Read Order: Prem Singh Rohila V. State Of Haryana And Another
Monika Rahar
Chandigarh, March 9, 2022: While dealing with a revision petition in a cheque bounce case, the Punjab and Haryana High Court has held that it is a settled proposition of law that presumption under Section 139 of the Negotiable Instruments Act, is a presumption of law, as distinguished from a presumption of fact, such a presumption is a rebuttable presumption and the drawer of the cheque may dispel the same.
This legal proposition as reiterated above, by the Bench of Justice Vinod S. Bhardwaj was held by the Supreme Court in Hiten P. Dalal Vs. Bratindranath Banerjee, (2001) 6 SCC 16.
In this case, a complaint under Section 138 of the NI Act was filed against the petitioner for the dishonour of a cheque for an amount of Rs.1,35,000/-, issued by him. The Trial Court recorded a finding of conviction against the petitioner. The petitioner was also ordered to pay an amount of Rs. 2,02,500/- as compensation to the complainant under Section 357(3) Cr.P.C. Aggrieved, the petitioner filed an appeal which was dismissed by the Additional Sessions Judge, Panipat. Hence, the present revision petition was filed.
The petitioner’s counsel argued that the Courts below failed to appreciate the evidence and convicted the petitioner, even though the petitioner dispelled the statutory presumption under Section 139.The Counsel added that the complainant miserably failed to establish that the cheque in question was ever handed over by the petitioner to the complainant in the discharge of any legally enforceable debt.
Further, it was contended that the Courts below relied solely on the presumption against the petitioner notwithstanding that the presumption was rebuttable and that upon the existence of reasonable suspicion, the burden would shift upon the complainant to prove that the issuance of the instrument was in discharge of a legally enforceable debt. Also, the counsel argued that an adverse inference needs to be drawn against the complainant and the statutory presumption under Section 139 cannot subsist against the petitioner.
After referring to a bunch of judgments, the Court opined, on the aspect of presumption under Section 139 of the NI Act((Presumption in favour of holder) that in order to rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The Court further added that the accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him.
“The Court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of the passing of the consideration and existence of debt would not serve the purpose of the accused”, asserted the Bench.
Further, it was observed by Justice Bhardwaj that to disprove the presumption, an accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or that their non-existence was so probable that a prudent man, would under the circumstances of the case, act upon the plea that they did not exist.
In this case as observed by the Court, the complainant was unable to establish personal relations with the petitioner, on the strength of which he claimed that he advanced the money to the petitioner without making any written endorsement. Further, the complainant failed to adduce any proof of his income and also of the source of the huge sum of money lent. Thus, the Court opined that there was no plausible reason why the complainant would lend money to a person with whom he had no relationship and that too without execution of any documents as would be expected of a person of ordinary prudence.
Additionally, the Court was of the view that merely by being in possession of a cheque, the complainant did not stand absolved of his obligation to prove the existence of liability and a legally enforceable debt prior to issuance of the cheque. The surrounding circumstances and conduct in the form of withholding of best evidence left scope for improbabilities and doubts about the prosecution version, added the Bench. Also, the Court noted that the accused-Petitioner denied the suggestion about having been lent any money by the complainant and contrary to what The trial Court stated in its judgment, the petitioner stepped as a witness in favour of his case.
Further, the Court opined that the petitioner was able to rebut his burden and the consequent operation of presumption under Section 139 of the Negotiable Instruments Act against him, and the burden thus shifted on the complainant to lead affirmative evidence to show a pre-existing liability and the same to be legally enforceable at the time of issuance of the cheque.
“The failure to display prudence of an ordinary person and to establish his capacity to advance the sum to the petitioner give rise to a suspicion against presence of an enforceable debt against the petitioner and thus tilting the balance in favour of the accused. The burden lies on the complainant to prove his case against the accused, in whose favour, there is a presumption of innocence”, concluded the Bench.
The Court found the lower court judgment to be conjectural and not based upon an objective assessment of the material adduced on record. Accordingly, the impugned judgments were set aside and the petitioner was ordered to be acquitted.
Read Judgment: Vivek Mehta & Anr. V. Karrs Designs & Developments & Ors.
Pankaj Bajpai
Mumbai, March 9, 2022: While considering an issue as to whether the arbitration should be held up at the pre-appointment stage and pre-reference stage or whether party should be left to follow the procedures post reference and be left to agitate their respective challenges, the Bombay High Court has focused on the aspect of ‘least interference at the pre-appointment stage’ and appointed Karl Tamboly, Advocate, as Sole Arbitrator to adjudicate upon claims and counter claims, if any that had arisen under a Memorandum of Understanding (MOU).
