Legal Analysis: Jidh Kumar's Liability for Public Nuisance & Negligence in Indian Law, Lecture notes of Business

Download Legal Analysis: Jidh Kumar's Liability for Public Nuisance & Negligence in Indian Law and more Lecture notes Business in PDF only on Docsity! SPECIAL LEAVE PETITION UNDER THE MOOT COURT COMPETITION, 2024 CASE NO. /2018 (UNDER THE RULE OF STRICT LIABILITY LAID DOWN IN RYLANDS V. FLETCHER 1868) MR. BARTON [APELLANT] VERSUS MR.NICK FURY [RESPONDANT] MEMORIAL ON BEHALF OF THE APELLANT 6TH NOVICE MOOT COURT COMPETITION, 2018 TABLE OF CONTENTS 1 MEMORIAL ON BEHALF OF THE APELLANT S.NO CONTENTS PAGE NO. 1. Table of Abbreviations 02 2. Index of Authorities 03-04 3. Statement of Jurisdiction 05 4. Statement of Facts 06-07 5. Statement of Issues 08 6. Summary of Arguments 09 7. Arguments Advanced 10-18 8. Prayer 19 6TH NOVICE MOOT COURT COMPETITION, 2018 STATUTES 1. Indian Penal Code, 1860. 2. Criminal Procedure Code, 1973. 3. Constitution of India, 1950. 4. Prevention of Cruelty to Animals Act, 1960. 5. Indian Evidence Act, 1872. 6. Indian Limitation Act, 1963. 7. Code of Civil Procedure, 1908. BOOKS 1. KD GAUR, TEXTBOOK ON INDIAN PENAL CODE (6h. ed. 2016). 2. B M PRASAD & MANISH MOHAN, RATANLAL & DHIRAJLAL: THE CODE OF CRIMINAL PROCEDURE (20th ed., 2016). 3. PSA PILLAI, CRIMINAL LAW (12h. ed., 2016). 4. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA (14th ed. 2015). ONLINE RESOURCES 1. SCC Online 2. Manupatra 3. Westlaw India OTHER RESOURCES 1. Guidelines issued by AWBI dated 26 February, 2015. MEMORIAL ON BEHALF OF THE APELLANT 6TH NOVICE MOOT COURT COMPETITION, 2018 JURISDICTION The defendant submits the jurisdiction before the Ld. Court under Section 11 read with Section 29 of the Code of Criminal Procedure, 1973.1 1 Section 11: Courts of Judicial Magistrates. 1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify: Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.] 2) The presiding officers of such Courts shall be appointed by the High Court. 3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court. Section 29: Sentences which Magistrates may pass. 1) The Court of a Chief Judicial Magistrate may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. 2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both. 3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both. 4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class. MEMORIAL ON BEHALF OF THE APELLANT 6TH NOVICE MOOT COURT COMPETITION, 2018 STATEMENT OF FACTS PART I: Jidh Kumar Jidh Kumar lives in a two bedroom flat in the township of Jungpura Castle. He is very famous for his books on pet grooming and activities for pets. He was a software engineer, before turning into a fulltime author. In 2015, he bought the flat with the help of the royalties he earned from his books. He is of the view that his sole purpose of living is to nurse the disabled animals. Feed Bucket Challenge His journey to a famous animal lover started in 2013, by creating the ‘Feed Bucket Challenge’, wherein he challenged his friends to feed 5 stray dogs by sharing a full bucket of food. The challenge was an instant hit and it was a trendsetter. Adoption of Dogs After a year, he challenged his friends to adopt stray dogs. He adopted 3 stray dogs. The challenge was named as ‘Food and Blanket Challenge’. Though this was not as successful as the earlier challenge, there are few posts on the social media on advantages and dangers in adopting a stray dog. PART II: Residential Society: Jungpura Castle He moved into Jungpura Castle in 2015 with his 3 pet dogs. The large park in the centre of the township is the main reason for him to buy a flat there, as his dogs get a lot of space to run, explore and enjoy the clean environment. He was very happy to move into the township from his old accommodation, where he used to get complaints from his neighbors’ that the dogs are causing disturbance. In Jungpura Castle, he can see a lot of people who own pets. After Moving, he started a YouTube channel by the name ‘Dog’s Jidh’, where he posts videos on activities, games and lessons on pet grooming. By December 2016, he