Exhibition and Marking of documents during evidence

 What is tendering of a document?

At the stage of evidence, the process of producing documents by a party before the court is referred to as 'tendering'. Although most of the documents (except documents with which the opposite party is confronted) are already on the judicial file, at the stage of evidence, they are formally produced and given an identity by providing a nomenclature by using alphabets and letters. Thereafter, those documents become evidence, subject to them being proved under the Indian Evidence Act, 1872 (IEA) and other laws.

What are exhibits and marks?

Similar to how parents give a name to their child, the court gives the document a nomenclature for identity. Once given an identity, these documents then become part of the judicial record. Thus, the documents which are produced at the stage of evidence and given nomenclature by using alphabets and numbers for identification are referred to as exhibits and marks.

What is the origin of the practice of using exhibits or marks?

There is no legal definition of exhibits or marks in any statute and the origin of the terms is out of customary practice. The Delhi High Court in Sudhir Engineering Company v. Nitco Roadways Ltd, categorically held that the practice of exhibition or marking has evolved merely out of customary practice and is without any legal backing.

The only other reference where there is a mention of exhibits is in Part G, Volume I of Chapter 1 of the Delhi High Court (Original Side) Rules, 1967 which provides that every document admitted into evidence must be marked with an exhibit number. Further, there is an Original Side Practice Direction (No.3 of 1974) of the Delhi High COurt, para 6 and 7 which directs the court master to give a label to every document during the trial, with letters indicating the party by whom the exhibit is put. Order 13 Rule 4 of the Code of Civil Procedure (CPC) also provides for making an endorsement on documents that are admitted in evidence.

What is the difference between exhibits and marks?

There is as such no difference between them. It is incorrectly believed that the exhibits are legally admissible and are at a higher pedestal while documents which are marked are not. Marked documents can also be considered legally admissible if they are proved in accordance with the law.

The customary practice being followed is that documents that are not original, such as photocopies of documents, are given the identity of a mark. But this is a practice being followed without any legal basis.

Why should documents be given an identity?

The identity given to a document would help the court and party refer easily to those documents. Instead of saying "Statement under Section 164 CrPC of Victim A" each time, the document can be referred to as Ex. PW1/A. The lawyers can address final arguments with ease and the judge can refer to those documents in a judgment with less confusion. It also helps the appellate courts in locating and referring to the documents.

How to decide what name should be given to a document?

In Sudhir, the Court discussed the various practices in arriving at a name for a document:

Main documents

In Delhi, the courts usually give the identity to a document as Ex.PW1/1, where the following letters stand for as given below:

Ex.: Exhibit,

P : Plaintiff,

1 : first witness and

the last 1: serial number of the document.

The other documents would be denoted by the consecutive name of Ex. PW1/2, Ex.PW1/3, etc and in case of a second witness, the identity would be Ex.PW2/1, Ex.PW2/2, etc.

Similarly, the documents brought in evidence by defence witnesses would be Ex.DW1/1, Ex. DW1/2 etc.

Admitted documents

The admitted documents are referred to as Ex. P-1, Ex.P-2 and in case of defence witnesses, as Ex.D-1 or Ex.D-2.

Documents put during cross-examination

During cross-examination, documents put by the other party are referred to as Ex.PW1/DW1, Ex.PW1/DW2 or Ex.DW1/PW1, Ex.DW1/PW2 etc.

Documents objected to by the opposite party

The documents that are objected to by the opposite party are usually given an identity only by using an alphabet and not a number. For example, the photocopy of a memorandum of association would be Mark A.

If a document is exhibited, is it considered to be proved?

Endorsement of an exhibit number does not mean that the document has been proved. The document is still to be proved as per the IEA and its evidentiary value will be appreciated by the court. (In Sudhir, the court stated that the mere marking of an exhibit on a document does not dispense with the formal proof thereof. This was also reiterated by the apex court in Narbada Devi Gupta v. Birendra Kumar Jaiswal). Hence, when the court gives it an exhibit number, the lawyer should not assume that his job is done.

For example, in a suit for recovery of money, the plaintiff has relied upon certain invoices. Those invoices have been exhibited as Ex.PW1/1(Colly.) But at the time of recording of evidence, the shopkeeper who issued those invoices does not appear in the witness box, then those documents, even though exhibited, will not be regarded as proved. Unless of course, they are admitted.