The Single Judge A.K Menon observed that the agreement in the form of MOU proposed to be executed would certainly attract stamp duty but such an instrument was yet to be executed, and hence, the question of payment of stamp duty was something that would have to be gone into at the appropriate stage and not in the present application which was restricted to appointment of an Arbitrator.
The observation came pursuant to an application filed u/s 11 of the Arbitration and Conciliation Act, 1996, seeking appointment of a Sole Arbitrator to adjudicate upon disputes that had arisen under a Memorandum of Understanding (MOU) dated August 29, 2009.
The application filed in 2016 remained pending for numerous reasons. Initially, the parties were referred to mediation since they were in negotiations and meetings had been held prior to 2017. These meetings did not yield results and in 2019 the respondents raised objections to the maintainability of the petition since the MOU was not sufficiently stamped.
Eventually mediation having failed, the matter was taken up for hearing and after noting that clause 17 of the MOU contained an arbitration clause, the court noted that stamp duty in respect of the MOU was payable by the applicants. In view of the objections to stamping, the court considered the nature of the MOU and observed that unless stamp duty was fully paid with penalty, the court could not proceed with appointing an arbitrator.
After considering the submissions, Justice Menon found that the petitioner had self-assessed the duty payable and paid the duty and penalty on the document thereby presenting a case of insufficiency of stamps being cured by self-assessment, which was contested by the respondent on the basis that the document had been wrongly classified for the purposes of stamp duty and stamp duty had been paid under Article 5(j) of the Schedule of the Karnataka Stamp Act, 1957 which was erroneous.
Incorporation of an arbitration agreement within the MOU is admitted and clause 15 of the MOU requires stamp duty and registration charges in respect of the agreement to be paid by the purchasers viz. the applicants whereas a sum of only Rs.100 has been paid on the instrument as of now, noted the Single Judge.
Justice Menon further noted that the clause itself was the genesis of the application and an instrument containing the said clause had now been found to be inadmissible in evidence for want of sufficient stamp duty.
In the present case, the MOU was executed on stamp paper of Rs.100 and thus, there was no question of the document being “unstamped”, rather, it was at best insufficiently stamped, added the Single Judge.
Accordingly, the High Court requested the Arbitrator to file his disclosure statement under Section 11(8) and Section 12(1) within two weeks with the Prothonotary and Senior Maser and provide copies to the parties.
Read Order: Vidhi ka Ulaghan Karne Wala Balak V. State of M.P. & Anr.
Pankaj Bajpai
Gwalior, March 8, 2022: Opining that the primary purpose of the Juvenile Justice Act, 2015 is to reform or a repatriate the child in to society and considering that no benefit can be given to a child in conflict with law as per Section 436-A of CrPC, the Madhya Pradesh High Court (Gwalior Bench) has declared that Section 1(4), 3,12 of Juvenile Justice (Care and Protection of Children) Act, 2015 as well as Rule 8 of Juvenile Justice (Care and Protection of children) Model Rules, 2016 do not contemplate release of Juvenile / Child in Conflict with Law after completion of period extending half of the maximum period of imprisonment, as per Section 436-A of CrPC.
The Single Judge Anand Pathak observed that Child in Conflict with Law cannot be treated as under trial prisoner as contemplated u/s 436-A of CrPC because arrest /confinement/ apprehension are not contemplated in Juvenile Justice (Care and Protection of Children) Act, 2015.
When relevant Law itself desist from imprisonment or arrest then the theory of suffering more than half of the maximum period of imprisonment gets frustrated, added the Single Judge.
The observation came pursuant to a revision preferred by a Child in Conflict with Law (CICL) seeking his release from remand home on the basis of completing more than half of period of retention which ultimately a child would receive when he would be found to be in conflict with law.
The background of the case was that the Child in Conflict with Law (CICL) is in correction/remand home since Feb 26, 2020 and is facing proceedings before Juvenile Justice Board for alleged offence u/s 376 of IPC and Section 5/6 of Protection of Children from Sexual Offences Act (POCSO).
The counsel for petitioner therefore prays for release of CICL on the ground of period of retention in remand/correction home, and raised the legal question that as per provision of Section 436-A of CrPC, petitioner suffered more than two years of incarceration, therefore, he ought to be released on bail because maximum retention/detention for CICL in remand home can be three years and since the petitioner has completed more than half of the period of detention, therefore, his case be considered for bail.
After considering the submissions, Justice Pathak found from a conjoint reading of Section 1(4) of Act of 2015 and Section 5 of CrPC and taking aid of the maxim “generalia specialibus non derogant” which means “special things derogate from general things”, that a special provision is made on a certain matter, the matter is excluded from the general provisions, then picture emerges regarding prevalence of Section 1(4) over any other provisions of law.
