Read Judgment: LAXMIKANT & ORS VERSUS STATE OF MAHARASHTRA & ORS
Tulip Kanth
New Delhi, March 24,2022: Holding that the direction passed by the Aurangabad Bench of the Bombay High Court to acquire land within a period of one year was contravening the time line fixed under the Maharashtra Regional and Town Planning Act, 1966, the Supreme Court has made it clear that once an embargo has been put on a land owner not to use the land in a particular manner, the said restriction cannot be kept open-ended for an indefinite period of time.
The Division Bench of Justice Hemant Gupta and Justice V.Ramasubramanian said, “The State or its functionaries cannot be directed to acquire the land as the acquisition is on its satisfaction that the land is required for a public purpose.”
The challenge in this appeal was made to an order passed by the Aurangabad Bench of the Bombay High Court holding that the reservation of land in the Development Plan stood lapsed as no declaration under Section 126 was published. However, the Planning Authority was given one year to acquire the land once reserved.
A final Development Plan was published under Section 31(6) on February 18, 2002 in respect of land including the land owned by the appellants for playground and the appellants purchased certain plots. Though the Development Plan was finalized, the same was never implemented nor any action was taken for acquisition of the land under the Land Acquisition Act, 1894. After expiry of ten years, the appellants issued notice on August 16, 2016 under Section 127 so as to purchase the reserved land within one year of the date of the notice. Such notice was acknowledged by the respondent-Municipal Corporation to submit a measuring plan showing reservation thereon including the area owned by the appellants.
Later, the appellants filed a writ petition before the High Court for a writ of mandamus directing the respondents to treat the land of the appellants bearing Survey No. 73 as released from the Development Plan of Latur Municipal Corporation and the Site reserved for playground be declared to have lapsed to the extent of the land owned by the appellants and that the land was available for their residential use. The stand of the Municipal Corporation was that the proposal was submitted to the Collector, Latur to take effective steps for acquiring the land bearing Survey No. 73 as the land was reserved for playground. The proposal was returned by the Competent Authority but no effective decision was taken over the said proposal.
The land owner had come in appeal before the Apex Court against the restriction of one year put by the High Court giving additional time to respondents to acquire the land.
The Division Bench found that the liberty given by the High Court to acquire the land within an additional period of one year is not contemplated by the statute. It was also opined that in the judgment of the this Court in Bangalore Medical Trust v. B.S. Muddappa & Ors., a Public Interest Litigation interfered with the decision of the Bangalore Development Authority to convert the land reserved for public parks for the purposes of construction of a hospital. It was in these circumstances that the Top Court intervened, indicting the land reserved for public parks to be used for other purposes.
The Bench referred to the judgment of this Court in Municipal Corporation of Greater Mumbai & Ors. v. Hiraman Sitaram Deorukhar & Ors, (2019) 14 SCC 41, wherein it was held that the authorities have been given a duty to act as a beneficiary of the trust with respect to public park and had thus directed to acquire land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 within a period of six months. Such direction was given under Article 142 of the Constitution of India keeping in view the facts of the case.
Keeping these facets in consideration, the Top Court held that such direction and period for acquisition of land was not a law declared by this Court which was to be treated as binding precedent for this Court and the subordinate courts in terms of Article 141 r/w Article 144 of the Constitution. The Bench noted that once the Act does not contemplate any further period for acquisition, the Court cannot grant additional period for acquisition of land.
According to the Court, the land was reserved for a public purpose way back in 2002 and the land owner could not use the land for any other purpose for ten years. After the expiry of ten years, the land owner had served a notice calling upon the respondents to acquire the land but still the land was not acquired. So, the land owner could not be deprived of the use of the land for years together.
The Bench also clarified that the Statute has provided a period of ten years to acquire the land under Section 126 of the Act. Additional one year is granted to the land owner to serve a notice for acquisition prior to the amendment by Maharashtra Act No. 42 of 2015. Such time line is sacrosanct and has to be adhered to by the State or by the Authorities under the State. Thus, If the State was inactive for a long number of years, the Courts would not issue direction for acquisition of land, which is an exercise of power of the State to invoke its rights of eminent domain.
Allowing the Appeal and setting aside the direction to acquire the land within one year, the Apex Court held that the direction to acquire land within a period of one year was in fact contravening the time line fixed under the Statute.
Read Order: State of Uttar Pradesh vs. B.P Mishra
Pankaj Bajpai
New Delhi, March 24, 2022: The Supreme Court has stayed the award of compensation of Rs 25 lakh in a case of medical negligence by the Allahabad High Court, observing that none of the doctors concerned were made party to the proceedings and the manner in which the PIL was initiated and dealt with by the High Court was not a proper remedy.
A Larger Bench of Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Pamidighantam Sri Narasimha opined that the complainant, who has a grievance that his son died as a result of professional negligence on part of the concerned hospital and treating doctors, has every remedy in law either on the criminal side or before a consumer forum or before any other competent authority.
The bench, therefore, gave liberty to the respondent to initiate such proceedings as are open to him in law, and clarified that as and when such proceedings are initiated, the time taken in prosecuting the instant PIL shall be reckoned for the purposes of Section 14 of the Limitation Act, 1963 and in such eventuality, the proceedings so initiated shall be taken to the logical conclusion purely on their own merits, without being influenced by any of the observations made by the High Court.
