Read Order: RIGHT CHOICE MARKETING SOLUTIONS JLT & ORS v. STATE NCT OF DELHI & ANR [DEL HC- CRL.M.C. 6853/2022]
Tulip Kanth
New Delhi, April 24, 2024: The Delhi High Court has ruled that merely because the payee or holder in due course of a foreign cheque chooses to present the cheque in India out of malafide, the application of the provision of Section 138 of the Negotiable Instruments Act,1881 and the jurisdiction of the court where such cheque is deposited for payment, cannot be ousted.
The Single-Judge Bench of Justice Navin Chawla was considering a petition filed under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of the proceedings in the complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by respondent no.2 herein.
The facts of the case were such that the petitioner no.1, an entity with its office in the United Arab Emirates (UAE) and the sales and marketing wing of Right Choice Builders Private Limited, was arrayed as accused no.6 in the complaint. It was stated that the accused no. 6 had established various branches and petitioner nos.2 and 3, along with others, who have been arrayed as accused nos. 4 and 5 in the complaint, are the common Directors of the Group.
It was alleged that in 2014, petitioner no.2 representing himself to be the Director of Right Choice Group of Companies, personally approached respondent no.2 for investment in the aforesaid entities, assuring him of high rates of return on investments. It was stated that respondent no.2 succumbed to the repeated follow-ups of the accused, and believing their representation of assured quarterly returns, invested an amount of Emirati Dirham (AED) 600,000 in favour of accused no.6 at its branch office in Dubai, by issuing multiple cheques. The said amount was invested on the assurance of return at the rate of 26.5% per annum.
It was asserted that in January 2016, when respondent no.2 called upon the accused at the head office at Pune, the petitioner nos.1 and 3, on express instructions from petitioner no.2, and accused nos.4 and 5, issued ten fresh post-dated cheques towards the repayment of interest to respondent no.2. However, when respondent no.2 presented the said cheques before the bankers, that is, National Bank of Abu Dhabi, and HSBC Bank, Middle East, those were returned dishonoured with the remarks "insufficient funds".
Respondent no.2 initiated criminal complaints against the accused with the Abu Dhabi Police for the dishonour of the ten cheques. The Abu Dhabi Courts of First Instance convicted petitioner no.3 and sentenced him with imprisonment. It was stated that the accused were not traveling to Dubai out of fear of being arrested.
Thereafter, respondent no.2 issued a legal notice through his counsel in Abu Dhabi. The said notice was addressed to the accused at its Dubai office as also the India office and was duly served on the India office. Terms of settlement were shared by the counsel for respondent no.2 however, the accused never responded to the same.
When respondent no.2 proceeded to present the cheque of the principal amount of AED 600,000 drawn on the bank, namely, Emirates NBD Bank Gold Branch, it was again dishonoured. Respondent no.2 thereafter issued Legal Demand Notice under Section 138 of the NI Act.
The Bench made it clear that the offence under Section 138 of the NI Act is deemed to have been committed at a place where a cheque is delivered for collection at the branch of the bank of the payee or holder in due course, and the offence shall be inquired into and tried only by a court within whose local jurisdiction, if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated.
In the present matter, the cheque was presented for payment by the respondent at Delhi. There was no prohibition of the cheque being deposited by the respondent no.2 for collection in Delhi. “Therefore, in terms of Section 142(2) of the NI Act, the Court at Delhi shall have jurisdiction to inquire into and try the offence under Section 138 of the NI Act”, the Bench said.
Moreover, due to the amendment in Section 142 of the NI Act, now the dishonour of the cheque, due to its presentation for payment at the bank of the respondent no.2 at Delhi, would be deemed to have taken place at Delhi. Though, Section 134 of the NI Act states that in absence of a contract to the contrary, the liability of the drawer of a foreign cheque is regulated in all essential matters by the law of the place where he made the cheque, the Bench opined that there is nothing in the said provision which would exclude the application of Section 138 of the NI Act read with Section 142 of the NI Act.
“Merely because the payee or holder in due course of a foreign cheque chooses to present the cheque in India out of malafide, the application of the provision of Section 138 of the NI Act and the jurisdiction of the court where such cheque is deposited for payment, cannot be ousted”, the Bench held.
It was the case of the Complainant/respondent no. 2 that the petitioner nos. 2 and 3 escaped from the jurisdiction of the Courts at Dubai and had come to India. It did not therefore, lie in the mouth of the petitioner nos. 2 and 3 to contend that the presentation of the cheque in India by the respondent no. 2 for encashment, was malafide. The petitioner nos.2 and 3 are also citizens of India, presently residing in India.
Referring to Section 4 of the CrPC, the Bench observed that offence under Section 138 of the NI Act is to be tried in accordance with the provisions of the Cr.P.C., subject to the provisions of the NI Act itself, including Section 142 of the NI Act.
“Therefore, reading Section 4 of the Cr.P.C. with Section 142 (2) of the NI Act, it must be held that the Courts in India (Delhi) where the cheque has been deposited for encashment, shall have the jurisdiction to adjudicate on the complaint for an offence under Section 138 of the NI Act, even though it is a foreign cheque”, the Bench Said.
Asserting that there was absolutely no reason supplied by the petitioners in the petition for the delay in approaching this Court, the Bench held that the unexplained delay itself is sufficient ground for this Court to refuse to exercise its inherent jurisdiction under Section 482 of the Cr.P.C. to quash the complaint at this belated stage.
Thus, finding no merit in the petition, the Bench dismissed the same.
Read Order: JYOTI DEVI v. SUKET HOSPITAL & ORS [SC- CIVIL APPEAL NO. 5256 OF 2024]
Tulip Kanth
New Delhi, April 24, 2024: Observing that the record ought to have been speaking of a pre-existing medical condition because of which the victim may have suffered ‘unusual damage’ in order to establish the applicability of Eggshell Skull Rule, the Supreme Court has upheld the order of the District Forum granting compensation of Rs 5 lakh to the claimant in a medical negligence case.
