Read Order: R.Ponnalazhu v. The Superintendent of Police And Ors
Tulip Kanth
Chennai, July 1, 2022: In a criminal original petition filed by the petitioner seeking a direction to be given to the respondent police to not harass the petitioner, the Madras High Court has directed the police to follow the directions given by the Apex Court in Arneshkumar vs. State of Bihar and another with regard to handling the complaint and guidelines stated in the case of D.K.Basu vs. State of West Bengal as well as the Consolidated Instructions dated January 25,2021 issued by the Director General of Police, Chennai.
The Bench of Justice V.Sivagnanam was approached by the petitioner with the submission that the respondent police had been harassing the petitioner based on a false complaint given by the third respondent. The action of the respondent police was alleged to be in violation of the Articles 19 and 21 of the Constitution of India and on this ground the present petition was filed.
Expounding the law relating to section 482 CrPC, the Bench opined that the inherent power under this section envisages three circumstances under which inherent jurisdiction may be exercised such as to give effect to an order under the Code, to prevent abuse of the process of the Court and to otherwise secure ends of justice.
Noting the fact that the third respondent gave a complaint against the petitioner alleging some offences but according to the petitioner, the dispute between him and the private respondents was civil in nature, the Bench held that the respondent police on investigation of the complaint, if found that the parties are essentially seeking redressal of their civil claim, the police may follow the procedure as contemplated under Section 157(1)(b) of Cr.P.C.
Reiterating the principles culled out in the judgments of the Apex Court in Lalithakumari vs. State of U.P with regard to registration of F.I.R. and also in Arnesh Kumar’s case (Supra), the Bench passed the forestated directions to be followed by the Police and also held that if those legal principles were not followed, then it would be inevitable to meet the consequences of violation of law.
Read Order: Hardeep Singh @ Kala Khan v. Amit Kumar @ Sonu
LE Correspondent
Chandigarh, July 1, 2022: While dealing with a bail matter, the Punjab and Haryana High Court has recently stated that the possibility of the accused henceforth not attending the trial, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions.
The Bench of Justice Anoop Chitkara placed reliance on the Supreme Court in Sushila Aggarwal, wherein the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.
Challenging the order of proclamation on being declared a proclaimed offender, the petitioner came up before the High Court under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.).
The accused could not be served through the ordinary process, including summons, bailable warrants, and even non-bailable warrants, thus, the concerned Court finally proceeded against the petitioner under Section 82 of Cr.P.C. and declared the petitioner a proclaimed offender vide an order passed by the SDJM Ratia.
After arguing for a considerable time, the counsel for the petitioner submitted that the criminal justice system must not hamper and suffer because of the petitioner. Thus, he confined the prayers in the petition to the grant of bail on the petitioner’s surrendering before the majesty of the concerned court and reserving liberty to raise the given-up relief in the subsequent petition(s), if the need so arises.
In view of the above, the Court observed that the primary object of service is to secure the accused person’s presence in trial. Also, the fact that the petitioner approached the court on his own, was perceived by the Court to establish his bonafide at this stage. Without adjudicating the explanation offered and the stand taken by the petitioner, the court, in the exercise of its inherent powers under section 482 CrPC, deemed it appropriate to grant the limited relief to the petitioner, subject to the compliance of the conditions mentioned in this order.
Further, the Court also observed that in the present case, the maximum sentence imposable for the offences mentioned in FIR does not exceed seven years. Thus, the Court held that the directions passed in Arnesh Kumar v. State of Bihar, apply to this petition, wherein Supreme Court directed all the State Governments to instruct their police officers not to arrest the accused automatically when the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
Also, Justice Chitkara asserted that the possibility of the accused henceforth not attending the trial, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. Reference, in this respect, was made to the case of Sushila Aggarwal (Supra) wherein the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.
The Court thus held, “There shall be a stay of the petitioner’s arrest in the case mentioned above for ten days… It is clarified that if the petitioner fails to appear before the concerned court within the above mentioned time limit, then this order shall stand recalled automatically under section 362 read with 482 CrPC, without any furtherance reference to this court.”
