Read Order: Manjinder Singh and Another v. Baldev Singh and Another
Monika Rahar
Chandigarh, March 31, 2022: While dealing with a regular second appeal, the High Court of Punjab and Haryana has held that he demarcation report of property is only one piece of evidence in the Civil Court and the correctness of such a report is to be appreciated on the basis of the entire evidence produced by the parties.
The Bench of Justice Anil Kshetarpal also added that a private individual who demarcated the suit property without any intervention of the Civil Court is not a Local Commissioner under the provisions of Order XXVI Rule 9 of CPC.
In this case, the defendants called into question the correctness of the concurrent findings of facts, arrived at by both the Courts below, while decreeing the suit, filed by the plaintiffs, for grant of decree of permanent injunction restraining the defendants from interfering in their possession or dispossessing them.
It was the case of the plaintiffs that they installed a Fuel Station and the defendants had no right to interfere in the same. The defendants did not dispute the existence of the Fuel Station, however, they claimed that the plaintiffs encroached upon a portion of their land.
It was noted that both the Courts below, on appreciation of evidence, found that the defendants, in their cross-examination, admitted that the plaintiffs were in settled possession of the property to their knowledge for a long time. The appellants also, claimed that the plaintiffs encroached upon the property on the basis of the demarcation made in 2013.
The Court observed at the outset that both the Courts below, on appreciation of evidence, found that the revenue official failed to carry out the demarcation in a proper manner as per the procedure laid down in the High Court Rules and Orders.
On the issue of demarcation, the case of counsel representing the appellant was that once a demarcation was conducted by the revenue official, then it was for the plaintiffs to object or challenge its correctness before the revenue authorities.
The High Court observed that admittedly, the appellants got the land demarcated privately without any intervention from the Civil Court, and therefore, the High Court was of the opinion that such an official was not a Local Commissioner as per Order XXVI Rule 9 CPC.
Further, Justice Kshetarpal added that the demarcation report is only one piece of evidence in the Civil Court and that the correctness of such a report is to be appreciated on the basis of the entire evidence produced by the parties. Hence, the Court adjudged that the appellant’s counsel was not correct in contending that in the absence of objection, such a report is to be accepted by the Civil Court.
Accordingly, the Court, finding no ground for interference, dismissed the present application.
Read Order: Rajeev Mittal v. M/s Himanshu Handloom
Monika Rahar
Chandigarh, March 31, 2022: While deciding a cheque dishonour matter, the Bench of Justice Avneesh Jhingan of the Punjab and Haryana High Court has held that in an appeal against acquittal interference is made on the basis of perversity or misreading of evidence or for compelling reasons.
The brief facts of the matter were that complainant-Rajeev Mittal (appellant) entered into a tenancy agreement with Himanshu Chug (respondent). The payment of rent for six months was to be made in advance. On the request of the respondent, by mutual consent, the tenancy was terminated. The premises were vacated.
According to the appellant, the respondent instructed the appellant for presenting a cheque for adjusting the amount for damages, as the respondent after taking possession caused damage to the premises. On presentation, the cheque was dis-honored and after serving notice, the complaint was filed for cheque dishonour was made.
The defence taken by the respondent was that four cheques in lieu of advance payment of rent were given to the complainant. It was also claimed that as the premises were vacated in September 2013, there was no liability to pay rent thereafter. The respondent examined the Bank official to prove that the application was moved to stopping the payment of the cheque, in view of the change in circumstance.
The Ahlamd of Civil Court deposed and produced a certified copy of the plaint of Civil Suit filed by the respondent for recovery of Rs.51,153 paid as advance rent for the period from October 2013 to December 2013. The suit was decreed and the appellant was directed to refund the amount along with interest.
The trial Court after considering the facts and appreciating the evidence adduced concluded that the respondent was successful in rebutting the presumption under Section 139 of the Negotiable Instruments Act. The stand taken by the appellant that the cheque was presented for damages caused to the premises by the respondent was not substantiated by producing evidence and was found contrary to the findings recorded by the Civil Court that no damage was caused to the property of the appellant.
The Court, after taking into consideration the facts of the matters, held that it is settled law that an appeal against acquittal interference is made on the basis of perversity or misreading of evidence or for compelling reasons.
After perusing the pleadings of the matter, the Court opined that the Civil Court decree was passed against the appellant and findings were recorded that no damage was caused to the building. Further, the Court noted that the appellant was in possession of the cheques given for advance payment of rent and that the premises in question were vacated in September 2013 and the appellant got the advance rent for the period from July 1, 2012, to December 31, 2013, and had to refund advance rent of Rs. 51,153 along with interest, in pursuance of the decree passed by the civil Court.