The claimant-appellant,Jyoti Devi, was admitted to Suket Hospital located in Himachal Pradesh on June 28, 2005 and had her appendicitis removed by a Senior Surgeon. Post surgery, she was discharged. However,she suffered continuous pains near the surgical site, as such she was admitted again but was discharged the next day with the assurance that no further pain would be suffered by her. She was further treated by another doctor on the reference of respondent no.2 herein. Yet again, there was no end to her suffering. This process continued for a period of four years.
The claimant - appellant eventually landed up for treatment at the Post Graduate Institute of Medical Science, Chandigarh. Upon investigation, it was found that a 2.5 cm foreign body (needle) “is present below the anterior abdominal wall in the region just medial to previous abdominal scar (Appendectomy)” for which a further surgery had to be performed for its removal.
Alleging negligence on the part of the respondent - Suket Hospital, a claim was brought for the “huge pain and spent money on treatment” totalling to Rs 19,80,000. The District Consumer Disputes Redressal Forum awarded a compensation for Rs.5,00,000. The respondents approached the H.P. State Consumer Disputes Redressal Commission where they were asked to pay Rs 1 lakh to the complainant. The National Consumer Disputes Redressal Commission, in revision, applied the egg-skull rule to hold an individual liable for all consequences of their act. The compensation awarded by the State Commission was enhanced to Rs 2 lakh.
Hence, the claimant-appellant preferred an appeal before the Top Court seeking enhancement of compensation. The present dispute arose within the contours of the Consumer Protection Act, 1986, the predecessor legislation to the current Consumer Protection Act, 2019.
“The factum of negligence on the part of the respondent Hospital as well as respondent No.2 has not been doubted, across fora”, the Division Bench of Justice Sanjay Karol and Justice Aravind Kumar asserted.
Referring to J.J. Merchant (Dr) v. Shrinath Chaturvedi [LQ/SC/2002/799] and Common Cause v. Union of India [LQ/SC/1993/15], the Bench opined that the Consumer Protection Act is a benevolent, socially orientated legislation, the declared aim of which is aimed at protecting the interests of consumers. Various fora have been formed to save the aggrieved consumer from the hassle of filing a civil suit, i.e., provide for a prompt remedy in the nature of award or where appropriate, compensation, after having duly complied with the principles of natural justice.
It was further observed that in determining compensation in cases of medical negligence, a balance has to be struck between the demands of the person claiming compensation, as also the interests of those being made liable to pay
The Bench also explained the Eggshell Skull Rule which holds the injurer liable for damages that exceed the amount that would normally be expected to occur. It is a common law doctrine that makes a defendant liable for the plaintiff's unforeseeable and uncommon reactions to the defendant's negligent or intentional tort.
“In simple terms, a person who has an eggshell skull is one who would be more severely impacted by an act, which an otherwise “normal person” would be able to withstand. Hence the term eggshell to denote this as an eggshell is by its very nature, brittle. It is otherwise termed as “taking the victim as one finds them” and, therefore, a doer of an act would be liable for the otherwise more severe impact that such an act may have on the victim”, it said.
On the facts of the case, the Bench found that the manner in which compensation stood reduced by the State Commission as also the NCDRC, vis-à-vis the District Forum to be based on questionable reasoning. “How could such compensation be justified, after observations having been made regarding the service rendered by the Hospital, being deficient, and the continuous pain and suffering on the part of the claimant-appellant, is something we fail to comprehend. Compensation by its very nature, has to be just. For suffering, no part of which was the claimant-appellant’s own fault, she has been awarded a sum which can, at best, be described as ‘paltry’”, it said.
The impugned judgment was also silent as to how the Eggshell-Skull Rule applied to the present case.The record ought to have been speaking of a pre-existing vulnerability or medical condition, because of which the victim may have suffered ‘unusual damage’. However, none of the orders - be it District, State Commission or the NCDRC referred to any such condition.
Thus, setting aside the Awards of the NCDRC as also the State Commission and restoring the Award as passed by the District Forum, the Bench ordered that a sum of Rs 5 lakh ought to be paid expeditiously by the respondents to the appellant for being medically negligent and providing services deficient in nature. The sum of Rs 5 lakh is also accompanied by interest simple in nature @ 9% from the date of the award passed by the District Forum. Additionally, the Bench also imposed a cost of Rs.50,000 to be paid in terms of the cost of litigation.
Read Order: SANJU RAJAN NAYAR Versus JAYARAJ & ANR [SC- CRIMINAL APPEAL-SLP(Crl.) No.8254/2023)]
Tulip Kanth
New Delhi, April 24, 2024: While observing that the Karnataka High Court ventured into an unwarranted inquiry and ignored the material evidence indicating complicity of the respondent-police inspector in a corruption case, the Supreme Court has set aside the order quashing the FIR registered against him.
The facts of this case were that the marriage of the appellant was solemnized on 21.7.2006. During the subsistence of such marriage, his wife filed a complaint alleging the appellant to have sexually harassed his minor child while visiting
the child in the school, which resulted in registration of an FIR under the different provisions of the Protection of Children from Sexual Offences Act, 2012 and Indian Penal Code, 1860.
Respondent No.2, who was entrusted with the investigation of the said FIR, demanded and accepted monetary consideration from the instant appellant. Since the demands of bribe continued, the appellant brought the factum of such bribe to the notice of Karnataka Human Rights by placing on record the evidence in a pen drive. As a result thereof, based on the preliminary inquiry FIR was registered with the Anti Corruption Branch under the provisions of Prevention of Corruption Act, 1988. Based on the preliminary investigation, the authorities also accorded sanction for prosecuting Respondent No.1.
