Read Order: ASHOK KUMAR v. ADDL.C.P. DELHI & ORS
Tulip Kanth
New Delhi, October 7, 2022: While confirming the order of dismissal of a delinquent police officer from service where allegations of extortion of money was involved, the Delhi High Court has opined that the veracity of the charges which were leveled against the employee were tried and found to be proved on the basis of independent evidence which was led in the course of disciplinary proceedings.
“While parting the Court bears in mind the well settled principle that a failure to supply a copy of a preliminary enquiry report can be recognized to be prejudicial only if it be found that it constituted material on the basis of which a finding of guilt may have come to be recorded or formed the basis for the formation of the opinion ultimately framed by the Disciplinary Authority to record a finding of guilt against the delinquent employee”, the Division Bench of Justice Satish Chandra Sharma and Justice Yashwant Varma affirmed.
The Authorities had initiated enquiry proceedings against the petitioner and one constable Jitenderpal Singh based upon the complaint made by certain individuals alleging that the petitioner and Jitenderpal Singh were guilty of extortion of money and that on another date they had entered the premises of Diplomate Furniture and mercilessly beat a man and snatched Rs 1800 from them.
On the very same night, the two delinquent employees were stated to have entered the house of another man in an inebriated state and snatched his watch and purse containing Rs 500. In light of the allegations which were made, the petitioners came to be dismissed with the respondents invoking Article 311(2)(b) of the Constitution.
Aggrieved by the dismissal order, both the delinquent employees preferred appeals. When the matter was remanded the matter and pursuant to the order passed by the Appellate Authority, the petitioner and Jitenderpal Singh came to be reinstated in service. The department enquiry thereafter ensued and a chargesheet came to be issued against the employees. The Enquiry Officer on culmination of those proceedings submitted a report finding that the employees were guilty of the charges as laid and a dismissal order was passed.
Appeals filed against this decision were rejected by the Appellate Authority.Later, though the Tribunal allowed Jitenderpal’s application but the petitioner’s application was dismissed. When the petitioner approached this Court by filing a Writ Petition with the contention of the Tribunal having taken conflicting views emanating from the introduction of the preliminary enquiry report and the judgments rendered by coordinate benches of the Tribunal filed by Jitenderpal Singh and the petitioner respectively, the Court granted the petitioner the liberty to the Tribunal. The Tribunal held that the case of the petitioner could not be said to be similar or identical to that of Jitenderpal Singh. It was in this backdrop that the instant writ petition came to be preferred before this Court.
Noting that the petitioner had failed to establish before this Court that the preliminary enquiry report constituted the foundation for the ultimate conclusions that came to be recorded by the Enquiry Officer on the merits of the charge, the Bench also considered the fact that the veracity of the charges which were leveled against the petitioner were tried and found to be proved on the basis of independent evidence which was led in the course of disciplinary proceedings.
Clarifying that the petitioner had woefully failed to establish any perversity or inaccurateness in the findings which had come to be recorded by the Tribunal, the Bench was of the opinion that the petitioner had not been discriminated by the respondents bearing in mind the fact that in the case of Jitenderpal Singh also ultimately orders of dismissal came to be passed.
Hence, the Bench dismissed the writ petition.
Read Order: UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD v. STATE OF GUJARAT
Mansimran Kaur
Ahmedabad, October 7, 2022: Whosoever is insisting to settle the claim first, without making any prior premium to the insurance company is insisting on nothing but to see that the cart is put before the horse, the Gujarat High Court has observed.
“It is a matter of common sense and knowledge that the payment of prior premium is a Sine qua non of coming into force of any contract of insurance between the insured and insurer, observes Gujarat High Court”, Justice A.P. Thaker asserted while allowing the instant petition by observing that the stand taken by the State Government in not releasing the “premium subsidy” and at the same time, insisting the petitioner company to make payment to the farmers was not sustainable in the eyes of law.
The petitioner instituted the present petition under Article 226 and 227 of the Indian Constitution. The Central Government notified Pradhan Mantri Fasal Bima Yojana in the year 2016 for the benefit of the farmers against the loss/ failure of the crop due to natural calamities, paste and disease. The said scheme came to be revised by the Central Government from time to time. The object of the scheme was to provide insurance coverage to the farmers regarding unforeseen loss of crop, due to inundation and other perils. It was implemented through the agricultural department of the State Government.
The petitioner was the insurance company for the year 2019-20 for various districts such as Surendranagar, Amreli, Anand and Patan etc. It was alleged by the farmers that in the year 2019, due to heavy rain and flood in the whole district of Surendranagar and Morbi, most of the crops of the farmers were damaged and therefore they had allegedly suffered huge crop loss in both the districts.