had adopted 16 dogs, most of which are disabled, all living with him in his flat. His daily routine starts with waking up MEMORIAL ON BEHALF OF THE APELLANT 6TH NOVICE MOOT COURT COMPETITION, 2018 SUMMARY OF ARGUMENTS SUMMARY OF ARGUMENTS ISSUE 1: WHETHER THE USE OF WASP BY MR. FURY IS THE NON-NATURAL USE OF HIS LAND? It is humbly submitted to the hon’ble Supreme Court of India that the use of ‘WASP’ by the defendant is clear indication of non-natural use of land as the use of such weed killer are restricted only to be used by the professionals under the exceptions given by the government. ISSUE 2: WHETHER THE ELEMENTS OF STRICT LIABILITY ARE SATISFIED TO HOLD MR. FURY LIABLE? The Counsel humbly submits that the defendant fulfils all the criteria for the rule of strict liability to be applied here as the rainfall caused the poisonous weed killer ‘DANGEROUS THING’ to ‘ESCAPE’ into the plaintiff’s garden causing harm and the ‘NON-NATURAL USE OF LAND’ as proven before. Here, no precautions from the defendant’s side were taken to prevent so. ISSUE 3: WHETHER NATASHA IS ENTITLED TO CLAIM DAMAGES FROM FURY FOR THE HARM CAUSED TO HER? The Counsel on behalf of Plaintiff submits before the hon’ble court that the defendant becomes liable for the compensation as all the criteria under the rule of Strict liability are being fulfilled. MEMORIAL ON BEHALF OF THE APELLANT ISSUE I: WHETHER USE OF WASP BY MR. FURY IS NON NATURAL USE OF LAND? 6TH NOVICE MOOT COURT COMPETITION, 2018 ARGUMENTS ADVANCED It is humbly submitted before the Hon’ble Supreme Court of India that the use of Weed Killer, WASP is a non-natural use of land as these kind of weed killers are not meant to be used for domestic purposes & certain level of measures has to be taken; given by the government. [I.I.] WHETHER THE USE OF WEED KILLER IS DONE IN ACCORDANCE IN GOVERNMENT GUIDELINES It is humbly submitted to the Supreme Court that the use of weed killer by defendant is not according to the government guidelines. Under the Section 18, Sub Section 1(b)1, ‘any insecticide the sale, Distribution or use of which is for the time being prohibited under section 272’. Thus, Petition was filed in 2020 by Ashwini Mahajan, which helped in issuing a Notice in September 2022 that the use of Glyphosate, a common substance used in weed killers can only be done by Registered Pest control operators (PCOs) & can only be used in Tea Gardens & non crop areas. Although the weed killer is used near a non crop. Under Section 2682 public nuisance is defined as a liability of the person who injures the right of public. 3 remedies are provided in the case of public nuisance under the criminal law: 1. Prosecution under Section 268. 2. Summary proceeding under Section 133-144 CrPC. 3. Remedy under local or special laws. In the case of Dhannalal and Anr. v. Thakur Chittarsingh Mehtapsingh3 MP High Court stated that, “a public nuisance is something which is offensive to the public or an inconvenience, discomfort, hurt or annoyance caused to the community at large by such nuisance. Therefore, 1 2 MEMORIAL ON BEHALF OF THE APELLANT 6TH NOVICE MOOT COURT COMPETITION, 2018 public nuisance is always a criminal offence.” The definition of the public nuisance provided under Section 268 is more exhaustive and extensive in nature4. The remedies provided in criminal law are more than provided by the civil law, along with the remedy for issuance of injunction in cases of necessity against such public nuisance. 2 Indian Penal Code §268 (1860). 3 AIR 1959 MP 240. 4 K. Ramakishnan v. State of Kerala AIR 1999 Ker 385. MEMORIAL ON BEHALF OF THE APELLANT 6TH NOVICE MOOT COURT COMPETITION, 2018 14 MEMEORIAL ON BEHALF OF THE DEFENDANT b) to the people in general, or ii. Injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right.10 The nuisance caused must be shown by the prosecution to be of a permanent or frequently recurring nature.11 In the case of Dhannalal and Anr. v. Thakur Chittarsingh Mehtapsingh12 the Court referred to a number of cases and summarized the principle of public nuisance as following- 1. Constant noise, if abnormal or unusual, can be an actionable nuisance, if it interferes with one's physical comforts. 