Abstract ‘Law of Tort’ is one of the most important laws in the civilized world. It is based on equity and justice. Law of Tort is used not only as a sword but also as a shield. Law of Tort protects those rights which derive not from contractual obligation but from the violation of a common (legal) right. This book has examined the provisions of the various Laws on the above subject matter in the context of Bangladesh with case references from the UK, USA and India. The existence of different torts is available in various Laws of Bangladesh but the enforcement mechanisms are not suitable for a victim in protecting his right. It is a common concept in Bangladesh that ‘Law of Tort’ is practically inapplicable in our country. ‘Law of Tort’ though discusses with some special types of civil wrong, its relationship with penal Laws can never be denied. There is an overlapping proposition between tort and crime. In Bangladesh both punishments and remedies are applicable for tortious liabilities. This book is designed for all the citizens of Bangladesh to aware them on ‘wrong’ and ‘remedies’ relates to the ‘Law of Tort’. Perhaps, this is the first initiative in this regard to consolidate the relevant laws under a particular heading. This should always be kept in mind that aimless study is just wastage of time. The ultimate goal of study should be human welfare not to cause any loss or injury to their peaceful living in the society. The case references used in this book are mainly from the higher Courts of the UK, USA and India. The unreported case decisions of the Sub-ordinate Courts of Bangladesh are not included as it carries no authoritative value due to its in acceptance as precedence. The cases filed over the years in the Subordinate Courts of Bangladesh on trespass, nuisance, negligence, defamation etc. are on the basis of Penal Code and therefore can not be treated as part of the Law of Tort. A chapter is added with this book on consumer rights protection Laws which is mainly based on the discussion of my book “Consumer Protection Law”.

Outlines of the Book

PART-I Chapter-One: Law of Torts and its relationship with other Laws Definition of Tort 33 Purposes of Tort Law 34 Meaning of Tort 34 Definition of tort in the web 35 Classification of Tort 36 Classification of Torts in the web 38 Law of Torts in Bangladesh 38 Equitable provisions of the different Laws of Bangladesh through which the ‘Law of Tort’ may be applied 39 Law of Tort or Law of Torts 39 Essential elements of Tort 41 (i) Act or Omission 41

Voluntary and involuntary acts 42 (ii) Legal damage 42 Damage and damages 42 Damages and compensation 42 Injury and hurt 43 Essentials of tort 43 Scopes of the Law of Tort 44 The relationship of the Law of Tort with other subjects 44 (a) Tort and Crime 45 (b) Tort and Breach of Contract 46 (c) Tort and Breach of Trust 47 (d) Tort and Quasi Contract 48 Felonious Tort 49 Liabilities, defenses and remedies 50 Chapter-Two: General Principles on the Law of Tort Damage and Injury in the Law of Tort 51 Wrongful act 52 Damage 52 Damnum sine inrijua (damage without injury) 53 (1) Gloucester Grammar School Case-1410 54 (2) Chasemore vs Richards-1859 54 (3) Moghul Steamship Co. vs McGregor Gow and Co-1892 55 (4) Action vs Blundell-1848 55 (5) Mayor of Bradford Vs Pickles-1895 55 (6) Dickson vs Reuter’s Telegram Co.-1877 56 (7) Town Area Committee vs Prabhu Dayal-1975 56 (8) Visnu Datt vs Board of H S & Intermediate Education 57 (9) Ushaban vs Bhagyalaxmi Chitra Mandir-1978 57 Modern development on competition Law 58 II. Injuria sine Damno (Injury without damage) 58

(1) Ashby vs White-1703 59 (2) Maryet vs Williams- 1830 60 (3) Bhimsing vs State of J & K-1986 61

III. Ubi jus ibi remedium 61 IV. Exturpi causa non oritur action 61 V. Qui facit per alium facit per se 63 VI. Res Ipsa Loquitor 63 VII. Volenti non fit injuria 66 VIII. Sic utere tuo ut alienum non laedus 69 IX. Injure non remota causa sed proxima spectator 69 X. Causa Causans and Causa Sine Qua non 70 XI. Re polemis principle 70 XII. The Wagon Mound principle 70 XIII. Actio personalis moritur cum persona 71 XIV. De minimis non curat les 72 XV. Ryland vs Fletcher 72 XVI. Respondeat Superior 75 XVII. Actus non facit reum nisi mensit rea 76 Mens rea 76 Malice 77 Malice in law 77 Malice in fact 78 Motive 78 Relationship between intention, motive, negligence and recklessness 79

Intent 79 General criminal intent 80 Specific intent 81 Doctrine of transferred intent 81 Common intention and common object 82 Distinction between section 34 and section 149 of the Penal Code 84 Negligence 85 Fault 87 Knowledge 88 The Innuendo 88 Voluntarily 88 Dishonestly 89 Fraudulently 89 Attempt 90 Conspiracy 91 Abetment 91 XVIII. Malfeasance, Misfeasance and Nonfeasance 91 Chapter-Three: Legal Proceedings in Bangladesh and the available remedies under the Law of Tort

PART-A: Civil and Criminal Proceedings Nature and scope of Legal proceedings 93 Civil and criminal proceedings in Bangladesh 93 Civil Proceedings 93 Criminal proceedings 94 Stages of Civil and Criminal proceedings 96 Civil and criminal Courts in Bangladesh 100 Distinction between civil suits and criminal cases 103 Suit for Tort 104