Many of the farmers who intimated their claims were not paid. Therefore they approached this Court by filing a writ application. This Court by an order dismissed the petition, however directed the State Government to look into the representations of the farmers. On that basis the State Government issued the impugned order dated May 12, 2021 by which it was directed to the petitioner to pay the claims by overriding the guidelines issued by the Central Government. This order of the Government was challenged by way of this petition, and with the further direction to the State Government to release the pending subsidy of Rs.216,93,31,438.
It was contended by the petitioner that they made several representations to the Government for releasing the subsidy. The petitioner referred to various communications in the petition, requesting the State Government for release of the share of the premium and the subsidy thereof as per the scheme framed by the Central Government. According to the petitioner, due to non receipt of the premium of subsidy amount from the State Government, payment to the farmers was delayed.
After considering the submissions of the parties, the Court noted that there was no dispute regarding the facts of implementation of the scheme in question by the Central Government. The scheme provides that the said Central Government and the State Government shall give equal share of premium to the insurance company for the implementation of the scheme. The said premium is to be paid by way of subsidy.
“It is a matter of common sense and knowledge that the payment of prior premium is a Sine qua non of coming into force of any contract of insurance between the insured and insurer. The contract of insurance would be effective only on making payment of the premium. Whosoever is insisting for first settlement of claim without making any prior premium to the insurance company is nothing but insisting to see that the cart is put before the horse”, the Bench said.
In the present case, as revealed from the communications of the Central Government to the State Government and the material placed on record, it clearly appeared that the State Government was insisting on making payment to the concerned farmers on the basis of a scheme of insurance without payment of any prior premium.
Such instances of the State Government were nothing but an exercise to put a cart before the horse. When the Central Government had consistently directed the State Government to release the “premium subsidy”, the State Government ought to have followed such directions. The entire stand taken by the State Government in not releasing the “premium subsidy” and at the same time, insisting the petitioner company to make payment to the farmers is not sustainable in the eyes of law, the Court noted.
At the same time, it is the bounden duty of the petitioner to see to it that on receipt of the premium subsidy, it shall immediately make payment to the eligible farmers in respect of damages caused to them. At the same time, the question regarding making payment for any other purpose like non availability of facilities of laying claim or non availability of staff etc. can be considered by the competent authority for initiating any penal action against the insurance company. But only with a view to initiate such penal action and to impose penalty, the State Government is not entitled to stop the making of premium subsidy which is sine qua non for the contract of the insurance itself, the Court further noted.
Considering the facts and circumstances of the present case, it clearly transpired that the action and the stand taken by the State Government was not sustainable in the eyes of law.In light of the observations made above, the present petition was allowed.
Read Order: Mandir Thakur Dawara v. State of Punjab and Others
Monika Rahar
Chandigarh, October 7, 2022: While opining that the order condoning delay of more than 3 years in filing appeal without assigning any reasons and without giving the opposite party an opportunity of being heard, was totally "non-speaking", "sketchy" and "cryptic", the High Court of Punjab and Haryana has held that a quasi-judicial authority is bound to pass a well reasoned order.
"A non-speaking order deprives an affected party of an effective opportunity to represent against the same. Failure to give reasons amounts to denial of justice", held the Bench of Justices Lisa Gill and Harsh Bunger.
The petitioner was aggrieved by the impugned order whereby Director, Rural Development and Panchayat (exercising the powers of Commissioner), Punjab allowed an application under Section 5 of the Limitation Act, 1963 filed by Gram Panchayat, Village Akbarpur, Tehsil and District Kapurthala seeking condonation of delay of 3 years and 10 months in filing appeal under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 by passing a totally non-speaking order.
The order of the Commissioner read as follows, “Delay is condoned. Case is adjourned for 08.04.2022 for arguments in the main case.”
After perusing the impugned order, the Court opined that the Appellate Authority failed to discharge the obligation placed upon it as the impugned order was totally non-speaking and cryptic.
Against this backdrop, the Bench added, "It is well settled that a quasi-judicial authority is bound to pass a well reasoned order. A non-speaking order deprives an affected party of an effective opportunity to represent against the same."
Further, the Bench observed that admittedly the petitioner had a direct and substantial interest in the matter and thus, it was imperative for the Appellate Authority to record the specific reasons for condonation of delay in filing the appeal.
