Read Order: THE KOUSHIK MUTUALLY AIDED COOPERATIVE HOUSING SOCIETY v. AMEENA BEGUM & ANOTHER
Tulip Kanth
New Delhi, December 19, 2023: The Supreme Court has clarified that when an application or petition filed under Order IX Rule 13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC. The Top Court also opined that Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed.
Briefly stated, the facts were that the appellant had filed a suit seeking a decree of specific performance of an agreement to sell dated 26.04.1985. In the said suit, the respondents were set ex-parte. Thereafter, an ex-parte decree was passed. The execution proceedings as against the ex-parte decree were still pending before the Executing Court.
However, the first respondent herein filed an application seeking setting aside of ex-parte decree along with an application under Section 5 of the Limitation Act, 1963 seeking condonation of 5767 days delay in filing the said application seeking setting aside of ex-parte decree. The Civil Judge dismissed interlocutory application filed for seeking condonation of delay of 5767 days in filing the application seeking setting aside of the ex-parte decree under Oder IX Rule 13 Code of Civil Procedure, 1908.
Being aggrieved, the first respondent filed a Civil Revision Petition under Section 115 before the High Court contending that Trial Court was not right in dismissing the application seeking condonation of delay of 5767 days in filing the petition to set aside the ex-parte decree. In the Civil Revision Petition, the High Court condoned the delay & directed the Trial Court to dispose of the petition filed under Order IX Rule 13 and complete the trial of the suit expeditiously.Being aggrieved by this order, the plaintiff/appellant had preferred the appeal in question.
Placing reliance upon Order XLIII Rule 1(d) CPC as well as Section 115, the Division Bench, comprising of Justice B.V. Nagarathna & Justice Ujjal Bhuyan, observed that as against the ex-parte decree, a defendant has three remedies available to him. First, is by way of filing an application under Order IX Rule 13 seeking for setting aside ex-parte decree; the second, is by way of filing an appeal against the ex-parte decree under Section 96(2) and the third, is by way of review before the same court against the ex-parte decree.
Declaring that an appeal against an ex-parte decree even after the dismissal of an application under Order IX Rule 13 is maintainable, the Bench further noted that against the order passed under Order IX Rule 13 CPC rejecting an application for seeking setting aside the decree passed exparte, an appeal is provided. When an application is filed seeking condonation of delay for seeking setting aside an ex-parte decree and the same is dismissed and consequently, the petition is also dismissed, the appeal under Order XLIII Rule 1(d) CPC is maintainable, it added.
“Thus, an appeal only against the refusal to set aside the ex-parte decree is maintainable whereas if an order allowing such an application is passed, the same is not appealable”, the Bench said.
Considering the fact that Civil Revision Petition under Section 115 would not arise when an application/petition under Order IX Rule 13 is dismissed, the Bench made it clear that when an alternative and effective appellate remedy is available to a defendant, against an ex-parte decree, it would not be appropriate for the defendant to resort to filing of revision under Section 115 of the CPC challenging the order refusing to set aside the order of setting the defendant ex-parte.
“In view of the appellate remedy under Order XLIII Rule 1(d) CPC being available, revision under Section 115 of the CPC filed in the instant case was not maintainable”, the Bench further noticed while also adding that when there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passing the same, a Revision Petition cannot be filed. It was also opined that in the absence of an appellate remedy, a revision may be maintainable.
“It is clarified that once the Trial Court dismissed the application seeking condonation of delay in filing petition under Order IX Rule 13 CPC, and consequently, the main petition under Order IX Rule 13 CPC also stood dismissed which is also noted by the trial Court”, the Bench held while dismissing the appeal.
On the request of the Counsels, the Bench set aside the impugned order on the ground that the said order was passed in a Civil Revision Petition which was not at all maintainable under Section 115. However, liberty was reserved to the first respondent to file an appeal under Order XLIII Rule 1(d) CPC on or before December 31, 2023.
Read Order: SYNDICATE BANK v. N.R. BHAT
Tulip Kanth
New Delhi, December 19, 2023: While considering a matter involving a suspension order passed against an employee of Syndicate Bank, the Supreme Court has asked the Bank to restitute the employee by paying him interest which would be more than the ordinary rate of interest on an FDR that the petitioner-Bank offers to the public at large. The Top Court passed this Order after noting that the Bank failed to implement its joint settlement memo substituting the penalty of dismissal from service imposed on the respondent-employee with the penalty of reduction of time scale of pay.