The Allahabad High Court had takencognizance of letter addressed by the respondent to one of the Judges of the High Court, which highlighted certain facts and asserted that the son of the respondent who was about 25 years of age and was a practicing Advocate in the Allahabad High Court, died as a result of negligence on part of the treating doctors and the hospital where he was admitted for medical attention.
In said Public Interest Litigation, the High Court issued certain interim directions for payment of compensation of Rs 25 lakh in view of gross medical negligence on the part of the doctors of S.R.N. Medical College. As a result, affidavits came to be filed by the Principal Secretary, Health and Family Welfare, Government of U.P., Lucknow.
After considering the submissions, the Supreme Court found that none of the treating doctors was a party to the proceedings.
The top court held that during the course of its judgment, the High Court arrived at certain conclusions which were in the nature of findings on the issue of negligence on part of the concerned hospital and the treating doctors, and such findings and conclusions are definitely prejudicial to the interest of the treating doctors and the hospital.
Leaving aside the question whether in a PILthe matter could be seen whether any negligence had occurred in an individual case, the Apex Court observed that the basic feature of the matter as it emerges is quite clear that none of the persons who could get adversely affected by a decision was made a party to the proceedings.
The Apex Court, therefore, set aside the findings and the conclusions in the judgment of the High Court under appeal about negligence on part of the hospital and the treating doctors and the operative directions issued in paragraph 20 of the judgment.
However, the directions issued in paragraph 23 are left untouched and shall be operative, clarified the Top Court.
Read Judgment: Ratan Lal Patel V. Dr. Hari Singh Gour Vishwavidyalaya & Another
Pankaj Bajpai
New Delhi, March 23, 2022: Highlighting that the review jurisdiction can be exercised only in a case where it is found that there is an error apparent on the face of the record and not otherwise, the Supreme Court has held that there must be a speaking and reasoned order as to what was that error apparent on the face of the record, which called for interference and therefore a reasoned order is required to be passed.
A Division Bench of Justice M.R Shah and Justice B.V Nagarathna observed that unless such reasons are given and unless what was that error apparent on the face of the record is stated and mentioned in the order, the higher forum would not be in a position to know what has weighed with the Court while exercising the review jurisdiction and what was that error apparent on the face of the record.
Going by the background of the case, Ratan Lal (appellant) approached the High Court challenging the order of superannuation and seeking directions to continue him in service till completion of age of 62 years, which came to be allowed by the Single Judge by granting them the extended age of retirement. On appeal by Hari Singh Gour Vishwavidyalaya (University), the Division Bench of the High Court confirmed the judgment passed by the Single Judge. Thereafter the University, through its Registrar, filed a review application before the Division Bench seeking review/recall/modification, which came to be allowed. Hence, present appeal.
After considering the submissions, the Apex Court found that the order of Division Bench of the High Court allowing the review application is a cryptic, non-reasoned and non-speaking order, as nothing has been mentioned and/or observed as to what was that error apparent on the face of the record which called for interference.
Therefore, while exercising the review jurisdiction, the Court has to first satisfy itself on any error apparent on the face of the record which calls for exercise of the review jurisdiction, added the Court.
Speaking for the Bench, Justice Shah observed that merely stating that there is an error apparent on the face of the record is not sufficient, and it must be demonstrated that in fact there was an error apparent on the face of the record.
“In the present case, except stating that “it is noticed that there is apparent error on the face of record which calls for interference”, nothing has been mentioned on what was that error apparent on the face of the record. Therefore, the impugned order, allowing the review application being a cryptic and non-reasoned order, the same is unsustainable in law and deserves to be quashed and set aside”, added the Bench.
Accordingly, the Apex Court remitted the matter to the Division Bench of the High Court to consider, decide and dispose of the said review application afresh, in accordance with law and on its own merits and within the parameters of the review jurisdiction and thereafter to pass a speaking and reasoned order.
Read Order: Kuldeep @ Kalu v. State of Haryana
Monika Rahar
Chandigarh, March 23, 2022: While dealing with a case involving the allegations of rape wherein the prosecutrix was not appearing before the Trial Court for her examination in spite of being summoned to do so, the Punjab and Haryana High Court has held that though, as a matter of prudence the court normally considers the bail after examination of the prosecutrix, however, in case the same is being misused by the parties to prolong the trial, the same has to be deprecated.
The present petition before the Bench of Justice Rajesh Bhardwaj was filed under Section 439 Cr.P.C. seeking the benefit of regular bail to the petitioner in case FIR registered under sections 376, 452, 506 IPC. As per the factual matrix, the FIR in question was lodged by the prosecutrix (a widow, aged 42 years) alleging that the present petitioner (Kuldeep @ Kalu) forcibly entered her house and established physical relations with the prosecutrix. In order to save her honour, she kept mum for many days. However, in August of 2018, the petitioner again trespassed in her home and a fight took place between her family members and Kuldeep, as a result, the present FIR was registered.