The appeal before the Top Court was directed against the judgment of the Karnataka High Court whereby under Section 482 of Criminal Procedure Code, 1973 the High Court quashed the FIR pending before the Additional City Civil and Sessions Judge, Bengaluru.
The Division Bench of Justice Sanjay Karol and Justice Prasanna B Varale observed that two persons were named as accused whereas the petition for quashing was preferred only by one of the accused, namely, Jairaj. The FIR was categorical that ASI Sivakumar (Accused No.2) had received money and that Police Inspector Jairaj had assured that they would provide chargesheet in lieu of Rs.80,000 and that the complainant would also have to pay Rs 500 per week when he visits the police station, as a condition of bail.
Finding that the approach adopted by the Courts in quashing the FIR was legally unsustainable, the Bench said, “It ventured into an inquiry, unwarranted at this stage, holding that there is no direct evidence that the present respondent had demanded any money and that there was no material to proceed against him, completely forgetting, if not ignoring the material which had surfaced during the course of investigation, amongst others, the pen drive, allegedly, indicating his complicity in the crime.
Considering the fact that the accused having been exonerated in the departmental proceedings yet the competent authority, proceeded to accord sanction for prosecution, the Bench held that the High Court failed to account for the principles enunciated in the case of State of Haryana & Ors. v. Bhajan Lal & Ors.
It was the pleaded case of the Lokayukta before the High Court that the continuance of the trial was not on the very same evidence as what weighed with the authorities in exonerating the employee in the departmental proceedings. This fact, also appeared not to have been considered by the High Court in its correct perspective.
Allowing the appeal and setting aside the impugned judgment, the Bench directed, “Consequentially, the FIR subject matter of the present proceedings stands restored to be taken to its logical end, in accordance with law.”
Read Order: AARUSHI GUPTA AND ORS v. STATE GNCT OF DELHI [DEL HC- BAIL APPLN. 2543/2023 & 3178/2023]
LE Correspondent
New Delhi, April 24, 2024: Considering the fact that the threats in the alleged suicide note written by the deceased were not of such an alarming proportion so as to drive a ‘normal person’ to contemplate suicide, the Delhi High Court has granted the relief of pre-arrest bail in a suicide case to a woman, who was in a relationship with the deceased, and a man, who was a common friend.
The Single-Judge Bench of Justice Amit Mahajan was considering the applications filed under Section 438 of the Code of Criminal Procedure, 1973, seeking grant of pre-arrest bail in a case registered under Section 306 of the Indian Penal Code, 1860.
The FIR was registered on a complainant made by the father of the deceased alleging that the applicants had instigated the deceased to commit suicide. The applicant namely Aarushi Gupta was stated to be in a romantic relationship with the deceased and the applicant Rishab Nayyar was stated to be a common friend. It was alleged that on 29.04.2023, the deceased had left the house with his friend and he had had called his parents informing them that he would see the applicants. A scuffle took place between the deceased and the applicants, in which the deceased sustained injuries and his car was also damaged by the applicants by throwing bricks. It was also alleged that while the deceased was leaving the alleged place of incident, the applicants instigated him by saying they made physical relations with each other and will get married soon. The applicants had also instigated the deceased by stating that he did not have manhood abilities and he should commit suicide or else they will upload the images of his broken car window along with the photographs of the deceased.
The next day, the complainant spoke to the deceased whereby the deceased reiterated the entire incident and was shivering due to fear and depression. Thereafter, the complainant called the applicants and asked them not to instigate the deceased, to which the applicant–Aarushi Gupta, threatened the complainant of implicating him and the deceased in false cases.
The last conversation between the complainant and the deceased took place in the morning around 9 a.m. and afterwards when the mother of the deceased reached the house at around 11 a.m., she found the door of Karan’s room half open. She went to the room and found his body hanging on the fan with a chunni. Later, the complainant got to know about the relationship of the deceased with Aarushi Gupta when he got the phone of the deceased unlocked. A suicide note was also recovered in which the deceased had written that he was committing suicide because of present applicants.
The Bench opined that prima facie from the WhatsApp chats placed on record it appeared that the deceased was of sensitive nature and constantly threatened the applicant of committing suicide whenever she refused to talk to him.
“If a lover commits suicide due to love failure, if a student commits suicide because of his poor performance in the examination, a client commits suicide because his case is dismissed, the lady, examiner, lawyer respectively cannot be held to have abetted the commission of suicide. For the wrong decision taken by a man of weak or frail mentality, another person cannot be blamed as having abetted his committing suicide”, the Bench said.
Though the deceased had written the name of the applicants in suicide note, but there was nothing mentioned regarding the nature of threats in the alleged suicide note written by deceased of such an alarming proportion so as to drive a ‘normal person’ to contemplate suicide.
Further, placing reliance upon Bhadresh Bipinbhai Sheth v. State of Gujarat [LQ/SC/2015/1117], the Bench said, “It is trite law that where the court is of the considered view that the accused has joined the investigation and is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided since, a great ignominy, humiliation and disgrace is attached to arrest.”
Thus, noting that the custodial interrogation of the applicants was not required, the Bench directed that in the event of arrest, the applicants be released on bail on furnishing a personal bond of Rs 50,000 each with two sureties each of the like amount subject to the satisfaction of the concerned SHO on some procedural conditions.
Read Order: TATA POWER DELHI DISTRIBUTION LIMITED v. AMIT BANSAL [DEL HC- CRL.L.P. 173/2024]
Tulip Kanth
New Delhi, April 24, 2024: While observing that the petitioner Tata Power Delhi Distribution Limited failed to prove that the meter was ‘dishonestly’ burnt by the respondent-consumer, the Delhi High Court has dismissed the application seeking leave to appeal against the Trial Court's order acquitting the respondent of offences under Sections 135, 138 and 150 of the Electricity Act, 2003.