The Petitioner-Bank approached the Top Court challenging the order passed by the Division Bench of the High Court in an Intra Court Appeal whereby the respondent-employee was permitted to exercise the option of availing retiral benefits and making a written request to the petitioner-Bank to pass appropriate orders.
The factual background of this case was that the respondent-employee joined the services of the petitioner-Bank as an Officer Trainee on March 31, 1969. On completion of probation, he was posted as a Probationary Junior Officer on October 3, 1969. On August 6, 1982, the respondent employee was suspended in contemplation of disciplinary proceedings. After the disciplinary proceedings were concluded, the Disciplinary Authority passed an order on March 3, 1997 dismissing the respondent-employee from service.
The said order had been upheld by the Appellate Authority. Aggrieved by the aforesaid orders, the respondent-employee preferred a writ petition before the High Court whereby the matter was remitted back to the Petitioner – Bank for reconsideration.
Aggrieved by the said order, the petitioner preferred an Intra Court Appeal before the Division Bench. During the pendency of the writ appeal, the parties arrived at an amicable settlement in terms of a Joint Memo where under the petitioner-Bank agreed to substitute the penalty of dismissal from service imposed on the respondent-employee with the penalty of reduction of time scale of pay by four stages but without adversely affecting his retiral benefits. It was in the course of taking on record the aforesaid Joint Memo that the impugned order came to be passed granting liberty to the respondent-employee to exercise the option of availing retiral benefits.
It was the case of petitioner-Bank that that the High Court ought not to have permitted the respondent-employee to apply for pensionary benefits considering the fact that the entire matter was settled between the parties by virtue of the Joint Compromise Memo. The respondent-employee had an opportunity to opt for a pension scheme in the year 1995 when the Syndicate Bank Employees (Pension Regulations) were first notified and at that time, he was an employee of the Bank but having failed to do so then, he couldn’t demand that pension be released in his favour.
The Division Bench of Justice Hima Kohli & Justice Ahsanuddin Amanullah was inclined to accept the submission made by the petitioner–Bank. “…even if the relationship of the employer-employee had ceased on the dismissal of the respondent-employee on 3rd March, 1997, once the dismissal order passed by the Disciplinary Authority and upheld by the Appellate Authority vide order dated 6th April, 1997, was set aside by the High Court by virtue of the judgment dated 23rd June, 2005, the umbilical cord between the petitioner-Bank and the respondent-employee stood restored and there was ample opportunity for the respondent-employee to have exercised the option in terms of the Circular dated 16th April, 2010, which he failed to do”, the Bench clarified.
As per the Bench, having missed the bus, the respondent-employee could not have claimed any benefit of pension that too after entering into a Joint Memo of Settlement with the petitioner-Bank.
“We are, therefore, of the opinion that no such option could have been permitted to be exercised by the respondent-employee at such a belated stage, in the year 2019”, the Bench further added.
The Top Court also found substance in the submission made by the respondent-employee that he ought to be compensated for illegal withholding of the settlement dues payable to him in terms of the Joint Memo.
The Bench took note of the fact that it was made clear to the petitioner-Bank on the very first date that the Joint Memo ought to be implemented but the same had not been implemented.
The Bench directed the Bank to restitute the respondent-employee by paying him interest at the rate of 12% per annum to the respondent-employee w.e.f. July 1, 2019, till the date the said amount is released in favour of the respondent-employee. The interest component shall be paid within four weeks failing which, the same shall stand enhanced from 12% to 15% per annum, the Bench further ordered.
Read Order: MOHAMMED ABDUL WAHID v. NILOFER & ANR
Tulip Kanth
New Delhi, December 19, 2023: In a case pertaining to the Code Of Civil Procedure, 1908, the Supreme Court has declared that there is no difference between a party to a suit as a witness and a witness simpliciter and production of documents for both a party to the suit and a witness, at the stage of cross-examination, is permissible within law.
The two questions before the Division Bench of Justice B.R.Gavai and Justice Sanjay Karol were as follows-
- Whether under the Code of Civil Procedure, there is envisaged, a difference between a party to a suit and a witness in a suit.