After one and a half years, the petitioner was arrested. He approached the Addl. Sessions Judge, Fast Track Court, Karnal for grant of bail, however, the same was declined. Aggrieved, the petitioner has approached the High court for the grant of bail.
It was the case of the petitioner’s counsel that the petitioner was implicated in the present FIR to settle the score. As per his case, on August 4, 2018, a fight broke between the petitioner and the son of the prosecutrix in which the petitioner was beaten up and resultantly, the petitioner lodged an FIR against the said son. Thus, out of vengeance, the prosecutrix lodged the FIR in question on the very next day, argued the Counsel.
Further, the counsel submitted that the petitioner was a habitual litigant and that in 2013 she eloped with the petitioner out of her free will, leading to the registration of an FIR by her husband (when he was alive) against the petitioner. Also, it was the counsel’s case that if at all the allegation were taken on its face value, this could be called an act of consensual physical relationship, thus doing away with the office of rape under Section 376 of the IPC. Lastly, the counsel contended that the petitioner was behind bars since February 2020 and despite being given a number of opportunities, the prosecutrix was intentionally not appearing before the Trial Court for her examination.
Opposing the petitioner’s bail plea, the state counsel argued that after the lapse of about one and a half years of the registration of the FIR, the petitioner was arrested in February 2020 and that the prosecutrix levelled specific allegations against the petitioner. It was also submitted that already the petitioner was involved in two other FIRs. However, the State counsel ‘candidly’ submitted that despite summons being issued to the prosecutrix, she did not appear before the Trial Court.
After considering rival submissions, the Court opined that admittedly, the petitioner was behind bars since February 2020 and both petitioner and the prosecutrix were of the age of majority. Also, as argued by the petitioner’s counsel, the prosecutrix eloped with the petitioner and she also deposed in her statement recorded under Section 164 Cr.P.C. that she went with the petitioner of her own free will.
Further, the Court opined that despite opportunities being given, the prosecutrix was not appearing before the Trial Court. Though, as a matter of prudence, the court normally considers the bail after examination of the prosecutrix, however, in case the same is being misused by the parties to prolong the trial, the same has to be deprecated, opined the Court.
Additionally, the Court added that it would refrain from commenting on the merits of the case, as the allegations and counter-allegations would be assessed only after evaluation of the complete evidence led by both sides before the Trial Court. Also, whether a case under Section 376 I.P.C is made out against the petitioner or not would be evaluated by the Trial Court after the conclusion of the trial. The trial would take a sufficiently long time in its conclusion, added the Court.
Thus, against this backdrop, without making any observation on merits, the present petition was allowed.
Read Order: Satpal V. Ramphal And Others
Monika Rahar
Chandigarh, March 23, 2022: While dealing with an appeal against the order of acquittal by the Trial Court, the Punjab and Haryana High Court has held that even though the Appellate Court has the power to re-appreciate the evidence, however, such appreciation is to be done where judgement of the trial Court shows glaring misreading of the evidence and reflects that the conclusions drawn by the trial Court are not sustainable upon a meaningful reading and interpretation of the evidence.
The bench of Justice Vinod S. Bhardwaj also added, “It is also well settled that the view adopted by the trial Court cannot be superseded by the Appellate Court only for the reasons that other view is also possible.”
It was the complainant’s grievance that that the respondents/ accused set fire on the waste lying in his fields, in order to cause loss to him. The Police initiated action against the accused persons under Section 107/151 CrPC. When the matter reached the Trial Court, the Court upon considering the rival submissions of the parties, concluded that the complainant/applicant failed to prove the charge against the accused persons beyond the shadow of reasonable doubt and accordingly acquitted the respondents of the charge framed against them.
Hence, the complainant approached the High Court impugning this order of the Trial Court.
Primarily, the case of the complainant’s counsel was that the evidence of the first prosecution witness (an eyewitness) was completely disregarded by the trial Court, while the testimony of the second prosecution witness was discredited which has caused failure of justice.
After perusing the witness testimonies, the Court concluded that the witnesses, in spite of being witness of occurrence (as per their claims) failed to attribute any specific role to any accused. The Court also noted that it was highly improbable that the witnesses would not know the time of the incident and would not know anything about such material and fundamental primary details, that would be known to a witness of occurrence. Thus, the Court opined that the testimony of the witnesses did not inspire confidence of the Court.
Next, the Court went on to look into the scope of interference by a High Court while hearing appeal against acquittal. For this purpose, reference was made to the Supreme Court in M. G. Aggarwal versus State of Maharashtra, AIR 1963 SC 200, and Nagbhushan vs. State of Karnataka, (2021) 5 SCC 212.
Thus, the position which emerged from the above-stated precedents was summarized by the Court. Firstly, the Court stated that the powers of High Court in dealing with criminal appeals are equally wide whether the appeals are against conviction or acquittal. Secondly, the Court stated that in dealing with appeal against acquittal, the High Court bears in mind that the presumption of innocence is strengthened, and that as an appellate Court, the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence.
Also, the Court added that the interference of the High Court in an appeal against the order of acquittal would be justified only if there are “very substantial and compelling reasons to do so”, and that the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, even though the view of the appellate court may be the more probable one. Further, the Court added that various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies, asserted the Court, are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal, than to curtail the power of the court to review the evidence and to come to its own conclusion.