"Admittedly in the present case, the impugned order is totally non-speaking, sketchy and cryptic with not even a whisper of any reasoning leave alone considered reasoning indicating the basis of the decision", the Bench held.
Accordingly, the impugned order was set aside and the matter was remanded to the Commissioner, Rural Development and Panchayat, Vikas Bhawan, Sector-62, SAS Nagar to pass a well reasoned and considered order on the application seeking condonation of delay in filing appeal under Section 11 of the Punjab Village Common Lands (Regulations) Act, 1961 in accordance with law, after affording an opportunity of hearing to the parties.
Read Order: M/s.Kanyakumari Medical Mission Vs. The Employees Provident Fund Organization And Ors
Tulip Kanth
Madurai, October 7, 2022: In a matter involving payment of provident fund dues, the Madurai Bench of the Madras High Court has held that while the Medical Commission and the CSI Institute of Technology can be two separate entities for the purpose of assessment, they are to be treated as constituent parts of a single establishment for the purpose of recovery under Section 8 of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952.
The contesting parties before the Single-Judge Bench of Justice G.R.Swaminathan were the Kanyakumari Medical Commission and Employees’ Provident Fund Organization. The Commission is running a number of hospitals as well as paramedical educational institutions. The petitioner and its constituent institutions come under the purview of The Employees' Provident Fund and Miscellaneous Provisions Act, 1952. A separate code has been allotted for them.
Considering that the petitioner had been paying the contributions for their employees regularly, recovery for the provident fund dues of the seventh respondent( CSI Institute of Technology) was effected from the petitioner's bank account. It was the Commission’s stand that it was illegal and the action was proposed to be initiated for obtaining refund.
While so, the impugned order came to be passed under Section 8F of the Act directing the Central Bank to transfer a sum of over Rs 90 lakh lying in the account of the petitioner to satisfy the provident fund dues of the seventh respondent. A copy of the said communication was given to the petitioner by their banker. Challenging the same, this writ petition had been filed.
At the outest, the Bench considered the characteristics of the Commission and opined that the petitioner was not an independent legal entity or a juristic personality. The Bench held that both the petitioner and the CSI Institute come under the Kanyakumari Diocese of Church of South India.
The Bench extensively referred to the provisions of the Act and said, “As per Section 2(e) of the Act, the authority which has the ultimate control over the affairs of the establishment would be the employer. As per Section 8B, only after proceeding against the movable or immovable property of the establishment, proceedings can be taken against the property of the employer for recovery of the shortfall.”
Noting both the petitioner and the seventh respondent are not having any legal character, and so they can be treated only as parts of the diocese, the Bench asserted, “For the purpose of assessment, they can be separate entities. But for the purpose of recovery, they will be considered and treated only as constituent parts of a single establishment, namely, Kanyakumari Diocese of CSI.”
It was also clarified that the amount lying in the bank account of the petitioner-institution also belongs to CSI, Kanyakumari Diocese and when the first respondent had taken recovery action, it must be construed as taking action only against the establishment concerned.
“CSI, Kanyakumari Diocese is an umbrella organization whose limbs are the petitioner and the seventh respondent. They would constitute a single establishment for the purpose of recovery”, clarified the Bench.
Observing that the petitioner is running a number of hospitals and it must pay salary to the doctors and other staff, the Bench held that the first respondent cannot sweep the petitioner's bank account dry.
Mentioning that the first respondent must utilize its power in a reasonable manner, the Bench said, “If a sledge hammer approach is adopted, it will bring the day-to-day running of the institution to halt. The authority must milk the cow not butcher it. A bee or a butterfly gently draws the honey from the flower. It does not pluck it. The authority must adopt a similar approach.”
Taking into consideration that the institutions in question are having properties and it is always possible to effect full recovery of the PF dues, the Bench restrained the first respondent from appropriating more than a sum of Rs 15 lakh per month from the petitioner's bank accounts.
Read Order: Sumit Kathuria v. State of Punjab
Monika Rahar
Chandigarh, October 6, 2022: While dealing with a property fraud case, the High Court of Punjab and Haryana has observed that such type of cheating is rampant in our society and is often adopted by fraudsters, property grabbers and unscrupulous persons by usurping hard earned money of innocent people.
“This has become a cakewalk to amass wealth illegally over night which needs to be curbed to save the innocent people with an iron hand”, asserted Justice Ashok Kumar Verma while also holding,
“It is well settled that mere filing of the civil suit by the complainant does not debar initiation of criminal proceedings, separately where cognizable offence is made out.”