The petition was filed by the petitioner- Tata Power Delhi Distribution Limited, a company engaged in the business of distribution and retail supply of electricity to its consumers in North and North-West parts of the National Capital Territory of Delhi. The respondent is a consumer of the petitioner company, availing of its services.
It was the case of the petitioner that on 09.07.2018 a team of the petitioner company visited the premises located in Delhi and found the body of the subject meter which was installed in the name of M/s. Jamna Industries and its resin cast CT completely burnt. The remnants of the burnt parts of the LT/CT Meter were seized.The total connected load to the premises was found to be 87.362 KW, used for the industrial purpose of manufacturing plastic dana.
The petitioner alleged that the consumption pattern of the subject meter was analysed, and the average recorded consumption was found to be 33.90% of the average computed consumption. Based on a lab report, the petitioner charged the respondent with theft under Section 135 of the Electricity Act and a theft bill of Rs 33,78,327 was raised on the respondent. The said amount was revised to Rs.26,57,771 during the proceedings before the Delhi Electricity Regulatory Commission.
The Single-Judge Bench of Justice Navin Chawla was considering a petition filed under Section 378(3) of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking leave to appeal against the judgment passed by the Additional Sessions Judge (Electricity), acquitting the respondent of offence under Sections 135, 138 and 150 of the Electricity Act, 2003.
Referring to these provisions, the Bench opined that to charge a person with offence of theft of electricity, under Section 135 of the Electricity Act, the prosecution must establish that such person has ‘dishonestly’ damaged or destroyed an electric meter. The onus of proof of the same shall always lie on the prosecution and such onus must be discharged on the touchstone of ‘beyond reasonable doubt’. The prosecution cannot shift this onus on the accused. It is not for the accused to prove his innocence.
It was noticed by the Bench in the onus to prove that the meter was ‘dishonestly’ burnt or destroyed by the respondent, was on the petitioner. To prove the same, it placed reliance on the report of M/s Truth Lab. The question to be determined by the Trial Court was the relevance of this report.
“Section 45 of the IE Act makes an opinion of an expert relevant”, the Bench said while further adding, “The opinion under Section 45 of the IE Act, therefore, has to be of a person who is ‘specially skilled’ in such science.”
Considering the fact that the author of the report-PW4 had admitted that she had no expertise or knowledge about the fire emerging from the electricity/electric meter, the Bench held that this itself made her report irrelevant to the facts of the present case.She also admitted that there was no scientific test through which she could conclude about the real cause of the burning of meter in question.
“From her above testimony, it is evident that the petitioner was unable to prove its case against the respondent on the touchstone of beyond reasonable doubt. In fact, the statement of the said witness creates more doubts than answers of the same”, it opined.
The High Court was of the view that even assuming the recorded consumption to be lesser than the average computed consumption of electricity, it could at best raise a doubt against the respondent, It couldn't act as a proof beyond reasonable doubt to hold that the respondent has dishonestly tampered with the meter.
Further referring To Sections 105 & 106 of the IEA, the Bench said, “...in the present case, it was for the petitioner to prove that the meter had been ‘dishonestly’ burnt by the respondent. The petitioner, having failed to prove the same, cannot shift this burden on the respondent by placing reliance on Section 106 of the IE Act.”
Reliance was also placed upon Anwar Ali & Anr. v. State of Himachal Pradesh, [LQ/SC/2020/688] and it was held, “It is also to be remembered that a decision of acquittal, strengthens the presumption of innocence in favour of the accused. At the same time, the appellate court, while considering a leave to appeal, has a duty to satisfy itself if the view taken by the trial court is both possible and plausible.”
Consequently, the Bench held that the petitioner failed to make out any ground to grant leave to appeal to the petitioner against the Impugned Order.
Read Order: WE, THE PEOPLE OF INDIA v. UNION OF INDIA & ORS [DEL HC- W.P.(CRL) 1203/2024]
Tulip Kanth
New Delhi, April 23, 2024: The Delhi High Court has imposed Rs 75,000 cost while dismissing a petition seeking extraordinary interim bail for Delhi Chief Minister Arvind Kejriwal. The High Court opined that the petitioner's claim, to be a custodian and representative of the people of India, was a fanciful claim which was devoid of any basis.
The public interest petition had been filed allegedly on behalf of the ‘People of India’ seeking grant of extraordinary interim bail to Respondent No.5 i.e. the Chief Minister of the NCT of Delhi, in all criminal cases which have been registered by the authorities and are pending inquiry and/or trial. The petitioner sought extraordinary interim bail against his personal bond, whereby the Petitioner had undertaken that respondent no.5 will not influence the witnesses involved, or try to destroy the evidence or try to flee from justice.
The petitioner claimed to have ‘veto power’, which was sufficient to give any concession to any accused, if arrested and/or confined in jail under judicial custody. It was also averred that the inquiry and/or trial of the criminal cases registered against the CM will take a long time to conclude and no useful purpose would be served by keeping him behind the bars till conclusion of such inquiry/investigation. Thus, it was urged that extraordinary interim bail be granted to respondent no.5, till the completion of his tenure and/or till the completion of criminal trials, whichever is earlier.
The Division Bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora, at the outset, observed that the present writ petition was not maintainable as the respondent no. 5 is in judicial custody in pursuance to judicial orders, which were not challenged in the writ petition.
The Bench asserted, “Further this Court is of the view that it is important to bear in mind the concept of equality enshrined in the Constitution of India and the basic tenet of rule of law: “Be you ever so high, the law is above you”. This is imperative to retain public confidence in the Constitution of India.”