PART-B: Capacity to Sue and be Sued Capacity to sue and be sued 105 Who cannot sue 105

(a) Alien Enemy 105 (b) Husband and wife 105 (c) Pre-natal child 106 (d) Corporation 106 (e) Bankrupt / insolvent 106 (f) Foreign state 106 (g) Felons or convicts 107

Who cannot be sued 107 (a) Head of the state 107 (b) Foreign sovereign/ Ruler 107 (c) Ambassadors (High Commissioners) 108 (d) Public servants 109 (e) Infants or Minor 110 (f) Insane or Lunatic 111 (g) Corporation or Trade Union 111 (h) Married woman 111 (i) Persons having parental or quasi parental authority 111 (j) Persons having judicial authority 111

PART-C: Malicious Prosecution

Malicious prosecution 112 Malicious criminal case 112 Malice 112 Prosecution 113 Reasonable and probable cause 113 Termination of proceedings in favor of the plaintiff 113 Damages to the plaintiff 113 Limitation period of filing a suit claiming compensation for malicious prosecution 113 False accusation and false evidence 114 Malicious civil suit 116 Malicious detention 116 Maintenance and Champerty 117 Malicious prosecution and the Penal Laws of Bangladesh 117

PART-D: Torts of Injurious Falsehood Torts of Injurious falsehood 118 (a) Fraud or deceit 118 (b) Slander of Title 120 (c) Slander of Goods 121 (d) Passing off 121 Trade mark 122 Property mark 122

PART-E: Remedies of Torts in Bangladesh Remedies under the Law of Torts 124 Types of remedies 125 1. Judicial remedies 125 (i) Damages 126 Types of damages 126 (i) Nominal damages 126 (ii) Contemptuous damages 126 Distinction between nominal and contemptuous damages 127 (iii) Ordinary, real or substantial damages 127 (iv) Compensatory, aggravated, exemplary, vindictive or punitive damages 127 (v) General or Special 128 (vi) Prospective damages 128 (vii) Liquidated and unliquidated damages 129 Measure of Damages 129 Interest theory 130 Multiplier theory 130 Doctrine of Concurrent delay 130 Compensation under the various Laws of Bangladesh 130 (ii) Injunction 131 Temporary and perpetual injunctions 131 Ad-interim injunction 131 Perpetual injunctions when may be granted 132 Mandatory Injunctions 134 Injunction when refused 135 Injunctions to perform negative agreement 136 (iii) Specific restitution of property 137 (iv) Other equitable remedies and natural justice available in our laws 137

Res Judicata 138 Res Subjudice or Stay of Suit 138 Inherent power of the court 139 A person cannot be punished twice for the same offence 139 2. Extra Judicial Remedies 142 (i) Self-help 142 Right of private defence of the body and of property 143 When the right of private defence of the body extends to causing death 143 When the right of private defence of property extends to causing death 144 When such right extends to causing any harm other than death (in respect of body) 144 When such right extends to causing any harm other than death (in respect of property) 145 Commencement and continuance of the right of private defence of the body 145 Commencement and continuance of the right of private defence of property 145 Right of private defence against the act of a person of unsound mind, etc 146 Right of private defence against deadly assault when there is risk of harm to innocent person 146 When right of private defence can not be exercised 147 Extent to which the right may be exercised (section-99) 147 (ii) Expulsion of Trespassers 148 (iii) Re-entry on Land 148 (iv) Recaption of chattles 148 (v) Distress damage feasant 148 (vi) Abatement of nuisance 148 Chapter-Four: Negligence Definition of Negligence 149 Negligence has two meanings in the Law of Torts 150 Origin of negligence as a tort 150 Essential requirements of negligence 151 Duty of care 152 Duty depends on reasonable forseeability of injury 153 Dr M Mayi Gowda vs. State of Karnataka-1996 154 Booker vs Wenborn-1962 155 S Dhanaveni vs. State of Tamil Nadu-1997 155 T G Thayumanavar vs. Secy, P W D , Govt of Tamil Nadu-1997 155 Rural Transport Service vs. Bezlum bibi-1980 155 Ishwar Devi vs. Union of India-1969 156 Makbool Ahmed vs. Bhura Lal-1986 156 Jahuri lal vs PCH Reddy-1975 156 Sushma Mitra vs. Modhya Pradesh State Road Transport Corp-1974 157 Y.S. Kumar vs. Kuldip Singh Jaspal-1972 157 Carmarthenshire County Council vs. lewis-1955 157 Municipal Corporation of delhi vs Sulehagwanti-1966 158 Municipal Corporation of Delhi vs. Sushila Devi-1999 158 Municipal Board Jaunpur vs. Brahm Kishore-1973 158 Union of India vs. Supriya Ghosh and Others-1973 159 No liability when injury not foreseeable 159 Krishnappa Naidu vs. The Union of India-1975 160