Read Order: Harjeet Lal @ Laddu v. State of Punjab
Monika Rahar
Chandigarh, July 1, 2022: The Punjab and Haryana High Court has recently held that the power to grant bail under Section 439 of the Cr.P.C. is subject to the conditions laid down in Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), which commences with the non-obstante clause.
Further, Justice Suvir Sehgal added, “The Court is required to see as to whether there are any reasonable grounds to believe that the accused has not committed the offence and whether he is likely to commit any offence while on bail.”
The petitioner approached the Court with a petition under Section 439 of the Cr.P.C. seeking the grant of regular to him in an FIR registered under Section 22 of NDPS Act wherein Sections 22(c) and 29 of the NDPS Act, was added later on.
On the basis of secret information received by the Police, a vehicle (being driven by the present petitioner) was intercepted and 35000 tablets of intoxicating substance were recovered from its rear seat. Balwant Singh alias Billu was the co-passenger in the vehicle. On the basis of the confessional statement of the said accused, who were arrested on the spot, Sanket Uppal and Vijay Kumar, were also apprehended.
Besides urging that the petitioner was falsely implicated in the FIR, the petitioner’s counsel argued that the provisions of Sections 42 and 50 of the NDPS Act were not complied with. By referring to the recovery memo, the counsel submitted that the entire search was tainted and that the patrolling party was traveling in a private vehicle and there was an infraction of the instructions issued by the Govt.
Reliance in this respect was placed on orders passed by the Court, whereby, the co-accused was released on bail. It was his argument that the petitioner was ailing and by relying upon Echo-cardiography Report, it was contended that he had a poor heart condition.
Per contra, the State counsel submitted that the contraband recovered from the vehicle was found to be Tramadol Hydrochloride and its total weight was more than 14 kg. Thus, he argued that as the contraband fell within the category of commercial quantity, the petitioner could not be enlarged on bail in view of the bar under Section 37 of the NDPS Act. Further, the Counsel refuted the fact that there was any violation of the mandatory provisions or guidelines issued under the NDPS Act and submitted that due procedure was followed while conducting search, seizure and arrest. Also, the Counsel submitted that the charge sheet was presented and prosecution witnesses were being examined.
On the aspect of the health condition of the petitioner, the Court called for a medical status report. The status report so submitted stated that the petitioner complained of chest pain in November 2021 and was referred to GGSMCH, Faridkot and was discharged therefrom. He again complained of headache, palpitation and restlessness and he was kept under observation. Upon instructions, the State counsel submitted that the petitioner was hale and hearty and was in the process of being discharged.
Insofar as allegations against the petitioner were concerned, the Court observed that an exceptionally heavy recovery of contraband was made from the vehicle which he was driving, though it was not clear as to whether the petitioner was the owner of the vehicle. Further, the Court also observed that the petitioner did not give any explanation for the commercial quantity of contraband that was recovered from his possession and thus, the bar, as laid down under Section 37 of the NDPS Act, was clearly attracted.
In light of the above observations, the Court opined that the power to grant bail under Section 439 of the Code is subject to the conditions laid down in Section 37 of the NDPS Act, which commences with the non-obstante clause.
“The Court is required to see as to whether there are any reasonable grounds to believe that the accused has not committed the offence and whether he is likely to commit any offence while on bail”, the Court opined while also asserting that the Court was satisfied that these conditions were not satisfied.
Also, the Court held that the arguments of the counsel for the petitioner regarding non-compliance with the procedure and instructions would remain the subject matter of trial.
Thus, keeping in view the totality of the facts and circumstances, the huge quantity of prohibited substance recovered from the petitioner, stringent provision of Section 37 and presumption under Section 54 of the NDPS Act as well as the fact that the trial was progressing, the Court did not deem it fit to grant regular bail to the petitioner.
Therefore, the petition was dismissed. The Court however expected that in case the petitioner required any medical aid, the same shall be provided to him.