According to the Bench, the petitioner’s claim to be custodian and representative of the people of India, was nothing but a fanciful claim which was devoid of any basis. The petitioner also had no power of attorney on behalf of respondent no.5 to either make such statements/undertakings on his behalf or extend such personal bonds.
It was further noticed that the respondent no. 5 who is currently in judicial custody, has the means and the wherewithal to approach the Court and file appropriate proceedings, which he had already done before this Court as well as the Apex Court. Consequently, the High Court was of the view that no relaxation of the principle of locus standi was called for in the present case.
With such observations, the Bench dismissed the writ petition along with the applications with costs of Rs.75,000 to be deposited with AIIMS Poor Fund within four weeks. The petitioner has also been directed to file with the Registry a proof of deposit of the cost within one week of deposit.
Read Order: REHAN AHMED (D) THR. LRS. vs. AKHTAR UN NISA (D) THR.LRS. [SC- Civil Appeal-SLP (Civil) No.18772 of 2014]
Tulip Kanth
New Delhi, April 23, 2024: While allowing an appeal against a Rajasthan High Court order pertaining to a property dispute, the Supreme Court has asserted that when the objections of the second defendant’s son were already dismissed, similar objections by the defendant's wife would not be maintainable.
The dispute, in the present matter, related to a property situated in Jaipur which was originally owned by Ghulam Mohiuddin (Defendant No.1). An agreement to Sell was executed for the sale of the suit property by Saeeduddin – Defendant No.2 (brother of Defendant No.1) and also the power of attorney of Defendant No.1, for himself and for the principal Defendant No.1. Since the vendor was not executing the sale deed, the appellant (plaintiff) instituted a Civil Suit for specific performance impleading Ghulam Mohiuddin as Defendant no.1 and Saeeduddin as Defendant No.2. During the pendency of the Suit, the parties entered into a compromise. The total sale consideration was Rs.40,000 out of which as per paragraph No.2 of the Compromise Deed, Rs.15,000 had already been received by the Defendants.
When the matter reached the Addl. District & Sessions Judge, a decree was drawn and as per the decree when the defendant did not execute the Sale Deed, the Plaintiff -Decree holder initiated the proceedings for execution. The Executing Court opined that before the registration of the Sale Deed, Defendant No.1 was required to fulfil his obligations which included getting the third floor vacated, getting the NOC and also getting the rent deeds transferred in the name of the Plaintiff. As such there was no default on the part of the Plaintiff.
After Defendant No.1 Mohiuddin died and with the dismissal of the special leave petition, the innings of the objections under Section 47 CPC filed by the Judgment-debtor – Defendant No.1 Mohiuddin came to an end, a new round of objections under Section 47 CPC came to be initiated by respondent no.1
– Akhtar Un Nisa, wife of Defendant No.2-Saeeduddin and the mother of General Tariq.
The Executing Court dismissed her objections. Aggrieved by the same, Akhtar Un Nisa preferred a revision before the High Court which had since been allowed by the impugned order giving rise to the present appeal before the Top Court.
The Division Bench of Justice Vikram Nath and Justice Satish Chandra Sharma was of the opinion that the core of the High Court's reasoning was based on the erroneous assumption that the property was jointly owned by Defendants No. 1 and No. 2, and that the absence of Defendant No. 2's signature on the
compromise invalidated the decree. However, Defendant No. 2 had consistently acknowledged that he had no ownership rights over the property. In his written statement to the Trial Court, he explicitly stated that the property belonged solely to Defendant No.1. The compromise Deed also substantiated that Defendant No. 1 was the sole owner.
As per the Bench, the High Court also incorrectly held that the provisions of Order XXIII, Rule 3 of the CPC were not adhered to, claiming that the Trial Court failed to properly verify the compromise Deed. The recording of the compromise and the consequent decree on 09.05.1979, although appearing procedurally delayed, adhered to the process required
under CPC.
“Furthermore, the High Court overlooked the fact that General Tarik, legal heir of Defendant No. 2, had previously objected to the execution proceedings, which was dismissed on 09.12.1988. Subsequent appeals before the High Court, including a Special Leave Petition to this Court, were also dismissed. Therefore, similar objections by Respondent No. 1, Smt. Akhtar Un Nisa, in her capacity as one of the legal heirs of Defendant No. 2 would not be maintainable and would amount to abuse of process of law”, the Bench held.
Thus, observing that the Executing Court had rightly rejected the
objections under Section 47 CPC filed by Akhtar Un Nisa, the Bench restored the Executing Court's order and the objections of Respondent no.1 under Section 47 of the CPC stood rejected.
Read Order:BABU SAHEBAGOUDA RUDRAGOUDAR AND OTHERS v. STATE OF KARNATAKA[SC- CRIMINAL APPEAL NO(S). 985 OF 2010]
Tulip Kanth
New Delhi, April 23, 2024: Terming the FIR in question as a post-investigation document which didn't inspire confidence, the Supreme Court has acquitted the murder convicts sentenced to life. The Top Court also asserted that the disclosure statements couldn’t be read in evidence and the recoveries made in furtherance thereof were nonest in the eyes of law.
It was alleged by the prosecution that in the morning of September 19, 2001, the deceased Malagounda, son of complainant, along with labourers/servants-PW-2, PW-3, PW-4 & PW-5 had gone to put up a check dam in their land. When they were returning back to the village after their work, A-1, A-2, A-3 and A-4 suddenly came around and exhorted that the way the complainant party had murdered Sangound, they would take revenge upon the members of the complainant party in the same manner. A-1, A-2, A-3 and A-4 holding weapons belaboured Malagounda, as a result of which he fell down. The assailants thereafter threatened the complainant(PW-1) that if he tried to intervene, he too would meet the same fate as his son. Fearing for his own life, the complainant ran away and hid behind the bushes in order to avoid being beaten by the accused.