- Whether, under law, and more specifically, Order VII Rule 14; Order VIII Rule 1-A; Order XIII Rule 1 etc, enjoin the party under-taking cross examination of a party to a suit from producing documents, for the purposes thereof, by virtue of the use of the phrase plaintiff/defendants witness or witnesses of the other party, when cross examining the opposite party.
The Top Court was considering an appeal challenging a judgment delivered by the Bombay High Court (Nagpur Bench) by which the Division Bench had answered three questions framed by a Single Judge of that Court in view of the two allegedly conflicting decisions, viz. Vinayak M Dessai v. Ulhas N. Naik and Ors. and Purushottam v. Gajanan.
The High Court had held that a party cannot be equated to a witness as their characters are different. Considering the legislative intent of Order VII Rule 14 Sub-Rule (4), Order VIII Rule 1-A(4)(a) and Order XIII Rule 1(3) of C.P.C. as well as others, it was observed that the legislature has created an exception towards the documents being produced for cross-examination of witnesses of the other party to allow confrontation of witnesses by catching such person unawares in order to bring out the truth on record.
Referring to Order XVIII Rule 3A & State of Bombay v. Kathi Kalu Oghad, the Bench opined that that witnesses and parties to a suit, for the purposes of adducing evidence, either documentary or oral are on the same footing. The presence of these provisions also begs the question that if the legislature had the intent to differentiate between a party to a suit as a witness, and a witness simpliciter, it would have done so, explicitly, the Bench added.
The Bench also held that that the provisions of the Code as also the Evidence Act do not differentiate between a party to the suit acting as a witness and a witness otherwise called by such a party to testify. According to the Bench, the term witness does not exclude the party to the suit i.e., the Plaintiff or the Defendant, themselves appearing before the court to enter evidence.
The Top Court observed that the freedom to produce documents for either of the two purposes i.e. cross examination of witnesses and/or refreshing the memory would serve its purposes for parties to the suit as well.
Additionally, the Bench noted that being precluded from effectively putting questions to and receiving answers from either party to a suit, with the aid of these documents will put the other at risk of not being able to put forth the complete veracity of their claim- thereby fatally compromising the said proceedings. Therefore, the proposition that the law differentiates between a party to a suit and a witness for the purposes of evidence was negated by the Bench.
Referring to Ram Sarup Gupta v. Bishun Narain Inter College, the Bench reiterated that what is not pleaded cannot be argued, as for the purposes of adjudication, it is necessary for the other party to know the contours of the case it is required to meet. It was reaffirmed that the requirement of having to plead a particular argument does not include exhaustively doing so.
Furthermore, reliance was placed upon Udhav Singh v. Madhav Rao Scindia and it was observed that so long as the document is produced for the limited purpose of effective cross-examination or to jog the memory of the witness at the stand is not completely divorced from or foreign to the pleadings made, the same cannot be said to fly in the face of this established proposition.
It was also clarified by the Bench that the provisions namely Order VII Rule 14(4), Order VIII Rule 1A(4)(a) & Order XIII Rule 1(3) while dealing with the production of documents, by the plaintiff, defendant and in general, respectively, exempt documents to be produced for the limited purpose of cross-examination or jogging the memory of the witness.
Therefore, the Bench allowed the appeal and concluded the matter by saying, “In light of the above discussion, and the answer in the negative to the first question before this court, meaning thereby that there is no difference between a party to a suit as a witness and a witness simpliciter- the second issue in this appeal, in view of the provisions noticed above, production of documents for both a party to the suit and a witness as the case may be, at the stage of cross-examination, is permissible within law.”
Read Order: RAM KISHOR ARORA v. DIRECTORATE OF ENFORCEMENT
Tulip Kanth
New Delhi, December 19, 2023: Dismissing Supertech founder Ram Kishor Arora’s appeal challenging the rejection of his bail plea, the Supreme Court has opined that his arrest could not be said to be violative of section 19 of PMLA or Article 22(1) of the Constitution of India as he was indisputably informed about the grounds of arrest and he had also put his signature and endorsement on the document of having been informed.
The appellant challenged the judgment passed by the High Court of Delhi dismissing the petition seeking declaration that the arrest of the appellant by the respondent Directorate of Enforcement (ED) was illegal and violative of the fundamental rights guaranteed to the appellant under Articles 14, 20 and 21 of the Constitution of India, and seeking direction to release the appellant forthwith.