Ryan vs. Youngs-1938 160 Glasgow Corporation vs. Muir-1943 160 Mysore (Karnataka) State Road Transprt Corporation vs. Albert Dias and others-1973 161 Reasonable forseebility does not mean remote possibility 161 Fardon vs. Harcourt-Rivington-1932 161 Sukhraji vs State Road Transport Corporation, Calcutta-1966 162 Boltone vs. Stone-1951 162 Blyth vs. Brimingham Water works Co-1856 163 Glasgow Corporation vs. Taylor-1922 163 Negligence and professional duties 163 Duty of Counsel towards Client 164 R Janardhana Rao vs. G Lingappa-1999 164 Duty in Medical Profession 165 Dr. Laksman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole-1969 165 Philips India Ltd vs Kunju Punnu-1974 165 Ram Bihari Lal vs. Dr. J N Srivastava-1985 166 Dr. T T Thomas vs. Elissar-1987 166 Jasbir kaur vs. State of Punjab-1995 166 A H Khoda vs. State of Maharastra-1996 167 Negligence in free eye camp 167 Pushpaleela vs. State of Karnataka-1999 167 Suraj Mal Chhajer vs. State-1999 167 C Sivakumar vs. Dr. John Mathur & Another-1998 168 Standard of care 168 (i) The importance of the object to be attained 169 (ii) The magnitude of risk 169 (iii) The amount of consideration for which services etc. are offered 169 Damage 170 Res Ipsa Loquitor 170 Alka vs. Union of India-1993 171 Nirmala vs. Tamil Nadu Electricity Board-1984 171 Jasbir Kaur vs. State of Punjab 172 Shyamal Baran Saha vs. State of West Bengal and others-1998 172 State of M.P. vs. Ashadevi-AIR, 1989 172 Karnataka State Road Transport Corporation vs. Krishnan-AIR, 1981 172 Gangaram vs. Kamalabai-AIR, 1979 172 Agya Kaur vs. Pepsu Road Transport Corporation-AIR, 1980 172 Bihar State Road Transport Corporation vs. Smt. Manju Bhusan-AIR, 1992 173 Shyam Sunder vs. State of Rajasthan-AIR 1974 173 Kannu Rowther vs. Kerala State Road Transport Corporation-AIR 1975 173 G. Satpathy vs. Brundoban Mishra-AIR 1983 173 Gobald Motor Sevices ltd. vs. Veluswami-AIR, 1972 174 Narasappa vs. Kamalamma-AIR 1968 174 Automobiles Transport vs. Dewalal-AIR 1977 174 Rebuttal of the presumption of negligence 174 Nagamani vs. Corporation of Madras-AIR 1956 174 S Vedantacharya vs. Highways epartment of South Arcot-1987 175 Kallula vs. Hemchand-AIR 1958 175 Maxim not applicable if different inferences possible 175 Sk. Alia Bakhas vs Dhirendra Nath-AIR 1983 175 Walkelin vs London and south Western Railway Co-1886 176 Syad Akbar vs. State of Karnataka-AIR 1979 176 Contributory Negligence 176 Rural Transport Service vs. Belzum Bibi-AIR 1980 177 Yoginder Paul Chowdhury vs Durgadas-1972 177

Harris vs Toronto Transit Commission-1968 177 Mrs. Sydney Victor vs. Janab S. Kadar Sheriff-A I R 1978 177 Klaus Mittlebachert vs. East India Hotels Ltd.-AIR 1997, Delhi-201 177 Municipal Board, Jaunpur vs. Brahm Kishore-A I R 1978 178 Agya Kaur vs. Pepsu Road Transport Corporation-A I R 1980 178 How far contributory negligence is a defence? 178 The Last Opportunity Rule 178 Law Reform (Contributory negligence) Act, 1945 179 Doctrine of apportionment of damages 179 Contributory negligence and the Motor Vehicles Ordinance, 1983 180 Special Claims Tribunal under the Motor Vehicles Ordinance 180 Doctrine of alternative danger 181 Jones vs. Boyce-1816 182 Brandon vs. Osborne, Gerret & Co-1924 182 Morgan vs. Aylen-1942 182 Presumption that others are careful 182 Contributory negligence of children 182 R Srinivasa vs. K.M.Parasivamurthy-A I R, 1976 183 Yachuk vs. Oliver Blais Co. Ltd-1949 183 Doctrine of Identification 183 Composite negligence 183 Distinction between composite and contributory negligence 185 Nervous shock 185 Action for negligence under the Penal Laws of Bangladesh 186 Negligence and Liability 189 Defenses for an action of negligence 190 Chapter-Five: Nuisance Definition of nuisance 191 Nature and characteristics of nuisance 192 Types of nuisance 192 (i) Public nuisance 192 Public nuisance under the Penal Code 192 Sound pollution as a public nuisance 193 Prostitution as a public nuisance 193 (ii)Private Nuisance 193 Distinction between Private nuisance and Public nuisance 194 Distinction between nuisance and trespass 195 Elements of nuisance 196 (a) Unreasonable interference 196 Sensitive plaintiff 196 An isolated act as a nuisance 197 Exception to the above case decisions 197 Act done with evil motive 197 Hollywood silver Fox Farm Ltd. Vs. Emmett-1936 198 Telephone call as a nuisance 198 (b) Interference with the use or enjoyment of land 198 1. Injury to property 198 Disturbance of Right of Support 199 Support of land without building 199 Support of building 199 Interference with right to light and air 199 Interference with the use or enjoyment of land and the Easement Act, 1882 200 Dominant and servient heritages and owners 200 Types of easement 201