Lastly, it was adjudged that the findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material and that the finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.
Against this backdrop, the Court concluded that it could not be held that the view adopted by the trial Court was not sustainable based on the facts of the instant case. Also, before departing, the Court opined (As mentioned above) that even though the Appellate Court has the power to re-appreciate the evidence, however, such appreciation is to be done where judgement of the trial Court shows glaring misreading of the evidence and reflects that the conclusions drawn by the trial Court are not sustainable upon a meaningful reading and interpretation of the evidence.
Thus, the present application for seeking leave to appeal was held to be without any merit.
Am Read Order: Sukhchain Singh @ Sonu v. State of Punjab
Monika Rahar
Chandigarh, March 23, 2022: While dealing with NDPS case relating to the NDPS Act, the Punjab and High Court has made a departure from the bar contained under Section 37 on the ground that out of 1000 loose tablets of Tramadol which were allegedly recovered from the accused-petitioner, only 10 were sent for Forensic analysis and also the fact that in the second FIR, the petitioner’s name was inducted on the disclosure statement of his co-accused.
On the aspect of forensic inspection of only a couple of tables out of 1000 loose tables allegedly recovered from the accused, without containing any trade name or trademark or batch number, Justice Jasgurpreet Singh Puri referred to the observations made by this Court in State of Punjab vs. Dharam Singh, 2010 (3) R.C.R. (Criminal) 94.
In this case, the Police arrested two accused namely Buta Singh and Harjiwan Singh along with 919 loose tablets in an FIR registered under Sections 22 and 29 of the NDPS Act. The petitioner’s name was nominated in the present FIR on the basis of a disclosure statement made by one of the co-accused namely, Harjiwan Singh. Thus, the petitioner filed the present petition under Section 439 of the Cr.P.C. for grant of regular bail to him.
It was the case of the petitioner’s counsel that the disclosure statement of co-accused would not be admissible in evidence in view of the law laid down by the Supreme Court in Tofan Singh vs. State of Tamil Nadu, 2021 (1) R.C.R. (Criminal) 1. He further submitted that the police after arresting the petitioner planted 1000 loose tablets of Tramadol against the petitioner on the basis of the alleged disclosure statement made by the petitioner in the police custody. He referred to the statement of the petitioner under Section 27 of the Indian Evidence Act, 1872 and a perusal of the same would show that a stolen motorcycle was recovered and there was no reference to any tablets and therefore, the entire case was planted against the petitioner.
Apart from this, he contended that only a sample of loose 10 tablets was sent to the forensic laboratory out of the total loose tablets, which had no trade name or trademark etc. or batch number and therefore, he argued that his case would also be covered by the law laid down by Division Bench of the Punjab and Haryana High Court in Dharam Singh’s Case (Supra). Lastly, he submitted that in view of the aforesaid submissions, the prayer of the petitioner for grant of bail would not be hit by the bar contained under Section 37 of the NDPS Act.
The State counsel, on the other hand, submitted that it was correct that the petitioner was in custody for the last 2 years 11 months and 14 days and he also filed a custody certificate, which was taken on record. He submitted that since the petitioner was also involved in one other case, he was not entitled to the grant of regular bail.
After considering the rival submissions, the Court opined that the prayer of the petitioner for grant of bail was to be considered by taking into consideration the bar contained under Section 37 of the NDPS Act since the alleged quantity was commercial in nature. Further, the Court noted that the petitioner’s name was nominated on the basis of the disclosure statement of the co-accused and the State was unable to bring out any other sufficient material to connect the petitioner with the present case, apart from the disclosure statement.
After perusing Section 27 Evidence Act statement, the Court opined that the petitioner after being taken into custody made a statement under Section 27 of the Indian Evidence Act, 1872 pertaining to one motor-cycle and there was no mention with regard to 1000 tablets, which were allegedly recovered from the petitioner. Furthermore, the Court noted that only 10 tablets were drawn out from the loose tablets having no batch number, no trademark etc. and it was mentioned in the forensic report that only 10 loose tablets were sent and therefore, the case of the petitioner would also be covered by the judgment of Division Bench of Court passed in Dharam Singh’s Case (Supra).
As regards the second ingredient for making a departure from Section 37 of the NDPS Act, the Court opined that although the petitioner was involved in another NDPS case after the registration of the present FIR, he was however granted bail in that case and the Court also noted that in therein also, the name of the petitioner was nominated on the basis of disclosure statement. Therefore, the Court was of the opinion that at this stage, a departure can be made from the bar contained under Section 37 of the NDPS Act, since the Court had prima facie reasons to believe that the petitioner was not guilty of an offence at least at this stage.
Apart from the same, the fact that the petitioner faced incarceration of about three years and only two witnesses were examined, was taken into consideration. Furthermore, the Court opined that the State did not raise any objection that in case the petitioner was released on bail then he might flee from justice or may influence any witness or may tamper with evidence.