The main issue before the Division Bench, comprising of Justice Bela M. Trivedi and Justice Satish Chandra Sharma, was whether the action of the respondent ED in handing over the document containing the grounds of the arrest to arrestee and taking it back after obtaining the endorsement and his signature thereon, as a token of he having read the same, and in not furnishing a copy thereof to the arrestee at the time of arrest would render the arrest illegal under Section 19 of the Prevention of Money Laundering Act, 2002 (PMLA).
The facts of this case indicated that the appellant, founder of M/s Supertech Limited, a real estate company which along with its group companies had undertaken various projects in Delhi NCR and at other places in Uttar Pradesh during the period 1988-2015. Due to various reasons, 26 FIRs came to be registered against the appellant in various jurisdictions.
On 09.09.2021, the respondent ED registered an ECIR against M/s Supertech Ltd. and others and started investigation under the PMLA. The appellant was also summoned under Section 50 of PMLA. The Adjudicating Authority issued a notice to the appellant under Section 8(1) calling upon the appellant to show cause as to why the properties provisionally attached should not be confirmed as the properties involved in money laundering.
It was the appellant’s case that before he could reply to the said show cause notice, on 27.06.2023 he was arrested by the respondent ED without serving to the appellant the ground of arrest. The Special Court remanded the appellant to the ED custody and thereafter the appellant was sent to judicial custody for 14 days. The appellant had filed a bail application before the Special Court, the same came to be dismissed. Thereafter, the appellant filed the writ petition which came to be dismissed by the High Court.
On the issue of the validity of the various provisions including Section 19 of the PMLA, the Bench referred to Vijay Madanlal Choudhary and Others vs. Union of India and Others in which the Bench while upholding the validity of Section 19 of the PMLA held that the said provision has reasonable nexus with the purposes and objects sought to be achieved by the PMLA.
Section 19 deals with Power of arrest. It says that the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
The Bench opined that the expression ‘as soon as may be’ contained in Section 19 is required to be construed as early as possible without avoidable delay or within reasonably convenient or reasonably requisite period of time.
The Bench observed that the person asserted, if he is informed or made aware orally about the grounds of arrest at the time of his arrest and is furnished a written communication about the grounds of arrest as soon as may be i.e as early as possible and within reasonably convenient and requisite time of twenty-four hours of his arrest, that would be sufficient compliance of not only Section 19 of PMLA but also of Article 22(1) of the Constitution of India. Plaicng reliance upon Vijay Madanlal Case (supra), the Bench held that the action of informing the person arrested about the grounds of his arrest is a sufficient compliance of Section 19 of PMLA as also Article 22(1) of the Constitution of India.
The Bench noted that the appellant was handed over the document containing grounds of arrest when he was arrested, and he also put his signature below the said grounds of arrest, after making an endorsement that he had been informed and had also read the above-mentioned grounds of arrest.
The appellant in the rejoinder filed by him has neither disputed the said endorsement nor his signature below the said endorsement. The only contention raised by the appellant’s Counsel was that he was not furnished a copy of the document containing the grounds of arrest at the time of arrest.
Considering the fact that the appellant was indisputably informed about the grounds of arrest and he having also put his signature and the endorsement on the said document of having been informed, the Bench held that there was due compliance of the provisions contained in Section 19 of PMLA and his arrest could neither be said to be violative of the said provision nor of Article 22(1) of the Constitution of India.
Thus, the Bench dismissed the appeal.
Read Order: Ziyaul Islam Siddiqui V. The State & Anr
LE Correspondent
New Delhi, December 19, 2023: The Delhi High Court has denied bail to a Travelling Ticket Examiner (TTE) accused of raping a woman who was traveling on a train without a confirmed ticket.
Briefly stated, the victim reported that while traveling from Allahabad to Delhi without a confirmed ticket, she was approached by a TTE, who offered her a seat in exchange for Rs. 500. The TTE, identified as Kalu Singh, allegedly promised her a permanent job in the railway and took her mobile number. Following continuous communication regarding the job, the accused met the victim on several occasions and eventually took her to a hotel in Pahar Ganj under the pretext of arranging her employment. Subsequently, the victim alleged that the accused forcibly engaged in physical relations with her after giving her a cold drink, making her body numb and unable to resist. The victim further claimed that the accused threatened to post nude photographs of her on social media if she did not comply with his demands. The FIR was registered under Sections 376/328 of the IPC.