Easements restrictive of certain rights 201 Easement of necessity 203 Other Easements 203 (a) Right of way 203 (b) Right to light or air acquired by grant 203 (c) Prescriptive right to light or air 204 (d) Prescriptive right to pollute air or water 204 (e) Other prescriptive rights 204 Nuisance and the Limitation Act 205 Acquisition of right to easements 205 2. Injury causing personal discomfort 207 Nuisance and the Cantonment Act, 1924 207 Penalty for causing nuisances 207 Nuisance on highways 209 Projections 210 Nuisance and the relevant provisions of the Penal Laws of Bangladesh 211 Affray 215 Punishment for committing affray 215 Public nuisance in the Cr P C 216 Conditional order for removal of nuisance 216 Service or notification of order 218 Person to whom order is addressed to obey or show cause or claim jury 218 Consequence of his failing to do so 218 Procedure where he appears to show cause 218 Procedure where existence of public right is denied 219 Procedure on order being made absolute Consequences of disobedience to order 219 Injunction pending inquiry 220 Magistrate may prohibit repetition or continuance of public nuisance 220 Power to issue order absolute at once in urgent cases of nuisance or apprehended danger 221 Procedure where dispute concerning land, etc, is likely to cause breach of peach 222 Inquiry as to possession 222 Party in possession to retain possession until legally evicted 223 Power to attach subject of dispute 224 Disputes concerning rights of use of immovable property, etc 225 Local inquiry 226 Public nuisance under the Police Act, 1861 226 PENALTY FOR DISOBEYING ORDERS ISSUED UNDER LAST THREE SECTIONS ETC 227 PUNISHMENT FOR CERTAIN OFFENCES ON ROADS, ETC 227 Slaughtering cattle, furious riding 227 Cruelty to animals 227 Obstruction Passengers 227 Exposing goods for sale 227 Throwing dirt into street 228 Being found drunk or riotous 228 Indecent exposure of person 228 Neglect to protect dangerous places 228 PROHIBITION TO SELL TICKETS, ETC 228 Public nuisance under the CPC 229 Suit for nuisance and the available remedies 230 Defences to an action of nuisance 230 1. Prescriptive right to commit nuisance 231 2. Statutory Authority 231

Nuisance and liability 231 Waste, mischief and nuisance 231 Waste 231 Mischief 232 Dishonest or fraudulent removal or concealment of property 232 Punishment for mischief 233 The other types of mischief as mentioned in the various sections of the Penal Code 233 Chapter-Six: Trespass

PART-A: Concept of Trespass Definition of Trespass 235 Background of Trespass Law 236 General and Special trespass 236 Nature/ common forms of Trespass 236 Other legal uses of trespass 238 Prevention of trespass 238 Types of trespass 239 Types of trespass to movable property 239 Trespass to immovable properties 239 Trespass ab initio 239

PART-B: Trespass to Body Trespass to body 240 Assault 240 Assault under the Penal Code 241 Elements of assault 242 Assault from country to country 242 Aggravated assault 243 Different types of assault and its punishments under the Penal Code 244 Defences to an act of assault 246 Battery 246 Elements of battery 246 Use of force 248 Without Lawful justification 248 Hurt & grievous hurt under the penal Code with its punishments 249 Hurt 249 Voluntarily causing hurt 249 Grievous hurt 249 Voluntarily causing grievous hurt 250 Difference between battery and assault 254 General defences to assault and battery 256 Consent 257 Assault during execution of legal process 257 Assault by parents or loco parentis is allowed 257 Prevention of crime 257 Repelling trespass 257 To maintain peace and tranquility 258 Inevitable accident 258 Use of force by the guardians 258

False imprisonment or unlawful detention 258 Elements of false imprisonment 259 Scenarios of false imprisonment 259 Total restraint 260 Means of escape 260 Knowledge of the plaintiff 261 Unlawful detention 261 Wrongful restraint and wrongful confinement under the Penal Code 263 Arrest, custody and detention under the Laws of Bangladesh 265 Who can make arrest 266 Justification of false imprisonment 267 Police privilege 267 Shopkeeper’s privilege 267 Purpose 268 Claim of false imprisonment 268 Remedies for false imprisonment 268

(i) Action for damages 268 (ii) Self-defence 268 (iii) Habeas Corpus 269

Punishments under the Penal Code 269 Commitment for trial or confinement by person having authority who knows that he is acting contrary to law 269 Defences to an action of false imprisonment 269 Damages for personal injury under various laws of Bangladesh 269 Compensation 270 Compensation for laid-off worker 270 Suit for compensation under the Fatal Accident Act 1855 273 Suit for compensation under the Bangladesh Cha Shramik Kallyan Fund Ordinance 1986 274

PART-C: Trespass and Emotional Distress

Intentional inflict of emotional distress (IIED) 275 Elements of IIED 276 Background 276 Opinion of the Court 277 Definition 278 Negligently inflicted nervous shock 278 Primary victims 279 Secondary victims 279 Case studies on nervous shock 281

