Read Order: JAGVIR SINGH v. STATE OF U.P [SC- CRIMINAL APPEAL NO(S). 3684 OF 2023]
Tulip Kanth
New Delhi, May 8, 2024: In a murder case where the so-called eye-witnesses were the closest relatives of the victim and neither of them had actually seen the gunshots being fired at the deceased, the Supreme Court has acquitted a murder convict sentenced to life.
The first informant-Ram Naresh(PW-5) gave a written report at the Police Station alleging that his sister, brother-in-law and nephew- Sanju(deceased) were residing nearby his house in village Gokulpur for the last 15 years and one day the accused Omkar came and asked Sanju(deceased) to remove a water tank from the land of the accused, to which, Sanju(deceased) objected. The accused Omkar armed with a rifle along with Jagvir Singh(appellant herein) armed with a country made pistol climbed on the roof of house of accused Omkar and exhorted the two accused(Durvin and Sobran) to surround Sanju(deceased). Accused Omkar and Jagvir fired shots at Sanju(deceased) from the roof of Omkar’s house.
On hearing the noise, Ram Naresh-first informant(PW-5) and Ram Prakash(PW-1) rushed to the courtyard and found injured-Sanju trying to step down, but he rolled down near the staircase and died in the courtyard. All four accused ran away from the spot after firing gunshots.On the basis of the said report, FIR came to be registered against the four accused.
The appeal before the Top Court was filed against the judgment passed by the Division Bench of the Allahabad High Court whereby the Criminal Appeal preferred by the appellant for challenging the judgment of the Trial Court was rejected. By the said judgment, the trial Court convicted the accused appellant and accused Omkar for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 while acquitting accused Sobran and Durvin from the charges. The accused appellant as well as accused Omkar were sentenced to undergo imprisonment for life.
On a perusal of the FIR, the Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta opined that the first informant-Ram Naresh(PW-5) categorically mentioned in the report that on hearing the gunshots, he and his brother-in-law Ram Prakash(PW-1) climbed on the top of the roof and saw that Sanju(deceased) was injured, and while he was climbing down the staircase, he rolled down, fell in the courtyard near the stairs and died. This fact was even admitted by Ram Naresh(PW-5) during this cross-examination.
The Bench also held that the claim made by Ram Prakash(PW-1) in his evidence that he and Ram Naresh(PW-5) had reached the roof of the house from where they saw Omkar firing at Sanju was a sheer piece of concoction. Furthermore, the conduct of the eye-witnesses Ram Prakash(PW-1) and Ram Naresh(PW-5) was totally unnatural. Both the witnesses claimed to have seen Sanju(deceased) being chased and surrounded by accused Durvin and Sobran. Despite that, neither of them made an attempt to save Sanju from these assailants or to at least raise a hue and cry so that the neighbours could be apprised about the incident. Neither of the witnesses made an attempt to intervene or to shield Sanju.
Noting that both the witnesses claimed that they saw accused Omkar and accused appellant Jagvir Singh rushing towards the house of Omkar and climbing the roof thereof, the Bench held that there was no rhyme or reason as to why, Sanju would also climb up the roof of Ram Naresh’s house and take the risk of exposing himself to the offensive intents of the accused persons.
It was also noticed that the so-called eye-witnesses, Ram Prakash(PW-1) and Ram Naresh(PW-5) were the closest relatives of the victim. They allegedly saw the fatal assault on the victim and yet did not take any step to save him from the assault. “If these witnesses PW-1 and PW-5 had actually seen the assault, their reaction and conduct does not match up with the reaction expected from them. Their conduct is highly unnatural, and we find it difficult to accept their presence at the crime scene”, the Bench opined while also adding, “In this background, we have no hesitation in holding that the so called eye witnesses, PW-1 and PW-5, who were unquestionably standing or moving at the ground level could not have seen the gunshots being fired at Sanju(deceased) from the roof of Omkar’s house.”
Neither of the so-called eye witnesses i.e., Ram Prakash(PW-1), Sultan Singh(PW- 2) and Ram Naresh(PW-5) had actually seen the gunshots being fired at Sanju(deceased). The Bench further stated that the entire sequence of events as narrated by prosecution witnesses did not inspire confidence.
Sanju received a single gunshot injury which proved fatal. Considering the significant disparities and discrepancies in the evidence of Ram Prakash(PW-1) and Ram Naresh(PW-5) regarding the identity of the assailant who actually fired at Sanju(deceased), the Bench opined that the conviction of accused appellant Jagvir Singh on the basis of such flimsy and wavering evidence is not at all justified.
“The trial Court as well as the High Court committed glaring error while holding that Ram Prakash(PW-1), Sultan Singh(PW-2) and Ram Naresh(PW-5) were eyewitnesses to the incident and that they saw the accused appellant along with accused Omkar firing at Sanju(deceased). These findings are unsustainable on the face of the record in view of the analyses and discussion of evidence made above”, the Bench held.
Thus, allowing the appeal, the Bench acquitted the appellant by giving him the benefit of doubt.
Read Order: New India Assurance Company Ltd. Through its Manager v. M/s Tata Steel Ltd [CIVIL APPEAL NO. 2759 OF 200]
LE Correspondent
New Delhi, May 8, 2024: While considering a case of insurance claim raised by Tata Steel, the Supreme Court has held that the claim was rightly settled by the New India Assurance Company by determining the loss amount payable at Rs 7.88 crore after applying 60 per cent depreciation.
The Insured had taken an insurance policy from NIACL for the entire machinery and equipment of its mill by paying a premium of Rs.62,09,655. The policy was for the period 29.09.1998 to 28.09.1999. According to the Insured, due to a fire accident, the Cold Rolling Mill fitted with imported equipment was fully destroyed resulting in a loss of Rs. 35.08 crores. The incident of fire was intimated to NIACL on 12.12.1998 itself.