Read Order: Lovedeep Singh v. State of Punjab
Monika Rahar
Chandigarh, July 1, 2022: While dealing with an anticipatory bail plea by a juvenile in conflict with the law, the High Court of Punjab and Haryana has recently held that Section 438 Cr.P.C. does not create any different class for minors to be treated differently for bails.
The Bench of Justice Anoop Chitkara further added, “Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015, prescribes a procedure for the juveniles in conflict with the law whom the investigating agencies apprehend. Section 12 of bail under the Juvenile Act is much more lenient than sections 437 to 439 of Cr.P.C., and none of these statutes create any express bar for considering bail applications filed under Cr.P.C. on behalf of a minor.”
A juvenile in conflict with the law, apprehending arrest in an FIR registered under Sections 458, 323, 506, 148, 149 IPC came up before the Court under Section 438 Cr.P.C. seeking the grant of anticipatory bail.
The Counsel for the petitioner contended that Section 438 Cr.P.C. does not bar any application by a juvenile. Further, the Counsel added that the custodial investigation would serve no purpose whatsoever, and the pre-trial incarceration would cause an irreversible injustice to the petitioner and family. On the other hand, the counsel representing the State opposed bail.
After considering the case advanced by the Counsel for the petitioner, the Court observed at the very outset that Section 438 Cr.P.C. does not create any different class for minors to be treated differently for bails. The Bench further added that Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015, prescribes a procedure for the juveniles in conflict with the lawyer whom the investigating agencies apprehend, while according to Section 12 of the Juvenile Act, bail is much more lenient than Sections 437 to 439 of Cr.P.C., and none of these statutes creates any express bar for considering bail applications filed under Cr.P.C. on behalf of a minor.
Apart from this, the Court opined that the petitioner was a first offender, and one of the relevant factors would be to provide an opportunity to course-correct. Without commenting on the case’s merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the Court was of the view that the petitioner made a case for bail.
“Given above, keeping in mind the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, if the investigator proceeds with the arrest, then in such an eventuality, the petitioner shall be released on bail, by furnishing bonds to the Investigators satisfaction”, the Court held.
Read Order: State Rep. By The Senior Drugs Inspector v. M/s.subiksha Trading Services Pvt. Ltd And Ors
Tulip Kanth
Chennai, July 1, 2022: The Madras High Court has showed leniency in a matter pertaining to the Drugs and Cosmetics Act where prescription registers were not maintained properly but has also clarified that the primary responsibility under the statute to maintain carbon copy of sale bills and records of purchase is was upon the licensee.
Relying upon the provisions of the Drugs and Cosmetics Act, 1940 and The Drugs Rules 1945, the Bench of Justice G.Jayachandran asserted, “Reading of the above Rules, which is alleged to have been violated, it is clearly found that the responsibility of maintaining a carbon copy of cash or credit memos and maintenance of records on purchase of drug intended for sale is vested on the licensee.”
The case of the complainant was that in 2000, the Senior Drug Inspector inspected the accused Company, in which, the second and the third accused had been working as the Managing Director and Manager. The accused firm found that the carbon copies of the sales bills were not maintained. Similarly, the purchase bills for some tablets were not available. The inspection was conducted and show cause notice for contraventions of Sections 18(c) of Act read with 65(3), 65(4)(3)(ii), 65(4)(4) and 65(6) of Drugs and Cosmetic Rules was served on the accused. The reply of the accused was not satisfactory and taking other necessary action, complaint was lodged, after obtaining sanction.
The accused was the company represented by its Managing Director and Manager. The Trial Court acquitted the accused for all charges by holding that it was admitted that Pharmacist was responsible for maintaining records pertaining to the business of the accused company. Therefore, holding that the complainant did not issue proper show cause notice to the appropriate person who was responsible to the authority, complaint filed in haste was dismissed.The complainant being aggrieved by the dismissal of the complaint, had preferred the appeal before this Court.