The final evaluation of the exhibited or marked documents would be by the court, at the time of final judgment, once cross-examination has been concluded. The court will conclude whether the contents of the documents are truthful or not while weighing the testimonies of the witnesses.

Conclusion

Documents that are formally produced at the stage of evidence are given an identity and referred to as exhibits or marks. There is no difference between them and both have to be proved as per the Indian Evidence Act. Their evidentiary value is to be analyzed by the courts at the time of final judgment. Too much time is wasted in courts in arguing on whether a document is an exhibit or a mark as some lawyers fail to understand that it is just an administrative exercise.

PAROLE & FURLOUGH

"Parole rule in Delhi: Parole is granted to the convicts whose appeal against conviction has been decided by the appellate court. There is no restriction on a convict about the number of times he applied for parole. The parole is generally granted on the grounds of sickness, death, marriage, property dispute, education or any other sufficient reasons. This is granted by the Hon'ble Lt.Governor, Govt. of National Capital Territory of Delhi. The parole is not admissible to the convict undergoing sentence in the NDPS cases. The period of parole is counted towards the total sentence of a prisoner"

THE LAW ON PAROLE AND FURLOUGH IN INDIA: AN OVERVIEW 

Parole: 

Parole is the conditional release of prisoners i.e. an early release of a prisoner, conditional on good behavior and regular reporting to the authorities for a set period of time1. The object behind parole is to grant some relief to the prisoners in certain exigencies which may be as follows: 

i. A member of the prisoner’s family has died or is seriously ill or the prisoner himself is seriously ill; 

ii. The marriage of the prisoner himself, his son, daughter, grandson, granddaughter, brother, sister, sister’s son or daughter is to be celebrated; 

iii. The temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation of his land or his father’s undivided land actually in possession of the prisoner; 

iv. It is desirable to do so for any other sufficient cause. 

Parole can be granted only after a portion of the sentence is served. If the conditions of parole are not abided by the parolee, he may be returned to serve his sentence in prison. 

There are many State Governments who have formulated guidelines on parole in order to bring out the objectivity in the decision making and to decide as to whether parole needs to be granted in a particular case or not. In such cases, the decision to whether grant parole or to not grant parole is taken in accordance with the guidelines so framed. The guidelines of some of the States stipulate two kinds of paroles, namely; (i) Custody Parole and (ii) Regular Parole. 

‘Custody Parole’ is generally granted in emergent circumstances like: 

i. Death of a family member; 

ii. Marriage of a family member; 

iii. Serious illness of a family member; 

iv. Any other emergent circumstances. 

Whereas ‘Regular Parole’ is granted in the following cases: 

i. Serious illness to a family member; 

ii. Critical conditions in the family on account of accident or death of a family member; 

iii. Marriage of any member of the family of the convict; 

iv. Delivery of a child by the wife of the convict if there is no other family member; to take care of the spouse at the time; 

v. Serious damage to life or property of the family of the convict including damages caused by natural calamities; 

vi. To maintain family and social ties; 

vii. To pursue the filing a of special leave petition before the Hon’ble Supreme Court against a judgment delivered by the High Court convicting or upholding conviction, as the case may be. 

Furlough: 

Furlough means granting leave of absence for a specified period of time to a convict from prison. It is a conditional release and is granted as good conduct remission. The right to be released on furlough is a substantial and a legal right of the prisoner and he cannot be denied the same if it is permissible under law2. Every State has formulated its own set of rules/guidelines for getting furlough. Whilst rules/guidelines of various States remain more or less the same in spirit, it is only the procedure for obtaining furlough which varies from State to State. 

The Hon’ble Division Bench of the Gujarat High Court3 has held that a convict may be denied furlough solely on ground of the offences committed by him as his release will hamper his reform or expose the society to the very danger to shield from which the convict is imprisoned. However, the Hon’ble Division Bench of the Delhi High Court4 disagreeing with the rationale of the Hon’ble Gujarat High Court held, that the seriousness of the offence cannot be a criteria to reject furlough without considering the convicts situation and reasons. The authority granting furlough in cases where the convict has been guilty of serious offences should do so with extra caution and also need to write a statement of reasons for granting furlough to such convicts. 