This petition was filed under Section 439 Cr.P.C. for the grant of regular bail to the petitioner in case FIR under Section 420, 120-B of the IPC (Sections 467, 468, 471 of the IPC added later on).
Essentially, the parents of the petitioner executed an agreement to sell in favour of a company through its managing director (the complainant) in respect of a land measuring 22738.76 square yards for a sale consideration of around Rupees 20 Crore. However, on the complainant’s enquiry, it came to the forefront that the sellers owned only 17162.86 square. The complainant was given an assurance by the petitioner’s parents that necessary corrections would be done in the revenue record. The complainant paid a total of seven crore rupees (included earnest money).
It was the case of the complainant that the petitioner alongwith his parents cheated and played fraud upon him because as per the revenue records, they were owners to the extent of only 17162.86 square.
It was the case of the petitioner’s counsel that the petitioner had nothing to do with the agreement to sell as he was neither a signatory to the same nor did he receive any amount in terms of the agreement. He added that the petitioner was not even the Director of the seller company and was sought to be implicated because his parents being the Directors of the seller-company executed the agreement to sell.
Further, while arguing that the it was a case of civil nature, to which the complainant has given a criminal colour, the Counsel submitted that every breach of contract would not give rise to the offence of cheating, rather only in those cases breach of contract would amount to cheating where there was any deception played at the very inception.
The Counsel lastly argued that the petitioner was arrested by the police in June 2019 and sent to judicial custody; the investigation qua him was complete and challan was already presented before the trial court and that he was granted the benefit of interim regular bail by the High Court, thus, no useful purpose would be served by keeping him behind the bars.
After hearing the parties, the Court observed that the petitioner alongwith his parents cheated and played fraud upon the complainant by enticing him to enter into the above said agreement to sell in his favour, whereas the accused-seller was not the owner of the whole land agreed to be sold and thus, the land in question was found to be not in consonance with the revenue record.
The Court also observed that the petitioner got interim bail on the ground that the matter will be amicably settled between the parties. Further, the Bench observed,
“The mere enjoyment of interim benefit granted by this Court does not in any manner lessen the gravity of offence and allegations which need to be considered prima facie on merits. It may perhaps send the wrong message in case regular bail is granted to the petitioner. The conduct of the petitioner is writ large in the matter.”
Also, the Bench added that even after taking a hefty amount as earnest money against the land in question from the complainant, the petitioner and his parents backed out not only from the terms of the agreement to sell but also from their statements made before the Court and the Mediator. “Such type of act and conduct is required to be viewed with all seriousness. As noticed above, petitioner’s and his father’s antecedents are not good. Even two more FIRs have been registered against them”, the Bench added.
Against this background, the Bench opined that it is well settled that mere filing of the civil suit by the complainant does not debar initiation of criminal proceedings, separately where cognizable offence is made out.
Showing its concern for such fraudulent practices which are rampant in our society, the Bench added,
“Needless to say, such type of cheating is rampant in our society and is often adopted by fraudsters, property grabbers and unscrupulous persons by usurping the hard earned money of innocent people. This has become a cakewalk to amass wealth illegally overnight which needs to be curbed to save the innocent people with an iron hand.”
Thus, keeping in view the overall facts and circumstances of the present case and having regard to the seriousness of the allegations of enticing, fraud and cheating and prima facie involvement of the petitioner in the commission of offence in connivance with each other and coupled with the antecedents of the petitioner and his co-accused the Court did not deem it a fit case for grant of concession of regular bail to the petitioner.
Read Order: ANOOP ALIAS KIRORI V. STATE OF HARYANA
Monika Rahar
Chandigarh, October 6, 2022: While dealing with an appeal against conviction, the High Court of Punjab and Haryana has held that the assigning of evidentiary worth to a signatured disclosure statement made by the accused, leading to the makings of the relevant recoveries at the instance of the ensues from the trite principle, that the confession of guilt carried in a proven disclosure statement as made by the convict would not become a bald or simpliciter confession nor would it be hit by Section 25 of the Indian Evidence Act but only if it leads to the relevant recoveries being caused at the instance of the accused.
The Bench of Justices Sureshwar Thakur and N.S. Shekhawat was dealing with an appeal against conviction of the appellant-accused.
An FIR was registered against the accused-appellant and his co-accused under Sections 332/353/302/307/392/397, read with Section 34 of IPC, and, under Sections 25/27/57/59 of Arms Act.
The petitioner was tried separately because he evaded arrest initially and was arrested later after he was a proclaimed offender. He was convicted for offences punishable under Sections 332, 353, 302, 307, 397 of IPC and under Section 25 of the Arms Act. Hence, the present appeal was filed.