After sunset, the complainantreturned to the village and narrated about the incident to his family members. A written complaint of this incident came to be submitted and an FIR was registered. After conclusion of investigation, a charge sheet came to be filed against the appellants(A-1, A-2, A-3) and other accused(A-4, A-5 and A-6) for the offences punishable under Sections 143, 147, 148, 506(2) and Section 302 read with Section 149 IPC in the Court of jurisdictional Magistrate. The case being exclusively sessions triable was committed to the Court of Sessions Judge, Bijapur where charges were framed against the accused for the above offences.
The accused appellants had approached the Top Court challenging the judgment rendered by the Division Bench of the Karnataka High Court reversing the acquittal of the accused appellants and convicting them. A-1, A-2 and A-3 were sentenced to undergo imprisonment for life. The appeal as against A-5 and A-6 was dismissed, while appeal qua A-4 stood abated on account of his death.
The Division Bench of Justice B.R.Gavai& Justice Sandeep Mehta referred to the Judgments in Rajesh Prasad v. State of Bihar and Another ; H.D. Sundara&Ors. v. State of Karnataka and held that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within four corners of these principles:
- The judgment of acquittal suffers from patent perversity;
- The judgment is based on a misreading/omission to consider material evidence on record;
- No two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
It further highlighted that the appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.
The Bench was of the view that none of these essential mandates governing an appeal against acquittal were adverted to by the Division Bench which proceeded to virtually decide the appeal as a first Court on independent appreciation of evidence and recorded its own findings to hold the accused appellants(A-1, A-2 and A-3) guilty of the charge under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life.
The testimony of the complainant(PW-1) suffered from patent infirmities, contradictions and inherent loopholes which brought him within the category of wholly unreliable witness. “The non-production of the Daily Dairy maintained at the police station assumes great significance in the backdrop of these facts. Apparently thus, the FIR(Exhibit P-10) is a post investigation document and does not inspire confidence”, it held. Not only this but the claim of complainant(PW-1) that he was an eye witness to the incident was totally contradicted by PW-6 as he did not state about the presence of the complainant(PW- 1) at the place of incident while the victim was being assaulted.
It was further observed, “The conduct of the family members of the deceased and the other villagers in not taking any steps to protect the dead body for the whole night and instead, casually going back to their houses without giving a second thought as to what may happen to the mortal remains of the deceased, lying exposed to the elements is another circumstance which creates a grave doubt in the mind of the Court that no one had actually seen the incident and it was a case of blind murder which came to light much later.”
The version of the medical jurist also created a doubt. Noting that the witnesses admitted that it had been raining incessantly in the village for almost three days, it was observed that there was no logical explanation for the presence of the deceased and the servants in their field on the date and time of the incident
Reiterating that motive acts as a double-edged sword, the Bench opined that the very fact that members of the prosecution party were arraigned as accused in the murder of Sangound, son of A-4, this could also have been the motive for the prosecution witness to rope in the accused appellants for the murder of Malagounda.
Reliance was also placed upon State of Uttar Pradesh v. Deoman Upadhyaya and it was held, “The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the Investigating Officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence.”
It was also opined that neither the so called voluntary statement nor the seizure memo were proved by the Investigating Officer(PW- 27) in his evidence.It was also asserted that the entire prosecution case came under the shadow of doubt as the evidence of seizure of weapons of the offence was not trustworthy, the prosecution did not procure any serological opinion to establish blood group on the recovered weapons so recovered and the evidence of the eye-witness was not trustworthy.
Thus, the Bench reversed the impugned judgment and acquitted the accused appellants of all the charges.
Read Order: HANSRAJ v. STATE OF M.P [SC- CRIMINAL APPEAL NO(S). 2143 OF 2024]
LE Correspondent
New Delhi, April 23, 2024: In a case of robbery, the Supreme Court has observed that the Investigating Officerwho recorded the disclosure statement of the accused and effected the recovery did not prove the disclosure memo as required by law. The Top Court allowed the appeal of the convict thereby acquitting him.
The substratum of the prosecution story was that on December 12, 1998, while the complainant Bhagu Bai was proceeding to her field, a person came from behind, closed her eyes, assaulted her with a knife and snatched away her silver anklet, necklace and a bracelet. After committing the crime and injuring the complainant in the process, the assailant ran away from the spot. The complainant stated in the First Information Report (FIR) that she was not able to see or identify the assailant.
The appellant was arrested after 2 days on the basis of suspicion. It was alleged that upon being interrogated by the police, the accused appellant made a confession/disclosure statement which was recorded as Memorandum. It was further stated that acting on the said disclosure statement, the Investigating Officer(PW-12) recovered the silver articles allegedly looted by the accused after assaulting the complainant.
Charge sheet was filed against the accused appellant for the offences under Sections 394 read with Section 397 of the Indian Penal Code, 1860 and the case was committed to the Sessions Court for trial. The accused was charged and tried for the offences mentioned above.
The Trial Court sentenced the accused to undergo seven years rigorous imprisonment with a fine of Rs. 1,000 and, in default of payment of fine, to undergo further rigorous imprisonment of three months.The High Court, affirmed the conviction and sentence of the accused and rejected the appeal filed by the accused. Aggrieved thereby, the accused-appellant approached the Top Court.
The Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta noted that the complainant during the course of sworn testimony tried to improve upon her case by identifying the accused in the Court, but such evidence of identification of the accused was not relied upon by the Trial Court and the High Court and the case was found proved only on the basis of recovery of ornaments.
It was further noticed that the Investigating Officer (PW-12) who recorded the disclosure statement of the accused and effected the recovery did not prove the disclosure memo as required by law.