Conjoint reading of Section 3 (xii) and (xiii) with Section 12 as well as Rule 8 of the Juvenile Justice (Care and Protection of children) Model Rules, 2016 reveals that apprehension / detention of the child is an exception and in fact except where heinous offence is alleged to have been committed by the child or committed jointly with adults, no FIR shall be registered and in that condition logical inference is that registration of FIR, investigation, filing of charge-sheet and trial as contemplated in CrPC appear to be ousted prima facie, although at some places some minor overlapping of expressions exists, observed the Single Judge.
Justice Pathak highlighted that one exception appears to be carved out in Section 15 in cases of heinous offence committed by child between 16 to 18 years of age but in that case also, Children’s Court shall try CICL.
Even when the child is assessed to be tried as an adult is not jointly tried with the adult co-accused (Section 23 of the Act of 2015) nor is tried by the regular Courts of law but by Children Courts as per Sections 15 and 19, so that child friendly atmosphere may prevail in that Children’s Court, added the Single Judge.
The High Court further observed that when the promulgation of the special Act meant to treat children in specific manner, then bringing analogy from other statutes would overlap the remedies and may hamper the very object and spirit of Act of 2015.
“Coming to the present case, from the case diary, it appears that petition is aged 14 years and is facing allegations of commission of offence of rape of a girl aged 3 years. His arrest memo indicates his age as 14 years and medical report supports allegations of prosecution in specific terms, therefore, case of the petitioner lacks merits at this stage. He may renew his prayer later on”, added the Court.
Accordingly, the High Court held that child in conflict with law cannot be treated as under trial prisoner as contemplated u/s 436-A of CrPC and cannot be released after completing half of total period of detention of three years in special home to avail the benefit of Section 436-A of CrPC.
Read Judgment: M. Nageswara Reddy & Anr. vs. State of Andhra Pradesh and Others
Pankaj Bajpai
New Delhi, March 8, 2022: While opining that the High Court had unnecessarily given weightage to some minor contradictions while acquitting the accused persons of the offences of murder & rioting, without appreciating that those contradictions couldnot affect the case of the prosecution as a whole, the Supreme Court has restored the order passed by the trial Court convicting the accused for the offences u/s 148 & 302 IPC and sentencing them to life imprisonment.
After considering that there were no major/material contradictions in their deposition, a Division Bench of Justice M.R Shah and Justice B.V Nagarathna observed that the delay of seven hours couldnot be said to be fatal to the prosecution case even when the FIR was sent to the Magistrate within 24 hours and the testimony of witnesses had fully supported the case of the prosecution.
Going by the background of the case, in 2007, all the accused persons forming an unlawful assembly armed with hunting sickles, came from behind a sumo vehicle and surrounded it near Dr. Kabir Clinic at Gayithri Estate, Kurnool, in which the deceased Rajasekhar Reddy and his brother M. Nageswara Reddy and other supporters- Shaik Akbar Basha, P. Sekhar and S. Venkagamuni were travelling, and S. Rajesh was the driver. The first to third accused forcibly dragged out the deceased and immediately hacked him with hunting sickles indiscriminately.
The deceased Rajasekhar Reddy died on the spot whereas other prosecution witnesses were taken to Government General Hospital, Kurnool. During the course of the investigation, the investigating officer arrested all the accused. Later, a charge-sheet was filed against all the eleven accused for the offences u/s 147, 148, 324, 326, 307, 427 and 302 of the IPC.
The accused pleaded not guilty and therefore all of them came to be tried by the Sessions Court. The case on behalf of the accused was that of total denial and that they were falsely implicated in the case because of their political rivalry and past enmity. The trial Court held accused persons guilty of the offences punishable u/s 148 & 302 IPC and sentenced them to undergo life imprisonment for the offence u/s 302 IPC and one year R.I. for the offence u/s 148 IPC. However, the trial Court acquitted the rest of the accused persons of all the charges levelled against them. The matter reached the High Court, which acquitted the accused of the offences punishable u/s 302 & 148 IPC.
After considering the submissions, the Top Court noted that the findings recorded in respect of acquittal of the accused were on appreciation of evidence on record and the view taken by the trial Court acquitting the accused, which had been affirmed/confirmed by the High Court, was a plausible view and therefore the same were not required to be interfered with by this Court in exercise of powers under Article 136 of the Constitution of India.
“It is required to be noted that in the present case the prosecution examined five important and relevant witnesses – PW1, PW3, PW5, PW6 & PW7, out of which PW1, PW3 & PW5 were the eyewitnesses and PW6 & PW7 were the injured eye-witnesses. Accused Nos. 1 to 3 were identified by PW1, PW3 & PW6. Though, the learned trial Court has disbelieved PW5, the High Court has not at all discussed and/or re-appreciated the evidence/deposition of PW5, which as a first appellate Court, the High Court was required to”, added the Court.
