. Narmada Agarwalla, AIR 1993 Ori 103.

A man may lie but a document will never lie; Afzauddin Ansary v. State of West Bengal, (1997) 2 Crimes 53 (Cal).

62. Primary evidence –

Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1. – Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterparts, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2. – Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Illustration

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

63. Secondary Evidence –

Secondary evidence means and includes.

  1. Certified copies given under the provisions hereinafter contained;
  2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;
  3. Copies made from or compared with the original;
  4. Counterparts of documents as against the parties who did not execute them;
  5. Oral accounts of the contents of a document given by some person who has himself seen it.

Illustrations

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photo graph or machine copy of the original, is secondary evidence of the original.

Admissibility

Application moved for permission to lead secondary evidence based on ground of loss of document. Presence of document proved from the facts pleaded – Allowing secondary evidence not illegal; Sobha Rani v. Ravikumar, AIR 1999 P&H 21.

Tape-recorded statements are admissible in evidence; K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad 59.

Certified copies of money lender’s licences are admissible in evidence;

  1. Shivalingaiah v. B.V. Chandrashekara Gowda, AIR 1993 Kant 29.

———————–

  1. See section 76 infra.

64. Proof of documents by primary evidence –

Documents must be proved by primary evidence except in the cases hereinafter mentioned.

65. Cases in which secondary evidence relating to documents may be given –

Secondary evidence may be given of the existence, condition or contents of a document in the following cases:

(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;

(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) When the original is of such a nature as not to be easily movable;

(e) When the original is a public document within the meaning of Section 74;

(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in1India to be given in evidence2;

(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collections.

In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

When attesting witness not necessary

In case the document is registered then except in the case of a will it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed; Ishwar Dass Jain (dead) through L.R. v. Sohanlal (dead) by LRs, AIR 2000 SC 426.

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  1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.
  2. Cf. the Bankers’ Books Evidence Act, 1891 (18 of 1891), section 4.

65A. Special provisions as to evidence relating to electronic record –

165A.Special provisions as to evidence relating to electronic record.- The contents of electronic records may be proved in accordance with the provisions of section 65B.

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  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

65B. Admissibility of electronic records –

165B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

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  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

66. Rules as to notice to produce –

Secondary evidence of the contents of the documents referred to in Section 65, Clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is,1or to his attorney or pleader such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case;

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:

  1. When the document to be proved is itself a notice;
  2. When from the nature of the case, the adverse party must know that he will be required to produce it;
  3. When it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
  4. When the adverse party or his agent has the original in Court;
  5. When the adverse party or his agent has admitted the loss of the document;
  6. When the person in possession of the document is out of reach, or not subject to, thee process of the Court.

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  1. Ins. by Act 18 of 1872, sec. 6.

67. Proof of signature and handwriting of person alleged to have signed or written document produced –

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his hand writing.

Admissibility

Non-examination of executants of receipt, admissibility of receipts not proper; Ramkrishna Dode v. Anand, AIR 1999 Bom 89.

67A. Proof as to digital signature –

167A. Proof as to digital signature.- Except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.

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  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

68. Proof of execution of document required by law to be attested –

If a document is required by law to be attested it shall not be sued as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to he process of the Court and capable of giving evidence:

1Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied.

Endorsement by Sub-Registrar

Endorsement by Sub-Registrar that executant had acknowledged execution before him amounts to attestation; Pentakota Satyanarayana v. Pentakota Seetharatnam, AIR 2005 SC 4362.

Scope

One of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory. Section 68 speaks of as to how a document required by law to be attested can be proved. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence; Janaki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761.

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  1. Ins. by Act 31 of 1926, sec. 2.

69. Proof where no attesting witness found –

If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.

70. Admission of execution by party to attested document –

The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

71. Proof when attesting witness denies the execution –

If the attesting witness denies or does not recollect the execution of the document its execution may be proved by other evidence.

Object

Section 71 is in the nature of a safeguard to the mandatory provisions of section 68, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. Aid of section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence; Janaki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761.

Section 71 is meant to lend assistance and came to the rescue of a party who had done his best, but driven to a state of helplessness and impassibility cannot be left down without any other means of proving due execution by “other evidence” as well; Janaki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761.

72. Proof of document not required by law to be attested –

An attested document not required by law to be attested may be proved as if it was unattested.

73. Comparison of signature, writing or seal with others admitted or proved –

In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which s to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

1This section applies also with any necessary modifications, to finger-impressions.

Power of court

The court is entitled to make comparison of disputed and admitted signature for just conclusion as a rule of prudence expert opinion can be obtained. Reasons necessary to reach conclusion; Ashok Kumar Uttam Chand Shah v. Patel Mohmad Asmal Chanchad, AIR 1999 Guj 108.

It is within jurisdiction of court to instruct a party to submit his writing or signature, enabling court to compare and decide a case, if the instructions are not followed court is free to presume what is most closer to the justice; Shyam Sundar Chowkhani v. Kajal Kanti Biswas, AIR 1999 Gau 101.

It is not open for court to compare a handwriting and/or a signature of its own, services of experts are liable to be taken for this purpose; Shyam Sundar Chowkhani v. Kajalkanti Biswas, AIR 1999 Gau 101.

Under the law the court has power to compare signatures/handwriting strengthening its finding based on other cogent material and evidence on record; Satish Jayanthilal Shah v. Pankaj Mashruwala, (1997) 2 Crimes 203 (Guj).

———————–

  1. Ins. by Act 5 of 1899, sec. 3.

73A. Proof as to verification of digital signature –

173A. Proof as to verification of digital signature.- In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct—

(a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate;

(b) any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person.

Explanation.—For the purposes of this section, “Controller” means the Controller appointed under sub-section (1) of section 17 of the Information Technology Act, 2000.

———————–

  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Public Documents

74. Public documents –

The following documents are public documents :—

(1) Documents forming the acts, or records of the acts—

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive,1[of any part of India or of the Commonwealth], or of a foreign country;

(2) Public records kept2[in any State] of private documents.

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  1. The original words “whether of British India, or of any other part of Her Majesty’s dominions” have successively been amended by the A.O. 1948 and the A.O. 1950 to read as above.
  2. Subs. by the A.O. 1950, for “in any province”.

75. Private documents –

All other documents are private.

76. Certified copies of Public Documents –

Every1public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.

Explanation

Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

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  1. A Village-officer in the Punjab has been declared for the purposes of this Act to be a public officer having the custody of a public document—seethe Punjab Land Revenue Act, 1887 (17 of 1887), section 151(2).

77. Proof of documents by production of certified copies –

Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

78. Proof of other official documents –

The following public documents may be proved as follows –

(1) Acts, orders or notifications of1the General Government in any of its departments,2or of the Crown Representative or of any State Government or any department of any State Government.

By the records of the departments, certified by the heads of those departments respectively, or

By any document purporting to be printed by order of any such Government2or as the case may be, of the Crown Representative;

(2) The proceedings of the Legislatures –

by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting The Orient Tavern be printed3by order of the Government concerned;

(3) Proclamations, orders or regulations issued by4Her Majesty or by the privy Council, or by any department of Her Majesty’s Government, By copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s Printer;

(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country –

By journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some5Central Act;

(5) The proceedings of a municipal body in a6State, –

By a copy of such proceedings certified by the legal keeper thereof of by a printed book purporting to be published by the authority of such body,

(6) Public documents of any other class in a foreign country, –

by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of7an Indian consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original and upon proof of the character of the document according to the law of the foreign country.

STATE AMENDMENT

West Bengal

After section 78, insert the following section, namely:—

78A. Copies of public documents, to be as good as original documents in certain cases.—Notwithstanding anything contained in this Act or any other law for the time being in force, where any public documents concerning any areas within West Bengal have been kept in Pakistan, then copies of such public documents shall, on being authenticated in such manner as may be prescribed from time to time by the State Government by notification in the Official Gazette, be deemed to have taken the place of and to be, the original documents from which such copies were made and all references to the original documents shall be construed as including references to such copies.”

[Vide West Bengal Act 29 of 1955, sec. 3 (w.e.f. 6-10-1955) as amended by West Bengal Act 20 of 1960, sec. 3 (w.e.f. 5-1-1961)].

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  1. Subs. by the A.O. 1937, for “the Executive Government of British India”..
  2. Ins. by the A.O. 1937.
  3. Subs. by the A.O. 1937, for “by order of Government”.
  4. The words “Her Majesty” stand unmodified see the A.O. 1950.
  5. Subs. by the A.O. 1937, for “public Act of the Governor General of India in Council”.
  6. Subs. by the A.O. 1950, for “a Province”.
  7. Subs. by the A.O. 1950, for “a British Consul”.

79. Presumption as to genuineness of certified copies –

The Court shall presume1to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer2of the Central Government or of a State Government, or by any officer3in the State of Jammu and Kashmir who is duly authorized there to by the Central Government:

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper.

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  1. Ins. by the A.O. 1948.
  2. The original word beginning from “in British India” and ending with the words “to be genuine” have been successively amended by the A.O. 1937, A.O. 1948 and A.O. 1950 to read as above.
  3. Subs. by Act 3 of 1951, sec. 3 and Sch., for “in a Part B State”.

80. Presumption as to documents produced as records of evidence –

Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be statement or confession by any prisoner or accused person taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume –

that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.

81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents –

The Court shall presume the genuineness of every document purporting to be the London Gazette,1or any official Gazette or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of private Act of Parliament2of the United Kingdom printed by the Queen’s Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

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  1. Subs. by A.O. 1937, for “the Gazette of India or the Government Gazette of any L.G., or”.
  2. Ins. by the A.O. 1950.

81A. Presumption as to Gazettes in electronic forms –

181A. Presumption as to Gazettes in electronic forms.- The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.

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  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

82. Presumption as to document admissible in England without proof of seal or signature –

When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine and that the person signing it held at the time when he signed it, the judicial or official character which he claims;

and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.

83. Presumption as to Maps or Plans made by authority of Government –

The Court shall presume that maps or plans purporting to be made by the authority of1the Central Government or any State Government were so made, and are accurate, but maps or plans made for the purposes of any cause must be proved to be accurate.

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  1. The original word “Government” has successively been amended by the A.O. 1937, A.O. 1948, Act 40 of 1949, A.O. 1950, to read as above.

84. Presumption as to collections of laws and reports of decisions –

The Court shall presume the genuineness of every book purporting to be printed and published under the authority of the Government of any country, and to contain any of the laws of that country; and of every book purporting to contain reports of decisions of the Courts of such country.

85. Presumption as to powers of attorney –

The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate,1[Indian] Consul or Vice-Consul, or representative2[***] of the3[Central Government], was so executed and authenticated.

———————–

  1. Subs. by the A.O. 1950, for “British”.
  2. The words “of Her Majesty, or” omitted by the A.O. 1950.
  3. Subs. by the A.O. 1937, for “Government of India”.

85A. Presumption as to electronic agreements –

185A. Presumption as to electronic agreements.- The Court shall presume that every electronic record purporting to be an agreement containing the digital signatuers of the parties was so concluded by affixing the digital signature of the parties.

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  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

85B. Presumption as to electronic records and digital signatures –

185B. Presumption as to electronic records and digital signatures.- (1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

(2) In any proceedings, involving secure digital signature, the Court shall presume unless the contrary is proved that—

(a) the secure digital signature is affixed by subscriber with the intention of signing or approving the electronic record;

(b) except in the case of a secure electronic record or a secure digital signature, nothing in this section shall cerate any presumption, relating to authenticity and integrity of the electronic record or any digital signature.

———————–

  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

85C. Presumption as to Digital Signature Certificates –

185C. Presumption as to Digital Signature Certificates.- The Court shall presume, unless contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verfied, if the certificate was accepted by the subscriber.

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  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

86. Presumption as to certified copies of foreign judicial records –

The Court may presume that any document purporting to be a certified copy of any judicial record of1[2[***] any country not forming part of India] or of Her Majesty’s dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of3[***] the4[Central Government]5[in or for]6[such country] to be the manner commonly in use in7[that country] for the certification of copies of judicial records.

8[An officer who, with respect to9[***] any territory or place not forming part of10[India or] Her Majesty’s dominions, is a Political Agent therefore, as defined in section 3,11[clause (43)], of the General Clauses Act, 1897 (10 of 1897), shall, for the purposes of this section, be deemed to be a representative of the12[Central Government]13[in and for the country] comprising that territory or place].

———————–

  1. Subs. by A.O. 1950, for “any country not forming part”.
  2. The words “a Part B State or of” omitted by Act 3 of 1951, sec. 3 and Sch.
  3. The words “Her Majesty or of” omitted by the A.O. 1950.
  4. Subs. by the A.O. 1937, for “Government of India”.
  5. Subs. by Act 3 of 1891, sec 8, for “resident in”.
  6. Subs. by Act 3 of 1951, sec. 3 and Sch., for “such Part B State or country”.
  7. Subs. by Act 3 of 1951, sec. 3 and Sch., for “that State or country”.
  8. Subs. by Act 5 of 1899, sec. 4, for the para added by Act 3 of 1891, sec. 3.
  9. The words “a Part B State or” which were ins. by the A.O. 1950, omitted by Act 3 of 1951, sec. 3 and Sch.
  10. Ins. by the A.O. 1950.
  11. Subs. by the A.O. 1950, for “clause (40)”.
  12. Subs. by the A.O. 1937, for “Government of India”.
  13. Subs. by Act 3 of 1951, sec. 3 and Sch., for “in and for that Part B State or country”.

87. Presumption as to Books, Maps and Charts –

The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts, and which is produced for its inspection, was written and published by the person, and at the time and place, by whom or at which it purports to have been written or published.

88. Presumption as to Telegraphic Messages –

The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.

88A. Presumption as to electronic messages –

188A. Presumption as to electronic messages.- The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

Explanation

For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.

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  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

89. Presumption as to due execution etc., of documents not produced –

The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.

90. Presumption as to documents thirty years old –

Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation

Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

This Explanation applies also to section 81.

Illustrations

(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.

(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.

(c) A, a connection of B, produces deeds relating to lands in B’s possession, which were deposited with him by B for safe custody. The custody is proper.

STATE AMENDMENTS

Uttar Pradesh.—(a) Renumber section 90 as sub-section (1) thereof;

(b) in sub-section (1) as so renumbered, for the words “thirty years”, substitute the words “twenty years”;

(c) after sub-section (1) as so renumbered, insert the following sub-section, namely:—

“(2) Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, it is that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested”.

(d) After section 90, insert the following section, namely:—

“90A.(1) Where any registered document or a duly certified copy thereof or any certified copy of a document which is part of the record of a Court of Justice, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the original was executed by the person by whom it purports to have been executed.

(2) This presumption shall not be made in respect of any document which is the basis of a suit or of defence or is relied upon in the plaint or written statement.”

The Explanation to sub-section (1) of section 90 will also apply to this section;

[Vide Uttar Pradesh Act 24 of 1954, sec. 2 and Sch. (w.e.f. 30-11-1954).]

Presumption

Assuming that the document is more than thirty years old and comes from proper custody, there would be no presumption that contents of the same are true; Mohinuddin v. President, Municipal Committee, Khargone, AIR 1993 MP 5.

90A. Presumption as to electronic records five years old –

190A. Presumption as to electronic records five years old.- Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorised by him in this behalf.

Explanation

Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.

This Explanation applies also to section 81A.

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  1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Chapter VI – Of the exclusion of oral by documentary evidence

91. Evidence of terms of contracts, grant and other dispositions of property reduced to form of documents –

When the terms of a contract, or of a grant, or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence1shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.

Exception 1.

When a public officer is required by law to be appointed in writing, and when it is shown that any particular person had acted as such officer, the writing by which he is appointed need not be proved.

Exception 2.

Wills2admitted to probate in3India may be proved by the probate.

Explanation 1.

This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.

Explanation 2.

Where there are more originals than one, one original only need be proved.

Explanation 3.

The statement, in any document whatever of a fact other than the facts referred to in this section shall not preclude the admission of oral evidence as to the same fact.

Illustrations

(a) If a contract be contained in several letter, all the letters in which it is contained must be proved.

(b) If a contract is contained I a bill of exchange, the bill of exchange must be proved.

(c) If a bill of exchange is drawn in a set of three, one only need be proved.

(d) A contracts, in writing with B, for the delivery of indigo upon certain

terms. The contract mentioned the fact that B had paid A the price of other in contracted for verbally on another occasion.

Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.

(e) A gives B a receipt for money paid by B.

Oral evidence is offered of the payment.

The evidence is admissible.

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  1. Where, however, a criminal court finds that a confession or other statements of an accused person has not been recorded in the manner prescribed, evidence may be taken that the recorded statement was duly made see the Code of Criminal Procedure, 1973 (2 of 1974), section 463.
  2. Subs. by Act 18 of 1872, sec. 7, for “under the Indian Succession Act”.
  3. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.

92. Exclusion of evidence of oral agreement –

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

Proviso (1)

Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party,1[want or failure] of consideration, or mistake in fact or law:

Proviso (2)

The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:

Proviso (3)

The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:

Proviso (4)

The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:

Proviso (5)

Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:

Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:

Proviso (6)

Any fact may be proved which shows in what manner the language of a document is related to existing facts.

Illustrations

(a) A policy of insurance is effected on goods “in ships from Calcutta to London”. The goods are shipped in a particular ship which is lost. The fact that that particular ship was orally excepted from the policy, cannot be proved.

(b) A agrees absolutely in writing to pay B Rs. 1,000 on the 1st March, 1873. The fact that, at the same time, an oral agreement was made that the money should not be paid till the thirty-first March, cannot be proved.

(c) An estate called “the Rampure tea estate” is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed, cannot be proved.

(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B’s as to their value. This fact may be proved.

(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.

(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words “Bought of A a horse for Rs. 500”. B may prove the verbal warranty.

(h) A hires lodgings of B, and gives B a card on which is written—“Rooms, Rs. 200 a month”. A may prove a verbal agreement that these terms were to include partial board.

A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally.

(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this.

(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered.

Deed of collateral security: manner of execution

If it is a deed of collateral security of defendant, then the defendant would have had to execute a deed in favour of plaintiff and not vice versa, where the plaintiff has executed the mortgage the plea of evidence of collateral security offered by defendant appears not to fit into a situation; Ishwar Dass v. Sohan Lal, AIR 2000 SC 426.

Inference can be drawn regarding proof of document by admission of parties either oral or other evidence; B.B. Lohar v. P.P. Goyal, AIR 1999 Sikkim 11.

Position of stranger

The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being; Parvinder Singh v. Renu Gautam, (2004) 4 SCC 794.

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  1. Subs. by Act 18 of 1872, sec. 8, “for want of failure”.

93. Exclusion of evidence to explain or amend ambiguous document –

When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.

Illustrations

(a) A agrees, in writing, to sell a horse to B for “Rs. 1,000 or Rs. 1,500”.

Evidence cannot be given to show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled.

94. Exclusion of evidence against application of document of existing facts. –

When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.

Illustrations

A sells to B, by deed “my estate at Rampur containing 100 bighas” . A has an estate at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size.

95. Evidence as to document unmeaning in reference to existing facts. –

When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.

Illustration

A sells to B, by deed “my house in Calcutta.”

A had not house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed.

These facts may be proved to show that the deed related to the house at Howrah.

96. Evidence as to application of languages which can apply to one only of several persons

When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one of several persons or things evidence may be given of facts which show of those persons or things it was intended to apply to.

Illustrations

(a) A agrees to sell to B, for Rs.1,000 “my white horse”. A has two white horse. Evidence may be given of facts which show which of them was meant.

(b) A agrees to accompany B to Hyderabad. Evidence may be given of facts showing whether Hyderabad in the Deccan or Hyderabad in the Deccan or Hyderabad in Sind was meant.

97. Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies –

When the language used applies partly to one set of existing facts and, partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.

Illustration

A agrees to sell to B “my land to X in the occupation of Y.” A has land at X, but not in occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence may be given of facts showing which he meant to sell.

98. Evidence as to meaning of illegible characters, etc. –

Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local or provincial expressions, of abbreviations and of words used in a peculiar sense.

Illustration

A, a sculptor, agrees to sell to B, “all my moods” A has both models and modeling tools. Evidence may be given to show which he meant to sell.

99. Who may give evidence of agreement varying term of document –

Person who are not parties to document, or their representatives in interest may give evidence of any fact tending to show a contemporaneous agreement varying the terms of the document.

Illustration

A and B make a contract in writing that B shall sell certain cotton, to be paid for on delivery. At the same time they made an oral agreement that “three months” credit shall be given to A. This could not be shown as between A and B, but it might be shown by C if it affected by his interests.

100. Saving of provisions of India Succession Act relating to Wills. –

Nothing in this Chapter contained shall be taken to affect any of the provisions of the Succession Act (X of 1965) as to the construction to Wills.

Part III – PRODUCTION AND EFFECT OF EVIDENCE

Chapter VII – Of the burden of proof

101. Burden of Proof –

Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustration

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.

A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies to be true.

A must prove the existence of those facts.

Joint family property

Merely because some of properties continue to stand in the name of plaintiff that by itself cannot lead to any conclusion that the property purchased by any one member of the family would necessarily be a part of joint family property and when evidence shows that the person who has purchased property had been engaged in an independent business for a sufficient long period; Baban Girju v. Namdeo Girju Bangar, AIR 1999 Bom 46.

Reasonable proof of ownership

In absence of any reasonable proof that defendant was the actual owner of the property, and plaintiff was only a name given does not prove that respondent was owner and plaint maker was only a name given to the property; Rama Kanta Jain v. M.S. Jain, AIR 1999 Del 281.

What to be proved by prosecution

It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court on its own make out a new case for the prosecution and convict the accused on that basis; Narain Singh v. State, (1997) 2 Crimes 464 (Del).

102. On whom burden of proof lies. –

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Illustration

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father.

If no evidence were given on either side, B would be entitled to retain his possession.

Therefore, the burden of proof is on A.

(b) A sues B for money due on a bond.

The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.

If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved.

Therefore the burden of proof is on B.

103. Burden of proof as to particular fact. –

The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

Illustration

1[(a)] A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.

B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.

Plea of alibi

Plea of alibi taken by accused, it is he who has to prove it; State of Haryana v. Sher Singh, AIR 1981 SC 1021: 1981 SC Cr R 317: 1981 Cr LJ 714: (1981) 2 SCC 300.

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  1. Sic. In the Act as published in Gazette of India, 1872, Pt. IV, p. 1, there is no illustration (b).

104. Burden of proving fact to be proved to make evidence admissible –

The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.

Illustrations

A wishes to prove a dying declaration by B.A must prove B’s death.

B wishes to prove, by secondary evidence, the contents of a lost document.

A must prove that the document has been lost.

105. Burden of proving that case of accused comes within exceptions –

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

Illustrations

(a) A, accused of murder, alleges that, by reason of unsoundness of mind,

he did not know the nature of the act.

The burden of proof is on A.

(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control.

The burden of proof is on A.

(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.

A is charged with voluntarily causing grievous hurt under section 325.

The burden of proving the circumstances bringing the case under section 335 lies on A.

Plea of self-defence

When the prosecution has established its case, it is incumbent upon the accused, under section 105 to establish the case of his private defence by showing probability; Samuthram alias Samudra Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185 (Mad).

The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record; Rizan v. State of Chhattisgarh, AIR 2003 SC 976.

106. Burden of proving fact specially within knowledge –

When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had ticket is on him.

107. Burden of proving death of person known to have been alive within thirty years. –

When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

108. Burden of proving that person is alive who has not been heard of for seven years. –

1Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is2shifted to the person who affirms it.

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  1. Subs. by Act 18 of 1872, sec. 9, for “When”.
  2. Subs. by Act 18 of 1872, sec. 9, for “on”.

109. Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent –

When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it.

110. Burden of proof as to ownership –

When the question is, whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

111. Proof of good faith in transactions where one party is in relation of active confidence. –

Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

Illustrations

(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.

(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.

111A. Presumption as to certain offences. –

1111A. Presumption as to certain offences.- (1) Where a person is accused of having committed any offence specified in sub-section (2), in-

(a) any area declared to be disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or

(b) any area in which there has been, over a period of more than one month, extensive disturbance of the public peace,

and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contary is shown, that such person had committed such offence.

(2) The offences referred to in sub-section (1) are the following, namely –

(a) an offence under section 121, section 121-A, section 122 or Section 123 of the Indian Penal Code (45 of 1860);

(b) criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860).

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  1. Ins. by Act 61 of 1984, sec. 20 (w.e.f. 14-7-1984).

112. Birth during marriage, conclusive proof of legitimacy –

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

‘Conclusive evidence’ and ‘conclusive proof’ not different

There is no difference between ‘conclusive evidence’ and ‘conclusive proof’, the aim of both being to give finality to the establishment of the existence of a fact from the proof of another; Somwanti v. State of Punjab, AIR 1963 SC 151.

DNA Test

The DNA test cannot rebut the conclusive presumption envisaged under section 112 of the Indian Evidence Act. The parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof; Shaik Fakruddin v. Shaik Mohammed Hasan,AIR 2006 AP 48.

Presumption of proof

Refusal by wife on a genuine ground, to go to Delhi and get hers and her child’s blood got tested there, does not support drawing an adverse inference against her; Devesh Pratap Singh v. Sunita Singh, AIR 1999 MP 174.

In absence of dislodging of presumption by proof a husband cannot derive much help from her admission that when she met him, she was in period of menses and after that she gave birth to a child who is an illegitimate one, born validly out of wedlock of hers with her husband; Devesh Pratap Singh v. Sunita Singh, AIR 1999 MP 174.

Scope

Section 112 read with section 4 really have the effect of completely closing and debarring the party from leading any evidence with respect to the fact which the law says that to be the conclusive proof of legitimacy and paternity of child covered by 112. The Parties to the marriage had no access to each other and to test blood group violates right under article 21 of Constitution; Ningamma v. Chikkiah, AIR 2000 Karn 50.

113. Proof of cession of territory –

A notification in the Official Gazette that any portion of British territory has1before the commencement of Part III of the Government of India Act,1935, (26 Geo. 5 Ch. 2) been caddied to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.

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  1. Ins. by the A.O. 1937, (Pt. III of the Government of India Act, 1935 came into force on the 1st April, 1937).

113A. Presumption as to abatement of suicide by a married women –

1113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a women had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation

For the purposes of this section, “cruelty” shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).

Relevant portion of section 498A of the Indian Penal Code, (45 of 1860), is reproduced below:

Explanation

For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limit or health (whether mental or physical);

or

(b) harassment of the woman where such harassment is with a view to view concerning her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

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  1. Ins. by Act 46 of 1983, sec. 7.

113B. Presumption as to dowry death –

1113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.

Explanation

For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).

Husband being the direct beneficiary can be inferred to have caused life of wife so miserable that she was compelled to commit suicide; Surinder Singh v. State of Punjab, 1999 (1) Crimes 4296.

Relevant portion of section 304B of the Indian Penal Code, (45 of 1860), is reproduced below:

304B. Dowry death.—(1) Where the death of a woman is caused by any burn or bodily injury or occurs otherwise than normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called “dowry death”.

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  1. Ins. by Act 43 of 1986, sec. 12 (w.e.f. 19-11-1986).

114. Court may presume existence of certain facts –

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustration

The Court may presume –

(a) That a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

(b) That an accomplice is unworthy of credit, unless he is corroborated in material particular;

(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;

(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;

(e) That judicial and official acts have been regularly performed;

(f) That the common course of business had been followed in particular cases;

(g) That evidence which could be and is not produced would, if produced be unfavorable to the person who withholds it;

(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavorable to him;

(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it –

As to illustration (a)—A shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;

As to illustration (b)—A, a person of the highest character, is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;

As to illustration (b)—A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;

As to illustration (c)—A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was young and ignorant person, completely under A’s influence;

As to illustration (d)—It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;

As to illustration (e)—A judicial act, the regularity of which is in question, was performed under exceptional circumstances;

As to illustration (f)—The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;

As to illustration (g)—A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;

As to illustration (h)—A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;

As to illustration (i)—A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.

Presumption

(i) Presumption is rebuttable. If there is any such circumstance weakening such presumption, it cannot be ignored by the court; Sobha Hymavathi Devi v. Setti Gangadhara Swamy, AIR 2005 SC 800.

(ii) When oral and other reliable evidences are satisfactorily giving evidence that the pair lived together as husband and wife, merely because family register does not show them as husband and wife is not a clinching evidence to deny their relationship of husband and wife; Lalta v. District IVth upper Distt. Judge Basti, AIR 1999 All 342.

(iii) Execution of will made under fraud and under influence not denied. Evidence not adduced in support of allegation inference drawn that will is valid; S. Kaliyammal v. K. Palaniammal, AIR 1999 Mad 40.

(iv) Genuine and correctness of document have to be proved by a person believes upon it by cogent and direct evidence; Ashok Kumar Uttam Chand Shah v. Patel Mohmad Asmal Chanchad, AIR 1999 Guj 108.

(v) A court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder; Mukund alias Kundu Mishra v. State of Madhya Pradesh, (1997) 4 Supreme 359.

(vi) The recovery made some days after the dacoity does not raise a presumption under section 114(a) in respect of the offence of dacoity; Vasant alias Roshan Sogaji Bhosale v. State of Maharashtra, (1997) 2 Crimes 104 (Bom).

114-A Presumption as to absence of consent in certain prosecutions for rape –

1[‘114A. In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

Explanation.— In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code.’.]

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  1. Inserted by Section 114A of “The Criminal Law (Amendment) Act, 2013″

Chapter VIII – Estoppel

115. Estoppel –

When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

Illustration

A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.

The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.

Doctrine of Election

‘The Doctrine of Election’ is a branch of rule of estoppel. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them; National Insurance Co. Ltd. v. Mastan, AIR 2006 SC 577.

Effect of estoppel

(i) An estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it; B.L. Sreedhar v. K.M. Munireddy (dead), AIR 2003 SC 578.

(ii) It is settled canon of law that equity follows the law. Equity would tilt in favour of law and not against violation thereof. To claim equity, the petitioner must explain previous conduct; Bhopal Singh v. Chatter Singh, AIR 2000 P&H 34.

(iii) In terms of compromise name of tenant is deleted, order reached to finality. Dispute regarding tenancy in the subsequent proceeding are estopped; Vijayabai v. Shriram Tukaram, AIR 1999 SC 431.

(iv) The party in one hand volunteered before the Arbitration for extension of time and opposed to extension of time, the plea reverse to such conduct cannot be said to be good; F.C.I. v. Dilip Kumar, AIR 1999 Cal 75.

(v) The petitioner did not raise the print that the State Transport Authority was not properly constituted at the time of consideration of her petition, thereby taking a chance of succeeding in the proceedings before it. Therefore, she is now debarred by her own conduct from raising the contention before the Court; Sushila Chand v. State Transport Authority, AIR 1999 Ori 1.

(vi) Where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights; B.L. Sreedhar v. K.M. Munireddy, AIR 2003 SC 578.

Object

The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Therefore, when one person makes a misrepresentation to the other about a fact he would not be shut out by the rule of estoppel if that other person knew the true state of facts and must consequently not have been misled by the misrepresentation; Maddanappa v. Chandramma, AIR 1965 SC 1812.

Promissory Estoppel

Doctrine of promissory estoppel is not applicable to ultra vires decisions; M. Deo Narain Reddy v. Govt. of Andhra Pradesh, AIR 2004 NOC 332 (AP).

When plea of estoppel does not arise

If the statutory requirements for grant of lease are not fulfilled, the question of raising any plea of estoppel would not arise; Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia, AIR 2004 SC 1159.

116. Estoppel of tenant and of license of person in possession –

No tenant of immovable property of person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and not person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person has a title to such possession at the time when such license was given.

Tenant can contest title of landlord

If old tenancy continues, notwithstanding attornment, tenant can always contend that plaintiff who claims to be landlord had not really derived title from original inductor; Sambhunath Mitra v. Khaitan Consultant Ltd., AIR 2005 Cal 281.

117. Estoppel of acceptor of bill of exchange, bailee or licensee –

No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority of draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or license commenced, authority to make such bailment or grant such license.

Explanation (1)

The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.

Explanation (2)

If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.

Chapter IX – Of witnesses

118. Who may testify? –

All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind, or any other cause of the same kind.

Explanation

A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

Reliability of witness

Testimony of a relation or a friend normally would not falsely implicate a person thereby shielding the actual culprit; Narasingh Challan v. State of Orissa, (1997) 2 Crimes 78 (Ori).

It is true that by itself the evidence of a chance witness may not necessarily be false but as has often been said that it is unsafe to be relied upon; Ganpat Kondiba Chavan v. State of Maharashtra, (1997) 2 Crimes 38 (Bom).

It is thoroughly unsafe to rely on the evidence of the tutored witness; Krishna Mohali v. State of Bihar, (1997) 2 Crimes 146 (Pat).

Relative or interested witnesses are not necessarily unreliable witnesses; Sawai Ram v. State of Rajasthan, (1997) 2 Crimes 148 (Raj).

No doubt, an approver in the eye of law is a competent witness; Murlidharan v. State of Tamil Nadu, (1997) 1 Crimes 515 (Mad).

Evidence of child witness is not reliable who is under the influence of tutoring; Changan Dame v. State of Gujarat, 1994 Cr LJ 66 (SC).

Testimony of independent witness

It is true that there is no immutable rule of appreciation of evidence that the testimony of independent witnesses should be ipso facto accepted but all the same the circumstance that witnesses are independent goes miles and miles to ensure their truthfulness. Criminal Courts decide cases and the question of acceptance of evidence of witnesses on sound common sense and when they find witnesses to be wholly independent they endeavour to fathom the reason as to why their evidence should not be accepted. Ordinarily it is a safe and sound rule of appreciation of evidence to accept the testimony of an independent witness provided it is in consonance with probabilities. It is better if it is corroborated by inbuilt guarantees which ensure the truthfulness of the prosecution case, such as a prompt F.I.R., recoveries at the instance of accused person and the presence of injured eyewitnesses, etc.; Shravan Dashrath Datrange v. State of Maharashtra, (1997) 2 Crimes 47 (Bom).

119. Dumb witnesses –

1[“119. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.”.]

Where the witness is dumb, recording of his evidence should be of his signs and not interpretation of signs; Prakash Chand v. State of Himachal Pradesh, 1999 (1) Crimes 675 (HP).

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  1. Inserted by Section 119 of “The Criminal Law (Amendment) Act, 2013″

120.Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial –

In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.

121. Judges and Magistrates –

No Judge or Magistrate shall, except upon the special order of some Court of which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to any thing which came to his knowledge in Court as such Judge or Magistrate but he may be examined as to other matters which occurred in his presence whilst he was so acting.

Illustrations

(a) A, on his trail before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer question as to this, except upon thee special order of a superior Court.

(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B, cannot be asked what A said, except upon the special order of the superior Court.

(c) A is accused before the Court of Session of attempting to murder a police-officer whilst on his trail before B, a Session Judge. B may be examined as to what occurred.

122. Communications during marriage –

No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

123. Evidence as to affairs of State –

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except wit the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

124. Official communications –

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

125. Information as to commission of offences –

  1. 1Information as to commission of offences.- No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

Explanation

“Revenue officer” in this section means an officer employed in or about the business of any branch of the public revenue.

  1. Subs. by Act 3 of 1887, sec. 1, for section 125.

126. Professional communications –

No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure—

(1) Any such communication made in furtherance of any1[illegal] purpose;

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such barrister,2[pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client.

Explanation

The obligation stated in this section continues after the employment has ceased.

Illustrations

(a) A, a client, says to B, an attorney—“I have committed forgery, and I wish you to defend me”.

As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.

(b) A, a client, says to B, an attorney—“I wish to obtain possession of property by the use of a forged deed on which I request you to sue”.

This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.

(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.

This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

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  1. Subs. by Act 18 of 1872, sec. 10, for “criminal”.
  2. Ins. by Act 18 of 1872, sec. 10.

127. Section 126 to apply to interpreters etc. –

The provisions of Section 126 apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.

128. Privilege not waived by volunteering evidence –

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126, and if any party to a suit or proceeding calls any such barrister,1pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.

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  1. Ins. by Act 18 of 1872, sec. 10.

129. Confidential communication with Legal Advisers –

No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has give, but not others.

130. Production of title-deeds of witness, not a party –

No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.

131. Production of documents or electronic records which another person, having possession, could refuse to produce –

  1. 1Production of documents or electronic records which another person, having possession, could refuse to produce.- No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last-mentioned person consents to their production.

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  1. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for section 131 (w.e.f. 17-10-2000).

132. Witness not excused from answering on ground that answer will criminate –

A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:

Provison

Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

133. Accomplice –

An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Accomplice need not be judged by independent evidence

Every detail of the story of the accomplice need not be confirmed by independent evidence although some additional independent evidence must be looked for to see whether the approver is speaking the truth and there must be some evidence, direct or circumstantial which connects the co-accused with the crime independently of the accomplice; Haroon Haji v. State of Maharashtra, AIR 1968 SC 832.

Importance of corroboration

On reading section 133 with illustration (B) to section 114. It is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respect so as to implicate the accused and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice; Bhuboni Sabu v. Emperor, AIR 1949 PC 257.

Every approver comes to give evidence in some such manner seeking to purchase his immunity and that is why to start with he is an unreliable person and the rule of caution calling for material corroboration is constantly kept in mind by the court by time-worn judicial practice; Ravinder Singh v. State of Punjab, AIR 1975 SC 856.

The evidence of approver in regard to complicity of accused appellant in the conspiracy lacks corroboration on certain material particulars necessary for connecting the appellant; Balwant Kaur v. Union Territory of Chandigarh, 1988 Cr LJ 398: AIR 1988 SC 139.

134. Number of witness –

No particular number of witness shall in any case be required for the proof of any fact.

Merit of the statement is important

It is well known principle of law that reliance can be based on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution; Raja v. State, (1997) 2 Crimes 175 (Del).

The courts are concerned with the merit of the statement of a particular witness. They are not concerned with the number of witnesses examined by the prosecution; Raja v. State, (1997) 2 Crimes 175 (Del).

The time-honoured rule of appreciating evidence is that it has to be weighed and not counted; State of Maharashtra v. Suresh Nivsutti Bhaunare, (1997) 2 Crimes 257 (Bom).

Requirement

The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony of a single witness, the court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court as to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness; Lallu Manjhi v. State of Jharkhand, AIR 2003 SC 854.

Chapter X – Of the examination of witnesses

135. Order of production and examination of witness –

The order in which witness are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law, by the discretion of the Court.

136. Judge to decide as to admissibility of evidence –

When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.

If the relevancy of the alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved or acquire evidence to be given of the second fact before evidence is given of the first fact.

Illustrations

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.

The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

(b) It is proposed to prove, by a copy, the contents of a document said to be lost.

The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c) A is accused of receiving stolen property knowing it to have been stolen.

It is proposed to prove that he denied the possession of the property.

The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.

(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

137. Examination-in-chief –

The examination of a witness, by the party who calls him, shall be called his examination-in-chief.

Cross-examination

The examination of a witness by the adverse party shall be called his cross-examination.

Re-examination

The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

138. Order of examinations –

Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts but the cross-examination need not to be confined to the facts which the witness testified on his examination-in-chief.

Direction of re-examination

The re-examination shall be directed to the explanation of matters referred to in cross-examination, and if new matter by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

Scope

Section 138 lays down the manner of examining a particular witness and creates three distinct rights viz., examination-in-chief, cross-examination and re-examination so far as the examination of a witness is concerned. The right of cross-examination available to opposite party is a distinct and independent right. When accused declined to cross-examine witness and thereafter the said witness is not available for cross-examination, the evidence of such witness recorded is admissible in evidence but that will have to be true to that account; Nandram v. State of Madhya Pradesh, 1995 FAJ 1 (MP).

139. Cross-examination of person called to produce a document –

A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examination, unless and until he is called as a witness.

140. Witness to character –

Witnesses to character may be cross-examined and re-examined.

141. Leading questions –

Any questions suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

142. When they must not be asked –

Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed or which have, in its opinion, been already sufficiently proved.

143. When they must be asked –

Leading questions may be asked in cross-examination.

144. Evidence as to matters in writing –

Any witness may be asked whilst under examination, whether any contract, grant or other disposition of property as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.Explanation – A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.

Illustration

The question is, whether A assaulted B.

C deposes that he heard A, say to D – “B wrote a letter accusing me of theft, and I will be revenged on him. “This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

145. Cross-examination as to previous statements in writing –

  1. 1Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matter in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

Effect of contradiction

Two statements sought to be contradicted in addition should be drawn to previous

statement; Mohanlal Ganga Ram Gehani v. State of Maharashtra, AIR 1982 SC 839.

If a contradiction is put to witness and it is denied by him even then it will not amount putting contradiction to witness; Shaik Subhani v. State of Andhra Pradesh, 2000 Cr LJ 321 (AP).

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  1. As to the application of section 145 to police-diaries, see the Code of Criminal Procedure, 1973 (2 of 1974), section 172.

146. Questions lawful in cross-examination –

1[“Provided that in a prosecution for an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.”.]

Role of cross-examination

Weapon of cross-examination is a powerful weapon by which the defence can separate truth from falsehood piercing through the evidence given by the witness, who has been examined in examination-in-chief. By the process of cross-examination the defence can test the evidence of a witness on anvil of truth; Nandram v. State of Madhya Pradesh, (1995) FAJ 1 (MP).

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  1. Inserted by Section 146 of “The Criminal Law (Amendment) Act, 2013″

147. When witness to be compelled to answer –

If any such question relates to a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply thereto.

148. Court to decide when question shall be asked and when witness compelled to answer –

If any such question relates to matter not relevant to the suit or proceeding, except in so far it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion the Court shall have regard to the following considerations;

(1) Such questions are proper if they are of such nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.

(2) Such questions are proper if they are of such nature that he truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.

(3) Such questions are improper if there is a great disproportion between the importance of the imputations made against the witness’s character and the importance of his evidence.

(4) The court may if it sees fit, draw from the witness’s refusal to answer, the in ference that the answer if given would be unfavorable.

149. Question not to be asked without reasonable grounds –

No such question as is referred to in Section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.

Illustrations

(a) A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.

(b) A pleader is informed by a person in court that an important witness is a dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dakait.

(c) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a dakait.

(d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a dakait.