2. The test of a nuisance causing personal, discomfort is the actual local standard of comfort, and not an ideal or absolute standard. 3. Generally, unusual or abnormal noise on defendant's premises which disturbs sleep of the occupants of the prosecution’s house during night, or which is so loud during day time that due to it one cannot hear ordinary conversation in the prosecution’s house, or which cannot allow the occupants of the prosecution’s house to carry on their ordinary work is deemed to be a noise which interferes with one's physical comforts. Therefore, the noise which is causing the nuisance must be constant and must be of such a nature that it is affecting the rights of others to carry out their ordinary work and it thereby results in an actionable nuisance. But, if the noise is of temporary nature or which is not of unusual character, then it cannot be regarded as public nuisance and cannot be claimed as an infringement of right against the accused.13 In the present case, the prosecution claims that the noise made by barking of dogs is resulting in nuisance. The defendant states that: 1. The argument raised by the prosecution was after 2 years i.e., from 2016 Jidh Kumar had the possession of the dogs but in 2018 the issue was raised when the exam season of the 10 KD GAUR, TEXTBOOK ON INDIAN PENAL CODE 487 (6h. ed. 2016). 11 Nair v. Costa (1925) 28 NLR 385. 12 Supra note 3. 13 Id.; Shaikh Is-mail v. Venkatanarasimhulu AIR 1936 Mad 905. 6TH NOVICE MOOT COURT COMPETITION, 2018 15 MEMEORIAL ON BEHALF OF THE DEFENDANT children was approaching. When the Jidh Kumar adopted the dogs there was no issue raised by the residents and they therefore impliedly accepted and consented by the parties. According to Section 58 of Indian Evidence Act, the facts which have been previously admitted by the parties need not to be proved in the court of law. Since, in the present case, the presence of 16 dogs with Jidh Kumar was admitted by the parties, they cannot now reject that they consented Jidh Kumar to keep the dogs in the residence. 2. This further proves that barking was not a disturbance for the prosecution of permanent nature but it merely occurred temporarily which does not interfere with prosecution’s right. 3. According to guidelines14 issued by the Animal Welfare Board of India (AWBI) under Section 9(k) of the Prevention of Cruelty to Animals Act, 1960 that the “barking is a natural form of expression of a dog and must and has to be tolerated in a society except when it results to an incessant barking”. In the case of Sanjay Gandhi Animal Care Centre v. Saddan & Anr.15 Court stated that, “the guidelines of the AWBI are binding in nature because they are issued under the authority granted to such board by the Act of 1960”. Since in the present cause it cannot be evidently stated in accordance with the facts that the barking of the dogs was of never-ending nature and thus, it cannot be claimed by the prosecution as a nuisance against the residents of the society. 4. Further, according to the Animal Birth Control Rules, 2001, the pet dogs are of restricted and supervisory in nature. Their movements are restricted and are totally dependent upon the owners who are in full control over them.16 In the present case, the dogs were mostly disabled and were under the full control of Mr. Jidh Kumar. Their actions were controlled by him and they were not negligently left to affect the society residents. Therefore, the defendant cannot be held liable for causing public nuisance under Section 268 of Indian Penal Code. [II.II] NO PUBLIC NUISANCE CAUSED BY FOUL SMELL OF EXCRETA 14 Guidelines issued by AWBI dated 26 February, 2015. 15 CRL.M.C. 779/2016. 16 Mita Das Gupta v. Malini Sehgal Anr. CC. No. 47/1/2007 (ACMM, Delhi). 6TH NOVICE MOOT COURT COMPETITION, 2018 19 Indian Penal Code § 503 (1860). 