Therefore, considering the totality of facts and circumstances of the present case, the Court deemed it fit and proper to grant bail to the petitioner. Consequently, the present petition was allowed and the petitioner was released on bail on his furnishing adequate bail/ surety bonds to the satisfaction of the learned trial Court/ Chief Judicial Magistrate/ Duty Magistrate, concerned.
Monika Rahar
Chandigarh, March 23, 2022: Applying the ratio pronounced by this Court in Shalini Enterprises Vs. India Bulls Financial Service, 2013 (2) CCC 835, wherein it was held that even if a cheque is a security cheque, the same is an integral part of the commercial process and the same acts as a deterrent for the drawer against dishonouring his financial commitment and can also be used towards discharging the liability of the drawer, the Punjab and Haryana High Court has denied relief to accused who argued with regard to the dishonoured cheque that the same was issued as a security cheque to his cousin and not to the complainant.
Also, the Bench of Justice Vikas Bahl opined that even in case where the accused of the is that he issued a signed blank cheque which was subsequently filled by the complainant, the Supreme Court’s decision in Bir Singh vs. Mukesh Kumar, 2019(4) SCC 197, wherein it was held that the Court shall presume the liability of the drawer of the cheques for the amount for which the cheques are drawn, would be attracted.
Challenge in the present Criminal Revision was to the judgment of the Trial Court, in the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) by the private respondent, vide which the present petitioner was convicted under Section 138 of the NI Act and was sentenced to undergo rigorous imprisonment for a period of two years and he was also directed to pay compensation to the complainant (second respondent) in a time-bound manner. Challenge was also made to the judgment of the Additional Sessions Judge, Fazilka, vide which appeal preferred by the present petitioner, was also dismissed.
It was the complainant’s case that the complainant on being on friendly terms with the petitioner advanced a loan of Rs. 5,50,000 in favour of the complainant, and in order to discharge his liability, the petitioner issued a cheque of the said amount in favour of the complainant with the assurance of its encashment. However, the cheque was dishonoured and returned unpaid with a cheque return memo with the remarks “funds insufficient”. Eventually, a complaint was filed and the Trial Court found the petitioner guilty of Section 13 of the NIA Act. The petitioner was convicted and sentenced to undergo imprisonment and to pay a fine in a time-bound manner.
Thereafter, an appeal was filed by the petitioner before the Court of Additional Sessions Judge, Fazilka where it was noticed that the petitioner did not dispute his signatures on the cheque and did not even deny the issuance thereof by him. It was further observed that there was presumption in favour of the second respondent under Section 118(b) read with Section 139 of the Act of 1881 which was not rebutted by the accused/petitioner. It was further observed that the complainant prima facie proved that a sum of Rs.5,50,000 was advanced by him and a cheque was issued to the complainant by the petitioner, which became dishonoured.
The petitioner’s counsel argued that the petitioner took a loan from his cousin namely Parampaljeet Singh and a security cheque was given to the said Parampaljeet Singh who misused the same by giving the same to the complainant. It was further submitted that the documents which were produced by the petitioner were not taken into consideration by the Court below and the petitioner had a reasonable defence in the present case.
The Court opined at the outset that the fact that the petitioner signed the cheque and the cheque was issued by him, was not disputed before the Court. Further, the Court observed that even if was the plea of the accused that he issued a signed blank cheque which was subsequently filled by the complainant, the Supreme Court in Bir Singh’s Case (Supra). The Supreme Court in this case also held that the revisional Court should not interfere in the absence of jurisdictional error.
Further, the Court made reference to the judgment of the co-ordinate Bench of the Punjab and Haryana Court in Shalini Enterprises’s Case (Supra) wherein it was held that even if a cheque is a security cheque, the same is an integral part of the commercial process and the same acts as a deterrent for the drawer against dishonouring his financial commitment and can also be used towards discharging the liability of the drawer. It was further held that to state otherwise, would defeat the whole purpose of a security cheque.
Coming to the factual matrix of this case, the Court opined that the fact that the petitioner issued a cheque and the same was signed by him, was undisputed. The Court also noted that the Appellate Court noticed that the cheque bore the signature of the petitioner and no reasons were given by the accused/petitioner as to why he gave a cheque bearing his signatures to his cousin Parampaljeet Singh.
On the plea raised by the petitioner to the effect that the cheque in question was given to his cousin on account of his having taken a loan from his cousin, the Court held that it had no legs to stand as no document was produced on record to substantiate the same. Moreover, the Court added that nothing was shown to prove that the loan stated to have been taken from his cousin was repaid to the said cousin by the petitioner.
“The said plea raised, does not even remotely rebut the presumption which has been raised against the present petitioner”, adjudged the Court.
On the vires of the impugned judgment, the Court opined that both the Courts below considered the entire material on record and after due appreciation of the same, held the present petitioner guilty of the offence under Section 138 of the Act of 1881.
Thus, the Court held, “There is no jurisdictional error or misreading of any evidence so as to call for interference by this Court and accordingly, the present Criminal Revision is dismissed.”
Read Judgment: Vijay Kumar Ghai & Ors. V. The State of West Bengal & Ors.