150. Procedure of Court in case of question being asked without reasonable grounds –

If the court is of opinion that any such question asked was without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney report the circumstances of the case to the High court or other authority to which barrister, pleader, vakil or attorney is subject in the exercise of his profession.

151. Indecent and scandalous questions –

The Court may forbid any question or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court unless they relate to fact in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.

152. Question intended to insult or annoy –

The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.

153. Exclusion of evidence to contradict answer to questions testing veracity –

When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him, but if he answers falsely, he may afterwards be charged with giving false evidence.

Exception 1

If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.

Exception 2

– If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.

Illustrations

(a) A claim against an underwriter is resisted on the ground of fraud.

The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it.

Evidence is offered to show that he did make such a claim.

The evidence is inadmissible.

(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it.

Evidence is offered to show that he was dismissed for dishonesty.

The evidence is not admissible.

(c) A affirms that on a certain day he saw B at Lahore.

A is asked whether he himself was not on that day at Calcutta. He denies it.

Evidence is offered to show that A was on that day at Calcutta.

The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore.

In each of these cases the witness might, if his denial was false, be charged with giving false evidence.

(d) A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence.

He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.

154. Question by party of his own witness –

1[(1)] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.

2[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.]

Grounds

Mere possibility of not supporting case by person without any positive indication is no ground to invoke section 154 and permit cross-examination. More so, when said person is not yet examined as witness; Rehana Begum v. Mirza M. Shaiulla Baig (Dead) by L.Rs., AIR 2005 Kant 446.

Cross-examination of own witness

Grant of permission by court to cross examine his own witness by a party should be judicially exercised—deposition in opposition, permission by court to declare him hostile not proper; S. Murugesan v. S. Pethaperumal, AIR 1999 Mad 76.

In a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto; Pandappa Hanumappa Nanamar v. State of Karnataka, (1997) 3 Supreme Today 63.

Evidence of hostile witness

The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused; Lella Srinivasa Rao v. State of Andhra Pradesh, AIR 2004 SC 1720.

Reliability of hostile witness

It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence; Koti Lakshman Bhai v. State of Gujarat, AIR 2000 SC 210.

The entire evidence of a prosecution witness, who turns hostile and is cross-examined by the Public Prosecutor with the leave of the court, is not to be discarded altogether as a matter of law; Pandappa Hanumappa Nanamar v. State of Karnataka, (1997) 3 Supreme Today 63.

Cross-examination of a hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence; Pandappa Hanumappa Nanamar v. State of Karnataka, (1997) 3 Supreme Today 63.

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  1. Section 154 renumbered as sub-section (1) thereof by Act 2 of 2006, sec. 9 (w.e.f. 16-4-2006).
  2. Ins. by Act 2 of 2006, sec. 9 (w.e.f. 16-4-2006).

155. Impeaching credit of witness –

The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him:—

(1) By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;

(2) By proof that the witness has been bribed, or has1[accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

2[***]

Explanation

A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

Illustrations

(a) A sues B for the price of goods sold and delivered to B.

C says that he delivered the goods to B.

Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B.

The evidence is admissible.

(b) A is indicted for the murder of B.

C says the B, when dying, declared that A had given B the wound of which he died.

Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence.

The evidence is admissible.

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  1. Subs. by Act 18 of 1872, sec. 11, for “had”.
  2. Clause (4) omitted by Act 4 of 2003, sec. 3 (w.r.e.f. 31-12-2002). Clause (a), before omission, stood as under:

“(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character”.”

156. Questions tending to corroborate evidence of relevant fact, admissible –

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fat which he testifies.

Illustration

A, an accomplice, gives an account of robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.

Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

157. Former statements of witness may be proved to corroborate later testimony as to same fact –

In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

158. What matters may be proved in connection with proved statement relevant under Section 32 or 33 –

Whenever any statement relevant under Section 32 or 33 is proved, all matters may be proved either in order to contradict or to corroborate, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

159. Refreshing memory. –

A witness may, while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.

The witness may also refer to any such writing made by any other person and read by the witness within time aforesaid, if when he read it he knew it to be correct

When witness may use copy of document to refresh his memory –

Whenever a witness may refresh his ness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document.

Provided the Court be satisfied that there is sufficient reason for the non-production of the original.

An expert may refresh his memory by reference to professional treatises.

Objection to check records not legal

Objection to check records or entries by investigating officer is not legal and liable to be rejected; State of Karnataka v. K. Yanappa Reddy, 2000 Cr LJ 400.

160. Testimony to facts stated in document mentioned in Section 159 –

A witness may also testify to facts mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.

Illustration

A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.

161. Right of adverse party as to writing used to refresh memory –

  1. 1Right of adverse party as to writing used to refresh memory.- Any writing referred to under the provisions of the two last preceding Sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness there upon.

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  1. As the application of section 161 to Police-Diaries, see the Code of Criminal Procedure, 1973 (2 of 1974), section 172.

162. Production of document –

A witness summoned to produce a document shall, if it is in his possession or power, bring it to the Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.

The Court, if it sees, fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

Translation of documents

If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence : and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).

163. Giving, as evidence, of document called for and produced on notice –

When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

164. Using, as evidence, of document, production of which was refused on notice –

When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.

Illustration

A sues B on an agreement and gives B notice to produce it. At the trail, A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.

165. Judge’s power to put questions or order production –

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, The Orient Tavern cross-examine any witness upon any answer given in reply to any such question.

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.

Provided also that this Section shall not authorize an Judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.

166. Power of jury or assessors to put questions –

In cases tried by jury or with assessors, the jury or assessors may put any question to the witnesses, through or by leave of the Judge, which the judge himself might put and which he considers proper.

Chapter XI – Of improper admission and rejection of evidence

167. No new trail for improper admission or rejection of evidence –

This improper admission or rejection of evidence shall not be ground of itself for a new trail or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

Press Council Act, 1978

Section 1. Short title and extent

(1) THIS Act may be called the press Council Act, 1978.

(2) It extends to the whole of India.

Section 2. Definitions

In this Act, unless the context otherwise requires,-

(a) “Chairman” means the chairman of the council;

(b) “Council means the Press council of India established under section 4;

(c) “Member” means a member of the council and includes its chairman;

(d) “Prescribed” means prescribed by rules made under this Act;

(e) The expressions “editor” and “newspaper” have the meaning respectively assigned to them in the Press and Registration of Books Act, 1867 (25 of 1867) and the expression “working journalist” has the meaning assigned to it in the working Journalists and other Newspaper employees (Conditions of Service) and Miscellaneous Provision Act, 1955 (45 of 1955).

Section 3. Rule of construction respecting enactments not extending to the State of Jammu and Kashmir or Sikkim

Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir or Sikkim shall, in relation to that State, be constructed as a reference to the corresponding law, if any inverse in that State.

Section 4. Incorporation of the Council

(1) With effect from such date as the Central government may, by notification in the Official Gazette, appoint, there shall be established a Council by the name of the Press council of India.

(2) The said council shall be a body corporate having perceptual succession and a common seal and shall by the said name sue and bemused.

Section 5. Composition of the Council

(1) The council shall consist of a chairman and twenty-eight other members.

(2) The chairman shall be a person nominated by a Committee consisting of the chairman of the council of states (Rajya Sabha), the Speaker of the Houses of the People (Lok Sabha) and a person elected by the members of the council under sub-section (6) and the nomination so made shall take effect from the date on which it is notified by the Central Government in the Official Gazette.

(3) Of the other members-

(a) Thirteen shall be nominated in accordance with such procedure as may be prescribed from among the working journalists, of whom six shall be editors of newspapers and the remaining seven shall be working journalists other than editors; so, however that the number of such editors and working journalists other than editors in relation newspapers published in Indian languages shall be not less than three and four respectively;

(b) Six shall be nominated in accordance with such procedure as may be prescribed from among persons who own or carry on the business of management of newspapers, so, newspapers, so, however, that there shall be two representatives from each of the categories of big newspapers, medium newspapers and small newspapers;

(c) One shall nominated in accordance with such procedure as may be prescribed from among persons who manage news agencies;

(d) Three shall be persons having special knowledge or practical experience in respect of education and science, law and literature and culture of whom respectively one shall be nominated by the University Grants Commission one by the Bar council of India and one by the Sahitya Academy;

(e) Five shall be members of Parliament of whom three shall be nominated by the speaker from among the members of the House of the People (Lok Sabha) and two shall be nominated by the chairman of the council of States (Rajya Sabha) from among its members:

Provided that no working journalist who owns, or carries on the business of management of any newspaper shall eligible for nomination under clause (a):

Provided further that the nominations under clause (a) and clause (b) shall be so made that among the persons nominated there is not more than one person interested in any newspaper or group of newspaper under the same control or management.

Explanation-for the purposes of clause (b), a “newspaper” shall be deemed to be-

(i) “Big newspaper” if the total circulation of all its editions exceeds fifty thousand copies for each issue;

(ii) Medium newspaper” of the total circulation of all its editions exceeds fifteen thousand copies but does not exceed fifty thousand copies for each issue;

(iii) “Small newspaper” of the total circulation of all its editions does not exceed fifteen thousand copies for each issue

(4) Before making any nomination under clause (a) clause (b) or clause (c) sub-section (3) the Central Government in the case of the first council and the retiring chairman of the previous council in the case of any subsequent council shall, in the prescribed manner, invite panels of names comprising twice the number to be nominated from such associations of persons of the categories referred to in the said clause (a) clause (b) or clause (c) as may be notified in this behalf by the Central Government in the case of the first council and by the council itself in the case of subsequent councils:

Provided that where there is no association of persons of the category referred to in the said clause (c) the panels of names shall be invited from such news agencies as may be notified as aforesaid.

(5) The Central government shall notify the names of persons nominated as members under sub-section (3) in the Official Gazette and every such nomination shall take effect from the date on which it is notify.

(6) The members of the council notified under sub-section (5) shall elect from among themselves in accordance with such procedure as may be prescribed, a person to be a member of the committee referred to in sub-section (2) and a meeting of the members of the council for the purpose of such election shall be prescribed over by a person chosen from among themselves.

Section 6. Term of office and retirement of members

(1) Save as otherwise provided in this section, the chairman and other members shall hold office for a period of three years:

Provided that the chairman shall continue to hold such office until the council is reconstituted in accordance with the provisions of section 5 for a period of six months whichever is earlier.

(2) Where a person nominated as a member under clause (a) clause (b) or clause (c) of sub-section (3) of section 5 if censured under the provisions of sub-section (1) of section 14, he shall cease to be a member of the council.

(3) The term of office of a member nominated under clause (e) of sub-section (3) of section 5 shall come to an end as soon as he ceases to be a member of the House from which he was nominated.

(4) A member shall be deemed to have vacated his seat if he is absent without excuse, sufficient in the opinion of the council, from three consecutive meetings of the Council.

(5) The chairman may resign his office by giving notice in writing to the Central government and any other member may resign his office by giving notice in writing to the chairman and upon such resignation being accepted by the Central government., or as the case may be, the chairman, the chairman or the member shall be deemed to have vacated his office.

(6) Any vacancy arising under sub-section (2) sub-section (3) sub-section (4) or sub-section (5) or otherwise shall be filled, as soon as may be, nomination in the same manner in which the member vacating office was nominated and the member no nominated so nominated shall hold office for the remaining period in which the member in whose place he is nominated would have held office.

(7) A retiring member shall be eligible for re-nomination for not more than one term.

Section 7. Conditions of service of members

(1) The chairman shall be a whole-time officer and shall be paid such salary as the Central government may think fir, and the other members shall receive such allowances of fees for attending the meetings of the council as may be prescribed.

(2) Subject to the provisions of sub-section (1) the condition of service of members shall be such as may prescribed.

(3) It is hereby declared that the office of a member of the council shall not disqualify its holder for being chooses, as or for being a member of either House of Parliament.

Section 8. Committees of the Council

(1) For the purpose of performing its function under this Act, the council may constitute from among its members such committees for general or special purposes as it may deem necessary and every committee so constituted shall perform such functions as are assigned to it by the council.

(2) The council shall have the power to co-pt as members of any committee constitute under sub-section (1) such other number of persons, not being members of the council, as it thinks fit.

(3) Any such member shall have the right to attend any meeting of the committee on which he is so co-opted and to take part in the discussions thereat, but shall not have the right to vote and shall not be a member for any other purpose.

Section 9. Meetings of the Council and committees

The council or any committee thereof shall meet at such times and places and shall observe such trolls of procedure in regard to the transaction of business at its meetings as may be provided by regulations made under this Act.

Section 10. Vacancies among members or defect in the constitution not to invalidate acts and proceedings of the Council

No act or proceeding of the council shall be deemed to be invalid by reason merely of the existence of any vacancy in, or any defect in the constitution of, the council.

Section 11. Staff of the Council

(1) Subject to such rules as may be made by the central government in this behalf, the council may appoint a Secretary and such other employees as it may think necessary for the efficient performance of its function under this act.

(2) The terms and conditions of service of the employees shall be such as may be determined by regulations.

Section 12. Authentication of orders and other instruments of the Council

All orders and decisions of the council shall be authenticated by the signature of the chairman or any other member authorised by the council in this behalf and other instruments issued by the council shall be authenticated by the signature of the Secretary or any other officer of the council authorised in manner in this behalf.

Section 13. Objects and functions of the Council

(1) The objects of the Cancun shall be to preserve the freedom of the Press and to maintain and improve the standards of newspapers and news agencies in India.

(2) The council may, in furtherance of its objects, perform the following functions, namely”-

(a) To help newspapers and news agencies to maintain their independence;

(b) To build up a code of conduct for newspapers news agencies and journalists in accordance with high professional standards;

(c) To ensure on the part of newspapers news agencies and journalists, the maintenance of high standards of public taste and foster a due sense of both the rights and responsibilities of citizenship;

(d) To encourage the growth of a sense of responsibility and public service aiming all those engaged in the profession of journalism;

(e) To keep under review any development likely to restrict the supply and dissemination of news of public interest and importance;

(f) To keep under review cases of assistance received by any newspaper or news agency in India from any foreign source including such cases as are referred to it by the Central Government or are brought to its notice by any individual, association of persons or any other organization:

Provided that nothing in this clause shall preclude the central Government from dealing with any case of assistance received by a newspaper or news agency in India from any foreign source in any other manner it thinks fit;

(g) To undertake studies of foreign newspapers, including those brought out by any embassy or other representatives in India of a foreign state, their circulation and impact.

Explanation-For the purpose of this clause, the expression “foreign state” has the meaning assigned to it in section 87A of the code of civil Procedure, 1908 (5 of 1908);

(h) To promote a proper functional relationship among sell classes of persons engaged in the production or publication of newspapers or in news agencies:

Provided that nothing in this Calais shall be deemed to confer on the council any functions in regard to disputes to which the Industrial disputes Act, 1947 (14 of 1947) applies;

(i) To concern itself developments such as concentration of or other aspects of ownership of newspapers and news agencies which may affect the independence of the Press;

(j) To indurate such studies as may be entrusted to the council and to espousers its opinion in regard to any matter referred to it by the central government;

(k) To do such other acts as may be incidental or conductive to the discharge of the above functions.

Section 14. Power to censure

(1) Where on receipt of a complaint made to it or otherwise, the Council has reason believe that a newspaper or news agency has offended against the standards or journalist ethics or public taste or that an editor or a working journalist has committed any professional; misconduct, the council may, after giving the newspaper, or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such Annett as may be provided by regulations made under this Act and, if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist, as the case may be:

Provided that the council may not take cognizance of a compliant of in the opinion of the chairman there is no sufficient ground for holding an inquiry.

(2) If the council is of the opinion that it is necessary or expedient in the public interest so to do, it may require any newspapers to publish therein in such manner as the council thinks, fir any particulars relating to any inquiry under this section against a newspaper or news agency, an editor or a journalist working therein, including the name of such newspaper, news agency, editor or journalist.

(3)Nothing in sub-section (1) shall be deemed to empower the council to hold an inquiry into any matter in respect of which any proceeding is pending in a court of law.

(4) The decision of the council under sub-section (1) or sub-section (2) as the case may be shall be final and shall not be questioned in any court of law.

Section 15. General powers of the Council

(1) For the purpose of performing its functions or holding any inquiry under this Act, the council shall have the same powers throughout Indies are vested in a civil court while trying a suit under the code of civil Procedure 1908 (5 of 1908) in respect of the following matters, namely:-

(a) Summoning and enforcing the attendance of persons and examining them on oath;

(b) Requiring the discovery and inspection of documents;

(c) Receiving evidence on affidavits;

(d) Requisitioning any public record or copies thereof from any court or office;

(e) Issuing commissions for the examination of witness or documents; and

(f) Any other matter which may be prescribed.

(2) Nothing in sub-section (1) shall be deemed to compel any newspaper news agency editor or journalist to disclose the source of any news ore information published by that newspaper or received or reported be that news agency editor or journalist.

(3) Every inquiry held by the council shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860).

(4) The council may, it if considers necessary for the purpose of carrying out its objects or for the performance of any of its function under this Act, make such observation as it may think, fir, in any of its decisions or reports, respecting the conduct of any authority, including government.

Section 16. Levy of fees

(1) The council may, for the purpose performing its functions under this act, levy such fees, at such rates and in such manner as my be prescribed from registered newspapers and news agencies and different rates may be prescribed for different newspapers banging regard to their circulation and other matters.

(2) Any fees payable to the council under sub-section (21) may be recovered as an areas of land revenue.

Section 17. Payments to the Council

The Central government may after due appropriation made by Parliament by law in this behalf, pay to the council by way of grants such sums of money as the Central Government may consider necessary for the performance of the functions of the council under this Act.

Section 18. Fund of the Council

(1) The council shall have its own fund; and the fees collected by it all such sums as may from time to time be paid to it by the central government and all grants and advances made to it by any other authority or person shall be credited to the fund and all payments by the council shall be made therefrom.

(2) All moneys belonging to the fund shall be deposited in such banks or invested in such manner as may subject to the approval of the Central government, be decided by the council.

(3) The council may spend such sums as it thinks fir or for performing its functions under this Act, and such sums shall be treated as expenditure payable out of the fund of the council.

Section 19. Budget

The council shall prepare, in such form and at such time each year as may be prescribed a budget in respect of the financial year next ensuing showing the stimulated receipts and expenditure and copies thereof shall be forwarded to the Central Government.

Section 20. Annual report

The council shall prepare once every year, in such form and at such time as may be prescribed an annual report giving summary of its activities during the previous year, and giving an account of the standards of newspapers and news agencies and factors affecting them, and copies thereof, together with the statement of accountants audited in the manner prescribed under section 22 shall be forwarded to the Central government and the government shall cause the same to be laid before both Houses of Parliament.

Section 21. Interim reports

Without prejudice to the provisions of Section 20, of the council may prepare at any time during the course or a year a report giving a summary of such of its activities during the year as it considers to be of public importance and copies thereof shall be forwarded to the central government and the government shall cause to be laid before both Houses of Parliament.

Section 22. Accounts and audit

The accounts of the council shall be maintained and audited in such as may in consultation with the comptroller and auditor of India be prescribed,

Section 23. Protection of action taken in good faith

(1) No suit or other legal proceeding shall lie against the council or any member thereof or any person acting under the direction of the council in respect of anything which is in good faith done intended to be done under this act.

(2) No suit other legal proceeding shall lie against any newspaper in respect of the publication of any matter therein under the authority of the council.

Section 24. Members, etc., to be public servants

Every member of the council and every officer or other employee appointed by the council shall be deemed to be a public servant within the meaning of section 21 of the Indian Peal code (45 of 1860).

Section 25. Power to make rules

(1) The central government may, be notification in the Official Gazette, make rules to carry out the purposes of this Act.

Provided that when the council has been established no such rules shall be made without consulting the council.

(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely:-

(a) The procedure for nomination of members of the council under clauses (a) (b) and (c) of sub-section 5;

(b) The manner in which panels of names may be invited under sib-section (4) of section 5;

(c) The procedure for election of a number of the committee referred to in sub-section (2) of section 5 under sub-section (6) of that section;

(d) The allowances of fees to be paid to the members of the council for attending the meetings of the council, and other conditions of service of such members under sub-section 91) and (2) of section 7;

(e) The appointment of the secretary and other employees of the council under section 11;

(f) The matters referred to in clause (f) of sub-section (1) of section 15;

(g) The rates at which fees may be levied by the council under section 16 and the manner in which such fees any be levied;

(h) The form in which and the time within which the budget and annual report are to be prepared by the council under section 19 and 20 respectively;

(i) The manner in which the accounts of the council are to be maintained and audited under sections

(3) Every rule made under this section shall be laid as soon as may be after it is made, before each house of parliament while it is in session for a total period of thirty days which may be comprised in one session or into or more successive sessions, and if before the expiry of the session immediately following the session or the successive sessions aforesaid, both houses agree in making any modification in the rule or both houses agree that the rule should not be made the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything done under that rule.

Section 26. Power to make regulations

The council may make regulations not inconsistent with this act and the rules made thereunder for-

(a) Regulating the meeting of the council or any committee thereof and the procedure for conducting the business thereat under section 9;

(b) Specifying the terms and conditions of service of the employees, appointed by the council under sub-section (2) of section 11;

(c) Regulating the manner of holding any inquiry under this Act;

(d) Delegating to the chairman or the Secretary of the council, subject to such conditions as it may think fit to impose, any of its powers under sub-section (3) of section 18;

(e)Any other matter for which provision any be made by regulations under this act;

Provided that the regulations made under clause (b) shall be made only with the price approval of the central government.

Section 27. Amendment of Act 25 of 1867

In sub-section (1) of Section 8c of the Press and registration of Books Act, 1867 for the words “consisting of a chairman and another member to be appointed by the central government’ the words and figures “consisting of a chairman and another member to be nominated by the Press council of India established under section 4 of the Press council Act 1978 from among its members” shall be substituted.

The Press and Registration of Books Act, 1867

Section 1. Interpretation-clause

1[(1)] In this Act, unless there shall be something repugnant in the subject or context, –

“Book” includes every volume, part or division of a volume, and pamphlet, in any language, and every sheet of music, map, chart or plan separately printed2[* * *]

3[* * *]

4[“Editor” means the person who controls the selection of the matter that is published in a newspaper;]

5[* * *]

“Magistrate” means any person exercising the full powers of a6Magistrate, and includes a7Magistrate of police8[* * *];

9[“Newspaper” means any printed periodical work containing public news or comments on public news;]

10[* * *]

11[“Paper” means any document, including a newspaper, other than a book;

“Prescribed” means prescribed by rules made by the Central Government under section 20A;

“Press Registrar” means the Registrar of newspapers for India appointed by the Central Government under section 19A and includes any other person appointed by the Central Government to perform all or any of the functions of the Press Registrar;

“Printing” includes cyclostyling and printing by lithography;

“Register” means the Register of newspapers maintained under section 19B.]

12[(2) Any reference in this Act to any law which is not in force in the State of Jammu and Kashmir shall, in relation to that State, be construed as a reference to the corresponding law in force in that State.]

——————–

1. Section 1 re-numbered as sub-section (1) thereof by Act 16 of 1965, sec. 2 (w.e.f 1-1 1-1965).

2. The words “or lithographed” omitted by Act 55 of 1955, sec. 4 (w.e.f 1-7-1956).

3. Definition of “British India” rep. by the A.0. 1937 see now the definition in sec. 3 (5) of the General Clauses Act, 1897 (10 of 1897).

4. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.

5. Definition of ‘India” omitted by Act 16 of 1965, sec. 2 (w.e.f. 1-1 1-1965).

6. Now Magistrate of the first class, see the Code of Criminal Procedure, 1973 (2 of 1974).

7. Now Presidency Magistrate, see Code of Criminal Procedure, 1973 (2 of 1974).

8. The words “and a Justice of the Peace” rep. by Act IO of 1890, sec.2.

9. Ins. by Act 14 of 1922, sec.3 and Sch, 1.

10. Paragraphs relating to the definitions of “Number” and “Gender” rep. by Act 10 of 1914, sec.3 and Sch. 11; definition of “Local Government” rep. by the A.0. 1937 and the definition of “States” ins. by the A.0. 1950 was rep. by Act 3 of 195 1, sec.3 and Sch.

11. Ins. by Act 55 of 1955, sec. 4 (w.e.f. 1-7-1956).

12. Ins. by Act 16 1965, sec.2 (w.e.f 1-1 1-1965).

Section 2. Repeal of Act 11 of 1835

[Rep. by the Repealing Act, 1870 (14 of 1870), sec. 1 and Sch., Pt. II.]

Section 3. Particulars to be printed on books and papers

Every book or paper printed within1[India] shall have printed legibly on it the name of the printer and the place of printing, and (if the book or paper be published)2[the name] of the publisher, and the place of publication.

——————–

1. Subs. by Act 3 of 1951, sec.3 and Sch., for “the States”.

2. Ins. by Act 12 of 1891, sec.2 and Sch. 11, Pt. I.

Section 4. Keeper of printing press to make declaration

1[(1)] No person shall within2[India], keep in his possession any press for the printing of books or papers, who shall not have made and subscribed the following declaration before3[the District, Presidency or Sub divisional Magistrate] within whose local jurisdiction such press may be:

“I, A.B., declare that I have a press for printing at. –

And this last blank shall be filled up with a true and precise description of the place where such press may be situate.

4[(2)] As often as the place where a press is kept is changed, a new declaration shall be necessary:

Provided that where the change is for a period not exceeding sixty days and the place where the press is kept after the change is within the local jurisdiction of the Magistrate referred to in sub-section (1), no new declaration shall be necessary if-

(a) A statement relating to the change is furnished to the said Magistrate within twenty four hours thereof, and

(b) The keeper of the press continues to be the same.]

——————–

1. Section 4 re-numbered as sub-section (1) of that section by Act 55 of 1955, sec.5 (w.e.f. 1-7-1956).

2. Subs. by Act 3 of 1951, sec.3 and Sch., for “the States”.

3. Subs. by Act 56 of 195 1, sec.36, for “the Magistrate” (w.e.f. 1-2-1952).

4. Ins. by Act 55 of 1955, sec.5 (w.e.f. 1-7-1956).

Section 5. Rules as to publication of newspapers

No1[newspaper] shall be published in2[India], except in conformity with the rules hereinafter laid down:

3[(1) Without prejudice to the provisions of section 3, every copy of every such newspaper shall contain the names of the owner and editor thereof printed clearly on such copy and also the date of its publication.]

4[(2)] The printer and the publisher of every such5[newspaper] shall appear6[in person or by agent authorised in this behalf in accordance with rules made under section 20, before a District, Presidency or Sub-divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published and shall make and subscribe, in duplicate, the following declaration:

“I A.B., declare that I am the printer (or publisher, or printer and publisher) of the5[newspaper] entitled –7[and to be printed or published, or to be printed and published], as the case may be at-”.

And the last blank in this form of declaration shall be filled up with a true and precise account of the premises where the printing or publication is conducted.

8[(2A) Every declaration under rule (2) shall specify the title of the newspaper, the language in which it is to be published and the periodicity of its publication and shall contain such other particulars as may be prescribed.]

9[(2B) Where the printer or publisher of a newspaper making a declaration under rule (2) is not the owner thereof, the declaration shall specify the name of the owner and shall also be accompained by an authority in writing from the owner authorising such person to make and subscribe such declaration.

(2C) A declaration in respect of a newspaper made under rule (2) and authenticated under section 6 shall be necessary before the newspaper can be published.

(2D) Where the title of any newspaper or its language or the periodicity of its publication is changed, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be continued.

(2E) As often as the ownership of a newspaper is changed, a new declaration shall be necessary.]

10[(3)] As often as the place of printing or publication is changed; a new declaration shall be necessary:

11[Provided that where the change is for a period not exceeding thirty days and the place of printing or publication after the change is within the local jurisdiction of the Magistrate referred to in rule (2), no new declaration shall be necessary if-

(a) A statement relating to the change is furnished to the said Magistrate within twenty four hours thereof, and

(b) The printer or publisher or the printer and publisher of the newspaper continues to be the same.]

12[(4)] As often as the printer or the publisher who shall have made such declaration as is aforesaid shall leave India for a period exceeding ninety days or where such printer or publisher is by infinity or otherwise rendered incapable of carrying out his duties for a period exceeding ninety days in circumstances not involving the vacation of his appointment, a new declaration shall be necessary.]

11[(5) Every declaration made in respect of a newspaper shall be void, where the newspaper does not commence publication-

(a) Within six weeks13[of the authentication of the declaration under section 6], in the case of a newspaper to be published once a week or oftener; and

(b) Within three months13[of the authentication of the declaration under section 6], in the case of any other newspaper,

And in every such case, a new declaration shall be necessary before the newspaper can be published.

(6) Where, in any period of three months, any daily, tri-weekly, bi-weekly, weekly or fortnightly newspaper publishes issues the number of which is less than half of what should have been published in accordance with the declaration made in respect thereof, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be continued.

(7) Where any other newspaper has ceased publication for a period, exceeding twelve months, every declaration made in respect thereof shall cease to have effect, and a new declaration shall be necessary before the newspaper can be re-published.

(8) Every existing declaration in respect of a newspaper shall be cancelled by the Magistrate before whom a new declaration is made and subscribed in respect of the same:]

14[Provided that no person15[who does not ordinarily reside in India, or] who has not attained majority in accordance with the provisions of the Indian Majority Act, 1875 (9 of 1875), or of the law to which he is subject in respect of the attainment of majority, shall be permitted to make the declaration prescribed by this section, nor shall any such person edit a newspaper.]

——————–

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for certain words.

2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.

3. Subs. by Act 26 of 1960, sec. 2, for rule (1) (w.e.f 1-10-1960) which was ins. by Act 14 of 1922, sec. 3 and Sch. 1.

4. Rule (1) re-numbered as rule (2) by Act 14 of 1922, sec. 3 and Sch. 1.

5. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.

6. The words “, or such printer or publisher resides,” omitted by Act 26 of 1960, sec. 2 (w.e.f. 1-10-1960).

7. Subs. by Act 55 of 1955, sec. 6, for certain words (w.e.f. 1-7-1956).

8. Ins. by Act 55 of 1955, sec. 6 (w.e.f. 1-7-1956).

9. Ins. by Act 26 of 1960, sec. 2 (w.e.f. 1-10-1960).

10. Rule (2) re-numbered as rule (3) by Act 14 of 1922, sec. 3 and Sch, 1.

11. Ins. by Act 55 of 1955, sec. 6 (w.e.f 1-7-1956).

12. Subs. by Act 26 of l960, sec.2 for rule (4) (w.e.f 1-10-1960), which had been re-numbered for the original rule (3) by Act 14 of 1922, see. 3 and Sch. 1.

13. Subs. by Act 26 of 1960, sec. 2, for “of the declaration” (w.e.f. 1-10- 1960).

14. Ins. by Act 14 of 1922, sec. 3 and Sch. 1

15. Ins. by Act 26 of 1960, sec. 2 (w.e.f I- I 0- 1 960).

Section 5 A. Keepers of printing presses and printers and publishers of newspapers in Jammu and Kashmir to make and subscribe fresh declarations within specified period

1[Keepers of printing presses and printers and publishers of newspapers in Jammu and Kashmir to make and subscribe fresh declarations within specified period. (1) No person who has made and subscribed a declaration in respect of any press under section 4 of the Jammu and Kashmir State Press and Publications Act, S. 1989 (Jammu and Kashmir Act, No. I of S. 1989) shall keep the press in his possession for the printing of books or papers2[after the 31st day of December 1968, unless before the expiry of that date] he makes and subscribes a fresh declaration in respect of that press under section 4 of this Act.

(2) Every person who has subscribed to any declaration in respect of a newspaper under section 5 of the Jammu and Kashmir State Press Publications Act, S. 1989 (Jammu and Kashmir Act, No. I of S. 1989) shall cease to be the editor, printer or publisher of the newspaper mentioned in such declaration2[after the 31st day of December, 1968 unless before the expiry of that date] he makes and subscribes a fresh declaration in respect of that newspaper under rule (2) of the rules laid down in section 5 of this Act.]

——————–

1. Ins. by Act 16 of 1965, sec. 3 (w.e.f. 1-1 1-1965).

2. Subs. by Act 30 of 1968, sec. 2, for certain words (retrospectively).

Section 6. Authentication of declaration

Each of the two originals of every declaration so made and subscribed as is aforesaid, shall be authenticated by the signature and official sea of the Magistrate before whom the said declaration shall have been made:

1[Provided that where any declaration is made and subscribed under section 5 in respect of a newspaper, the declaration shall not, save in the case of newspapers owned by the same person, be so authenticated unless the Magistrate2[is, on inquiry from the Press Registrar, satisfied] that the newspaper proposed to be published does not bear a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State.]

Deposit.-One of the said originals shall be deposited among the records of the office of the Magistrate, and the other shall be deposited among the records of the High Court of Judicature, or3[other principal Civil Court of original jurisdiction for the place where] the said declaration shall have been made.

Inspection and supply of copies.-The Officer-in -charge of each original shall allow any person to inspect that original on payment of a fee of one rupee, and shall give to any person applying a copy of the said declaration, attested by the seal of the Court which has the custody of the original, on payment of a fee of two rupees.

4[A copy of the declaration attested by the official seal of the Magistrate, or a copy of the order refusing to authenticate the declaration, shall be forwarded as soon as possible to the person making and subscribing the declaration and also to the Press Registrar.]

——————–

1. Ins. by Act 55 of 1955, sec. 7 (w.e.f. 1-7-1956).

2. Subs. by Act 26 of 1960, sec. 3, for certain words (w.e.f. 1-10-1960).

3. Subs. by Act 10 of 1890, sec. 3, for certain words.

4. Subs. by Act 26 of 1960, see. 3, for the fourth paragraph (w.e.f 1-1 0-1960), which was ins. by Act 55 of 1955, sec. 7 (w.e.f. 1-7-1956).

Section 7. Office copy of declaration to be prima-facie evidence

In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations,1[or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor] shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration,1[or printed on such newspaper, as the case may be] that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every2[newspaper] whereof the title shall correspond with the title of the2[newspaper] mentioned in the declaration,1[for the editor of every portion of that issue of the newspaper of which a copy is produced].

——————–

1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.

2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.

Section 8. New declaration by persons who have signed a declaration and subsequently ceased to be printers or publishers

3[If any person has subscribed to any, declaration in respect of a newspaper under section 5 and the declaration has been authenticated by a Magistrate under section 6 and subsequently that person ceases to bertha printer or publisher of the newspaper mentioned in such declaration, he shall appear before any District, Presidency or Sub-divisional Magistrate, and make and subscribe in duplicate the following declaration: –

“I, A.B., declare that I have ceased to be the printer or publisher or printer and publisher of the newspaper entitled.–]

Authentication and filing.-Each original of the latter declaration shall be authenticated by the signature and seal of the Magistrate before whom the said latter declaration shall have been made, and one original of the said latter declaration shall be filed along with each original of the former declaration.

Inspection and supply of copies.-The Officer-in-charge of each original of the latter declaration shall allow any person applying to inspect that original on payment of a fee of one rupee, and shall give to any person applying a copy of the said latter declaration, attested by the seal of the Court having custody of the original, on payment of a fee of two rupees.

Putting copy in evidence.-In all trials in which a copy, attested as is aforesaid, of the former declaration shall have been put in evidence, it shall be lawful to put in evidence a copy, attested as is aforesaid, of the latter declaration, and the former declaration shall not be taken to be evidence that the declarant was, at any period subsequent to the date of the latter declaration, printer or publisher of the1[newspaper] therein mentioned.

2[A copy of the] after declaration attested by the official seal of the Magistrate shall be forwarded to the Press Registrar.]

——————

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.

2. Ins. by Act 55 of 1955, sec. 8 (w.e.f. 1-7-1956).

3. Subs. by Act 55 of 1955, sec. 8, for the first paragraph (w.e.f. 1-7-1956).

Section 8 A. Person whose name has been incorrectly published as editor may make a declaration before a Magistrate

1[Person whose name has been incorrectly published as editor may make a declaration before a Magistrate. If any person, whose name has appeared as editor on a copy of a newspaper, claims that he was not the editor of the issue on which his name has so appeared, he may, within two weeks of his becoming aware that his name has been so published, appear before a District, Presidency or Sub-Divisional Magistrate and make a declaration that his name was incorrectly published in that issue as that of the editor thereof, and if the Magistrate after making such inquiry or causing such inquiry to be made as he may consider necessary is satisfied that such declaration is true, he shall certify accordingly, and on that certificate being given the provisions of section 7 shall not apply to that person in respect of that issue of the newspaper.

The Magistrate may extend the period allowed by this section in any case where he is satisfied that such person was prevented by sufficient cause from appearing and making the declaration within that period.]

——————–

1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.

Section 8 B. Cancellation of declaration

1[Cancellation of declaration. If, on an application made to him by the Press Registrar or any other person or otherwise, the Magistrate empowered to authenticate a declaration under this Act, is of opinion that any declaration made in respect of a newspaper should be cancelled, he may, after giving the person concerned an opportunity of showing cause against the action proposed to be taken, hold an inquiry into the matter and if, after considering the cause, if any, shown by such person and after giving him an opportunity of being heard, he is satisfied that-

(i) The newspaper, in respect of which the declaration has been made is being published in contravention of the provisions of this Act or rules made thereunder; or

(ii) The newspaper mentioned in the declaration bears a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State; or

(iii) The printer or publisher has ceased to be the printer or publisher of the newspaper mentioned in such declaration; or

(iv) The declaration was made on false representation or on the concealment of any material fact or in respect of a periodical work, which is not a newspaper;

The Magistrate may, by order, cancel the declaration and shall forward as soon as possible a copy of the order to the person making or subscribing the declaration and a] so to the Press Registrar.

——————–

1. Ins. by Act 26 of 1960, sec. 4 (w.e.f. 1-10-1960).

Section 8 C. Appeal

(1) Any person aggrieved by an order of a Magistrate refusing to authenticate a declaration under section 6 or cancelling a declaration under section 8B may, within sixty days from the date on which such order is communicated to him, prefer an appeal to the Appellate Board to be called the Press and Registration Appellate Board1[consisting of a Chairman and another member to be nominated by the Press Council of India, established under section 4 of the Press Council Act, 1978 (37 of 1978), from among its members]:

Provided that the Appellate Board may entertain an appeal after the expiry of the said period, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) On receipt of an appeal under this section, the Appellate Board may, after calling for the records from the Magistrate and after making such further inquiries as it thinks fit, confirm, modify or set aside the order appealed against.

(3) Subject to the provisions contained in sub-section (2), the Appellate Board may, by order, regulate its practice and procedure.

(4) The decision of the Appellate Board shall be final.]

——————–

1. Subs. by Act 37 of 1978, scc. 27, for certain words.

Section 9. Copies of books printed after commencement of Act to be delivered gratis to Government

1[PART III

DELIVERY OF BOOKS

——————–

1. Subs. by Act 10 of 1890, sec. 4, for the original Part III.

Printed1[* * *] copies of the whole of every book which shall be printed1[* * *] in2[India] after this Act shall come into force, together with all maps, prints or other engravings belonging thereto, finished and coloured in the same manner as the best copies of the same, shall, notwithstanding any agreement (if the book be published) between the printer and publisher thereof, be delivered by the printer at such place and to such officer as the State Government shall, by notification in the Official Gazette, from time to time direct, and free of expense to the Government, as follows, that is to say:-

(a) In any case, within one calendar month after the day on which any such book shall first be delivered out of the press, one such copy, and,

(b) If within one calendar year from such day the State Government shall require the printer to deliver other such copies not exceeding two in number, then within one calendar month after the day on which any such requisition shall be made by the State Government on the printer, another such copy, or two other such copies, as the State Government may direct.

The copies so delivered being bound, sewed or stitched together and upon the best paper on which any copies of the book shall be printed3[* * *].

The publisher or other person employing the printer shall, at a reasonable time before the expiration of the said month, supply him with all maps, prints and engravings finished and coloured as aforesaid, which may be necessary to enable him to comply with the requirements aforesaid.

Nothing in the former part of this section shall apply to-

(i) Any second or subsequent edition of a book in which edition no additions or alterations either in the letter-press or in the maps, prints or other engravings belonging to the book have been made, and a copy of the first or some preceding edition of which book has been delivered under this Act, or

(ii) Any4[newspaper] published in conformity with the rules laid down in section 5 of this Act.

——————–

1. The words “or lithographed” omitted by Act 55 of 1955, sec. 9 (w.e.f. 1-7-1956).

2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.

3. The words “or lithographed” omitted by Act 55 of 1955, sec. 9 (w.e.f 1-7-1956).

4. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.

Section 10. Receipt for copies delivered under section 9

The officer to whom a copy of a book is delivered under the last foregoing section shall give to the printer a receipt in writing there for.

Section 11. Disposal of copies delivered under section 9

The copy delivered pursuant to clause (a) of the first paragraph of section 9 of this Act shall be disposed of as the State Government shall from time to time determine.

Any copy or copies delivered pursuant to clause (b) of the said paragraph shall be1[transmitted to the Central Government].

——————–

1. Subs. by the A.0. 1948, for certain words.

Section 11 A. Copies of newspapers printed in India to be delivered gratis to Government

1[Copies of newspapers printed in India to be delivered gratis to Government. The printer of every newspaper in2[India] shall deliver at such place and to such officer as the State Government may, by notification in the Official Gazette, direct, and free of expense to the Government, two copies of each issue of such newspaper as soon as it is published.]

——————–

1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.

2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.

Section 11 B. Copies of newspapers to be delivered to Press Registrar

1[Copies of newspapers to be delivered to Press Registrar. Subject to any rules that may be made under this Act, the publisher of every newspaper in India shall deliver free of expense to the Press Registrar one copy of each issue of such newspaper as soon as it is published.]

——————–

1. Ins. by Act 55 of 1955, sec. 10 (w.e.f. 1-7-1956).

Section 12. Penalty for printing contrary to rule in section 3

Whoever shall print or publish any book or paper otherwise than in conformity with the rule contained in section 3 of this Act, shall, on conviction before a Magistrate, be punished by fine not exceeding1[two thousand] rupees, or by simple imprisonment for a term not exceeding2[six months], or by both.

——————–

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.

2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.

Section 13. Penalty for keeping press without making declaration required by section 4

Whoever shall keep in his possession any such press as aforesaid,3[In contravention of any of the provisions contained in section 4 of this Act], shall, on conviction before a Magistrate, be punished by fine not exceeding1[two thousand] rupees, or by simple imprisonment for a term not exceeding2[six months] or by both.