The Bench was of the opinion that even if Pharmacist is responsible for documentation, the primary responsibility under the statute to maintain carbon copy of sale bills and records of purchase is upon the licensee, who were the first and second accused in this case. As per the Bench, if the trial Court during the course of trial had found that there were further accused who appeared to be guilty of the offence, the course open to the trial Court was to exercise its power under Section 319 of Cr.P.C., but not acquittal of the accused.
Observing that noninclusion of such a person as accused will not vitiate the trial against the persons where there is a prima facie material to prosecute, the Bench held that the trial Court wrongly exercised its power to acquit the accused against whom the prosecution had alleged violation of Drugs and Cosmetics Act as licensee.
However, the Bench disposed of the petition after considering submission of respondent’s counsel that the first respondent company had become defunct and the second respondent was no more in drug business and after lapse of 12 years, remand or retrial will put great hardship to the second appellant/accused. Hence prayed, leniency was shown by the Bench since, the charges against the respondents were only for non-production of documents and it was not a very serious violation.
Read Order: Harmanjot Singh v. State of Punjab
Monika Rahar
Chandigarh, July 1, 2022: While dealing with an anticipatory bail petition wherein the petitioner was accused of committing several acts of rape upon a woman working in Court, the Punjab and Haryana High Court has allowed the application on the ground that the petitioner was a first-time offender, and one of the relevant factors was to provide an opportunity to course-correct.
Also, the bench of Justice Anoop Chitkara added, “The victim is an employee, matured lady and working in the Court and she would know the consequences and legal remedies. Instead her keeping quiet for such a long time would make out a case for bail to the petitioner. There is no need to comment further, it might prejudice the case of the prosecution.”
Apprehending his arrest in an FIR registered under Section 376 IPC, the petitioner came up before the High Court under Section 438 Cr.P.C. for seeking anticipatory bail.
Essentially, in this case, the victim who was working in the Court came in contact with the petitioner who developed a friendly relationship with the victim. The petitioner took her to his house and tried to establish a sexual relationship with her but she refused to indulge in such an act. Thus, the petitioner played Anand Karaj Sahib from his mobile phone and placed the Gutka Sahib and took laavaan phere with the victim. He also applied vermillion on the parting line of the victim’s head.
After having performed this marriage, the petitioner indulged in sexual intercourse with the victim. Thereafter, the petitioner forcefully kept the victim in confinement and committed rape upon her on several occasions leading to multiple bruises on her body. He also threatened her to not discuss the relationship with anyone and blackmailed her by leaking her obscene pictures to her father.
The Counsel for the petitioner contended that the custodial investigation of the petitioner would serve no purpose whatsoever, and the pre-trial incarceration would cause an irreversible injustice to the petitioner and his family. On the other hand, the State Counsel opposed the bail plea.
After having considered the factual situation, the Court observed,
“The victim is an employee, matured lady and working in the Court and she would know the consequences and legal remedies. Instead her keeping quiet for such a long time would make out a case for bail to the petitioner. There is no need to comment further, it might prejudice the case of the prosecution.”
Further, the Court observed that the petitioner was a first offender, and one of the relevant factors would be to provide an opportunity to course-correct. Also, Justice Chitkara asserted that the possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice can be taken care of by imposing elaborative and stringent conditions.
Thus, without commenting on the case’s merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the Court was of the opinion that the petitioner made out a case for bail, subject to the terms and conditions, imposed over and above and irrespective of the contents of the form of bail bonds in Chapter XXXIII of CrPC, 1973.
Accordingly, while imposing certain conditions, the Court allowed the petition.
Read Order: MEENU SRIVASTAVA v. GOVERNMENT OF NCT OF DELHI AND ORS
Tulip Kanth
New Delhi, July 1, 2022: The Delhi High Court has recently denied the claim of the trespassers over public/reserved forest land and opined that petition land is a reserved forest, and cannot be utilised for residential purpose by such trespassers in view of the prohibitions contained under the Forest Conservation Act, 1980 as well as Section 5 of Indian Forest Act, 1927.