Further, the Court opined that the respondent successfully rebutted the presumption under Section 139 of the Act thereby establishing misuse of cheque possessed by the appellant. Thus, while holding that the counsel failed to show any error of law or on fact in the judgment under challenge, the Court held that no case was made out for granting leave to appeal.
Read Judgment: SVG FASHIONS PVT. LTD. vs. RITU MURLI MANOHAR GOYAL & ANR.
Pankaj Bajpai
New Delhi, March 30, 2022: Finding that the NCLAT completely overlooked the pleadings revolving around the letter submitted by the operational creditor and the six cheques which were returned dishonoured attributable to the corporate debtor, the Supreme Court has set aside the order of NCLAT and remanded the matter back for a fresh consideration.
A Justice V.Ramasubramanian and Justice Hemant Gupta therefore observed that the failure of the NCLAT as the first appellate authority to look into a very vital aspect, vitiates its order, especially when NCLT has recorded a specific finding of fact.
The observation came pursuant to an appeal by the operational creditor (SVG Fashions – Appellant) challenging the order, whereby of the National Company Law Appellate Tribunal (NCLAT), reversed the order of ‘Admission’ passed by the National Company Law Tribunal (NCLT) and held that their application u/s 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) was barred by limitation.
Going by the background of the case, the appellant filed an application u/s 9 of IBC against M/S Arpita Filaments Private Limited, contending inter alia: that the corporate debtor started having business dealings with them from 2013; that they sold and delivered various fabrics to the corporate debtor; that the corporate debtor was irregular in making payments as per the bills; and that the demand notice issued by them u/s 8 of IBC r/w Rule 5 did not invoke any response.
Before NCLT, the corporate debtor raised four major objections, one of which was that the claim was barred by limitation. But NCLT found on the basis of a letter produced by the operational creditor that six cheques had been issued in favour of the operational creditor. These cheques returned dishonoured when presented for payment. The stand taken by the corporate debtor was that those six cheques were lost by the corporate debtor in March 2017 and that they had already issued “stop payment instructions” to the bank. The corporate debtor also claimed that the letter relied upon by the operational creditor was issued by Shree Adeshwar Textiles and that therefore, the operational creditor cannot rely upon the same to save limitation.
However, the NCLT overruled the objections and held that there was an acknowledgment of liability on the part of the corporate debtor and that therefore, the application was within the period of limitation. Consequently, the NCLT ordered the admission of the application u/s 9 of IBC and also declared moratorium in terms of Section 14. On appeal, the NCLAT held that the debt arose during the period from Aug 11, 2013 to Sep 02, 2013 and that the six cheques purportedly issued towards part payment of the liability having been issued on Dec 05, 2017, will not save limitation. Hence, the NCLAT reversed the decision of NCLT and dismissed the application of the operational creditor.
After considering the submissions, the Top Court found from the order of NCLAT that there was no discussion at all about the letter dated Sep 28, 2015, whereas, according to the operational creditor, the six cheques in question were handed over along with the letter dated September 28, 2015.
“The cheque numbers and the bank on which the cheques were drawn, given in the letter dated 28.09.2015 tallied with the particulars of those six cheques allegedly lost by the corporate debtor in March 2017. Though the first respondent herein clamed in his affidavit in reply that the corporate debtor had issued stop payment instructions, he conceded that the acknowledgment issued by the banker contained the date 01.01.2018”, added the Court.
Therefore, observing that the law as it has developed on the applicability of Section 18 of the Limitation Act and the circumstances, in which it would apply, have also not been examined by NCLAT, the Apex Court allowed the appeal and remanded the mater back to NCLAT for a fresh consideration.
Read Order: Bata India Limited vs. Workmen of Bata India Limited & Another
Pankaj Bajpai
New Delhi, March 30, 2022: While hearing a matter relating to the workmen being entitled to full back wages who resorted to stay-in-strike and refused payment of pro-rata wages decided by Bata India Limited (appellant) for those not meeting the mutually agreed target, the Supreme Court has directed the appellant to make payment of the reduced/deducted wages to its workmen within one month.
A Division Bench of Justice Ajay Rastogi and Justice Sanjiv Khanna observed that the judgment given by the High Court that pro rata deduction/reduction in wages is permissible if there is a deliberate attempt to not produce or do work by resorting to “go slow” strategy, protects the interest of the appellant and the workmen by prescribing the right procedure which should be followed in case the appellant is of the opinion that the workmen, though present on duty, are not working and are not giving the agreed production on the basis of which wages and incentives have been fixed.
