Read More: Rakesh Kumar Duggal v Rajeev Kumar Duggal
Simran Singh
New Delhi, May 29, 2023: The Himachal Pradesh High Court, while exercising its civil jurisdiction, allowed the petition and set aside the impugned order dated 26-08-2021 with directions to the Trial Court to allow the respondents further opportunity to prove the existence and loss of alleged original Will, strictly in accordance with law and thereafter pass orders afresh on the application of the respondents seeking leave to prove the Will by way of secondary evidence.
It was held that the respondents had failed to show due compliance to the provisions of Section 66 of the Evidence Act,1872 (Evidence Act), failed to produce sufficient credible material before the Trial Court to prove the existence of original Will executed by the late mother of the parties and also failed in proving receipt of Notice by Ms. Renu Gupta, Patwari Halqua (Patwari) and her refusal to return the the Will to the respondents.
In the matter at hand, the petitioner challenged the order dated 26-08-2021 passed by the Senior Civil Judge, Sirmour District. The parties were real siblings wherein the respondents had filed a suit for declaration that they had inherited the share of their late mother in the subject property on the basis of her unregistered Will dated 25-02-2017. Petitioners by way of their written statement had specifically denied the execution of Will by their mother in favour of respondents who had not even produced the original Will on record.
It was alleged that on 13-06-2017, they had visited the Patwari for mutation of the subject property and had handed over the original Will to her subsequent to which the documents were attested in favour of all the parties in equal shares. Despite their repeated requests, the Patwari had not returned the original Will to the respondents thus, they had placed a photocopy of the alleged Will of their late mother on record and had filed an application under Section 65 of the Evidence Act seeking leave of the Court to prove the Will of their late mother by way of secondary evidence. The factum of original Will having been handed over to the Patwari on 13-06-2017 was reiterated and that she had admitted to having misplaced the Will and had promised to return the original to the respondents after tracing the same.
The petitioners had contested the application by specifically denying the execution of Will by their late mother and stated that the contentions of the respondents with respect to the original Will being in possession of the Patwari was fabricated. It was alleged that the petitioners were never shown the original will and hence did not believe the version of the respondents.
The Trial Court however allowed the application of the respondents vide impugned order dated 26-08-2021 and granted them permission to prove the Will by leading secondary evidence. Trial Court had placed reliance on the contents of copies of mutation Nos. 407 and 947 which prima facie showed that the Will was produced before the Patwari. Aggrieved by the same, petitioner had preferred the instant petition.
The Bench navigated through Section 65 of the Evidence Act which provided for the instances when secondary evidence could be given. “Section 65 (a) of the Act will be relevant, which provides that the secondary evidence may be given of the existence, conditions or contents of a document, when the original is shown or appears to be in the possession or power of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it”
The Court was of the view that the present case could also have been covered under Section 65 (c) of the Evidence Act, according to which the secondary evidence may be given when the original had been destroyed or lost or when the party offering evidence of its contents could not, for any other reason not arising from his own default or neglect, produce it in reasonable time.
The Court noted that the respondents had allegedly issued a notice dated 16-04-2020 to the Patwari when the original Will was not returned to them under Section 66 of the Evidence Act. However, the said notice was not placed on record. The Court perused the original postal receipts dated 16-04-2020 purportedly issued to “Ms. Renu Gupta, Patwari, Patwar Circle Mian-Mandir, Nahan, District Sirmour, H.P. Noticeably, it was also mentioned that ‘Now Renu Gupta is serving as Kanungo Nahan, District Sirmour, H.P.’” On the face of it, the Court stated that the notice was not sent on the correct address as Ms. Renu Gupta was not posted as Patwari at the relevant time but was posted as Kanungo. Therefore, it was stated that the respondents had failed to show due compliance to the provisions of Section 66 of the Evidence Act. In such situation, no presumption could have been raised in respect of the issuance of notice to Ms. Renu Gupta. For non compliance of provisions of Section 66 of the Evidence Act only, the prayer as made for secondary evidence could not have been allowed.
The Court further stated that the recitations in Mutation Nos. 407 and 947 also could not be said to be sufficient compliance of the requirement of Section 65 of the Evidence Act for the reasons that:
- The contents of above noted mutations was allegedly scribed by the then Patwari which were not per-se admissible and could be proved by the said official.
- There was no recital in mutation Nos. 407 and 947 to the effect that the Will was allegedly produced by plaintiffs and was the original document.
It was thus held that the Trial Court had erred in allowing the prayer of the respondents for secondary evidence without seeking proof of the factum of existence and loss of the original document, in accordance with law.
Read Order:Sohanlal And Ors Vs. State Of Rajasthan
Tulip Kanth
New Delhi, May 29,2023: Considering the fact that if the NDPS Act accused-appellants, aged 38 and 30 years, are sentenced to suffer a period of 24 years of imprisonment then there would be nothing left in the remainder of their lives as per common life expectancy to go back to, the Delhi High Court has allowed the application seeking concurrency of the sentences and ordered that both the substantive sentences awarded by the Trial Court i.e. the rigorous imprisonment of 14 years awarded u/s 8/15 of the NDPS Act and the rigorous imprisonment of 10 years awarded u/s 8/18 of NDPS Act, shall run concurrently.