The deposition of the Investigating Officer revealed that he did not narrate the exact words spoken by the accused at the time of making the disclosure statement. He also did not state that the accused led him to the place where the articles were hidden and rather stated that he took the accused to the Beed and recovered the silver ornaments.
Reliance was also placed upon Nandlal Bharti v. State of Uttar Pradeshwhich postulates that for proving a disclosure memo recorded under Section 27 of the Indian Evidence Act, 1872 at the instance of the accused, the Investigating Officer would be required to state about the contents of the disclosure memo and in absence thereof, the disclosure memo and the discovery of facts made in pursuance thereto would not be considered as admissible for want of proper proof.
“As a consequence of the above discussion, we have no hesitation in holding that the prosecution miserably failed to prove the factum of disclosure made by the accused to the Investigating Officer (PW-12) leading to the recovery of the silver articles allegedly looted by the accused from the complainant”, the Bench opined.
It was also noted that the prosecution did not lead any evidence to show that the recovered articles were sealed at the time of recovery or that they were kept secure in the malkhana of the Police Station till the same were subjected to identification before the Executive Magistrate. In addition thereto, the Executive Magistrate was not examined in evidence.
The Bench further opined, “The complainant Bhagu Bai (PW-3) made a categorical admission in her cross examination that she could recognize the silver articles in the test identification proceedings upon being pointed out by the police officials. Thus, the recovery of the ornaments at the instance of the accused and the identification thereof has no sanctity in the eyes of law and cannot be relied upon. No other evidence was led by the prosecution to connect the accused appellant with the crime.”
In view of such legal and factual aspects, the Bench allowed the appeal and acquitted the convict of the charges.
Read Order: PARTEEK BANSAL v. STATE OF RAJASTHAN & ORS[SC- CRIMINAL APPEAL NO. 2167 OF 2024]
Tulip Kanth
New Delhi, April 23, 2024: In a matrimonial dispute matter, where the father of a woman Police Officer filed various complaints against her husband and family members only with the motive to harass them, the Supreme Court has imposed a cost of Rs 5 lakh on him.
The appellant and respondent No.3 came in contact with each other in June, 2014 through the internet.The complainant (respondent No.2) who is the father of respondent No.3 had visited the appellant in Udaipur, who is a Chartered Accountant based in Hisar, for proposal of marriage of his daughter (respondent No.3) who was at that time posted as Deputy Superintendent of Police at Udaipur, Rajasthan.
In 2015, the marriage was solemnised at Udaipur. The respondent No.2 filed a complaint. The said complaint was registered at Police Station Hisar as an FIR under Section 498A read with Section 34 IPC. In the meantime, respondent No.2 submitted another complaint on 15.10.2015 i.e. five days after the first complaint on the same set of allegations as in the previous complaint. This complaint came to be registered under Section 498A/506 IPC etc.
In the first FIR along with the appellant other family members were also roped in. However, after further investigation, a Police Report under Section 173(2) Cr.P.C. was submitted in December, 2015 only against the appellant under Section 498A IPC. Based on the said Police Report, the Magistrate took cognizance and the trial proceeded. Thereafter, the appellant filed a petition under Section 482 Cr.P.C. before the Rajasthan High Court for quashing of the second FIR. By the impugned order, the High Court dismissed the said petition on the ground that the complaint at Udaipur was prior in point of time than the complaint in Hisar. The second ground was that the Rajasthan Police was not aware of the earlier proceedings/complaint before the Hisar Police and as such the Udaipur Police should be at liberty to investigate the said complaint made at Udaipur.
After the impugned order was passed, the Trial Court acquitted the appellant. The appeal before the Top Court challenged this judgment.
“Without going into these statutory provisions and the case laws relied upon by the parties, we are convinced that the impugned proceedings are nothing but an abuse of the process of law”, the Division Bench comprising Justice Vikram Nath & Justice Prashant Kumar Mishra said.
It was not denied by the respondent Nos. 2 and 3 that they did not lodge a complaint at Hisar. They also did not file an application withdrawing their complaint on the ground that it was wrongly filed here or that the said complaint may be transferred to Udaipur for investigation as the offence was committed at Udaipur. They allowed the investigating agency to continue to investigate in which their statements were also recorded.
“The respondent No.3 was a gazetted Police Officer at the relevant time and was also well aware of the laws, in particular the Cr.P.C. and the provisions thereto. Neither the complainant nor the victim entered the witness box before the Hisar Court allowing total wastage of the valuable time of the Court and the investigating agency. Merely because she was a Police Officer, she first managed to get an FIR lodged at Hisar through her father, and thereafter she moved to her hometown at Udaipur and got another complaint lodged by her father within a week”, it added.
The Bench also took into consideration the fact that the Complaint at Hisar was dated 10.10.2015, Complaint at Udaipur was dated 15.10.2015, FIR registered at Hisar was dated 17.10.2015 and the FIR registered at Udaipur was dated 01.11.2015. Hence, the admitted dates were relevant to upset the finding of the High Court that the complaint at Udaipur was prior in point of time.
Moreover, in the complaint lodged at Udaipur, the allegations were the same as in the complaint at Hisar and additionally it was stated in the complaint at Udaipur that the complainant had earlier lodged a complaint at Hisar. Thus, the investigating agency at Udaipur was well aware of the complaint on similar allegations being lodged at Hisar.
As per the Bench, the High Court again fell in error in observing that the Rajasthan Police was not aware about the earlier proceedings initiated at Hisar. “The High Court and the Rajasthan Police were expected to at least read the complaint carefully”, it added.
The Bench further observed, “In the facts and circumstances as recorded above, we are of the view that respondent Nos. 2 and 3 had been misusing their official position by lodging complaints one after the other. Further, their conduct of neither appearing before the Trial Court at Hisar nor withdrawing their complaint at Hisar, would show that their only intention was to harass the appellant by first making him face a trial at Hisar and then again at Udaipur.”