However, this would depend upon the factual matrix and have to be ascertained in case of dispute to render any firm opinion and the procedure prescribed should be followed, added the Bench.
The background of the case, Bata India Limited (appellant) and Workmen of Bata India Limited (first respondent), an association of the appellant’s employees, had entered into the settlements, whereby, the workmen had agreed to produce a minimum of 1,200 pairs of shoes per shift. The norm for calculation of incentive on production was fixed at 12,960 pairs of shoes per week. It is a case of the appellant that after Feb 01, 2001, workmen had deliberately adopted “go slow” tactics and did not produce the minimum agreed production as per the settlement. The production was below 50 per cent of the normal production. Despite repeated requests and warnings, the workmen did not pay any heed to increase production. Consequently, the appellant decided to pay pro-rata wages to those not meeting the mutually agreed target. However, the workmen refused payment and resorted to stay-in-strike. Apprehending danger to safety, the management declared lockout, which was later, lifted.
The industrial dispute pertaining to justification of the lockout, strike of the workmen and “go slow” strategy on the part of the workmen was referred by the Government before the Industrial Tribunal, Bangalore. Despite referral, the dispute escalated as the strike continued for a long time resulting in prohibitory order by the Government over the continuance of the strike. By another order, the Government invoked power u/s 10B(2) of the Industrial Disputes Act, 1947, whereby the workmen were directed to report for duty. Following the order, the workmen resumed work from February 12, 2001.
Later, the Karnataka High Court held that “go slow” is nothing but sort of intentional refusal to work. In such a situation, the management could be justified in reducing or paying pro-rata wages. The mere presence of the employee at work without the workmen contributing and doing work would not entitle them to wages. The judgment also records that the authorities could not decide the issue u/s 33-C(1)4 of the Act as the amounts could not be determined with certainty.
After considering the submissions, the Top Court refused to accept the contention of the appellant that the finding in the High Court’s judgment pertaining to “go slow” strategy nothing sort of misconduct should be set aside.
The High Court’s judgment does not hold that any inquiry should have been conducted by the appellant, but rather, taking holistic and pragmatic view, it is stated that a fair opportunity shall be granted to the Union or workmen, especially when there was a dispute whether or not there was production on the agreed terms, added the Top Court.
Further, the Apex Court noted that the observations of High Court as to misconduct have been made in different context to hold that the “go slow” work was similar to or like intentional refusal of work.
“However, what is highlighted by the appellant before us is the failure of the Division Bench to take notice of the public notices which were put on the notice board to justify the pro rata reduction of wages. The notices are in the form of calculation of the wages actually paid. The workers were not given any opportunity to respond to these notices. Thus, on this aspect, we do not see any reason to disagree with the findings in the impugned judgment”, added the Apex Court.
Accordingly, the Top Court modified the direction given in the judgment of the High Court giving liberty to the appellant to take appropriate steps/actions regarding the “go slow” strategy for the period in question.
Read Judgment: Mahendra Harilal Parekh & Others vs. Meenaben Hirenbhai Parekh
Pankaj Bajpai
Ahmedabad, March 30, 2022: While deciding on the question of permissibility of amendment in an application filed under CPC for obtaining probate by the successor of deceased’s property, the Gujarat High Court (Ahmedabad Bench) opined that that by virtue of Section 222 of the Indian Succession Act, 1925, Probate shall be granted only to an executor appointed by the Will and if the deceased has made a Will, but has not appointed an executor, letter of administration can be granted by virtue of Section 232(a) of the Act.
The Single Judge Ashok Kumar C. Joshi therefore observed that the trial Judge appears to have committed no error, much less an error apparent on the face of it, which requires interference at the hands of this Court under Article 227 of the Constitution of India.
The background of the case was that, the deceased mother of Mahendra Harilal Parekh and Others (petitioners – original applicants) was the owner of certain movable and immovable properties, who had executed a Will in favour of the petitioners. After the death of the mother, the petitioners become the absolute owners of the properties, and accordingly, they filed an application before the Additional Senior Civil Judge, Rajkot for obtaining the Probate of the Will, wherein the trial Judge issued public notice inviting objections against the said application.
Meenaben Hirenbhai Parekh (respondent) filed objection against issuance of Probate in favour of the petitioners. However, petitioners contended that they being beneficiaries, are required to apply for issuance of letter of administration instead of Probate and as soon as they came to know about their bona fide mistake, they preferred the application under Order 6 Rule 17 of CPC seeking amendment of Probate application, whereby, it was prayed to replace the word “Probate” by “Letter of Administration”. The said application however, came to be rejected. Hence, present petition.