Referring to section 31 of the Criminal Procedure Code which refers to the jurisdiction of Court to impose punishment when the accused is found guilty for two or more offences during a single trial, Justice Farjand Ali said, “Section 31 of Cr.P.C. empowers the trial court with the discretion to determine that sentences for two or more offences passed in one trial would run simultaneously or consequently, depending on the nature of the offences and any aggravating or mitigating factors that may be present. However, this discretion must be used while taking into account the type of offence committed and the facts & circumstances of the case.”
The factual background of this case was such that a truck was intercepted by the police and during search, a total of 38 plastic bags of poppy husk and 1 plastic polythene of opium were found in the truck. The total weight of the poppy husk was 1480 Kilograms kgs above the commercial quantity demarcated under the NDPS Act, thus, the accused persons were charged for offences under Section 8/15 and Section 8/18 of NDPS Act. They pleaded not guilty and claimed trial.
The Trial Court convicted the accused persons under Sections 8/15 and 8/18 of NDPS Act and sentenced them accordingly, however, there was no such direction from the Trial Court regarding the order of running of sentences, i.e. if they had to run concurrently or consecutively.
It was the petitioner’s case that the sentences awarded by the trial Court be altered and both the sentences be directed to run concurrently. The Public Prosecutor vehemently opposed the prayer made by the accused-appellants and submitted that in view of the quantity of the recovered contraband being above the commercial quantity specified in the statute, the trial Court had rightly not directed to run the sentences concurrently.
It was noticed by the Bench that even after a long period of incarceration, the jail authorities conveyed to the prisoner-appellant that he had served only 6 years of sentence for an offence under Section 8/15 of NDPS Act only and the 10 years’ sentence for the offence under Section 8/18 of NDPS Act would begin after completion of sentence for offence under Section 8/15 of NDPS Act which had perturbed the appellant.
Considering the fact that both the offences had arisen from a single transaction, the Bench opined, “Where an accused is convicted and sentenced for several offences at one trial, the Court may direct that the sentences shall run concurrently. In the absence of such direction by the Court, sentences shall run consecutively”.
The Bench further added that the basic rule is that the sentences must be directed to run concurrently if the accused is found guilty of two or more offences that are arising out of one and the same transaction and there are no special circumstances to do so.
Noting that the mandate under Section 31 of Cr.P.C. was not followed as the trial court did not mention the order in which the substantive sentences would be served by accused-appellants, the Bench highlighted the fact that the decision of the Trial Court had resulted into the appellants suffering total imprisonment of twenty four years instead of fourteen years as in the absence of any specific direction, the jail authorities had decided and intimated the appellants that their sentences would run consecutively which couldn’t be considered reasonable as merely because the Trial Court did not give any instructions regarding the order in which the sentences would run, it couldnot be said that the Court intended for the sentences to run consecutively.
“This court is of the considered opinion that unless there are special circumstances to pass an order regarding running of sentence consecutively; in routine, an order to run the sentence concurrently should be passed otherwise accused would suffer way harsher punishment then the legislature intended”, the Bench held.
It was further opined that the trial Court must specify in what order the sentences would be served by the accused-appellants and if the trial Court intends to direct consecutive running of sentences then it must specify the intent in writing in the order of sentence so as not to leave the liberty of an individual in the hands of a jailor.
Thus, ordering that both the substantive sentences awarded to the accused-appellants by the trial Court i.e. the rigorous imprisonment of 14 years awarded under Section 8/15 and the rigorous imprisonment of 10 years awarded under Section 8/18 of NDPS Act, shall run concurrently, the Bench held that the the total term of imprisonment shall not exceed 14 years.
Read Order: M/s Radhe Packaging V. Union of India
Chahat Varma
New Delhi, May 29, 2023: The Gujarat High Court, taking into account the Notification No. 03/2023-Central Tax dated 31.03.2023, issued under section 148 of the Central Goods and Service Tax Act, 2017 (CGST Act), has ruled that the Notification was applicable to M/s Radhe Packaging (petitioner). The court has advised the petitioner to approach the competent authority to take advantage of the benefits provided by the Notification and seek the revocation of the cancelled registration.
In the present case, the petitioner had sought to set aside the order dated 10.09.2022, which had cancelled the petitioner's registration under the Gujarat Goods and Services Tax Act, 2017. It also sought to invalidate the show cause notice dated 10.08.2022, which preceded the cancellation order. Additionally, the petitioner requested the court to direct the respondent authorities to restore its registration.
The two- judge bench of Justice N. V. Anjaria and Justice Devan M. Desai, upon reviewing the order dated 10.09.2022, observed that the ground of section 39 of the Act had been omitted. The cancellation of registration was based on the fact that the petitioner had failed to file GST returns for a period exceeding six months and did not respond by submitting the required returns.
The bench noted the Notification No. 03/2023-Central Tax, dated 31.03.2023, which says that, “In exercise of the powers conferred by section 148 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, hereby notifies that the registered person, whose registration has been cancelled under clause (b) or clause (c) of sub-section (2) of section 29 of the said Act on or before the 31st day of December, 2022, and who has failed to apply for revocation of cancellation of such registration within the time period specified in section 30 of the said Act as the class of registered persons who shall follow the following special procedure in respect of revocation of cancellation of such registration…..”
The bench held that the Notification indisputably applied to the facts of this case.