During the course of custodial interrogation of the appellant, he made a signatured disclosure statement wherein, he after confessing his guilt, revealed his willingness to ensure the recovery of SLR gun to the investigating officer concerned from the place of its hiding, given the relevant place being known only to him. In consequence thereto he caused the recovery of the SLR gun.
After hearing the parties, the Court observed with respect to the disclosure that when he was not able to prove that the recovery of the SLR gun was fictitious or a sheer invention through a stratagem employed by the investigating officer, thus, the above proven memos sparked an inference that the relevant charge drawn against the convict-appellant was cogently proven.
On the law governing such signatured statement, the Court observed that if a signatrured disclosure statement leads to the relevant recoveries of weapons of offence, being made at the instance of the accused, then evidentiary worth is to be assigned thereto(s). The bench further added that the assigning of evidentiary worth to a signatured disclosure statement made by the accused, leading to the makings of the relevant recovery(ies) at the instance of the accused ensues from the trite principle, that the confession of guilt carried in a proven disclosure statement as made by the convict would not become a bald or simpliciter confession nor also would be hit by Section 25 of the Indian Evidence Act, but only if it leads to the relevant recovery(ies) being caused at the instance of the accused.
Also, the Bench was of the opinion that the assigning of evidentiary worth to a signatured disclosure statement made by the accused, leading to the makings of the relevant recovery(ies) at the instance of the accused ensues from the trite principle, that the confession of guilt carried in a proven disclosure statement as made by the convict would not become a bald or simpliciter confession nor also would be hit by Section 25 of the Indian Evidence Act, but only if it leads to the relevant recovery(ies) being caused at the instance of the accused.
Finding no merits in the appeal, the Court dismissed it.
Read Order: Sangeeta Sekhri v. Sharat Sekhri and Another
Based on the fact that the wife was living in adultery, the High Court of Punjab and Haryana has held that she was not entitled for permanent alimony.
The appellant, before the Bench of Justices Ritu Bahri and Nidhi Gupta, came up in appeal against the judgement and decree of the Family Court whereby the petition for the grant of divorce was allowed.
The facts of the case are that after their marriage in 1989, the parties started having rough patches in their relationship on account of the mental cruelty inflicted by the wife. She allegedly abused, insulted and humiliated her husband and his family members on account of the husband's financial position.
Since no issue was born even after ten years of marriage, the appellant-wife started calling the husband Namard (impotent), due to which he became mentally sick. The wife later started an affair with another person who was residing in the same locality. On account of this, the husband left his house.
In response to his letter to the Police, an inquiry was conducted and she was found guilty of treating the respondent-husband with cruelty and of living in adultery.
Considering that the husband had undergone acute mental cruelty on account of the rude and aggressive behaviour of his wife and also considering that she kept calling her husband Namard (impotent) and had illicit relations with another man, the Trial Court granted him decree of divorce under Sections 13(1)(i) and 13(1)(i-b) of the Hindu Marriage Act, 1955.
After hearing the parties, the Court observed that the appellant's counsel was not able to lead any evidence which could reverse the finding of extra-marital affairs of appellant-wife with another man. Further, the Court added that the enquiry report coupled with the evidence given by the husband's friend and his house help consistently proved that appellant-wife was living in adultery.
Thus, having held this, the only question left for the Court's consideration was whether the appellant-wife was entitled to permanent alimony.
After distinguishing the case laws cited by the appellant's counsel from the facts of the present case where the wife was living in adultery, the Court was of the view that the appellant was not entitled for permanent alimony.
Distinguishing one such case law, the Bench added,
"... which cannot be applicable in the present case for grant of permanent alimony as that was the case where divorce was granted on the ground of mental cruelty as the wife made a complaint against her husband and his family members under Sections 406 and 498A IPC. That was not the case of adultery."
The appeal was thus dismissed.
Read Order: J.PRABAKARAN AND ORS V. S.BABUJAN AND ORS
Mansimran Kaur
Chennai, October 6, 2022: Unless and otherwise there is valid sale consideration, it cannot be a 'sale' within the meaning of Section 54 of the Transfer of Property Act, the Madras High Court has held.
The Single-Judge Bench of Justice D.Bharatha Chakravarthy partly allowed the appeal suit by observing that in a case where it is found that the sale deed was executed without consideration, then any agreement without consideration is void as per Section 25 of the Indian Contract Act.