Difference Between Parole & Furlough: 

Over the years, the Hon’ble Supreme Court through various judicial pronouncements has differentiated between concept of parole and furlough, few of which are listed hereunder as follows: 

i. Parole can be granted in case of short-term imprisonment whereas furlough is granted in case of long-term imprisonment. 

ii. Duration of parole extends to one month whereas in case of furlough it extends to fourteen days maximum. 

iii. Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector of General of Prisons. 

iv. For parole a specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment. 

v. The term of imprisonment is not included in the computation of the term parole, whereas it is vise-versa in furlough. 

vi. Parole can be granted number of times whereas there is a limitation in the case of furlough. 

Legal Provisions

The Delhi Prisons Act, 2000

Section 2(h) defines the term “furlough”, which means ‘leave as a reward granted to a convicted prisoner who has been sentenced to rigorous imprisonment for five years or more and has undergone three years thereof.”

Clause (p) defines “Parole system”, which means ‘the system of releasing prisoners from prison or parole by suspension of their sentences in accordance with the rules.”

Section 54 talks about the provision of punishment for not fulfilling conditions subject to which remission, etc has not been given, and where any prisoner who fails without sufficient cause to observe any of the conditions on, or subject to, which his sentence was remitted or suspend, or he was released on parole or furlough, the competent authority may cancel such order granting remission, suspension, or parole or furlough, and also-

• If the prisoner is at large, he shall be arrested by any police officer without a warrant and remanded to undergo the unexpired portion of his sentence;
• Shall on conviction by a Court, be punishable, in addition to the sentence he is undergoing with imprisonment for a term which may extend to two years, or with fine, or with both.

Section 71 talks about the power of Government to make rules, where Clause (xxix) provides for the grant of parole, furlough and leave to prisoners.

Delhi Prison Rules, 2018

Chapter-XIX has provided a list of rules for regulation of Parole & Furlough in relation to the provisions relating to Custody and Regular Parole, the Procedure for disposal of Parole Applications, provisions relating to Furlough, the Procedure for disposal of Furlough Applications and other related provisions as well.

Judicial Approach

The Courts of this country have taken various views and opinions in discussing the laws related to both Parole and furlough, as well as they have provided, in some instances, the differences between the two. The most notable ones are as follows.

In the case of State of Haryana v. Mohinder Singh, the apex Court was of the opinion that “‘furlough’ and ‘parole’ are two distinct terms now being used in the Jail Manuals or laws relating to temporary release of prisoners. These two terms have acquired different meanings in the statute with varied results. Dictionary meanings, therefore, are not quite helpful. It would be thus seen that when a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough, he is eligible to have the period of release counted towards the total period of his sentence undergone by him. The Delhi Jail Manual also uses the same terminology …”

In the case of Pralhad Gajbhiye v. State of Maharashtra, the Court made the observation that there is a difference between furlough and parole, and held that furlough is a matter of right, whereas parole cannot be claimed as a matter of right.

In the case of Kantilal Nandlal Jaiswal v. Divisional Commissioner and Anr., the Bombay High Court went over the provisions of the Bombay Parole and Furlough Rules, 1959 as amended by the Government Notification dated 16th April 2018, which lays down the objectives for grant of Furlough and Parole, as well as the rules relating to ‘Release of prisoner on Parole’ with regard to Emergency and Regular parole.

The question raised in this petition before the Court was referred for its resolution to a larger Bench, that whether a parole is a right or was it a concession offered by the State or a mere administrative decision of the State dictated by its administrative policy or a special right of a prisoner in special circumstances, or something else. The petitioner, however, was granted the liberty to apply afresh for seeking leave of furlough or parole on new grounds.

In the case of Dinesh Kumar v. Govt. of NCT of Delhi, the High Court of Delhi laid down the meaning and purpose of both Parole and Furlough. The following observation were made by the bench-

“There is a subtle distinction between the two which has been explained by the Courts from time to time. A parole can be defined as conditional release of prisoners i.e., an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Under the aforesaid guidelines, such a release of the prisoner is temporarily on some basic grounds. It is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies. Such paroles are normally granted in certain situations …

Parole, on the other hand, is the release of a person from the detention of custody even though substantial legal effect may be the same as bail. It is a temporary release from custody which does not suspend the sentence or period of detention. Furlough, on the other hand, is a brief release from the prison. It is conditional and is given in case of long-term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission. A convict literally speaking, must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society. Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weight age while they are undergoing sentence of imprisonment.”

Reliance was also placed upon the Supreme Court through various pronouncements which have laid down the difference between parole and furlough, most notably in the case of State of Maharashtra v. Suresh Panduram, as well as State of Haryana v. Mohinder Singh.