Read More: Mahesh Construction v Municipal Corporation of Delhi
Simran Singh
New Delhi, May 29, 2023: The Delhi High Court, while exercising its appellate jurisdiction, upheld the award passed by the Arbitral Tribunal and set aside the order passed by the Trial Court and stated that the Courts hearing objections under Section 34 of the Arbitration and Conciliation Act, 1996 (Arbitration Act) were not required to judge the arbitral award as if it were sitting in appeal. "However, out of judicial habit the Courts tend to act like appellate courts and blur the distinction between the two very distinct jurisdictions.” The High Court stated that the Courts exceed its jurisdiction by supplanting its own view on the view formed by the Arbitral Tribunal, which was not permissible.
Factual Matrix
In the matter at hand, the appellant challenged the judgment dated 04.07.2009 passed by Additional District Judge, Tis Hazari vide which objections filed by respondent under Section 34 of the Arbitration Act were upheld and the Arbitral Award dated 21.07.2007 was set aside.
In the year 2000, the respondent floated tenders for de-silting of certain Nallas i.e., drains in the West Zone, Delhi. The appellant, a Contractor, participated in the said tender and was awarded the work vide two work orders. The time period for completion of work was one month and two months respectively. It was alleged that despite the work being completed, the payments were not released.
The respondent contended that the claim was time barred and the appellant did not provide with the dumping receipts, photographs, videography to prove that the silt was dumped at the designated dumping site after its removal from the drain, proof of which was required to be submitted by the appellant and in the absence of the same, it could not be claimed that the work was satisfactorily completed.
Legal Trajectory
The Arbitral Tribunal had rejected the objection on limitation in favour of the appellant and held that no notice for final bill was ever given to the appellant by the respondent. Further the Tribunal had allowed the claim on merits, in favour of the appellant and awarded interest on the sums claimed for pre-reference, pendente-lite, and future stating that the appellant had dumped the silt at the sites other than the sites designated in the work order, on the instructions of respondents. It took note of the instructions mentioned in the Measurement Book and held that there was no breach of contract by the appellant thus, the appellant was entitled to be paid as per the actual lead and not the pre-fixed lead of 10-20 kms for the designated dumping sites.
Aggrieved by the same, the respondent filed objections under Section 34 of the Arbitration Act re-agitating the plea of limitation and contending that the appellant had failed to prove compliance of the contract whereby it was obliged to dump the silt at the sites designated in the contract. In absence of the same the contractual obligation remained unfulfilled and hence bills were not cleared. The respondent also challenged the interest awarded by the Tribunal.
The Trial Court did not concur with the finding of the Arbitral Tribunal and vide impugned order, while rejecting the plea of limitation, set aside the award by observing that in absence of SLF receipts, which would have proved dumping of silt at the designated sites, the appellant failed to show completion of work as per the Contract. It held that the appellant failed to show that the instructions issued by the field staff that the contractual condition of dumping at the designated site was waived off and was directed to dump at new sites since they were closer to the location. Accordingly the Court found the appellant wanting compliance with the contract for the said reason.
Court Analysis
The Bench stated that it was a settled position of law that the Court hearing objections under Section 34 of the Arbitration Act was not required to judge the arbitral award as if it were sitting in appeal. "However, out of judicial habit the Courts tend to act like appellate courts and blur the distinction between the two very distinct jurisdictions.” It was stated that the Courts exceed its jurisdiction by supplanting its own view on the view formed by the Arbitral Tribunal, which was not permissible.
It was stated that the view formed by Arbitral Tribunal was a plausible view and did not appear to be manifestly perverse to call for interference. The Arbitral Tribunal was of the view that dumping of silt in the sites other than designated sites was not a breach of contract in view of specific instructions received from the field staff. “MB was filed as evidence of silting work executed by the Contractor. Arbitral Tribunal relied upon this piece of evidence and was satisfied about its sufficiency. In Associate Builders v. Delhi Development Authority, it has been laid down that Arbitral Tribunal is the master of both quality and quantity of evidence to reach a finding of fact. In view of this legal position, it was not proper for the Court below to discount evidentiary value of the MBs by calling it secondary evidence.”
The Bench stated that an arbitral award, which was based on no material or evidence at all could be vitiated by patent illegality but insufficiency of evidence or material could not be a ground for setting aside an arbitral award. Pertinently, respondent’s own witnesses; Executive Engineer admitted that the bills for payments were finalised after making proper enquiries and test checks by the officials and then were passed for payment by him and the Divisional Accountant. Thus, the Court stated that there was evidence and material available on the record which substantiated the appellant’s claim. “Apparently, the Court had embarked upon an exercise to re-evaluate the sufficiency of evidence in material produced and faulted the Arbitral Tribunal in incorrectly appreciating the sufficiency of the said material which is clearly outside the ambit of Section 34 of the Act.”
The Bench while dealing with the power of Arbitral Tribunal to award interest referred to Reliance Cellulose Products Ltd v. ONGC which had observed that the interest was compensatory in nature and was parasitic on the principal amount. The arbitrator was empowered under Section 31(7) of the Arbitration Act to grant interest. Even a clause in a contract that prohibits payment of interest on delayed payments, does not restrict the arbitrator to grant interest. In view thereof, the Court held that the award of interest by the Arbitral Tribunal for pre-rerence, pendentelite and post award periods was neither contrary to the terms of contract nor was it in breach of Section 31(7) of the Arbitration Act. Consequently, the impugned order was set aside and the award passed by the Arbitral Tribunal was upheld.