PART-D: Trespass to the Authority on Domestic Relationships Torts affecting domestic relations 282 (a) Enticement of servant 282 Delivery to military authorities of persons liable to be tried by Court-martial 283 Prosecution of Judges and public servants 283 (b) Enticement of wife 284 Husband may claim damages from adulterer 284 Restitution of conjugal rights 285 Enticing or taking away or detaining with criminal intent a married woman 285 Prosecution for adultery or enticing a married woman 285 (c) Enticement of children 286 Kidnapping from Bangladesh, etc 286 Kidnapping from lawful guardianship 286

Abduction 287 Punishment for kidnapping or abduction under the Penal Code, 1860 287 (d) Injury to child, wife or servant 290 Right of private defence of the body and of property 290 Acts against which there is no right private defence 291 Extent to which the right may be exercised 291

PART-E: Trespass to Movable Property Trespass to property 292 Six types of torts relating to immovable property 292 (a) Trespass to movable property 292 (i) Trespass to Goods or chattels 293 Trespass to chattels in the electronic age 294 Trespass to goods is an infringement of the right to possession not of ownership 296 Essentials of trespass to goods or chattles 296 Defences to an action of trespass to goods 297 (ii) Conversion 298 Definition of conversion 299 Elements of a conversion 299 Distinction between conversion and trover 300 Forms of conversion 301

1. Conversion by taking 301 2. Conversion by delivery 301 3. Conversion by sale 302 4. Conversion by detention 302 5. Conversion by destruction 302 6. Conversion by denying the title of the actual owner 302 7. Conversion by denying return of the property to the actual owner 302

Examples of the various forms of conversions 302 Defenses to an action in conversion 305 Remedies for conversion 307 Measure for converting particular kinds of property 307 Conversion and the existing Laws of Bangladesh 308 Conversion and the Sale of Goods Act, 1877 308 Sale by person not the owner 308 Sale by one of joint owners 308 Sale by person in possession under voidable contract 309 Seller or buyer in possession after sale 309 The Contract Act, 1872 on conversion 309 Termination of bailment by bailee's act inconsistent with conditions 309 Liability of bailee making unauthorised use of goods bailed 309 Effect of mixture, with bailor's consent, of his goods with bailee's 310 Effect of mixture, without bailor's consent, when the goods can be separated 310 Effect of mixture, without bailor's consent, when the goods cannot be separated 311 Restoration of goods lent gratuitously 311 Return of goods bailed on expiration of time or accomplishment of purpose 311 Bailee's responsibility when goods are not duly returned 311 Bailor entitled to increase or profit from goods bailed 312 Bailor's responsibility to bailee 312 Bailment by several joint owners 312 Bailee not responsible on re-delivery to bailor without title 312 Right of third person claiming goods bailed 312 (iii) Detinue or detention 313

Forms of detinue 313 Distinction between detention and conversion 313 Remedies for detention under the various Laws of Bangladesh 314 Detention and the SR Act, 1877 314 Recovery of specific moveable property 314 Liability of person in possession, not as owner to deliver to person entitled to immediate possession 315 Detention and the Sale of Goods Act, 1877 315 Unpaid seller's rights 316 Seller's lien 316 Part delivery 317 Termination of lien 317 Right of stoppage in transit 317 Duration of transit 317 How stoppage in transit is effected 318 Transfer by Buyer and Seller 318 Sale not generally rescinded by lien or stoppage in transit 319 Detention and the Contract Act, 1872 319 Right of finder of goods; may sue for specific reward offered 319 When finder of thing commonly on sale may sell it 320 Bailee’s particular lien 320 General lien of bankers, factors, wharfingers, attorneys and policy- brokers 321 Pawnee’s right of retainer 321 Pawnee not to retain for debt or promise other than that for which goods pledged 321 Presumption in case of subsequent advances 321 Pawnee's right as to extraordinary expenses incurred 321 Defaulting pawnor's right to redeem 321 Pledge by mercantile agent 322 Pledge by person in possession under voidable contract 322 Pledge where pawnor has only a limited interest 322 Suit by bailor or bailee against wrong-doer 322 Apportionment of relief or compensation obtained by such suits 323 Suits for compensation for wrongs to person or movables 323 (iv) Replevin 323 (v) Trover 325 Trover as an extension of detinue and trespass 326 English case law in trover 327 Deaderick v. Oalds, 1887 327 (vi) Wrongful attachment 328 Attachment under the C P C 328 Property liable to attachment and sale in execution of decree 329 Partial exemption of agricultural produce 331 Seizure of property in dwelling-house 331 Property attached in execution of decrees of several Courts 332 Private alienation of property after attachment to be void 332 (vii) Trespass ab initio 333

PART-F: Trespass by Cattles Trespass by Cattles 335 Discussion on the cattle-trespass laws of Bangladesh 335 (i) The Cattle (prevention of trespass) Ordinance, 1959 335 (ii) The Cattle-Trespass Act, 1871 335 Release of cattle 338

PART-G: Trespass to Immovable Property Trespass to immovable property 339 Trespass to land 339 Trespass upon easement 340

(i) By actually entering on the land 341 (ii) Trespass by remaining on the land 341 (iii) By placing things on the land 341