A claim for Rs. 35.08 crore was filed which was based upon the quotations received from various manufacturers of the said machinery and the complete details of cost for replacing and/or repairing the machines. The Insured also pleaded that since the running of the company was important, it got a 6 Hi Cold Rolling Mill installed in its unit and commenced production by spending Rs.29.60 crores apart from excise duties.
Admittedly, based on the interim report of the surveyors, a sum of Rs.4,92,80,905/- was released in favour of the Insured by NIACL. According to the Insured, though it lost more than Rs. 25 crores, in view of the persistence from the Insurance Company, it gave consent for receiving Rs.20.95 Crores as net adjusted loss to avoid loss of time. According to the Insured, since no response was forthcoming and the balance amount was not released, Consumer Complaint was filed by the Insured before the NCDRC.
The four civil appeals before the Top Court arose out of the proceedings before the National Consumer Disputes Redressal Commission (NCDRC).
The grievance pleaded by the Insured/Complainant was that the compensation awarded ought to have been greater because, according to it, the base figure on which the depreciation of 32% was computed should have been Rs.28 Crore and not Rs.20,09,95,000. The claim was that the amount payable by NIACL should have been Rs. 18.91 Crores.
On the issue of whether the memorandum consisting of the Reinstatement Value Clause was a part of the policy, the Division Bench of Justice Surya Kant & Justice K.V. Vishwanathan rejected the argument of the Insured that the memorandum containing the Reinstatement Value Clause was not part of the policy. This was for the reason that before the NCDRC in the written statement filed by the NIACL, it was specifically pleaded as the Reinstatement Value Clause issued along with the policy was not attached to the same.
For the Insured, NIACL did not completely repudiate the claim. Instead faced with the letters of the Insured admitting to the value at Rs.20.95 Crores and the letter of M/s Flat Products of 28.06.2001 throwing up their hands and informing the Insured about them having lost their expertise, NIACL resorted to settling the claim under the opening clause of the policy by agreeing to pay the Insured the value of the property at the time of the happening of the destruction under the Depreciation Method.
Noting that the surveyors had offered justification in their response for providing depreciation at the rate of 60% and the Additional Affidavit also clarified the established practice, the Bench noticed that the base figure of Rs.20.09 crore was kept intact. Thus, the Bench set aside the finding of the NCDRC that the practice adopted in the instant case was not a healthy practice by the NIACL and upheld the percentage of depreciation at 60%.
The Bench also opined that there was no breach of Regulation 9(3) of the IRDA (Protection of Policyholders Interests) Regulations, 2002 which provides the procedure to be followed in respect of a general insurance policy.
Clarifying that the judgment in Oswal Plastic Industries v. Manager, Legal Deptt N.A.I.C.O. Ltd., had no application to the facts of the present case, the Bench held that the NIACL rightly ordered the settlement of the claim stating the loss amount as Rs.7.88 Crores and ordering the balance amount of 2.88 crores be paid after adjusting the on account payment.
Thus, allowing the Civil Appeal of NIACL, the Bench held that the claim was rightly settled by the NIACL which determined the loss amount payable at Rs.7.88 crores after applying 60% depreciation.
Read Order: AMANATULLAH KHAN v. THE COMMISSIONER OF POLICE, DELHI & ORS [SC- CRIMINAL APPEAL NO. 2349 OF 2024
Tulip Kanth
New Delhi, May 8, 2024: Taking note of the allegations that Police Diaries are maintained selectively of individuals based solely on caste-bias, the Supreme Court has directed all the State Governments to take necessary preventive measures to safeguard such communities from being subjected to inexcusable targeting or prejudicial treatment.
The appellant-Aam Aadmi Party (AAP) MLA Amanatullah Khan, had approached the Delhi High Court through a writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 for quashing of the ‘History Sheet’ opened against him and the proposal to declare him as ‘Bad Character’ with the entry of sim name in the Surveillance ‘Register-X, Part II, Bundle A’ at Delhi's Jamia Nagar Police Station. Vide the impugned judgment, the Single Judge dismissed the appellant’s writ petition, giving rise to these proceedings.
Upon notice, the Delhi Police entered appearance through its Counsel Sanjay Jain who was apprised of some disturbing contents of the History Sheet to the extent it pertained to the school going minor children of the appellant and his wife, against whom there was apparently no adverse material whatsoever for inclusion in the History Sheet. It was then apprised that the format of the history sheeters was prescribed following Rule 23.8 and Rule 23.9 of the Punjab Police Rules 1934 as were applicable in the NCT of Delhi.
The Counsel for the respondents, however, fairly agreed to re-visit the archaic rules with a view to ensure that the dignity, self-respect and privacy of the innocent people, who incidentally happen to be the family members of a suspect, is not compromised at any cost.
Referring to the amended Standing Order No.L&O/54/2022 issued by the Commissioner of Police, Delhi, the Division Bench of Justice Surya Kant & Justice K. V. Viswanathan noted that in the column “relations and connections”, it had been decided that identities of only those persons shall be reflected who can afford the history sheeter/bad character shelter, when the offender is running/wanted by the police and it shall also include names of his associates in crime, abettors and receivers. The amended Standing Order also states that no details of any minor relatives, i.e., son, daughter, siblings shall be recorded anywhere in the History Sheet unless there is evidence that such minor, has or earlier had, afforded shelter to the offender. The safeguard with regard to the details of phone numbers, Aadhar Card, EPIC number, e-mail I.D., social media accounts etc., have also been suggested in the amended Standing Order.