Speaking for the Bench, Justice Shah found that the High Court had observed that prosecution witnesses were planted witnesses merely on the ground that they were all interested witnesses being relatives of the deceased.
However, merely because the witnesses were the relatives of the deceased, their evidence could not be discarded solely on the said ground and therefore, the High Court had materially erred in discarding the deposition/evidence of prosecution witnesses, added the Bench.
Justice Shah elaborated that though one witness could not identify the assailants, however, the prosecution had been able to prove the incident from the deposition/evidence and the manner in which the incident took place.
“One another reason given by the High Court is that the FIR was not registered at the time as claimed by the prosecution, but it was registered many hours after the occurrence and sent to the Magistrate with unexplained delay and according to the High Court, this facilitated the police to falsely implicate the accused after PW1 arrived at the police station. However, the FIR was lodged within seven hours. As per the prosecution, it was lodged immediately. The interpolation of the time of the incident, 0.30 a.m. to 9:30 p.m., could not be explained as the same was not raised before the trial Court. No question on the same was asked to the concerned witnesses” added the Bench.
Accordingly, the Apex Court quashed the judgment and order insofar as acquitting the first to third accused for the offences u/s 148 & 302 IPC was concerned.
Read Order: Bibi Ayesha Khanum & Ors. vs. Union of India & Ors.
Pankaj Bajpai
Bengaluru, March 8, 2022: Noticing that the complainants in a POCSO matter went through a harrowing time inasmuch as the accused were granted bail without consideration of any objections of the complainants, the Karnataka High Court has directed that the Investigation officer or the Special Juvenile Police Units (SJPU) shall inform the victim’s parents/caregiver/guardian as also the legal counsel if appointed, about any application for bail or any other application having been filed by the accused or the prosecution in the said proceedings.
A Division Bench of Chief Justice Ritu Raj Awasthi and Justice Suraj Govindraj further directed that the concerned Court, before proceeding to hear the application, shall ascertain the status of service of notice, and if it is found that notice has not been issued or though issued has not been served, the Court may make such reasoned order as it deems fit to secure the ends of justice, taking into account any emergent circumstances that warrant dealing with the application in the absence of the Victim’s parents/caregiver/ guardian or legal counsel.
The observation came pursuant to a PIL, whereby the petitioners were seeking for effective implementation of the Protection of Children from Sexual Offences Act 2012 (POCSO Act) and the Protection of Children from Sexual Offences Rules, 2020 (POCSO Rules) as also the amended provisions of Section 438 and 439 of the Code of Criminal Procedure, 1973.
The grievance of the petitioners was that in prosecution for offences under the POCSO Act when the accused were to move the Court for grant of bail, the defacto complainant and/or caregiver of the minor victim are not informed of the application filed for bail, thereby an opportunity to the complainant/victim or informants/caregiver to place their contentions and/or oppose an application for bail is denied.
After considering the submissions, the High Court noted that the benefit of Article 21 of the constitution is not only available to the accused but also to the victims and their families of any criminal offence.
For an orderly society to exist it is required that the victims of criminal offences, more particularly heinous offences have a say in the criminal prosecution of the accused, added the Court.
The High Court observed that though the prosecution of such offences rests with the State, who is to act impartially, the prosecution system is overburdened, many a time with prosecutors not having been appointed, leading to inordinate delay.
“If a victim or complainant wants to and can effectively assist the prosecution, the same is required to be permitted, albeit with the caveat that the prosecutor would always be in charge of the prosecution and would be the deciding authority as regards the mode and manner of conducting of the prosecution. For this to happen it is essential that the complainant/Victim is aware of the proceedings in court”, added the Court.
Accordingly, the High Court directed that public prosecutor shall serve a copy of any application or objections to be filed in the said proceedings on the Victim’s parents/caregiver/guardian as also the legal counsel if appointed and issue notice of hearing of such application on them, along with all relevant documents and records necessary for their effective participation in the proceedings, in this regard the prosecutor is entitled to take the assistance of the Investigating Officer or the SJPU and file necessary proof of service of copies and notice of hearing.
In the unlikely event of service not being effected it shall be the duty of the Prosecutor to inform the reasons in writing to the relevant court, added the Court.
Read Order: Jitender v. State of Haryana
Monika Rahar
Chandigarh, March 8, 2022: While dealing with a case wherein the accused conducted a sex determination test in a car using a probe machine already available in the car, the Punjab and Haryana High court has held that from the definition of the term ‘Genetic Clinic’ as given under Section 2(d) of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (P.N.D.T. Act) it is clear that it will include even a vehicle, where ultrasound machine or imaging machine or scanner is used.