After considering the submissions, Justice Joshi found that the petitioners in the present case are the executors of the Will and therefore, they are entitled to Probate.
The question in the case on hand is not related to proving of the execution of Will and the procedure thereto, but the question which goes to the root is, as to for what the petitioners are entitled for in accordance with their status in the Will, added the Single Judge.
Hence, the High Court confirmed the order passed by the Additional Senior Civil Judge, Rajkot in application filed under Order 6 Rule 17 of CPC, for amendment in Misc. Civil Application
Read Judgment: Sabhajit Ramyash Yadav & Another vs. State of Maharashtra & Others
Pankaj Bajpai
Mumbai, March 30, 2022: While considering a case where the Developers despite collecting an approximate amount of Rs.178 Crores from the innocent flat purchasers (petitioners), have not provided to them a single flat till date, the Bombay High Court held that brazen and continuous disregard for orders of the Court including by making false and misleading statements would amount to a willful and deliberate breach, obstruction and interference with the administration of justice entitling this Court to take suo-moto action in contempt against the partners of the Developer viz. Hemendra Haridas Mapara and Chetan Haridas Mapara.
The Developer has no intention of voluntarily repaying the admitted dues of the Petitioners and that the Petitioners are justified in their apprehension that if interim reliefs to protect the decreetal amounts of the Petitioners are not granted, it is very likely that the Developer shall deal with or further encumber all their assets and nothing will be left to the hands of the Petitioners despite having a decree in their favour, observed a Division Bench of Justice S.J. Kathawalla and Justice Milind N. Jadhav.
The observation came pursuant to a petition seeking direction against the Collector, Mumbai and the Tahsildar, Mumbai respectively, mandating them to comply with and execute the Recovery Certificates issued by the Maharashtra RERA against the Developer – M/s. Reliance Enterprise and in favour of Sabhajit Ramyash Yadav & Another (Petitioners).
Going by the background of the case, the petitioners – allottees) have purchased flats in a project known as ‘HILL VIEW’ being developed by M/s. Reliance Enterprise (the Developer) under registered Agreements for Sale. As the Developer failed to handover possession of their flats within the stipulated time, the Petitioners filed Complaints u/s 18 of the said Act before RERA, which directed the Developer to refund the amounts received by them from these Petitioners.
Since the Developer failed to comply with the said orders passed by RERA, the Petitioners filed execution proceedings before RERA, which came to be allowed and RERA issued a Recovery Certificate u/s 40(1) of the said Act r/w Rule 3 of the Maharashtra Real Estate (Regulation and Development) (Recovery of Interest, Penalty, Compensation, Fine Payable, Forms of Complaints and Appeal, etc.), Rules, 2016 in favour of the Petitioners and against the Developer.
RERA then forwarded these Recovery Certificates to the Collector and Tahsildar directing them to execute the same and recover the decreetal amounts which were payable to the Petitioners as arrears of land revenue. However, despite repeated reminders, the Collector and Tahsildar, have failed to execute or take any effective steps to execute the said Recovery Certificates till date. Hence, present petition.
After considering the submissions, the High Court agreed that despite the directions from RERA, the Collector and Tahsildar have failed to exercise their powers u/s 263 to 267 of the Maharashtra Land Revenue Code, 1966 r/w Rule 17 of the Maharashtra Realization of Land Revenue Rules, 1967 to secure the recovery of the decretal amounts mentioned under the Recovery Certificates, which are payable to the Petitioners.
The only person who has wrongly benefitted from such inaction of the Collector and Tahsildar are the Developer herein (being a private party), who have till date failed to comply with the Orders passed by RERA and failed to pay the decreetal amount to the Petitioners, which amounts are admittedly due and payable by the Developer to the Petitioners, added the Court.
The Division Bench of the High Court found that out of the monies collected from the flat purchasers, huge amounts have been transferred by the partners of the Developers to themselves, their family members and even related entities while the innocent flat purchasers still await their dream homes or the refund of their hard-earned money.
In fact, in teeth of the order of injunction passed by this Court, the Developer has transferred monies to the tune of Rs. 56 lakhs inter alia to itself and related parties, in complete disregard to the orders passed by this Court, added the Bench.
Accordingly, by way of an interim relief, the High Court passed an order directing the developer to forthwith disclose the particulars of the bank account opened by it with a nationalized bank (the Designated Account) pursuant to Order of this Court dated Dec 03, 2021.
In addition, the High Court also directed that the Developer shall continue to deposit all amount/s received by them and/or by their immediate family members, from any of the flat purchasers in respect of any of its projects including ‘Hill View’ and ‘Triveni and/or from their debtors in the said Designated Account, until further orders of this Court.