The amended provision also mandates that Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015 shall be meticulously followed, whereunder there is a prohibition on disclosing the identity of a child in conflict with law or a child in need of care and protection or a child victim or a witness of a crime through a report etc.
Coming back to the case in hand, the Bench opined that the decision taken by the respondents to the effect that the History Sheet is only an internal police document and it shall not be brought in public domain, largely addressed the concern expressed by it. “Secondly, the extra care and precaution, to be now observed by a police officer while ensuring that the identity of a minor child is not disclosed as per the law too, is a necessary step to redress the appellant’s grievances. It will surely prevent the undesirable exposure that has been given to the minor children in this case”, it added.
The amended order states that no details of any minor relatives, i.e., son, daughter, siblings shall be recorded anywhere in the History Sheet.
Thus, directing that the amended Standing Order dated be given effect forthwith in the appellant’s case, the Bench also ordered the Commissioner of Police to designate a senior police, in the rank of Joint Commissioner of Police or above, who would periodically audit/review the contents of the History Sheets and ensure confidentiality and a leeway to delete the names of such persons/juvenile/children who are, in the course of investigation, found innocent and are entitled to be expunged from the category of “relations and connections” in a History Sheet.
Moreover, in exercise of its suo motu powers, the Top Court proposed to expand the scope of these proceedings so that the police authorities in other States and Union Territories may also consider the desirability of ensuring that no mechanical entries in History Sheet are made of innocent individuals, simply because they happen to hail from the socially, economically and educationally disadvantaged backgrounds, along with those belonging to Backward Communities, Scheduled Castes & Scheduled Tribes.
Noticing the allegations that Police Diaries are maintained selectively of individuals belonging to Vimukta Jatis, based solely on caste-bias, a somewhat similar manner as happened in colonial times, the Bench held, “All the State Governments are therefore expected to take necessary preventive measures to safeguard such communities from being subjected to inexcusable targeting or prejudicial treatment.”
Further stating that the value for human dignity and life is deeply embedded in Article 21 of our Constitution, the Bench held, “It seems that a periodic audit mechanism overseen by a senior police officer, as directed for the NCT of Delhi, will serve as a critical tool to review and scrutinize the entries made, so as to ascertain that these are devoid of any biases or discriminatory practices.”
The Bench concluded the matter by further holding, “We, therefore, deem it appropriate, at this stage, to direct all the States/Union Territories to revisit their policy-regime and consider whether suitable amendments on the pattern of the ‘Delhi Model’ are required to be made so that our observations made in paragraphs 14 to 16 of this order can be given effect in true letter and spirit.”
Read Order: DR. RANBEER BOSE & ANR v. ANITA DAS & ANR [SC- CIVIL APPEAL NO(S). 5941 OF 2024]
LE Correspondent
New Delhi, May 7, 2024: In a private dispute between neighbours where it was alleged that the appellants did not maintain the open spaces prescribed under Rule 50 of the West Bengal Municipal(Building) Rules, 2007 while raising the construction of the residential property, the Supreme Court has held that the appropriate remedy would have been to approach the municipal authorities instead of the High Court. The Top Court further explained that if no proper response was forthcoming, then the civil Court was the appropriate forum for ventilating such grievances.
The appellants, before the Top Court, were assailing the order of the Division Bench of the Calcutta High Court affirming the order of the Single Judge. The appellants had raised a grievance that the directions issued by the Single Judge in the contempt petition had direct bearing on their residential premises.
It was contended that the private respondent(respondent No.1), filed the writ petition before the Single Judge alleging that while raising the construction of the residential property, the appellants did not maintain the open spaces prescribed under Rule 50 of the West Bengal Municipal(Building) Rules, 2007.
It was the case of the appellants that the Single Judge was not justified in entertaining the writ petition which raised a purely private dispute between two neighbours. It was further submitted that acting under the pressure of the contempt proceedings, the municipal authorities had issued a show cause notice to the appellants with the observation that the building raised by the appellants herein was in contravention of Rule 50 of the Rules of 2007. It was urged that the appellants may be given liberty to challenge the enquiry report and the show cause notice by taking recourse to the provisions contained in West Bengal Municipal Act, 1993.
The respondent argued that after extensive consideration of the material available on record, the Single Judge had found that the sanctioned building plan was violated by the appellants while raising construction of their residential premises and as such, the direction to conduct an enquiry into the matter was justified.
At the outset, the Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta said, “We express our reservations on the exercise of writ jurisdiction by the learned Single Judge of the High Court of Calcutta in a controversy, which appears to be a purely private dispute between the appellants herein and the private respondent(respondent No.1 herein), being immediate neighbours.”
Prima facie, the Bench observed, “...if at all the private respondent(respondent No.1 herein) was aggrieved of irregularity committed, if any, in the construction raised by the appellants on their own plot, the appropriate remedy for him would have been to approach the municipal authorities and if no proper response was forthcoming, then the civil Court was the appropriate forum for ventilating the grievances of the nature which have been raised before the writ Court.”
The Bench took note of the enquiry report presented before the High Court by the municipal authorities wherein it was mentioned that the construction made by the appellants had not been found to be in violation of the building plan. It was also mentioned therein that the sanction plan to construct the building was granted in violation of Rule 50 of the Rules of 2007.
“Indisputably, the appellants have a right to challenge the said enquiry report and the show cause notice”, the Bench said while further adding, “Hence, we leave the appellants at liberty to challenge the show cause notice dated 24th April, 2024 and the enquiry report(s) by resorting to the provisions contained in the West Bengal Municipal Act, 1993.