While dismissing the writ petition filed under Articles 226 and 227 of the Constitution of India seeking quashing/ setting aside of a Notification declaring certain lands as “reserved forest”, the Bench of Justice Sanjeev Narula and Justice Neena Bansal Krishna said, “Merely because the Petitioners have built a structure on the petition land, it cannot give them any right to continue residing thereon when the land underneath the said structure does not belong to them.”
The facts as put forth by the petitioners was that the petition land was initially under the control of the Revenue Department, however, was later declared as “reserved forest” in terms of Section 4 of the Indian Forest Act, 1927 by way of the Notification in question. Thereafter, another impugned Notice was issued wherein Petitioners were directed to vacate the petition land within 7 days, failing which, the structures erected thereon would be demolished. However, despite the issuance of the impugned Notice, the petition land always remained residential in nature and Petitioners and other alleged encroachers, continued to reside in the petition land for more than a decade.
It was also alleged that the Petitioners are the legal owners of the houses erected on the petition land and predominantly belong to an economically weaker stratum of society. So, unbeknownst of the impugned Notification, they purchased houses situated in the petition land and so, would be gravely prejudiced by the proposed demolition.
Referring to the judgment of the Delhi High Court in Rajinder Kakkar v. DDA, 1994 (28) DLT 133, the Bench affirmed the view that illegal occupants/encroachers are not entitled to any prior notice. Nonetheless, a vacation Notice (being the impugned notice dated 08th June, 2022) had already been issued to the Petitioners requiring Petitioners to peacefully vacate the petition land within 7 days, added the Bench.
Accordingly, the Bench held that the impugned notification was still in force which barred the Petitioners from utilizing the land for residential purpose. Thus, the Petitioners’ claim for protection, based on the ground that they had purchased their houses on the petition land much after the impugned notification dated May 24, 1994 was notified, was held to be unfounded. Hence, the Bench dismissed the Petition and held that the Forest Department is now duty bound to protect the areas and promote forestation.
Read Order: Naresh Kumar And Others v. State Of Haryana And Others
Monika Rahar
Chandigarh, June 30, 2022: While dealing with a petition seeking the quashing of the Transfer Drive 2022 to the extent the petitioners were proposed to be transferred, the High Court of Punjab and Haryana has held that while interpreting a policy, the High Court does not commit violence to the policy by providing in the policy something that is not contained therein.
“High Court cannot re-write the policy for the State or hold any clause to be badly embodied, more so, when the policy itself is not a subject matter of challenge”, the Bench of Justice Vinod S Bhardwaj held while also asserting:
“Needless to mention that the cadre of Taxation Inspector is a State Cadre and transfer and posting is an incidence and condition of service. The prerogative of the State to deploy its resources cannot be steered by the Court. The same is the primary domain of the Executive unless exercise of such executive discretion is infested with malice, caprice, arbitrariness, inherent lack of jurisdiction or as a means of inflicting punishment or satisfy the judicial conscience about being gross abuse of the authority of law or complete disregard to the Rule of Law.”
The instant writ petition was filed under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of certiorari for quashing the Transfer Drive 2022 to the extent the petitioners were transferred forcefully as per the list dated June 10, 2022.
It was the case of the petitioners’ counsel that the Government of Haryana notified the online transfer policy for Taxation Inspector, Assistant Field Cadre and Clerks of Field Cadre in the Excise and Taxation Department. He contended that the said policy prescribes a minimum tenure of 05 years for an employee at a station before he can be transferred under the policy.
By making a reference to the Online Transfer Policy, the Counsel for the petitioners vehemently argued that the petitioners did not complete the prescribed tenure of 05 years and therefore, they could not be ordered to be transferred. A special reference was made to Clause 6 (iii) and (iv) to contend that the employee who has not completed the prescribed tenure of 5 years cannot be transferred. The Counsel raised an additional plea about the transfer being a mid-session transfer which was likely to hamper the education of children.