Pankaj Bajpai
New Delhi, March 23, 2022: Finding that there was no material to indicate that the accused-appellants had any malafide intention against complainant (Respondent) which was clearly deductible from the MOU arrived between the parties, the Supreme Court has deduced that no offence u/s 420 IPC could have been made out in a case where allegations were made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent.
Noticing that entire origin of the dispute emanates from an investment made by second respondent amounting to Rs.2.5 crores in lieu of which 2,50,000/- equity shares were issued, finally culminating into the MOU and based on this MOU the respondent filed three complaints, the Division Bench of Justice Krishna Murari and Justice S. Abdul Nazeer observed that two simultaneous proceedings, arising from the same cause of action i.e. MOU were initiated by Respondent amounting to an abuse of the process of the law which is barred.
Going by the background of the case, In January 2008, an authorized representative of SMC Global Securities Ltd, Delhi (second respondent) desired to make an investment on its behalf with Vijay Kumar (appellants) wherein it was mutually decided between the parties that second respondent will invest an amount of Rs. 2.5 crore with the company in lieu of which they will be issued 2,50,000 equity shares of Priknit Apparel Pvt. Ltd (Appellants – Proforma company). Subsequently, an allotment letter was issued in favour of second respondent whereby 2,50,000 shares were issued in lieu of the investment made by him.
Having failed to bring the I.P.O as per memorandum of understanding, the second respondent issued a legal notice to the Appellants, who duly replied to the legal notice denying all the allegations. Thereafter, the second respondent filed a police complaint with PS Rajender Nagar, New Delhi by the concerned officer apprised that the complaint does not pertain to their jurisdiction and therefore the same ought to be transferred. Accordingly, second respondent filed a complaint with the Economic Offences Wing (EOW) and the said complaint was transferred to PS Darya Ganj, New Delhi.
Later, the second respondent filed a complaint u/s 156(3) of CrPC before the Tiz Hazari Court, New Delhi for registration of FIR against the Appellants and their company. In addition, the respondent also filed another Complaint u/s 68 of the Companies Act r/w/s 200 of CrPC which is pending adjudication. The Metropolitan Magistrate (MM) observed that the entire dispute was civil in nature and there was no criminality involved, thereby turning down the prayer of second respondent for registration of an FIR and posted the case for pre-summoning evidence with regard to the application u/s 156(3) CrPC filed by respondent.
Thereafter, the respondent filed a second complaint u/s 406, 409, 420, 468, 120B and 34 IPC on the basis of the same cause of action with the PS Bowbazar at Kolkata, but the concerned Police Station recommended closure of the case since the entire dispute was found to be civil in nature. The respondent then filed a protest petition with the Chief Metropolitan Magistrate (CMM), Kolkata against closure report, which was allowed and further investigation was directed. In the meantime, the authorized representative of respondent made a statement before the MM, Tis Hazari, New Delhi for withdrawing the complaint case.
Later, the Appellants filed a quashing petition u/s 482 CrPC seeking quashing of FIR and the High Court issued notice to the Respondents and stayed further proceeding of criminal case. The respondent thereafter filed an application for vacation of the stay order granted by the High Court but the same was dismissed while observing that second respondent had also filed a complaint at Delhi on the same allegations, thus the proceedings at Calcutta were intended to harass the Appellants. However, the High Court dismissed the quashing as well as the revision petition filed by the Appellants and observed that in order to exercise the power u/s 482 CrPC, the only requirement is to see whether continuance of the criminal proceedings would be a total abuse of the process of the court and the continuance of the criminal proceedings against the appellants is in no way an abuse of the process of the court.
After considering the submissions, the Top Court observed that forum shopping has been termed as disreputable practice by the courts and has no sanction and paramountcy in law.
“In spite of this Court condemning the practice of forum shopping, Respondent No. 2 filed two complaints i.e., a complaint u/s 156(3) Cr.P.C before the Tis Hazari Court, New Delhi on 06.06.2012 and a complaint which was eventually registered as FIR No. 168 u/s 406, 420, 120B IPC before PS Bowbazar, Calcutta on 28.03.2013. ie., one in Delhi and one complaint in Kolkata. The Complaint filed in Kolkata was a reproduction of the complaint filed in Delhi except with the change of place occurrence in order to create a jurisdiction”, noted the Court.
Speaking for the Bench, Justice Murari observed that “Entrustment” of property u/s 405 of IPC is pivotal to constitute an offence under this, and hence, a person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished u/s 406 of IPC.
“There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this court in Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr. (2000) 4 SCC 168, the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by the Respondent No. 2 does not disclose dishonest or fraudulent intention of the appellants”, added the Bench.
Justice Murari further found from timeline of filing complaints, the malafide intention of Respondent which was to simply harass the appellants so as to pressurise them into shelling out the investment made by Respondent.
In order to attract the ingredients of Section of 406 and 420 IPC it is imperative on the part of the complainant to prima facie establish that there was an intention on part of the petitioner and/or others to cheat and/or to defraud the complainant right from the inception, added the Bench.
Accordingly, the Apex Court allowed the appeal and quashed the FIR and proceedings in pursuance of charge sheet against the appellants for the offences u/s 406, 420, 120B IPC.