Needless to say that the objections so raised by the appellants will be considered and decided objectively without being prejudiced by either the pending contempt proceedings or the orders passed in the writ proceedings. It was also noted that as per sub-clause(3) of Section 218 of West Bengal Municipal Act, 1993, in case the objections raised by the appellants do not find favour of the Board of Councillors, they would have a right to file an appeal in the Court having jurisdiction. Thus, the Bench disposed of the appeal in these terms.
Read Order: T.R. VIJAYARAMAN AND ORS v. THE STATE OF TAMIL NADU [SC- SPECIAL LEAVE PETITION (CRIMINAL) NO. 3787 OF 2024]
LE Correspondent
New Delhi, May 7, 2024: The Supreme Court has upheld the conviction of the petitioners in a cheating and corruption case after noting that all the accused in connivance with the officers of Srirangam Branch of Indian Bank at Trichy submitted cheques of the accounts in which there was no balance and fraudulent entries were made to the tune of over Rs one crore.
The proceedings, in this case, arose out of a common FIR registered by the Central Bureau of Investigation (C.B.I.) under Section 120-B, read with Sections 420, 477(A) of IPC and Section 13(2), read with Section 13(1)(d) of Prevention of Corruption Act,1988 at Chennai. It was a case in which fraudulent transactions were made by the accused in connivance with the officers working at that time in Indian Bank at Srirangam Branch, Trichy.
The two petitioners in the SLPs were the proprietor of M/s Kumaran Silks and a partner in M/s Sri Ganesh Godown. In the FIR, there are a total 14 accused out of which 4 are bank officials and 10 are private businessmen.
The allegations against the accused were that the bank officers had made certain unauthorized debits in external clearing account and local drafts accounts and the said amount were credited to different parties accounts to offset the unauthorized temporary Demand Overdraft allowed earlier. The transactions were done in September 2002. The result was interest free advance to the petitioners.
Inspection was carried out by the senior officers of the bank in 2004 and it was noticed that certain debit entries were made in the external clearing account and credited in the accounts of the petitioner. These could be made only if any negotiable instrument was submitted for clearing. However, no such instrument was submitted. Even the temporary overdraft granted to the parties was not reported to the head office. After the inspection, the fraudulent entries were pointed out to the tune of Rs. 1,10,66,100 in the case of 10 borrowers including the petitioners. Immediately on the next date, the payment got deposited by the manager of the bank. The Trial Court convicted the petitioners, and the conviction was upheld by the High Court.Thus, the petitioners approached the Top Court.
After going through the submission of the parties, the Division Bench of Justice C.T. Ravikumar and Justice Rajesh Bindal did not find that any case was made out for grant of leave to appeal. “As already noticed above it is a case where bank officers and the private businessmen, two of whom are petitioners before this court, had cheated the bank”, the Bench said while adding that the fraud started in the year 2002, when without there being any instrument submitted to the bank for clearance from the accounts in which there was no balance, entries were made in the external clearing account and local drafts account for giving credit to the petitioners.
The entries were made in 2002 for clearing of overdraft of about Rs. 20 lakhs granted to the petitioner/T.R. Vijayaraman from July, 2002 onwards, immediately, after the petitioner opened his current account with the bank.
The modus operandi having come to the notice of the higher officers, inspection of the branch was carried out and when confronted the accused persons got the amount deposited immediately on the next day. It came out in the report that advance was enjoyed by the petitioners without payment of any interest. It was not a loan transaction as was sought to be argued.
The manner in which the entries were made in the accounts also could not be disputed. The amount deposited by the petitioners after the inspection was to the tune of Rs. 20.05 lakhs and Rs. 21.45 lakhs respectively. The Bench also rejected the argument that the petitioners did not have any control over the bank officials in the manner in which the entries were made in the books of accounts.
“All the accused in connivance with each other have cheated the bank, by submitting cheques of the accounts in which there was no balance, or without any submission thereof and entries by the bank officers in the books of account showing them to be pending for clearing and giving credit to the account holder/accused”, the Bench stated.
Thus, noting that no case was made out for grant of leave to appeal, the Bench dismissed the Special Leave Petitions and directed the petitioners surrender before the concerned Trial Court within 2 weeks.
Read Order: STATE OF U.P. & ANOTHER v. MOHAN LAL [SC- SPECIAL LEAVE PETITION (C) No.25032 of 2014
LE COrrespondent
New Delhi, May 7, 2024: In a civil matter, the Supreme Court has dismissed an application filed by the U.P. Government seeking condonation of delay of 1,633 days in view of the fact that the petitioner-State appeared before the High Court and was heard before passing of the impugned order.
The petitioner assailed the impugned order passed by the Division Bench of the Allahabad High Court and also filed an application seeking condonation of delay of 1,633 days in filing the present petition.
The Division Bench of Justice Rajesh Bindal and Justice C.T. Ravikumar took note of the fact that to challenge the impugned order passed in 2009 by the High Court, the file was put up before the Competent Authority, Bareilly, for the first time on in 2011. On this file the Competent Authority directed to seek legal opinion from the District Government Counsel (Civil) (Hereinafter referred to as DGC (Civil)). After receiving the legal opinion from DGC (Civil), permission was sought from the State Government which was granted and received by the petitioner on 16.09.2011.
To explain the delay in filing the petition, the only plea taken was that the matter was entrusted to the counsel. However, later it was found that initially the appeal was not filed. It was further evident from the application that the case was not properly followed up at any stage.
The Bench said, “The explanation given for seeking condonation of huge delay of 1,633 days cannot be accepted, when it is not disputed that the petitioner-State appeared before the High Court and was heard before passing of the impugned order, so it was within their knowledge.”
The Bench also noticed that the petitioner-State in this petition had mentioned in its ground that in an identical case involving the same question of law, the petitioner-State had preferred one SLP in which this Court had issued notice, and the matter was still pending adjudication. However, the Bench stated that the same had also been dismissed by the Top Court.