Further, in the landmark judgment of Charanjit Lal v. State of Delhi it was held:-

“(i) The four main objectives which a state intends to achieve by punishing an offender are-Deterrence, prevention, Retribution and Reformation.

(ii) Life convicts’ release from jail off and on for short periods has to be considered and opportunities have to be afforded to them not only to solve their personal and family problems but also to maintain their links with society.

(iii) They must breathe fresh air for at least sometime provided, of course, they maintain good conduct consistently during incarceration and they show a tendency to reform them and become good citizens.

(iv) Redemption and rehabilitation of such prisoners for the good of the society must receive due weight while they are undergoing sentence of imprisonment.”

The provisions of parole and furlough, thus, provide for a humanistic approach towards convicts lodged in jails. The main purpose of such provisions is to afford convicts with an opportunity to resolve their personal and family problems and to enable them to maintain their links with society. Every citizen of this country ought to have a vested interested in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, employment prospects, fundamental knowledge of co-existing with the community they return to and without resources stands to diminish their prospects of reformation and increases their chances of failing to fit in the societal structure. Therefore, concepts such as parole and furlough, if used judiciously may help prepare convicts/prisoners to successfully re-enter society and live life as law-abiding citizens. 

How to file IPR Cases in the Court ?

 The Procedure to file copyright infringement case in court

First Step is How to institute The Suit:

A suit is instituted by the Presentation of a plaint. The procedure to be followed in suits is contained in The Procedure to be followed in the suits is contained in Section 26 to 35A of the Civil procedure Code and the rules of procedure in the First Schedule. The more important of these provisions which are relevant in respect of suits relating to

copyright are summarised below.

The suit for infringement of copyright should be filed before the District Court having jurisdiction or before the High Court having original jurisdiction.

Who should be Parties to suit:

All persons may be joined in one suit as plaintiff in whom any right to relief in respect of or arising out of the same act or transaction are series of acts or transactions is alleged to exist, whether in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise (Order: 1, Rule 1),

All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of act or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise (Order: 1, Rule. 3). one person may sue or defend on behalf of all in the same interest (Order: 1, Rule.8). Hence one or more of the co-owners of a copyright may sue on behalf of all the co-owners.

What should the Pleadings contain:

Every pleading should contain a statement in a concise form lf the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved (Order: 6, Rule. 2).

There is no special form prescribed for use in pleadings. One of the forms in Appendix “A" to the Civil Procedure Code may be used with suitable modifications (Order: 6, Rule. 3). Although pleadings must be concise, they must also be precise. All necessary particulars must therefore be stated in the pleading (Order: 6, Rule. 3).

A further and better statement of the nature of the claim or defence or further and better particulars of any matter stated in the pleading may be ordered by the court upon such terms as to costs and otherwise as may be just (Order: 6, Rule. 5 since omitted by the C.P.C. (Amendment) Act 1999 w.e.f. 1.7.2002).

The court may at any stage of the proceedings order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit (Order: 6, Rule. 16).

The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties (Order: 6, Rule. 17).

What should the Plaint Contain:

The plaint shall contain inter alia (Or. 7, r. 1) the following

namely:(1) the name of the court in which the suit is brought;

(2) the name, description and place of residence of the plaintiff,

(3) the name, description and place of residence of the defendant, so far as they may be ascertained

(4) the facts constituting the cause of action and when it arose,

(5) the facts showing that the court has jurisdiction; and

(6) the relief which the plaintiff claims.

Where the plaintiff relies on any documents (whether in his possession or power or not) as evidence in support of his claim, he should enter such documents in a list to be added or annexed to the plaint (Order: 7, Rule. 14). Where any such document is not in the power or possession of the plaintiff, he should on or power it is (Or. 7, r. 15 since omitted if possible, state in whose possession or power it is. (Order: 7, Rule. 15 since omitted by the C.P.C. (Amendment) Act 1999 we.f. 1.7.2002).

How is the Written statement of defense to be:

The defendant may, and if so required by the court, shall, present a written statement of his defence within the time granted by the court (Order: 8, Rule. 1). It is the duty of the defendant to produce documents upon which relief is claimed or relied upon by him (Order: 8, Rule. 1A) He must state all grounds of defence, besides raising by his pleading all matters which show the suit not to be maintainable (Order: 8, Rule. 2), A general denial of the grounds alleged by the plaintiff is not sufficient; each allegation of fact of which the defendant does not admit the truth must be specifically dealt with (Order: 8, Rule. 3).