After considering the above mentioned submissions, the Court noted, on the perusal of the procedure required to be adopted by the State Government, that the said procedure allows an employee to participate in the online transfer policy upon completion of a stay of 03 years in a specific zone and also mandates that in the event of completion of tenure of 5 years at a given zone, an employee shall have to mandatorily participate in the online transfer policy.
“The interpretation of the aforesaid clause cannot be given to mean that the State Government is prohibited from effecting a transfer of the employees at all prior to a period of five years stay in a zone. The proposed interpretation of the petitioners is not based on a meaningful reading or proper interpretation of the said transfer policy”,Justice Bhardwaj held while also observing that there was nothing to suggest that in the process of implementation of the transfer policy, the State Government is prohibited or debarred from effecting any transfers except for in the manner so prescribed under the policy itself.
Thus, it was held by the Court that in the absence of any prohibition contained, no such interpretation or meaning can be assigned to the transfer policy as would reflect an impediment on the power of the State and that any derived inference which is not supported by the plain reading and meaning of the policy, cannot be applied and it would rather amount to imposing prohibition not imbibed in the policy.
Additionally, the Bench asserted that while interpreting a policy, the High Court does not commit violence to the policy by providing in the policy something that is not contained therein.
“High Court cannot re-write the policy for the State or hold any clause to be badly embodied, more so, when the policy itself is not a subject matter of challenge”, Justice Bhardwaj opined.
Also, on the argument governing the possibility of disturbance likely to be caused to the education of the to-be transfer petitioners, in light of the non-furnishing of evidence to support this pleading, the Court was of the considered view that there can be no presumption of a factual pleading, which is more a sympathetic plea rather than imposing any limitation to the powers of the State to effect transfers.
Furthermore, the Court was of the opinion that the cadre of Taxation Inspector is a State Cadre and transfer and posting is an incidence and condition of service and that the prerogative of the State to deploy its resources cannot be steered by the Court.
Also, the bench added, “The same is the primary domain of the Executive unless exercise of such executive discretion is infested with malice, caprice, arbitrariness, inherent lack of jurisdiction or as a means of inflicting punishment or satisfy the judicial conscience about being gross abuse of the authority of law or complete disregard to the Rule of Law.”
Thus, finding no such caprice in the decision of the executive, the Court dismissed the present petition.
Read Order: Sarabjit Singh alias Nabi v. State of Haryana
Monika Rahar
Chandigarh, June 30, 2022: While dealing with a quashing plea impugning order declaring the petitioner as a proclaimed offender, the High Court of Punjab and Haryana has recently held that as per the mandate of the provisions contained under Section 82 (3) Cr.P.C., it is incumbent on the Court issuing the proclamation to record the ‘specified day’ on which the proclamation was published.
The Court has also held that the provisions of Section 82 Cr.P.C. are mandatory in nature.
The Bench of Justice Vikas Suri was dealing with a petition under Section 482 of the Cr.P.C. praying for quashing of the impugned order whereby the petitioner was declared proclaimed, in contravention to the provisions of Section 82 Cr.P.C.
An FIR under Section 160 IPC was registered on the statement of Head Constable Dalip Singh, alleging that three young persons were quarrelling with each other on the main road, thereby causing disturbance to public peace. The investigation commenced; a charge sheet was filed and the charge was framed.
After such charge framing, one accused, who was the brother of the other co-accused, died and the proceedings against him abated. On account of the communication gap, as alleged, when the petitioner was informed by his counsel that the proceedings had abated after the death of the co-accused, he got the impression that proceedings culminated against all, which was incorrect. Thereafter, the petitioner did not receive any notice, warrants or was ever made aware of any publication or other proceedings that would have notified him about the pendency of the trial.
On July 15, 2002, the Trial Court ordered a proclamation under Section 82, 83 Cr.P.C. to be issued against the petitioner for November 18, 2002. Thereafter, vide order dated November 18, 2002, the petitioner was declared a proclaimed person under Section 82 Cr.P.C. (mentioned as ‘proclaimed offender’ in the said order).