Thus observing that no sufficient cause was made out for condonation of huge delay of 1,633 days in filing the present petition, the Bench dismissed the application for condonation for delay and the SLP.
Read Order: KANIHYA @ KANHI (DEAD) THROUGH LRS v. SUKHI RAM & ORS [SC- CIVIL APPEAL NO.3990 of 2011]
Tulip Kanth
New Delhi, May 7, 2024: While allowing the appellants to deposit the deficit balance of Rs 14 in a suit for pre-emption, the Supreme Court has imposed a cost of Rs 1 lakh on the appellants as the respondents were made to litigate for decades on account of error on part of the appellants.
The facts as available on record were that a part of land comprising of 1/4th share land in District Rohtak, Haryana, was sold by Jai Singh, Jai Kishan, Randhir, Shamsher Singh sons of Balbir Singh son of Dariyav Singh to Sukhi Ram, Ram Pal, Hari Om, Mahabir Singh (respondents-defendants). The predecessor in-interest of the appellants filed a suit for pre-emption. The same was decreed by the Trial Court. The predecessor in-interest of the appellants/plaintiffs was required to deposit a sum of Rs. 9,214/- minus 1/5th of the pre-emption amount already deposited failing which the suit was to stand dismissed.
The Predecessor in-interest of the appellants filed an application along with Treasury Challan in triplicate, seeking permission to deposit the amount as directed by the Trial Court. On the application the Trial Court passed the order for deposit of Rs. 7,600/-. It was claimed that the application and the challans were handed over in original to the appellants. The amount was deposited on the same day. After almost 3 months, an application was moved by the judgment- debtor (defendant-respondent) seeking permission to withdraw the amount deposited by the appellant-plaintiff on which a report was submitted by the office on the same day.
It was found that the amount deposited by the appellant-plaintiff was less by Rs. 14. The judgment-debtor (defendant- respondent) filed an application seeking dismissal of the suit on account of non-compliance of the direction given in the judgment and decree of the Trial Court, as there was failure on behalf of the appellant-plaintiff to deposit full amount within the time granted by the Trial Court. While the aforesaid application was pending, the appellant-plaintiff filed an application seeking permission of the court to deposit deficit amount of Rs. 14 which was dismissed.
Aggrieved against the same, the appellants preferred Revision Petition before the High Court which was initially allowed. However, on a Review Application filed by the respondents, the order passed by the High Court was recalled and Civil Revision was dismissed. It was the aforesaid order which was under challenge in the present appeal.
The Division Bench of Justice Rajesh Bindal and Justice Prasanna B. Varale took note of the fact that the balance amount to be deposited by the appellant was not specified in the decree. The deficiency was only Rs. 14. The appellants had already deposited Rs. 9,200/- including the preemption amount already deposited. When the application was filed seeking permission to deposit the amount along with the Treasury Challan, the error was not noticed by the Court.
In response to the application filed by the respondents to pass appropriate order on account of deficiency by the appellants to deposit the amount as directed by the court, the appellants stated that in case there is any deficiency, they are ready to make it good.
“The court could have considered the same and passed appropriate orders. However, the matter remained pending for this”, the Bench said.
It was the pleaded case of the appellants in the application filed for permission to deposit the deficit balance of Rs. 14 that the applicant (late Kanihya, predecessor in-interest of the appellants) was in possession of the property and mutation had already been entered in his name in the revenue record.
Thus, allowing the appeal, the Bench permitted the appellants to deposit a sum of Rs. 14. It also held that the respondents would be entitled to withdraw the entire amount deposited in court, if not already done.
The Bench also noted that on account of error on part of the appellants, the respondents were made to litigate for decades together upto this Court. Hence, the Bench said, “...we direct the appellants to pay a cost of Rs. 1,00,000/- to the respondents. The amount shall be deposited in the Trial Court within the time granted above, with liberty to the respondents to withdraw the same.”
Read Order: SMITA SHRIVASTAVA v. THE STATE OF MADHYA PRADESH & ORS. ETC [SC- CIVIL APPEAL NO(S). 5938-5940 OF 2024]
Tulip Kanth
New Delhi, May 6, 2024: While observing that the Madhya Pradesh Government had rejected a candidate’s legitimate claim, the Supreme Court has ordered her appointment to the post of Samvida Shala Shikshak Grade-III or an equivalent post within 60 days. The Top Court has also asked the State Govt to pay her Rs 10 lakh which can be recovered from the officers who were responsible for taking deliberate and illegal action against the candidate.
The appellant, in this case, was appointed as an Instructor in the Non-Formal Educational Centre established by the State Government in the year 1990. She worked on the said post till September 1, 1993. Later on, the State Government decided to abolish the post of Instructors. The State Government promulgated recruitment rules for the services of the Samvida Shala Shikshak Grade-I, II and III in the name of the Madhya Pradesh Panchayat Samvida Shala Shikshak(Employment and Conditions of Contract) Rules, 2005.
The State Government conducted an examination for the selection of Samvida Shala Shikshak Grade-III in which the appellant was declared passed. However, no appointment order was forthcoming in her favour, whereupon she served a legal notice to the concerned authority but to no avail. The Rules of 2005 were amended on 29th July, 2009 whereby, sub Rule(2) was inserted in Rule 7-A to the effect that the candidates who were working on the post of Instructors in the Non- Formal Educational Centres were eligible to get appointment. The aforesaid amendment made the appellant ineligible to be appointed for the post of Samvida Shala Shikshak Grade-III as she had been discontinued from the job of Instructor with effect from 1st September, 1993 and accordingly, in view of the aforesaid amendment, the State Government denied appointment to the appellant herein which compelled her to institute litigation along with similarly situated ex-Instructors.