——————–

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.

2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.

3. Subs. by act 55 of 1955, sec. 11, for “without making such a declaration as is required by section 4 of this Act” (w.e.f. 1-7-1956).

Section 14. Punishment for making false statement

Any person who shall, in making3[any declaration or other statement) under the authority of this Act, make a statement which is false, and which he either knows or believes to be false, or does not believe to be true, shall, on conviction before a Magistrate, be punished by fine not exceeding1[two thousand] rupees, and imprisonment for a term not exceeding2[six months].

——————–

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.

2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.

3. Subs. by Act 55 of 1955, sec. 12, for “any declaration” (w.e.f 1-7-1956).

Section 15. Penalty for printing or publishing newspaper without conforming to rules

3[(1)] Whoever shall2[edit], print or publish any4[newspaper], without conforming to the rules hereinbefore laid down, or whoever shall2[edit], print or publish, or shall cause to be2[edited], printed or published, any5[newspaper], knowing that the said rules have not been observed with respect to6[that newspaper], shall, on conviction before a Magistrate, be punished with fine not exceeding1[two thousand] rupees, or imprisonment for a term not exceeding2[Six months] or both.

7[(2) Where an offence is committed in relation to a newspaper under sub-section (1), the Magistrate may, in addition to the punishment imposed under the said sub-section, also cancel the declaration in respect of the newspaper.]

——————–

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.

2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.

3. Section 15 re-numbered as sub-section (1) of that section by Act 26 of 1960, sec. 5 (w.e.f. 1-10-1960).

4. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “such periodical work as is hereinbefore described”.

5. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “such periodical work”.

6. Subs. by Act I 4 of 1922, sec. 3 and Sch. 1, for “that work”.

7. Ins. by Act 26 of 1960, sec. 5 (w.e.f. 1-10-1960).

Section 15 A. Penalty for failure to make a declaration under section 8

1[Penalty for failure to make a declaration under section 8. If any person who has ceased to be a printer or publisher of any newspaper fails or neglects to make a declaration in compliance with section 8, he shall, on conviction before a Magistrate, be punishable by fine not exceeding two hundred rupees.]

——————–

1. Ins. by Act 55 of 1955, sec. 13 (w.e.f. 1-7-1956).

Section 16. Penalty for not delivering books or not supplying printer with maps

1[Penalty for not delivering books or not supplying printer with maps. If any printer of any such book as is referred to in section 9 of this Act shall neglect to deliver copies of the same pursuant to that section, he shall for every such default forfeit to the Government such sum not exceeding fifty rupees as a Magistrate having jurisdiction in the place where the book was printed may, on the application of the officer to whom the copies should have been delivered or of any person authorised by that officer in this behalf, determine to be in the circumstances a reasonable penalty for the default, and, in addition to such sum, such further sum as the Magistrate may determine to be the value of the copies which the printer ought to have delivered.

If any publisher or other person employing any such printer shall neglect to supply him, in the matter prescribed in the second paragraph of section 9 of this Act with the maps, prints or engravings which may be necessary to enable him to comply with the provisions of that section, such publisher or other person shall for every such default forfeit to the Government such sum not exceeding fifty rupees as such a Magistrate as aforesaid may, on such an application as aforesaid, determine to be in the circumstances a reasonable penalty for the default, and, in addition to such sum, such further sum as the Magistrate may determine to be the value of the maps, prints or engravings which such publisher or other person ought to have supplied.]

——————–

1. Subs. by Act IO of 1890, sec. 5, for the former secs. 16 and 17.

Section 16 A. Penalty for failure to supply copies of newspapers gratis to Government

1[Penalty for failure to supply copies of newspapers gratis to Government. If any printer of any newspaper published in2[India] neglects to deliver copies of the same in compliance with section 11A, he shall, on the complaint of the officer to whom copies should have been delivered or of any person authorised by that officer in this behalf, be punishable, on conviction by a Magistrate having jurisdiction in the place where the newspaper was printed, with fine which may extend to fifty rupees for every default.]

——————–

1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.

2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.

Section 16 B. Penalty for failure to supply copies of newspapers to Press Registrar

1[Penalty for failure to supply copies of newspapers to Press Registrar. If any publisher of any newspaper published in India neglects to deliver copies of the same in compliance with section 11B, he shall, on the complaint of the Press Registrar, be punishable, on conviction by a Magistrate having jurisdiction in the place where the newspaper was printed, by fine which may extend to fifty rupees for every default.]

——————–

1. Ins. by Act 55 of 1955, sec. 14 (w.e.f 1-7-1956).

Section 17. Recovery of forfeitures and disposal thereof and of fines

Any sum forfeited to the Government under1[section 16] maybe recovered, under the warrant of the Magistrate determining the sum, or of his successor in office, in the manner authorised by the2[Code of Criminal Procedure (10 of 1882) for the time being in force, and within the period prescribed by the Indian Penal Code (45 of 1860), for the levy of a fine.

3[* * *]

——————–

1. Subs. by Act 11 of 1923, sec. 2 and Sch. 1, for “the last foregoing section”.

2. See Now the Code of Criminal Procedure, 1973 (2 of 1974).

3. The second paragraph rep. by the A.0. 1937.

Section 18. Registration of memoranda of books

There shall be kept at such office, and by such officer as the State Government shall appoint in this behalf, a book to be called a Catalogue of Books printed in1[India], wherein shall be registered a memorandum of every book which shall have been delivered2[pursuant to clause (a) of the first paragraph of section 9] of this Act. Such memorandum shall (so far as may be practicable) contain the following particulars (that is to say): –

(1) The title of the book and the contents of the title page, with a translation into English of such title and contents, when the same are not in the English language;

(2) The language in which the book in written;

(3) The name of the author, translator, or editor of the book or any part thereof,

(4) The subject;

(5) The place of printing and the place of publication;

(6) The name or firm of the printer and the name or firm of the publisher;

(7) The date of issue from the press or of the publication;

(8) The number of sheet leaves or pages;

(9) The size;

(10) The first, second or other number of the edition;

(11) The number of copies of which the edition consists;

(12) Whether the book is printed,3[cyclostyled or lithographed];

(13) The price at which the book is sold to the public; and

(14) The name and residence of the proprietor of the copyright or of any portion of such copyright.

Such memorandum shall be made and registered in the case of each book as soon as practicable after the delivery of the4[copy there of pursuant to clause (a) of the first paragraph of section 915[* * *]

——————–

1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.

2. Subs. by Act IO of 1890, sec. 6, for “pursuant to section 9”.

3. Subs. by Act 55 of 1955, sec. 15, for “or lithographed” (w.e.f. 1-7-1956).

4. Subs. by Act IO of 1890, sec. 6, for “copies thereof in manner aforesaid”.

5. Last sentence of sec. 18 rep. by Act 3 of 1914, sec. 15 and Sch. 11.

Section 19. Publication of memoranda registered

The memoranda registered during each quarter in the said Catalogue shall be published in the Official Gazette, as soon as may be after the end of such quarter, and a copy of the memoranda so published shall be sent1[* * *] to the Central Government2[* * *].

——————–

1. The words “to the said Secretary of State, and” rep. by the A.0. 1948.

2. The word “respectively” omitted by the A.0. 1948.

Section 19 A. Appointment of Press Registrar and other officers

1[PART VA

REGISTRATION OF NEWSPAPERS

——————–

1. Part VA containing sections 19A to 19L ins, by Act 55 of 1955, sec. 16 (w.e.f. 1-7-1956).

The Central Government may appoint a Registrar of newspapers for India and such other officers under the general superintendence and control of the Press Registrar as may be necessary for the purpose of performing the functions assigned to them by or under this Act, and may, by general or special order, provide for the distribution or allocation of functions to be performed by them under this Act.

Section 19 B. Register of newspapers

(1) The Press Registrar shall maintain in the prescribed manner a Register of newspapers.

(2) The Register shall, as far as may be practicable, contain the following particulars about every newspaper published in India, namely: –

(a) The title of the newspaper;

(b) The language in which the newspaper is published;

(c) Periodicity of the publication of the newspaper;

(d) The name of the editor, printer and publisher of the newspaper;

(e) The place of printing and publication;

(f) The average number of pages per week;

(g) The number of days of publication in the year;

(h) The average number of copies printed, the average number of copies sold to the public and the average number of copies distributed free to the public, the average being calculated with reference to such period as may be prescribed;

(i) Retail selling price per copy;

(j) The names and addresses of the owners of the newspaper and such other particulars relating to ownership as may be prescribed;

(k) Any other particulars, which may be prescribed.

(3) On receiving information from time to time about the aforesaid particulars, the Press Registrar shall cause relevant entries to be made in the Register and may make such necessary alterations or corrections therein as may be required for keeping the Register up-to-date.

Section 19 C. Certificates of registration

On receiving from the Magistrate under section 6 a copy of the declaration in respect of a newspaper1[and on the publication of such newspaper, the Press Registrar shall], as soon as practicable thereafter, issue a certificate of registration in respect of that newspaper to the publisher thereof.

——————-

1. Subs. by Act 26 of 1960, sec. 6, for certain words (w.e.f. 1-10-1960).

Section 19 D. Annual statement, etc., to be furnished by newspapers

It shall be the duty of the publisher of every newspaper-

(a) To furnish to the Press Registrar an annual statement in respect of the newspaper at such time and containing such of the particulars referred to in sub-section (2) of section 19B as may be prescribed;

(b) To publish in the newspaper at such times and such of the particulars relating to the newspaper referred to in sub section 19 B as may be specified in this behalf by the Press Registrar.

Section 19 E. Returns and reports to be furnished by newspapers

The publisher of every newspaper shall furnish to the Press Registrar such returns, statistics and other information with respect to any of the particulars referred to in sub-section (2) of section 19B as the Press Registrar may from time to time require.

Section 19 F. Right of access to records and documents

The press Registrar or any gazetted officer authorised by him in writing in this behalf shall, for the purpose of the collection of any information relating to a newspaper under this Act, have access to any relevant record or document relating to the newspaper in the possession of the publisher thereof, and may enter at any reasonable time any premises where he believes such records or document to be and may inspect or take copies of the relevant records or documents or ask any question necessary for obtaining any information required to be furnished under this Act.

Section 19 G. Annual report

The press registrar shall prepare, in such form and at such time each year as may be prescribed, an annual report containing a summary of the information obtained by him during the previous year in respect of the newspapers in India and giving an account of the working of such newspapers, and copies thereof shall be forwarded to the Central Government.

Section 19 H. Furnishing of copies of extracts from Register

On the application of nay each year as may be prescribed, an annual report containing a summary of the information obtained by him during the previous year in respect of the newspapers in India and giving an account of the working of such newspapers, and copies thereof shall be forwarded to the Central Government.

Section 19 I. Delegation of powers

Subject to the provisions of this Act and regulations made thereunder, the Press Registrar may delegate all or any of his powers under this Act to any officer subordinate to him.

Section 19 J. Press Registrar and other officers to be public servants

The Press Registrar and all officers appointed under this Act shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

Section 19 K. Penalty for contravention of section 19D or section 19E, etc

If the publisher of any newspaper –

(a) Refuses or neglects to comply with the provisions of section 19D or section 19E; or1[* * *]

(b) Publishers in the newspaper in pursuance of clause (b) of section 19D any particulars relating to the newspaper which he has reason to believe to be false, he shall be punishable with fine may extend to five hundred rupees.

——————–

1. Clause (b) omitted by Act 26 of 1960, sec 7 (w.e.f. 1-10-1960).

Section 19 L. Penalty for improper disclosure of information

If any person engaged in connection with the collection of information under this Act wilfully discloses any information or the contents of any return given or furnished under this Act otherwise than in the execution of his duties under this Act of for the purposes of the prosecution of an offence under this Act or under the Indian Penal Code (45 of 1860), he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.]

Section 20. Power of State Government to make rules

1[Power of State Government to make rules. (1) The State Government may, be notification in the Official Gazette, make such rules (not inconsistent with the rules made by the Central Government under section 20A) as may be necessary or desirable for carrying out the objects of this Act.

(2) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before the State Legislature.]

——————–

1. Subs by act 20 of 1983, sec 2 and Sch., for section 20 (w.e.f. 15-3-1984).

Section 20 A. Power of Central Government to make rules

1[Power of Central Government to make rules. (1) The Central Government may, by notification in the Official Gazette, make rules. –

(a) Prescribing the particulars which a declaration made and subscribed under section 5 may contain;2[and the form and manner in which the names of the printer, publisher, owner and editor of a newspaper and the place of its printing and publication may be printed on every copy of such newspaper];

3[(b) Prescribing the manner in which copies of any declaration attested by the official seal of a Magistrate or copies of any order refusing to authenticate any declaration and to the Press Registrar;]

(c) Prescribing the manner in which copies of any newspaper may be sent to the Press Registrar under section 11B.

(d) Prescribing the manner in which a Register may be maintained under section 19B and the particulars, which it may contain;

(e) Prescribing the particulars in which an annual statement to be furnished by the publisher of a newspaper to the Press Registrar may contain;

(f) Prescribing the form and manner in which an annual statement under clause (a) of section 19D, or any returns, statistics or other information under section 19E, may be furnished to the Press Registrar;

(g) Prescribing the fees for furnishing copies of extracts from the Registrar and the manner in which such copies may be furnished;

(h) Prescribing the manner in which a certificate of registration may be issued in respect of a newspaper;

(i) Prescribing the form in which, and the time within which, annual reports may be prepared by the Press Registrar and forwarded to the Central Government.

4[(2) Every rule made under this section shall be laid as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or5in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid] both houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]

——————–

1. Ins. by Act 55 of 1955, sec 18 (w.e.f. 1-7-1956).

2. Ins. by Act 26 of 1960, sec 08 (w.e.f. 1-10-1960).

3. Subs. by Act 26 of 1960, sec 08, for clause (b) (w.e.f. 1-10-1960).

4. Subs. by Act 26 of 1960, sec. 8, for sub-section (2) (w.e.f 1-10-1960).

5. Subs. by Act 20 of 1983, sec. 2 and Sch., for certain words (w.e.f 15-3-1984).

Section 20 B. Rules made under this Act may provide that contravention thereof shall be punishable

1[Rules made under this Act may provide that contravention thereof shall be punishable. Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with fine, which may extend to one hundred rupees.]

——————–

1. Ins. by Act 26 of 1960, sec. 9 (w.e.f 1-10-1960).

Section 21. Power to exclude any class of books from operation of Act

1[The State Government may, by notification in the Official Gazette], exclude any class of books2[or papers] from the operation of the whole or any part or parts of this Act:

3[Provided that no such notification in respect of any class of newspapers shall be issued without consulting the Central Government.]

——————–

1. Subs. by the A.0. 1937, for certain words.

2. Ins. by Act 11 of 1915, see.2 and Sch. 1.

3. Ins. by Act 26 of 1960, sec. 10 (w.e.f. 1-10-1960).

Section 22. Extent

1[Extent. This Act extends to the whole of India2[* * *]. ]

——————–

1. Ins. by Act 55 of 1955, sec. 19, original section 22 was rep. by Act 10 of 1890, sec. 7 (w.e.f 1-7-1956).

2. The words “except the State of Jammu and Kashmir” omitted by Act 16 of 1965, sec. 4 (w.e.f 1-1 1-1965).

Section 23. Commencement of Act

[Rep. by the Repealing Act, 1870 (14 ofl870), sec. Sch., Pt and I. II.]

The Trade Marks Act, 1999

Chapter 1 Preliminary

1. Short title, extent and commencement. –

(Act No. 47 of 1999)

An Act to amend and consolidate the law relating to trade marks, to provide for registration and better protection of trade marks for goods and services and for the prevention of the use of fraudulent marks.

Be it enacted by Parliament in the Fiftieth Year of the Republic of India as follows:-

(1) This Act may be called the Trade Marks Act, 1999.

(2) It extend to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

Provided that different dates may be appointed for different provisions of this Act, and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

2. Definitions and interpretation.—

(1) In this Act , unless the context otherwise requires, –

(a) “Appellate Board” means the Appellate Board established under section 83:

(b) “assignment” means an assignment in writing by act of te parties concerned;

(c) “associated trade Marks” means trade marks deemed to be, or required to be, registered as associated trade marks under this Act;

(d) “Bench ” means a Bench of the Appellate Board;

(e) “certification trade mark” means a mark capable of distinguishing the goods or service in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of service not so certified and registrable as such under Chapter IX in respect of those goods or service in the name, as proprietor of the certification trade mark , of that person;

(f) “Chairman” means the Chairman of the Appellate Board.

(g) “collective mark” means a trade mark distinguishing the goods or services of members of an association of persons (not being a partnership within the meaning of the Indian Partnership Act, 1932 (9 of 1932) which is the proprietor of the mark from those of others.

(h) “deceptively similar”, – A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion.

(i) “false trade description” means-

(I) a trade description which is untrue or misleading in a material respect as regards the goods or services to which it is applied or

(II) any alteration of a trade description as regards the goods or services to which it is applied, whether by way of addition, effacement or otherwise, where that alteration makes the description untrue or misleading in a material respect, or

(III) any trade description which denotes or implies that there are contained, as regards the goods to which it is applied, more yards or meters than there are contained therein standard yards or standard meters, or

(IV) any marks or arrangement or combination thereof when applied-

(a) to goods in such a manner as to be likely to lead persons to believe that the goods are the manufacture or merchandise of some person other than the person whose merchandise or manufacture they really are.

(b) in relation to services in such a manner as to be likely to lead persons to believe that the services are provided or rendered by some persons other than the person whose services they really are, or

(V) any false name or initials of a person applied to goods or service in such manner as if such name or initials were a trade description in any case where the name or initials-

(a) is or are not a trade mark or part of a trade mark, and

(b) is or are identical with or deceptively similar to the name or initials of a person carrying on business in connection with goods or services of the same description or both and who has not authorized the use of such name or initials, and

(c) is or are either the name or initials of a fictions person or some person not bona fide carrying on business in connection with such goods or services.

And the fact that a trade description is a trade mark or part of a trade mark shall not prevent such trade description being a false trade description within the meaning of this Act.

(j) “goods” means anything which is the subject of trade or manufacture.

(k) “Judicial Member” means a Member of the Appellate Board appointed as such under this Act, and includes the Chairman and the Vice-Chairman.

(l) “limitations” (with its grammatical variations) means any limitation of the exclusive right to the use of a trade mark given by the registration of a person as proprietor thereof, including limitations of that right a to mode or area of use within India or outside India.

(m) “mark” includes a device, brand, heading, lable, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.

(n) “Member” means a Judicial Member or a Technical Member of the Appellate Board and includes the Chairman and the Vice-Chairman.

(o) “name” includes and abbreviation of a name.

(p) “notify” means to notify in the Trade Mark Journal published by the Registrar.

(q) “package” includes any case, box, container, covering, folder, recetacle, vessel, casket, bottle, wrapper, labler, band, ticket, reel, frame, capsule, cap, lid, stopper and cork.

(r) “permitted use: in relation to a registered trade mark, means the use of trade mark-

(i) by a registered user of the trade mark in relation to goods or service-

(a) with which he is connected in the course of trade, and

(b) in respect of which the trade mark remains registered for the time being, and

(c) for which he is registered as registered user, and

(d) which complies with any conditions or limitations to which the registration of registered user is subject, or

(ii) by a person other than the registerd proprietor and registered user in relation to goods or services-

(a) with which he is connected in the course of trade, and

(b) in respect of which the trade mark remains registered for the time being, and

(c ) by consent of such registered proprietor in a written agreement, and

(d) which complies with any conditions or limitations to which such user is subject and to which the registration of the trade mark is subject.

(s) “prescribed” means prescribed by rules made under this Act.

(t) “register” means the Register of Trade Mark referred to in sub-section (1) of section 6.

(u) “registered” (with its grammatical variations) means registered under this Act.

(v) “registered proprietor” in relation to a trade mark, means the person for the time being entered in the register as proprietor of the trade mark.

(w) “registered trade mark” means a trade mark which is actually on the register and remaining in force.

(x) “registered user” means a person who is for the time being registered as such under section 49.

(y) “Registrar” means the Registrar of Trade Mark referred to in section 3.

(z) “service” means service of any description which is made available to potential users and includes the provisions of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising.

(za) “trade description” means any description, statement or other indication, direct or indirect,-

(i) as to the number, quantity, measure, gauge or weight of any goods, or

(ii) as to the standard of quality of any goods or services according to a classification commonly used or recognized in the trade, or

(iii) as t fitness fr the purpose, strength, performance or behaviour of any goods, being “drug” as defined in the Drugs and Cosmetics Act, 1940 (23 of 194)) or “food” as defined in the Prevention of Food Adulteration Act, 1954 (37 of 1954), or

(iv) as to the place or country in which or the time at which any goods or services were made, produced or provided, as the case may be, or

(v) as to the name and address or other indication of the identity of the manufacturer or of the person providing the services of the person for whom the goods are manufactured or services are provided, or

(vi) as to the mode of manufacture or producing any goods or providing services, or

(vii) as to the material of which any goods are composed, or

(viii) as to any goods being the subject of an existing patent, privilege or copyright, and includes-

(a) any description as to the use of any mark which according to the custom of the trade is commonly taken to be an indication of any of the above matters.

(b) the description as to any imported goods contained in any bill of entry or shipping bill.

(c) any other description which is likely to be misunderstood or mistaken for all or any of the said matters.

(zb) “trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from choose of others and may include shape of goods, their packaging and combination of colours , and

in relation to Chapter XII (other than section 107), a registered trade mark or mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark, and

in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate to a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark.

(zc) “transmission” means transmission by operation of law, devolution on the personal representative of a deceased person and any other mode of transfer, not being assignment.

(zd) “Technical Member” means a Member who is not a Judicial Member.

(Ze) “tribunal” means the Registrar or, as the case may be, the Appellate Board, before which the proceeding concerned is pending.

(zf) “Vice-Chairman” means a Vice-Chairman of the Appellate Board.

(zg) “well-known trade mark” in relation to any goods or service, means a mark which has becomes so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first mentioned goods or services.

In this Act, unless the context otherwise requires, any reference – to “trade-mark” shall include reference to “collective mark” or “certification trade mark”.

To the use of a mark shall be construed as a reference to the use of printed or other visual representation of the mark.

To the use of a mark.- in relation to goods, shall be construed as a reference to the use of the mark upon, or n any physical or in any other relation whatsoever, to such goods.

In relation to goods, shall be construed as a reference to the use of the mark as or as part of any statement about the availability, provision or performance of such services.

To the Registrar shall be construed as including a reference to any officer when discharging the functions of the Registrar in pursuance of sub-section (2) of section 3.

To the Trade Marks Registry shall be construed as including a reference to any office of the Trade Marks Registry.

For the purposes of this Act, goods and services are associated with each other if it is likely that those goods might be sold or otherwise traded in and those services might be provided by the same business and so with description of goods and descriptions of services.

For the purposes of this Act, “existing registered trade mark” means a trade mark registered under the Trade and Merchandise Marks Act, 1958 (43 of 1958) immediately before the commencement of this Act.

Chapter 2 The Register and Conditions for Registration

3. Appointment of Registrar and other officers.-

(1) The Central Government may, by notification in the Official Gazette, appoint a person to be known as the Controller-General of Patents, Designs and Trade Marks, who shall be the Registrar of Trade Mark for the purposes of this Act.

The Central Government may appoint such other officers with such designations as it thinks fit for the purpose of discharging, under the superintendence and direction of the Registrar, such functions of the Registrar under this Act as he may from time to time authorise them to discharge.

4. Power of Registrar to withdraw or transfer cases, etc.-

Without prejudice to the generality of the provisions of such-section (2) of section 3, the Registrar may, by order in writing and for reasons to be recorded therein, withdraw any matter pending before an officer appointed under the said sub-section (2) and deal with such matter himself either de novo or from the stage it was so withdrawn or transfer the same to another officer so appointed who may, subject to special directions in the order of transfer, proceed with the matter either de novo or from the stage it was so transferred.

5. Trade Marks Registry and offices thereof.—

(1) For the purposes of this Act, there shall be a trade marks registry and the Trade Marks Registry established under the Trade and Merchandise Marks Act, 1958 (43 of 1958) shall be the Trade Marks Registry under this Act.

(2) The head office of the Trade Marks Registry shall be at such place as the Central Government may specify, and for the purpose of facilitating the registration of trade marks, there may be established at such places as the Central Government may think fit branch offices of the Trade Marks Registry.

(3) The Central Government may, by notification in the Official Gazette, define the territorial limits within which an office of the Trade Marks Registry may exercise its functions.

(4) There shall be a seal of the Trade Marks Registry.

Comments

This section deals with the establishment of the Trade Marks Registry and branch offices. It provides that the Trade Marks Registry established under the Trade and Merchandise Marks Act, 1958 shall be the Trade Marks Registry for the purposes of this Act.

6. The Register of Trade Marks.—

(1) For the purposes of this Act, a record called the Register of Trade Marks shall be kept at the head office of the Trade Marks Registry, wherein shall be entered all registered trade marks with the names, addresses and description of the proprietors, notifications of assignment and transmissions, the names, addresses and descriptions of registered users, conditions, limitations and such other matter relating to registered trade marks as may be prescribed.

(2) Notwithstanding anything contained in sub-section (1), it shall be lawful for the Registrar to keep the records wholly or partly in computer floppies, diskettes or in any other electronic form subject to such safeguards as may be prescribed.

(3) Where such register is maintained wholly or partly on computer under sub-section (2) any reference in this Act to entry in the register shall be construed as the reference to any entry as maintained on computer or in any other electronic form.

(4) No notice of any trust, express or implied or constructive, shall be entered in the register and no such notice shall be receivable by the Registrar.

(5) The register shall be kept under the control and management of the Registrar.

(6) There shall be kept at each branch office of the Trade Marks Registry a copy of the register and such of the other documents mentioned in section 148 as the Central Government may, by notification in the Official Gazette, direct.

(7) The Register of Trade Marks, both Part A and Part B, existing at the commencement of this Act, shall be incorporated in and form part of the register under this Act.

Comments

This section contains provisions regarding maintenance of a Register of Trade Marks at head office wherein particulars of registered trade marks and other prescribed particulars, except notice of trust, shall be recorded. A copy of the Register is to be kept at each branch office. It provides for maintenance of records in computer floppies or diskettes or in any other electronic form.

7. Classification of goods and services.—

(1) The Registrar shall classify goods and services, as far as may be, in accordance with the International classification of goods and services for the purposes of registration of trade marks.

(2) Any question arising as to the class within which any goods or services falls shall be determined by the Registrar whose decision shall be final.

Comments

Registrar is required to classify goods and services in accordance with the International classification for the purpose of registration of trade marks and his decision is final.

8. Publication of alphabetical index.—

(1) The Registrar may publish in the prescribed manner an alphabetical index of classification of goods and services referred to in section 7.

(2) Where any goods or services are not specified in the alphabetical index of goods and services published under sub-section (1), the classification of goods or services shall be determined by the Registrar in accordance with sub-section (2) of section 7.

9. Absolute grounds for refusal of registration.—

(1) The trade marks—

(a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person;

(b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service;

(c) which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade,

shall not be registered :

Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark.

(2) A mark shall not be registered as a trade mark if—

(a) it is of such nature as to deceive the public or cause confusion;

(b) it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;

(c) it comprises or contains scandalous or obscene matter;

(d) its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950).

(3) A mark shall not be registered as a trade mark if it consists exclusively of—

(a) the shape of goods which results from the nature of the goods themselves; or

(b) the shape of goods which is necessary to obtain a technical result; or

(c) the shape which gives substantial value to the goods.

Explanation.—

For the purposes of this section, the nature of goods or services in relation to which the trade mark is used or proposed to be used shall not be a ground for refusal of registration.

Comments

This section stipulates that the trade marks which are devoid of any distinctive character or which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of goods or rendering of the services or other characteristics of the goods or service or which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practice of the trade shall not be registered, unless it is shown that the mark has in fact acquired a distinctive character as a result of use before the date of application. It also provides that a mark shall not be registered as trade marks if (i) it deceives the public or causes confusion, (ii) it contains or comprises of any matter likely to hurt the religious susceptibilities, (iii) it contains scandalous or obscene matter, (iv) its use is prohibited. It further provides that if a mark consists exclusively of (a) the shape of goods which form the nature of goods themselves, or (b) the shape of goods which is necessary to obtain a technical result, or (c) the shape which gives substantial value of the goods then it shall not be registered as trade mark.

Test of similarity

In order to come to the conclusion whether one mark is deceptively similar to another the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so whether they are of such a character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to misled a person usually dealing with one to accept the other if offered to him; Mumtaz Ahmed v. Pakeeza Chemicals; AIR 2003 All 114.

Apart from the structural, visual and phonetic similarity or dissimilarity, the question has to be considered from the point of view of man of average intelligence and imperfect collection. Secondly, it is to be considered as a whole and thirdly it is the question of his impression; BDH Industries Ltd. v. Croydon Chemical Works Pvt. Ltd., AIR 2002 Bom 361.

It is common knowledge that ’bidis’ are being used by persons belonging to poorer and illiterate or semi-literate class. Their level of awareness is not high. It cannot be expected of them that they would comprehend and understand the fine differences between the two labels, which may be detected on comparing the two labels when placed side by side. The essential features of the two labels are common. In view of above, there appears to be deceptive similarity between the two labels; Mohd. Iqbal v. Mohd. Wasim, AIR 2002 MP 162.

10. Limitation as to colour.—

(1) A trade mark may be limited wholly or in part to any combination of colours and any such limitation shall be taken into consideration by the tribunal having to decide on the distinctive character of the trade mark.

(2) So far as a trade mark is registered without limitation of colour, it shall be deemed to be registered for all colours.

11. Relative grounds for refusal of registration.—

(1) Save as provided in section 12, a trade mark shall not be registered if, because of—

(a) its identity with an earlier trade mark and similarity of goods or services covered by the trade mark; or

(b) its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark,

there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.

(2) A trade mark which—

(a) is identical with or similar to an earlier trade mark; and

(b) is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered in the name of a different proprietor,

shall not be registered, if or to the extent, the earlier trade mark is a well-known trade mark in India and the use of the later mark without due cause would take unfair advantage of or be detrimental to the distinctive character or repute of the earlier trade mark.

(3) A trade mark shall not be registered if, or to the extent that, its use in India is liable to be prevented—

(a) by virtue of any law in particular the law of passing off protecting an unregistered trade mark used in the course of trade; or

(b) by virtue of law of copyright.

(4) Nothing in this section shall prevent the registration of a trade mark where the proprietor of the earlier trade mark or other earlier right consents to the registration, and in such case the Registrar may register the mark under special circumstances under section 12.

Explanation.—For the purposes of this section, earlier trade mark means—

(a) a registered trade mark or convention application referred to in section 154 which has a date of application earlier than that of the trade mark in question, taking account, where appropriate, of the priorities claimed in respect of the trade marks;

(b) a trade mark which, on the date of the application for registration of the trade mark in question, or where appropriate, of the priority claimed in respect of the application, was entitled to protection as a well-known trade mark.

(5) A trade mark shall not be refused registration on the grounds specified in sub-sections (2) and (3), unless objection on any one or more of those grounds is raised in opposition proceedings by the proprietor of the earlier trade mark.

(6) The Registrar shall, while determining whether a trade mark is a well-known trade mark, take into account any fact which he considers relevant for determining a trade mark as a well-known trade mark including—

(i) the knowledge or recognition of that trade mark in the relevant section of the public including knowledge in India obtained as a result of promotion of the trade mark;

(ii) the duration, extent and geographical area of any use of that trade mark;

(iii) the duration, extent and geographical area of any promotion of the trade mark, including advertising or publicity and presentation, at fairs or exhibition of the goods or services to which the trade mark applies;

(iv) the duration and geographical area of any registration of or any application for registration of that trade mark under this Act to the extent they reflect the use or recognition of the trade mark;

(v) the record of successful enforcement of the rights in that trade mark; in particular, the extent to which the trade mark has been recognised as a well-known trade mark by any court or Registrar under that record.

(7) The Registrar shall, while determining as to whether a trade mark is known or recognised in a relevant section of the public for the purposes of sub-section (6), take into account—

(i) the number of actual or potential consumers of the goods or services;

(ii) the number of persons involved in the channels of distribution of the goods or services;

(iii) the business circles dealing with the goods or services,

to which that trade mark applies.

(8) Where a trade mark has been determined to be well-known in at least one relevant section of the public in India by any court or Registrar, the Registrar shall consider that trade mark as a well-known trade mark for registration under this Act.

(9) The Registrar shall not require as a condition, for determining whether a trade mark is a well-known trade mark, any of the following, namely:—

(i) that the trade mark has been used in India;

(ii) that the trade mark has been registered;

(iii) that the application for registration of the trade mark has been filed in India;

(iv) that the trade mark—

(a) is well known in; or

(b) has been registered in; or

(c) in respect of which an application for registration has been filed in, any jurisdiction other than India; or

(v) that the trade mark is well-known to the public at large in India.

(10) While considering an application for registration of a trade mark and opposition filed in respect thereof, the Registrar shall—

(i) protect a well-known trade mark against the identical or similar trade marks;

(ii) take into consideration the bad faith involved either of the applicant or the opponent affecting the right relating to the trade mark.

(11) Where a trade mark has been registered in good faith disclosing the material informations to the Registrar or where right to a trade mark has been acquired through use in good faith before the commencement of this Act, then, nothing in this Act shall prejudice the validity of the registration of that trade mark or right to use that trade mark on the ground that such trade mark is identical with or similar to a well-known trade mark.

Comments

This section provides relative grounds for the refusal of registration of a trade mark. A trade mark cannot be registered if because of (i) its identity with an earlier trade mark and similarity of goods or services, (ii) its similarity to an earlier trade mark and the identity or similarity of the goods and services, there is likelihood of confusion. It also provides that a trade mark cannot be registered which is identical with or similar to an earlier trade mark and which is to be registered for goods and services which are not similar to those for which earlier trade mark is registered in the name of a different proprietor if, or to the extent, the earlier trade mark is a well-known trade mark in India. It further provides that a trade mark cannot be registered if, or to the extent that, its use in India is liable to be prevented by virtue of any law.

Registration is not matter of right

Even if the appellant’s proposed trade mark satisfies the conditions under the Act, the appellant is not entitled as a matter of right to the registration of trade mark. It is open to the Registrar to decline to register the appellant’s trade mark; Geep Flashlight Industries Ltd. v. Registrar of Trade Mark, AIR 1972 Del 179.

12. Registration in the case of honest concurrent use, etc.—

In the case of honest concurrent use or of other special circumstances which in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of the trade marks which are identical or similar (whether any such trade mark is already registered or not) in respect of the same or similar goods or services, subject to such conditions and limitations, if any, as the Registrar may think fit to impose.

Comments

This section provides for registration of same or similar trade mark by more than one proprietor in the case of honest concurrent use or other special circumstances.

13. Prohibition of registration of names of chemical elements or international non-proprietary names

No word—

(a) which is the commonly used and accepted name of any single chemical element or any single chemical compound (as distinguished from a mixture) in respect of a chemical substance or preparation, or

(b) which is declared by the World Health Organisation and notified in the prescribed manner by the Registrar from time to time, as an international non-proprietary name or which is deceptively similar to such name,

shall be registered as a trade mark and any such registration shall be deemed for the purpose of section 57 to be an entry made in the register without sufficient cause or an entry wrongly remaining on the register, as the circumstances may require.

Comments

This section provides that international non-proprietary names declared by World Health Organisation from time to time or deceptively similar names shall not be registered as trade marks.

14. Use of names and representations of living persons or persons recently dead.—

Where an application is made for the registration of a trade mark which falsely suggests a connection with any living person, or a person whose death took place within twenty years prior to the date of application for registration of the trade mark, the Registrar may, before he proceeds with the application, require the applicant to furnish him with the consent in writing of such living person or, as the case may be, of the legal representative of the deceased person to the connection appearing on the trade mark, and may refuse to proceed with the application unless the applicant furnishes the registrar with such consent.

Comments

If a trade mark falsely suggests a connection with any living person, or a person whose death took place within twenty years prior to the date of application for registration of the trade mark then written consent of the living person or the legal representative of the deceased person is required to be furnished.

15. Registration of parts of trade marks and of trade marks as a series.—

(1) Where the proprietor of a trade mark claims to be entitled to the exclusive use of any part thereof separately, he may apply to register the whole and the part as separate trade marks.

(2) Each such separate trade mark shall satisfy all the conditions applying to and have all the incidents of, an independent trade mark.

(3) Where a person claiming to be the proprietor of several trade marks in respect of the same or similar goods or services or description of goods or description of services, which, while resembling each other in the material particulars thereof, yet differ in respect of—

(a) statement of the goods or services in relation to which they are respectively used or proposed to be used; or

(b) statement of number, price, quality or names of places; or

(c) other matter of a non-distinctive character which does not substantially affect the identity of the trade mark; or

(d) colour,

seeks to register those trade marks, they may be registered as a series in one registration.

Comments

This section provides that if the proprietor of a trade mark claims to be entitled to the exclusive use of any part thereof separately, he can apply to register the whole and the part as separate trade marks.

16. Registration of trade marks as associated trade marks.—

(1) Where a trade mark which is registered, or is the subject of an application for registration, in respect of any goods or services is identical with another trade mark which is registered, or is the subject of an application for registration, in the name of the same proprietor in respect of the same goods or description of goods or same services or description of services or so nearly resembles it as to be likely to deceive or cause confusion if used by a person other than the proprietor, the Registrar may, at any time, require that the trade marks shall be entered on the register as associated trade marks.

(2) Where there is an identity or near resemblance of marks that are registered, or are the subject of applications for registration in the name of the same proprietor, in respect of goods and in respect of services which are associated with those goods or goods of that description and with those services or services of that description, sub-section (1) shall apply as it applies as where there is an identity or near resemblance of marks that are registered, or are the subject of applications for registration, in the name of the same proprietor in respect of the same goods or description of goods or same services or description of services.

(3) Where a trade mark and any part thereof are, in accordance with the provisions of sub-section (1) of section 15, registered as separate trade marks in the name of the same proprietor, they shall be deemed to be, and shall be registered as, associated trade marks.

(4) All trade marks registered in accordance with the provisions of sub-section (3) of section 15 as a series in one registration shall be deemed to be, and shall be registered as, associated trade marks.

(5) On application made in the prescribed manner by the registered proprietor of two or more trade marks registered as associated trade marks, the Registrar may dissolve the association as respects any of them if he is satisfied that there would be no likelihood of deception or confusion being caused if that trade mark were used by any other person in relation to any of the goods or services or both in respect of which it is registered, and may amend the register accordingly.

Comments

This section provides that where a trade mark which is registered, or is the subject of an application for registration is identical with another trade mark which is registered, or is the subject of an application for registration, in the name of the same proprietor in respect of the same goods or nearly so resembles it as to be likely to deceive or cause confusion if used by a person other than the proprietor, the Registrar may require that the trade marks shall be entered in the register as associated trade marks.

17. Effect of registration of parts of a mark.—

(1) When a trade mark consists of several matters, its registration shall confer on the proprietor exclusive right to the use of the trade mark taken as a whole.

(2) Notwithstanding anything contained in sub-section (1), when a trade mark—

(a) contains any part—

(i) which is not the subject of a separate application by the proprietor for registration as a trade mark; or

(ii) which is not separately registered by the proprietor as a trade mark; or

(b) contains any matter which is common to the trade or is otherwise of a non-distinctive character,

the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered.

Comments

If a trade mark consists of several matters, its registration shall confer exclusive right on the proprietor to use the trade mark as a whole. But when a trade mark contains any part which is not subject of a separate application or which is not separately registered by the proprietor, or contains any matter which is common to the trade mark or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered.

Chapter 3 Procedure for and Duration of Registration

18. Application for registration.—

(1) Any person claiming to be the proprietor of a trade mark used or proposed to be used by him, who is desirous of registering it, shall apply in writing to the Registrar in the prescribed manner for the registration of his trade mark.

(2) A single application may be made for registration of a trade mark for different classes of goods and services and fee payable therefor shall be in respect of each such class of goods or services.

(3) Every application under sub-section (1) shall be filed in the office of the Trade Marks Registry within whose territorial limits the principal place of business in India of the applicant or in the case of joint applicants the principal place of business in India of the applicant whose name is first mentioned in the application as having a place of business in India, is situate:

Provided that where the applicant or any of the joint applicants does not carry on business in India, the application shall be filed in the office of the Trade Marks Registry within whose territorial limits the place mentioned in the address for service in India as disclosed in the application, is situate.

(4) Subject to the provisions of this Act, the Registrar may refuse the application or may accept it absolutely or subject to such amendments, modifications, conditions or limitations, if any, as he may think fit.

(5) In the case of a refusal or conditional acceptance of an application, the Registrar shall record in writing the grounds for such refusal or conditional acceptance and the materials used by him in arriving at his decision.

Comments

For the registration of a trade mark an application is to be made to the Registrar. A single application can be made for registration of a trade mark for different classes of goods and services by paying prescribed fee for each such class of goods and services.

19. Withdrawal of acceptance.—

Where, after the acceptance of an application for registration of a trade mark but before its registration, the Registrar is satisfied—

(a) that the application has been accepted in error; or

(b) that in the circumstances of the case the trade mark should not be registered or should be registered subject to conditions or limitations or to conditions additional to or different from the conditions or limitations subject to which the application has been accepted,

the Registrar may, after hearing the applicant if he so desires, withdraw the acceptance and proceed as if the application had not been accepted.

Comments

This section provides for withdrawal of acceptance of an application, before its registration, when the acceptance is in error, etc., after hearing the applicant.

20. Advertisement of application.—

(1) When an application for registration of a trade mark has been accepted whether absolutely or subject to conditions or limitations, the Registrar shall, as soon as may be after acceptance, cause the application as accepted together with the conditions or limitations, if any, subject to which it has been accepted, to be advertised in the prescribed manner:

Provided that the Registrar may cause the application to be advertised before acceptance if it relates to a trade mark to which sub-section (1) of section 9 and sub-sections (1) and (2) of section 11 apply, or in any other case where it appears to him that it is expedient by reason of any exceptional circumstances so to do.