The Court also held that the car in question comes within the ambit of “genetic clinic” as it was being used for keeping sex determination equipment capable of determining the sex of the foetus at the time of the raid and as such, it was required to be sealed and seized being a “material object” and was subjected to confiscation.
The Bench of Justice Sant Prakash also added regarding the object of the Act, “In view of the possibility of use of pre-natal diagnostic techniques for determination of sex and then for termination of pregnancy of unborn child, the provisions of P.C. and P.N.D.T. Act are made, which should be observed and followed in letter and spirit while dealing with the matters like the one in hand.”
In this case, on receiving information of sex determination tests being conducted by the accused, the District Appropriate Authority constituted a raiding party which, along with currency notes and shadow witness, was sent to a village where the accused-petitioner along with co-accused was found sitting in a car and after receiving money from the said raiding party, a test was conducted using a probe machine already lying in the car.
At this, the petitioner and co-accused were arrested along with material objects and the vehicle in question was taken into police custody. An FIR was registered under Sections 34, 120-B of IPC, Sections 4, 3, 5. 6, 18 and 29 of the P.N.D.T. Act. The petitioner (registered owner of the offending vehicle) moved an application for the release of the same, but the Trial Court denied it. Aggrieved, the petitioner preferred a revision, which was also dismissed. Hence, the present quashing plea was made seeking setting aside of these two orders.
The petitioner’s counsel contended the vehicle in question can not be termed as Genetic Clinic (defined in Section 2(d) of P.N.D.T. Act) as, during the course of police remand, the accused admitted that they were not determining the sex of the foetus but were cheating people to earn money from them. It was further contended that using the power vested by virtue of Section 3 of P.N.D.T. Act, although the authorities can regulate the Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics, the provision of search and seizure of records etc. (under Section 30 of P.N.D.T. Act) nowhere authorizes the appropriate authority to confiscate the vehicle.
The Counsel added that it only authorized the appropriate authority to examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same, if such authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under the aforesaid Act. Further, it was argued that there was no provision under the P.C. and P.N.D.T. Act to confiscate the vehicle in question. The Counsel also submitted that the petitioner was ready to furnish an undertaking before the Court with regard to not selling or changing the ownership of the said vehicle until the decision of the main case.
Controverting the petitioner’s counsel and placing reliance on Section 2(d) of P.C. and P.N.D.T. Act and further on Rule 11(2) and 12 of P.C. and P.N.D.T. Rules, 1996, the State counsel submitted that every machine, material object or equipment seized under P.N.D.T. Act for violation of the said Act, is liable for confiscation straightaway. The counsel added that the offending vehicle also comes within the ambit of the genetic clinic, which is required to be sealed and seized being a material object and is subject to confiscation. The release of the same will defeat the very purpose of the P.N.D.T. Act when it is also alleged that the petitioner was apprehended a second time committing the same offence of illegal sex determination, added the counsel.
Regarding the question of whether the offending vehicle was a Genetic Clinic, the Court concluded that ‘Genetic Clinic’ (Section 2 (d)) will include even a vehicle where an ultrasound machine or imaging machine or scanner is used. In the present case, the Court opined that the vehicle in question was rightly termed as ‘Genetic Clinic’ as the same was being used for keeping the sex determination equipment and at the time of the raid, the petitioner was found doing the illegal act of sex determination in the said vehicle only.
Further, for determining the issue of search, seizure and confiscation of the vehicle, reliance was placed on Section 30 and Rules 11(1)(2) & 12 of the P.C. and P.N.D.T. Rules, 1996. The Court opined in this respect that an ultrasonography test on a pregnant woman is considered to be an important part of a pre-natal diagnostic test or procedure. Further, after making reference to the relevant rules, the Court opined that the expression “any other material object” in Section 30 includes ultrasound machines, other machines and equipment capable of detecting sex of the foetus or capable of use for sex selection.
The case in hand, the Court observed that illegal determination of sex of a foetus with illegal and unauthorized equipment for money consideration was carried out by the petitioner. Thus, the Court asserted,
“… car in question comes within the ambit of “genetic clinic” as it was being used for keeping sex determination equipment capable of determination of sex of foetus at the time of raid and as such, it was required to be sealed and seized being a “material object” and was subjected to confiscation. As per the aforesaid rules, confiscation of the vehicle in question by the Appropriate Authority is very much justified as admittedly, it had not been registered under the P.C. and P.N.D.T. Act and was used for sex determination illegally.”