The appellant approached the Top Court challenging the impugned judgments passed by the Madhya Pradesh High Court whereby, while allowing the writ appeal preferred by the respondent, the High Court refused to grant the relief of appointment to the appellant on the post of Samvida Shala Shikshak Grade-III in spite of holding that denial of such appointment was grossly illegal and arbitrary.
The Bench was of the opinion that this case was clearly covered by the judgment in Manoj Kumar v. Union of India and Others [LQ/SC/2024/167] where it has been observed that while the primary duty of constitutional courts remains the control of power, including setting aside of administrative actions that may be illegal or arbitrary, it must be acknowledged that such measures may not singularly address repercussions of abuse of power. It is equally incumbent upon the courts, as a secondary measure, to address the injurious consequences arising from arbitrary and illegal actions.
The Bench noted that appellant is presently of 59 years of age and can hold the post of Samvida Shala Shikshak Grade-III till the age of 62 years. The High Court noticed that despite a clear-cut finding that the amended rule would not apply in the case of the appellant, the State Government had rejected her legitimate claim by relying on the amended rule.
The High Court, on the one hand, thought it fit to proceed with contempt action against the erring officers of the State Government, but at the same time, denied relief to the appellant on the basis of notification of 2018 which makes the amended rule i.e. Rule 7-A effective retrospectively i.e., with effect from January 1, 2008. This observation of the High Court, according to the Bench, was in sheer contravention of the findings and conclusions recorded earlier.
“As a consequence, we are of the firm view that the appellant deserves a direction for restitutive relief along with compensation for the misery piled upon her owing to the arbitrary and high- handed action of the State Government and its officials”, the Bench held.
Thus, allowing the appeal, the Bench held that the appellant shall forthwith be appointed to the post of Samvida Shala Shikshak Grade-III or an equivalent post within a period of 60 days. The appointment order has been held to be effective from the date on which the first appointment order pursuant to the selection process dated August 31, 2008 came to be issued.
The Bench concluded the matter by further directing, “The appellant shall be entitled to continuity in service. However, she shall not be entitled to back wages. However, she is granted exemplary cost quantified at Rs.10,00,000/- (Rupees Ten Lakhs only). The above amount shall be paid to the appellant by the State of Madhya Pradesh within 60 days. The State Government shall hold an enquiry and recover the said amount of Rs. 10,00,000/-(Rupees Ten Lakhs only) from the officer(s) who were responsible of taking deliberate, illegal, mala fide actions for denying relief to the appellant.”
Read Order: MAHENDRA NATH SORAL & ANOTHER v. RAVINDRA NATH SORAL AND OTHERS [SC- CIVIL APPEAL NO. 1980 of 2024]
LE Correspondent
New Delhi, May 6, 2024: While observing that the property dispute matter was lingering on for more than two decades, the Supreme Court has dismissed the appeal of the legal heirs and reiterated that the dispute relating to partition amongst family members/coparceners should be settled through alternate means of mediation and conciliation.
The Division Bench of Justice Rajesh Bindal and Justice Prasanna B. Varale was considering an appeal which arose out of a dispute between the parties pertaining to partition of the properties left by their ancestor/Late Rameshwar Nath Soral who died in 1996. He was survived by three sons and two daughters. During the pendency of the litigation one of the daughters, Usha Sharma (Usha Soral) died in 2018 and her legal heirs were brought on record.
A suit for partition was filed by the appellant no.1/Mahendra Nath Soral pertaining to the properties left by his late father, impleading his two brothers and two sisters as the defendants. However, in the present appeal the appellants were disputing the partition proceedings only with reference to the roof rights of a Plot situated in Kota. Besides this there was another property also in Jaipur.
The Trial Court passed the preliminary decree holding all the legal heirs of Late Rameshwar Nath Soral entitled to equal shares in the immovable and movable properties. The aforesaid preliminary decree was challenged by Ravindra Nath Soral and Surendra Nath Soral by filing Regular First Appeal before the High Court raising a grievance that Usha Sharma and Asha Soral who are daughters of deceased Rameshwar Nath Soral were given dowry items at the time of their respective marriages and they are not entitled to any share in the immovable properties in terms of Section 23 of the Hindu Succession Act, 1956. It was also submitted that Surendra Nath Soral was not in possession of the ornaments, jewelry, gold and silver items.
The third appeal arose out of a suit filed by Ravindra Nath Soral and Surendra Nath Soral against Usha Sharma, her husband Mahesh Sharma and her son Mukul Sharma, seeking perpetual injunction with reference to one of the properties at Jaipur. The suit was dismissed. The present appeal was only with reference to the partition of the property.
The appeal before the Top Court was preferred against the judgment passed by the Rajasthan High Court whereby the judgment and decree of the Trial Court was upheld.. The final decree was challenged by the appellants and another daughter Usha Sharma (now deceased), raising issue regarding valuation of the property and also roof rights of the house, in which the appellants were given two separate portions on the ground floor whereas the two sons were given two separate portions on the first floor along with roof rights. One of the daughters was given a separate house. The High Court did not find merit in the arguments raised by the appellants before the High Court.
The appellants argued that the Valuer had failed to assess the value of the roof rights where further construction could be raised. If that part was taken into consideration, the valuation of the property would change and as a result of which all the four co-sharers of the property would have equal roof rights as well.
The respondents submitted that the issue was examined threadbare by the Trial Court as well as the High Court and on appropriate valuation of the property, as assessed by the approved Valuer, the shares of the parties were determined.