Every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant will be taken to be admitted (Order: 8, Rule. 5).

Discovery and interrogatories (Order: 11, Rule. 1):

In any suit the plaintiff or defendant by leave of the court may deliver interrogatories in writing for the examination of the opposite parties. Such interrogatories when delivered should state which of such interrogatories any particular person is required to answer.

No party should deliver more than one set of interrogatories to the same party without an order for the purpose. Further, interrogatories which do not relate to any matters in question in the suit will be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

Leave will be given to such only of the interrogatories submitted as the court considers necessary either for dispensing fairly of the suit or for saving costs (Order: 11, Rule. 2).

The to whom interrogatories are delivered is not bound to answer them; he is at liberty to take any objection to answering an interrogatory (Order: 11, Rule. 6). Any interrogatories may be set aside or struck out on certain grounds (Order: 11, Rule. 7).

A party may, without filing any affidavit, apply to the court to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. Discovery will not be ordered if it is not necessary for disposing of the suit or for saving costs (Order: 11, Rule. 12).

The court has power, at any time during the pendency of the suit, to order the production by any party, upon oath of documents in his possession or power relating to any matter in question in such suit (Order: 11, Rule. 14).

A plaintiff is entitled to interrogate a defendant as to facts which tended to support the plaintiffs' case or to impeach the defendants' case, but not as to facts which supported the defendants' case.

Inspection of documents referred to in pleadings or affidavits: (Order: 11, Rule. 15)

Every party to a suit is entitled to inspect any document referred to in the pleadings or affidavits of any other party, by giving notice to that party. Any party not complying with such notice will not afterwards be at liberty to put any such documents in evidence on his behalf in the suit unless he satisfies the court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the court will deem sufficient for not complying with such notice. In such a case the court may allow the documents to be put in evidence on such terms as to costs and otherwise as it thinks fit.

How is the Verification of plaint done:

Where the plaintiff is a company under the Companies Act, the plaint can be signed by an officer of the Company authorised to sign and verify the plaint by virtue of a resolution of the Board of Directors of the Company.

Pleadings and Plaint

What the plaintiff has to establish:

In a suit for infringement of copyright the plaintiff has to establish the following:

(1) he is the owner of the copyright within the meaning of Section 54, i.e. he is the actual owner of the copyright, or he is one who is entitled to the remedies provided for infringement in Section 55.

(2) copyright subsists in the work infringed at the time the defendant committed the infringement

(3) particulars of the infringement complained of,

(4) the nature of the damage if any suffered by him or likely to suffer,

(5) what the defendant has done or is proposing to do (in a quia timet action) constitutes infringement of copyright.

Whats is the Tests for claim to copyright-

(1) What are the work or works in which the plaintiffs claim copyright?

(2) Is each such work original?

(3) Was there copying from that work?

(4) If there was copying, has a substantial part of that work been copied?

What the plaint should contain:

The plaint should contain such statements and documents which will go to establish the plaintiffs' case. Thus

it should contain the following particulars:

(1) the work which is alleged to be infringed is a work within the definition of Section 2(y); that is it is a literary, dramatic, musical or artistic work, or a cinematograph film or a sound recording,

(2) the plaintiff is the copyright owner of the work or an exclusive licensee

or any other person entitled to the remedies available under Section 55,

(3) copyright subsisted in the work at the time of the alleged infringement, or subsists at the time of filing the suit if it is a quia timet action,

(4) particulars of the defendants and particulars of the infringements complained of. If the alleged infringements consists of reproduction of the work a copy of the original work and an infringing copy should be annexed to the plaint,

(5) where parts of the work have been copied references to those parts and references to the corresponding parts of the infringing copy. Extracts of the respective parts should be annexed to the plaint,

(6)) the nature of the damage, if any, suffered by him or likely to suffer,

(7) particulars of conversion, if any.

(8) the source from which he got an infringing copy,

(9) facts necessary to show that the court has jurisdiction to try the suit.

The plaint should also contain prayers for any one or more of the following:

(1) a declaration as to plaintiffs' right,

(2) permanent injunction and the nature of the injunction sought,

(3) damages including conversion damages and accounts of profits,

(4) delivery of infringing copies and plates used or intended to be used

for the production of infringing copies,

(5) costs of the suit.