Read Order: Ashwinbhai Mansukhbhai Kanzariya v State of Gujarat
Simran Singh
New Delhi, May 29, 2023: The Gujarat High Court, while exercising its criminal jurisdiction, has quashed the FIR and the proceedings emanating thereof, for offences punishable under Section 306 and 114 of the Indian Penal Code, 1860 (IPC) and Section 3(i)(x) and Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (Atrocities Act).
In the matter at hand, the deceased was an employee of Rajkot Municipal Corporation (RMC) who was dissatisfied with his transfer from Malaria branch to Drainage branch at Bedinaka, Rajkot thus was irregular in attending the office. Multiple Show Cause Notices were issued on different dates and the authority concerned after considering the reply thereof, accepted his explanation and closed the matter and whatever leave was sought by the deceased was sanctioned in accordance with applicable rules and regulations.
He committed suicide on 04-07-2012 by hanging himself in Hotel Miracle at Ahmedabad stating in his letter that the applicant-accused being higher officials of the department intentionally insulted him in front of other employees and intimidated with an intent to humiliate and harass him as he belonged to scheduled castes, thus, holding them responsible for the act of suicide. He further stated that he was victimised by the higher officials and illegally served with show- cause notices for which he was compelled to submit a false reply thereof and had been directed to work in other field, which was not befitting to his qualification and job experience. It was further alleged that the Drainage department where he was transferred was totally new for him and did not have any work experience to do the work of cleaner on the heavy vehicle which was meant for maintenance of drainage work etc. and working as a cleaner with such vehicles was dangerous to his life. He further alleged that he along with others had strongly opposed the transfer from Malaria Department to drainage branch, Bedinaka, Rajkot. He also strongly urged that his letter be treated as his complaint towards the commission of suicide and further alleged that after his transfer at drainage branch, he was asked to work as a sweeper without any written order.
Issue for consideration was the whether the contents of the FIR and suicide notes as they stand, made out an offence within the meaning of Section 306 of IPC and provisions of the Atrocities Act ?
The Bench noted that the entire prosecution case was based on the suicide note in form of letter dated 28-06-2012 which was address to Police Commissioner, Rajkot written by the deceased in his own handwriting, whereas, second one dated 04-07-2012 was written by him before the incident, which ran into 6 to 7 pages. Upon pursuing both the aforementioned suicide notes, it was evident that the deceased was in great stress and depression and had decided to end his life.
The Court navigated through Section 306 IPC which stated that if any person committed suicide, whoever abets the commission of such suicide, would be liable to be punished. Further Section 107 of IPC defined abetment by way of 3 clauses:
- instigating a person to commit an offence or
- engaging in a conspiracy to commit it and/or
- intentionally aiding a person to commit it
Thus, stated that the prosecution must prove the elements of mens rea i.e. guilty mind of the accused.
The Bench noted that the order of transfer was not passed by any of the applicant-accused nor was there any allegation that they played an active crucial role in his transfer. In such circumstances, the allegations that he was asked to work as a sweeper or in a lower cadre could not be accepted.The anguish expressed by the deceased in two suicide notes was clearly established by the act of his suicide and that he wanted to take revenge against the higher officials. Since the order of transfer, the deceased was irregular in attending the office and remained absent for about 72 days for which notices to resume the office were served by the Dy. Engineer. In such circumstances, merely issuing the notice and/or memo for indiscipline, would not tantamount to inciting or provoking or instigating the deceased to commit.
“There is no any allegation that the deceased was continuous harassed and insulted deliberately without justifiable cause or reason. A simple act of issuing notice or memo for the irregular attendance of the deceased, for which he was otherwise duty bound to serve the department, would definitely not amount to abetment of things as defined under Section 107 of Indian Penal Code. What emerges from the suicide notes is that, deceased was protesting his transfer, for which the applicants having no role to play and after his transfer, considering the job assigned to the deceased, it cannot be said that he had been assigned the work of lower category.”
The Bench stated that it was not only the deceased alone who was transferred from one department to another but in total 16 persons were transferred by the Dy. Commissioner, RMC.
“The act of suicide is not the remedy for the deceased. He could have ventilated his grievance before the Commissioner or Dy. Commissioner of RMC. It is not in the hands of the applicants to retransfer the deceased. Thus, on careful examination of the suicide notes, it appears that the deceased was very emotional and sentimental person and due to his posting to another department, he could not taken it in a positive way.”
Thus, considering the aforesaid aspects, the Court stated that the applicants had no intention to drive the deceased to commit suicide and they could not anticipate the same. “To bring home the applicants for the charge under Section 306 of Indian Penal Code, the intention and mens rea are main ingredients of the offence of abetment and they are lacking in the present case.”
The Bench was of the view that the contents of the suicide notes and allegations levelled in the FIR were not sufficient wherefrom an inference of the applicant-accused having abetted commission of suicide by the deceased may necessarily be drawn. Mere allegation of conspiracy or harassment would not be sufficient to raise the inference about the abetment of suicide. Thus, the Court was in complete agreement with the contentions raised by the applicant-accused that the contents of the FIR and allegations levelled in the suicide notes as they stand did not make out an offence within the meaning of Section 306 of IPC.
The Court was convinced that the continuation of the proceedings against the applicant-accused would amount to harassment and abuse of process of law and Court. For the foregoing reasons, this Court was of prima facie view that the ingredients of abetment as laid down in Section 107 was completely absent in the facts of the case and as such, Section 306 of IPC was not attracted.