Read Order: Suhail Singh Brar v. State Of Punjab And Anr.
Monika Rahar
Chandigarh, March 30, 2022: While dealing with a Writ Petition filed by a person whose arm (gun) license was not renewed by the concerned authority due to the pendency of an FIR against him wherein it was alleged that he made use of his gun in a sacrilege incident in 2015, the Punjab and Haryana High Court has directed the Licensing Authority-cum-District Magistrate, Faridkot to take a decision on the application for renewal of the arms licence of the petitioner while taking into consideration the applicability of the judgment as rendered in Brijesh Kumar Versus State of Haryana and others, CWP No.5724 of 2021.
In Brijesh Kumar’s Case (Supra), it was held that the mere registration of FIR, by its nature is only the first information regarding the alleged crime; this fact has to be treated only as the first information of a crime, which would not carry with it the character of a statutory factor that can influence the right of the petitioner to hold a weapon.
The petitioner, being a member of the National Rifle Association of India and of the US had four licensed weapons which were registered with the office of the District Magistrate (DM), Faridkot for which a regular licence was issued.
In 2015 an FIR was registered pertaining to the incident of sacrilege of the Holy Book at villages Kotkapura and Behbal Kalan, resulting in injuries to protestors and the death of two. The petitioner, initially called as a Prosecution Witness, was later implicated as an accused in the said FIR and his .12 bore double barrel gun was taken into police possession.
The office of the DM issued a show-cause notice to the petitioner containing the recommendation of the Special Investigating Team (SIT) to cancel the arms licence of the petitioner for violating the terms and conditions of his license. The petitioner filed his reply stating that there was no evidence on record to prove that the petitioner’s gun was used in the sacrilege incident.
Also, since the license term expired, the petitioner moved an application seeking renewal of the arms licence for which he deposited a certain amount and the fee so deposited was accepted. However, on the same day itself, a show-cause notice was issued as to why the arms licence should not be cancelled in terms of Section 17(d) of the Arms Act, 1959, while stating that the petitioner was retaining arms after the expiry of the arms licence which was in violation of Section 15(v) of the Arms Licence Act, 1959.
The petitioner approached the office of the Licensing Authority for renewal of his licence, however, the same was not renewed. Hence, the present writ was filed. During the pendency of proceedings in the High Court, another show-cause notice was issued to the petitioner asking why the incense should not be revoked in view of the pending FIR against him.
The petitioner’s counsel relied upon Brijesh Kumar’s Case (Supra) to contend that mere registration of an FIR would not be sufficient ground to cancel the arms license. It was also submitted that the show cause notice was duly replied to, but no response was received as of date. It was argued that having accepted the licence fee, the authorities were bound to renew the licence as the weapons were required for his personal defence since he was cited as a witness to the incident.
The Court, after considering the submissions of the counsel argued that it was undisputed that the arms licence of the petitioner expired and there was an application on the record applying for renewal of his licence. Further, it was observed by the Court that show-cause notices were also issued as to why the licence of the petitioner should not be cancelled as the SIT recommended for the same.
As of then, the Court noted that the application for renewal was not decided. Therefore, in view of the above, the Court opined that when a categoric stand was taken that the District Magistrate, Faridkot was yet to take a decision on the application for renewal, the Court found the writ petition to be premature and thus the writ petition was disposed of accordingly.
However, while disposing of this petition, the Licensing Authority-cum-District Magistrate, Faridkot was directed to take a decision on the application for renewal of the arms licence of the petitioner while taking into consideration the applicability of the judgment as rendered in Brijesh Kumar’s Case (supra).
Also, the Court directed the petitioner to submit his reply to all the show cause notices issued to him, if not already replied to, in a time-bound manner. The decision on renewal of the arms licence was also directed by the Court to be taken expeditiously, in a time-bound manner.
Read Order: Pt. B.D. Sharma University of Health and Sciences v. Kavita and others
Monika Rahar
Chandigarh, March 30, 2022: While dealing with a case wherein a licensee who remained in illegal possession of a shop for 10 long years and did not lead evidence or cross-examine the witnesses of the opposite parties even after being given 55 opportunities to do so, the Punjab and Haryana High Court has held that the plea of violation of principles of natural justice is not entitled to be accepted unless and until it is shown in the facts and circumstances of a particular case that the rights of a party have been prejudicially affected.
Additionally, the Bench of Justice Sudhir Mittal was of the opinion that the rules of natural justice are not rigid and have to be applied keeping in view the fact situation of a particular case and that a party claiming violation of the rule must show prejudice, especially in a case where the facts are indisputable and only one conclusion is possible.