The single-judge bench of Justice Swarana Kanta Sharma noted the contention put forth by the counsel for the accused, asserting that the accused had been falsely implicated in the case. However, the bench pointed out that this contention was not supported by any other explanation as to why the victim would falsely implicate the accused in a case of rape, particularly since the victim did not know the accused and was a passenger in a train where the accused was on official duty as a TTE.
The bench also highlighted that there was no satisfactory explanation as to why the accused had obtained the phone number of the victim, maintained constant communication with her, met her in a hotel, and visited her house. Additionally, it was noted that the hotel had documented the entry regarding the room where the sexual assault was allegedly committed under the pretext of marriage and employment. The bench emphasized that the accused had failed to provide a reasonable explanation for his actions, and it was not argued that there was any consensual relationship between the parties.
Based on these observations, the bench concluded that the arguments presented before the court lacked substance and failed to justify the accused's actions, particularly his communication with the victim, visiting her house, and taking her to a hotel, given the lack of any established consensual relationship between them.
The Court also noted that the further investigation into the inappropriate photographs of the victim taken on a phone was pending, a supplementary chargesheet was to be filed, charges were yet to be framed, and the victim was yet to be examined.
Based on these circumstances, the Court concluded that there was no case for the grant of bail at this stage. Consequently, the present bail application was dismissed.
Read Order: AMIT KUMAR v. STATE NCT OF DELHI & ORS
Tulip Kanth
New Delhi, December 19, 2023: The Delhi High Court has quashed a POCSO & rape case registered against the accused while observing that the pendency and continuance of the FIR could have a negative impact not only upon the prosecutrix and the petitioner-accused but especially on the upbringing and the future of the minor son born out of their wedlock.
The petitioner had approached the High Court by filing petition under Article 226 of the Constitution of India read with Section 482 of the Code of the Criminal Procedure, 1973 (CrPC) seeking quashing of FIR registered under Sections 376/509 of the Indian Penal Code, 1860 (IPC) r/w Section 4 of The Protection of Children from Sexual Offences Act, 2012 (POCSO) and Sections 9/10/11 of Prohibition of Child Marriage Act, 2006 (PCM) and all proceedings emanating therefrom.
The FIR revealed that at the time of incident the prosecutrix, aged around 17 years old, felt pain in her stomach. An ultrasound revealed that she was almost 8 months pregnant. Then the FIR against the petitioner, who was alleged to be the father of the unborn child, was registered.
It was urged before the Court by the petitioner’s counsel that the petitioner and prosecutrix were having an affair since long. They also eloped and got married without the consent of their parents then the prosecutrix moved to her matrimonial home with the petitioner. It was further submitted that at the time of marriage, the prosecutrix had informed the petitioner and his family members that she was over the age of 18 years.
After her marriage to the petitioner, she had also conceived and delivered child. Presently, both petitioner and prosecutrix were living together as husband and wife under the same roof along with the male child born out of the wedlock.
The parents of prosecutrix had also accepted her marriage with the petitioner and both the prosecutrix and her mother had written to the Delhi Women Council and S.H.O., Burari qua withdrawal of the present FIR. It was then that the petitioner and the prosecutrix executed a Settlement Deed inter-se themselves
The single-judge Bench of Justice Saurabh Banerjee considered the fact that both the petitioner and prosecutrix were involved in a relationship since long which resulted in their marriage and cohabitation under the same roof with the parents of the petitioner. Eventually, they had since been blessed with a baby child as well.
Both their parents had also recognized the sanctity of their marriage and were supporting them and their marriage. None of them had raised any kind of objections regarding the marriage of the petitioner and the prosecutrix till date.
The Bench also opined that the parents of the prosecutrix had no grievance/ remorse against the petitioner and all the aforesaid had happened despite the pendency of the present FIR.
The Bench was mindful of the fact that the allegations levelled against the petitioner involved heinous offences having grave punishments in case of conviction. However, keeping all the aforesaid factors in mind, particularly as the prosecutrix had herself supported the petitioner without any coercion, duress and pressure and now they had been married & blessed with a son, the Court didn’t find any impediment in quashing the FIR.
“As such, pendency and continuance of the present FIR under the existing circumstances can surely have a negative impact not only upon the prosecutrix and the petitioner but especially on the upbringing and the future of the minor son born out of their wedlock”, the Bench opined.