The Bench, at the outset, observed, “The case in hand is an example of the bitterness amongst the legal heirs of Late Rameshwar Nath Soral with regard to the partition of the properties left by him. It is properties vs proper ties. Short term gain vs Long terms relations. One can either get share in the properties that too by litigating or can maintain proper ties amongst the family members with little give and take, and not going to the extent of minute details.”
As per the Bench, it might not be a matter of dispute that none of the legal heirs of Late Rameshwar Nath Soral had contributed anything in acquisition of the plots or construction of the properties by themselves. Whatever was given to them was a kind of bounty but still they being greedy, not satisfied with whatever they received, were litigating for more than two decades.
The partition of property in question amongst the legal heirs was upheld by the High Court. Certain additional rights were given to two legal heirs, namely, Mahendra Nath Soral and Asha Soral, who were allowed shares on the ground floor, whereas roof rights were given to Ravindra Nath Soral and Surendra Nath Soral who were granted portions in the first floor.
The Top Court was of the view that if the argument raised by the appellants was to be accepted at this stage, the same would amount to coming back to square one, where all the properties would have to be revalued for the purpose of partition and this would open a new chapter of litigation between the parties. It was opined that once the rights of the parties and their shares were determined by the Trial Court in the final decree and the judgment of the Trial Court was upheld by the High Court, that would not be the correct course to be adopted.
Reference was made to the judgment in Afcons Infrastructure Limited vs. Cherian Varkey Construction Company Private Limited and Others [LQ/SC/2010/727] wherein it has been observed that the dispute relating to partition/division amongst family members/coparceners /co-owners should normally be settled through Alternative Disputes Redressal (ADR) Process.
The Bench held that the case in hand was one of the most appropriate cases in which the Court should have tried for resolution of dispute by adopting alternate means namely mediation and conciliation. “The Courts are required to explore these methods for amicable settlement of family disputes”, the Bench added while dismissing the appeal.
Read Order: ALAUDDIN & ORS v. THE STATE OF ASSAM & ANR [SC- CRIMINAL APPEAL NO. 1637 OF 2021]
LE Correspondent
New Delhi, May 6, 2024: Rejecting the theory of last seen together and noting the material omissions in the testimony of the witnesses, the Supreme Court has acquitted the appellants-convicts in a murder case. The Top Court also highlighted the fact that the Trial Court did not follow the correct procedure while recording the contradictions in the statements of the witnesses.
The appellants are accused nos. 3, 1, 6 and 7 have been convicted for the offences punishable under Section 302, read with Section 149 of the Indian Penal Code . The allegation against the appellants was of committing culpable homicide amounting to the murder of one Sahabuddin Choudhury. This incident occurred in the year 2013 and there were eight accused who were tried for the offence. Out of the eight accused, the Trial Court convicted five. One died during the pendency of the trial.
An appeal against conviction was preferred before the High Court. By the impugned judgment, the High Court confirmed the appellant’s conviction. However, the High Court set aside the conviction of accused no. 5. The case of the prosecution was that accused no. 1 (Md. Abdul Kadir) picked up the victim of the offence from his residence on the date of the incident and took him to Bhojkhowa Chapori Bazar. The accused killed the victim behind L.P. School by assaulting him with a sharp weapon.
The appellant’s Counsel pointed out that even evidence of PW-3 & PW-4 needed to be discarded, as their evidence was full of omissions and contradictions. It was pointed out that PW-6 admitted that her husband had lodged a police complaint against the accused on the allegation that the accused had dispossessed him from his land. He submitted that evidence of last seen together also couldn’t be relied upon. It was contended that while recording the cross-examination of the prosecution witnesses, the contradictions had not been properly recorded in accordance with the law.
The Division Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan, took note of the fact that the High Court held that only four accused were guilty but Section 141 of IPC defines unlawful assembly as an assembly of five or more persons. The High Court had not held that apart from the present appellants whose conviction was confirmed, others formed part of the unlawful assembly. Hence, there was no unlawful assembly within the meaning of Section 141 of IPC. Therefore, as per the Bench, the appellants could not have been convicted for the offence punishable under Section 302 of IPC with the aid of Section 149.
The Bench was of the opinion that the Trial Court did not follow the correct procedure while recording the contradictions.
It was further explained that Section 162(1) of Code of Criminal Procedure, 1973 provides that any statement made by a person to a police officer in the course of investigation, which is reduced in writing, cannot be used for any purpose except as provided in Section 162. But what is provided in sub- Section (1) of Section 162 does not apply to a dying declaration. The second exception to the general rule provided in sub-Section (1) of Section 162 is that the accused can use the statement to contradict the witness in the manner provided by Section 145 of the Evidence Act. It was also made clear that when a prosecution witness whose statement under Section 161 (1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under Section 161 (1) or Section 164 of CrPC, it is said that there is an omission.
The Bench emphasized on the fact that while recording the cross-examination, the Trial Court must record that a particular portion marked. If the witness is intended to be confronted with his prior statement reduced into writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness. After that, the part of the prior statement used to contradict the witness has to be proved. However, in the present case, the Trial Judge did not mark those parts of the witnesses prior statements based on which they were sought to be contradicted in the cross-examination.
Referring to the landmark judgment in Tahsildar Singh & Anr. v. State of U.P., the Bench said, “...every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witnesss version. Only when there is a material contradiction or omission can the Court disbelieve the witnesss version either fully or partially.”
It was noted that PW-2 (Md. Asraful Islam) was declared as hostile and there were material omissions which affected the reliability of PW-4. Moreover, it was very doubtful whether PW-4 had seen the assault on the deceased. The material part of the testimony of PW-5 was also a significant omission which amounted to contradiction. PW-10 was not an eyewitness or a witness who deposed about the last seen together.