16 MEMEORIAL ON BEHALF OF THE DEFENDANT The defendant states before the Court, that there was no nuisance caused on his part is relation to the foul smell releasing from the excreta of the dogs. The right of the defendant to enjoy his property extends also to the right of enjoyment of the part adjacent to that property. The mere reason because of which defendant bought the flat was so that he can along with his dogs enjoy the park adjoining the building. Further, maintenance of the park is a duty of Residents’ Welfare Association (RWA) which is established according to Section 1 read with Section 20 of Societies Registration Act, 1860 for the benefit of the public generally. According to guidelines issued by the Animal Welfare Board of India in 2015 under Section 9(k)17 the RWA’s cannot: 1. Restrict the pet owners in keeping the pets on the ground of nuisance caused by pet excreta. The RWA can take the initiatives as a means to dispose off the excreta such as designation of pet corners where pet poop can be disposed off and composted. 2. Even after obtaining the maximum consensus from the residents, RWA cannot ban the pet-owners from keeping the dogs. In the present case, it directly comes on the duty of the RWA to maintain the park and they cannot ask Jidh Kumar to give his dogs for adoption on such grounds. The defendant has a fundamental freedom under Article 2118, “to choose the live a person wishes to live, which includes facets such as living with or without companion animals.” Other than the above mentioned claims, the prosecution has not suffered any other actual damage which can bring the case against the accused. There was no incidents occurred which can prove evidently that any actual damage has been occurred against the accused. ISSUE II.III. ABETMENT OF CRIMINAL INTIMIDATION COMMITTED BY RWA Section 50319 states that, “Whoever threatens another with any injury to his person….......or to any one in whom that person is interested…......or to cause that person to do any act which he is not legally bound to do…… commit criminal intimidation.” 17 Prevention of Cruelty to Animals Act § 9(k) (1960). 18 INDIA CONST. ART. 21. 6TH NOVICE MOOT COURT COMPETITION, 2018 19 MEMEORIAL ON BEHALF OF THE DEFENDANT must exist in history a ground evident to establish the vicious nature of the dogs under Section 289. Therefore, in the absence of any cogent evidence as regards the negligence of the accused, accused deserves to be acquitted after being given benefit of doubt and false charges have been made against the accused.25 [III.II] NO VOLUNTARILY HARM CAUSED UNDER SECTION 324 IPC According to Section 32426, “Whoever, except in the case provided for by section 334, volun- tarily causes hurt….. Or by means of any animal, shall be punished….” The essentials of Section 324 states that, the hurt must be done by the accused intentionally and voluntarily27. If the act of the accused done is intentional the he will be liable. When Section 289 and 324 are read together, they state that, if accused that is in the possession of the animal voluntarily causes hurt to the victim, then the accused will be liable. In the present case, the accused cannot be said to voluntarily causing hurt to the prosecution because the accused was not negligent in relation to the control over his dogs and never caused harm to the prosecution using his dogs as a means under Section 324 of IPC. 25 Supra note 22. 26 Indian Penal Code § 324 (1860). 27 Koli Gator Sura v. State of Gujarat AIR 1966 Guj 221. 6TH NOVICE MOOT COURT COMPETITION, 2018 20 MEMEORIAL ON BEHALF OF THE DEFENDANT PRAYER Wherefore in the light of issues involved, arguments advanced, reasons given, and the authorities cited, the defendant humbly prays that this Court may be pleased: TO HOLD & PASS: 1. That the present case is of Criminal Nature and not Civil nature and therefore maintainable under CrPC, 1973. 2. That the defendant is not liable for public nuisance under Section 268 of Indian Penal Code. 3. That the defendant is not liable for negligent conduct with respect to animal under Section 289 of Indian Penal Code. AND/OR The Ld. Court may be please to pass any other order as it deems fit in the interest of Justice, Equity and Good Conscience. For this act of Kindness, the defendant shall duty bound forever pray. COUNSELS FOR THE DEFENDANT