It was also noted that the appellant had been arrested and thereafter granted bail. In the complaint made at Hisar, there were allegations to the effect that when respondent No.2 visited the appellant at Hisar, he had made a demand of Rs. 50,00,000/- and also an Innova Car. Thus, the argument that no offence was committed in Hisar but only at Udaipur was also not correct.
“We thus deprecate this practice of state machinery being misused for ulterior motives and for causing harassment to the other side”, the Bench stated while allowing the appeal and quashing the impugned order passed by the High Court.
The Top Court also quashed the FIR and imposed cost of Rs 5 lakh. 50% of this amount has been asked to be transmitted in the account of the Supreme Court Legal Services Committee and the remaining 50% to the appellant.
Read Order: JADUNATH SINGH v. ARVIND KUMAR & ANR. ETC [SC- CRIMINAL APPEAL NOS. 2170 OF 2024]
LE Correspondent
New Delhi, April 23, 2024: In a case of murder of apolice constable, the Supreme Court has set aside the order of the Allahabad High Court granting bail to two accused despite their period of incarceration being more than 10 years. The Apex Court, however, upheld the bail order of the third accused as he was not charge sheeted in the matter.
The factual background of this case was that on 11.02.2011, theappellant/Complainant- Jadunath Singh submitted a Written Report narrating that a plot was illegally taken by Arvind Kumar (accused- respondent). He was removed from its illegal possession by Rajvir, son of the Complainant, in accordance with the order of District Magistrate.On the same day that this incident took place, the Complainant Jadunath Singh along with his son Rajvir, Pawan Kumar, Rawan Kumar, Upendra, Chedalal were sitting together, discussing the disputed plot. At this time, Arvind Kumar, armed with country made pistol, his two sons- Chandra Kumar @ Chandu armed with katta and Rishi Kumar armed with katta along with Amit Kumar, armed with a rifle and two unknown persons with rifles, arrived there and immediately opened fire at the complainant and all other persons sitting with him.
The Complainant and others ran but they werechased by accused persons along with continuous firing. They managed to intrude in the room in which Rajvir and Pawan entered while hiding and escaping from the shots. There the accused aimed at Rajvir and Pawan, shot them dead and thus caused the death of both these victims and also injured daughter in law of Harvilas, causing injuries upon her. Thereafter the accused persons fled away. The injured persons were taken to Hospital.On the basis of the complaint given by Jadunath Singh (Appellant), FIR was registered under Sections 147, 148, 149, 302, 307, 120B of IPC against five named accused and two unknown. After investigation Chargesheet was submitted against all the seven accused.
The Trial Court convicted five accused namely Arvind Kumar, Chandra Kumar, Pramod Kashyap, Rishi Kumar and Aadesh Kumar under Section 302/149, 147, 148 and 120-B of IPC and awarded life sentence. It, however, acquitted two other accused namely Monu and Amit Kumar of all the charges.
Another criminal case involving some of the present convicted accused came into light. In the year 2013, two accused viz Rishi Kumar and Chandra Kumar were produced before Sessions Court at Mainpuri, while in judicial custody by Constable Ajay Kumar. The two accused persons requested the police constable to take them out for attending natures call. As soon as they moved out from the Court campus, the two accused opened fire on said police constable due to which said constable died on the spot and thereafter his dead body was thrown by the accused persons in front of the house of one Munshi Lal. Consequently, an FIR was registered under Section 302 IPC against eight accused persons under Sections 302, 201, 120B, 34, 224 of IPC, with allegation that all eight accused hatched conspiracy for committing murder of Police Constable. The accused Chandra Kumar and Rishi Kumar absconded and were later on arrested by STF from Maharashtra where also they had opened fire on the police party for which a separate FIR was lodged.
The appellant had approached the Top Court challenging a common Order passed by Allahabad High Court whereby the three Applicants- Arvind Kumar, Chandra Kumar @ Chandu and Rishi Kumar were granted bail during the pendency of their Criminal appeals, with condition of furnishing a personal bond in the sum of Rs50,000each. The Appellant-Complainant challenged the order of granting bail on the ground that after being released from jail, they will hatch another conspiracy for eliminating the complainant and his family members.
As per the Division Bench of Justice Vikram Nath &Justice Sanjay Kumar, there were certain facts which were not placed before the High Court. These were the facts relating to the murder of Ajay Kumar Police Constable in whose custody the accused Chandra Kumar and Rishi Kumar were produced before the Trial Court at Mainpuri and further, the fact that they had absconded after throwing the dead body of deceased Constable Ajay Kumar and later on arrested by Special Task Force (STF) from Maharashtra. Another fact was that they had resisted their arrest and opened fire on the police party for which a separate case was registered.
These were relevant facts which ought to have been placed before the High Court. The parity mentioned by the High Court in the impugned order relating to Adesh Kumar and Pramod Kashyap was clearly distinguishable not only with respect to their role in the case in hand but also, they were not involved in the murder of Police Constable, the Bench held.
The Top Court opined, “In our considered opinion, two accused respondents namely Chandra Kumar and Rishi Kumar despite their period of incarceration of more than 10 years would not be entitled to grant of bail for their subsequent conduct for which they are facing separate trial.”
Insofar as Arvind Kumar was concerned, the Bench noted that he was not charge sheeted in the murder case of Ajay Kumar and thus, no interference was warranted with the order of the High Court granting bail to him i.e. Arvind Kumar. However, insofar as the other two accused Rishi Kumar and Chandra Kumar were concerned, the Bench was of the view that their bail deserved to be cancelled.
Accordingly, Bench dismissed the appeal against Arvind Kumar and allowed the appeals against Chandra Kumar and Rishi Kumar are allowed.
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.
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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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