Defences to an action of trespass to land property 342 Trespass and the Fatal Accident Act, 1855 343 Trespass and the Agni protirodh –o- Nirbapon Ain, 2003 343 Trespass and the defences under the Penal Code 344 Accident in doing a lawful act 344 Act likely to cause harm, but done without criminal intent and to prevent other harm 344 Trespass under the Penal laws of Bangladesh 345 Criminal trespass 345 House-trespass 345 Lurking house-trespass 346 Lurking house trespass by night 346 House-breaking 346 House-breaking by night 347 Punishment for criminal trespass 347 Punishment for house-trespass 347 House-trespass in order to commit offence punishable with death 347 House-trespass in order to commit offence punishable with imprisonment for life 347 House-trespass in order to commit offence punishable with imprisonment 347 House-trespass after preparation for hurt, assault or wrongful restraint 348 Punishment for lurking house-trespass or house-breaking 348 Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment 348 Lurking house-trespass or house-breaking after preparation for hurt, assault or wrongful restraint 348 Punishment for lurking house-trespass or house-breaking by night 349 Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment 349 Lurking house-trespass or house-breaking by night, after preparation for hurt, assault or wrongful restraint 349 Grievous hurt caused whilst committing lurking house-trespass or house-breaking 349 Dishonestly breaking open receptacle containing property 350 Punishment for same offence when committed by person entrusted with custody 350 Chapter-Seven: Defamation Definition of Defamation 351 Types of defamation 351 Slander 352 Slander when actionable per se 352 Libel 352 Distinction between libel and slander 352 Defamation in Bangladesh 353 Essential elements of defamation 354 1. The statement must be defamatory 355

D P Choudhury vs. Manjulata-1997 355 The Innuendo 356 Capital and Counties Bank vs. Henty-1897 356 Morrison vs. Rithie & Co-1902 357 Cassidy vs. Daily Mirror Newspapers Ltd-1929 357 Tolley vs. J S Fry and Sons Ltd-1931 357 2. The statement must refer to the plaintiff 358 Hulton and Company vs. Jones-1910 358 Newstead vs. London express Newspapers Ltd-1939 358 Defamation of a class of persons 359 Knupffer vs London Express Newspaper Ltd-1944 359 Fanu v Malcolmson-1848 359 3. The statement must be published by the defendant 359 Mahendra Ram vs Harnandan Prasad-1958 360 Emmens vs Pottle 1885 360 Gurbachan Singh vs. Babu Ram-1969 361 Communication between husband and wife 361 Theaker vs Richardson-1962 361 Communication and the provisions of the Evidence Act, 1872 361 Communications during marriage 361 Official communications 361 Information as to commission of offences 362 Professional communications 362 Section 126 to apply to interpreters, etc 363 Privilege not waived by volunteering evidence 363 Confidential communications with legal advisers 364 Indecent and scandalous questions 364 4. The statement must be false 364 Defamation under the Penal Laws of Bangladesh 364 Defamation 365 Imputation of truth which public good requires to be made or published 366 Public conduct of public servants 366 Conduct of any person touching any public question 366 Publication of reports of proceedings of Courts 366 Merits of case decided in Court, or conduct of witnesses and others concerned 367 Merits of public performance 367 Censure passed in good faith by person having lawful authority over another 368 Accusation preferred in good faith to authorized person 368 Imputation made in good faith by person for protection of his or other’s interest 369 Caution intended for good of person to whom conveyed or for public good Punishment for defamation 369 Printing or engraving matter known to be defamatory 369 Sale of printed or engraved substance containing defamatory matter 370 Statements conducing to public mischief 370 Prejudicial act by words, etc 371 The Code of Criminal Procedure, 1898 371 Power to declare certain publications forfeited and to issue search warrants for the same 371 Application to High Court Division to set aside order of forfeiture 372 Hearing by Special Bench 373 Order of Special Bench setting aside forfeiture 373 Evidence to prove nature or tendency of newspapers 373 Procedure in High Court Division 373 Jurisdiction barred 374

Prosecution for breach of contract, defamation and offences against marriage 374 Torts affecting status 374 Defamation and freedom of speech 375 Contempt of Court and the relevant Laws of Bangladesh 376 Contempt of Court and its procedure under the Cr P C 376 Contempt of court can be classified into three broad categories- 376 Procedure in cases mentioned in section 195 380 Appeals 381 Procedure in certain cases of contempt 382 Procedure where court considers that case should not be dealt with under section 480 382 When Registrar or Sub-Registrar to be deemed a Civil Court within section 480 and 482 383 Discharge of offender on submission of apology 383 Imprisonment or committal of person refusing to answer or produce document 384 Appeals from convictions in contempt cases 385 Certain Judges and Magistrates not to try offences referred to in section 195 when committed before themselves 385 Discussion 386 Intentional insult or interruption to public servant sitting in judicial proceeding 387 Contempt of Family Courts 389 Punishment for contempt under the Family Court 389 The Contempt of Courts Act, 1926 389 The Contempt of Court Ordinance, 2008 390 Defenses to an action for defamation 391 Justification 391 Fair comment 393 Facts and opinion as defense 393 The comment must be fair 394 The matter commented upon must be of public interest 395 Privilege 395 Parliamentary proceedings 395 Privileges and immunities of Parliament Members in Bangladesh 396 Rules of Parliamentary procedure 396 Procedure regarding allegation against a person 397 Judicial proceedings 398 State communications 398 Proceedings of disciplinary forces 398 Other defenses for defamation includes- 400 Public figure doctrine 400 Malice in an action of dafamation 401 Character as a defense 401 In civil cases, character to prove conduct imputed, irrelevant 401 In criminal cases, previous good character relevant 401 Previous bad character not relevant, except in reply 402 Character as affecting damages 402 Distinction between fair comment and justification 402 Distinction between fair comment and privilege 403 Difference between the English and Bangladeshi Laws on defamation 404 Limitation period for filing a suit for libel or slander 404 Damages in an action for damages 404 Religious teachings on defamation 406 “Do not slander” 406 “Do not revile by nicknames” 407