Observing that it would be in the interest of justice as also the parties and betterment of their future, especially that of their minor son to quash the present FIR, the Bench also reiterated, “More so, as no effective purpose would be served in case the FIR is kept pending as in view of the prevalent situation there is hardly any scope of the petitioner being convicted.” Reference was also made to Kundan & Anr. vs. State & Ors.
Lastly, the Bench made it clear that these observations and findings had only been made upon consideration of the extremely rare and exceptional circumstances involved herein and thus they should not be construed as a precedent.
Read Order: U.P. SINGH v. PUNJAB NATIONAL BANK
Tulip Kanth
New Delhi, December 18, 2023: The Supreme Court has dismissed an appeal of an employee of Punjab National Bank who was suspended on account of his disorderly behaviour and was held to have been voluntarily retired from his post. The Top Court opined that a person aggrieved by the order of transfer cannot sit at home and decide on his own that the order is illegal or erroneous and he will not comply with the same.
The workman was impugning the order passed by the Division Bench of the DelhiHigh Court in an intra court whereby the Order passed by the Single Judge in the Writ Petition was upheld. The Single Judge Bench had set aside the award of the Central Government Industrial Tribunal-cum-Labour court whereby the order deeming that the workman had voluntarily retired, was set aside. He was directed to be reinstated with full back wages along with interest and consequential benefits.
The factual background of the case was such that the workman was appointed with the Bank (Punjab National Bank) in the year 1977 as Clerk- cum-Cashier. Initially, he was working at Barabanki. Thereafter, he was transferred to Shahjanhanpur. In the year 1982, he was suspended on account of his disorderly behaviour. He was found awarded punishment of stoppage of two graded increments and was advised to report for duty to the ManagerBranch Office, Bhagwantnagar, Unnao. The workman failed to join duty.
In terms of Clause XVI (Clause XVI- Voluntary Cessation of Employment by the Employees) of the Bipartite Agreement (Fourth Bipartite Agreement dated 17.09.1984) between Indian Banks Association and Workmen Unions, the workman was deemed to have voluntarily retired from service. Aggrieved by the aforesaid action of the Bank, six years later, the workman raised a dispute about his deemed retirement before the Assistant Labour Commissioner. Thereafter, the dispute was referred to the Tribunal for adjudication.
The workman, even as per the material available on record, had joined active practice as a lawyer after his deemed voluntary retirement from service with the Bank, had appeared in person and argued before the Court.
The Division Bench of Justice Hima Kohli and Justice Rajesh Bindal took note of the fact that the workman never challenged the order of punishment or his transfer before the competent authority or the Court and the said order became final. He was only aggrieved with his posting to the Branch Office, Bhagwantnagar, Unnao. Instead of joining his new place of posting, he continued writing letters.
In terms of Clause XVI of the Bipartite Agreement, in case a workman absents from work consecutively for 90 days or more, without submitting any application for leave, the Bank is entitled, after 30 days’ notice, to conclude that the employee has no intention to join duty and is deemed to have voluntarily retired on expiry of the notice period of 30 days, the Bench clarified.
“A person aggrieved by the order of transfer cannot sit at home and decide on his own that the order is illegal or erroneous and he will not comply with the same. If the workman had any grievance, he could have availed of his remedy available against the same; otherwise, he was duty-bound to comply with the same. Failure to avail of any remedy also would mean that he had accepted the order and was duty-bound to comply with the same. At a later stage, he could not take a plea that the order being erroneous, no consequence would follow for its non-compliance”, the Bench stated.
In his letterswhich were written as a response to letters from the Bank, he raised the issue regarding non-payment of his subsistence allowance but did not mention his address. He stated that he could not be compelled to report for duty at the Branch Office, Bhagwantnagar, Unnao. This communication from the workman clearly established the fact that he was in the know of the letters issued by the Bank to him regarding his voluntary absence from duty for over 90 days. He was directed to report for duty to the Managerbut instead of submitting his joining, he continued corresponding with the Bank.
His argument that being on suspension, he could not have been treated to have been voluntarily retired as per the deeming provision was rejected by the Bench as during his suspension also, the relationship of master and servant didn’t come to an end. “All the rules and regulations governing the post continue to apply. Merely because the Bank had stopped paying subsistence allowance to the workman does not mean that the workman was no more an employee of the Bank.The action was taken by the Bank only to ensure that somehow or the other, the workman joined his duty”, the Bench added.