A shop was given on licence for the period of one year, to the first respondent pursuant to tender submitted by her. In terms of this tender, an agreement was executed by the first respondent and the one-year-long licence was issued. A clause in the agreement stated that on failure to vacate the premises on the last date of completion of the licence period, the licensee would be liable to pay a penal licence fee. On the expiry of six months, the competent authority could lock the premises.
On completion of one year period, a notice was issued to the first respondent to hand over vacant possession. To avoid the same, the first respondent filed a civil suit for an injunction restraining the petitioner from dispossessing her from the shop in dispute forcibly. An order came to be passed in the said suit directing the petitioner not to dispossess the first respondent except in accordance with the law. Thus, a petition was filed under Sections 4, 5 and 7 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 . After 9 years of filing, this petition was allowed. The possession of the first respondent was held to be illegal and she was directed to vacate the premise.
An appeal was filed by the first respondent on the ground that proper opportunity was not granted to her to cross-examine the witness of the petitioner and that she was also not given the opportunity to lead her own evidence. The appellate court set aside the order of the Collector and remanded the matter back. Hence, impugning this decision, the present petition was made.
It was the case of the petitioner that a total of 55 opportunities were granted to the respondent to cross-examine, and if she was interested in such cross-examining and in leading her own evidence she could even have filed an application for this purpose but the same was not done and thus, the appellate Court was in error in remanding the case.
From the facts of the matter, the Court observed that the first respondent was undisputedly a licensee and that she exploited the loopholes in the law to retain possession of the shop in dispute for over 10 years in excess of the licence period. There is, thus, no equity in her favour, held the Court. Also, the Court was of the opinion that the argument that no opportunity of cross-examination was granted to the appellant was completely misplaced. An error in the language is sought to be exploited, added the Court.
Further, the Court went on to state, “Had she been serious about the cross-examination and about an opportunity to lead evidence, an application could very well have been filed for the purpose but no such attempt was made.”
Also, the Court added that in any case, an opportunity to cross-examine would be an exercise in futility as admittedly the first respondent was a licensee for a period of one year only and thus, nothing material could have been elicited in cross-examination and nothing useful could have been brought on record even if an opportunity to lead evidence had been specifically granted.
On the plea of Natural Justice, the Court opined that the plea of violation of principles of natural justice is not entitled to be accepted unless and until it is shown in the facts and circumstances of a particular case that the rights of a party have been prejudicially affected. Also, the Court added that if the facts are such that only one result is possible then even if principles of natural justice have been violated the Court will ignore the same.
Applying this principle to the present case, the Court opined that the “useless formality” theory is clearly applicable in this case because the first respondent could not have elicited anything substantial by way of cross-examination nor could she have led any evidence to protect her possession and that the attempt is clearly to prolong the litigation so as to retain possession of the shop in dispute without there being any right to continue in possession.
Thus, the order of the appellate authority was found not sustainable in law and was accordingly set aside. Also, keeping in view the fact that the first respondent managed to remain in illegal possession for over 10 years in excess of the licence period, the Court decided to adjudicate upon the lis between the parties by itself.
Accordingly, the Court directed the first respondent to hand over possession of the shop in dispute within two weeks from the date of receipt of the certified copy of this order.
Read Order: Sunil Kumar Gulati Petitioner v. State of Punjab and another
Monika Rahar
Chandigarh, March 30, 2022: The Punjab and Haryana High Court has upheld an Order directing an employee of the Land Branch of Municipal Corporation, Patiala accused of demanding a bribe from the complainant, to give voice sample
While allowing the petition the Court made reference to the law laid down by the Apex Court in Ritesh Sinha Vs. State of Uttar Pradesh (2019) 8 SCC 1 wherein it was held that the direction to give voice sample does not infringe Article 20(3) of the Constitution of India as such sample is collected only for purpose of comparison and thus is not a testimony.
The Bench of Justice Avneesh Jhingan also expounded, “The samples are collected after having permission in accordance with the law and the sample taken itself would not be a piece of evidence, rather they are for comparing the evidence already collected.”
In this case, the case of the complainant (second respondent) was that the petitioner, posted in the Land Branch of Municipal Corporation, Patiala, made an illegal demand of Rs. 25,000/- for getting the shutter of the shop open. The complainant’s shop was sealed on account of unauthorized construction made by him.