The present appeal suit was instituted by the aggrieved defendants against the judgment and decree, dated October 31, 2013 in Original Suit of 2011, in and by which, the Trial Court decreed the suit filed by the respondents/plaintiffs for declaration of their title in respect of the suit schedule property; for recovery of possession; for permanent injunction not to interfere with the possession or creating any encumbrance; for cancelling the Power of Attorney, dated August 15, 2007 executed by the first plaintiff in favour of the first defendant; for declaring that the sale deed, dated September 5, 2008 executed by the first defendant in favour of the second defendant as null and void.
After hearing the submissions of the pirates, the Court noted that it was the contention of the Senior Counsel that when there is no coercion, undue influence, fraud or misrepresentation and when the power is valid, the sale deed cannot be termed as void. However, the Court was unable to agree with the said submissions.
In view of the same, the Court noted that this is a case where it is found that the sale deed was executed without consideration therefore, any agreement without consideration is void as per Section 25 of the Indian Contract Act.
In this regard, unless and otherwise there is valid sale consideration, it cannot be a 'sale' within the meaning of Section 54 of the Transfer of Property Act, the Court observed.
In furtherance of the same, the Court noted that even otherwise, on a cumulative reading of the evidence of D.W.1, the written statement, the sale agreement and the sale deed, it can be seen that the action of the defendants 1 and 2 was in tandem and connivance in concealing the fact of the sale agreement on the same day of the Power of Attorney and thereafter, the execution of the sale deed, which will squarely fall within the definition of fraud as per Section 17 of the Indian Contract Act and the sale transaction was also vitiated by fraud and therefore was void.
Thus, the submissions of the Senior Counsel that no ground was made out for grant of relief under Section 31 of the Specific Relief Act is without any substance, the Court observed.
As far as the plea of delay was concerned, from the evidence of P.W.1, it was clear that he parted with the possession of the property and only when he was in position to repay the entire principle amount, when he confronted the first defendant, the first defendant shoved him away with the copy of the sale deed and thereafter the suit was filed. Therefore, it cannot be said that there was undue delay or any laches in filing suit.
However, in a case of this nature, once the Court finds that the entire transaction was only for a loan and when the plaintiff had admitted that he was yet to pay principal amount of Rs.4,50,000/-, the Trial Court ought not to have simply decreed the suit without making provision for the first defendant to realise the amount, the Court noted.
In this case, the second defendant had absolutely no equity as she neither got into the box nor her husband even claimed about the sale consideration or being a bona fide purchaser, inspite of being examined by the plaintiffs and her entire written statement was absolute falsehood,the Court further stated.
However, in the conspectus of the present facts of the case, the relief has to be appropriately molded so as to grant the first defendant the sum due to him being a sum of Rs.4,50,000/-.
The first defendant was also entitled to interest, which in the facts and circumstances of the case, shall be 9% per annum from August 15, 2007 till the date of repayment, the Court noted.
This apart, the relief of cancellation of Power of Attorney granted by the Trial Court was also not in accordance with law as the cancellation of the Power of Attorney has to be done by the party itself.
In this case, the deed of cancellation of Power of Attorney was already executed. Therefore, the relief of cancellation of Power of Attorney granted by the Trial Court was also not in order, the Court noted.
In view of my above findings, the first issued framed by the Trial Court that the Power of Attorney was executed by the plaintiffs in favour of the first defendant and the same was executed as a security and in default of the payment of the sum of Rs.4, 50,000/- along with interest to be payable by the plaintiffs within three months from the date of receipt of copy of this order, the Court stated that the Power of Attorney would be valid with rights to execute the sale deed.
In furtherance of the same, the Court noted that upon payment of the above said sum, the sale deed will not be binding on the plaintiffs. Upon payment of the aforesaid sum, the plaintiffs will be entitled for the relief of declaration as well as the recovery of possession and permanent injunction.
In view of the cancellation of power, there is no necessity to further cancel the Power of Attorney by the Court further observed.
Upon payment of the amount aforesaid, the plaintiffs will be entitled for the declaration that the sale deed, dated September 5, 2008 as null and void and the issue No.9 also stands answered accordingly.
In light of the observations made above, the appeal suit was partly allowed.
Read Order: AMIT SINGLA v. STATE OF HIMACHAL PRADESH & Others
Mansimran Kaur
Shimla, October 6, 2022: The Himachal Pradesh High Court has reaffirmed that for trying a person for an offence, mere existence of prima facie material is sufficient.
Justice Satyen Vaidya allowed the instant petition by observing that the material on record was not sufficient to hold that the death of Ved Prakash was on account of any rash or negligent act of petitioner and also that his death was direct or proximate result of the alleged rash or negligent act of the petitioner.