On the confiscation of the vehicle, the Court remarked that every machine, material object or equipment seized under the Act for violation of the Act, is liable for confiscation straightaway. The vehicle in question was used against the said provisions of the Act and Rules leading to the abuse of process of law and therefore, its confiscation and consequent non-release is very much justified, added the Court.
Additionally, noting the fact that the petitioner was apprehended for the second time committing the same offence of illegal sex determination, the Court decided against releasing the offending vehicle.
Thus, the impugned were upheld and the instant petition was dismissed.
Read Order: Ajij Khan v. State of Haryana
Monika Rahar
Chandigarh, March 8, 2022: The Punjab and Haryana High Court has granted interim bail of 30 days to an accused-patient for getting his treatment done in a private hospital.
The Bench of Justice Vikas Bahl referred to the Supreme Court in Jaya Talakshi Chheda v. State of Maharashtra, 2018 (2) RCR (Criminal) 816 wherein it was held that the accused should be given a choice to get his/her treatment done from the private hospital at their own costs, more so, when the accused is averse to get the treatment done from the Government Hospital.
Prayer in the present petition was for grant of regular bail to the petitioner in an FIR registered under Sections 302, 34, 404 of the Indian Penal Code, 1860 and Sections 25/54/59 of the Arms Act. An alternative prayer was made for releasing the petitioner on interim bail for a period of 30 days on account of his medical condition.
The petitioner’s counsel submitted that the petitioner was only pressing the prayer for an interim bail for a period of 30 days in view of the medical condition of the petitioner and he did not press for grant of regular bail, at this stage. With respect to the interim bail, the counsel referred to the Medical Report of the petitioner to show that the petitioner was complaining about pain during defecation, discharge and bleeding per rectum and was diagnosed with Pilonidal Sinus. It was submitted that the petitioner was given conservative treatment and thereafter he was advised for follow up. On November 11, 2021, also he was diagnosed with Pilonidal Sinus and was referred to another hospital for further treatment where he was advised for admission for getting an operation done but the petitioner refused the same.
The counsel further submitted that the petitioner did not want to get his operation done from the Government Hospital and he wanted to get his treatment from a private hospital as the treatment in the said institute was of very high quality and would permanently resolve the problem which the petitioner was facing.
The State Counsel submitted that although the Medical Report mentioned that the petitioner was facing difficulty but he was getting treatment from a well qualified and experienced Surgeon of General Hospital, Jhajjar and by following conservative management, he could be treated.
The Court perused the petitioner’s Medical Report at the outset and reiterated his medical history while observing that the petitioner was suffering from Pilonidal Sinus and was in discomfort. The Court further noted that it was also mentioned in the report that the patient was getting treatment from well qualified and experienced Surgeons of General Hospital, Jhajjar.
On the right of an accused to get treatment at a medical facility of his/ her own choice, the Court referred to the Apex Court in Jaya Talakshi Chheda’s Case (Supra).
Thus, in this background, the prayer for interim bail was allowed and the petitioner was directed to be released for a period of 30 days for getting the abovesaid treatment done. The said release, the Court held, would be subject to the petitioner furnishing bail bonds/surety bonds to the satisfaction of the concerned trial Court. The period of 30 days was directed to begin from the date on which the petitioner was to be released.
Read Order: Satbir @ Madu And Another v. Gram Panchayat And Others
Monika Rahar
Chandigarh, March 8, 2022: In a case where the application filed by the applicants seeking their impleadment in the petitioner’s suit was allowed, the Punjab and Haryana High Court while dealing with the Revision Petition has held that if a plaintiff does not intentionally implead a necessary or proper party, the Court has the right to implead the said party on its application.
This revision petition, filed before the Bench of Justice Sudhir Mittal, originated from a suit filed by the plaintiffs (present petitioners) seeking an injunction restraining the Gram Panchayat from diverting a public street through their land. During the pendency of the suit, an application was filed by the applicants for impleadment as party defendants while claiming that Gram Panchayat and the plaintiffs were in collusion and that the existing alignment of the street was correct.
This impleadment application was allowed on the ground that there was a dispute regarding alignment and the applicants being the residents of the village, had an equal interest in the matter.
The petitioner’s counsel submitted that the plaintiffs were the dominus litus and they could not be forced to litigate against a party whom they did not want to implead.
Addressing this argument, the Court opined that it was misconceived. The Court observed that the applicants were necessary parties, thus the Court had a right to implead such a party.
Finding no other argument raised in the revision petition, it was dismissed.