(2) Where—

(a) an application has been advertised before acceptance under sub-section (1); or

(b) after advertisement of an application,—

(i) an error in the application has been corrected; or

(ii) the application has been permitted to be amended under

section 22,

the Registrar may in his discretion cause the application to be advertised again or in any case falling under clause (b) may, instead of causing the application to be advertised again, notify in the prescribed manner the correction or amendment made in the application.

Comments

This section provides for advertisement of an application, either after acceptance or before acceptance, so as to afford the public an opportunity to oppose the registration of the mark.

21. Opposition to registration.—

(1) Any person may, within three months from the date of the advertisement or re-advertisement of an application for registration or within such further period, not exceeding one month in the aggregate, as the Registrar, on application made to him in the prescribed manner and on payment of the prescribed fee, allows, give notice in writing in the prescribed manner to the Registrar, of opposition to the registration.

(2) The Registrar shall serve a copy of the notice on the applicant for registration and, within two months from the receipt by the applicant of such copy of the notice of opposition, the applicant shall send to the Registrar in the prescribed manner a counter-statement of the grounds on which he relies for his application, and if he does not do so he shall be deemed to have abandoned his application.

(3) If the applicant sends such counter-statement, the Registrar shall serve a copy thereof on the person giving notice of opposition.

(4) Any evidence upon which the opponent and the applicant may rely shall be submitted in the prescribed manner and within the prescribed time to the Registrar, and the Registrar shall give an opportunity to them to be heard, if they so desire.

(5) The Registrar shall, after hearing the parties, if so required, and considering the evidence, decide whether and subject to what conditions or limitations, if any, the registration is to be permitted, and may take into account a ground of objection whether relied upon by the opponent or not.

(6) Where a person giving notice of opposition or an applicant sending a counter-statement after receipt of a copy of such notice neither resides nor carries on business in India, the Registrar may require him to give security for the costs of proceedings before him, and in default of such security being duly given, may treat the opposition or application, as the case may be, as abandoned.

(7) The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of opposition or a counter-statement on such terms as he thinks just.

Comments

Any person can give notice in writing of opposition to the registration within three months from the date of advertisement or re-advertisement of an application for registration.

22. Correction and amendment.—

The Registrar may, on such terms as he thinks just, at any time, whether before or after acceptance of an application for registration under section 18, permit the correction of any error in or in connection with the application or permit an amendment of the application:

Provided that if an amendment is made to a single application referred to in sub-section (2) of section 18 involving division of such application into two or more applications, the date of making of the initial application shall be deemed to be the date of making of the divided applications so divided.

Comments

This section provides for correction of any error in or in connection with the application or amendment of the application either before or after acceptance of the application.

23. Registration.—

(1) Subject to the provisions of section 19, when an application for registration of a trade mark has been accepted and either—

(a) the application has not been opposed and the time for notice of opposition has expired; or

(b) the application has been opposed and the opposition has been decided in favour of the applicant,

the Registrar shall, unless the Central Government otherwise directs, register the said trade mark and the trade mark when registered shall be registered as of the date of the making of the said application and that date shall, subject to the provisions of section 154, be deemed to be the date of registration.

(2) On the registration of a trade mark, the Registrar shall issue to the applicant a certificate in the prescribed form of the registration thereof, sealed with the seal of the Trade Marks Registry.

(3) Where registration of a trade mark is not completed within twelve months from the date of the application by reason of default on the part of the applicant, the Registrar may, after giving notice to the applicant in the prescribed manner, treat the application as abandoned unless it is completed within the time specified in that behalf in the notice.

(4) The Registrar may amend the register or a certificate of registration for the purpose of correcting a clerical error or an obvious mistake.

Comments

This section makes it mandatory on the Registrar to register the trade mark where the procedure for registration of a trade mark has been completed viz., the application has been accepted and either the application has not been opposed or the opposition has been dismissed.

24. Jointly owned trade marks.—

(1) Save as provided in sub-section (2), nothing in this Act shall authorise the registration of two or more persons who use a trade mark independently, or propose so to use it, as joint proprietors thereof.

(2) Where the relations between two or more persons interested in a trade mark are such that no one of them is entitled as between himself and the other or others of them to use it except—

(a) on behalf of both or all of them; or

(b) in relation to an article or service with which both or all of them are connected in the course of trade,

those persons may be registered as joint proprietors of the trade mark, and this Act shall have effect in relation to any rights to the use of the trade mark vested in those persons as if those rights had been vested in a single person.

Comments

This section provides for registration of jointly owned trade marks where the mark is used or proposed to be used in relation to goods or services connected with all the joint applicants.

25. Duration, renewal, removal and restoration of registration.—

(1) The registration of a trade mark, after the commencement of this Act, shall be for a period of ten years, but may be renewed from time to time in accordance with the provisions of this section.

(2) The Registrar shall, on application made by the registered proprietor of a trade mark in the prescribed manner and within the prescribed period and subject to payment of the prescribed fee, renew the registration of the trade mark for a period of ten years from the date of expiration of the original registration or of the last renewal of registration, as the case may be (which date is in this section referred to as the expiration of the last registration).

(3) At the prescribed time before the expiration of the last registration of a trade mark the Registrar shall send notice in the prescribed manner to the registered proprietor of the date of expiration and the conditions as to payment of fees and otherwise upon which a renewal of registration may be obtained, and, if at the expiration of the time prescribed in that behalf those conditions have not been duly complied with the Registrar may remove the trade mark from the register:

Provided that the Registrar shall not remove the trade mark from the register if an application is made in the prescribed form and the prescribed fee and surcharge is paid within six months from the expiration of the last registration of the trade mark and shall renew the registration of the trade mark for a period of ten years under sub-section (2).

(4) Where a trade mark has been removed from the register for non-payment of the prescribed fee, the Registrar shall, after six months and within one year from the expiration of the last registration of the trade mark, on receipt of an application in the prescribed form and on payment of the prescribed fee, if satisfied that it is just so to do, restore the trade mark to the register and renew the registration of the trade mark either generally or subject to such conditions or limitations as he thinks fit to impose, for a period of ten years from the expiration of the last registration.

26. Effect of removal from register for failure to pay fee for renewal.—

Where a trade mark has been removed from the register for failure to pay the fee for renewal, it shall nevertheless, for the purpose of any application for the registration of another trade mark during one year, next after the date of the removal, be deemed to be a trade mark already on the register, unless the tribunal is satisfied either—

(a) that there has been no bona fide trade use of the trade mark which

has been removed during the two years immediately preceding its removal; or

(b) that no deception or confusion would be likely to arise from the use of the trade mark which is the subject of the application for registration by reason of any previous use of the trade mark which has been removed.

Comments

This section provides that where a trade mark has been removed from the register for failure to pay the renewal fee, it shall nevertheless, for the purpose of any application for the registration of another trade mark during one year next after the date of the removal, be deemed to be a trade mark already on the register.

Chapter 4 Effect of Registration

27. No action for infringement of unregistered trade mark.—

(1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.

(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof.

Comments

This section provides that no infringement action will lie in respect of an unregistered trade mark, but recognises the common law rights of the trade mark owner to take action against any person for passing off goods as the goods of another person or as services provided by another person or the remedies thereof.

28. Rights conferred by registration.—

(1) Subject to the other provisions of this Act, the registration of a trade mark shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act.

(2) The exclusive right to the use of a trade mark given under sub-section (1) shall be subject to any conditions and limitations to which the registration is subject.

(3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor.

29. Infringement of registered trade marks.—

(1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.

(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of—

(a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or

(b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or

(c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark,

is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.

(3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public.

(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which—

(a) is identical with or similar to the registered trade mark; and

(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and

(c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.

(5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered.

(6) For the purposes of this section, a person uses a registered mark, if, in particular, he—

(a) affixes it to goods or the packaging thereof;

(b) offers or exposes goods for sale, puts them on the market, or stocks them for those purposes under the registered trade mark, or offers or supplies services under the registered trade mark;

(c) imports or exports goods under the mark; or

(d) uses the registered trade mark on business papers or in advertising.

(7) A registered trade mark is infringed by a person who applies such registered trade mark to a material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee.

(8) A registered trade mark is infringed by any advertising of that trade mark if such advertising—

(a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or

(b) is detrimental to its distinctive character; or

(c) is against the reputation of the trade mark.

(9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.

Comments

Infringement: Onus to prove

It is well settled that the plaintiff must prove the essential features of his registered mark have been copied. The onus to prove ’deception’ is on the part of the plaintiff who alleges infringement. A mark is said to be infringed by another trader if, even without using the whole of it, the latter uses one or more of its “essential features”. The identification of an essential feature depends partly on the Courts own judgement and partly on the burden of the evidence that is placed before it. Ascertainment of an essential feature is not to be ocular test alone; it is impossible to exclude consideration of the sound of words forming part or the whole of the mark; S.M. Dyechem Ltd. v. Cadbury (India) Ltd., AIR 2000 SC 2114.

30. Limits on effect of registered trade mark.—

(1) Nothing in section 29 shall be construed as preventing the use of a registered trade mark by any person for the purposes of identifying goods or services as those of the proprietor provided the use—

(a) is in accordance with honest practices in industrial or commercial matters, and

(b) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark.

(2) A registered trade mark is not infringed where—

(a) the use in relation to goods or services indicates the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of services or other characteristics of goods or services;

(b) a trade mark is registered subject to any conditions or limitations, the use of the trade mark in any manner in relation to goods to be sold or otherwise traded in, in any place, or in relation to goods to be exported to any market or in relation to services for use or available or acceptance in any place or country outside India or in any other circumstances, to which, having regard to those conditions or limitations, the registration does not extend;

(c) the use by a person of a trade mark—

(i) in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark if, as to those goods or a bulk or which they form part, the registered proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it, or has at any time expressly or impliedly consented to the use of the trade mark; or

(ii) in relation to services to which the proprietor of such mark or of a registered user conforming to the permitted use has applied the mark, where the purpose and effect of the use of the mark is to indicate, in accordance with the fact, that those services have been performed by the proprietor or a registered user of the mark;

(d) the use of a trade mark by a person in relation to goods adapted to form part of, or to be accessory to, other goods or services in relation to which the trade mark has been used without infringement of the right given by registration under this Act or might for the time being be so used, if the use of the trade mark is reasonably necessary in order to indicate that the goods or services are so adapted, and neither the purpose nor the effect of the use of the trade mark is to indicate, otherwise than in accordance with the fact, a connection in the course of trade between any person and the goods or services, as the case may be;

(e) the use of a registered trade mark, being one of two or more trade marks registered under this Act which are identical or nearly resemble each other, in exercise of the right to the use of that trade mark given by registration under this Act.

(3) Where the goods bearing a registered trade mark are lawfully acquired by a person, the sale of the goods in the market or otherwise dealing in those goods by that person or by a person claiming under or through him is not infringement of a trade by reason only of—

(a) the registered trade mark having been assigned by the registered proprietor to some other person, after the acquisition of those goods; or

(b) the goods having been put on the market under the registered trade mark by the proprietor or with his consent.

(4) Sub-section (3) shall not apply where there exists legitimate reasons for the proprietor to oppose further dealings in the goods in particular, where the condition of the goods, has been changed or impaired after they have been put on the market.

Comments

If the use of mark is in accordance with honest practices in industrial or commercial matters and is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of a trade mark. There is no infringement in (1) Where the use is in relation to goods or services to indicate the kind, quality, quantity, etc., of the goods or of rendering of services. (2) Use of the trade mark in a manner outside the scope of registration where a trade mark is registered subject to conditions or limitations. (3) Where a person uses the mark in relation to goods or services for which the registered owner had once applied the mark, and had not subsequently removed it or impliedly consented to its use. (4) A trade mark registered for any goods may be used in relation to parts and accessories to other goods, or services and such use is reasonably necessary and its effect is not likely to deceive as to the origin. (5) The use of registered trade mark being one of two or more registered trade marks which are identical or similar, in exercise of the right to the use of that registered trade mark.

31. Registration to be prima facie evidence of validity.—

(1) In all legal proceedings relating to a trade mark registered under this Act (including applications under section 57), the original registration of the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie evidence of the validity thereof.

(2) In all legal proceedings as aforesaid a registered trade mark shall not be held to be invalid on the ground that it was not a registrable trade mark under section 9 except upon evidence of distinctiveness and that such evidence was not submitted to the Registrar before registration, if it is proved that the trade mark had been so used by the registered proprietor or his predecessor in title as to have become distinctive at the date of registration.

32. Protection of registration on ground of distinctiveness in certain cases.—

Where a trade mark is registered in breach of sub-section (1) of section 9, it shall not be declared invalid if, in consequence of the use which has been made of it, it has after registration and before commencement of any legal proceedings challenging the validity of such registration, acquired a distinctive character in relation to the goods or services for which it is registered.

Comments

Meaning of the expression ’distinctive in relation to the goods’

The expression ’distinctive in relation to the goods’ in respect of which a trade mark is proposed to be registered, means adapted to distinguish goods with which the proprietor of the trade mark is or may be connected in course of trade from goods in the case of which no such connection subsists either generally or, where the trade mark is proposed to be registered subject to limitations in relation to use within the extent of registration; Imperial Tobacco Co. of India Ltd. v. Registrar of Trade Mark, AIR 1977 Cal 413. See also Consolidated Food Corp. v. Brandon & Co., AIR 1965 Bom 35.

33. Effect of acquiescence.—

(1) Where the proprietor of an earlier trade mark has acquiesced for a continuous period of five years in the use of a registered trade mark, being aware of that use, he shall no longer be entitled on the basis of that earlier trade mark—

(a) to apply for a declaration that the registration of the later trade mark is invalid, or

(b) to oppose the use of the later trade mark in relation to the goods or services in relation to which it has been so used,unless the registration of the later trade mark was not applied in good faith.

(2) Where sub-section (1) applies, the proprietor of the later trade mark is not entitled to oppose the use of the earlier trade mark, or as the case may be, the exploitation of the earlier right, notwithstanding that the earlier trade mark may no longer be invoked against his later trade mark.

Comments

The proprietor of the earlier trade mark or other earlier right cannot contest the validity of registration of a subsequent trade mark, if he has acquiesced in the use of the subsequent trade mark for a continuous period of five years, unless he can prove that the registration of the subsequent trade mark was not obtained in good faith. The proprietor of the later mark also is not entitled to oppose the use of the earlier trade mark.

34. Saving for vested rights.—

Nothing in this Act shall entitle the proprietor or a registered user of registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods or services in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date prior—

(a) to the use of the first-mentioned trade mark in relation to those goods or services be the proprietor or a predecessor in title of his; or

(b) to the date of registration of the first-mentioned trade mark in respect of those goods or services in the name of the proprietor of a predecessor in title of his;

whichever is the earlier, and the Registrar shall not refuse (on such use being proved), to register the second mentioned trade mark by reason only of the registration of the first mentioned trade mark.

Comments

This section provides for protecting the vested rights, so that the proprietor of registered trade mark or a registered user cannot interfere with the use of any identical or similar mark if the person has been using the mark from an earlier date.

35. Saving for use of name, address or description of goods or services.—

Nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with any bona fide use by a person of his own name or that of his place of business, or of the name, or of the name of the place of business, of any of his predecessors in business, or the use by any person of any bona fide description of the character or quality of his goods or services.

Comments

This section provides that the registered proprietor or the registered user cannot interfere with any bona fide use by a person of his one name, or his predecessor in business, his place of business or bona fide description of the character or quality of the goods or services.

36. Saving for words used as name or description of an article or substance or service.—

(1) The registration of a trade mark shall not be deemed to have become invalid by reason only of any use after the date of the registration of any word or words which the trade mark contains or of which it consists as the name or description of an article or substance or service:

Provided that, if it is proved either—

(a) that there is a well known and established use of the said word as the name or description of the article or substance or service by a person or persons carrying on trade therein, not being used in relation to goods or services connected in the course of trade with the proprietor or a registered user of the trade mark or (in the case of a certification trade mark) in relation to goods or services certified by the proprietor; or

(b) that the article or substance was formerly manufactured under a patent that a period of two years or more after the cesser of the patent has elapsed and that the said word is the only practicable name or description of the article or substance,

the provisions of sub-section (2) shall apply.

(2) Where the facts mentioned in clause (a) or clause (b) of the proviso to sub-section (1) are proved with respect to any words, then,—

(a) for the purpose of any proceedings under section 57 if the trade mark consists solely of such words, the registration of the trade mark, so far as regards registration in respect of the article or substance in question or of any goods of the same description, or of the services or of any services of the same description, as the case requires, shall be deemed to be an entry wrongly remaining on the register;

(b) for the purposes of any other legal proceedings relating to the trade mark,—

(i) if the trade mark consists solely of such words, all rights of the proprietor under this Act or any other law to the use of the trade mark; or

(ii) if the trade mark contains such words and other matter, all such right of the proprietor to the use of such words,

in relation to the article or substance or to any goods of the same description, or to the service or to any services of the same description, as the case requires, shall be deemed to have ceased on the date on which the use mentioned in clause (a) of the proviso to sub-section (1) first became well known and established or at the expiration of the period of two years mentioned in clause (b) of the said proviso.

Comments

This section prevents a person from asserting any exclusive right, by virtue of trade mark or patent, over a word which has come to be associated as the name or description of an article. If there is a well known and established use of the word in a descriptive sense, and that is the only practicable name of description of an article, the validity of registration of such word as trade mark can be challenged. The provisions of this clause extend to services.

Chapter 5 Assignment and Transmission

37. Power of registered proprietor to assign and give receipts.—

The person for the time being entered in the register as proprietor of a trade mark shall, subject to the provisions of this Act and to any rights appearing from the register to be vested in any other person, have power to assign the trade mark, and to give effectual receipts for any consideration for such assignment.

Comments

This section provides that a registered proprietor has the power to assign the trade mark for any consideration and to give effectual receipts for any consideration for such assignment.

38. Assignability and transmissibility of registered trade marks.—

Notwithstanding anything in any other law to the contrary, a registered trade mark shall, subject to the provisions of this Chapter, be assignable and transmissible, whether with or without the goodwill of the business concerned and in respect either of all the goods or services in respect of which the trade mark is registered or of some only of those goods or services.

Comments

This section provides that a registered trade mark is assignable and transmissible with or without the goodwill of the business concerned.

39. Assignability and transmissibility of unregistered trade marks.—

An unregistered trade mark may be assigned or transmitted with or without the goodwill of the business concerned.

Comments

This section provides that unregistered trade mark can be assigned or transmitted with or without the goodwill of the business concerned.

40. Restriction on assignment or transmission where multiple exclusive rights would be created.—

(1) Notwithstanding anything in sections 38 and 39, a trade mark shall not be assignable or transmissible in a case in which as a result of the assignment or transmission there would in the circumstances subsist, whether under this Act or any other law, exclusive rights in more than one of the persons concerned to the use, in relation to—

(a) same goods or services;

(b) same description of goods or services;

(c) goods or services or description of goods or services which are associated with each other,

of trade marks nearly resembling each other or of identical trade mark, if having regard to the similarity of the goods and services and to the similarity of the trade marks, the use of the trade marks in exercise of those rights would be likely to deceive or cause confusion:

Provided that an assignment or transmission shall not be deemed to be invalid under this sub-section if the exclusive rights subsisting as a result thereof in the persons concerned respectively are, having regard to limitations imposed thereon, such as not to be exercisable by two or more of those persons in relation to goods to be sold, or otherwise traded in, within India otherwise than for export therefrom, or in relation to goods to be exported to the same market outside India or in relation to services for use at any place in India or any place outside India in relation to services available for acceptance in India.

(2) The proprietor of a registered trade mark who proposes to assign it may submit to the Registrar in the prescribed manner a statement of case setting out the circumstances and the Registrar may issue to him a certificate stating whether, having regard to the similarity of the goods or services and of the trade marks referred to in the case, the proposed assignment would or would not be invalid under sub-section (1), and a certificate so issued shall, subject to appeal and unless it is shown that the certificate was obtained by fraud or misrepresentation, be conclusive as to the validity or invalidity under sub-section (1) of the assignment insofar as such validity or invalidity depends upon the facts set out in the case, but, as regards a certificate in favour of validity, only if application for the registration under section 45 of the title of the person becoming entitled is made within six months from the date on which the certificate is issued.

Comments

This section contains restriction on assignments or transmissions of trade mark where multiple exclusive rights would be created in more than one person, which would be likely to deceive or cause confusion. Nevertheless, such assignment is not deemed to be invalid, if having regard to the limitations imposed, the goods are to be sold in different markets—either within India or for exports. The provisions also apply to services.

1. Restriction on assignment or transmission when exclusive rights would be created in different parts of India

Notwithstanding anything in sections 38 and 39, a trade mark shall not be assignable or transmissible in a case in which as a result of the assignment or transmission there would in the circumstances subsist, whether under this Act or any other law—

(a) an exclusive right in one of the persons concerned, to the use of the trade mark limited to use in relation to goods to be sold or otherwise traded in, in any place in India, or in relation to services for use, or services available for acceptance in any place in India; and

(b) an exclusive right in another of these persons concerned, to the use of a trade mark nearly resembling the first-mentioned trade mark or of an identical trade mark in relation to—

(i) the same goods or services; or

(ii) the same description of goods or services; or

(iii) services which are associated with those goods or goods of that description or goods which are associated with those services or services of that description,

limited to use in relation to goods to be sold or otherwise traded in, or services for use, or available for acceptance, in any other place in India:

Provided that in any such case, on application in the prescribed manner by the proprietor of a trade mark who proposes to assign it, or by a person who claims that a registered trade mark has been transmitted to him or to a predecessor in title of his since the commencement of this Act, the Registrar, if he is satisfied that in all the circumstances the use of the trade mark in exercise of the said rights would not be contrary to the public interest may approve the assignment or transmission, and an assignment or transmission so approved shall not, unless it is shown that the approval was obtained by fraud or misrepresentation, be deemed to be invalid under this section or section 40 if application for the registration under section 45 of the title of the person becoming entitled is made within six months from the date on which the approval is given or, in the case of a transmission, was made before that date.

42. Assignability and transmissibility of certification trade marks.—

A certification trade mark shall not be assignable or transmissible otherwise than with the consent of the Registrar, for which application shall be made in writing in the prescribed manner.

Comments

This clause deals with the assignability and transmissibility of certification trade marks. Assignment of certification trade marks can only be done with the consent of the Registrar. Consequent to the proposal to vest the final authority for disposal of application for certification trade marks on the Registrar, this clause seeks to make necessary change in the law by the substitution of the word “Registrar” for the words “Central Government”.

43. Assignability and transmissibility of certification trade marks.-—

A certification trade mark shall not be assignable or transmissible otherwise than with the consent of the Registrar, for which application shall be made in writing in the prescribed manner.

44. Assignability and transmissibility of associated trade marks.—

Associated trade marks shall be assignable and transmissible only as a whole and not separately, but, subject to the provisions of this Act, they shall, for all other purposes, be deemed to have been registered as separate trade marks.

Comments

This clause requires that associated trade marks shall be assignable and transmissible only as a whole but they will be treated as separate trade marks for all other purposes. It corresponds to the provision contained in section 43 of the existing Act.

45. Registration of assignments and transmissions.—

(1) Where a person becomes entitled by assignment or transmission to a registered trade mark, he shall apply in the prescribed manner to the Registrar to register his title, and the Registrar shall, on receipt of the application and on proof of title to his satisfaction, register him as the proprietor of the trade mark in respect of the goods or services in respect of which the assignment or transmission has effect, and shall cause particulars of the assignment or transmission to be entered on the register:

Provided that where the validity of an assignment or transmission is in dispute between the parties, the Registrar may refuse to register the assignment or transmission until the rights of the parties have been determined by a competent court.

(2) Except for the purpose of an application before the Registrar under sub-section (1) or an appeal from an order thereon, or an application under section 57 or an appeal from an order thereon, a document or instrument in respect of which no entry has been made in the register in accordance with sub-section (1), shall not be admitted in evidence by the Registrar or the Appellate Board or any court in proof of title to the trade mark by assignment or transmission unless the Registrar or the Appellate Board or the court, as the case may be, otherwise directs.

Comments

This section provides that where the validity of an assignment is in dispute between the parties, the Registrar can refuse to register such transaction unless the rights of parties are determined by the competent court.

It further lays down that any instrument or document on the basis of which no entry has been made is not admissible in evidence before the Registrar or any court.

Chapter 6 Use of Trade Marks and Registered Users

46. Proposed use of trade mark by company to be formed, etc.—

(1) No application for the registration of a trade mark in respect of any goods or services shall be refused nor shall permission for such registration be withheld, on the ground only that it appears that the applicant does not use or propose to use the trade mark if the Registrar is satisfied that—

(a) a company is about to be formed and registered under the Companies Act, 1956 (1 of 1956) and that the applicant intends to assign the trade mark to that company with a view to the use thereof in relation to those goods or services by the company, or

(b) the proprietor intends it to be used by a person, as a registered user after the registration of the trade mark.

(2) The provisions of section 47 shall have effect, in relation to a trade mark registered under the powers conferred by this sub-section, as if for the reference, in clause (a) of sub-section (1) of that section, to the intention on the part of an applicant for registration that a trade mark should be used by him there were substituted a reference to the intention on his part that it should be used by the company or registered user concerned.

(3) The tribunal may, in a case to which sub-section (1) applies, require the applicant to give security for the costs of any proceedings relating to any opposition or appeal, and in default of such security being duly given, may treat the application as abandoned.

(4) Where in a case to which sub-section (1) applies, a trade mark in respect of any goods or services is registered in the name of an applicant who, relies on intention to assign the trade mark to a company, then, unless within such period as may be prescribed or within such further period not exceeding six months as the Registrar may, on application being made to him in the prescribed manner, allow, the company has been registered as the proprietor of the trade mark in respect of those goods or services, the registration shall cease to have effect in respect thereof at the expiration of that period and the Registrar shall amend the register accordingly.

Comments

This section contains two exceptions providing for registration of a trade mark—(1) by a person who proposes to assign the trade mark to a company to be formed and registered under the Companies Act, 1956 and (2) by a person who proposes to use the trade mark by a registered user as and when the mark is registered.

47. Removal from register and imposition of limitations on ground of non-use.—

(1) A registered trade mark may be taken off the register in respect of the goods or services in respect of which it is registered on application made in the prescribed manner to the Registrar or the Appellate Board by any person aggrieved on the ground either—

(a) that the trade mark was registered without any bona fide intention on

the part of the applicant for registration that it should be used in relation to those goods or services by him or, in a case to which the provisions of section 46 apply, by the company concerned or the registered user, as the case may be, and that there has, in fact, been no bona fide use of the trade mark in relation to those goods or services by any proprietor thereof for the time being up to a date three months before the date of the application; or

(b) that up to a date three months before the date of the application, a continuous period of five years from the date on which the trade mark is actually entered in the register or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods or services by any proprietor thereof for the time being:

Provided that except where the applicant has been permitted under section 12 to register an identical or nearly resembling trade mark in respect of the goods or services in question, or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark, the tribunal may refuse an application under clause (a) or clause (b) in relation to any goods or services, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to—

(i) goods or services of the same description; or

(ii) goods or services associated with those goods or services of that description being goods or services, as the case may be, in respect of which the trade mark is registered.

(2) Where in relation to any goods or services in respect of which a trade mark is registered—

(a) the circumstances referred to in clause (b) of sub-section (1) are shown to exist so far as regards non-use of the trade mark in relation to goods to be sold, or otherwise traded in a particular place in India (otherwise than for export from India), or in relation to goods to be exported to a particular market outside India; or in relation to services for use or available for acceptance in a particular place in India or for use in a particular market outside India; and

(b) a person has been permitted under section 12 to register an identical or nearly resembling trade mark in respect of those goods, under a registration extending to use in relation to goods to be so sold, or otherwise traded in, or in relation to goods to be so exported, or in relation to services for use or available for acceptance in that place or for use in that country, or the tribunal is of opinion that he might properly be permitted so to register such a trade mark,

on application by that person in the prescribed manner to the Appellate Board or to the Registrar, the tribunal may impose on the registration of the first-mentioned trade mark such limitations as it thinks proper for securing that registration shall cease to extend to such use.

(3) An applicant shall not be entitled to rely for the purpose of clause (b) of sub-section (1) or for the purposes of sub-section (2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade, which includes restrictions on the use of the trade mark in India imposed by any law or regulation and not to any intention to abandon or not to use the trade mark in relation to the goods or services to which the application relates.

48. Registered users.—

(1) Subject to the provisions of section 49, a person other than the registered proprietor of a trade mark may be registered as a registered user thereof in respect of any or all of the goods or services in respect of which the trade mark is registered.

(2) The permitted use of a trade mark shall be deemed to be used by the proprietor thereof, and shall be deemed not to be used by a person other than the proprietor, for the purposes of section 47 or for any other purpose for which such use is material under this Act or any other law.

49. Registration as registered user.—

(1) Where it is proposed that a person should be registered as a registered user of a trade mark, the registered proprietor and the proposed registered user shall jointly apply in writing to the Registrar in the prescribed manner, and every such application shall be accompanied by—

(a) the agreement in writing or a duly authenticated copy thereof, entered into between the registered proprietor and the proposed registered user with respect to the permitted use of the trade mark; and

(b) an affidavit made by the registered proprietor or by some person authorised to the satisfaction of the Registrar to act on his behalf,—

(i) giving particulars of the relationship, existing or proposed, between the registered proprietor and the proposed registered user, including particulars showing the degree of control by the proprietor over the permitted use which their relationship will confer and whether it is a term of their relationship that the proposed registered user shall be the sole registered user or that there shall be any other restriction as to persons for whose registration as registered users application may be made;

(ii) stating the goods or services in respect of which registration is

proposed;

(iii) stating the conditions or restrictions, if any, proposed with respect to the characteristics of the goods or services, to the mode or place of permitted use, or to any other matter;

(iv) stating whether the permitted use is to be for a period or without limit of period, and, if for a period, the duration thereof; and

(c) such further documents or other evidence as may be required by the Registrar or as may be prescribed.

(2) When the requirements of sub-section (1) have been complied with, the Registrar shall register the proposed registered user in respect of the goods or services as to which he is so satisfied.

(3) The Registrar shall issue notice in the prescribed manner of the registration of a person as a registered user, to other registered users of the trade mark, if any.

(4) The Registrar shall, if so requested by the applicant, take steps for securing that information given for the purposes of an application under this section (other than matters entered in the register) is not disclosed to rivals in trade.

50. Power of Registrar for variation or cancellation of registration as registered user.—

(1) Without prejudice to the provisions of section 57, the registration of a person as registered user—

(a) may be varied by the Registrar as regards the goods or services in respect of which it has effect on the application in writing in the prescribed manner of the registered proprietor of the trade mark;

(b) may be cancelled by the Registrar on the application in writing in the prescribed manner of the registered proprietor or of the registered user or of any other registered user of the trade mark;

(c) may be cancelled by the Registrar on the application in writing in the prescribed manner of any person on any of the following grounds,

namely:—

(i) that the registered user has used the trade mark otherwise than in accordance with the agreement under clause (a) of sub-section (1) of section 49 or in such way as to cause or to be likely to cause, deception or confusion;

(ii) that the proprietor or the registered user misrepresented, or failed to disclose, some fact material to the application for registration which if accurately represented or disclosed would not have justified the registration of the registered user;

(iii) that the circumstances have changed since the date of registration in such a way that at the date of such application for cancellation they would not have justified registration of the registered user;

(iv) that the registration ought not to have been effected having regard to rights vested in the applicant by virtue of a contract in the performance of which he is interested;

(d) may be cancelled by the Registrar on his own motion or on the application in writing in the prescribed manner by any person, on the ground that any stipulation in the agreement between the registered proprietor and the registered user regarding the quality of the goods or services in relation to which the trade mark is to be used is either not being enforced or is not being complied with;

(e) may be cancelled by the Registrar in respect of any goods or services in relation to which the trade mark is no longer registered.

(2) The Registrar shall issue notice in the prescribed manner in respect of every application under this section to the registered proprietor and each registered user (not being the applicant) of the trade mark.

(3) The procedure for cancelling a registration shall be such as may be prescribed:

Provided that before cancelling of registration, the registered proprietor shall be given a reasonable opportunity of being heard.

Comments

Registration of registered user may be varied or cancelled, inter alia, on the ground that the registered user has used the trade mark not in accordance with the agreement or the proprietor/user has failed to disclose any material facts for such registration or that the stipulation in the agreement regarding the quality of goods is not enforced or that the circumstances have changed since the date of registration, etc. Notice and opportunity of hearing is provided before cancellation of registration.

51. Power of Registrar to call for information relating to agreement in respect of registered users.—

(1) The Registrar may, at any time during the continuance of the registration of the registered user, by notice in writing, require the registered proprietor to confirm to him within one month that the agreement filed under clause (a) of sub-section (1) of section 49 continues to be in force.

(2) If the registered proprietor fails to furnish the confirmation within one month as required under sub-section (1), the registered user shall cease to be the registered user on the day immediately after the expiry of the said period and the Registrar shall notify the same.

52. Right of registered user to take proceedings against infringement.—

(1) Subject to any agreement subsisting between the parties, a registered user may institute proceedings for infringement in his own name as if he were the registered proprietor, making the registered proprietor a defendant and the rights and obligations of such registered user in such case being concurrent with those of the registered proprietor.

(2) Notwithstanding anything contained in any other law, a registered proprietor so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.

53. No right of permitted user to take proceeding against infringement.—

A person referred to in sub-clause (ii) of clause (r) of sub-section (1) of section 2 shall have no right to institute any proceeding for any infringement.

54. Registered user not to have right of assignment or transmission.—

Nothing in this Act shall confer on a registered user of a trade mark any assignable or transmissible right to the use thereof.

Explanation I.—The right of a registered user of a trade mark shall not be deemed to have been assigned or transmitted within the meaning of this section in the following cases, namely:—

(a) where the registered user being an individual enters into a partnership with any other person for carrying on the business concerned; but in any such case the firm may use the trade mark, if otherwise in force, only for so long as the registered user is a member of the firm;

(b) where the registered user being a firm subsequently undergoes a change in its constitution; but in any such case the reconstituted firm may use the trade mark, if otherwise in force, only for so long as any partner of the original firm at the time of its registration as registered user, continues to be a partner of the reconstituted firm.

Explanation II.—For the purposes of Explanation 1, “firm” has the same meaning as in the Indian Partnership Act, 1932 (9 of 1932).

55. Use of one of associated or substantially identical trade marks equivalent to use of another.—

(1) Where under the provisions of this Act, use of a registered trade mark is required to be proved for any purpose, the tribunal may, if and, so far as it shall think right, accept use of a registered associated trade mark, or of the trade mark with additions or alterations not substantially affecting its identity, as an equivalent for the use required to be proved.

(2) The use of the whole of a registered trade mark shall, for the purpose of this Act, be deemed to be also use of any trade mark being a part thereof and registered in accordance with sub-section (1) of section 15 in the name of the same proprietor.

(3) Notwithstanding anything in section 32, the use of part of the registered trade mark in sub-section (2) shall not be conclusive as to its evidence of distinctiveness for any purpose under this Act.

56. Use of trade mark for export trade and use when form of trade connection changes.—

(1) The application in India of trade mark to goods to be exported from India or in relation to services for use outside India and any other act done in India in relation to goods to be so exported or services so rendered outside India which, if done in relation to goods to be sold or services provided or otherwise traded in within India would constitute use of a trade mark therein, shall be deemed to constitute use of the trade mark in relation to those goods or services for any purpose for which such use is material under this Act or any other law.

(2) The use of a registered trade mark in relation to goods or services between which and the person using the mark any form of connection in the course of trade subsists shall not be deemed to be likely to cause deception or confusion on the ground only that the mark has been or is used in relation to goods or services between which and the said person or a predecessor in title of that person a different form of connection in the course of trade subsisted or subsists.

Chapter 7 Rectification and Correction of the Register

57. Power to cancel or vary registration and to rectify the register.—

(1) On application made in the prescribed manner to the Appellate Board or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto.

(2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to the Appellate Board or to the Registrar, and the tribunal may make such order for making, expunging or varying the entry as it may think fit.

(3) The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register.

(4) The tribunal, of its own motion, may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in sub-section (1) or sub-section (2).

(5) Any order of the Appellate Board rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly.

58. Correction of register.—

(1) The Registrar may, on application made in the prescribed manner by the registered proprietor,—

(a) correct any error in the name, address or description of the registered proprietor of a trade mark, or any other entry relating to the trade mark;

(b) enter any change in the name, address or description of the person who is registered as proprietor of a trade mark;

(c) cancel the entry of a trade mark on the register;

(d) strike out any goods or classes of goods or services from those in respect of which a trade mark is registered,

and may make any consequential amendment or alteration in the certificate of registration, and for that purpose, may require the certificate of registration to be produced to him.

(2) The Registrar may, on application made in the prescribed manner by a registered user of a trade mark, and after notice to the registered proprietor, correct any error, or enter any change, in the name, address or description of the registered user.

59. Alteration of registered trade marks.—

(1) The registered proprietor of a trade mark may apply in the prescribed manner to the Registrar for leave to add to or alter the trade mark in any manner not substantially affecting the identity thereof, and the Registrar may refuse leave or may grant it on such terms and subject to such limitations as he may think fit.

(2) The Registrar may cause an application under this section to be advertised in the prescribed manner in any case where it appears to him that it is expedient so to do, and where he does so, if within the prescribed time from the date of advertisement any person gives notice to the Registrar in the prescribed manner of opposition to the application, the Registrar shall, after hearing the parties if so required, decide the matter.

(3) Where leave is granted under this section, the trade mark as altered shall be advertised in the prescribed manner, unless the application has already been advertised under sub-section (2).

60. Adaptation of entries in register to amended or substituted classification of goods or services.—

(1) The Registrar shall not make any amendment of the register which would have the effect of adding any goods or classes of goods or services to those in respect of which a trade mark is registered (whether in one or more classes) immediately before the amendment is to be made or of antedating the registration of a trade mark in respect of any goods or services:

Provided that this sub-section, shall not apply when the Registrar is satisfied that compliance therewith would involve undue complexity and that the addition or antedating, as the case may be, would not affect any substantial quantity of goods or services and would not substantially prejudice the rights of any person.

(2) A proposal so to amend the register shall be brought to the notice of the registered proprietor of the trade mark affected and advertised in the prescribed manner, and may be opposed before the Registrar by any person aggrieved on the ground that the proposed amendment contravenes the provisions of sub-section (1).

Chapter 8 Collective Marks

61. Special provisions for collective marks.—

(1) The provisions of this Act shall apply to collective marks subject to the provisions contained in this Chapter.

(2) In relation to a collective mark the reference in clause (zb) of sub-section (1) of section 2 to distinguishing the goods or services of one person from those of others shall be construed as a reference to distinguishing the goods or services of members of an association of persons which is the proprietor of the mark from those of others.

62. Collective mark not to be misleading as to character or significance.—

A collective mark shall not be registered if it is likely to deceive or cause confusion on the part of public in particular if it is likely to be taken to be something other than a collective mark, and in such case the Registrar may require that a mark in respect of which application is made for registration comprises some indication that it is a collective mark.

63. Application to be accompanied by regulations governing use of collective marks.—

(1) An application for registration of a collective mark shall be accompanied by the regulations governing the use of such collective mark.

(2) The regulations referred to in sub-section (1) shall specify the persons authorised to use the mark, the conditions of membership of the association and, the conditions of use of the mark, including any sanctions against misuse and such other matters as may be prescribed.

64. Acceptance of application and regulations by Registrar.—

If it appears to the Registrar that the requirements for registration are satisfied, he shall accept the application together with the regulations, either unconditionally or subject to such conditions including amendments of the said regulations, if any, as he may deem fit or refuse to accept it and if accepted shall notify the regulations.

65. Regulations to be open to inspection.—

The regulations referred to in sub-section (1) of section 63 shall be open to public inspection in the same way as the register as provided in section 148.

66. Amendment of regulations.—

Any amendment of regulations referred to in sub-section (1) of section 63 shall not be effective unless the amended regulations are filed with the Registrar, and accepted and published by him in accordance with section 64.

67. Infringement proceedings by registered proprietor of collective mark.—

In a suit for infringement instituted by the registered proprietor of a collective mark as plaintiff the court shall take into account any loss suffered or likely to be suffered by authorised users and may give such directions as it thinks fit as to the extent to which the plaintiff shall hold the proceeds of any pecuniary remedy on behalf of such authorised users.

68. Additional grounds for removal of registration of collective mark.—

The registration of a collective mark may also be removed from the register on the ground—

(a) that the manner in which the collective mark has been used by the proprietor or authorised user has caused it to become liable to mislead the public as a collective mark; or

(b) that the proprietor has failed to observe, or to secure the observance of the regulations governing the use of the mark.

Explanation I.—For the purposes of this Chapter, unless the context otherwise requires, “authorised user” means a member of an association authorised to use the registered collective mark of the association.

Explanation II.—For the purposes of this Act, use of a collective mark by an authorised user referred to in Explanation I shall be deemed to be the use by the registered proprietor thereof.

Chapter 9 Certification Trade Marks

69. Certain provisions of this Act not applicable to certification trade marks.—

The following provisions of this Act shall not apply to certification trade marks, that is to say,—

(a) clauses (a) and (c) of sub-section (1) of section 9;

(b) sections 18, 20 and 21, except as expressly applied by this Chapter;

(c) sections 28, 29, 30, 41, 42, 47, 48, 49, 50, 52, 54 and sub-section (2) of section 56;

(d) Chapter XII, except section 107.

70. Registration of certification trade marks.—

A mark shall not be registrable as a certification trade mark in the name of a person who carries on a trade in goods of the kind certified or a trade of the provision of services of the kind certified.

71. Applications for registration of certification trade marks.—

(1) An application for the registration of a mark as a certification trade mark shall be made to the Registrar in the prescribed manner by the person proposed to be registered as the proprietor thereof, and accompanied by a draft of the regulations to be deposited under section 74.

(2) Subject to the provisions of section 70, the provisions of sections 18, 19 and 22 shall apply in relation to an application under this section as they apply in relation to an application under section 18, subject to the modification that references therein to acceptance of an application shall be construed as references to authorisation to proceed with an application.

(3) In dealing under the said provision with an application under this section, the tribunal shall have regard to the like considerations, so far as relevant, as if the application were application under section 18 and to any other considerations relevant to applications under this section, including the desirability of securing that a certification trade mark shall comprise some indication that it is a certification trade mark.