Read Judgment: State of Karnataka & Anr V. Umesh
Pankaj Bajpai
New Delhi, March 23, 2022: While considering a case where the Karnataka Administrative Tribunal, having exercised the power of judicial review, found no reason to interfere with the award of punishment of compulsory retirement and the Division Bench of the High Court exceeded its jurisdiction under Article 226 of the Constitution and trenched upon a domain which fell within the disciplinary jurisdiction of the employer, the Supreme Court has clarified that acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.
A Division Bench of Justice Dr. D.Y Chandrachud and Justice Surya Kant observed that in the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority, and hence, does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry.
Going by the background of the case, Umesh (respondent) working as a Village Accountant, was charged for demanding a bribe for deleting the name of a person from Column No. 11 of the RTC with regard to land situated at Shirdona Village. Accordingly, a criminal complaint was registered with the Lokayukta police against the respondent for the commission of an offence punishable u/s 7 and 13(1)(d) r/w/s 13(2) of the Prevention of Corruption Act, 1988.
During the course of the trial, the Special Judge gave the benefit of doubt to the respondent and acquitted him of all charges. Later, a disciplinary enquiry was initiated u/s 7(2) of the Karnataka Lokayukta Act 1984. Taking note of the complaint, and the fact that the phenolphthalein powdered currency notes were seized from the respondent, the Karnataka Upa Lokayukta-1 held that a prima facie case was established. By an order exercising powers u/s 12(3) of the Karnataka Lokayukta Act 1984 and Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules 1957, the Upa-Lokayukta-1 recommended the initiation of disciplinary proceedings against the respondent.
Later, the Government of Karnataka entrusted the case to the Upa-Lokayukta for enquiry under Rule 14 (A) of 1957 Rules, and accordingly, the Upa-Lokayukta nominated the Additional Registrar of Enquiries in the Karnataka Lokayukta as the inquiry officer for framing the charge and conducting the inquiry. By an Order, the Lokayukta held that the charge against the respondent was proved and recommended the penalty of compulsory retirement from service under Rule 8(vi) of the 1957 Rules.
Thereafter, the disciplinary authority issued a show cause notice to the respondent, who contended in his reply that the money seized was not received as a bribe but was for repayment of a loan borrowed by the brother-in-law of the complainant. The respondent also contended that since the Special Judge acquitted him on the same set of facts and evidence, there was no ground for him to hold him guilty of misconduct in the disciplinary proceedings. The disciplinary authority however, held that the misconduct was proved and imposed a penalty of compulsory retirement.
Aggrieved by the penalty, the respondent moved the Karnataka Administrative Tribunal, which upheld the order of compulsory retirement. On appeal, the High Court set aside the judgment of the Karnataka Administrative Tribunal directing the compulsory retirement of the respondent from service following a disciplinary enquiry on charges of bribery.
After considering the submissions, the Apex Court found that principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial, as in a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt and the accused is entitled to a presumption of innocence.
The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment, and unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities, added the Court.
Speaking for the Bench, Justice Chandrachud reiterated that the Court in the exercise of judicial review must restrict its review to determine if the rules of natural justice have been complied with, the finding of misconduct is based on some evidence, the statutory rules governing the conduct of the disciplinary enquiry have been observed, the findings of the disciplinary authority suffer from perversity and the penalty is disproportionate to the proven misconduct.
The enquiry was conducted in accordance with the principles of natural justice and therefore, the acquittal of the respondent in the course of the criminal trial did not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding, concluded the Bench.
Accordingly, the Apex Court set aside the judgment of the High Court and restored the finding of misconduct and the punishment of compulsory retirement.
Read Judgment: State of Uttar Pradesh And Ors. V. Rajit Singh
Pankaj Bajpai
New Delhi, March 23, 2022: Observing that the Doctrine of Equality ought not to have been applied when the Enquiry Officer and the Disciplinary Authority held that the charges were proved against the delinquent officer, the Supreme Court has opined that merely because some other officers involved in the incident were exonerated and/or no action was taken against other officers could not be a ground to set aside the order of punishment when the charges against the delinquent officer were held to be proved in a departmental enquiry.
However, as the enquiry was found to be vitiated and was found to be in violation of the principles of natural justice in as much as it was alleged that the relevant documents mentioned in the charge sheet were not supplied to the delinquent officer, a Division Bench of Justice M.R Shah and Justice B.V Nagarathna remanded the matter to the Disciplinary Authority to conduct a fresh enquiry from the stage it stood vitiated.
Going by the background of the case, Rajit Singh (respondent – employee) was serving as a Junior Engineer at Balia. An enquiry was conducted by a Departmental Task Force where it was found that he had committed financial irregularities causing loss to the Government and disciplinary proceedings were initiated against the respondent and others. Thereafter the Enquiry Officer held the charges alleged against the respondent employee as proved and consequently also held the misconduct proved. The Disciplinary Authority concurred with the findings recorded by the Enquiry Officer and passed an order of recovery of Government loss of Rs. 22,48,964.42 as per the rules from the salary; temporarily stopping two salary increments.
The Tribunal however, quashed the punishment mainly on the ground of Doctrine of Equality and also on the ground that the enquiry conducted was in breach of principles of natural justice in as much as the relevant documents mentioned in the charge sheet were not supplied to the delinquent officer. This order was upheld by the High Court as well. Hence, present appeal by the State.