As per the Bench, the idea of the workman seemed to be to lay a claim on all his wages. Initially, to get subsistence allowance without working and then claim reinstatement and back wages. Referring to Clause XVI in the Bipartite Agreement, the Bench opined that the workman could have been treated to have been voluntarily retired immediately upon expiry of 90 days from 28.09.1983 as he had failed to join duty.
Letter dated 05.01.1984 issued by the Bank was duly acknowledged by him in his communication but still he failed to join duty and continued writing letters. Despite this fact, the Bank was magnanimous enough to have issued a final notice to the workman on 05.10.1984, granting him 30 days’ time to report for duty. This was also acknowledged by the workman. But for reasons best known to him he failed to comply with the same.
Thus, without finding any error in the earlier orders, the Bench dismissed the appeal.
Read Order: SAUMYA CHAURASIA v. DIRECTORATE OF ENFORCEMENT
Tulip Kanth
New Delhi, December 18, 2023: While rejecting the bail plea of former Chhattisgarh CM’s Deputy Secretary, Saumya Chaurasia, the Supreme Court has observed that educated and well-placed women in the society engage themselves in commercial ventures and advertently or inadvertently engage themselves in illegal activities.
The factual background of this case revealed that a search and seizure action under Section 132 of the Income Tax Act was carried out against the appellant, and FIR was registered against her for the offences under Sections 186, 204, 120-B, 384 and 353 of the Indian Penal Code, 1860. The Directorate of Enforcement registered an ECIR on the basis of the said FIR.
The appellant- Saumya Chaurasia, who happened to be the Deputy Secretary, in the office of the Chief Minister, Chhattisgarh, came to be arrested under the said ECIR. She was remanded to ED custody till 06.12.2022, which came to be extended till 10.12.2022 by the Special Court. The appellant filed an application under Section 437 of Cr.P.C. read with Sections 45 & 65 of the PMLA but the same was rejected.
ED had filed a Prosecution Complaint against another accused- Suryakant Tiwari for the offence under Section 3 punishable under Section 4 of the PMLA. A supplementary complaint was also filed naming the appellant amongst others as the accused. The appellant filed a Bail Application before the High Court of Chhattisgarh. However, the same was rejected. Thus, the appellant approached the Top Court by filing this appeal under Article 136 of the Constitution of India.
The Division Bench, comprising of Justice Aniruddha Bose and Justice Bela M. Trivedi, was of the view that the appellant, an officer of the Chhattisgarh State Civil Services who was posted as the Deputy Secretary in the Office of Chief Minister of Chhattisgarh and was working as an OSD to CM, enjoyed unprecedented power & control because of her direct access to higher political powers.
It was highlighted by the Top Court that the information shared by the Income Tax Department and analysis of documents and digital devices seized during the searches conducted u/s 17 of PMLA, 2002 revealed that the appellant was one of the key persons in creation of the syndicate headed by Shri Suryakant Tiwari.
“An extortion racket of this magnitude & nature was possible only when multiple State agencies fell in place and everyone supported the illegal acts of Suryakant Tiwari. This was made possible by Saumya Chaurasia so that pliant officers were posted in the coal mining districts who would listen to Suryakant Tiwari”, the Bench opined.
According to the Bench, the fact that Suryakant Tiwari had personal & close official dealings with her and was carrying her instructions to the Officers, made it possible for Suryakant Tiwari to also command senior District level officers. This illegal authority was essential for him to run his empire of illegal extortion from Coal & Iron Pellet transportation.
“All this was made possible by the fact that he was in the good books of Mrs. Saumya Chaurasia. Therefore, she has directly indulged in the offence of Money Laundering as defined under section 3 of the PMLA, 2002 being actually involved in the process of Money Laundering by way of possession, concealment, use, acquisition and projecting the Proceeds of Crime as untainted”, the Bench observed.
The Bench also considered the issue whether the appellant being a woman should be granted the benefit of the first proviso to Section 45 of the PMLA. The proviso to Section 45 of the Prevention of Money Laundering Act, 2002 confers a discretion on the Court to grant bail where the accused is a woman.
It was highlighted by the Bench that there was sufficient evidence collected by the respondent Enforcement Directorate to prima facie come to the conclusion that the appellant who was Deputy Secretary and OSD in the Office of the Chief Minister, was actively involved in the offence of Money Laundering as defined in Section 3 of the PMLA.