72. Consideration of application for registration by the Registrar.—

(1) The Registrar shall consider the application made under section 71 with regard to the following matters, namely:—

(a) whether the applicant is competent to certify the goods in respect of which the mark is to be registered;

(b) whether the draft of the regulations to be filed under section 74 is satisfactory;

(c) whether in all the circumstances the registration applied for would be to the public advantage,

and may either—

(i) refuse the application; or

(ii) accept the application and approve the said draft of the regulations either without modification and unconditionally or subject to any conditions or limitations, or to any amendments or modifications of the application or of the regulations, which he thinks requisite having regard to any of the said matters.

(2) Except in the case of acceptance and approval without modification and unconditionally, the Registrar shall not decide any matter under sub-section (1) without giving the applicant an opportunity of being heard

73. Opposition to registration of certification trade marks.—

When an application has been accepted, the Registrar shall, as soon as may be thereafter, cause the application as accepted to be advertised in the prescribed manner, and the provisions of section 21 shall apply in relation to the registration of the mark as they apply in relation to an application under section 18.

74. Filing of regulations governing use of a certification trade mark.—

(1) There shall be filed at the Trade Marks Registry in respect of every mark registered as a certification trade mark regulations for governing the use thereof, which shall include provisions as to the cases in which the proprietor is to certify goods or services and to authorise the use of the certification trade mark, and may contain any other provisions which the Registrar may by general or special order, require or permit to be inserted therein (including provisions conferring a right of appeal to the Registrar against any refusal of the proprietor to certify goods or to authorise the use of the certification trade mark in accordance with the regulations); and regulations so filed shall be open to inspection in like manner as the register as provided in section 148.

(2) The regulations so filed may, on the application of the registered proprietor, be altered by the Registrar.

(3) The Registrar may cause such application to be advertised in any case where it appears to him expedient so to do, and where he does so, if within the time specified in the advertisement any person gives notice of opposition to the application, the Registrar shall not decide the matter without giving the parties an opportunity of being heard.

75. Infringement of certification trade marks.—

The right conferred by section 78 is infringed by any person who, not being the registered proprietor of the certification trade mark or a person authorised by him in that behalf under the regulations filed under section 74, using it in accordance therewith, uses in the course of trade, a mark, which is identical with, or deceptively similar to the certification trade mark in relation to any goods or services in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken as being a use as a trade mark.

76. Acts not constituting infringement of certification trade marks.—

(1) Notwithstanding anything contained in this Act, the following acts do not constitute an infringement of the right to the use of a registered certification trade mark—

(a) where a certification trade mark is registered subject to any conditions or limitations entered on the register, the use of any such mark in any mode, in relation to goods to be sold or otherwise traded in any place, or in relation to goods to be exported to any market or in relation to services for use or available for acceptance in any place, country or territory or in any other circumstances, to which having regard to any such limitations, the registration does not extend;

(b) the use of a certification trade mark in relation to goods or services certified by the proprietor of the mark if, as to those goods or services or a bulk of which they form part, the proprietor or another in accordance with his authorisation under the relevant regulations has applied the mark and has not subsequently removed or obliterated it, or the proprietor has at any time expressly or impliedly consented to the use of the mark;

(c) the use of a certification trade mark in relation to goods or services adapted to form part of, or to be accessory to, other goods in relation to which the mark has been used without infringement of the right given as aforesaid or might for the time being be so used, if the use of the mark is reasonably necessary in order to indicate that the goods or services as so adapted and neither the purpose nor the effect of the use of the mark is to indicate otherwise than in accordance with the fact that the goods or services are certified by the proprietor.

(2) Clause (b) of sub-section (1) shall not apply to the case of use consisting of the application of a certification trade mark to goods or services, notwithstanding that they are such goods or services as are mentioned in that clause if such application is contrary to the regulations referred to in that clause.

(3) Where a certification trade mark is one of two or more trade marks registered under this Act, which are identical or nearly resemble each other, the use of any of those trade marks in exercise of the right to the use of that trade mark given by registration, shall not be deemed to be an infringement of the right so given to the use of any other of those trade marks.

77. Cancellation or varying of registration of certification trade marks.—

The Registrar may, on the application in the prescribed manner of any person aggrieved and after giving the proprietor an opportunity of opposing the application, make such order as he thinks fit for expunging or varying any entry in the register to a certification trade mark, or for varying the regulations, on any of the following grounds, namely:—

(a) that the proprietor is no longer competent, in the case of any of the goods or services in respect of which the mark is registered, to certify those goods or services;

(b) that the proprietor has failed to observe any provisions of the regulations to be observed on his part;

(c) that it is no longer to the public advantage that the mark should remain registered;

(d) that it is requisite for the public advantage that if the mark remains registered, the regulations should be varied.

78. Rights conferred by registration of certification trade marks.—

(1) Subject to the provisions of sections 34, 35 and 76, the registration of a person as a proprietor of certification trade mark in respect of any goods or services shall, if valid, give to that person the exclusive right to the use of the mark in relation to those goods or services.

(2) The exclusive right to the use of a certification trade mark given under sub-section (1) shall be subject to any conditions and limitations to which the registration is subject.

Chapter 10 Special Provisions for Textile Goods

79. Textile goods.—

The Central Government may prescribe classes of goods (in this Chapter referred to as textile goods) to the trade marks used in relation to which the provisions of this Chapter shall apply; and subject to the said provisions, the other provisions of this Act shall apply to such trade marks as they apply to trade marks used in relation to other classes of goods.

80. Restriction on registration of textile goods.—

(1) In respect of textile goods being piece goods—

(a) no mark consisting of a line heading alone shall be registrable as a trade mark;

(b) a line heading shall not be deemed to be capable of distinguishing;

(c) the registration of trade mark shall not give any exclusive right to the use of a line heading.

(2) In respect of any textile goods, the registration of letters or numerals, or any combination thereof, shall be subject to such conditions and restrictions as may be prescribed.

Comments

This section provides that in respect of textile goods being piece goods (i) no mark consisting of a line heading alone can be registered as a trade mark, (ii) a line heading cannot be deemed to be capable of distinguishing, (iii) the registration of trade mark cannot give any exclusive right to the use of a line heading. It further provides that in respect of textile goods, the registration of letters or numerals, or any combination thereof, shall be subject to the prescribed conditions and restrictions.

81. Stamping of piece goods, cotton yarn and thread.—

(1) Piece goods, such as are ordinarily sold by length or by the piece, which have been manufactured, bleached, dyed, printed or finished in premises which are a factory, as defined in the Factories Act, 1948 (63 of 1948), shall not be removed for sale from the last of such premises in which they underwent any of the said processes without having conspicuously stamped in international form of Indian numerals on each piece the length thereof in standard yards, or in standard yards and a fraction of such a yard, or in standard metres or in standard metres and a fraction of such a metre, according to the real length of the piece, and, except when the goods are sold from the factory for export from India, without being conspicuously marked on each piece with the name of the manufacturer or of the occupier of the premises in which the piece was finally processed or of the wholesale purchaser in India of the piece.

(2) Cotton yarn such as is ordinarily sold in bundles, and cotton thread, namely, sewing, darning, crochet or handicraft thread, which have been manufactured, bleached, dyed or finished in any premises not exempted by the rules made under section 82 shall not be removed for sale from those premises unless, in accordance with the said rules in the case of yarn—

(a) the bundles are conspicuously marked with an indication of the weight of yarn in English or the metric system in each bundles; and

(b) the count of the yarn contained in the bundles and in the case of thread each unit is conspicuously marked with the length or weight of thread in the unit and in such other manner as may be required by the said rules; and

(c) except where the goods are sold from the premises for export from India, unless each bundle or unit is conspicuously marked with the name of the manufacturer or of the wholesale purchaser in India of the goods:

Provided that the rules made under section 82 shall exempt all premises where the work is done by members of one family with or without the assistance of not more than ten other employees, and all premises controlled by a co-operative society where not more than twenty workers are employed in the premises.

82. Determination of character of textile goods by sampling.—

(1) For the purposes of this Act, the Central Government may make rules—

(a) to provide, with respect to any goods which purport or are alleged to be of uniform number, quantity, measure, gauge or weight, for the number of samples to be selected and tested and for the selection of the samples;

(b) to provide, for the manner in which for the purposes of section 81 cotton yarn and cotton thread shall be marked with the particulars required by that section, and for the exemption of certain premises used for the manufacture, bleaching, dying or finishing of cotton yarn or cotton thread from the provisions of that section; and

(c) declaring what classes of goods are included in the expression “piece goods such as are ordinarily sold by length or by the piece” for the purpose of section 81, of this Act or clause (n) of sub-section (2) of section 11 of the Customs Act, 1962 (52 of 1962).

(2) With respect to any goods for the selection and testing of samples of which provision is not made in any rules for the time being in force under sub-section (1), the court or officer of customs, as the case may be, having occasion to ascertain the number, quantity, measure, gauge or weight of the goods, shall by order in writing, determine the number of samples to be selected and tested and the manner in which the samples are to be selected.

(3) The average of the results of the testing in pursuance of rules under sub-

section (1) or of an order under sub-section (2) shall be prima facie evidence of the number, quantity, measure, gauge or weight, as the case may be, of the goods.

(4) If a person having any claim to, or in relation to, any goods of which samples have been selected and tested in pursuance of rules under sub-section (1), or of an order under sub-section (2), desires that any further samples of the goods be selected and tested, such further samples shall, on his written application and on the payment in advance by him to the court or officer of customs, as the case may be, of such sums for defraying the cost of the further selection and testing as the court or officer may from time to time require, be selected and tested to such extent as may be permitted by rules made by the Central Government in this behalf or as, in the case of goods with respect to which provision is not made in such rules, the court or officer of customs may determine in the circumstances to be reasonable, the samples being selected in the manner prescribed under sub-section (1), or in sub-section (2), as the case may be.

(5) The average of the results of the testing referred to in sub-section (3) and of the further testing under sub-section (4) shall be conclusive proof of the number, quantity, measure, gauge or weight, as the case may be, of the goods.

83. Establishment of Appellate Board1.—

The Central Government shall, by notification in the Official Gazette, establish an Appellate Board to be known as the Intellectual Property Appellate Board to exercise the jurisdiction, powers and authority conferred on it by or under this Act.

Chapter 11 Appellate Board

84. Composition of Appellate Board.—

(1) The Appellate Board shall consist of a Chairman, Vice-Chairman and such number of other Members, as the Central Government may, deem fit and, subject to the other provisions of this Act, the jurisdiction, powers and authority of the Appellate Board may be exercised by Benches thereof.

(2) Subject to the other provisions of this Act, a Bench shall consist of one Judicial Member and one Technical Member and shall sit at such place as the Central Government may, by notification2 in the Official Gazette, specify.

(3) Notwithstanding anything contained in sub-section (2), the Chairman—

(a) may, in addition to discharging the functions of the Judicial Member or Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench;

(b) may transfer a Member from one Bench to another Bench;

(c) may authorise the Vice-Chairman, the Judicial Member or the Technical Member appointed to one Bench to discharge also the functions of the Judicial Member or the Technical Member, as the case may be, of another Bench.

(4) Where any Benches are constituted, the Central Government may, from time to time, by notification, make provisions as to the distribution of the business of the Appellate Board amongst the Benches and specify the matters which may be dealt with by each Bench.

(5) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench, the decision of the Chairman shall be final.

Explanation.—For the removal of doubts, it is hereby declared that the expression “matter” includes an appeal under section 91.

(6) If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.

85. Qualifications for appointment as Chairman, Vice-Chairman, or other Members.—

(1) A person shall not be qualified for appointment as the Chairman unless he—

(a) is, or has been, a Judge of a High Court; or

(b) has, for at least two years, held the office of a Vice-Chairman.

(2) A person shall not be qualified for appointment as the Vice-Chairman, unless he—

(a) has, for at least two years, held the office of a Judicial Member or a Technical Member; or

(b) has been a member of the Indian Legal Service and has held a post in Grade I of that Service or any higher post for at least five years.

(3) A person shall not be qualified for appointment as a Judicial Member, unless he—

(a) has been a member of the Indian Legal Service and has held the post in Grade I of that Service for at least three years; or

(b) has, for at least ten years, held a civil judicial office.

(4) A person shall not be qualified for appointment as a Technical Member, unless he—

(a) has, for at least ten years, exercised functions of a tribunal under this Act or under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or both, and has held a post not lower than the post of a Joint Registrar for at least five years; or

(b) has, for at least ten years, been an advocate of a proven specialised experience in trade mark law.

(5) Subject to the provisions of sub-section (6), the Chairman, Vice-Chairman and every other Member shall be appointed by the President of India.

(6) No appointment of a person as the Chairman shall be made except after consultation with the Chief Justice of India.

86. Term of office of Chairman, Vice-Chairman and other Members.—

The Chairman, Vice-Chairman or other Members shall hold office as such for a term of five years from the date on which he enters upon his office or until he attains,—

(a) in the case of Chairman and Vice-Chairman, the age of sixty-five years; and

(b) in the case of a Member, the age of sixty-two years,

whichever is earlier.

87. Vice-Chairman or senior-most Member to act as Chairman or discharge his functions in certain circumstances.—

(1) In the event of or any vacancy in the office of the Chairman by reasons of his death, resignation or otherwise, the Vice-Chairman and in his absence the senior-most Member shall act as Chairman until the date on which a new Chairman, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.

(2) When the Chairman is unable to discharge his functions owing to his absence, illness or any other cause, the Vice-Chairman and in his absence the senior-most Member shall discharge the functions of the Chairman until the date on which the Chairman resumes his duty.

88. Salaries, allowances and other terms and conditions of service of Chairman, Vice-Chairman and other Members.—

(1) The salaries and allowances payable to, and other terms and conditions of service (including pension, gratuity and other retirement benefits) of the Chairman, Vice-Chairman and other Members shall be such as may be prescribed.

(2) Notwithstanding anything contained in sub-section (1), a person who, immediately before the date of assuming office as the Chairman, Vice-Chairman or other Member was in service of Government, shall be deemed to have retired from service on the date on which he enters upon office as the Chairman, Vice-Chairman or other Member.

89. Resignation and removal.—

(1) The Chairman, Vice-Chairman or any other Member may, by notice in writing under his hand addressed to the President of India, resign his office:

Provided that the Chairman, Vice-Chairman or any other Member shall, unless he is permitted by the President of India to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is earlier.

(2) The Chairman, Vice-Chairman or any other Member shall not be removed from his office except by an order made by the President of India on the ground of proved misbehaviour or incapacity after an inquiry made by a Judge of the Supreme Court in which the Chairman, Vice-Chairman or other Member had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

(3) The Central Government may, by rules, regulate the procedure for the investigation of misbehaviour or incapacity of the Chairman, Vice-Chairman or other Member referred to in sub-section (2).

90. Staff of Appellate Board.—

(1) The Central Government shall determine the nature and categories of the officers and other employees required to assist the Appellate Board in the discharge of its functions and provide the Appellate Board with such officers and other employees as it may think fit.

(2) The salaries and allowances and conditions of service of the officers and other employees of the Appellate Board shall be such as may be prescribed.

(3) The officers and other employees of the Appellate Board shall discharge their functions under the general superintendence of the Chairman in the manner as may be prescribed.

91. Appeals to Appellate Board.—

(1) Any person aggrieved by an order or decision of the Registrar under this Act, or the rules made thereunder may prefer an appeal to the Appellate Board within three months from the date on which the order or decision sought to be appealed against is communicated to such person preferring the appeal.

(2) No appeal shall be admitted if it is preferred after the expiry of the period specified under sub-section (1):

Provided that an appeal may be admitted after the expiry of the period specified therefor, if the appellant satisfies the Appellate Board that he had sufficient cause for not preferring the appeal within the specified period.

(3) An appeal to the Appellate Board shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by a copy of the order or decision appealed against and by such fees as may be prescribed.

92. Procedure and powers of Appellate Board.—

(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.

(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:—

(a) receiving evidence;

(b) issuing commissions for examination of witnesses;

(c) requisitioning any public record; and

(d) any other matter which may be prescribed.

(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860), and the Appellate Board shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

93. Bar of jurisdiction of courts, etc.—

No court or other authority shall have or, be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in sub-section (1) of section 91.

94. Bar to appear before Appellate Board.—

On ceasing to hold office, the Chairman, Vice-Chairman or other Members shall not appear before the Appellate Board or the Registrar.

95. Conditions as to making of interim orders.-

Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or any other manner) shall be made on, or in any proceedings relating to, an appeal unless –

(a) copies of such appeal and of all documents in support of the plea for such interim order are furnished to the party against whom such appeal is made or proposed to be made, and

(b) opportunity is given to such party to be heard in the matter.

96. Power of Chairman to transfer cases from one Bench to another.—

On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to any other Bench.

97. Procedure for application for rectification, etc., before Appellate Board.—

(1) An application for rectification of the register made to the Appellate Board under section 57 shall be in such form as may be prescribed.

(2) A certified copy of every order or judgment of the Appellate Board relating to a registered trade mark under this Act shall be communicated to the Registrar by the Board and the Registrar shall give effect to the order of the Board and shall, when so directed, amend the entries in, or rectify, the register in accordance with such order.

98. Appearance of Registrar in legal proceedings.—

(1) The Registrar shall have the right to appear and be heard—

(a) in any legal proceedings before the Appellate Board in which the relief sought includes alteration or rectification of the register or in which any question relating to the practice of the Trade Marks Registry is raised;

(b) in any appeal to the Board from an order of the Registrar on an application for registration of a trade mark—

(i) which is not opposed, and the application is either refused by the Registrar or is accepted by him subject to any amendments, modifications, conditions or limitations, or

(ii) which has been opposed and the Registrar considers that his appearance is necessary in the public interest,

and the Registrar shall appear in any case if so directed by the Board.

(2) Unless the Appellate Board otherwise directs, the Registrar may, in lieu of appearing, submit a statement in writing signed by him, giving such particulars as he thinks proper of the proceedings before him relating to the matter in issue or of the grounds of any decision given by him affecting it, or of the practice of the Trade Marks Registry in like cases, or of other matters relevant to the issues and within his knowledge as Registrar, and such statement shall be evidence in the proceeding.

99. Costs of Registrar in proceedings before Appellate Board.—

In all proceedings under this Act before the Appellate Board the costs of the Registrar shall be in the discretion of the Board, but the Registrar shall not be ordered to pay the costs of any of the parties.

100. Transfer of pending proceedings to Appellate Board.—

All cases of appeals against any order or decision of the Registrar and all cases pertaining to rectification of register, pending before any High Court, shall be transferred to the Appellate Board from the date as notified by the Central Government in the Official Gazette and the Appellate Board may proceed with the matter either de novo or from the stage it was so transferred.

Chapter 12 Offences, Penalties and Procedure

101. Meaning of applying trade marks and trade descriptions.—

(1) A person shall be deemed to apply a trade mark or mark or trade description to goods or services who—

(a) applies it to the goods themselves or uses it in relation to services; or

(b) applies it to any package in or with which the goods are sold, or exposed for sale, or had in possession for sale or for any purpose of trade or manufacture, or

(c) places, encloses or annexes any goods which are sold, or exposed for sale, or had in possession for sale or for any purpose of trade or manufacture, in or with any package or other thing to which a trade mark or mark or trade description has been applied; or

(d) uses a trade mark or mark or trade description in any manner reasonably likely to lead to the belief that the goods or services in connection with which it is used are designated or described by that trade mark or mark or trade description; or

(e) in relation to the goods or services uses a trade mark or trade description in any sign, advertisement, invoice, catalogue, business letter, business paper, price list or other commercial document and goods are delivered or services are rendered to a person in pursuance of a request or order made by reference to the trade mark or trade description as so used.

(2) A trade mark or mark or trade description shall be deemed to be applied to goods whether it is woven in, impressed on, or otherwise worked into, or annexed or affixed to, the goods or to any package or other thing.

102. Falsifying and falsely applying trade marks.—

(1) A person shall be deemed to falsify a trade mark who, either,—

(a) without the assent of the proprietor of the trade mark makes that trade mark or a deceptively similar mark; or

(b) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise.

(2) A person shall be deemed to falsely apply to goods or services a trade mark who, without the assent of the proprietor of the trade mark,—

(a) applies such trade mark or a deceptively similar mark to goods or services or any package containing goods;

(b) uses any package bearing a mark which is identical with or deceptively similar to the trade mark of such proprietor, for the purpose of packing, filling or wrapping therein any goods other than the genuine goods of the proprietor of the trade mark.

(3) Any trade mark falsified as mentioned in sub-section (1) or falsely applied as mentioned in sub-section (2), is in this Act referred to as a false trade mark.

(4) In any prosecution for falsifying a trade mark or falsely applying a trade mark to goods or services, the burden of proving the assent of the proprietor shall lie on the accused.

103. Penalty for applying false trade marks, trade descriptions, etc.—

Any person who—

(a) falsifies any trade mark; or

(b) falsely applies to goods or services any trade mark; or

(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying, a trade mark; or

(d) applies any false trade description to goods or services; or

(e) applies to any goods to which an indication of the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied under section 139, a false indication of such country, place, name or address; or

(f) tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied under section 139; or

(g) causes any of the things above-mentioned in this section to be done,

shall, unless he proves that he acted, without intent to defraud, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.

Comments

Any person who (i) falsifies any trade mark; or (ii) falsely applies to goods or services any trade mark; or (iii) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying, a trade mark; or (iv) applies any false description to goods or services; or (v) applies to any good to which an indication of the country or place in which they are made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied, a false indication of such country, place, name or address; (vi) tempers with, alters or effaces an indication of origin; or (vii) causes any of the things above-mentioned to be done, shall be punishable with imprisonment for six months to three years and with fine of fifty thousand rupees to two lakh rupees.

104. Penalty for selling goods or providing services to which false trade mark or false trade description is applied.—

Any person who sells, lets for hire or exposes for sale, or hires or has in his possession for sale, goods or things, or provides or hires services, to which any false trade mark or false trade description is applied or which, being required under section 139 to have applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer, or person for whom the goods are manufactured or services provided, as the case may be, are without the indications so required, shall, unless he proves,—

(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods or services; or

(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things or services; or

(c) that otherwise he had acted innocently,

be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.

Comments

This section provides that any person who sells, lets for hire or exposes for sale, or hires or has in his possession for sale, goods or things, or provides or hires services, to which any false trade mark or false trade description is applied or which being required to have applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer, or person for whom the goods are manufactured or services provided, are without the indications so required, shall be punishable with imprisonment for six months upto three years and with fine from fifty thousand rupees to two lakh rupees.

105. Enhanced penalty on second or subsequent conviction.—

Whoever having already been convicted of an offence under section 103 or section 104 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than one year or a fine of less than one lakh rupees:

Provided further that for the purposes of this section, no cognizance shall be taken of any conviction made before the commencement of this Act.

Comments

This section provides that whoever has already been convicted is again convicted shall be punishable for the second and for every subsequent offence with imprisonment which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. The court is, however, empowered to impose a sentence of imprisonment for a term less than one year and a fine of less than one lakh rupees for adequate and special reasons to be mentioned in the judgment.

106. Penalty for removing piece goods, etc., contrary to section 81.—

If any person removes or attempts to remove or causes or attempts to cause to be removed for sale from any premises referred to in section 81 or sells or exposes for sale or has in his possession for sale or for any purpose of trade or manufacture piece goods or cotton yarn or cotton thread which is not marked as required by that section, every such piece and every such bundle of yarn and all such thread and everything used for the packing thereof shall be forfeited to Government and such person shall be punishable with fine which may extend to one thousand rupees.

Comments

This section provides that if any person removes or attempts to remove for sale piece goods or cotton yarn or cotton threads which are not marked in accordance with the provisions of the Act, all such goods will be forfeited to the Government and the person shall be punishable with fine upto one thousand rupees.

107. Penalty for falsely representing a trade mark as registered.—

(1) No person shall make any representation—

(a) with respect to a mark, not being a registered trade mark, to the effect that it is a registered trade mark; or

(b) with respect to a part of a registered trade mark, not being a part separately registered as a trade mark, to the effect that it is separately registered as a trade mark; or

(c) to the effect that a registered trade mark is registered in respect of any goods or services in respect of which it is not in fact registered; or

(d) to the effect that registration of a trade mark gives an exclusive right to the use thereof in any circumstances in which, having regard to limitation entered on the register, the registration does not in fact give that right.

(2) If any person contravenes any of the provisions of sub-section (1), he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

(3) For the purposes of this section, the use in India in relation to a trade mark of the word “registered”, or of any other expression, symbol or sign referring whether expressly or impliedly to registration, shall be deemed to import a reference to registration in the register, except—

(a) where that word or other expression, symbol or sign is used in direct association with other words delineated in characters at least as large as those in which that word or other expression, symbol or sign is delineated and indicating that the reference is to registration as a trade mark under the law of a country outside India being a country under the law of which the registration referred to is in fact in force; or

(b) where that other expression, symbol or sign is of itself such as to indicate that the reference is to such registration as is mentioned in clause (a); or

(c) where that word is used in relation to a mark registered as a trade mark under the law of a country outside India and in relation solely to goods to be exported to that country or in relation to services for use in that country.

Comments

This section makes false representation of a trade mark as registered as an offence. The punishment for the offence is imprisonment for a term which may extend to three years or with fine or with both. It also provides that where the mark in question is registered under the law of the country outside India, the use of the word or other expression to denote such registration in foreign country is permissible.

108. Penalty for improperly describing a place of business as connected with the Trade Marks Office.—

If any person uses on his place of business, or on any document issued by him, or otherwise, words which would reasonably lead to the belief that his place of business is, or is officially connected with, the Trade Marks Office, he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

Comments

The use of any words which would lead to the belief that a person’s place of business is officially connected with the Trade Marks Office is a punishable offence with imprisonment for a term which may extend to two years or fine or with both.

109. Penalty for falsification of entries in the register.—

If any person makes, or causes to be made, a false entry in the register, or a writing falsely purporting to be a copy of an entry in the register, or produces or tenders or causes to be produced or tendered, in evidence any such writing, knowing the entry or writing to be false, he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

Comments

This section contains provisions for penalty for falsification of entries in the register. This offence is punishable with imprisonment extending to two years or fine or with both. This clause corresponds to section 83 of the existing Act.

110. No offence in certain cases.—

The provisions of sections 102, 103, 104 and 105 shall, in relation to a registered trade mark or proprietor of such mark, be subject to the rights created or recognised by this Act and no act or omission shall be deemed to be an offence under the aforesaid sections if,—

(a) the alleged offence relates to a registered trade mark and the act or omission is permitted under this Act; and

(b) the alleged offence relates to a registered or an unregistered trade mark and the act or omission is permitted under any other law for the time being in force.

Comments

This section provides that when an act or omission shall not be deemed to be an offence under sections 102, 103, 104 and 105, if the alleged offence relates to a registered or unregistered mark, the act or omission is permitted by this Act or under any other law.

111. Forfeiture of goods.—

(1) Where a person is convicted of an offence under section 103 or section 104 or section 105 or is acquitted of an offence under section 103 or section 104 on proof that he acted without intent to defraud, or under section 104 on proof of the matters specified in clause (a), clause (b) or clause (c) of that section, the court convicting or acquitting him may direct the forfeiture to Government of all goods and things by means of, or in relation to, which the offence has been committed, or but for such proof as aforesaid would have been committed.

(2) When a forfeiture is directed on a conviction and an appeal lies against the conviction, an appeal shall lie against the forfeiture also.

(3) When a forfeiture is directed on acquittal and the goods or things to which the direction relates are of value exceeding fifty rupees, an appeal against the forfeiture may be preferred, within thirty days from the date of the direction, to the court to which in appealable cases appeals lie from sentences of the court which directed the forfeiture.

(4) When a forfeiture is directed on a conviction, the court, before whom the person is convicted, may order any forfeited articles to be destroyed or otherwise disposed of as the court thinks fit.

Comments

This section provides that the court can direct forfeiture to Government of all the goods relating to which an offence has been committed. The court may either order the forfeited goods to be destroyed or otherwise disposed of. Where an appeal against conviction lies, the appeal will also lie against the forfeiture.

112. Exemption of certain persons employed in ordinary course of business.—

Where a person accused of an offence under section 103 proves—

(a) that in the ordinary course of his business he is employed on behalf of other persons to apply trade marks or trade descriptions, or as the case may be, to make dies, blocks, machines, plates, or other instruments for making, or being used in making, trade marks; and

(b) that in the case which is the subject of the charge he was so employed, and was not interested in the goods or other thing by way of profit or commission dependent on the sale of such goods or providing of services, as the case may be; and

(c) that, having taken all reasonable precautions against committing the offence charged, he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the trade mark or trade description; and

(d) that, on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons on whose behalf the trade mark or trade description was applied, he shall be acquitted.

Comments

This section provides that if the person accused of an offence proves, inter alia, that he had at the time of commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description and that in the ordinary course of business he is employed on behalf of the other persons to apply trade mark or trade description including dies, blocks, machines, etc., he shall not be liable to any punishment.

113. Procedure where invalidity of registration is pleaded by the accused.—

(1) Where the offence charged under section 103 or section 104 or section 105 is in relation to a registered trade mark and the accused pleads that the registration of the trade mark is invalid, the following procedure shall be followed:—

(a) If the court is satisfied that such defence is prima facie tenable, it shall not proceed with the charge but shall adjourn the proceeding for three months from the date on which the plea of the accused is recorded to enable the accused to file an application before the Appellate Board under this Act, for the rectification of the register on the ground that the registration is invalid.

(b) If the accused proves to the court that he has made such application within the time so limited or within such further time as the court may for sufficient cause allow, the further proceedings in the prosecution shall stand stayed till the disposal of such application for rectification.

(c) If within a period of three months or within such extended time as may be allowed by the court the accused fails to apply to the Appellate Board for rectification of the register, the court shall proceed with the case as if the registration were valid.

(2) Where before the institution of a complaint of an offence referred to in sub-section (1), any application for the rectification of the register concerning the trade mark in question on the ground of invalidity of the registration thereof has already been properly made to and is pending before the tribunal, the court shall stay the further proceedings in the prosecution pending the disposal of the application aforesaid and shall determine the charge against the accused in conformity with the result of the application for rectification in so far as the complainant relies upon the registration of his mark.

Comments

This section provides that if the court is satisfied with the defence of invalidity of the registration, it may adjourn the proceedings for three months to enable an application for rectification of the register to be filed before the Appellate Board. If the accused proves that he has made such application, further proceedings shall stand stayed till the disposal of rectification application. On the other hand, if within the period allowed by the court, the accused fails to apply for rectification before the Appellate Board, the court is bound to proceed with the case as if registration is valid. It also provides that where any application for rectification is pending before the institution of the criminal proceedings, the court shall stay the proceedings in the prosecution pending the outcome of the rectification application and determine the charge in conformity thereof to the extent that the complainant relies on the registration of this mark.

114. Offences by companies.—

(1) If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.—For the purposes of this section—

(a) “company” means any body corporate and includes a firm or other association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.

115. Cognizance of certain offences and the powers of police officer for search and seizure.—

(1) No court shall take cognizance of an offence under section 107 or section 108 or section 109 except on complaint in writing made by the Registrar or any officer authorised by him in writing:

Provided that in relation to clause (c) of sub-section (1) of section 107, a court shall take cognizance of an offence on the basis of a certificate issued by the Registrar to the effect that a registered trade mark has been represented as registered in respect of any goods or services in respect of which it is not in fact registered.

(2) No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first class shall try an offence under this Act.

(3) The offences under section 103 or section 104 or section 105 shall be cognizable.

(4) Any police officer not below the rank of deputy superintendent of police or equivalent, may, if he is satisfied that any of the offences referred to in sub-section (3) has been, is being, or is likely to be, committed, search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence, wherever found, and all the articles so seized shall, as soon as practicable, be produced before a Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be:

Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trade mark and shall abide by the opinion so obtained.

(5) Any person having an interest in any article seized under sub-section (4), may, within fifteen days of such seizure, make an application to the Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be, for such article being restored to him and the Magistrate, after hearing the applicant and the prosecution, shall make such order on the application as he may deem fit.

116. Evidence of origin of goods imported by sea.—

In the case of goods brought into India by sea, evidence of the port of shipment shall, in a prosecution for an offence under this Act or under clause (b) of section 112 of the Customs Act, 1962 (52 of 1962), relating to confiscation of goods under clause (d) of section 111 and notified by the Central Government under clause (n) of sub-section (2) of section 11 of the said Act for the protection of trade marks relating to import of goods, be prima facie evidence of the place or country in which the goods are made or produced.

Comments

Where the goods are brought into India by sea, evidence of port of shipment will be prima facie evidence of the country of origin in any prosecution for an offence under the Act or the Customs Act, 1962.

117. Costs of defence or prosecution.—

In any prosecution under this Act, the court may order such costs to be paid by the accused to the complainant, or by the complainant to the accused, as the court deems reasonable having regard to all the circumstances of the case and the conduct of the parties and the costs so awarded shall be recoverable as if they were a fine.

118. Limitation of prosecution.—

No prosecution for an offence under this Act or under clause (b) of section 112 of the Customs Act, 1962 (52 of 1962), relating to confiscation of goods under clause (d) of section 111 and notified by the Central Government under clause (n) of sub-section (2) of section 11 of the said Act for the protection of trade marks, relating to import of goods shall be commenced after expiration of three years next after the commission of the offence charged, or two years after the discovery thereof by the prosecutor, whichever expiration first happens

119. Information as to commission of offence.—

An officer of the Government whose duty it is to take part in the enforcement of the provisions of this Chapter shall not be compelled in any court to say whence he got any information as to the commission of any offence against this Act.

120. Punishment of abetment in India of acts done out of India.—

If any person, being within India, abets the commission, without India, of any act which, if committed in India, would, under this Act, be an offence, he may be tried for such abetment in any place in India in which he may be found, and be punished therefor with the punishment to which he would be liable if he had himself committed in that place the act which he abetted.

Comments

This section provides that any person in India abetting the commission of any offence which, if committed in India would be an offence shall be tried for such abetment and shall be punished.

121. Instructions of Central Government as to permissible variation to be observed by criminal courts.—

The Central Government may, by notification in the Official Gazette, issue instructions for the limits of variation, as regards number, quantity, measure, gauge or weight which are to be recognized by criminal courts as permissible in the case of any goods.

Chapter 13 Miscellaneous

122. Protection of action taken in good faith.—

No suit or other legal proceedings shall lie against any person in respect of anything which is in good faith done or intended to be done in pursuance of this Act.

123. Certain persons to be public servants.—

Every person appointed under this Act and every Member of the Appellate Board shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).

124. Stay of proceedings where the validity of registration of the trade mark is questioned, etc.—

(1) Where in any suit for infringement of a trade mark—

(a) the defendant pleads that registration of the plaintiff’s trade mark is invalid; or

(b) the defendant raises a defence under clause (e) of sub-section (2) of section 30 and the plaintiff pleads the invalidity of registration of the defendant’s trade mark, the court trying the suit (hereinafter referred to as the court), shall,—

(i) if any proceedings for rectification of the register in relation to the plaintiff’s or defendant’s trade mark are pending before the Registrar or the Appellate Board, stay the suit pending the final disposal of such proceedings;

(ii) if no such proceedings are pending and the court is satisfied that the plea regarding the invalidity of the registration of the plaintiff’s or defendant’s trade mark is prima facie tenable, raise an issue regarding the same and adjourn the case for a period of three months from the date of the framing of the issue in order to enable the party concerned to apply to the Appellate Board for rectification of the register.

(2) If the party concerned proves to the court that he has made any such application as is referred to in clause (b) (ii) of sub-section (1) within the time specified therein or within such extended time as the court may for sufficient cause allow, the trial of the suit shall stand stayed until the final disposal of the rectification proceedings.

(3) If no such application as aforesaid has been made within the time so specified or within such extended time as the court may allow, the issue as to the validity of the registration of the trade mark concerned shall be deemed to have been abandoned and the court shall proceed with the suit in regard to the other issues in the case.

(4) The final order made in any rectification proceedings referred to in sub-section (1) or sub-section (2) shall be binding upon the parties and the court shall dispose of the suit conformably to such order in so far as it relates to the issue as to the validity of the registration of the trade mark.

(5) The stay of a suit for the infringement of a trade mark under this section shall not preclude the court from making any interlocutory order (including any order granting an injunction directing account to be kept, appointing a receiver or attaching any property), during the period of the stay of the suit

125. Application for rectification of register to be made to Appellate Board in certain cases.—

(1) Where in a suit for infringement of a registered trade mark the validity of the registration of the plaintiff’s trade mark is questioned by the defendant or where in any such suit the defendant raises a defence under clause (e) of sub-section (2) of section 30 and the plaintiff questions the validity of the registration of the defendant’s trade mark, the issue as to the validity of the registration of the trade mark concerned shall be determined only on an application for the rectification of the register and, notwithstanding anything contained in section 47 or section 57, such application shall be made to the Appellate Board and not to the Registrar.

(2) Subject to the provisions of sub-section (1), where an application for rectification of the register is made to the Registrar under section 47 or section 57, the Registrar may, if he thinks fit, refer the application at any stage of the proceedings to the Appellate Board.

Comments

This section provides that in certain cases, the application for rectification of register

should be made to the Appellate Board. Where in a suit for infringement of a registered trade mark, the validity of the registered trade mark is questioned, the validity of the mark is determined only on an application for the rectification of the registered trade mark made to the Appellate Board.

126. Implied warranty on sale of marked goods.—

Where a mark or a trade mark or trade description has been applied to the goods on sale or in the contract for sale of any goods or in relation to any service, the seller shall be deemed to warrant that the mark is a genuine mark and not falsely applied, or that the trade description is not a false trade description within the meaning of this Act unless the contrary is expressed in writing signed by or on behalf of the seller and delivered at the time of the sale of goods or providing of services on contract to and accepted by the buyer.

Comments

This section provides that on goods for sale if a trade mark or trade description is given or applied, there is implied warranty that the mark is a genuine mark.

127. Powers of Registrar.—

In all proceedings under this Act before the Registrar,—

(a) the Registrar shall have all the powers of a civil court for the purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of documents and issuing commissions for the examination of witnesses;

(b) the Registrar may, subject to any rules made in this behalf under section 157, make such orders as to costs as he considers reasonable, and any such order shall be executable as a decree of a civil court:

Provided that the Registrar shall have no power to award costs to or against any party on an appeal to him against a refusal of the proprietor of a certification trade mark to certify goods or provision of services or to authorise the use of the mark;

(c) the Registrar may, on an application made in the prescribed manner, review his own decision.

Comments

This section provides that the Registrar shall have all the powers of a civil court, including award of reasonable costs, subject to rules to be made in this behalf, except that he will have no power to award costs to any party on an appeal over the refusal of the proprietor of a certification trade mark to certify the goods.

128. Exercise of discretionary power by Registrar.—

Subject to the provisions of section 131, the Registrar shall not exercise any discretionary or other power vested in him by this Act or the rules made thereunder adversely to a person applying for the exercise of that power without (if so required by that person within the prescribed time) giving to the person an opportunity of being heard.

129. Evidence before Registrar.-

In any proceeding under this Act before the Registrar, evidence shall be given by affidavit.

Provided that the Registrar may, if he thinks fit, take oral evidence in lieu of, or in addition to, such evidence by affidavit.

130. Death of party to a proceeding.—

If a person who is a party to a proceeding under this Act (not being a proceeding before the Appellate Board or a court) dies pending the proceeding, the Registrar may, on request, and on proof to his satisfaction of the transmission of the interest of the deceased person, substitute in the proceeding his successor in interest in his place, or, if the Registrar is of opinion that the interest of the deceased person is sufficiently represented by the surviving parties, permit the proceeding to continue without the substitution of his successor in interest.

Comments

This section provides that in case of death of a party to a proceeding during the course of the proceedings, the Registrar, on proof to his satisfaction may allow substitution of his successor or may allow the proceeding to continue with the surviving parties.

131. Extension of time.—

(1) If the Registrar is satisfied, on application made to him in the prescribed manner and accompanied by the prescribed fee, that there is sufficient cause for extending the time for doing any act (not being a time expressly provided in this Act), whether the time so specified has expired or not, he may, subject to such conditions as he may think fit to impose, extend the time and inform the parties accordingly.

(2) Nothing in sub-section (1) shall be deemed to require the Registrar to hear the parties before disposing of an application for extension of time, and no appeal shall lie from any order of the Registrar under this section.

132. Abandonment.—

Where, in the opinion of the Registrar, an applicant is in default in the prosecution of an application filed under this Act or any Act relating to trade marks in force prior to the commencement of this Act, the Registrar may, by notice require the applicant to remedy the default within a time specified and after giving him, if so, desired, an opportunity of being heard, treat the application as abandoned, unless the default is remedied within the time specified in the notice.

Comments

If the Registrar is of the opinion that the applicant has defaulted in the prosecution of his application, he may by a notice require him to remedy the default after giving him an opportunity to be heard. He may treat the application as abandoned unless the default is remedied within the time specified by him.

133. Preliminary advice by the Registrar as to distinctiveness.—

(1) The Registrar may, on application made to him in the prescribed manner by any person who proposes to apply for the registration of a trade mark, give advice as to whether the trade mark appears to him prima facie to be distinctive.

(2) If, on an application for the registration of a trade mark as to which the Registrar has given advice as aforesaid in the affirmative made within three months after the advice was given, the Registrar, after further investigation or consideration, gives notice to the applicant of objection on the ground that the trade mark is not distinctive, the applicant shall be entitled, on giving notice of withdrawal of the application within the prescribed period, to have repaid to him any fee paid on the filing of the application.

134. Suit for infringement, etc., to be instituted before District Court.—

(1) No suit—

(a) for the infringement of a registered trade mark; or

(b) relating to any right in a registered trade mark; or

(c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff’s trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.

(2) For the purpose of clauses (a) and (b) of sub-section (1), a “District Court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain.

Explanation.—For the purposes of sub-section (2), “person” includes the registered proprietor and the registered user.

Comments

This section stipulates that the forum for institution of infringement proceedings, etc., is the District Court. The term “District Court having jurisdiction” includes a District Court within the local limits of whose jurisdiction, the person, or one of the persons, instituting the suit or other proceedings, actually or voluntarily resides or carries on business or personally works for gain.

135. Relief in suits for infringement or for passing off.—

(1) The relief which a court may grant in any suit for infringement or for passing off referred to in section 134 includes injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure.