Brief facts necessary for adjudication of the petition were that the Executive Engineer, National Highway Division, HPPWD, Rampur Bushehr, through award letter dated had awarded, to the petitioner, the work of widening to two lanes with/without Geometrical Improvement in the State of Himachal Pradesh. Petitioner is Contractor by profession.
An FIR, dated April 1, 2014 was registered at Police Station Bhawanagar, District Kinnaur, H.P. at 7.40 P.M., at the instance of one Inder Dass. It was recorded in the FIR that complainant Inder Dass was on his way from Bhawanagar to Nichar in his personal car. He reached near place Latuksha at about 3.00 P.M and had to stop his vehicle as the widening work of the road by Amit Singla Company was in progress and many persons with their vehicles were waiting for the road to open.
A poclain machine was at work to clear the road for traffic. In the meanwhile, a person named Ved Prakash alighted from Vehicle No. HP-41A-0007, which was parked adjacent to the vehicle of the complainant, and after waiting for some time, Ved Prakash went towards the poclain machine on the pretext that he would evaluate the situation. Ved Prakash reached near the poclain machine.
Dust was in the air and when the dust settled, it was noticed that the operator of the poclain machine was lifting Ved Prakash, who had fallen on ground and had received an injury on stomach. Ved Prakash had become unconscious due to grievous injury. Ramesh Kumar, who was another occupant of the car from which Ved Prakash had alighted also came on spot. Ved Prakash was taken to Bhawanagar Hospital. It was alleged that the accident had taken place due to negligence of the operator of the poclain machine and the Supervisor of Amit Singla company.
On completion of investigation, the investigating agency presented report under Section 173 of the Code of Criminal Procedure (for short “Cr.P.C.”), recommending prosecution against Fateh Ram, Sanjeev Kumar and petitioner (Amit Singla) under Sections 336, 337, 304-A of the IPC and Sections 180 and 181 of the Motor Vehicles Act. It was alleged that firstly, the poclain machine was being operated by a person who did not have licence to operate the machine and secondly no preventive steps were taken on spot to stop the persons from approaching the area of operation of the poclain machine.
After considering the submissions of the parties, the Court noted that it was not in dispute that the petitioner was not on spot at the time of accident.
The material on record also suggests that the vehicular traffic had stopped due to operation of a poclain machine for clearing the debris. It was therefore, clearly inferable that whosoever was approaching the spot, at relevant time, was stopping the vehicle, noticing the ongoing work, the Court noted.
Without going into the fact whether any sign boards etc., were placed on spot, evidently the magnitude of work was such that it was otherwise being noticed by passersby as suggested by the fact that vehicles on either side had stopped. Another factor which needs notice is that the petitioner was engaged in execution of work authorized by the Executive Engineer, National Highway.
There was also nothing on record to suggest that the work was not executed in the manner it ought to have been.
It is settled that for trying a person for an offence, mere existence of prima facie material is sufficient. In other words, the material which can be looked into at the initial stage of prosecution is the evidence collected by the investigating agency. If on perusal of the evidence collected by the investigation agency, prima facie involvement of a person in the commission of offence is made out, he is liable for prosecution, the Court noted.
The commission of rash or negligent act is sine qua non for attracting sections 336, 337 and 304-A IPC. To attract the mischief of rashness or negligence against a person, such act of omission or commission must be attributable to him which sans due and proper care or should be so reckless which is not expected from a prudent person in given circumstances. Further, to attract criminal liability, there has to be some tangible material to infer such an act of omission or commission.
Keeping in view the entirety of circumstances, the Court was of the considered view that the material on record was not sufficient to hold that the death of Ved Prakash was on account of any rash or negligent act of petitioner and also that his death was direct or proximate result of the alleged rash or negligent act of the petitioner.
The mischief of Sections 180 and 181 of the Motor Vehicles Act will not apply against the petitioner in the given facts and circumstances of the case. In view of the above discussion, the instant petition was allowed.
Read Order: LAKHARA TINA W/O DAYARAM Vs. STATE OF GUJARAT
Tulip Kanth
Nagpur, October 6, 2022: Taking note of the fact that there was a prior property dispute between the parties and there was also a delay of five years in lodging the FIR for which no explanation was given by the prosecutrix, the Nagpur Bench of the Bombay High Court has confirmed the Trial Court’s decision of acquitting the accused in an alleged case of rape.