The Bench noted that, on account of invocation of Section 306 of IPC and considering the caste of the deceased, the police had invoked the provisions of Atrocities Act. When the charge under Section 306 of IPC prima facie was not established, the charges under Sections 3(i)(x) and 3(ii) (v) of the Atrocities Act were also not made out.
With the above observation, the Court stated that this was a fit case where extraordinary power was required to be reinvoked to quash the FIR and other consequential proceedings thereof.
Read Order: ARUN KUMAR @ AALU Vs. STATE, NCT OF DELHI
Tulip Kanth
New Delhi, May 29, 2023: While reiterating that the testimony of the hostile witness is not to be discarded in toto, the Delhi High Court has dismissed the bail application of a man who had killed his own sister with a knife.
“Now as far as the question that the sole eye witness has turned hostile, may not in my opinion, is the sole ground for discarding the entire prosecution case as it is a settled proposition of law that the testimony of the hostile witness is not to be discarded in toto, Justice Rajnish Bhatnagar asserted.
The facts of this case were such that a PCR call was received in the Police Station by a lady caller stating that brother had attacked his sister with a knife and the lady had taken her to the hospital. So they needed the police. The said DD was entrusted to ASI and he alongwith Ct. Rakesh reached the said hospital, where he collected the MLC of injured Neelam W/o Suraj.
The patient was unfit for statement and later on injured was shifted to Safdar Jung Hospital for further treatment. The parents of the injured again shifted her to Jeevan Mala Hospital, Karol Bagh.
The prosecution had submitted before the Court that Bimla(mother) was the eye witness of the incident and according to her on the date of alleged incident, her sons Ashwani and the petitioner came inside the house and the petitioner, caught hold of his sister Neelam (since deceased) and her other son Ashwani inflicted knife injury on Neelam. It was further alleged by her that the petitioner also attacked his sister Neelam with the same knife as a result of which Neelam received multiple stab injuries and later on succumbed to her injury.
A case was registered u/s 307/34 IPC and when injured expired, section 302 IPC was added in the case. During the investigation of the case, accused Ashwani @ Ashu and petitioner Arun @ Aloo were arrested and sent to judicial custody.
It was the prosecution’s case that the allegations against the petitioner were grave and serious in nature and he alongwith his brother (co-accused) had inflicted knife injury on Neelam (since deceased) who was his sister, as a result of which, Neelam had expired.
It was submitted that Bimla Devi had turned hostile during her examination in the Court but simply because she had turned hostile, the same couldnot be a ground for bail in the instant case, as other witnesses of the case were also yet to be examined who could throw light on the circumstances leading to the murder of deceased Neelam and corroborate the same.
At the outset, the Bench observed that the sole eye witness turning hostile, can’t be the sole ground for discarding the entire prosecution case as it is a settled proposition of law that the testimony of the hostile witness is not to be discarded in toto.
The Bench considered the admitted fact on record that deceased Neelam was leaving with her mother i.e. Bimla Devi in the same house where according to the prosecution she was stabbed to death. As per the prosecution, injured Neelam was taken to the hospital by Bimla Devi.
The MLC showed that the injured Neelam (since deceased) was brought to the hospital by Bimla Devi who gave a history of physical assault by sharp object. The witness-Bimla Devi, initially gave a statement to the police that Neelam was stabbed by the petitioner and his co-accused brother but later on she did not support her version.
“So, as of now, detailed analysis of testimony of PW-Bimla Devi would not be in the fitness of things as the same might prejudice the case of either of the parties. But one cannot lose sight of the fact that when according to PW Bimla Devi she was not present at the time of the incident, then how could she tell the treating doctor that physical assault was given by a sharp object, unless and until, she had seen the incident but I will stop at that and will not further comment on the merits of the case”, the Bench said.
Noting the fact there was no forceful entry in the house where the incident took place, the Bench observed that the allegations against the petitioner were grave and serious in nature.
Therefore, in these circumstances, the Bench held that no ground for bail was made out.
Read Order: Jagtar Singh and others v. State of Punjab
Tulip Kanth
Chandigarh, May 27, 2023: While reiterating that the accused cannot be convicted with the help of Section 149 of IPC where common object of an unlawful assembly is not proved, the Punjab and Haryana High Court has acquitted the appellants-accused in a murder case as the prosecution failed to prove the charges against the appellants.
Noting that the accused had been charge-sheeted and held guilty for commission of offence of murder with the aid of Section 149 of IPC, the Division Bench of Justice Ritu Bahri & Justice Manisha Batra stated, “Section 149 of IPC has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object under this provision. Mere presence of an unlawful assembly cannot render a person liable unless it is proved that there was a common object and they were actuated by that common object and the said object was to commit some offence as set out in Section 141 of IPC.”
The facts of this case were such that the complainant Baghail Singh informed that he along with Sukhjit Singh was present in his fields when his brother Subegh Singh was seen coming as a pillion rider from Fatehgarh Churian side on a Grey silver coloured Activa. Sanjiv Kumar @ Goru was riding the same. When Subegh Singh and Sanjiv Kumar reached near the fields, suddenly two bolero vehicles reached there. One was driven by accused Billa @ Hardev and Excise Contractor Nirmal Singh Randhawa was seen sitting besides him. Accused Aman, Jagtar Singh and Surjit Singh were sitting on the rear seats.