(2) The order of injunction under sub-section (1) may include an ex parte injunction or any interlocutory order for any of the following matters, namely:—

(a) for discovery of documents;

(b) preserving of infringing goods, documents or other evidence which are related to the subject-matter of the suit;

(c) restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff’s ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.

(3) Notwithstanding anything contained in sub-section (1), the court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case—

(a) where in a suit for infringement of a trade mark, the infringement complained of is in relation to a certification trade mark or collective mark; or

(b) where in a suit for infringement the defendant satisfies the court—

(i) that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on the register or that the plaintiff was a registered user using by way of permitted use; and

(ii) that when he became aware of the existence and nature of the plaintiff’s right in the trade mark, he forthwith ceased to use the trade mark in relation to goods or services in respect of which it was registered; or

(c) where in a suit for passing off, the defendant satisfies the court—

(i) that at the time he commenced to use the trade mark complained of in the suit he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was in use; and

(ii) that when he became aware of the existence and nature of the plaintiff’s trade mark he forthwith ceased to use the trade mark complained of.

Comments

This section provides that the court may grant an ex parte injunction and in particular orders intended to preserve evidence or documents relating to the subject matter of the suit so that the defendant is restrained from dealing with assets in a manner which would affect the plaintiff’s ability to recover damages or other pecuniary remedies after final orders.

136. Registered user to be impleaded in certain proceedings.—

(1) In every proceeding under Chapter VII or under section 91, every registered user of a trade mark using by way of permitted use, who is not himself an applicant in respect of any proceeding under that Chapter or section, shall be made a party to the proceeding.

(2) Notwithstanding anything contained in any other law, a registered user so made a party to the proceeding shall not be liable for any costs unless he enters an appearance and takes part in the proceeding.

137. Evidence of entries in register, etc., and things done by the Registrar.—

(1) A copy of any entry in the register or of any document referred to in sub-section (1) of section 148 purporting to be certified by the Registrar and sealed with the seal of the Trade Marks Registry shall be admitted in evidence in all courts and in all proceedings without further proof or production of the original.

(2) A certificate purporting to be under the hand of the Registrar as to any entry, matter or thing that he is authorised by this Act or the rules to make or do shall be prima facie evidence of the entry having been made, and of the contents thereof, or of the matter or things having been done or not done.

Comments

This section provides that certificate issued by the Registrar shall be prima facie evidence in all proceedings without further proof or production of the original.

138. Registrar and other officers not compellable to produce register, etc.—

The Registrar or any officer of the Trade Marks Registry shall not, in any legal proceedings to which he is not a party, be compellable to produce the register or any other document in his custody, the contents of which can be proved by the production of a certified copy issued under this Act or to appear as a witness to prove the matters therein recorded unless by order of the court made for special cause.

139. Power to require goods to show indication of origin.—

(1) The Central Government may, by notification in the Official Gazette. require that goods of any class specified in the notification which are made or produced beyond the limits of India and imported into India, or, which are made or produced within the limits of India, shall, from such date as may be appointed by the notification not being less than three months from its issue, have applied to them an indication of the country or place in which they were made or produced, or of the name and address of the manufacturer or the person for whom the goods were manufactured.

(2) The notification may specify the manner in which such indication shall be applied that is to say, whether to goods themselves or in any other manner, and the times or occasions on which the presence of the indication shall be necessary, that is to say, whether on importation only, or also at the time of sale, whether by wholesale or retail or both.

(3) No notification under this section shall be issued, unless application is made for its issue by persons or associations substantially representing the interests of dealers in, or manufacturers, producers, or users of, the goods concerned, or unless the Central Government is otherwise convinced that it is necessary in the public interest to issue the notification, with or without such inquiry, as the Central Government may consider necessary.

(4) The provisions of section 23 of the General Clauses Act, 1897 (10 of 1897) shall apply to the issue of a notification under this section as they apply to the making of a rule or bye-law the making of which is subject to the condition of previous publication.

(5) A notification under this section shall not apply to goods made or produced beyond the limits of India and imported into India, if in respect of those goods, the Commissioner of Customs is satisfied at the time of importation that they are intended for exportation whether after transhipment in or transit through India or otherwise.

140. Power to require information of imported goods bearing false trade marks.—

(1) The proprietor or a licensee of a registered trade mark may give notice in writing to the Collector of Customs to prohibit the importation of any goods if the import of the said goods constitute infringement under clause (c) of sub-section (6) of section 29.

(2) Where goods, which are prohibited to be imported into India by notification of the Central Government under clause (n) of sub-section (2) of section 11 of the Customs Act, 1962 (52 of 1962), for the protection of trade marks, and are liable to confiscation on importation under that Act, are imported into India, the Commissioner of Customs if, upon representation made to him, he has reason to believe that the trade mark complained of is used as a false trade mark, may require the importer of the goods, or his agent, to produce any documents in his possession relating to the goods and to furnish information as to the name and address of the person by whom the goods were consigned to India and the name and address of the person to whom the goods were sent in India.

(3) The importer or his agent shall, within fourteen days, comply with the requirement as aforesaid, and if he fails to do so, he shall be punishable with fine which may extend to five hundred rupees.

(4) Any information obtained from the importer of the goods or his agent under this section may be communicated by the Commissioner of Customs to the registered proprietor or registered user of the trade mark which is alleged to have been used as a false trade mark.

141. Certificate of validity.—

If in any legal proceeding for rectification of the register before the Appellate Board a decision is on contest given in favour of the registered proprietor of the trade mark on the issue as to the validity of the registration of the trade mark, the Appellate Board may grant a certificate to that effect, and if such a certificate is granted, then, in any subsequent legal proceeding in which the said validity comes into question the said proprietor on obtaining a final order or judgment in his favour affirming validity of the registration of the trade mark shall, unless the said final order or judgment for sufficient reason directs otherwise, be entitled to his full cost charges and expenses as between legal practitioner and client.

Comments

This section provides that where in any legal proceeding for rectification of Register a decision is given in favour of the registered proprietor the Appellate Board can grant a certificate of validity.

142. Groundless threats of legal proceedings.—

(1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding for infringement of a trade mark which is registered, or alleged by the first-mentioned person to be registered, or with some other like proceeding, a person aggrieved may, whether the person making the threats is or is not the registered proprietor or the registered user of the trade mark, bring a suit against the first-mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats and may recover such damages (if any) as he has sustained, unless the first-mentioned person satisfies the court that the trade mark is registered and that the acts in respect of which the proceedings were threatened, constitute, or, if done, would constitute, an infringement of the trade mark.

(2) The last preceding sub-section does not apply if the registered proprietor of the trade mark, or a registered user acting in pursuance of sub-section (1) of section 52 with due diligence commences and prosecutes an action against the person threatened for infringement of the trade mark.

(3) Nothing in this section shall render a legal practitioner or a registered trade marks agent liable to an action under this section in respect of an act done by him in his professional capacity on behalf of a client.

(4) A suit under sub-section (1) shall not be instituted in any court inferior to a District Court.

Comments

This section protects the person against groundless threats of infringement by giving him an opportunity to bring a suit against the person making such threats and obtain a declaration that the threats are unjustifiable and an injunction against the continuance of the threats and recovery of damages.

143. Address for service.—

An address for service stated in an application or notice of opposition shall for the purposes of the application or notice of opposition be deemed to be the address of the applicant or opponent, as the case may be, and all documents in relation to the application or notice of opposition may be served by leaving them at or sending them by post to the address for service of the applicant or opponent, as the case may be.

144. Trade usages, etc., to be taken into consideration.—

In any proceeding relating to a trade mark, the tribunal shall admit evidence of the usages of the trade concerned and of any relevant trade mark or trade name or get up legitimately used by other persons.

145. Agents.—

Where, by or under this Act, any act, other than the making of an affidavit, is required to be done before the Registrar by any person, the act may, subject to the rules made in this behalf, be done instead of by that person himself, by a person duly authorised in the prescribed manner, who is—

(a) a legal practitioner, or

(b) a person registered in the prescribed manner as a trade marks agent, or

(c) a person in the sole and regular employment of the principal.

Comments

This section provides that if any act is required to be done before the Registrar by any person, this may be done by him or by a legal practitioner, a trade marks agent or by his employee if he is duly authorised by him.

146. Marks registered by an agent or representative without authority.—

If an agent or a representative of the proprietor of a registered trade mark, without authority uses or attempts to register or registers the mark in his own name, the proprietor shall be entitled to oppose the registration applied for or secure its cancellation or rectification of the register so as to bring him as the registered proprietor of the said mark by assignment in his favour:

Provided that such action shall be taken within three years of the registered proprietor of the trade mark becoming aware of the conduct of the agent or representative.

Comments

This section protects the rights of the proprietor of a trade mark. If his agent or representative attempts to register or registers the mark in his own name, without authority, the proprietor is entitled to oppose the application or to apply for rectification so as to bring him as the registered proprietor. The time within which such action has to be taken is three years from the date he is aware of the conduct of the agent.

147. Indexes.—

There shall be kept under the direction and supervision of the Registrar—

(a) an index of registered trade marks,

(b) an index of trade marks in respect of which applications for registration are pending,

(c) an index of the names of the proprietors of registered trade marks, and

(d) an index of the names of registered users.

Comments

This section provides for keeping different indexes at the trade marks registry, viz., indexes of registered and pending trade marks, registered proprietors’ index and index of registered users.

148. Documents open to public inspection.—

(1) Save as otherwise provided in sub-section (4) of section 49,—

(a) the register and any document upon which any entry in the register is based;

(b) every notice of opposition to the registration of a trade mark application for rectification before the Registrar, counter-statement thereto, and any affidavit or document filed by the parties in any proceedings before the Registrar;

(c) all regulations deposited under section 63 or section 74, and all applications under section 66 or section 77 for varying such regulations;

(d) the indexes mentioned in section 147; and

(e) such other documents as the Central Government may, by notification in the Official Gazette, specify, shall, subject to such conditions as may be prescribed, be open to public inspection at the Trade Marks Registry:

Provided that when such register is maintained wholly or partly on computer, the inspection of such register under this section shall be made by inspecting the computer print-out of the relevant entry in the register so maintained on computer.

(2) Any person may, on an application to the Registrar and on payment of such fees as may be prescribed, obtain a certified copy of any entry in the register or any document referred to in sub-section (1).

149. Reports of Registrar to be placed before Parliament.—

The Central Government shall cause to be placed before both Houses of Parliament once a year a report respecting the execution by or under the Registrar of this Act.

150. Fees and surcharge.—

(1) There shall be paid in respect of applications and registration and other matters under this Act such fees and surcharge as may be prescribed by the Central Government.

(2) Where a fee is payable in respect of the doing of an act by the Registrar, the Registrar shall not do that act until the fee has been paid.

(3) Where a fee is payable in respect of the filing of a document at the Trade Marks Registry, the document shall be deemed not to have been filed at the registry until the fee has been paid.

151. Savings in respect of certain matters in Chapter XII.—

Nothing in Chapter XII shall—

(a) exempt any person from any suit or other proceeding which might, but for anything in that Chapter, be brought against him; or

(b) entitle any person to refuse to make a complete discovery, or to answer any question or interrogatory in any suit or other proceeding, but such discovery or answer shall not be admissible in evidence against such person in any such prosecution for an offence under that Chapter or against clause (h) of section 112 of the Customs Act, 1962 (52 of 1962), relating to confiscation of goods under clause (d) of section 111 of that Act and notified by the Central Government under clause (n) of sub-section (2) of section 11 thereof for the protection of trade marks relating to import of goods; or

(c) be construed so as to render liable to any prosecution or punishment any servant of a master resident in India who in good faith acts in obedience to the instructions of such master, and, on demand made by or on behalf of the prosecutor, has given full information as to his master and as to the instructions which he has received from his master.

152. Declaration as to ownership of trade mark not registrable under the Registration Act, 1908.—

Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no document declaring or purporting to declare the ownership or title of a person to a trade mark other than a registered trade mark shall be registered under that Act.

153. Government to be bound.—

The provisions of this Act shall be binding on the Government.

154. Special provisions relating to applications for registration from citizens of convention countries.—

(1) With a view to the fulfilment of a treaty, convention or arrangement with any country or country which is a member of a group of countries or union of countries or Inter-Governmental Organisation outside India which affords to citizens of India similar privileges as granted to its own citizens, the Central Government may, by notification in the Official Gazette, declare such country or group of countries or union of countries or Inter-Governmental Organisation to be a convention country or group of countries or union of countries, or Inter-Governmental Organisations as the case may be, for the purposes of this Act.

(2) Where a person has made an application for the registration of a trade mark in a convention country or country which is a member of a group of countries or union of countries or Inter-Governmental Organisation and that person, or his legal representative or assignee, makes an application for the registration of the trade mark in India within six months after the date on which the application was made in the convention country or country which is a member of a group of countries or union of countries or Inter-Governmental Organisations the trade mark shall, if registered under this Act, be registered as of the date on which the application was made in the convention country or country which is a member of a group of countries or union of countries or Inter-Governmental organisations and that date shall be deemed for the purposes of this Act to be the date of registration.

(3) Where applications have been made for the registration of a trade mark in two or more convention countries or country which are members of group of countries or union of countries or Inter-Governmental Organisation the period of six months referred to in the last preceding sub-section shall be reckoned from the date on which the earlier or earliest of those applications was made.

(4) Nothing in this Act shall entitle the proprietor of a trade mark to recover damages for infringement which took place prior to the date of application for registration under this Act.

155. Provision as to reciprocity.—-

Where any country or country which is a member of a group of countries or union of countries or Inter-Governmental Organisation specified by the Central Government in this behalf by notification in the Official Gazette does not accord to citizens of India the same rights in respect of the registration and protection of trade marks as it accords to its own nationals, no national of such country or country which is a member of a group of countries or union of countries or Inter-Governmental Organisation, as the case may be, shall be entitled, either solely or jointly with any other person,—

(a) to apply for the registration of, or be registered as the proprietor of, a trade mark;

(b) to be registered as the assignee of the proprietor of a registered trade mark; or

(c) to apply for registration or be registered as a registered user of a trade mark under section 49.

Comments

This section contains provisions as to reciprocity. If any country or country which is a member of a group of countries or union of countries or Inter-Governmental Organisation does not accord to citizens of India the same rights as to registration and protection of trade marks as it accords to its own nationals, no national of that country or country which is a member of a group of countries or union of countries or Inter-Governmental Organisations, as the case may be, is entitled to apply for registration of a trade mark, to apply for registration as a registered user of trade mark or to be registered as the assignee of the registered proprietor of a trade mark in India.

156. Power of Central Government to remove difficulties.—

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty:

Provided that no order shall be made under this section after the expiry of five years from the commencement of this Act.

(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.

157. Power to make rules.—

(1) The Central Government may, by notification in the Official Gazette and subject to the conditions of previous publication, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—

(i) the matters to be included in the Register of Trade Marks under sub-section (1) of section 6, and the safeguards to be observed in the maintenance of records on computer floppies or diskettes or in any other electronic form under sub-section (2) of that section;

(ii) the manner of publication of alphabetical index of classification of goods and services under sub-section (1) of section 8;

(iii) the manner in which the Registrar may notify a word as an international non-proprietary name under section 13:

(iv) the manner of making an application for dissolution of an association under sub-section (5) of section 16;

(v) the manner of making an application for registration of a trade mark under sub-section (1) of section 18;

(vi) the manner of advertising of an application for registration under sub-section (1), and the manner of notifying corrections or amendments under sub-section (2), of section 20;

(vii) the manner of making an application and the fee payable for such application giving notice under sub-section (1) and sending counter-statements under sub-section (2) and submission of evidence and the time therefor under sub-section (4) of section 21;

(viii) the form of certificate of registration under sub-section (2), and the manner of giving notice to the applicant under sub-section (3) of section 23;

(ix) the forms of application for renewal and restoration the time within which such application is to be made and fee and surcharge if any payable with each application, under section 25 and the time within which the Registrar shall send a notice and the manner of such notice under sub-section (3) of that section;

(x) the manner of submitting statement of cases under sub-section (2) of section 40;

(xi) the manner of making an application by the proprietor of a trade mark under section 4l;

(xii) the manner of making an application for assignment or transmission of a certification trade mark under section 43;

(xiii) the manner of making an application to the Registrar to register title under sub-section (1) of section 45;

(xiv) the manner in which and the period within which an application is to be made under sub-section (4) of section 46;

(xv) the manner of marking an application under sub-section (2) of section 47;

(xvi) the manner of making an application, documents and other evidence to accompany such application under sub-section (1) and the manner in which notice is to be issued under sub-section (3) of section 49;

(xvii) the manner of making an application under sub-section (1), the manner of issuing a notice under sub-section (2) and the procedure for cancelling a registration under sub-section (3) of section 50;

(xviii) the manner of making applications under sub-sections (1) and (2), the manner of giving notice under sub-section (4) and the manner of service of notice of rectification under sub-section (5) of section 57;

(xix) the manner of making an application under section 58;

(xx) the manner of making an application under sub-section (1), the manner of advertising an application, time and manner of notice by which application may be opposed under sub-sections (2) and (3) of section 59;

(xxi) the manner of advertisement under sub-section (2) of section 60;

(xxii) the other matters to be specified in the regulations under sub-section (2) of section 63;

(xxiii) the manner of making an application under sub-section (1) of section 71;

(xxiv) the manner of advertising an application under section 73;

(xxv) the manner of making an application under section 77;

(xxvi) the classes of goods under section 79;

(xxvii) the conditions and restrictions under sub-section (2) of section 80;

(xxviii) determination of character of textile goods by sampling under section 82;

(xxix) the salaries and allowances payable to and the other terms and conditions of service of the Chairman, Vice-Chairman and other Members under sub-section (1) of section 88;

(xxx) the procedure for investigation of misbehaviour or incapacity of the Chairman, Vice-Chairman and other members under sub-section (3) of section 89;

(xxxi) the salaries and allowances and other conditions of service of the officers and other employees of the Appellate Board under sub-section (2) and the manner in which the officers and other employees of the Appellate Board shall discharge their functions under sub-section (3) of section 90;

(xxxii) the form of making an appeal, the manner of verification and the fee payable under sub-section (3) of section 91;

(xxxiii) the form in which and the particulars to be included in the application to the Appellate Board under sub-section (1) of section 97;

(xxxiv) the manner of making an application for review under clause (c) of section 127;

(xxxv) the time within which an application is to be made to the Registrar for exercising his discretionary power under section 128;

(xxxvi) the manner of making an application and the fee payable therefor under sub-section (1) of section 131;

(xxxvii) the manner of making an application under sub-section (1) and the period for withdrawal of such application under sub-section (2) of section 133;

(xxxviii) the manner of authorising any person to act and the manner of registration as a trade mark agent under section 145;

(xxxix) the conditions for inspection of documents under sub-section (1) and the fee payable for obtaining a certified copy of any entry in the register under sub-section (2) of section 148;

(xl) the fees and surcharge payable for making applications and registration and other matters under section 150;

(xli) any other matter which is required to be or may be prescribed.

(3) The power to make rules conferred by this section shall include the power to give retrospective effect in respect of the matters referred to in clauses (xxix) and (xxxi) of sub-section (2) from a date not earlier than the date of commencement of this Act, but no retrospective effect shall be given to any such rule so as to prejudicially affect the interests of any person to whom sub-rule may be applicable.

(4) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

158. Amendments.—

The enactment specified in the Schedule shall be amended in the manner specified therein.

159. Repeal and savings.—

(1) The Trade and Merchandise Marks Act, 1958 (43 of 1958) is hereby repealed.

(2) Without prejudice to the provisions contained in the General Clauses Act, 1897 (10 of 1897), with respect to repeals, any notification, rule, order, requirement, registration, certificate, notice, decision, determination, direction, approval, authorisation, consent, application, request or thing made, issued, given or done under the Trade and Merchandise Marks Act, 1958 (43 of 1958) shall, if in force at the commencement of this Act, continue to be in force and have effect as if made, issued, given or done under the corresponding provisions of this Act.

(3) The provisions of this Act shall apply to any application for registration of a trade mark pending at the commencement of this Act and to any proceedings consequent thereon and to any registration granted in pursuance thereof.

(4) Subject to the provisions of section 100 and notwithstanding anything contained in any other provision of this Act, any legal proceeding pending in any court at the commencement of this Act may be continued in that court as if this Act had not been passed.

(5) Notwithstanding anything contained in this Act, where a particular use of a registered trade mark is not an infringement of a trade mark registered before the commencement of this Act, then, the continued use of that mark shall not be an infringement under this Act.

(6) Notwithstanding anything contained in sub-section (2), the date of expiration of registration of a trade mark registered before the commencement of this Act shall be the date immediately after the period of seven years for which it was registered or renewed:

Provided that the registration of a defensive trade mark referred to in section 47 of the Trade and Merchandise Marks Act, 1958 (43 of 1958), shall cease to have effect on the date immediately after the expiry of five years of such commencement or after the expiry of the period for which it was registered or renewed, whichever is earlier.

THE SCHEDULE

(See section 158) Amendments

Year

Act No.

Short title

Amendment

1

2

3

4

1956

1

The Companies

Act, 1956

(1) In section 20, for sub-section (2), the following sub sections shall Act, 1956 be substituted, namely:-

(2) Without prejudice to the generality of the foregoing power, a name which is identical with, or too nearly resembles,-

(i) the name by which a company in existence has been previously registered, or

(ii) a registered trade mark, or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999.

May be deemed to be undesirable by the Central Government within the meaningof sub-section (1).

(3) The Central Government may, before deeming a name as undesirable under clause (ii) of sub section (2), consult and Registrar of Trade Marks.

(II) In section 22, in sub-section (1),

(i) for the portion beginning with “if, through” and ending with “the fist’ mentioned company” the following shall be substituted, namely:-

“If, through inadvertence or otherwise, a company on its first registration or on its registration by a new name, is registered by a name which,-

(i) in the opinion of the Central Government, is identical with, or too nearly resembles, the name by which a company in existence has been previously registered, whether under this Act or any previous companies law, the first mentioned company, or

(ii) on an application by a registered proprietor of a trade mark, is in the opinion of the Central Government identical with, or too nearly resembles, a registered trade mark of such proprietor under the Trade Marks Act, 1999 such company-

(ii) the following proviso shall be added, namely :-

“Provided that no application under clause (ii) made by a registered proprietor of a trade mark after five years of coming to notice of registration of the company shall be considered by the Central Government”.

The Designs Rules, 2001

Preliminary

MINISTRY OF COMMERCE & INDUSTRY

(DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION)

NOTIFICATION

New Delhi, Dated: The 11thMay, 2001

S.O. 414 (E)……….. In exercise of the powers conferred by sub-section (3) of section 1 of the Design Act, 2000 (16 of 2000), the Central Government hereby appoints the 11thday of May, 2001 as the date on which the said Act shall come into force.

S.O.(E)………… whereas a draft of Design Rules was published as required by sub-section (3) of section 47 of the Design Act, 2000 (16 of 2000), by the notification of the Government of India, Ministry of Commerce and Industry No.S.O.1069 (E) dated 29thNovember, 2000 at pages 56 to 115 of the Gazette of India, Extraordinary, Part II, section 3, sub-section (ii) dated the 29thNovember, 2000;

And whereas, objections and suggestions were invited till the 4thJanuary, 2001 from all persons likely to be affected thereby;

And whereas, the draft of the Design Rules was made available to the public on the 4thDecember, 2000 through the said Gazette dated November 29, 2000;

And whereas, the objections and suggestions received from the public with respect to the said draft Rules have been considered by the Central Government;

Now, therefore, in exercise of the powers conferred by section 47 of the Design Act, 2000 (16 of 2000), the Central Government hereby makes the following rules, namely:-

Section 1. Short title and commencement

(1) These rules may be called the Designs Rules, 2001.
(2) They shall come into force on the date of their publication in the Official Gazette.

Section 2. Definitions

In these rules, unless there is anything repugnant in the subject or context,-

(a) “Act” means the Designs Act, 2000

(b) “Application in United Kingdom or convention country or group of countries or intergovernmental organisation” means an application made by any person in any part of United Kingdom or convention country or group of countries or inter-governmental organisation, of a design for the protection in India under the provisions of section 44 of the Act.

(c) “Office” means the Patent Office referred to in section 74 of the Patent Act, 1970 (39 of 1970)

(d) “Reciprocity Application” means an application in India under section 44 of the Act.

(e) “Set” means a number of articles of the same general character ordinarily sold together or intended to be used together, all bearing the same design, with or without modification not sufficient to alter the character or substantially to affect the identity thereof.

Section 3. Leaving and serving documents

(1)Any application, notice or other document authorised or required to be filed, left, made or given at the Office, or to the Controller or to any other person under the Act or these rules, may be sent by hand or by a prepaid letter through the post or registered post or speed post or courier service, and, if sent by a prepaid letter or registered post or speed post or courier service, shall be deemed to have been filed, left, made or given at the time when the letter containing the same would be delivered in the ordinary course of mail ,and in proving such sending, it shall be sufficient to prove that the letter was properly addressed and mailed. If the documents sent through tele-fax/e-mail, are clear and fully legible, they shall also be accepted provided that original documents corresponding to the one sent by tele-fax/e-mail is submitted to the office within fifteen days from the date of receipt of the documents so faxed/e-mailed.

(2) Any written communication addressed to a registered proprietor of a design at his address as it appears on the Register of Designs, or at his address for service, or to any applicant or opponent in any proceedings under the Act or these rules, at the address appearing on the application or notice of opposition, or given for service, as hereinafter provided, shall be deemed to be properly addressed.

(3) Any application for registration of design, application for extension of copyright, petition for cancellation of registration of design and application for rectification of Register of Design along with the prescribed fees authorized or required may be filed, left, made or given to the branch offices also by the applicant.

(4) The branch offices shall transmit such applications or documents along with the fees to the Head Office of the Patent Office for processing and prosecuting the same.

Section 4. Address for Service

Every applicant or opponent in any proceeding under the Act or these rules, and every person who shall hereafter become a registered proprietor of a design, shall give an address for service in India and such address may be treated, for all purpose connected with the design as the actual address of such applicant, opponent, registered proprietor. Unless such an address is given, the Controller shall be under no obligation either to proceed with the application or the opposition, or to send any notice that may be required by the Act or rules framed there under:

Provided that such address for service may include e-mail or digital address of the agent/applicant.

Section 5. Fees

(1) The fees to be paid in respect of the registration of designs, and application therefor, and in respect of other matters, with relation to Designs Act and rules framed there under, shall be those as specified in the First Schedule of the rules.

(2) (a) Fees may be paid in cash at the office, or the same may be paid by Cheque or Demand Draft on a scheduled bank payable to the Controller at Calcutta and if sent through the post or registered post or speed post or courier service shall be deemed to have been paid at the time when properly addressed and prepaid letter containing the cheque would be delivered in the ordinary course of mail.

(b) Cheques or Demand Drafts not carrying the correct amount of commission, and cheques or demand drafts on which the full value specified therein cannot be collected in cash within the time allowed for payment of the fee, shall be accepted only at the discretion of the Controller.

(c) Stamps and Indian postal order shall not be accepted in payment of fees.

(d) Subject to the approval of the competent authority any applicant or an agent may deposit money in advance once in a financial year and request the Controller to realise any fee payable by him from the said deposit and in such case date of the receipt of the request to realise the fee or the date on which the request to realise the fee is deemed to have been received, which ever is earlier, shall be taken as date of payment of fee:

Provided that the requisite amount of money is available at the credit of the person making the request.

Section 6. Forms

(1) The forms set forth in the Second Schedule, with such variations, as the circumstances of each case require, shall be used for the purposes mentioned therein.

(2) When no form is so specified for any purpose, the applicant may adopt any form specified in the Second Schedule with such modification and variation as the controller may permit.

THE SECOND SCHEDULE

(See rule 6)

List of forms

Form No. Section or Rule Title
1 Sections 5 and 44 Application for registration of design/Application under reciprocal arrangement.
2 Section 8(1) Claim to proceed as an applicant or joint applicant.
3 Section 11(2) Application for Extension of copyright.
4 Section 12(2) Application for Restoration of lapsed design
5 Section 17(1) Inspection of registered design
6 Section 18 Request for information when registration number is given.
7 Section 18 Request for information when registration number is not given.
8 Section 19 Petition to cancel registration of design.
9 Section 21 Notice of intended exhibition or publication of unregistered design.
10 Section 30(3) Application for registration of a document in the Register Design.
11 Section 30 Application for entry of name of proprietor or part proprietor in the Register
12 Section 30 Application for entry of mortgage or licence in the Register.
13 Section 30 and rule 37 Application for entry of notification of a document in the Register.
14 Section 29 Request for correction of clerical error.
15 Section 26 and rule 41 Request for certificate.
16 Section 17(2) Application for certified copy of registered design.
17 Section 31 Application for rectification of Register.
18 rule 15 Application for extension of time for filing priority document.
19 rule 40 Notice of opposition.
20 rules 29 and 40 Notice of intention to attend hearing.
21 Section 43 Power of authority to agents.
22 rule 31 Request to alter name or address or address for service in Register
23 Section 10 Request for entries of two addresses in theRegister

Section 7. Size, etc., of documents

(1) All documents and copies of documents except drawings or representation, sent to or filed, left at the Office or otherwise furnished to the Controller shall be written, typewritten, lithographed, or printed in the English/Hindi language (unless otherwise directed), in large and legible character with deep permanent ink upon one side only of strong white paper of A4 size with a margin of at least one inch and a half or four centimeters on the left hand part thereof. Signatures thereto shall be written in a large and legible hand and any signature which is not legible or
which is written in a script other than English shall be accompanied by a transcription of the name in English in block letters.

(2) Additional copies of documents shall be filed at the Office, if at any time required by the Controller.

(3) Names and addresses of applicants and other persons shall be given in full together with their nationality and such other particulars, if any, as are necessary for identification.

Section 8. Signature and verification of documents specified in sections 5, 12, 19 and 37

The documents specified in sections 5,12,19 and 37 of the Act shall be dated and signed at the foot, and shall contain a statement that the facts and matters stated therein are true to the best of the knowledge, information and belief of the person signing them.

Section 9. Agency

For all matters falling under the provisions of section 43 of the Act, applicant may, unless otherwise directed by the Controller, authorize under his personal signature, any person specified in section 43 to act as his agent and to receive all notices, requisitions and communications. The authority may be given in Form- 21.

Section 10. Classification of Goods

(1) For the purposes of the registration of designs and of these rules, article shall be classified as specified in the Third Schedule hereto.

(2) If any doubt arises as to the class to which any particular description of article belongs, it shall be determined by the Controller in consultation with the applicant wherever required.

Application for Registration

Section 11. Application

(1) An application under section 5 of the Act for the registration of a design shall be accompanied by four copies of the representation of the design and the application and each of copy of the representation of the design shall be dated and signed by the applicant or his agent.

(2) The application shall state the class in which the design is to be registered, and the article or articles to which the design is to be applied.

(3) If it is desired to register the same design in more than one class of article, a separate application shall be made in each class of article and the application shall contain the number or numbers of the registration or registrations already effected.

(4) If so required by the Controller, the applicant shall state purpose for which the article is used.

Section 12. Statement of novelty

The applicant may, and shall, if required by the Controller in any case so to do, endorse on the application and each of the representation a brief statement of the novelty he claims for his design.

Section 13. Additional copies of representation or specimens

If the controller in any case so requires, the applicant shall supply one or more representations or specimens of the design in addition to those supplied with the application.

Section 14. Representation

(1)The four copies of the design required by rule 11 shall be exactly similar
drawings, photographs, tracings or other representations of the design or shall be specimens of the design.

(2) When a design is to be applied to a set, each representation accompanying the application shall show all the various arrangements in which it is proposed to apply the design to the articles included in the set.

(3) Each representation of the design whether to be applied to a single article or to a set, shall be on durable paper of A4 size (and not on cardboard) and shall appear on one side only of the paper. The figure or figures shall be placed in an upright position on the sheet. When more figures than one are shown, these shall , where possible, be on one and the same sheet, and each shall be designated (e.g. perspective view; front view, side view).

(4) When a design is to be applied to a set, any doubt whether the given articles do or do not constitute a set shall be determined by the controller.

(5) If the specimens are not, in the opinion of the Controller, suitable for record in the office they shall be replaced by representations.

(6) Where words, letters or numerals are not of the essence of the design, they shall be removed from the representations or specimens; where they are of the essence of the design, the Controller may require the insertion of a disclaimer of any right to their exclusive use.

(7) Each representation of a design, which consists of a repeating surface pattern, shall show the complete pattern and a sufficient portion of the repeat in length and width, and shall not be of less size than 5 by 4 inches or 13.00 centimeters by 10.00 centimeters.

(8) If the name or representations of living persons appear on a design the Controller shall, if he so requires, be furnished with consents from such persons before proceeding to register the design. In the case of deceased person, the Controller may call for consent from the legal representative before proceeding with registration of the design on which the names or representations appear.

Section 15. Reciprocity application for the registration of a design

(1) Every reciprocity application for the registration of a design shall contain a statement that an application in United Kingdom or convention country or group of countries or inter-governmental organisation has been made for the protection of the design to which such reciprocity application relates and shall specify convention country or group of countries or inter-governmental organisation in which any such application has been made and the official date or dates thereof respectively. The application shall be made within six months from the date of the first application in United Kingdom or convention country or group of countries or inter-governmental organisation by the person by whom such application in United Kingdom or convention country or group of countries or inter-governmental organisation was made, or by the legal representative or assignee of the person either alone or jointly with any other person.

(2) In addition to the four copies of the representations of the design filed or left with every reciprocity application for the registration of a design, a copy of the design filed or deposited by the applicant or his predecessor in title as the case may be, in respect of the first application in United Kingdom or convention country or group of countries or inter-governmental organization, duly certified by the Official Chief or Head of the organization in which it was filed, or deposited or otherwise verified to the satisfaction of the Controller, shall be filed or left at the office at the same time as the reciprocity application or within such further time not exceeding three months as the Controller may allow.

(3) Save as aforesaid and as provided by rule 30 all proceedings in connection with a reciprocity application shall be taken within the time and in the manner required by the Act or prescribed by these rules for ordinary application.

Section 16. Manner in which a claim under sub-section (1) of section 8(1) shall be made

(1) A claim under sub-section (1) of section 8 shall be made in Form-2.

(2) The original assignment or agreement or other document affecting right,title or interest in the application or an official or notarially certified copy thereof shall also be furnished for the Controller’s inspection and the Controller may call for such other proof of title or written consent as he may require.

Section 17. Acceptance

Upon receipt of an application for registration, the Controller may accept it,if he considers that there is no lawful objection in the report of examiner to the design being registered.

Section 18. Objections

(1) If on consideration of the report of the examiner on the application referred under sub-section (1) of section 5, any objection appear to the Controller is adverse to the applicant or requires any amendment of the application, a statement of such objections shall be sent to the applicant or his agent in writing, and unless within three months from the date of official
communication of objection the applicant or his agent removes the objection or applies for hearing, the applicant shall be deemed to have withdrawn his application:

Provided that the period for removal of the objection shall not exceed the time period of six months from the date of filing of the application.

(2) If the applicant or his agent applies for a hearing under sub-rule (1) within a period of three month from the date of communication of the statement of objections or if the Controller considers it desirable to do so, whether or not the applicant has refiled his application, fix a date for hearing having regard to the time remaining for completion of the application as provided under rule 21.

(3) When a hearing has been fixed under sub-rule (2) the applicant shall be given at least 10 days notice of such fixation or such shorter notice as appear to the Controller to be reasonable in the circumstances of the case and applicant shall as soon as possible notify the Controller whether he shall attend the hearing.

(4) Hearing, as required under sub-rules (1), (2) and (3) may be allowed whenever possible on phone followed by detailed submission on tele-fax/e-mail.

(5) After hearing the applicant or without a hearing if the applicant has not attended or has notified that he does not desire to be heard, the Controller may register or refuse to register the design as he thinks fit.

Section 19. Decision of Controller

The decision of the Controller containing the grounds and materials used by him in arriving the decision at such hearing as aforesaid shall be communicated in writing to the applicant or his agent.

Section 20. Date for appeal

The date on which the decision of the Controller is dispatched shall be deemed to be the date of the Controller’s decision for the purpose of appeal.

Section 21. Non-completion within six months

An application which owing to any neglect or default of the applicant, has not been completed so as to enable registration to be effected within six months from the date of application, shall be deemed to be abandoned.

Section 22. Publication of the particulars of registered design under section 7

On acceptance of the design filed in respect of an application, the Controller shall direct the registration and publication of the particulars of the application and the representation of the article to which the design has been applied, in the Official Gazette. When publishing in the Gazette, the Controller may select one or more views of the representation of the design, which, in his opinion, would depict the design best.

Section 23. Manner of making an application under sub-section (2) of section 11

An application under subsection (2) of section 11 shall be made in Form -3.

Section 24. Restoration of Designs

(1)An application for the restoration of a design under section 12 shall be made in Form – 4.

(2) Upon consideration of the application and the evidence adduced by the proprietor of the design, if any, if the Controller is satisfied that a prime facie case for the restoration of the design has not been made out he shall intimate the proprietor of the design accordingly, and unless within one month from the date of such intimation the proprietor requests to be heard in the matter, the Controller shall refuse the application.

(3) If the registered proprietor requests for hearing within the time allowed and the Controller after giving the register proprietor such a hearing, is prima facie satisfied that the failure to pay the fee for extension of copy right was unintentional, he shall allow the application for restoration.

Section 25. Payment of unpaid extension fee

(1) If the Controller decides in favour of the registered proprietor of the design, the proprietor shall pay the unpaid fees for the extension of copyright and additional fee specified in the First Schedule, within a month from the date of the order of the Controller allowing the proprietor for restoration of the deisign.

(2) The Controller shall advertise in the Official Gazette his decision on the application for restoration.

Marking of Articles

Section 26. Marking of articles before delivery on sale

Before delivery on sale of any article to which a registered design has been applied, the proprietor of such design shall cause each such article to be marked with the word REGISTERED or with the abbreviation REGD., or with the abbreviation RD, as he may choose, and also (except in the case of articles made of soft or brittle in nature to which have been applied designs registered in different classes of articles) with the number appearing on the certificate of registration:

Provided that the requirements of this rule and clause (b) of sub-section (1) of section 15 of the Act shall be dispensed with as regards-

(i) textile goods in which the design is printed or woven, other than handkerchiefs; and

(ii) articles made of charcoal dust, which are brittle and which are not sold in single pieces.

Inspections and Searches

Section 27. Inspection of designs

Registered designs shall be open to public inspection after the notification of the said design in Official Gazette and the application together with representation of the design may be inspected on a request made in Form – 5.

Section 28. Search under section 18

(1) Request for information as specified in section 18 of the Act may be made by any person in Form 6 with the fee as specified in the Schedule of fees and shall contain the registration number of the design for which information is required.

(2) If the applicant is unable to furnish the registration number of the design, he shall lodge with the Controller, in Form 7 together with such information as is in his possession, and the Controller shall thereupon cause search to be made in the class indicated therein as much as be possible on the information supplied, and shall furnish such information as may be obtainable. Where Form 7 is accompanied by a representation or specimen of the design, such representation or specimen shall be furnished in duplicate.

Cancellation

Section 29. Cancellation of registration of designs under section 19

(1) A petition to the Controller for the cancellation of the registration of a design shall be made in duplicate in Form – 8 and shall be accompanied by a statement in duplicate setting out the nature of the applicant’s interest and the facts upon which he bases his application.

(2) If the petition for the cancellation of the registration of a design is made by person who is not the registered proprietor, a copy of the petition along with the statement shall be transmitted by the Controller to the registered proprietor.

(3) If the registered proprietor intends to oppose the application he shall within a time to be specified by the Controller, leave at the office a counter statement setting out the grounds on which he intends to oppose the application and shall, within the same time, deliver to the applicant a copy of the counter-statement.

(4) The applicant may, after delivery to him of the copy of the registered proprietor’s counterstatement, leave at the office, evidence by way of affidavits in support of his case and shall also deliver to the registered proprietor a copy thereof.

(5) The registered proprietor may, after delivery to him of the applicant’s evidence, leave at the office evidence by way of affidavits in support of his case and shall also deliver to the applicant a copy thereof.

(6) The applicant may, after delivery to him of a copy of the registered proprietor’s evidence, leave at the Office evidence in reply by way of affidavits and shall also deliver to the registered proprietor a copy of such evidence.

(7) No further statement of evidence shall be left by either party except by leave of or on requisition by the Controller.

(8) Where a document is in a language other than English and is referred to in any statement or evidence filed in connection with an petition under section 19 or opposition thereto, an attested translation thereof in English shall be furnished in duplicate.

(9) The time allowed for filling the counter-statement or for leaving evidence shall ordinarily be one month which may be extended only by a special order of the Controller given on a petition made by party seeking extension of time:

Provided that the extension so granted shall in no case exceed three months in aggregate.

(10) On completion of the filing of the statement and the evidence referred to sub-rules (3) to (8) or at such other time as he may decide, the Controller shall appoint a hearing of the petition for cancellation and shall give the parties not less than ten days’ notice of such hearing.

(11) If either party desires to be heard, he shall give to the Controller a notice in Form 20 of his intention to attend the hearing.

(12) If, at the hearing, either party intends to refer to any publication, he shall give to the Controller and to the other party not less than five days’ notice of such intention, together with the details of the publication to which he intends to refer.

(13) After hearing the party or parties desirous of being heard or without a hearing, if neither party desires to be heard or attends the hearing, the Controller shall decide on the petition and the opposition, if any, and notify his decision to the parties.

General – Register of Designs

Section 30. Registering designs

(1)When a design is accepted, there shall be entered in the Register of Design, in addition to the particulars required by the Act, the number of the design, the class in which it is registered, the date of filling the application for registration in this country, the reciprocity date, if any, claim for the registration, and such other matters as would effect the validity or proprietorship of the design.

(2) When such Register of Design is maintained wholly or partly on computer under floppies or diskettes, such computer floppies or diskettes shall be maintained under superintendence and control of Controller and in case of any dispute or doubt with regard to information of designs, the information as contained in the backup file or master file shall be final.

(3)Where the accepted design is one in respect of which a reciprocity date has been allowed, the registration, the extension or the expiration of the copyright in the said design shall be reckoned from such reciprocity date.