Read Order: Rakesh Kumar vs. State of Bihar & Others
Pankaj Bajpai
New Delhi, March 8, 2022: Though accepting that there is no absolute right with the candidate to insist that he should be permitted to join service beyond the prescribed date, the Supreme Court has recently agreed to the entry and continuation of Rakesh Kumar (Appellant – Appointee) in judicial services, noticing that the appellant came from a marginalized community, had been recruited to the judicial services of Bihar and was not able join service on account of lockdown consequent upon the COVID 19 pandemic.
A Division Bench of Justice K.M Joseph and Justice Hrishikesh Roy observed that there is no law which would support the cancellation of the candidature of the selected candidate if he seeks to join beyond a particular point of time.
Going by the background of the case, Rakesh Kumar (Appellant) participated in the 30th Bihar Judicial Services Examination conducted pursuant to notification No. 6/18 and came to be appointed as probationary Civil Judge (Junior Division) on January 6, 2020. Pointing out certain personal difficulties which consisted of the delivery date of his wife and the surgery of his father, the appellant sought extension till April, 2020, which was granted.
Thereafter, it was the case of the appellant that he was prevented from joining consequent upon the COVID 19 pandemic. Accordingly, the appellant sought time from the District Judge, Darbhanga Civil Court, urging that he was stuck in Nagpur and still stranded and that he would join at the directed place as soon as possible. The Registrar General of the High Court however communicated that the prayer did not find favour with the Court. Finally, it culminated in the issuance of notification dated December 10, 2020 wherein appointment of certain candidates stood cancelled since they had not submitted joining in the services. The matter reached the High Court whereby the petitions seeking to quash the impugned notification were dismissed . Hence, the present appeal was filed.
After considering the submissions, the Top Court noticed that there is no statutory provision which declares or commands that beyond a certain point of time, a selected candidate cannot be permitted to join.
Undoubtedly, the matter appears to be governed by the terms of the notification and it is open to the Court to grant extension and extension was granted by communication dated February 20, 2020 to join by April, 2020, added the Court.
Being not oblivious of the fact that first representation made by the appellant is on June 8, 2020, even though deadline set by the High Court was that the appellant should join in April, 2020, the Top Court highlighted that it cannot ignore the reality, namely, that restrictions imposed consequent upon COVID 19 enveloping the nation were rather severe and stringent, where travel both by Air and by train was prohibited.
Accordingly, the Apex Court quashed the notification to the extent the appellant’s candidature is cancelled and restored the appointment of the appellant, subject to the condition that the appellant will not be entitled to claim seniority/ backwages as has been, in fact, held out by him in written undertaking.
Read Order: Sukhdev Singh vs. State of Punjab
Pankaj Bajpai
New Delhi, March 8, 2022: While hearing a case of non-compliance of NDPS Act, the Supreme Court has held that physical nature of the material is not relevant for determining whether the contents of the sample analyzed were actually opium or not, and physical analysis is not prescribed under the provisions of the NDPS Act for testing the opium.
A Larger Bench of Chief Justice N.V. Ramana, Justice A.S. Bopanna and Justice Hima Kohli observed that the aspect that the physical nature of the material was not relevant for determining whether the contents of the sample analyzed were actually opium or not, was appropriately adverted to by the Sessions Judge and confirmed by the High Court.
The observation came pursuant to a Special Leave Petition directed against an order dated October 6, 2010 passed by the High Court of Punjab and Haryana by Sukhdev Singh (Appellant).
The counsel for the appellant submitted that the prosecution had not been able to prove the case beyond any reasonable doubt as there was no independent witness in the present case. The counsel further submitted that mandatory provisions of Section 50 of the Narcotic, Drugs and Psychotropic Substances Act,1985 (NDPS Act) were not complied with and the appellant was neither searched nor told of his right to be searched before the Gazetted Officer or the Magistrate.
Opposing the same, the counsel for the State submitted that the appellant was searched in the presence of S.P., District Moga, who is a gazetted officer, as per the provisions of Section 50 of the NDPS Act, and it was found that the appellant was carrying 4kgs of opium and 20gms were taken as sample. Thereafter, the Chemical Examiner, after the completion of the necessary investigation, confirmed that the substance was opium.
After considering the submissions, the Larger Bench noticed that the report of the Chemical Examiner indicated that some powder material/chura was undertaken for analysis which was found to contain morphine and meconic acid.
The counsel for the State pointed out that as per the provisions of the NDPS Act, it is nowhere mentioned that opium should necessarily be in the form of a sticky material, as contended by the Appellant’s counsel, noted the Bench.
The Larger Bench further observed it was only on the basis of the contents of a particular sample that a conclusion was to be arrived at regarding the same being opium.
Accordingly, the Apex Court refused to interfere with the order passed by the High Court.