In the second bolero, four workers of Excise Contractor Nirmal Singh Randhawa, not known by name to the complainant were found sitting. The accused struck their bolero vehicle against the Activa of Subegh Singh and Sanjiv Kumar due to which both of them fell down and suffered injuries. Subegh Singh tried to get up but the accused reversed their vehicle and again hit Subegh Singh. Both the victims died at the spot.
The complainant alleged that he had raised an alarm on hearing that the accused had fled away from the spot. He had rushed the victims to the hospital but they were declared to be brought dead. On the basis of his statement, a case under Sections 302, 427, 148 and 149 of IPC had been registered.The appeals in question were directed against the judgment on quantum of sentence passed by Additional Sessions Judge, Gurdaspur in Sessions Case whereby the appellants-accused had been held guilty.
On the issue of delay in lodging the FIR, the Bench opined that the delay quite often results in embellishment which is a creature of afterthought. On account of delay, report not only gets bereft of the advantage of spontaneity, but danger also creeps in of the introduction of colour version, exaggerated account or concocted story as a result of deliberation and consultation.
It was observed that the delay in registering the complaint when the police was present right from the inception was indeed a mystery and would, therefore, not justify either the actions of the complainant or of the police when the case was actually registered.
The Bench opined that from the act and conduct of not getting the formal FIR timely lodged and even the act and conduct of the police of not taking any steps for recording statements of material witnesses till formal FIR was lodged despite the fact that the police had come to know about the occurrence way earlier, an inference could certainly be drawn that the intervening time had been utilized by the complainant party for concocting a false story and for implicating the accused in this case.
Reiterating that any information derived from the witnesses during investigation and recorded in the index of a map must be proved by the witnesses concerned and not by the Investigating Officer, the Bench held that since, in this case, the information was sought to be proved by the evidence of Investigating Officer only, the same manifestly offended against the provisions of Section 162 of Cr.P.C. and couldn’t be considered to be admissible. It was opined that it had not been established that the site as shown in the site plan was infact the places of occurrence and this fact had created a serious lacuna in the prosecution case.
The Bench then considered the issue of motive as according to the prosecution case, the victims were partners of Ramdass liquor shops whereas the appellants were working with rival liquor contractor and due to business rivalry, the appellants had motive to eliminate the victims. It was held that the motive could not be established by leading any satisfactory evidence and this fact had also created a serious dent in the prosecution story.
As per the Bench, the prosecution had failed to produce any satisfactory evidence on record to indicate that all the appellants had formed any lawful assembly to commit an offence of murder of the victims.
Thus, the Bench was of the opinion that the prosecution had failed to prove the charges against the appellants to the hilt as obligated in law and, therefore, they were entitled to be given benefit of doubt. Accordingly, the appeals filed by the appellants were allowed.
Read Order: Vipan Kumar Vs. Union Of India And Others
Tulip Kanth
Chandigarh, May 27, 2023: The Punjab and Haryana High Court has reiterated that the power of transfer falls within the domain of employer-department & utilization of services of employees, being an administrative decision, cannot be easily questioned.
“At the very outset, this Court deems it appropriate to observe that transfer of an employee being an incidence as well as essential condition of service, therefore, such an order of transfer ordinarily cannot be interfered with, unless the order of transfer of an employee is result of a mala fide action or against the statutory rules”, the Single-Judge Bench of Justice Manoj Bajaj observed.
The Petitioner had filed a writ petition under Article 226 Constitution of India for issuance of a writ in the nature of Certiorari for quashing the orders transferring him from Nangal to NCR and posting him at Delhi Metro Rail Corporation (DMRC), as well as for setting aside the order whereby his representation seeking cancellation of his transfer orders had been declined.
The petitioner had put forth a case stating that in the year 1985, the petitioner joined the Central Industrial Security Force (CISF) as Constable, who later became Assistant Sub Inspector and ever since his appointment, he had been performing his duties diligently. The petitioner was transferred from Group Headquarter, Chandigarh to National Fertilizers Limited Unit, Nangal , where he worked only for a period of 1½ years.
Now he had been again transferred through impugned order to NCR, and vide subsequent order he was posted at Delhi Metro Rail Corporation. The attention of the Court was drawn to the 2017 Guidelines for posting/transfer of CISF personnel which mentions that the unit/station tenure has been prescribed for three years, but before completion of the said period, the petitioner has been again transferred to National Capital Region.
It was submitted that as per the guidelines, a personnel, who is left with a service period of 12 months, is exempted from transfer, but as the petitioner is due to retire in October, 2024, and is left with a service period of 16 months, which is slightly above the exemption slab, therefore, despite his being on the verge of retirement, he had been transferred.
The respondents argued that since the petitioner had completed more than 6 years collectively at Chandigarh and Nangal, therefore, for this third inter-changing of personnel in between North Sector/NCR, the petitioner had been rightly transferred.
The guidelines regulating posting/transfer cannot be equated with the service rules, therefore, the strict implementation of such guidelines cannot be pressed, as these instructions/guidelines are meant for limited purpose and may allow the employees to raise their grievance against transfer before the higher authorities, the Bench added.
The Bench found that the petitioner was previously transferred vide order dated October 18, 2021 to CISF Unit NFL Nangal, where he joined on November 19, 2021 and presently, the personnel was left with approximately 16 months service period, as he is due to retire on October 24, 2024.