Section 31. Alteration of address

A proprietor of a registered design may make a request in Form 22 to the Controller for alteration of his name, or address, or addresses for service, in the Register of Design. The Controller may require such proof of alteration so requested as he may think fit before acting on the request and on satisfaction, the Controller shall cause the Register to be altered accordingly.

Section 32. Registration of documents under sub-section (3) of section 30

An application referred to in subsection (3) of section 30 shall be made in Form- 10.

Section 33. Application for entry of subsequent proprietorship

An application referred to in sub-section (1) or (2) of the section 30 shall be made to the Controller in Form 11 or 12 or 13 as the case may be.

Section 34. Particulars in applications

An application under rule 33 shall contain the name, address and nationality of the person claiming to be entitled, together with full particulars of the instrument, if any, under which he claims.

Section 35. Production of documents of title and other proof

Every assignment, and every other document containing, giving effect to or being evidence of the transmission of copyright in a registered design or affecting the proprietorship thereof or creating an interest therein as claimed in application under rule 33 shall unless the Controller otherwise directs, be presented to him either in original, or notarially certified true copy together with the application and he may call for such other proof of title or written consent as he may require for his satisfaction:

Provided that in the case of a document which is a public document, an official or certified copy thereof may be presented.

Section 36. Form of entry

The entry to be made in the Register on request under rule 34 shall be in the following form :-

“In pursuance of an application received on the

[…………………………………………………………]
Registered as Proprietors
Licensees
Mortgagees
etc.
By virtue of Assignment
Licence
Mortgage deed
etc.

dated _________________ and made between ________________

of the one part and _______________of the other part.

Section 37. Entry of notification of documents

An application for entry in the Register of Design of notification of any document (not already provided for), purporting to affect the proprietorship of a registered design, shall be accompanied by an attested copy of the document, the accuracy of such copy being certified as the Controller may direct, and the original or notarially certified true copy of the document shall at the same time be produced and left at the Office if required for further verification.

Section 38. Hours of inspection of Register

The Register of Designs shall be open to the inspection of the public at all times on which the Office is open to the public, except at times when they are required for actual official use.

Section 39. Rectification of Register

If an application is made for the rectification of the Register of Design under section 31 of the Act, the Controller shall notify all persons whose names, at the time of the application are entered on the Register as claiming an interest in the design, and shall advertise the application in the Official Gazette.

Section 40. Opposition to rectification

(1) Notice of opposition to any rectification of the Register of Design may be given within three months of the advertisement of the application for rectification.

(2) The opponent shall, within fourteen days of giving notice of opposition, leave at the office his written statement in duplicate setting out the nature of his interest, the facts upon which he bases his opposition and the relief, which he seeks.

(3) The Controller shall furnish the applicant with a copy each of the notice of opposition and the written statement.

(4)The procedure specified in sub-rules (4) to (13) for rule 29 relating to leaving evidence and hearing shall, so far as may be, apply to the hearing of the application under section 31 as they apply to the hearing of a petition under section 19.

Certificates

Section 41. Certified copies of documents

Certified copies of an entry in the Register of Design or certified copies of, or extracts from disclaimers, affidavits, declarations and other public documents in the Office, or from Register and other records, shall be furnished by the Controller on payment of the prescribed fee.

Section 42. Form etc. of affidavits

(1) The affidavits required by the Act and these rules, or used in any proceedings thereunder, shall be headed in the matter or matters to which they relate, shall be drawn up in the first person, and shall be divided into paragraphs consecutively numbered; and each paragraph shall, as far as possible, be confined to one subject. Every affidavit shall state the description and true place of abode of the person making the same, shall bear the name and address of the person leaving it and shall state on whose behalf it is left.

(2) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated.

(3) Affidavits shall be sworn to as follows :-

(a) In India, before any court or person having by law authority to receive evidence, or before any officer empowered by such court or person as aforesaid to administer oaths or to take affidavits;

(b) In any country or place outside India, – before a diplomatic or consular office, within the meaning of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (41 of 1948) in such country of place or before a notary of the country or place, recognized by the Central Government under section 14 of the Notaries Act, 1952 (53 of 1952), or before a judge or magistrate of the country of place.

(4) The person before whom an affidavit is sworn shall state the date on which and the place where the same is sworn to and shall affix thereto his seal, if any, or the seal of the court if the affidavit is sworn to before the court or an officer empowered by that court and signed his name and state his designation and address at the end thereof.

(5) Any affidavit purporting to have affixed, impressed or subscribed thereto or thereon the seal or signature of any person authorized under sub-rule (3), in testimony of the affidavit having been sworn to before him, may be admitted by the Controller without proof the genuineness of the seal or signature, or of the official position of that person.

(6) Alterations and interlineations shall, before an affidavit is sworn to or affirmed be authenticated by the initials of the person before whom the affidavit is sworn to.

(7) Where the deponent is illiterate, blind or unacquainted with the language in which the affidavit is written, a certificate by the person before whom the affidavit is sworn to, the effect that the affidavit was read, translated or explained in his presence to the deponent, and the deponent seemed perfectly to understand it and has signed the affidavit or affixed his mark in his presence, shall be attached at the end of the affidavit.

(8) Every affidavit filed before the Controller in connection with any proceeding under the Act or these rules shall be duly stamped under the provision of any law for that time being in force.

Award of Cost by Controller

Section 43. Scale of Costs

In all proceedings before the Controller, the Controller may, save as otherwise expressly provided by the Act or these rules, award such costs as he considers reasonable, having regard to all circumstances of the case provided that the amount of costs awarded in respect of any matters set forth in the Fourth Schedule to these rules shall not exceed the amount therein specified.

Miscellaneous Powers of Controller

Section 44. Exercise of discretionary power of Controller, miscellaneous power of Controller

The time within which a person entitled under section 33 of the Act, to an opportunity of being heard shall exercise his option of requiring to be heard shall be one month from the date of a notice which the Controller shall give to such person or his agent before determining the matter with reference to which such person is entitled to be heard. If within that month such person or his agent requires to be heard, the Controller shall appoint a date for the hearing and shall give ten days notice thereof: Provided that if the giving of ten day’s notice would cause an application for the registration of design to be deemed to have been abandoned before the hearing, the Controller may curtail the period of notice.

Section 45. Controller may require statement

Whether an applicant or agent desires to be heard or not, the Controller may at any time require him to submit a statement in writing within a time to be notified by the Controller, or to attend before him and make explanations with respect to such matters as the Controller may require.

Section 46. General Power of amendment

Any document for the amending of which no special provision is made by the Act may be amended, and any irregularity in procedure which, in the opinion of the Controller, may be obviated without detriment to the interest of any person, may be corrected if the Controller thinks fit, and upon such terms as he may direct.

Section 47. General Power to enlarge time

The time prescribed by these rules for doing any act or taking any proceeding thereunder maybe enlarged by the Controller, if he thinks fit, and upon such terms as he may direct.

Repeal

Section 48. Repeal

The Designs Rules, 1933 are hereby repealed:

Provided that any application or other matter pending under those rules on the date of the coming into force of these rules shall be disposed of under those rules.

Schedule 1

THE FIRST SCHEDULE

See rule 5
FEES
No. of Entry on what payable No. of Form Fee (Rs.)
1. On application for registration of design under sections 5 and 44. 1 1000.00
2. On claim under section 8(1) to proceed as an applicant or joint applicant. 2 500.00
3. On application for extension of copy right under section 11(2). 3 2000.00
4. On application for restoration of lapsed design under section 12(2). 4 1000.00
5. Additional fee for restoration. – 1000.00
6. Inspection of registered design under section 17(1). 5 500.00
7. On request for information of design when registration no. given under Section 18. 6 500.00
8. On request for information of design when registration no. not given. 7 1000.00
9. On petition for cancellation of design under section 19. 8 1500.00
10. Notice of intended exhibition or publication of an unregistered design under section 21. 9 500.00
11. Application for registration of a document in Register of Design under section 30(3), – 10
in respect of one design. 500.00
for each additional design. 200.00
12. On application for entry of name of proprietor or part proprietor in Register of Design under section 30,- 11
in respect of one design. 500.00
for each additional design. 200.00
13. On application for entry of mortgage or licence in Register of design under section 30 12
in respect of one design. 500.00
for each additional design. 200.00
14. Application for entry of notification of a document in the Register of Design under section 30 and rule 37,- 13
in respect of one design. 500.00
for each additional design. 200.00
15. On request for correction of clerical error under section 29. 14 500.00
16. On request for certificate under section 26 and rule 41. 15 500.00
17. On application for certified copy of registered design under section 17(2) 16 500.00
18. On application for rectification of Register of Design under section 31. 17 500.00
19. On application for extension of time for filing priority document under rule 15. 18 200.00(per. month)
20. On notice of opposition under rule 40. 19 100.00
21. Notice of intention to attend hearing under rules 29 and 40. 20 500.00
22. Form for authorisation of agent or other person. 21 –
23. On request to alter name or address or address for Service in the Register of Design under rule 31. 22 200.00
24. On request for entries of two addresses in the Register of Design. 23 200.00
25. On petition under rule 46 for amendment of any document. – 500.00
26. On petition under rule 47 for enlargement of time. – 500.00
27. Inspection of Register of Design under rule 38 (in respect of each design). – 250.00

Schedule 2

THE SECOND SCHEDULE

(See rule 6)

List of forms

Form No. Section or Rule Title
1 Sections 5 and 44 Application for registration of design/Application under reciprocal arrangement.
2 Section 8(1) Claim to proceed as an applicant or joint applicant.
3 Section 11(2) Application for Extension of copyright.
4 Section 12(2) Application for Restoration of lapsed design
5 Section 17(1) Inspection of registered design
6 Section 18 Request for information when registration number is given.
7 Section 18 Request for information when registration number is not given.
8 Section 19 Petition to cancel registration of design.
9 Section 21 Notice of intended exhibition or publication of unregistered design.
10 Section 30(3) Application for registration of a document in the Register Design.
11 Section 30 Application for entry of name of proprietor or part proprietor in the Register
12 Section 30 Application for entry of mortgage or licence in the Register.
13 Section 30 and rule 37 Application for entry of notification of a document in the Register.
14 Section 29 Request for correction of clerical error.
15 Section 26 and rule 41 Request for certificate.
16 Section 17(2) Application for certified copy of registered design.
17 Section 31 Application for rectification of Register.
18 rule 15 Application for extension of time for filing priority document.
19 rule 40 Notice of opposition.
20 rules 29 and 40 Notice of intention to attend hearing.
21 Section 43 Power of authority to agents.
22 rule 31 Request to alter name or address or address for service in Register
23 Section 10 Request for entries of two addresses in the
Register

Schedule 3

THE THIRD SCHEDULE

Classification of Good

(See rule 10)

List of Classes and Subclasses, with Explanatory Notes

CLASS 01

Foodstuffs

Note: (a) Includes foodstuffs for human beings, foodstuffs for animal and dietetic foods.

(b) Not including packages (Cl. 09).

01-01 BAKERS’ PRODUCTS, BISCUITS, PASTRY, MACARONI AND OTHER CEREAL PRODUCTS. CHOCOLATES, CONFECTIONERY, ICES

01-02 FRUIT AND VEGETABLES

01-03 CHEESES, BUTTER AND BUTTER SUBSTITUTES, OTHER DAIRY PRODUCE

01-04 BUTCHER’S MEAT (INCLUDING PORK PRODUCTS), FISH

01-05 [vacant]

01-06 ANIMAL FOODSTUFFS

01-99 MISCELLANEOUS

CLASS 02

Articles of clothing and haberdashery

Note: Not including articles of clothing for dolls (Cl. 21-01), special equipment for protection against fire hazards, for accident prevention and for rescue (Cl. 29), and animal clothing (Cl. 30-01).

02-01 UNDERGARMENTS, LINGERIE, CORSETS, BRASSIERES, NIGHTWEAR

Note: (a) Including orthopedic corsets and body linen.

(b) Not including household linen (Cl. 06-13).

02-02 GARMENTS

Note: (a) Includes all sorts of garments, including furs, bathing costumes, sports clothing and orthopedic garments, subject to the exceptions indicated under (b).

(b) Not including undergarments (Cl. 02-01), or garments to be placed in Classes 02-03; 02-04; 02-05 or 02-06.

02-03 HEADWEAR

Note: Includes all kinds of headwear for men, women and children.

02-04 FOOTWEAR, SOCKS AND STOCKINGS

Note: Including special boots for sports such as football, skiing and ice hockey, orthopedic footwear and socks, as well as tights, gaiters and other legwear.

02-05 NECKTIES, SCARVES, NECKERCHIEFS AND HANDKERCHIEFS

Note: Includes all “flat” clothing accessories.

02-06 GLOVES

Note: Includes surgical gloves and rubber or plastic protective gloves for household use or for various occupations or sports.

02-07 HABERDASHERY AND CLOTHING ACCESSORIES

Note: (a) Including buttons, clasps for garments, for headwear and for footwear, laces, pins, hand sewing, knitting and embroidery equipment and clothing accessories such as bells, suspenders, braces.

(b) Not including yarns or other threads (Cl. 05-01), decorative trimmings (Cl. 05-04), sewing, knitting and embroidery machines (Cl. 15-06) or sewing kits (containers) (Cl. 03- 01).

02-99 MISCELLANEOUS

CLASS 03

Travel goods, cases, parasols and personal belongings, not elsewhere specified

03-01 TRUNKS, SUITCASES, BRIEFCASES, HANDBAGS, KEYHOLDERS, CASES SPECIALLY DESIGNED FOR THEIR CONTENTS, WALLETS AND SIMILAR ARTICLES
Note: Not including articles for the transport of goods (Cl. 09) or cigar cases and cigarette cases (Cl. 27-06).

03-02 [vacant]

03-03 UMBRELLAS, PARASOLS, SUNSHADES AND WALKING STICKS

03-04 FANS

03-99 MISCELLANEOUS

CLASS 04

Brushware

04-01 BRUSHES AND BROOMS FOR CLEANING

Note: Not including clothes brushes (Cl. 04-02).

04-02 TOILET BRUSHES, CLOTHES BRUSHES AND SHOE BRUSHES

Note: “Toilet brushes” means brushes for corporal use; for example, for the hair, nails or teeth.

04-03 BRUSHES FOR MACHINES

Note: “Brushes for machines” means brushes incorporated in machines or in special vehicles.

04-04 PAINTBRUSHES, BRUSHES FOR USE IN COOKING

04-99 MISCELLANEOUS

CLASS 05

Textile piecegoods, artificial and natural sheet material

Note: (a) Includes all textile or similar articles, sold by the yard and not made up.

(b) Not including ready-made articles (Cl. 02 or 06).

05-01 SPUN ARTICLES

Note: (a) Including yarn and thread.

(b) Not including, for instance, rope wire, string, twine (Cl. 09-06).

05-02 LACE

05-03 EMBROIDERY

05-04 RIBBONS, BRAIDS AND OTHER DECORATIVE TRIMMINGS

05-05 TEXTILE FABRICS

Note: (a) Including textile fabrics, woven, knitted or otherwise manufactured, tarpaulins, felt
and loden.

05-06 ARTIFICIAL OR NATURAL SHEET MATERIAL

Note: (a) Includes sheets whose only characteristic features are their surface ornamentation or their texture; in particular, covering sheets such as wallpaper, linoleum, self-adhesive plastic sheets, wrapping sheets and rolls of paper, subject to the exceptions indicated under (b).

(b) Not including writing paper, even in rolls (Cl. 19-01), or sheets used as building components such as wall panels and wainscoting (Cl. 25-01).

05-99 MISCELLANEOUS

CLASS 06

Furnishing

Note: (a) Composite furniture articles embodying components includes in several subclasses are classified in Class 06-05.

(b) Sets of furniture, as far as they can be looked upon as one design, are classified in Class 06-05.

(c) Not including textile piecegoods (Cl. 05)

06-01 BEDS AND SEATS

Note: Including mattress supports and vehicle seats.

06-02 [vacant]

06-03 TABLES AND SIMILAR FURNITURE

06-04 STORAGE FURNITURE

Note: Including cupboards, furniture with drawers or compartments, and shelves.

06-05 COMPOSITE FURNITURE

06-06 OTHER FURNITURE AND FURNITURE PARTS

06-07 MIRRORS AND FRAMES

Note: Not including mirrors included in other classes (see Alphabetical List).

06-08 CLOTHES HANGERS

N.B.: The French text contains a note which does not concern the English text.

06-09 MATTRESSES AND CUSHIONS

06-10 CURTAINS AND INDOOR BLINDS

06-11 CARPETS, MATS AND RUGS

06-12 TAPESTRIES

06-13 BLANKETS AND OTHER COVERING MATERIALS, HOUSEHOLD LINEN AND NAPERY

Note: Including furniture covers, bedspreads and table covers.

06-99 MISCELLANEOUS

CLASS 07

Household good, not elsewhere specified

Note: (a) Including household appliances and utensils operated by hand, even if motor driven.

(b) Not including machines and appliances for preparing food and drink (Cl. 31).

07-01 CHINA, GLASSWARE, DISHES AND OTHER ARTICLES OF A SIMILAR NATURE

Note: (a) Includes dishes and crockery in all materials; in particular, paper and cardboard dishes.

(b) Not including cooking utensils and containers, such as glass and earthenware pots (Cl. 07-02), or flower vases, flower pots and china glassware of a purely ornamental nature (Cl. 11-02).

07-02 COOKING APPLIANCES, UTENSILS AND CONTAINERS

07-03 TABLE KNIVES, FORKS AND SPOONS

07-04 APPLIANCES AND UTENSILS, HAND-MANIPULATED, FOR PREPARING FOOD OR DRINK

Note: Not including appliances and utensils classified in Class 07-02 and in Class 31.

07-05 FLATIRONS AND WASHING, CLEANING AND DRYING EQUIPMENT

Note: Not including electric household appliances for washing, cleaning or drying (Cl. 15-05).

07-06 OTHER TABLE UTENSILS

07-07 OTHER HOUSEHOLD RECEPTACLES

07-08 FIREPLACE IMPLEMENTS

07-99 MISCELLANEOUS

CLASS 08

Tools and hardware

Note: (a) Includes hand-operated tools, even if mechanical power takes the place of muscular force, or example, electric saws and drills.

(b) Not including machines or machine tools (Cl. 15 or 31).

08-01 TOOLS AND IMPLEMENTS FOR DRILLING, MILLING OR DIGGING

08-02 HAMMERS AND OTHER SIMILAR TOOLS AND IMPLEMENTS

08-03 CUTTING TOOLS AND IMPLEMENTS

Note: (a) Including tools and instruments for sawing.

(b) Not including table knives (Cl. 07-03), cutting tools and implements for kitchen use

(Cl. 31), or knives used in surgery (Cl. 24-02).

08-04 SCREWDRIVERS AND OTHER SIMILAR TOOLS AND IMPLEMENTS

08-05 OTHER TOOLS AND IMPLEMENTS

Note: Includes tools which are not classified, or not to be placed, in other subclasses or classes.

08-06 HANDLES, KNOBS AND HINGES

08-07 LOCKING FOR CLOSING DEVICES

08-08 FASTENING, SUPPORTING OR MOUNTING DEVICES NOT INCLUDED IN OTHER CLASSES

Note: (a) Including nails, screws, nuts and bolts.

(b) Not including fastening devices for clothing (Cl. 02-07), for adornment (Cl. 11-01), or for office use (Cl. 19-02).

08-09 METAL FITTINGS AND MOUNTINGS FOR DOORS, WINDOWS AND FURNITURE, AND SIMILAR ARTICLES

08-10 BICYCLE RACKS

08-99 MISCELLANEOUS

Note: Including non-electric cables, regardless of the material of which they are made.

CLASS 09

Packages and containers for the transport or handling of goods

09-01 BOTTLES, FLASKS, POTS, CARBOYS, DEMIJOHNS, AND CONTAINERS WITH DYNAMIC DISPENSING MEANS

Note: (a) “Pots” means those serving as containers.

(b) Not including pots regarded as crockery (Cl. 07-01), or flower pots (Cl. 11-02).

09-02 STORAGE CANS, DRUMS AND CASKS

09-03 BOXES, CASES, CONTAINERS, (PRESERVE) TINS OR CANS

Note: Including freight containers.

09-04 HAMPERS, CRATS AND BASKETS

09-05 BAGS, SACHETS, TUBES AND CAPSULES

Note: (a) Including plastic bags or sachets, with or without handle or means of closing.

(b) “Capsules” means those used for packaging.

09-06 ROPES AND HOOPING MATERIALS

09-07 CLOSING MEANS AND ATTACHMENTS

Note: (a) Includes only closing means for packages.

(b) “Attachments” means, for example, dispensing and dosing devices incorporated in containers and detachable atomizers.

09-08 PALLETS AND PLATFORMS FOR FORKLIFTS

09-09 REFUSE AND TRASH CONTAINERS AND STANDS THEREFOR

09-99 MISCELLANEOUS

CLASS 10

Clocks and watches and other measuring instruments, checking and signalling instruments

Note: Including electrically-driven instruments.

10-01 CLOCK AND ALARM CLOCKS

10-02 WATCHES AND WRIST WATCHES

10-03 OTHER TIME-MEASURING INSTRUMENTS

Note: Including time-measuring apparatus such as parking meters, timers for kitchen use and similar instruments.

10-04 OTHER MEASURING INSTRUMENTS, APPARATUS AND DEVICES

Note: (a) Including instruments, apparatus and devices for measuring temperature, pressure, weight, length, volume and electricity.

(b) Not including exposure meters (Cl. 16-05).

10-05 INSTRUMENTS, APPARATUS AND DEVICES FOR CHECKING, SECURITY OR TESTING

Note: Including fire and burglar alarms, and detectors of various types.

10-06 SIGNALLING APPARATUS AND DEVICES

Note: Not including lighting or signalling devices for vehicles (Cl. 26-06).

10-07 CASINGS DIALS, HANDS AND ALL OTHER PARTS AND ACCESSORIES OF INSTRUMENTS FOR MEASURING, CHECKING AND SIGNALLING

Note: “Casings” means watch and clock casings and all casings being integral parts of instruments of which they protect the mechanism, with the exception of cases specify designed for their contents (Cl. 03-01) or for packaging (Cl. 09-03).

10-99 MESCELLANEOUS

CLASS 11

Articles of adornment

11-01 JEWELLERY

Note: (a) Including fancy and imitation jewellery.

(b) Not including watches (Cl. 10-02).

11-02 TRINKETS, TABLE, MANTEL AND WALL ORNAMENTS, FLOWER VASES AND POTS

Note: Including sculptures, mobiles and statues.

11-03 MEDALS AND BADGES

11-04 ARTIFICIAL FLOWERS, FRUIT AND PLANTS

11-05 FLAGS, FESTIVE DECORATIONS

Note: (a) Including garlands, streamers and Christmas tree decorations.

(b) Not including candles (Cl. 26-04).

11-99 MISCELLANEOUS

CLASS 12

Means of transport or hoisting

Note: (a) Includes all vehicles, land, sea, air, space and others.

(b) Including parts, components and accessories which exist only in connection with a and vehicle cannot be placed in another class; these parts, components and accessories of vehicles are to be placed in the subclass of the vehicle in question, or in Class 12-16 if they are common to several vehicles included in different subclasses.

(c) Not including, in principle, parts, components and accessories of vehicles which can be placed another class; these parts, components and accessories are to be placed in the same class as articles of the same type, in other words, having the same function. Thus, carpets or mats for automobiles are to be placed with carpets (Cl. 06-11); electric motors for vehicles are to be placed in Class 13-01, and non-electric motors for vehicles in Class 15-01 (the same applies to the components of such motors); automobile headlamps are to be placed with lighting apparatus (Cl. 26-06).

(d) Not including scale models of vehicles (Cl. 21-01).

12-01 VEHICLES DRAWN BY ANIMALS

12-02 HANDCARTS, WHEELBARROWS

12-03 LOCOMOTIVES AND ROLLING STOCK FOR RAILWAYS AND OTHER RAIL VEHICLES

12-04 TELPHER CARRIERS, CHAIR LIFTS AND SKILIFTS

12-05 ELEVATORS AND HOISTS FOR LOADING OR CONVEYING

Note: Including passenger lifts, goods lifts, cranes, forklift trucks and conveyor belts.

12-06 SHIPS AND BOATS

12-07 AIRCRAFTS AND SPACE VEHICLES

12-08 MOTOR CARS, BUSES AND LORRIES

Note: Including ambulances and refrigerator vans (road).

12-09 TRACTORS

12-10 ROAD VEHICLE TRAILERS

Note: Including caravans.

12-11 CYCLES AND MOTORCYCLES

12-12 PERAMBULATORS, INVALID CHAIRS, STRETCHERS

Note: (a) :Perambulators” means hand carriage for infants.

(b) Not including toy perambulators (Cl. 21-01).

12-13 SPECIAL-PURPOSE VEHICLES

Note: (a) Includes only vehicles not specially intended for transport, such as street – cleaning vehicles, watering lorries, fire engines, snow ploughs and breakdown lorries.

(b) Not including mixed-purpose agricultural machines (Cl. 15-03), or self-propelled machines for use in construction and civil engineering (Cl. 15-04).

12-14 OTHER VEHICLES

Note: Including sleighs and air-cushion vehicles.

12-15 TYRES AND ANTI-SKID CHAINS FOR VEHICLES

12-16 PARTS, EQUIPMENT AND ACCESSORIES FOR VEHICLES, NOT INCLUDED IN OTHER CLASSES OR SUBCLASSES

12-99 MISCELLANEOUS

CLASS 13

Equipment for production, distribution or transformation of electricity

Note : (a) Includes only apparatus which produces, distributes or transforms electric current.

(b) Including electric motors, however.

(c) Not Including electrically-driven apparatus, such as electric watches (Cl. 10-02), or apparatus for the measurement of electric current (Cl. 10-04).

13-01 GENERATORS AND MOTORS

Note: including electric motors for vehicles.

13-02 POWER TRANSFORMETERS, RECTIFIERS, BATTERIES AND ACCUMULATORS

13-03 EQIUPMENT FOR DISTRIBUTION OR CONTROL OF ELECTRIC POWER

Note: Including conductors, switches and switchboards.

13-99 MISCELLANEOUS

CLASS 14

Recording, communication or information retrieval equipment

14-01 EQUIPMENT FOR THE RECORDING OR REPRODUCING OR REPRODUCTION OF SOUNDS OR PICTUREA

Note: Not including photographic or cinematographic apparatus (Cl. 16).

14-02 DATA PROCESSING EQUIPMENT AS WELL AS PERIPHERAL APPARATUS AND DEVICES

14-03 COMMUNICATIONS EQUIPMENT, WIRELESS REMOTE CONTROLS AND RADIIO AMPLIFIERS

Note: Including telegraphic, telephone and television apparatus, as well as wireless apparatus and teleprinters.

14-99 MISCELLANEOUS

CLASS 15

Machines, not elsewhere specified

15-01 ENGINES

Note: (a) Including non-electric engines for vehicles.

(b) Not including electric motors (Cl. 13).

15-02 PUMPS AND COMPRESSORS

Note: Not including hand or foot pumps (Cl. 08-05), or or fire extinguishing pumps. (Cl. 29-01).

15-03 AGRICULTURAL MACHINERY

Note: (a) Including ploughs and combined machinery, i.e. , both machines and vehicles, for examples, reaping and binding machines.

(b) Not including hand tools (Cl. 08).

15-04 CONSTRUCTION MACHINERY

Note: (a) Including machines used in civil engineering and self propelled machines such as excavators, concrete mixer and dredgers.

(b) Not including hoists and cranes (Cl. 12-05).

15-05 WASHING CLEANING AND DRYING MACHINES.

Note: Including:

(a) appliances and machines for treating lines and clothes, such as ironing machines and wringers.

(b) dishwashing machines and industrial drying equipment.

15-06 TEXTILE, SEWING, KNITTING AND EMBROIDERING MACHINES INCLUDING THEIR INTEGRAL PARTS

15-07 REFRIGERATION MACHINERY AND APPARATUS

Note: (a) Including household refrigeration apparatus.

(c) Not including refrigerator wagons (rail) (Cl. 12-03) or refrigerator vans (road) (Cl. 12-08).

15-08 [vacant]

15-09 MACHINE TOOLS, ABRADING AND FOUNDING MACHINERY

Note: Not including earth working machinery and material separators (Cl. 15-99).

15-99 MISCELLANEOUS

CLASS 16

Photographic, cinematographic and optical apparatus

Note: Not including lamps for photography or filming (Cl. 26-05).

16-01 PHOTOGRAPHIC CAMERAS AND FILM CAMERAS

16-02 PROJECTORS AND VIEWERS

16-03 PHOTOCOOPYING APPARATUS AND ENLARGERS

Note: Including microfilming equipment and apparatus for viewing microfilms, as well as office machines known as “photocopying” apparatus which use other than photographic processes (in particular, thermal or magnetic processes).

16-04 DEVELOPING APPARATUS AND EQUIPMENT

16-05 ACCESSORIES

Note: Including filters for photographic cameras, exposure meters, tripods and photographic flashlight apparatus.

16-06 OPTICAL ARTICLES

Note: (a) Including spectacles and microscopes.

(b) Not including measuring instruments embodying optical devices (Cl. 10-04).

16-99 MISCELLANEOUS

CLASS 17

Musical instruments

Note: Not including cases for musical instruments (Cl. 03-01), or equipment for the recording or reproduction of sounds (Cl. 14-01).

17-01 KEYBOARD INSTRUMENTS

Note: Including electronic and other organs, accordions, and mechanical and other pianos.

17-02 WIND INSTRUMENTS

Note: Not including organs, harmoniums and accordions, and mechanical and other pianos.

17-03 STRINGED INSTRUMENTS

17-04 PERCUSSION INSTRUMENTS

17-05 MECHANICAL INSTRUMENTS

Note: (a) Including music boxes.

(b) Not including mechanical keyboard instruments (Cl. 17-01).

17-99 MISCELLANEOUS

CLASS 18

Printing and office machinery

18-01 TYPEWRITERS AND CALCULATING MACHINES

Note: Not including computers and other apparatus to be placed in Class 14-02

18-02 PRINTING MACHINES

Note: (a) Including typesetting machines, stereotype machines and apparatus, typographic machines and other reproducing machines such as duplicators and offset equipment, as well as addressing machines, franking and cancelling machines.

(b) Not including photocopying machinery (Cl. 16-03).

18-03 TYPE AND TYPE FACES

18-04 BOOKBINDING MACHINES, PRINTERS’ STAPLING MACHINES, GUILLOTINES AND TRIMMERS (FOR BOOKBINDING)

Note: Including machines and similar devices for cutting paper, analogous to guillotines and trimmers.

18-99 MISCELLANEOUS

CLASS 19

Stationery and office equipment, artists’ and teaching materials

19-01 WRITING PAPER, CARDS FOR CORRESPONDENCE AND ANNOUNCEMENTS

Note: Includes all paper, in the widest sense of the term, which is used for writing, drawing, painting or printing, such as tracing paper, carbon paper, newsprint, envelopes, greetings cards and illustrated postcards, even if they embody a sound recording.

19-02 OFFICE EQUIPMENT

Note: (a) Including equipment used at cash desks, such as change sorters.

(b) Some office equipment is to be placed in other subclasses or classes; for example, office furniture in Class 06, office machines and equipment in Class 14-02; 16-03; 18-01; 18-02 or 18-04, and writing materials in Class 19-01 or 19-06 (see alphabetical List).

19-03 CALENDERS

Note: Not including diaries (Cl. 19-04).

19-04 BOOKS AND OTHER OBJECTS OF SIMILAR OUTWARD APPEARANCE

Note: Including covers of books, binding, albums, diaries and similar objects.

19-05 [vacant]

19-06 MATERIALS AND INSTRUMENTS FOR WRITING BY HAND, FOR DRAWING,

FOR PAINTING, FOR SCULPTURE, FOR ENGRAVING AND FOR OTHER

ARTISTIC TECHNIQUES

Note: Not including paintbrushes (Cl. 04-04), drawing tables and attached equipment (Cl. 06- 03), or writing paper (Cl. 19-01).

19-07 TEACHING MATERIALS

Note: (a) Including maps of all kinds, globes and planetariums.

(b) Not including audio-visual teaching aids (Cl. 14-01).

19-08 OTHER PRINTED MATTER

Note: Including printed advertising materials.

19-99 MISCELLANEOUS

CLASS 20

Sales and advertising equipment, signs

20-01 AUTOMATIC VENDING MACHINE

20-02 DISPLAY AND SALES EQUIPMENT

Note: Not including articles of furniture (Cl. 06).

20-03 SIGNS, SIGNBOARDS AND ADVERTISING DEVICES

Note: (a) Including luminous advertising devices and mobile advertising devices.

(b) Not includingn pacjages (Cl. 09), or signalling devices (Cl. 10-06).

20-99 MISCELLANEOUS

CLASS 21

Games, toys, tents and sports goods

21-01 GAMES AND TOYS

Note: (a) Including scale models.

(b) Not including toys for animals (Cl. 30-99).

21-02 GYMNASTIC AND SPORTS APPARATUS AND EQUIPMENT

Note: (a) Includes, as sports equipment: apparatus and equipment necessary for the various sports which have no other specific purpose, such as footballs, skis and tennis rackets, to the exclusion of all other objects which may also be used in practing a given sport.

(b) Including subject to the reservation mentioned under (a), training equipment and apparatus and equipment necessary for outdoor games.

(c) Not including sports clothing (Cl. 02), toboggans or sleighs (Cl. 12-14).

21-03 OTHER AMUSEMENT AND ENTERTAINMENT ARTICLES

Note : (a) Including fairground roundabouts and automatic machines for games of chance.

(b) Not including games and toys (Cl. 21-01), or other articles to be placed in Class
21-01 or 21- 02.

21-04 TENTS AND ACCESSORIES THEREOF

Note: (a) Including poles, pegs and other similar articles.

(c) Not including other camping articles to be placed in other classes according to their nature, such as chairs (Cl. 06-01), tables (Cl. 06-03), plates (Cl. 07-01), and caravans (Cl. 12-10).

21-99 MISCELLANEOUS

CLASS 22

Arms, pyrotechnic articles, articles for hunting, fishing and pest killing

22-01 PROJECTILE WEAPONS

22-02 OTHER WEAPONS

22-03 AMMUNITION, ROCKETS AND PYROTECHING ARTICLES

22-04 TARGETS AND ACCESSORIES

Note: Including the special device for actuating mobile targets.

22-05 HUNTING AND FISHING EQUIPMENT

Note: Not including articles of clothing (Cl. 02), or weapons (Cl. 22-01 or 22-02).

22-06 TRAPS, ARTICLES FOR PEST KILLING

22-99 MISCELLANEOUS

CLASS 23

Fluid distribution equipment, sanitary, heating, ventilation and air-conditioning equipment, solid fuel

23-01 FLUID DISTRIBUTION EQUIPMENT

Note: Including pipes and pipe fittings.

23-02 SANITARY APPLIANCES

Note: (a) Including baths, showers, washbasins, saunas, waterclosets, sanitary units and sanitary accessories not included in other classes.

(b) Not including pipes or pipe fittings (Cl. 23-01).

23-03 HEATING EQUPMENT

23-04 VENTILATION AND AIR-CONDITIONING EQUIPMENT

23-05 SOLID FUEL

23-99 MISCELLANEOUS

CLASS 24

Medical and laboratory equipment

Note: The term “medical equipment” covers also surgical, dental and veterinary equipment.

24-01 APPARTUS EQUIPMENT FOR DOCTORS, HOSPITALS AND LABORATORIES

24-02 MEDICAL INSTRUMENTS, INSTRUMENTS AND TOOLS FOR LABORATORY USE

Note: Includes only hand-operated instruments.

24-03 PROSTHETIC ARTICLES

24-04 MATERIALS FOR DRESSING WOUNDS, NURSING AND MEDICAL CARE

24-99 MISCELLANEOUS

CLASS 25

Building units and construction elements

25-01 BUILDING MATERIALS

Note: Including bricks, beams, pre-shaped strips, tiles, slates and panels.

25-02 PREFABRICATED OR PRE-ASSEMBLED BUILDING PARTS

Note: (a) Including windows, doors, outdoors shutters, partition walls and gratings.

(b) Not including staircases (Cl. 25-04).

25-03 HOUSES, GARAGES AND OTHER BUILDINGS

25-04 STEPS, LADDERS AND SCAFFOLDS

25-99 MISCELLANEOUS

CLASS 26

Lighting apparatus

26-01 CANDLESTICKS AND CANDELABRA

26-02 TORCHES AND HAND LAMPS AND LANTERNS

26-03 PUBLIC LIGHTING FIXTURES

Note: Including outside lamps, stage lighting and searchlight projectors.

26-04 LUMINOUS SOURCES, ELECTRICAL OR NOT

Note: Including bulbs for electric lamps, luminous plaques and tubes, and candles.

26-05 LAMPS, STANDARD LAMPS, CHANDELIERS, WALL AND CEILING FIXTURES, LAMPSHADES, REFLECTORS, PHOTOGRAPHIC AND CINEMATOGRAPHIC PROJECTOR LAMPS

26-06 LUMINOUS DEVICES FOR VEHICLES

26-99 MISCELLANEOUS

CLASS 27

Tobacco and smokers’ supplies

27-01 TOBACCO, CIGARS AND CIGARETTES

27-02 PIPES, CIGAR AND CIGARETTE HOLDERS

27-03 ASHTRAYS

27-04 MATCHES

27-05 LIGHTERS

27-06 CIGAR CASES, CIGARETTE CASES, TOBACCO JARS AND POUCHES

Note: Not including packages (Cl. 09).

27-99 MISCELLANEOUS

CLASS 28

Pharmaceutical and cosmetic products, toiler articles and apparatus

28-01 PHARMACEUTICAL PRODUCTS

Note: (a) Including for animals.

(b) Not including materials for dressing wounds and nursing (Cl. 24-04).

(c) Including chemicals in cachet, capsule, lozenge, pill and tablet forms.

28-02 COSMETIC PRODUCTS

Note: Including for animals.

28-03 TOILET ARTICLES AND BEAUTY PARLOR EQUIPMENT

Note (a) Including razors, apparants and appliances for hair removing or hair dressing.

(b) Not including toilet and make-up brushes (Cl. 04-02), or articles and equipment for animals (Cl. 30-99)

28-04 WIGS, FALSE HAIRPIECES

28-99 MISCELLANEOUS

CLASS 29

Devices and equipment against fire hazards, for accident prevention and for rescue

29-01 DEVICES AND EQUIPMENT AGAINST FIRE HAZARDS

Note : (a) Including fire extinguishers.

(b) Not including fire engines (vehicles) (Cl. 12-13), free-hoses and nozzles for fire-hoses (Cl. 23-01).

29-02 DEVICES AND EQUIPMENT AGAINST FOR ACCIDENT PREVENTION AND FOR RESCUE, NOT ELSEWHERE SPECIFIED

Note: (a) Including devices and equipment for animals.

(b) Not including helmets (Cl. 02-03) and garments for protection against accidents (Cl. 02-02; 02-04 or 02-06).

29-99 MISCELLANEOUS

CLASS 30

Articles for the care and handling of animals

Note: Not including animal foodstuffs (Cl. 01), or pharmaceutical and cosmetic products for animals (Cl. 28-01 or 28-02).

30-01 ANIMAL CLOTHING

30-02 PENS, CAGES, KENNELS AND SIMILAR SHELTERS

Note: Not including buildings (Cl. 25)

30-03 FEEDERS AND WATERERS

30-04 SADDLERY

Note: Including collars for animals.

30-05 WHIPS AND PRODS

30-06 BEDS AND NESTS

30-07 PERCHES AND OTHER CAGE ATTACHMENTS

30-08 MARKERS, MARLS AND SHACKLES

30-09 HITCHING POSTS

30-99 MISCELLANEOUS

CLASS 31

Machines and appliances for preparing food or drink, not elsewhere specified

Note: Not including hand-manipulated utensil, instruments and appliances for serving or preparing food or drink (Cl. 07).

31-00 MACHINES AND APPLIANCES FOR PREPARING FOOD OR DRINK, NOT ELSEWHERE SPECIFIED

CLASS 99

Miscellaneous

Note: Includes all products not included in the preceding classes.

99-00 MISCELLANEOUS

Schedule 4

THE FOURTH SCHEDULE

(see rule 43)

Scale of costs allowable in proceedings before the Controller

Entry No. Matter in respect of which cost is to be awarded. Amount
1. For Notice of Opposition under rule 40 Rs. 100.00
2. For petition for cancellation of the registration of for design under section 19. Rs. 1000.00
3. For notice of information to attend Hearing. Rs. 200.00
4. Stamps for Power of Attorney, where a professional has been appointed. The amount actually paid
5. Stamps fee in respect of relevant Affidavit. actually paid
6. For Statement under rules 29(1) and 40(2). Rs. 200.00
7. For Counter Statement under rules29(3) and 40(4) Rs. 200.00
8. For each Affidavit, if relevant. Rs. 100.00
9. For each Citation, if relevant. Rs. 100.00
10. For each unnecessary or irrelevant Affidavit or Citation. Rs. 100.00
11. For every day or part of a day of Hearing before the
Controller.
Rs. 500.00

[Bare Acts] The Designs (Amendment) Rules, 2008

Preliminary

MINISTRY OF COMMERCE AND INDUSTRY
(Department of Industrial Policy and Promotion)

NOTIFICATION

New Delhi, the 17thJune, 2008

S.O. 1460(E).- Whereas, a draft of Designs (Amendment) Rules, 2007 was published as required by sub-section (3) of Section 47 ofthe Designs Act, 2000 (16 of 2000), by the notification of the Government of India, Ministry of Commerce and Industry number S.O. 137 (E) dated 23rdJanuary, 2008 in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (ii) dated 23rdJanuary, 2008.

Andwhereas objections and suggestions were invited till the 29thFebruary, 2008 from all persons likely to be affected .thereby;

And whereas the draft of the Designs Rules was made available to the public on the 29thJanuary, 2008 through the said Gazette dated January 23rd, 2008.’ .

And whereas no objections and suggestions have been received from the public with respect to the said draft Rules.

Now, therefore, in exercise of the powers conferred by section 47 of the Designs Act, 2000 (16 of 2000), the Central Government hereby makes the following rules, namely:-

Section 1.

1. Short title and commencement.- (1) These rules may be, called the Designs (Amendment) Rules, 2008.

(2)’ They shall come into force on the date of their publication in the Official Gazette.