The counsel for the petitioner contended that the proclamation was not in accordance with the ‘mandatory’ provisions contained in Section 82 Cr.P.C., and as such, on account of that fact alone, the impugned order deserved to be quashed. It was further submitted that as per the said provisions, the time period between the proclamation and appearance before the Court is required to be more than 30 days and the concerned Court is to record the specified day on which the proclamation was published, in view of the plain language of Section 82(3) Cr.P.C.
Thus, it was the Counsel’s case in the present case, both the above said statutory requirements were not fulfilled. It was also contended that failure to bring on record the specified day of the publication, to demonstrate compliance with mandatory procedural provisions, the same would be fatal to the case of the prosecution.
On the contrary, the State Counsel argued that the alleged incident pertained to the year 2000, the impugned order was passed in 2002 and now even after two decades, proceedings before the trial Court were still pending on account of the absence of the petitioner.
After considering the abovestated submissions, the Court perused the provisions of Section 82 of Cr.P.C. and from such perusal, it was observed that Section 82 (1) Cr.P.C. specifically provides that publication of the written proclamation requiring the person in default to appear at a specified place and time, should not be less than 30 days from the date of publishing such publication.
Further, it was also added that Sub Section (3) further provides that the statement in writing, by the Court issuing the proclamation, to the effect that proclamation is duly published on a “specified day”, in a specified manner, shall be conclusive evidence that the requirement of the said sub-section has been complied with and that the proclamation was published on “such day”.
In the present case, the Court noted that the proclamation was ordered to be issued vide order dated July 15, 2002, for November 18, 2002, and thereafter, the executing constable (police official) who caused the publication in deference to the aforesaid order submitted the report dated November 18, 2002.
From the perusal of such report, the Court noted that the date on which the publication was said to have been effected, was thus not brought before the Court therein and as such, the Court did not record ‘the specified day’ that the proclamation was published on such day, as is mandated by subsection (3) of Section 82 Cr.P.C.
“The Court below has only recorded that the proclamation against the accused has been received back duly effected without specifying the day when the said publication is alleged to have been published”, the Court observed while asserting,“as per the mandate of the provisions contained under Section 82 (3) Cr.P.C., it is incumbent on the Court issuing the proclamation to record the ‘specified day’ that the proclamation was published on such day”.
Thus, in view of the above, the Court was of the considered opinion that the procedure prescribed in the mandatory provisions contained in Section 82 Cr.P.C. having not been strictly followed, the impugned order declaring the petitioner proclaimed person (proclaimed offender) could not be sustained as such and was therefore quashed.
Read Order: Ankit v. State of Haryana and Others
Monika Rahar
Chandigarh, June 30, 2022: The Single Judge Bench of Justice Anoop Chitkara for the High Court of Punjab and Haryana, while dealing with a petition by the husband of a 23-year-old detenue against her alleged confinement by her parents, has held that the woman is an adult and she has a right to live at a place and with the person of her choice and none including the State has any right or business to interfere in her personal life.
Justice Chitkara directed the concerned Judicial Magistrate to examine if the woman was being confined by her parents in their home against her wishes or if she was living there out of her own will.
Here, the Court was approached by the petitioner seeking the release of his wife (the detenue) who was allegedly detained by her parents by confining her in their home.
Essentially, the case of the petitioner was that he solemnized his marriage with the said detenue on May 27, 2022, and he came up before the Court, in his capacity as the husband of the detenue, on the grounds that after his marriage his wife Sapna was detained by her parents.
In light of the above-stated factual position, Justice Chitkara directed the respondent- authorities to depute police officials including at least one female police official, for the purpose of securing the presence of the detenue Sapna, aged 23 years, from the confinement of her parent’s home and to produce her before the nearest Judicial Magistrate preferably a female Judicial Magistrate.
Further, the concerned Judicial Magistrate was directed to interact with the said detenue Sapna and to either record her statement under Section 164 Cr.P.C. or simply to pass an order with respect to her liberty.
Also, against this backdrop, the Bench opined that the detenue is an adult and she has a right to live at a place and with the person of her choice and none including the State has any right or business to interfere in her personal life.