Backbiting 407 Spreading gossip 409 The sacredness of honour 409 Chapter-Eight: Liability, Obligation and Vicarious liability

PART-A: Liability Definition and nature of liability 411 Kinds of liability 411 (i) Civil liability 412 (ii) Criminal Liabilty 412 (iii) Remedial Liability 412 (iv) Penal Liabilty 412 (v) Strict or absolute liability and 413 (vi) Vicarious liability 413 General Conditions of liability 413 Difference between Penal and remedial liability 413 Exceptions to the Mens rea 414 Principles for determining civil and criminal liability 414 Rylands vs Fletcher and the Principles of absolute liability 415 Remoteness of damage 419

PART-B: Vicarious Liability

Vicarious liability 420

1. Principal and Agent 421 “Qui facit per alium facit per se’ 422

2. Master and servant 423 Who is a servant? 423 ‘Hire’ and ‘fire’ test or controlling authority 423 Delegation of authority 424 Distinction between servant and independent contractor 424 Whether the employer is liable for the act of independent contractor? 425 Liability of vehicle owners 425 An employer may be liable for the act of the independent contractor in the following cases 426 Course of employment 426 Doctrine of common employment 427

3. Partners/ Directors 427 4. Employer and employee 428 5. Guardian and wards 428

Vicarious Liability of the State 429

PART-C: Liability for Dangerous Premises Liability for dangerous premises 430 (a) Obligation towards lawful visitors 430 Invitees 430 Duty towards an invitee 430 Licensee 431 Duty towards a licensee 431 Grantor’s duty to disclose defects 431 Grantor’s duty not to render property unsafe 432 Structures adjoining Highway 432

Liability of Landlord 432 (b) Obligation towards trespassers 433 (c) Obligation towards children 434

PART-D: Liability for Dangerous Chattels Liability for dangerous chattels 435 1. Liability towards the immediate transferee 435 2. Liability towards the ultimate transferee 435 (i) Liability for Fraud 435 (ii) Liability for negligence 436 (a) Things dangerous perse 436 (b) Things not dangerous per se but actually dangerous and known to be so by the transferor 437 (c) Things neither dangerous per se, nor known to be dangerous by the transferor but dangerous in fact 437

PART-E: Liability for Animals

Liability for animals 438 (a) The Scienter Rule 438 (b) Cattle Trespass 439 (c) Ordinary liability in Tort 439 Defenses of an action on liability 439 PART-F: Liability under the Statutory Laws of Bangladesh Liability under the statutory laws of Bangladesh 440 Liability under the penal laws of Bangladesh 440 Joint liability 440 Liability by abetment 440

PART-G: Obligation Definition of obligation 442 Chose in action and chose in possession 442 Solidary obligation 442 Kinds of solidary obligation 442 (i) Several 442 (ii) Joint 443 (iii) Joint and several 443 Kinds of obligation on the basis of its sources 443 (i) Obligations arising out from contracts 443 (ii) Obligations arising out from torts 443 (iii) Obligations arising from quasi-contracts 443 (iv) Innominate obligations 444 Liability and obligation under the Muslim Law 444 Liability and obligation under the International Environmental Law 445 Chapter-Nine: Defenses in a tortious liability and discharge of Torts Introduction 447 Common defences 447 Acts of God 448

Act of state 449 Judicial Acts 449 Quasi-judicial acts 450 Executive acts 450 Good-faith 450 Merger 451 Justification 451 Presumption of innocence 451 Child 452 The Juvenile Court 453 Insane 453 Mental disorder 455 Intpxication 455 Parental and quasi parental authority 456 Statutory Authority 456 Volenti non fit Injuria or consent 457 Contributory negligence 458 Inevitable accident 458 Mistake of fact and mistake of law 459 Duress 460 Entrapment 461 Exercise of common rights 461 Private defence 462 Necessity 463 General exceptions 464 Knowledge 464 Acts causing slight harm 464 Communication in good faith 464 Capacity to sue and be sued 465 Acquiescence and Waiver 465 Estoppel 465 Res subjudice 466 Res Judicata 466 Solenama or compromise decree and special case 467 Accord and satisfaction 467 Statutes of limitation 468 Laches 468 Privileges 469 Truthfulness 469 Exturpi causa non oritur action 469 Injure non remota causa sed proxima spectator 469 Res ipsa loquitor 469 Actio personalis moritur cum persona 469 Contributory negligence 469

PART-II Chapter-Ten: Consumer Rights Protection Laws in Bangladesh: A theoretical study Abstract 471 Introduction 471 Historical background of consumer rights 472