After considering the submissions, so far as the quashing and setting aside the order of punishment imposed by the Disciplinary Authority applying the Doctrine of Equality on the ground that other officers involved in the incident have been exonerated and/or no action has been taken against them, is concerned, the Apex Court observed that on the said ground, the order of punishment could not have been set aside by the Tribunal and the High court.
Finding that role of the each individual officer even with respect to the same misconduct is required to be considered in light of their duties of office, the Apex Court opined that there cannot be any claim of negative equality in such cases and therefore, both the Tribunal as well as the High Court have committed a grave error in quashing and setting aside the order of punishment imposed by the Disciplinary Authority by applying the Doctrine of Equality.
Speaking for the Bench, Justice Shah found that in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case.
Accordingly, the Tribunal as well as the High Court ought to have remanded the matter to the Disciplinary Authority to conduct the enquiry from the stage it stood vitiated, added the Bench.
The Apex Court therefore remanded the matter to the Disciplinary Authority to conduct a fresh enquiry from the stage after the issuance of the charge sheet and to proceed further with the enquiry after furnishing all the necessary documents mentioned in the charge sheet and after following due principles of natural justice.
Read Order: Parveen Kumar v. State Of Haryana
Monika Rahar
Chandigarh, March 23, 2022: Considering the fact that if the petitioner’s car, seized after being intercepted by the Police for carrying the narcotic substance, was retained and kept idle in the police station, then it would likely to be converted into junk, the Punjab and Haryana High Court has ordered the release of the said car on sapurdari under Section 451 of the Cr.P.C.
While granting the relief sought, the Bench of Justice Sant Parkash held, “[Car is] ordered to be released on sapurdari to the petitioner… on the conditions (i) that he will preserve the said car in the same condition during the pendency of the trial; (ii) that he will not dispose of the same during the pendency of the trial; (iii) that he will produce the same in the trial Court as and when so ordered by the trial Court (iv) that he will not use or allow any person to use the car in question for commission of any offence including offence under the NDPS Act and (v) that he will deposit the market price of the car in question at the time of its seizure as determinable under the Income Tax/Act Rules in case of passing of order for its confiscation under Section 60 of the NDPS Act.”
The petitioner filed the present petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 for quashing/setting aside the order of the Special Judge (NDPS Act), Kaithal in case FIR registered under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) whereby the application for release of a car on Sapurdari was dismissed.
As per the prosecution version, the petitioner was driving a white Ford Eco Sports Car and one Aakash was sitting as co-passenger along with him. The police party on the basis of secret information intercepted them and on the search of the car, contraband in a polythene bag was recovered underneath the front passenger seat of the vehicle. The above-said FIR was registered and the contraband, as well as the aforesaid car, were taken into possession by the police.
The petitioner, being registered owner of the car, filed an application for its release on Sapurdari which was dismissed by learned Special Judge (NDPS Act) on the grounds that the petitioner himself was arrested while travelling in the said vehicle with contraband being recovered under the seat of his vehicle. Feeling aggrieved, the petitioner filed the present revision petition for quashing/setting aside the above-said order.
The petitioner’s counsel contended that the car can be confiscated only after affording an opportunity of being heard was granted to the petitioner and that there was no provision under the NDPS Act debarring the release of the vehicle on sapurdari. Lastly, the Counsel stated that the impugned order suffers from material illegality and therefore, it the petition be allowed.
On the other hand, the State Counsel argued that the vehicle, if released on sapurdari, may be used as conveyance for carrying narcotic substances. The said vehicle was also involved in another case registered under Sections 420, 465, 467, 468 IPC, added the Counsel.
The Bench made reference to the judgment this Court in Gurbinder Singh @ Shinder Vs. State of Punjab, 2016 (4) RCR (Crl.) 492, wherein it was held that the vehicle used for transporting the narcotic drugs and psychotropic substances can also be released on sapurdari by invoking the provision under Section 451 of the Cr.P.C.
Coming to the fact sheet of this case, the Court noted that if the car in question is retained on the ground of being case property liable to confiscation and kept idle in the police station, then the same is likely to be converted into junk. The Court also added that any public auction of the car in question is not only likely to take a long time but may also not fetch an amount higher than the reserved price and also, the Court added that passing of final order for confiscation of the car in question may also take such long time that the car in question may become wholly unserviceable, complete junk and of no use for being taken over by the state on such confiscation.
In these facts and circumstances, the Court found it appropriate that the car is released on sapurdari to the registered owner on additional conditions, besides usual terms and conditions that the registered owner will not use or allow any person to use the car in question for the commission of any offence including offence under the NDPS Act and that he will deposit the market price of the car in question as determinable under the Income Tax Act/Rules in case of passing of order for its confiscation under Section 60 of the NDPS Act.
In view of the above discussion, the present revision petition was allowed and the car in dispute was ordered to be released on sapurdari to the petitioner being its registered owner on furnishing sapurdginama to the satisfaction of Special Judge (NDPS Act), Kaithal on the aforementioned conditions.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
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Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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