Thus, in order to respect such ‘right of choice’ of the detenue, the Court held,
“In case, the Judicial Magistrate finds that detenue Sapna has been opposed to live with her parents then she will send her to the petitioner and she also provide security, in case, such Magistrate so desires and such security shall be for that time period which the concerned Judicial Magistrate might deem appropriate,” the Bench said.
Accordingly, while disposing of the petition in the aforesaid terms, the Court gave liberty to the petitioner to approach this Court again, in case, the need arises.
Read Order: Employees’ State Insurance Corporation and Another v. Amandeep Singh and Others
Monika Rahar
Chandigarh, June 30, 2022: In light of the law laid down by the Supreme Court, the High Court of Punjab and Haryana has reiterated that the rules of the game cannot be changed once the game has started. The High Court was dealing with a case wherein the minimum qualifying marks were fixed seven months after the declaration of the results thereby causing prejudice to the candidates who already made it to the merit list.
Challenge in the present writ petition before Justice G. S. Sandhawalia and Vikas Suri, filed under Articles 226 and 227 of the Constitution of India was to the order of the Central Administrative Tribunal, Chandigarh Bench (‘the Tribunal’) wherein, the original application of the private respondents was allowed and directions were accordingly issued to consider the case of the applicants on the basis of marks obtained by them in the combined merit list of all candidates for the post of Laundry Operator, Nursing Orderly and Cook Mate.
Resultantly, directions were issued to the effect that the documents be verified and if the applicants are found eligible, to issue appointment letters to them on their respective posts as per their merit without taking into consideration the criteria of category-wise minimum qualifying marks/benchmark.
The Tribunal while issuing necessary directions came to the conclusion that the selection process which was initiated on the issuance of the advertisement which indicated the mode of selection for the posts on the basis of written examination, did not give any condition regarding the discretion of the authorities to fix any minimum qualifying marks to be obtained in such examination.
The Tribunal further added that the factum of authorities having such discretion was mentioned in a notice issued in 2015 and also that in the subsequent notice of March of 2016 there was no such stipulation. Later, the minimum qualifying marks were notified in January 2017 after the result was declared in June 2016. Resultantly, it was held that the written examination was held in March 2016 and the result was declared in June 2016, well before the date of notifying the criteria of minimum qualifying standards in January 2017.
The right of the respondents to fix the minimum qualifying criteria was doubted at that stage and it was held that the candidates should have been made known the said fact before the initiation of the selection process because the fixing of minimum qualifying marks in the competitive examination is not only required to be known in advance to the candidates but it is important for the paper setters and the examiners also to know about the minimum qualifying standards fixed to decide the level of difficulty and syllabus for the examination.
Resultantly, keeping in view the fact that the criteria of minimum qualifying standards had been fixed 7 months after the declaration of the results, the original applications were allowed.
The Court, after considering the factual position of this and the decision of the Tribunal came to the conclusion that the judgment of the Tribunal could not be faulted in any manner as the criteria were changed to the detriment of the applicants. The Court also noted that at an earlier point in time, they figured in the merit, however, on account of fixing the minimum criteria by subsequent decision post the examination, the cut-off was prescribed.
Thus, the Bench asserted that the rules of the game were changed, once the selection process had started, which was not permissible.
Further, after examining the order whereby the minimum qualifying marks were prescribed, the Bench stated,
“We have also examined the said order and the same does not as such find any mention that the same is to be applied retrospectively and, therefore, we are of the considered opinion that by prescribing the minimum qualifying benchmarks, which was between 30% to 45% for different categories, the private respondents have been prejudiced,” the bench held.
Reliance in this respect was placed upon the Apex Court in K. Manjusree vs. State of A.P. and another wherein, the power of the Selection Committee to prescribe the minimum marks for an interview was upheld but it was held that it could not be done after the commencement of the selection process on the principle that the rules of the game cannot be changed once the game has started.
Keeping in view the above-stated, the writ petition was dismissedin limine.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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