Read Order: Gurpreet Singh v. State of Punjab
Monika Rahar
Chandigarh, March 8, 2022: While dealing with a revision petition in a case of rash and negligent driving leading to the death of one of the injured victims, the Punjab & Haryana High Court has held that the High Court in a revisional jurisdiction would not interfere in the opinion of the Courts below if such an opinion is a possible opinion on the basis of the evidence brought on record and would not substitute its own opinion merely because such opinion is also a possible opinion.
The Bench of Justice Vinod S. Bhardwaj also added that the revisional jurisdiction of the High Court being restricted to examining whether there is any manifest error of law or procedure, such a power is to be exercised when there is apparent illegality, gross procedural irregularity or impropriety leading to miscarriage of justice, legal infirmity or gross misappreciation of the evidence that does not reconcile to the conclusion drawn by the Court.
By means of the instant revision petition, a challenge was raised to the judgment of the Trial Court in case pertaining to an FIR whereby the petitioner was convicted for offences under Section 279, 337, 338, 304-A IPC along with the subsequent dismissal of the appeal.
This was a motor accident case. Two persons Harpreet Singh and Mandeep Singh were riding on a scooter and were hit by a car being driven by the petitioner. While undergoing treatment, one of the injured victims succumbed to his injuries. On the statement of the complainant, the FIR in question was registered. The petitioner-accused was arrested, charge-sheeted and convicted under Sections 279, 337, 338, 304-A IPC.
Aggrieved, the petitioner filed an appeal, but the same was dismissed. Hence, the present revision petition was filed.
The petitioner’s counsel argued that the prosecution failed to prove the petitioner’s guilt beyond doubt and that the Courts below recorded the judgment of conviction solely upon the preponderance of probabilities which runs contrary to the settled tenets of criminal jurisprudence. It was further submitted that the prosecution failed to show any MLR to establish that the deceased received any injuries in the alleged incident and also to establish that the death of one of the complainants was a result of the alleged incident.
The primary question which arose for Court’s consideration was whether the petitioner was driving the offending car in question and whether the offending vehicle was being driven by the petitioner in a rash and negligent manner so as to endanger human life and public safety.
Firstly, the statement of Harpreet Singh (examined as PW) was perused by the Court who stated that the scooter on which the deceased as well as the said witness were riding was hit from the backside by the offending vehicle resulting in the witness as well as the deceased sustaining multiple injuries. The Court also observed that, when confronted about the identification of the petitioner, the witness specifically replied to have known the petitioner and also that the petitioner eventually visited his house.
Further, the testimony of other independent eyewitnesses was also found to be sufficiently corroborated, by the Court. Later, the statement of the deceased- complainant, on whose statement the FIR was lodged was pursued by the Court. The Court opined that his statement gained significant importance since the same was a statement made by the deceased regarding the circumstances of the transaction that ultimately resulted in his death. Further, Justice Bhardwaj asserted,
“The proximity of the statement and death of Mandeep Singh is an issue to be considered and there being a continuity and immediate proximity as well as link of the transaction in the form of incident and the ultimate consequence in the form of death of the said transaction, the statement…becomes admissible in evidence in terms of Section 32 of the Evidence Act. The statement having been made under expectation of death and in the proceedings where the issue required to be determined is as regards the cause of death, the said statement assumes significance of dying declaration and becomes a substantive piece of evidence that may not require any further corroboration unless sufficient evidence is produced to convince the Court to disregard the said testimony and to render it unreliable or unworthy of any credit”, said the Court.
Then the Court went on to make observations on the involvement of the offending vehicles. The Court noted that both the scooter and the car were examined and the petitioner could not explain the damage caused to the car. In this regard, the Court also opined that even though the petitioner claimed that he was not driving the offending vehicle, however, being the registered owner of the vehicle, it was for him to explain and to bring forth the person who was statedly/ allegedly driving the offending vehicle in question at the time of the incident.
The Court noted that apart from denying his involvement, the petitioner did not produce any other evidence and that this failure assumed significance considering that the witnesses specifically named the petitioner to be the driver at the time when the accident.
Refusing the petitioner’s argument that the death could not be linked to the alleged accident, the Court concluded that a perusal of the medico-legal report as well as post-mortem report conclusively established that the death in question occurred as a result of the injuries sustained by the deceased on account of the accident in question.
Lastly, after making the above-stated observations on the scope of the revisional power of the High Court, the Court opined that the petitioner failed to point out any legal infirmity of impropriety in the judgment of the Courts below.
The Court also observed that the petitioner was unable to indicate as to how the findings recorded by the Courts below were not borne out from the evidence adduced on record or that the conclusions so drawn would not be possible conclusions on the appreciation of evidence.
Thus, the revision petition was accordingly dismissed.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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