The amount demanded was to be paid to Rakesh Behal (known to the complainant). On complaint, a trap was laid and Rakesh Behal was apprehended red-handed. A telephonic conversation about the demand for illegal gratification was recorded and the memory card was handed over to the investigation agency. The Vigilance Bureau moved an application for taking voice samples of Rakesh Behal and the petitioner. This application was opposed by the petitioner, however, the application was allowed and the petitioner was directed to give his voice sample. Hence the present petition was filed by the petitioner.
The case of the petitioner’s counsel was that the directions issued in the impugned order were for purpose of identifying the petitioner consequently resulting in self-incrimination by the accused. It was further argued that the petitioner’s right to privacy was invaded and that the complainant could not have recorded the conversation without the consent of the petitioner.
On the issue of recording voice samples and the concerns governing self-incrimination, the High Court made reference to the law settled by the Supreme Court in Ritesh Sinha’s Case (Supra) wherein it was held that the voice sample is only for purpose of comparison and is not a testimony. Further, it was held that the Right to Privacy cannot be construed as absolute.
Also, the Court highlighted that the Supreme Court while dealing with the question of whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of the investigation, considering the earlier decision in State of Bombay vs. Kathi Kalu Oghad, AIR 1961 SC 1808, answered the question in negative.
Thus, against this backdrop, the High Court held that voice sample in a sense resembles fingerprints and handwriting, each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates. The Court further went on to add that the samples are collected after having permission in accordance with the law and that the sample taken itself would not be evidence, rather they are for comparing the evidence already collected.
Further, regarding the third contention of the petitioner’s counsel that the complainant could not place reliance on the memory card without certification under Section 65-B of the Evidence Act, the Court opined that the application for the voice sample was filed for further investigation of the matter, it was not the stage for the production of a certificate under Section 65-B of the Act, even if required.
Elaborating on this issue further, the Court made reference to the Supreme Court in the case of Arjun Pandit Rao Khotkar Vs. Kailash Kushanrao Gorantyal and others (2020) 7 SCC 1, wherein it was held that Section 65-B (4) of the Act does not mention the stage of furnishing the certificate. Another decision of the Top Court was relied upon wherein it was held that the failure to produce a certificate under Section 65-B (4) of the Act at the stage of charge sheet will not be fatal.
Thus, in the background of this legal position, the Court opined that the relevancy of the recording would be determined only after a comparison of the voice sample, and the requirement of certification under Section 65-B of the Act would arise later when recording is given in evidence. Also, the argument that the complainant could not have recorded the conversation without the consent of the petitioner was rejected by the Court on the ground that seeking the consent of the petitioner would have defeated the very purpose of the recording.
Accordingly, the impugned order allowing the recording of voice samples of the petitioner was upheld and the petition was dismissed by the Court.
Read Order: Anu and Another v. Joginder and Others
Monika Rahar
Chandigarh, March 30, 2022: While dealing with a revision petition by the parents of a deceased road accident victim, the Punjab and Haryana High Court has set aside the order of the Motor Accident Claims Tribunal, Karnal whereby the Tribunal directed that 50% of the amount which was awarded to the claimant-petitioners was to be deposited in the shape of a Fixed Deposit for a period of 5 years and the Tribunal declined to release the said amount.
The Bench of Justice Alka Sarin, while placing reliance on the law laid by the Supreme Court, held, “Keeping in view… the fact that the petitioners are major and also have minor children to look after, the present petition was allowed and the order of the Tribunal was set aside. The amount of compensation qua the share of the petitioners lying deposited in the shape of FDR was ordered to be released to the petitioners forthwith.”
It is a case of a motor accident wherein the claimant-petitioners (mother and father of the deceased) lost their child. The Motor Accident Claims Tribunal, Karnal (the ‘Tribunal’) while awarding compensation, directed that 50% of the amount which was awarded to the claimant-petitioners (mother and father of the deceased) was to be deposited in the shape of a Fixed Deposit for a period of 05 years and the Tribunal declined to release the said amount.
Thus, the present revision petition was filed challenging the order of the Motor Accident Claims Tribunal, Karnal (the ‘Tribunal’) to the extent that 50% of the amount which was awarded to the claimant-petitioners (mother and father of the deceased) was directed to be deposited in the shape of a Fixed Deposit.
The counsel for the claimant-petitioners stated that both the petitioners were adults and there was no occasion to place the said amount in a Fixed Deposit for a period of 05 years. It was further the contention that there were three minor children of the deceased who needed care by the petitioners and hence the money was urgently required by them. In support of his contentions, he relied upon a judgment of the Supreme Court in H.S. Ahammed Hussain vs. Irfan Ahammed, 2002(3) RCR (Civil) 563 to contend that in the case of an adult it would not be appropriate to direct the deposit of the amount of compensation in a fixed deposit.