Therefore, as far as evidence of assault on the deceased was concerned, there was no reliable evidence to show the involvement of the appellants. The only evidence regarding the last seen together was that on the date of the incident, appellant no. 2 took the deceased on his motorcycle. However, PW-3 has stated that appellant no. 2 took the deceased at 4.00 p.m. to attend a meeting of the Congress Party. He also said that his deceased father was an influential leader of the Congress. Therefore, after 4.00 p.m., there were also persons other than the accused around the deceased.
“The theory of last seen together is helpful to the prosecution if the deceased was seen in the company of the accused in the proximity of the time at which the dead body is found. If the evidence shows that after the deceased was seen in the company of the accused, he was in the company of others as well, the theory of last seen together is not of any assistance to the prosecution. The reason is that the involvement of other persons in the offence is not ruled out”, the Bench said while observing that the fact that appellant no. 2 was found in the company of the deceased at 4.00 p.m. was not sufficient to link him with the commission of the offence of murder. It was held that the theory of last seen together deserved to be rejected. Therefore, the prosecution failed to bring home the charge against the appellants.
Thus, allowing the appeal, the Bench acquitted the appellants of the charges.
Read Order: ANEES v. THE STATE GOVT. OF NCT [SC- CRIMINAL APPEAL NO. 437 OF 2015]
Tulip Kanth
New Delhi, May 6, 2024: While upholding the conviction of a 65-year-old man for his wife's murder, the Supreme Court has opined that the Trial judge failed to play an active role in the present matter. However, noting his old age and 11-year-long incarceration period, the Top Court granted liberty to the appellant-convict to prefer an appropriate plea for remission before the State Government.
The case of the prosecution was that the deceased-Saira was married to the appellant. The marriage of the deceased with the appellant was solemnised in 1982 in accordance with the Muslim rites and customs. In the wedlock, a daughter named Shaheena was born, who, at the time of the incident in 1995, was five years of age.A wireless operator of the Delhi Police informed one lady constable who was on duty in a PCR that a woman had been stabbed. When the policeofficials reached the place of occurrence, they found the deceased lying in a pool of blood, having suffered multiple deep stabbed wounds in the abdomen and other parts of the body. The appellant herein was also present at the place of occurrence. It was noticed that the appellant had also suffered a few superficial injuries. Both, the deceased and the appellant, were sent to the hospital where the deceased was declared as brought dead and the appellant was declared fit for the purpose of interrogation and was discharged after some preliminary treatment.
The investigation revealed that the marital relationship of the appellant with the deceased was strained. It was alleged that on the fateful night of the incident, an altercation took place between the appellant and the deceased, as a result, the appellant was alleged to have inflicted stab injuries indiscriminately with a knife all over the body of the deceased. It was also the case of the prosecution that the minor daughter Shaheena was the sole eyewitness to the incident. A rukka was prepared by the Investigating Officer and sent to the concerned Police Station based upon which the First Information Report was registered against the appellant for the offence punishable under Section 302 of the IPC.
The appeal before the Top Court was filed at the instance of the appellant convict sentenced to life. His conviction under Section 302 of the Indian Penal Code, 1860 was upheld by the Delhi High Court.
The 3-Judge Bench of Chief Justice D.Y. Chandrachud, JusticeJ.B. Pardiwala&Justice Manoj Misra first dealt with Section 106 of the Evidence Act which provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It was opined that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It was also made clear by the Bench that Section 106 of the Evidence Act has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to the accused but also to others, if they happened to be present when it took place.
The Bench also highlighted the duly proved foundational facts, which justified the courts below in invoking the principles enshrined under Section 106 of the Evidence Act. These included the fact that he offence took place inside the four walls of the house in which the appellant, deceased and their 5-year-old daughter were living. The incident occurred in the early morning hours between 3.30 am and 4.00 am.
The defence put forward by the appellant that two unidentified persons entered the house and inflicted injuries on the deceased and also on his body was found to be false. According to the Forensic Science Laboratory report, the blood stains on the clothes of the appellant matched with the blood group of the deceased i.e., AB+
The conduct of the appellant in leading the Investigating Officer and others to a drain nearby his house and the discovery of the knife from the drain was a relevant fact under Section 8 of the Evidence Act. “In other words, the evidence of the circumstance simpliciter that the appellant pointed out to the Investigating Officer the place where he threw away the weapon of offence i.e., knife would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act”, it said while also adding, “What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.”
It was also held, “Over a period of time, we have noticed, while hearing criminal appeals, that there is practically no effective and meaningful cross- examination by the Public Prosecutor of a hostile witness. All that the Public Prosecutor would do is to confront the hostile witness with his/her police statement recorded under Section 161 of the Cr.P.C. and contradict him/her with the same.”
The Bench noted that in this mattrer not only proper contradictions were not brought on record in the oral evidence of the hostile witnesses, but even those few that were brought on record, were not proved through the evidence of the Investigating Office.
It was contended from the appellant's side that it could be a sudden fight between the two in the heat of passion upon a sudden quarrel. It was explained by the Bench that the sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder.After a perusal of the facts, the Bench had no hesitation in saying that the present case was not one of culpable homicide not amounting to murder but the same was a case of murder. The Bench also took note of the fact that the appellant inflicted as many as twelve blows with a knife on the deceased who was unarmed and helpless.
“Where the offender takes undue advantage or has acted in a cruel or an unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is disproportionate, that circumstance must be taken into consideration to decide whether undue advantage has been taken”, it said.
After being informed of the mitigating circumstances i.e. the fact that the appellant had undergone almost 11 years of imprisonment so far and as on date the appellant must be about 65 years of age, the Bench dismissed the appeal and granted liberty to the appellant to prefer an appropriate representation addressed to the State Government praying for remission of sentence.
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.
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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.
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Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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