Amendments

Section 2.

In the Designs Rules, 2001 (hereinafter) referred to as the principal rules), in rule 3,-

(a) for the marginal heading the following shall be substituted, namely:-
“Manner for leaving and serving documents.”

(b) for sub-rule (1), the following sub-rule shall be substituted, namely:-

“(1) Any application, notice or other document authorized or requiredto be filed, left, made or given at the Office, or to the Controller or to any other person under the Act or these rules, may be sent by hand or by a prepaid letter addressed to the Controller or to that person through post or courier service or by electronic transmission duly authenticated. If sent by a prepaid letter or courier service or by electronic transmission duly authenticated, it shall be deemed to have been filed, left, made or given at the time when the letter containing the same would have been delivered in the ordinary course ofpost or courier service or electronic transmission duly authenticated, as the case may be. In’ proving such sending, it shall be sufficient to prove that the letter was properly addressed and transmitted, provided that any application, notice or documentsent through fax or by electronic mail ‘shall also be deemed to have been filed, left, made or given if the same is clear and fully legible and its original or the paper copy, as the case may be, is submitted to the office within fifteen days from the date of receipt of the document so faxed or electronically mailed except where the fee ~ required to be accompanied with the documents.”

{e)- in sub-rule 4, the words “along with the fees” shall be omitted.

Section 3.

In rule 5 of the principal rules, in sub-rule 2, for clauses (a), (b) and (c), the following clauses shall be substituted, namely:-

“(a) The fees payable under these rules may either be paid in cash or through electronic means or may be sent by bank draft or cheque payable to the Controller and drawn on a scheduled bank at the place where the office is situated.

(b) Where a fee is payable in respect of a document, the entire fee shall accompany the document.

(c) Fees once paid in respect of any proceedings shall not ordinarily be refunded irrespective of whether the proceeding hai taken place or not.”

Section 4.

In rule 7 of the principle rules, in sub-rule (1), for the letter, figure and words “A4 size with a margin of at least one inch and a half or”, the words, brackets, figures and letters “A4 size (210 mm x 296.9 mm) with a margin of” shall be substituted.

Section 5.

In rule 14 ofthe principal rules,-

(a) in sub-rule (1), after the word “representation”, the words “including computer graphics” shall be inserted.

(b) for sub-rule (3) the following sub-rule shall be substituted,-“Each representation of the design whether to be applied to a single article or to a set, shall be on durable paper of A4 size (210 mm x 296.9 mm) (and not on cardboard) and shall appear on one side only of the paper. The figure.or figures shall be placed in an upright position on the sheet in size in which the details are clearly visible. When more figures than one are shown, these shall, where possible, be on one or more sheets, and each shall be designated (e.g., perspective view; front perspective view; front view, side view)” etc.

(c) in sub-rule (7), figures and words “5 by 4 inches or” shall be omitted.

(d) after sub-rule (8) the following sub-rules shall be inserted, namely:-

“(9) Photographs shall be pasted on the representation sheets firmly only with the help of strong adhesive, not by any other means including stapler pin and cellotape.

(10) Where photographs are used in the representation sheets, one of the four copies of the representation sheets shall not be covered with cellophane/tracing papers, or any other papers.”

Section 6.

In rule 15 ofthe principal rules, in sub.rule (2), the following words shall be inserted at the end “on an application made in form 18 with the fee specified in the first schedule.”

Section 7.

In rule 16 of the principal rule, in sub-rule (l), after the words, brackets and figures “sub section (l)”, the word, bracket and figure “and (5)” shall be inserted.

Section 8.

In rule 17 of the principal rule, the following sentence shall be inserted at the end, “After acceptance the Controller will issue the certificate of registration as specified in the Fifth schedule of the rules”.

Section 9.

In rule 18 of the principal rule, in sub-rule (1), in the proviso, the following shall be inserted at the end,-“or may be extended for a further period not exceeding three months on a request made in form 18 by the applicant or his agent along with the fee specified in the first schedule before the expiry of the stipulated period of six months”.

Section 10.

For rule 21 ofthe principal rules, the following rule shall be substituted, namely:-

“21. Non-completion within stipulated period.- An application which owing to any negligence or default of the applicant, has not been completed so as to enable registration to be effected within six months or within extended period as specified in rule 18 from the date of application, shall be deemed to be abandoned”.

Section 11.

In rule 22, 25, 27, 39 of the principal rules, the word “Gazette” wherever.it occurs– the words, figures and brackets “Journal referred to in section 145 of the Patents Act 1970 (39 of 1970)” shall be substituted.

Section 12.

In rule 28 of the principal rules, in sub rule 2, for the word “lodge”, the word “file” shall be substituted.

Section 13.

In rule 29 of the principal rules,

(a) in sub-rule 1, after the word “statement” the words “and evidence” shall be inserted.

(b) in sub-rule 2, after the word “statement” the words “and evidence” shall be inserted.

(c) for sub-rules 3 and 4, the following sub-rules shall be substituted, namely:-

(3) “If the registered proprietor intends to oppose the application he shall within a time to be specified- by the Controller, file at the office a counter statement and evidence setting out the grounds on which he intends to oppose the application and shall deliver to the applicant a copy thereofsimultaneously.

(4) The applicantmay, after delivery to him of the copy ofthe registered proprietor’s counter statement and evidence leave at the office, evidence in reply by way of affidavits in support of his case and shall also deliver to the registered proprietor a copy of thereof simultaneously.”

(d) sub-rule 5 and 6 shall be omitted.

(e) for sub-rule 9, the following sub-rule shall be substituted,namely,-

“(9) The time allowed for filling the counter-statement and evidence or for leaving reply evidence shall ordinarily be one month which may ,be extended only by a special order of the Controller given on a petition with the fee specified in the fist schedule made by party seeking extension oftime.
Provided that the extension so granted shall in no case exceed three months in aggregate”.

(f) In sub-rule (10), for the words, figures and brackets “sub rule (3) to (8)”, the words, figures and brackets “sub-rules (1) to (8)” shall be substituted.

Section 14.

In rule 40 of the principal rule,
(a) in sub-rule 2, after the words “written statement” the words “and the evidence” shall be inserted.

(b) in sub-rule 3, after the words “written statement”, the words “and evidence” shall be inserted.

(c) in sub-rule 4, for the words, figures and brackets “sub-rules (4) to (13)”, the words, figures and brackets “sub-rules (3) to (11)” shall be substituted.

Section 15.

For rule 47 ofthe principal rules, the following rules shall be substituted, namely:-

“47. General Power to enlarge time:- The time prescribed by these rules for doing any act or taking any proceeding where no special provision is made thereunder may be enlarged by the Controller, for a period not exceeding three months, if he thinks fit, and upon such terms as he may direct.

47 A. Digital Signature, – The signature, as required, wherein applicable, under the rules may include digital signature”.

Schedule 1.

In theTHE FIRST SCHEDULEof the principal rules,-
(a) for items numbers 2,19, 26 and entries relating thereto, the following items and entries shall respectively, be substituted, namely: –

“2 On claim under section 8(1) & (5) to proceed as an applicant or joint applicant 2 500.00
19 On application for extension of time for filing priority document under Rule 15 & Rule l8 18 200.00(per month)
26 On petition under rule 29, 40, 47 for enlargement of time 500.00″

Schedule 2.

In theTHE SECOND SCHEDULEof the principal rules,-

(a) “in the List of Forms, under the heading ‘Section or Rules’ against form No.2 for the words, figures and brackets “Section 8 (1)”, the words, figures and brackets “Section 8 (1) and (5)” shall be substituted, and against form No. 18 for the words and figures “rule 15”, the words and figures “rule 15 and rule 18” shall be substituted.

(b) In Form 1, for the words, number and brackets-

“(i) Name ofcountry,

(ii) Official date,

(iii) Official number.”, the words, numbers and brackets,

“(i) Name of the country/inter governmental organization,

(ii) Date of filing,

(iii) Application number,

(iv) Name of the applicant” shall be substituted.

(b) at the end; after the words “THE PATENT. OFFICE” the word “CALCUTTA” shall be omitted.

(c) In Form 2

(i) after the words “CLAIM UNDER” for the words, figures and brackets” SECTION 8 (1)”, the words, figures and brackets “SECTION 8 (1) & (5)” shall be substituted

(ii) . In Form 2 to 17 and 19 to 23, at the end, the word “CALCUTTA” shall be omitted.

(d) . In Form 18,

(a) For the words, figures and brackets “[see rule 15]”, the words, figures and brackets “[see rule 15 and rule 18]” shall be substituted.

(b) In paragraph 2, for the words “application No.__________ “the words, numbers and brackets” (i) application No.___________ or (ii) to extend the time period as specified under Rule 18 in respect of the application No……………. ” shall be substituted.

(c) at the end, after the words “THE PATENT OFFICE” , the word “CALCUTTA” shall be omitted.

(e) In all forms ofthe Second Schedule the words “The Designs Act, 2000” shall be inserted at the beginning.

Schedule 3 – List of Classed and Subclasses, with Explanatory Notes

Class 1. Foodstuffs

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-
“THE THIRD SCHEDULE
Classification of Goods
(See rule 10)
CLASS 1

Foodstuffs

Notes: (a) Including foodstuffs for human beings, foodstuffs for animals and dietetic
-foods. .

(b) Not including packages (CI. 9).

01-01 BAKERS’ PRODUCTS, BISCUITS, PASTRY, MACARONIANDOTHER CEREAL PRODUCTS, CHOCOLATES, CONFECTIONERY, ICES
01-02 FRUIT AND VEGETABLES
01-03 CHEESES, BUTTER AND BUTTER SUBSTITUTES, OTHER DAIRY PRODUCE

01-04 BUTCHERS’ MEAT (INCLUDING PORK PRODUCTS), FISH

01-05 [vacant]

01-06 ANIMAL FOODSTUFFS

01-99 MISCELLANEOUS

Class 2. Articles of clothing and haberdashery

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-
“THE THIRD SCHEDULE
Classification ofGoods
(See rule 10)
CLASS 2

Articles of clothing and haberdashery

Note: Not inc;uding articles of clothing for dolls (CI. 2’1-01), special equipment for protection against fire hazards, for accident prevention and for rescue (CI. 29), and animal clothing (CI. 30-01).

02-01 UNDERGARMENTS, LINGERIE, CORSETS, BRASSIERES, NIGHTWEAR

Notes: (a) Including orthopedic corsets and body linen.

(b) Not including household linen (Cl. 6-13).

02-02 GARMENTS

Notes: (a) Including all sorts ofgarments, and furs, bathing costumes, sports clothing and orthopedic garments, subject to the exceptions indicated under (b).

(b) Not including undergarments (Cl. 2-01), or garments to be placed in Classes 2-03; 2-04; 2-05 or 2-06.

02-03 HEADWEAR

Note: Including all kinds of headwear for men, women and children.

02-04 FOOTWEAR, SOCKS AND STOCKINGS

Note: Including special boots for sports such as football, skiing and ice hockey, orthopedic footwear and socks, as well as tights, gaiters and other legwear.

02-05 NECKTIES, SCARVES, NECKERCHIEFS AND HANDKERCHIEFS

Note: Including all “flat” clothing accessories.

02-06 GLOVES

Note: Incl,uding surgical gloves and.rubber or plastic protective gloves for household use or for various occupations or sports.
I
02-07 HABERDASHERY AND CLOTHING ACCESSORIES

Notes: (a) Including buttons, clasps for garments, for headwear and for footwear, laces, pins, hand sewing, knitting and embroidery equipment and clothingaccessories such as belts, suspenders, braces. .

.(b) Not including yams or other threads (Cl. 5-01), decorative trimmings (Cl. 5-04), sewing, knitting and embroidery machines (Cl. 15-06) or sewing kits (containers) (Cl. 3-01).

02-99 MISCELLANEOUS

Class 3. Travel goods, cases, parasols and personal belongings, not elsewhere specified

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 3

Travel goods, cases, parasols and personal belongings, not elsewhere specified

03-01 TRUNKS, SUITCASES, BRIEFCASES, HANDBAGS, KEYHOLDERS, CASES SPECIALLY DESIGNED FOR THEIR CONTENTS, WALLETS AND SIMILAR ARTICLES

Note: Not including articles for the transport of goods (CI. 9) or cigar cases and cigarette cases (CI. 27-06).

03-02 [vacant]

03-03 UMBRELLAS, PARASOLS, SUt-JSHADES AND WALKING STICKS

03-04 FANS

03-99 MISCELLAN’EOUS

Class 4. Brushware

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 4

Brushware

04-01 BRUSHES AND BROOMS FOR CLEANING

Note: Not including clothes brushes (CI. 4-02).

04-02 TOILET BRUSHES, CLOTHES BRUSHES AND SHOE BRUSHES

Note: “Toilet brushes” means brushes for corporal use; for example, for the hair, nails or teeth,
04-03 BRUSHES FOR MACHINES.

Note: “Brushes for machines” means brushes incorporated in machines or in special vehicles.

04-04 PAINT BRUSHES, BRUSHES FOR USE IN COOKING

04-99 MISCELLANEOUS

Class 5. Textile piecegoods, artificial and natural sheet material

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-
“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 5

Textile piecegoods, artificial and natural sheet material

Notes: (a) Including all textile or similar articles, sold by the yard and not made up.

(b) Not including ready-made articles (Cl. 2 or 6).

05-01 SPUN ARTICLES

Notes: (a) Including yarn and thread.

(b) Not including, for instance, rope, wire rope, string, twine (Cl. 9-06).

05-02 LACE

05-03 EMBROIDERY

05-04 RIBBONS, BRAIDS AND OTHER DECORATIVE TRIMMINGS

05-05 TEXTILE FABRICS

Note: Including textile fabrics.woven, knitted or otherwise manufactured, tarpaulins, felt and loden.

05-06 ARTIFICIAL OR NATURAL SHEET MATERIAL

Notes: (a) Including sheets whose only characteristic features are their surface ornamentation or their texture; in particular, covering sheets such as wallpaper, linoleum, self-adhesive plastic sheets, wrapping sheets and rolls of paper, subject to the exceptions indicated under (b).

(b) Not including writing paper, even in rolls (Cl. 19-01), or sheets used as building components, such as wall panels and wainscoting (Cl. 25-01).

05-99 MISCELLANEOUS

Class 6. Furnishing

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 6

Furnishing

Notes: (a) Composite furniture articles embodying components included in several subcl

(b) Sets offurniture, as far as they can be looked upon as one design;are classified in Class 6-05.

(c) Not including textile piecegoods (Cl. 5).

06-01 SEATS

Notes: (a) including all seats even if they are suitable for laying, such as benches, couches, divans [sofas], ottomans, benches for saunas and sofas.

(b) Includirig vehicle seats.

06-02 BEDS .

Notes: (a) Including mattress supports.

(b) Notincluding seats suitable for laying eel. (Cl. 6-01), such as benches, couches, divans [sofas], ottomans, benches for saunas and sofas.

06-03 TABLES ANDISIMILAR FURNITURE

06-04 STORAGE FURNITURE

Note: Including cupboards, furniture with drawers or compartments, and shelves.

06-05 COMPOSITE FURNITURE

06-06 OTHER FURNITURE AND FURNITURE PARTS

06-07 MIRRORS AND FRAMES

Note: Not including mirrors included in other classes (see Alphabetical List).
I
06-08 CLOTHES HANGERS

06-09 MATTRESSES AND CUSHIONS

06-10 CURTAINS AND INDOOR BLINDS

06-11 CARPETS, MATS AND RUGS

06-12 TAPESTRIES .

06-13 BLANKETS AND OTHER COVERING MATERIAl-S, HOUSEHOLD LINEN AND NAPERY

Note: Including furniture covers, bedspreads and table covers.

06-99 MISCELLANEOUS.

Class 7. Household goods, not elsewhere specified

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 7

Household goods, not elsewhere specified

Notes: (a) Including household appllanses and utensils operated by hand, even if motor driven.

(b) Not including ma~hines and appliances for preparing food and drink (Cl. 31).

07-01 CHINA, GLASSWARE, DISHES AND OTHER ARTICLES OF A SIMILAR NATURE

Notes: (a) Including dishes and crockery in all materials; in particular, paper and cardboard dishes.

(b) Not including cooking utensils and containers, such as glass and earthenware pots (Cl.7-02), or flower vases, flower pots and china and glassware ,of a purely ornamental nature (Cl. 11-02).’

07-02 COOKI.NG APPLIANCES, UTENSILS.AND CONTAINERS ..

07-03 TABLE KNIVES,. FORKS AND SPOONS

07-04 APPLIANCES AND UTENSILS, HAND..MANIPULATED, FOR PREPARING FOOD OR DRINK

Note: Not including appliances and utensils classified in Class 7-02 and in Class 31.

07-05 FLAT IRONS AND WASHING, CLEANING AND DRYING EQUIPMENT

Note: Not including electric household appliances for washing, cleaning or drying (Cl. 15-05).

07-06 OTHER TABLE UTENSILS

07-07 OTHER HOUSEHOLD RECEPTACLES

07-08 FIREPLACE IMPLEMENTS

07-99 MISCELLANE0US

Class 8. Tools and hardware

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification of Goods

(See rule 10)

CLASS 8

Tools and hardware

Notes: (a) Including hand-operated tools, even ifmechanical power takes the place of muscular force; for example, .electric saws and drills.

(b) Not including machines or machine tools (Cl. 15 or 31).

08-01 TOOLS AND IMPLEMENTS FOR DRILLING, MILLING OR DIGGING

08-02 HAMMERS AND OTHER SIMILAR TOOLS AND IMPLEMENTS

08~03 CUTTING TOOLS AND IMPLEMENTS

Notes: (a) Including tools and instruments for sawing.

08-04 SCREWDRIVERS AND OTHER SIMILAR TOOLS AND IMPLEMENTS

08-05 OTHE’R TOOLS AND’IMPLEMENTS

Note: Including tools which are not classified, or not to be placed, in other subclasses or Classes.

08-06 HANDLES, KNOBS AND HINGES

08-07 LOCKING OR CLOSING DEVICES

08-08 FASTENING, SUPPORTING OR MOUNTING DEVICES NOT INCLUDED IN OTHER CLASSES

Notes: (a) Including nails, screws, nuts and bolts.

(b) Not including fastening devices for clothing (Cl. 2-07), for adornment (Cl. 11-01), or for office use (Cl. 19-02).

08-09 METAL FITTINGS AND MOUNTINGS FOR DOORS, WINDOWS AND FURNITURE, AND SIMILAR ARTICLES

08-10 BICYCLE AND MOTORCYCLE RACKS

08-99 MISCELLANEOUS

Note: Including non-electric cables, regardless Ofthe material of which they are made.

Class 9. Packages and containers for the transport or handling of goods

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 9

Packages and containers for the transport or handling of goods

09-01 BOTTLES, FLASKS, POTS, CARBOYS, DEMIJOHNS, AND CONTAINERS WITH DYNAMIC DISPENSING MEANS

Notes: (a) “Pots” means those serving as containers.

(b) Not including pots regarded as crockery (Cl.7-01), or flower pots (Cl. 11-02).

09-02 STORAGE CANS, DRUMS AND CASKS

09:03 BOXES, CASES, CONTAINERS, (PRESERVE) TINS OR CANS

Note: Including freight containers.

09-04 HAMPERS, CRATES AND BASKETS

09-05 BAGS, SACHETS, TUBES AND CAPSULES

Notes: (a) Including plastic bags or sachets, with or without handle or means of closing.

(b) “Capsules” means those used for packaging.

09-06 ROPES AND HOOPING MATERIALS

09-07CLOSING MEANS AND ATTACHMENTS

Notes: (a) Including only closing means for packages.

(b) “Attachments” means, for example, dispensing and dosing devices incorporated in containers and detachable atomizers.

09-08 PALLETS,AND PLATFORM~4 FOR FORKLIFTS

09-09 REFUSE AND TRASH CONTAINERS AND STANDS THEREFOR

09-99 M~SCELLANEOUS

Class 10. Clocks and watches and other measuring instruments, checking and signalling

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 10

Clocks and watches and other measuring instruments, checking and signalling instruments

10-01 CLOCKS AND ALARM CLOCKS

10-02 WATCHES AND WRIST WATCHES

10-03 OTHER TIME-MEASURING INSTRUMENTS

Note: Including time-measuring apparatus such as parking meters, timers for kitchen use and similar instruments.

10-04 OTHER MEASURING INSTRUMENTS, APPARATUS AND DEVICES

Notes: (a) Including instruments, apparatus and devices for measuring temperature, pressure, weight, length, volume and electricity.

(b) Not including exposure meters (Cl. 16-05).

10-05 INSTRUMENTS, APPARATUS AND DEVICES FOR CHECKING, SECURITY OR TESTING

.10-06 SIGNALLING APPARATUS AND DEVICES

Note: Not including lighting or signalling devices for vehicles (CL.26-06).

10.07 CASINGS, CASES, DIALS, HANDS AND ALLOTHER PARTS AND ACCESSORIES OF INSTRUMENTS FOR MEASURING, CHECKING AND SIGNALLING

Note: “Casings” means watch and clock casings and aU ,Gilsings,being integral parts of instruments of which they protect the mechanism, with the exception of cases specially designed for their contents (CI. 3-01) or for packaging (CI. 9-03).

10-99 MISCELLANEOUS

Class 11. Articles of adornment

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 11

Articles of adornment

11-01 JEWELLERY

Notes: (a) Including fancy and imitation jewellery.

(b) Not including watches (Cl. 10-02).

11-02 TRINKETS, TABLE, MANTEL AND WALL ORNAMENTS, FLOWER VASES AND POTS

Note: Including sculptures, mobiles and statues.

11-03 MEDALS AND BADGES”

11-04 ARTIFICIAL FLOWERS, FRUIT AND PLANTS

11-O5 FLAGS, FESTIVE DECORATIONS

Notes: (a) Including garlands, streamers and, Christmas tree decorations.

(b) Not including candles (Cl. 26-04).

11-99 MISCELLANEOUS

Class 12. Means of transport or hoisting

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 12

Means of transport or hoisting

Notes: (a) Including all vehicles: land, sea, air, space and others.

(b) Including parts, components and accessories which exist only in connection with a vehicle and cannot be placed in another class; these parts, components and accessories of . vehicles are to be placed in the subclass of the vehicle in question, or in Class 12-16 if they are c.ommon to several vehicles included in different subclasses. .

(c) Not including, in principle, parts, components and accessories ofvehicles which can be placed in another class; these parts, components and accessories are to be placed in the same class as articles of the same type, in other words, having the same function. Thus, carpets or mats for automobiles are to be placed with carpets (Cl. 6-11 ); electric motors for vehicles are to be placed in Class 13-01, and non-electric motors for vehicles in Class. 15-01 (the same applies to the components of such motors); automobile headlamps are to be placed with lighting apparatus (Cl. 26-06).

(d) Not including scale models ofvehicles (Cl. 21-01).

12-01 VEHICLES DRAWN BY ANIMALS

12-02 HANDCARTS, WHEELBARROWS

12-03 LOCOMOTIVES AND ROLLING STOCK FOR RAILWAYS AND ALL OTHER RAIL VEHICLES

12-04TELPHER CARRIERS, CHAIR LIFTS AND SKI LIFTS

12-05 ELEVATORS AND HOISTS FOR LOADING OR CONVEYING

Note: Including passenger lifts, goods lifts, cranes, forklift trucks and conveyor belts.

12-06 SHIPS AND BOATS

12-07 AIRCRAFTS AND SPACE VEHICLES

12-08 MOTOR CARS, BUSES AND LORRIES

Note: Including ambulances and refrigerator vans (road).

12-09 TRACTORS

12-10 ROAD VEHICLE TRAILERS

Note: Including caravans.

12-.11 CYCLES AND MOTORCYCLES

12-12 PERAMBULATORS, INVALID CHAIRS, STRETCHERS

12-13 SPECIAL PURPOSE VEHICLES

Notes: (a) Including only vehicles not specifically intended for transport, such asstreet-cleaning vehicles, watering “lorries, fire engines, snow ploughs and breakdown lorries.

(b) Not including mixed-purpose agricultural machines (Cl. 15-03), or self-propelled machines for use in construction and civil engineering (Cl. 15-04).

12-14 OTHER VEHICLES

Note: Including sleighs and air-cushion vehicles.

12-15 TYRES AND ANTI-SKID CHAINS FOR VEHICLES

12-16 PARTS, EQUIPMENT ANQ ACCESSORIES FOR VEHICLES, NOT INCLUDED IN OTHER CLASSES OR SUBCLASSES

12-99 MISCELLANEOUS

Class 13. Equipment for production, distribution or transformation of electricity

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 13

Equipment for production, distribution or transformation of electricity

Notes: (a) Including only apparatus which produces, distributes or transforms electric current.

(b) Including electric motors, however.

(c) Not including electrically-driven apparatus, such as electric watches (Cl. 10-02), or apparatus {or the measurement of electric current (CI. 10-04).

13-01GENERATORS AND MOTORS

Note: Including electric motors for vehicles.

13-02 POWER TRANSFORMERS, ‘RECTIFIERS; BATTERIES AND ACCUMULATORS

13-03 EQUIPMENT FOR DISTRIBUTION OR CONTROL OF ELECTRIC POWER

Note: Including conductors, switches and switchboards.. I
13-99 MISCELLANEOUS

Class 14. Recording, communication or information retrieval equipment

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 14

Recording, communication or information retrieval equipment

14-01 EQUIPMENT FOR THE RECORDING OR REPRODUCTION OF SOUNDS OR PICTURES

Note: Not including photographic or cinematographic apparatus (CI. 16).

14-02 DATA PROCESSING EQUIPMENT AS WELL AS PERIPHERAL APPARATUS AND DEVICES

14-03 COMMUNICATIONS EQUIPMENT, WIRELESS REMOTE CONTROLS AND RADIO AMPLIFIERS

Note: Including telegraphic, telephone and television apparatus, as well as wireless apparatus and teleprinters.

14-04 SCREEN DISPLAYS AND ICONS

14-99 MISCELLANEOUS

Class 15. Machines, not elsewhere specified

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 15

Machines, not elsewhere specified

15-01 ENGINES

Notes: (a) Including non-electric engines for vehicles.

(b) Not including electric motors (Cl. 13).

15-02 PUMPS AND COMPRESSORS

Note: Not including hand or foot pumps (Cl. 8-05), or fire extinguishing pumps (Cl. 29-01).

15-03 AGRICULTURAL MACHINERY

Notes: (a) Including ploughs and combined machinery, i.e., both machines and vehicles, for example, reaping and binding machines

(b) Not including hand tools (Cl. 8).

15-04 CONSTRUCTION MACHINERY

Notes: (a) Including machines used in civil engineering and self-propelled machines such as excavators, concrete mixers and dredgers.

(b) Not including hoists and cranes (Cl. 12-05).

15-05 WASHING, CLEANING AND DRYING MACHINES

Notes: (a) Including appliances and machines for treating linen and clothes, such as ironing machines and wringers.

(b) Including dishwashing machines and industrial drying equipment.

15-06. TEXTILE, SEWING, KNITTING AND EMBROIDERING MACHINES, INCLUDING THEIR INTEGRAL PARTS

15-07 REFRIGERATION MACHINERY AND APPARATUS

Notes: (a) Including household refrigeration apparatus.

(b) Not including refrigerator wagons (rail) (Cl. 12-03) or refrigerator vans (road) (CI. 12-08).

15-08 [vacant]

15-09 MACHlNE TOOLS, ABRADING AND FOUNDING MACHINERY

Note: Not including earth working machinery and material separators (Cl. 15-99).

15-99 MISCELLANEOUS

Class 16. Photographic, cinematographic and optical apparatus

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 16

Photographic,’ cinematographic and optical apparatus

Note: Not including lamps for photography or filming (Cl. 26-05).

16-01 PHOTOGRAPHIC CAMERAS AND FILM CAMERAS

16-02 PROJECTORS AND VIEWERS

16-03 PHOTOCOPYING APPARATUS AND ENLARGERS

Note: Including microfilming equipment and apparatus for viewing microfilms, as well as office machines known as “photocopying” apparatus which use other than photographic processes (in particular, thermal or magnetic processes).

16-04 DEVELOPING APPARATUS AND EQUIPMENT

16-05 ACCESSORIES

Note: Including filters for photographic cameras, exposure meters, tripods and photographic flashlight apparatus.

16-06 OPTICAL ARTICLES

Notes: (a) Including spectacles and microscopes.

(b) .Not including measuring instruments embodying optical devices (Cl. 10-04).

16-99 MISCELLANEOUS

Class 17. Musical instruments

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 17

Musical instruments

Note: Not including cases for musical instruments (CI. 3-01), or equipment for the recording or reproduction of sounds (Cl. 14-01).

17-01 KEYBOARD INSTRUMENTS

Note: Including electronic and other organs, accordions, and mechanical and other pianos.

17-02 WIND INSTRUMENTS

Note: Not including organs, harmoniums and accordions (Cl. 17-01).

17-03 STRINGED INSTRUMENTS

17-04 PERCUSSION INSTRUMENTS

17-05 MECHANICAL INSTRUMENTS

Notes: (a) Including music boxes.

(b) Not including mechanical keyboard instruments (Cl. 17-01).

17-99 MISCELLANEOUS

Class 18. Printing and office machinery

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 18

Printing and office machinery

18-01 TYPEWRITERS AND CALCULATING MACHINES

Note: Not including computers and other apparatus to be placed in Class 14-02.

Notes: (a) Including typesetting machines, stereotype machines and apparatus, typographic machines and other reproducing machines such as duplicators and offset equipment, as well as addressing machines, franking and cancelling machines.

(b) Not including photocopying machinery (C1. 16-03).

18-03 TYPE AND TYPE FACES

18-04 BOOKBINDING MACHINES, PRINTERS STAPLING MACHINES, GUILLOTINES AND TRIMMERS (FOR BOOKBINDING)

Note: Including machines and similar devices for cutting paper, analogous to guillotines and trimmers.

18-99 MISCELLANEOUS

Class 19. Stationery and office equipment, artists and teaching materials

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 19

Stationery and office equipment, artists and teaching materials

19-61 WRITING PAPER, CARDS FOR CORRESPONDENCE AND ANNOUNCEMENTS

Note: Including all paper, in the widest sense ofthe term, which.is used for writing, drawing, painting or printing, such as tracing paper, carbon paper, newsprint, envelopes, greetings cards and-illustrated postcards, even ifthey embody a sound recording.

19-02 OFFICE EQUIPMENT

Notes: (a) Including equipment-used at cash desks, such as change sorters.

(b) Some office equipment is to be placed in other subclasses or classes; for example, office furniture in Class 6, office machines and equipment in Classes 14-02; 16-03; 18-01; 18-02 or 18-04, and writing materials in Class 19-01 or 19-06 (see Alphabetical List).

19-03 CALENDARS

Note: Not including-diaries (Cl. 19-04).

19-04 BOOKS AND OTHER OBJECTS OF SIMILAR OUTWARD APPEARANCE

Note: Including covers of books, bindings, albums, diaries and similar objects.

19-05 [vacant]

19-06 MATERIALS AND INSTRUMENTS FORWRITING BY HAND, FOR DRAWING, FOR PAINTING, FOR SCULPTURE, FOR ENGRAVING AND FOR OTHER ARTISTIC TECHNIQUES

Note: Not including paintbrushes (Cl. 4-04), drawing tables and attached equipment (Cl. 6-03), or writing paper (Cl. 19-01).

19-07 TEACHING MATERIALS

Notes: (a) Including maps ofall kinds, globes and planetariums.

(b) Not including audio-visual teaching aids (CI. 14-01).

19-08 OTHER PRINTED MATTER

Note: Including printed advertising materials.

19-99 MISCELLANEOUS

Class 20. Sales and advertising equipment, signs

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 20

Sales and advertising equipment, signs

20-01 AUTOMAtiC VENDING MACHINES

20-02 DISPLAY AND SALES EQUIPMENT

Note: Not including articles of furniture (Cl. 6).

20-03 SIGNS, SIGNBOARDS AND ADVERTISING DEVICES

Notes: (a) Including luminous advertising devices and mobile advertising devices.

(b) Not including packages (Cl. 9), or signalling devices (Cl. 10-06).

20-99 MISCELLANEOUS

Class 21. Games, toys, tents and sports goods

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 21

Games, toys, tents and sports goods

21-01 GAMES AND TOYS

Notes: (a) Including scale models.

(b) Not including toys for animals (CI. 30-99).

21-02 GYMNASTICS AND SPORTS APPARATUS AND EQUIPMENT

Notes: (a) Including, as sports equipment: apparatus and equipment necessary for the various sports which have no other specific purpose, such as footballs, skis and tennis rackets, to the exclusion of all other objects which may also be used in practising a given sport.

(b) Including, subject to the reservation mentioned under (a), training equipment and apparatus and equipment necessary for outdoor games.

(c) Not including sports clothing (Cl. 2), toboggans or sleighs (Cl. 12-14).

21-03 OTHER AMUSEMENT AND ENTERTAINMENT ARTICLES

Notes: (a) Including fairground roundabouts and automatic machines for games of chance.

(b) Not including games and toys (CI. 21-01), or other articles to be placed in Class 21-01 or 21-02.

21-04 TENTS AND ACCESSORIES THEREOF

Notes: (a) Including poles, pegs and other similar articles.

(b) Not including other camping articles to be placed in other classes according to their nature, such as chairs (Cl. 6-01), tables (Cl.6-03), plates (Cl. 7-01), and caravans (Cl. 12-10).

21-99 MISCELLANEOUS

Class 22. Arms, pyrotechnic articles, articles for hunting, fishing and pest killing

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE
Classification ofGoods

(See rule 10)

CLASS 22

Arms, pyrotechnic articles, articles for hunting, fishing and pest killing

22-01 PROJECTILE WEAPONS

22-02 OTHER WEAPONS

22-03 AMMUNITION, ROCKETS AND PYROTECHNIC ARTICLES

22-04 TARGETS AND ACCESSORIES

Note: Including the special device for actuating mobile targets.

22-05 HUNTING AND FISHING EQUIPMENT

Note: Not including articles of clothing (CI. 2), or weapons (CI. 22-01 or 22-02).

22-06 TRAPS, ARTICLES FOR PEST KILLING

22-99 MISCELLANEOUS

Class 23. Fluid distribution equipment, sanitary, heating, ventilation and air-conditioning equipment, solid fuel

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification of Goods

(See rule 10)

CLASS 23

Fluid distribution equipment, sanitary, heating, ventilation and air-conditioning equipment, solid fuel

23-01 FLUID DISTRIBUTION EQUIPMENT

Note: Including pipes and pipe fittings.

23-02 SANITARY APPLIANCES

Notes: (a) Including baths, showers, washbasins, saunas, water closets, sanitary units and sanitary accessories not included in other classes.

(b). Not including pipes or pipe fittings (Cl. 23-01).

23-03 HEATING EQUIPMENT

23-04 VENTILATION AND AIR-CONDITIONING EQUIPMENT

23-05 SOLID FUEL

23-99 MISCELLANEOUS

Class 24. Medical and laboratory equipment

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 24

Medical and laboratory equipment

Note: The term “medical equipment” covers also surgical, dental and veterinary equipment.

24-01 APPARATUS AND EQUIPMENT FOR DOCTORS, HOSPITALS AND LABORATORIES

24-02 MEOfCAL1NSTRUMENTS, INSTRUMENTS AND TOOLS FOR LABORATORY USE

Note: Including only hand-operated instruments.

24-03 PROSTHETIC ARTICLES

24-04 MATERIALS FOR DRESSING WOUNDS NURSING AND MEDICAL CARE

Note: Including absorbent dressings.

24-99 MISCELLANEOUS

Class 25. Building units and construction elements

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 25

Building units and construction elements

25-01 BUILDING MATERIALS

Note: Including bricks, beams, pre-shaped strips, tiles, slates and panels.

25-02 PREFABRICATED OR PRE-ASSEMBLED BUILDING PARTS

Notes: (a) Including windows, doors, outdoor shutters, partition walls and gratings,

(b) Not including staircases (Cl. 25-04).

25-03 HOUSES, GARAGES AND OTHER BUILDINGS

25-04 STEPS, LADDERS AND SCAFFOLDS

25-99 MISCELLANEOUS

Class 26. Lighting apparatus

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 26

Lighting apparatus

26-01 CANDLESTICKS AND CANDELABRA

26-02 TORCHES AND HAND LAMPS AND LANTERNS

26-03″ PUBLIC LIGHTING FIXTURES

Note: Including outside lamps, stage lighting and search light projectors.

26-04 LUMINOUS SOURCES, ELECTRICAL OR NOT

Note: Including bulbs for electric lamps, luminous plaques and tubes and candles.

26-05 LAMPS. STANDARD LAMPS, CHANDELIERS, WALL AND CEILING FIXTURES, LAMPSHADES, REFLECTORS, PHOTOGRAPHIC AND CINEMATOGRAPHIC PROJECTOR LAMPS

26-06 LUMINOUS DEVICES FOR VEHICLES

26-99 MISCELLANEOUS

Class 27. Tobacco and smokers supplies

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 27

Tobacco and smokers supplies

27-01 TOBACCO, OIGARS AND CIGARETTES

27-02 PIPES. CIGAR AND CIGARETTE HOLDERS

27-03 ASHTRAYS

27-04 MATCHES

27-05 LIGHTERS

27-06 CIGAR CASES, CIGARETTE CASES, TOBACCO JARS AND POUCHES

Note: Not including packages (CI. 9).

27-99 MISCELLANEOUS

Class 28. Pharmaceutical and cosmetic products, toilet articles and apparatus

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification of Goods

(See rule 10)

CLASS 28

Pharmaceutical and cosmetic products, toilet articles and apparatus

28-01 PHARMACEUTICAL PRODUCTS

Notes: (a) Including for animals.

‘(b) Including chemicals in cachet; capsule, lozenge, pill and tablet forms.

(c )Not including materials for dressing wounds and nursing (Cl. 24-04).

28-02 COSMETIC PRODUCTS

Note: Including for animals.

28-03 TOILET ARTICLES AND BEAUTY PARLOR EQUIPMENT

Notes: (a) Including razors, apparatus and appliances for massaging, hair removing or hair dressing.

(b) Not including toilet and make-up brushes (CI. 4-02), or articles and equipment for animals (Cl. 30-99).

28-04 W, 3 FALSE HAIRPIECES

28-99 MISCELLANEOUS

Class 29. Devices and equipment against fire hazards, for accident prevention and for rescue

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 29

Devices and equipment against fire hazards, for accident prevention and for rescue

29-01 DEVICES AND EQUIPMENT AGAINST FIRE HAZARDS

Notes: (a) Including fire extinguishers.

(b) Not including fire engines (vehicles) (Cl. 12-13), fire-hoses and nozzles for fire-hoses (Cl. 23-01).

29-02 DEVICES AND EQUIPMENT FOR ACCIDENT PREVENTION AND FOR RESCUE, NOT ELSEWHERE SPECIFIED

Notes: (a) Including devices and equipment for animals.

(b) Not including helmets (CI. 2-03) and garments for protection against accidents (CI. 2-02; 2-04 or 2-06).

29-99 MISCELLANEOUS

Class 30. Articles for the care and handling of animals

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 30

Articles for the care and handling of animals

Note: Not including animal foodstuffs (CI. 1), or pharmaceutical and cosmetic products for animals (Cl. 28-01 or 28-02).

30-01 ANIMAL CLOTHING

30-02 PENS, CAGES, KENNELS AND SIMILAR SHELTERS

Note: Not including buildings (CI. 25).

30-03 FEEDERS AND WATERERS

30-04 SADDLERY

Note: Including collars for animals.

30-05 WHIPS AND PRODS

30-06 BEDS AND NESTS

30-07 PERCHES AND OTHER CAGE ATTACHMENTS

30-08 MARKERS, MARKS AND SHACKLES

30-09 HITCHING POSTS

30-99 MISCELLANEOUS

Class 31. Machines and appliances for preparing food or drink not elsewhere specified

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 31

Machines and appliances for preparing food or drink not elsewhere specified

Note: Not including hand-manipulated utensils, instruments and appliances for serving or preparing food or drink (Cl. 7).

31-00 MACHINES AND APPLIANCES FOR PREPARING FOOD OR DRINK, NOT ELSEWHERE SPECIFIED.

Class 99. Miscellaneous

The THIRD SCHEDULEof the principal rules shall be substituted, namely.-

“THE THIRD SCHEDULE

Classification ofGoods

(See rule 10)

CLASS 99

Miscellaneous

Note: Including all the products not included in the preceding classes.

99-00 MISCELLANEOUS

Schedule 4.

In theTHE FOURTH SCHEDULEof the principal niles, :-

(a) for items number 6 and 7 and entries relating thereto, the following item and entries shall be substituted namely,

“6 For statement and evidence under Rules 29(1) and 40(2) 200.00
7 Counter statement and evidenceurider rules 29(3) and 40(4) 200:00″

Schedule 5.

After fourth Schedule ofthe principal rules, the following Schedule shall be inserted, namely:-

THE FIFTH SCHEDULE

(See Rule 17)

ORIGINAL

No.

GOVERNMENT OF INDIA

THE PATENT OFFICE

CERTIFICATE OF REGISTRATION OF DESIGN

Design No ……………………………………………………….
Date ……………………………………………………………….
Reciprocity date*……………………………………………….
Country …………………………………………………………..

Certified that the Design of which a copy is annexed hereto has been registered as of the number and date given above in class .in respect of the application of such.design to………………………………………….

…………………………………………………………………………………… in the name of.
………………………………………………………………………………………………………………

………………………………………………………………………………………………………………

………………………………………………………………………………………………………………

………………………………………………………………………………………………………………

…………………………………………………………………….

in pursuance of and subject to the provisions of the Designs Act, 2000 and the Designs Rules, 2001.

Controller General of Patents, Designs and Trade Marks

________________________________________________________

*The reciprocity date (if any)which has been allowed and the name of the country.

Copyright in the design will subsist for ten years from the date of Registration, and may under the terms of the Act and Rules, be extended for a further period of five years.

This Certificate is not for use in legal proceedings or for obtaining registration abroad.
Date of issue”
[F. No. S/32/2007-IPR-V] N. N. PRASAD, Jt. Secy.
Note :The principal rules were published in the Gazette of India vide number S.O. 414(E) dated the 11thMay, .2001.