Referring to the judgment in, the Division Bench of Justice S.H.Vora and Justice Rajendra M. Sareen said, “It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.”
The Division Bench of Justice S.H.Vora and Justice Rajendra M. Sareen was considering a matter where the original complainant got divorce from her first husband and thereafter, her marriage was solemnized with the second prosecution witness. It was the complainant’s case that prior to five years, the aunt and uncle came to the house of the appellant to see the grandfather and when all were sleeping in night, the respondent accused physically assaulted the appellant and the respondent accused had forcefully established physical relationship with the appellant.
On account of fear and threat, the appellant did not inform anyone but later the complainant lodged the complaint with regard to the incident before Shaher Kotda Police Station. This appeal was filed by the appellant – original complainant u/s 372 of the Code of Criminal Procedure, 1973, after the Additional Sessions Judge acquitted the respondent-accused for the offences punishable u/s 376 of the IPC.
Noting that there existed property dispute between the parties and there was a delay of 5 years in lodging the present FIR against the respondent accused, the Bench also observed that there were also material omissions and contradictions in the testimony of the prosecutrix and there was no any explanation with regard to delay of five years in registration of the impugned FIR.
According to the Bench the trial Judge had rightly acquitted the respondent accused considering that the entire case had been created to settle the property dispute and there was no explanation for delay of five years in registration of the impugned FIR.
The Bench also asserted, “As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.”
In such circumstances, the Bench held that no case was made out to interfere with the impugned judgment and order of acquittal and dismissed the criminal appeal.
Read Order: P.Senthil Vs. The State Rep. by the Inspector of Police, W-8, All Women Police Station, Chennai
Mansimran Kaur
Chennai, October 6, 2022: Mere non-production of Medical Certificate or not lodging the complaint soon after the occurrence is not fatal to the case of the prosecution, especially in the matrimonial dispute, the Madras High Court has observed.
A Single-Judge bench of Justice P. Velmurugan dismissed the instant Criminal Appeal Case which was instituted under Sections 374(2) of Cr.P.C.to set aside the judgment passed by the Sessions Judge. The Bench was of the view that while re-visiting the entire evidence he found the appellant guilty for the offence punishable under Section 498A of IPC and there was no sound reason or ground to interfere with the judgment of conviction made by the trial Court.
The respondent police registered a case in Crime No.4 of 2017 against the appellant and five others for the offence under Sections 495, 498A and 313 r/w 109 IPC against the appellant/A1, 495 r/w 109 IPC, 498A and 313 r/w 109 IPC against A2 to A5 and 495 r/w 109 IPC, 498A and 313 IPC against A6.
After investigation laid a charge sheet before the Additional Mahila Metropolitan Magistrate, Chennai. The trial Judge, after trial and hearing of arguments advanced on either side, acquitted all the accused and convicted the first accused/appellant only for the offence under Section 498A IPC and sentenced him to undergo simple imprisonment for a period of two years.
Aggrieved over the finding and the judgment of conviction, the first accused preferred the present appeal before this Court.
After hearing the rival contentions of the parties, the Court noted that being an appellate Court, it has to necessarily reappreciate the entire evidence independently and give its finding.
In view of the same, the Court noted that according to the appellant, Witnesse were interested witnesses and no other witness was examined to prove the cruelty alleged to have been caused to by the appellant.
In view of the same, the Court noted that in the matrimonial disputes, only the family members can notice the incidents, which occurred in the home i.e. within the four wall and they can only come forward to give evidence and the third party, even if they also know, will not be ready to give evidence and they would think that it is a family dispute and the husband and wife will quarrel each other today and tomorrow would join together why should they poke their nose unnecessarily in the family dispute especially between the husband and wife. P.Ws.1 to 5 clearly spoke about the cruelty caused by the appellant against the de facto complainant.
“Therefore, the evidence of P.Ws.2 to 5 could not be simply brushed aside, since they are interested witnesses as contended by the counsel appearing for the appellant”, the Court observed.
Accordingly this Court, being an appellate Court, while re-visiting the entire evidence found the appellant guilty for the offence punishable under Section 498A of IPC and there was no sound reason or ground to interfere with the judgment of conviction made by the trial Court.
In furtherance of the same, the Court also noted that mere non production of Medical Certificate or not lodging the complaint soon after the occurrence is not a fatal to the case of the prosecution, especially in the matrimonial dispute.
In light of the observations stated above,the Court noted that the criminal appeal deserved to be dismissed as devoid of merit and substance and directed the trial Court to secure the appellant to undergo the remaining period of sentence, if any.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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