Considering the respondent’s argument that the transfer of the petitioner from Nangal to NCR is not an inter-sector transfer, as both these stations form part of one sector, the High Court found that as per the conditions contained in the 2018 communication, a personnel must have completed 6 years sector tenure, as well as three years unit tenure, but in the present case at the present station, the petitioner had served only for a period of one and a half years.
The medical issue of knee replacement of the petitioner was not disputed by the respondents and it had been pleaded that at the new transferred place, the petitioner would be in a position to take the best medical facilities of the country.
Therefore, considering the short service tenure of petitioner, his health condition as well as other attending circumstances, the Bench allowed the transfer petition while exercising the writ jurisdiction under Article 226 Constitution.
Read Order: Strategic Manufactures India LLP v. ITO
Chahat Varma
New Delhi, May 27, 2023: The Delhi bench of the Income Tax Appellate Tribunal (ITAT) has held that the exercise of approving powers under section 151 of the Income Tax Act in the present case was merely a formal and ritualistic process. The Tribunal held that the approving authority failed to apply their mind to the material presented by the Assessing Officer (AO), rendering the notice issued under section 148 of the Income Tax Act without valid approval, as well as all subsequent reassessment and first appellate orders, not legally sustainable.
In the present case, the Strategic Manufactures India LLP (assessee) argued that the initiation of reassessment proceedings in the case was bad in law and should be quashed. They pointed out that the prescribed conditions and procedures under the law have not been met. They further contended that the AO relied solely on information from the Investigation Wing Kolkata without independent application of mind, rendering the reassessment order invalid. The asessees emphasized that the reasons for reopening the assessment were vague and inconsistent with the facts on record. They also highlighted that the AO failed to ascertain the true nature of the transaction, whether it was unsecured loans, advance, or share application money, indicating a lack of due diligence. Additionally, they argued that the notice issued under section 148 of the Income Tax Act was invalid as it was not accompanied by proper approval from the competent authority as required by section 151 of the Act.
The Tribunal observed that the AO had obtained the approval of JCIT Range-38, New Delhi before issuing the notice under section 148 of the Income Tax Act. Therefore, the contention that the approval was not obtained was unfounded. However, after further review, the Tribunal noted that the approving authority, had granted approval by simply writing the word ‘approved’.
The bench referred to the case of Pr. Commissioner of Income Tax v. M/s. N.C. Cables Ltd. [LQ/DelHC/2017/80], wherein the High Court of Delhi had held that section 151 of the Income Tax Act requires the Competent Authority, i.e., the CIT(A), to apply his mind and form an opinion when authorizing a reassessment notice. The mere appending of the expression 'approved' says nothing. The High Court held that it was not as if the CIT(A) had to record elaborate reasons for agreeing with the noting put up, but, at the same time, satisfaction had to be recorded of the given case which can be reflected in the briefest possible manner.
Read Order: Tamil Nadu Ayush Sonologist Association v. Union of India
Simran Singh
New Delhi, May 27, 2023: The Madras High Court has dismissed a petition by the Tamil Nadu Ayush Sonologist Association, referring to its members as AYUSH doctors who have undergone certificate course in Ultra Sonogram, claiming that they are fully qualified to carry out various diagnostic procedures and Ultra Sonogram/Ultrasound techniques. The High Court said the petitioner's Association was not able to establish any acceptable ground for the purpose of granting the relief sought in the present writ petitions.
A Single-Judge Bench of Justice S M Subramaniam held that qualified Doctors, who possessed the specialised qualifications under the provisions of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (Act of 1994) and Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 framed thereunder alone were eligible to carry out diagnostic procedure and Ultra Sonogram and Ultrasound techniques on pregnant women and all other Doctors, who did not possess the specialised qualification as contemplated under the said Act and Rules were ineligible to practice and could not be allowed to carry out such diagnostic procedures.
The petition sought a declaration to:
- Declare that doctors holding BHMS, BUMS, BAMS, BSMS, and BNYS degrees obtained from recognised institutions and who have undergone certificate course in ultra sonogram were fully qualified to carry out various diagnostic procedure on pregnant women as long as they did not undertake sex selection before or after conception which was prohibited under the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (Act of 1994) and misuse the pre-natal diagnostic techniques for sex determination leading to female foeticide.
- Declare the aforementioned courses to be eligible to sign the Ultrasound Diagnostic reports under Form F of the Pre-conception and Pre-Natal Diagnostic Test or Procedure by Genetic Clinic or Ultra Sound clinic or Image Centre.
- Forbear the Appropriate Authority constituted under the Act of 1994 from exercising power under Section 20 (3) of Act of 1994 and suspending the registration of any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinics and hospitals for permitting doctors who had undergone the aforementioned courses from recognised institutions in the state of Tamil Nadu and Certificate Course in ultra sonogram to do ultra sonogram on pregnant women without misusing the Pre-natal diagnostic techniques for sex determination.
In the matter at hand, the members of the petitioner's association were referred to as AYUSH doctors who had undergone certificate course in Ultra Sonogram who were allegedly fully qualified to carry out various diagnostic procedures and Ultra Sonogram/Ultrasound techniques. The Government of India, Ministry of Health and Family Welfare had issued notification dated 01-11-2013 clarifying to the Secretary of Government of Indian State and UT regarding practice of Gynaecology and Obstetric and diagnostic Ultrasonography by ISM Graduates.