The Court noted at the outset that in the present case, the claimant-petitioners were the parents of the deceased who were looking forward to the release of the amount which was ordered to be deposited in FDR on the direction of the Tribunal qua their share. They did not make any prayer qua the amount which was ordered to be deposited in the names of the minor children. It was also contended that the petitioners require the amount for taking care of the children of the deceased.
To decide the case, the Court referred to the law laid down by the Supreme Court in H.S. Ahammed Hussain’s Case (Supra) wherein it was held that the amount of compensation awarded in favour of the mothers should not be kept in fixed deposit in a nationalised bank and that in case the amounts have not been already invested, the same shall be paid to the mothers, but if, however, invested by depositing the same in fixed deposit in a nationalised bank, there may be its premature withdrawal in case the parties so intend.
Thus, keeping in view the law laid down in the above-referred case as well as the fact that the petitioners are major and also have minor children to look after, the present petition was allowed and the order of the Tribunal was set aside. The amount of compensation qua the share of the petitioners lying deposited in the shape of FDR was ordered to be released to the petitioners forthwith.
Read Judgment: Chandra Chooden Nair. S v. State Of Kerala
LE Correspondent
Kochi, March 30, 2022: Directing the Government of Kerala to issue appropriate orders to prevent the Government servants from engaging in strike and also to issue necessary orders forthwith, to all the Heads of the Departments, to ensure that Rule 86 of the Kerala Government Servants’ Conduct Rules, 1960 are not violated, the Kerala High Court has opined that the Government should take adequate steps to prevent the Government servants to engage in any activity specified in Rule 86 of the Kerala Government Servants’ Conduct Rules, 1960.
Finding that though the strike notice has been issued in March, 2022, and there is no response from the Government by issuing any orders, A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that the Government servant has no right to participate in any strike, and equally, it is the duty of the Government to prevent the Government servant from joining in strikes.
The observation came pursuant to a petition seeking to bring to the notice of this Court the mala fide and illegal attempt of first to third respondents to aid and assist the General strike on 28th and 29th March, 2022 by permitting eligible leave with salary to the State Government employees taking part in the General Strike by not declaring dies non in terms of the earlier directions passed by this Court.
Going by the background of the case, this Court had prohibited Bandhs in Kerala and had directed the first to third respondents to issue orders mandating the attendance of Government servants and declaration of dies-non on days of General Strike to mitigate the inconvenience and hardship caused to the public.
However, over the past few years, the respondents had acted hand in glove with the trade unions and encouraged the Government servants and teachers to participate in the general strike against the policies of Central Government by offering to regularise the absence in strike days as eligible leave with salary. In a Writ Petition,challenging such Government order granting eligible leave and salary to the striking employees, this Court quashed the order therein and directed the respondents to verify the attendance register and to take action in accordance with law. However, no such steps have been taken by the respondents till date and presently, they have extended unbridled support to the strike by not declaring dies-non nor even mandating the compulsory attendance of government servants on the days of proposed General Strike.
The trade unions of the ruling party have offered eligible leave and salary to the Government servants for abstaining from office on 28th and 29th March, 2022 to support the general strike. This is being done when workers striking against the state government are penalized appropriately. The actions on the part of the respondents in impliedly supporting the general strike by not insisting attendance and not declaring dies non on the days of General Strike is highly illegal and unjust.
After considering the submissions, the High Court noted that when there was a challenge to the G.O.(P) No.1/2019/GAD dated January 31, 2019, which granted permission to the employer, to grant eligible casual leave to the Government employees and teachers, who had not attended duty during the national general strike, taking note of the statutory provisions, circulars and other decisions, this Court had struck down the said Government Order.
Reading of Rule 86 makes it manifestly clear that no Government servant shall engage himself in any strike or in any similar activities, added the Court.
Speaking for the Bench, the Chief Justice highlighted that the government servants should not engage themselves in any concerted or organised slowing down or attempt at slowing down Government work or in any act, which has the tendency to impede the reasonably efficient and speedy transaction of Government Work, and at the same time, concerted or organised refusal on the part of Government servants to receive their pay will entail severe disciplinary action.
The fact remains that there are no buses operated by the State Government, enabling the Government servants to attend duty and there are no orders issued by the Government, enabling operation of vehicles, viz., buses and others, so as to facilitate Government servants from attending duty, added the Bench.
The Chief Justice therefore concluded that the Trade union activities pertaining to the statutory provisions under the Trade Unions Act, 1926, cannot be allowed to impede the governance, as it is the duty of the welfare Government, to protect not only the citizens, but to continue with, all the Government work, as expected.
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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