Concept of consumer rights protection Law 474 Consumer perceived value 474 Aspects of Consumer Protection 475 Importance of the protection of consumer rights 477 Consumer rights Protection under the different Laws of Bangladesh 478 Rights of a consumer 479 An overview of the Bangladeshi Laws on the promotion and Protection of consumer rights 481 The specific areas covered by the consumer rights Protection related statutes in Bangladesh (Safety in Product) 483 Specific areas covered by the consumer rights Protection related statutes in Bangladesh (ensuring proper service) 483 Punishments for the violation of Consumer Rights under various Laws 484 Proper implementation of consumer law may increase revenue income 485 Problems of the existing Laws of Bangladesh on Consumer Rights protection mechanisms 485 Procedural hindrances in filing criminal case 486 Problems regarding court-fees in filing civil suits 487 Lack of legal knowledge and delay in proceedings 487 Dysfunctional District, Upazilla and Union Committees 487 Recommendations for an effective consumer rights protection mechanisms 489 Conclusions 492 Appendix-I 495 Mobile Court 495 Special tribunal 495 Drug Court 496 The Food (Special Court) 496 Marine Court 497 Claims Tribunal 497 Ordinary Civil Courts 498 Ordinary Criminal Courts 499 Consumer Rights Protection Department/ Directorate 500 National Council for the Protection of Consumer Rights 501 BSTI 501 The Animal Slaughter (Restriction) And Meat Control Act, 1957 502 The Iodine Deficiency Disorders Prevention Act, 1989 (essential provisions) 502 Appendix-II 503 (List of relevant statutes on consumer rights) 503 Appendix-III 504

ANNEXURE-I

The Consumer Rights Protection Act, 2009 507 Contents 507 Sections 507 Chapter I Preliminary

1. Short title and commencement 511 2. Definitions 511 3. Act to be treated as additional 515 4. Exemption 515

Chapter II Establishment of Council etc.

5. Establishment of Council 515 6. tenure of membership 516

7. Meetings of the Council 517 8. Functions of the Council 517 9. Fund of the Council 518 10. Establishment of Committee for protection of Consumer rights in District level

519 11. Duties and Functions of District Committee 519 12. Functions of the District Committee 520 13. Upazilla Committee, Union Committee etc. 521 14. Fund of District Committee etc. 521 15. Budget 521 16. Audit and Inspection 522 17. Annual report 522

Chapter III Department, Director General etc.

18. Establishment of Department etc. 522 19. Head office of the Department etc. 523 20. Director General 523 21. Powers and Function of Director General 523 22. Appointment of officers and stuff 525 23. Power of Investigation of the Director General or of any other office

525 24. Power to issue warrant 525 25. Power of arrest in open public places 526 26. Procedure for search etc. 526 27. Temporary closure of shops, business places etc for violation of consumer rights

526 28. Assistance from Law enforcing agencies and other authorities 527 29. Restriction on Production, sale etc. of any product dangerous to human health

527 30. Power of entry etc. 527 31. Power of colleting samples 528 32. Attachable products etc. 529 33. Procedure for confiscation etc. 529 34. Disposal of perishable products 530 35. Disposal or distribution of confiscated and detained products 530 36. Direct detaining and disposal of adultered product 530

Chapter IV Offence, Punishment etc.

37. Punishment for not using cover etc. of products. 530 38. Punishment for not displaying price list. 530 39. punishment for not preserving and displaying price list of services 531 40. Punishment for selling products, service or medicine at a higher price.

531 41. Punishment for selling adultered product or medicine 531 42. Punishment for mixing forbidden ingredients in food 531 43. Punishment for manufacturing or processing in illegal way. 531 44. Punishment for deceiving customers by false advertisements 532 45. Punishment for not selling or supplying promised product or service.

532 46. Punishment for committing fraud in weighing. 532 47. Punishment for committing fraud in fixing scales fro weighing things

532

48. Punishment for committing fraud in measurement 532 49. Punishment for committing fraud in scale need measuring length 533 50. Punishment for making or manufacturing counterfeit product 533 51. Punishment for selling expired product or medicine 533 52. Punishment for acts endangering life and safety of consumers 533 53. Punishment for causing loss of money, health, life by negligence etc.

533 54. Punishment for filing false or vexatious suits 534 55. Punishment for repeating the same offence 534 56. Attachment etc. 534

Chapter V Trial etc

57. Trial 534 58. Summary Trial 534 59. Bail, cognizance and compromise/settlement of offences 535 60. Complaint 535 61. Limitation 535 62. Examining defect of product 535 63. Power of Magistrate 536 64. Bar of Res Judicata 536 65. Appeal 536

Chapter VI Civil Proceedings and Remedies

66. Civil remedies 536 67. Power of Civil Court 537 68. Civil Appeal 537

Chapter VII Miscellaneous

69. Power of the District Magistrate under this Act 537 70. Administrative action taken by the Directorate/Department 538 71. Limitation of criminal proceedings 538 72. Special provision relating medicine 539 73. Monitoring private health service 539 74. Informing the superior officer of arrest or detention 539 75. Procedure to be followed in case of commission of any offence under any other law

539 76. Share of the complainant in compensation and complaint 540 77. Acts done in good faith 540 78. Exemption 541 79. Delegation of power 541 80. Power to make rules 542 81. Power to make provisions 542 82. Publication of English Text etc. 542

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