Issues
- Whether the Doctors holding degrees viz., BHMS, BUMS, BAMS, BSMS, BNYS obtained from recognised institutions were qualified for carrying out various diagnostic procedures and Ultra Sonogram and Ultrasound techniques on pregnant women.
- Whether the members of the petitioner's association, AYUSH Doctors were qualified under the provisions of the Statutes and Rules in force.
Analysis
The Bench navigated through the provision of Act of 1994, Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (Rules of 1996) and Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 (Rules of 2014) and stated that the members of the petitioner's association must possess the qualifications as prescribed under the said Rules. “Mere prescription of general subject in the course of Ultra Sonogram would be insufficient to satisfy the minimum requirements as contemplated under the Special Act.”
The Court stated that for carrying out the diagnostic procedures and Ultra Sonogram and Ultrasound techniques, the Act of 1994, being a Central Act, would prevail over and the Rules framed thereunder in exercise of the powers conferred by Section 32 of the Act of 1994 must be satisfied for the purpose of granting permission to the AYUSH Doctors to carry out various diagnostic procedures and Ultra Sonogram on Ultrasound techniques on pregnant women.
The Court was of the view that it was not sufficient to be qualified as a doctor which was contemplated under the Tamil Nadu Clinical Establishments (Regulations) Rules 2018[1] (Tamil Nadu Rules). The eligibility criteria contemplated under the Tamil Nadu Rules must be holistically read along with the provisions of the Act of 1994 and Rules of 1996.
“The general term defined in the Tamil Nadu Act about qualified Doctors was to be construed as general definition and as far as this specialised diagnostic procedures and Ultra Sonogram or Ultrasound techniques on pregnant women were concerned, it was a special diagnostic procedure or treatment to be provided and therefore, the special qualifications prescribed under the said Act and Rules must be scrupulously followed by the competent authorities.” It was thus held that all qualified Doctors were not qualified under the provisions of the Act of 1994 and the Rules framed thereunder.
The Bench stated that the general definition of qualified Doctors could not be followed, since the special qualifications were prescribed under the Act of 1994, which was a Special Act for carrying out various diagnostic procedures. “When the Special Act is holding the field, then the general rules notified i.e., Tamil Nadu Clinical Establishments (Regulations) Rules 2018 cannot be adopted for the purpose of granting permission to carrying out various diagnostic procedures and Ultra Sonogram/Ultrasound techniques on pregnant women.”
The Bench was of the view that merely prescribing syllabus for diagnostic procedure or Ultra Sonogram or Ultrasound techniques could not be considered as a prescribed qualification within the meaning of the Act of 1994 and Rules of 1996. The Doctors qualified and specialised in the field as prescribed under the provisions of the said Act and Rules alone were eligible to carry out diagnostic procedures and Ultra Sonogram or Ultrasound techniques on pregnant women.
Read Order: ACIT (International Taxation) v. Godaddy.com LLC
Chahat Varma
New Delhi, May 27, 2023: Dismissing the appeal filed by the Revenue, the Delhi bench of the Income Tax Appellate Tribunal has held since the issue involved in the present appeals was debatable and since a substantial question of law had been framed by the Delhi High Court in the quantum appeal filed by Godaddy.com LLC (assessee), the penalties imposed in both assessment years were not exigible.
In the present case, the Revenue had raised the common ground of appeal of whether the Commissioner of Income Tax [CIT(A)] had erred in holding that the issue of royalty income in the hands of entity providing service in registration of domain name was still not settled even though the Supreme Court in the case of Satyam Infoway Ltd. Vs. Sifynet Solutions Pvt. Ltd. [LQ/SC/2004/690] have held that domain name was intellectual property similar to trade mark.
Briefly stated facts of the case were that the assessee, registered in the USA, was engaged in the business of providing facilitation of domain name registration, web-hosting, web designing and other services through its web site, godaddy.com. The revenue generated from the domain registration services in AY 2014-15 was not offered to tax by the assessee on its bonafide reasons to believe that such income is not chargeable to tax in India as per the provisions of the Act. However, the Assessing Officer (AO) assessed the income from domain name registration services as 'royalty' under section 9(1)(vi) read with section 115A of the Income Tax Act, as well as under Article 12 of the India-USA Double Taxation Avoidance Agreement (India-USA DTAA). The AO determined that the income was received by the assessee for granting customers the right to use its server, which was considered as the right to use industrial, commercial, or scientific equipment.
The AO issued show cause notices to the assessee under section 274 read with section 271(1)(c) of the Income Tax Act, asking the assessee to explain why a penalty should not be levied. The assessee responded by submitting that they were already in appeal before the High Court against the order of the Tribunal and requested that the penalty proceedings be kept in abeyance. However, the AO did not accept the submissions and proceeded to levy a penalty under section 271(1)(c) of the Act. The assessee appealed to the CIT(A) against the penalty imposed by the AO and the CITA(A) deleted the penalty that was imposed. Aggrieved by the same, the Revenue filed the appeal.
In the light of the decisions in Commissioner of Income Tax II v. Liquid Investment and Trading Co. [LQ/DelHC/2010/4537] and Shri Yugal Kishore Jajoo v. Dy. CIT [LQ/ITAT/2013/1775], the Tribunal dismissed the appeal filed by the Revenue and held that the CIT(A) had rightly deleted the penalty.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
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Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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