“As against that there is nothing on record to satisfy the conscience of the Court that the appellant is not guilty of the said offence and the special benefit as contemplated in the proviso to Section 45 should be granted to the appellant who is a lady”, the Bench remarked.
The Bench also did not find any substance in the submission of the Senior Counsel for the Appellant that the scheduled offences i.e. Section 384 and 120 B having been dropped from the chargesheet submitted against the accused Suryakant Tiwari and the ACJM Bengaluru having taken cognizance for the offence punishable under Section 204 and 353 IPC only, which are not the scheduled offences under the PMLA Act, no scheduled offence survived at the time of passing of the impugned order.
The Bench clarified that there was no discharge, acquittal or quashing of the criminal case by the court of competent jurisdiction against Suryakant Tiwari in the predicate/ scheduled offence.
The Bench found that there was an attempt made by and on behalf of the Appellant to misrepresent the facts by making incorrect statements in the appeal for assailing the impugned order passed by the High Court. Therefore, the Top Court dismissed the appeal with cost of Rs 1 Lakh.
Read Order: SAYUNKTA SANGARSH SAMITI & ANR v. THE STATE OF MAHARASHTRA & ORS
Tulip Kanth
New Delhi, December 18, 2023: The Supreme Court has dismissed an appeal filed by a separate minority society of slum dwellers called Sayunkta Sangharsh Samiti whereby the members challenged the Bombay High Court’s order directing the Maharashtra Slum Rehabilitation Authority to allot flats by way of lottery.
The Division Bench, comprising of Justice Aniruddha Bose and Justice Sudhanshu Dhulia, opined that the allotment by draw of lots is not an arbitrary order of SRA but this is the settled procedure, long continuing and in terms of the law. The Bench also referred to the Circular No. 162 dated 23.10.2015 which says that allotment will be done by draw of lots for all the hutment dwellers.
In the said case, the SRA had proposed a Slum Rehabilitation Scheme for the slum at CS No. 1(pt) of Lower Parel Division at J.R. Boricha Marg. The project was for construction of a total built up area of 75854.716 sq. m., where 1765 slum dwellers were to be rehabilitated. The construction of all the above towers has been completed as of now, and 473 slum dwellers have already been given possession of their tenements in Towers A, B and C.
However, the allotment for the remaining towers had been stalled due to the interference caused by a minority section of the slum dwellers. These slum dwellers formed a separate minority society for themselves, called Sayunkta Sangharsh Samiti- appellant no. 1.
The Developer filed a civil suit seeking injunction against the defendant nos.1 to 15 who were inhabitants of the slum, and as per the scheme had an entitlement for a flat each in the residential complex which was to be constructed by the developer i.e., the plaintiff, but these defendants were not letting the Developer make construction of the nine towers which had to be constructed within a stipulated time. During the pendency of the suit an MoU was signed between the plaintiff and appellant-society. A purely private arrangement was thus arrived at between the developer and the minority members of the hutment dwellers whereby the society undertook to enforce self-development rehabilitation with the cooperation of the developer.
Ultimately the SRA decided to allot 712 flats on Tower D, E & F, on the basis of lottery, but then by an order, the SRA stayed this order. This order was challenged by the appellant before the Bombay High Court in a writ petition which was disposed of vide order directing SRA to take a call on allotments of these flats in Tower D, E & F, by way of lottery. The SRA in compliance with the said order passed an order deciding to allot the flats in Tower D, E & F.
Aggrieved by this order of SRA, the appellants filed another Writ Petition. The main ground taken by the appellant was that SRA had to conduct allotment as per the terms of the MoU by giving preferential allotment to the members of the appellant society in Towers D, E and F. The Bombay High Court dismissed the Writ Petition.
In this matter, the procedure for allotment was at the core of the dispute.
As per the Bench, the Civil Suit was at the behest of the Developer against individual society members and the SRA was not made a party to these proceedings. “The seemingly ingenious, yet unfair and even specious method adopted by the Developer in league with the Appellants to bypass the statutory procedure must be deprecated”, the Bench said while also adding, “Admittedly, there is no provision in law by which the settlement terms entered into by two private players can be accepted and followed in violation of the statutory procedure given in Circular No.162 dated 23.10.2015.
“Private agreements cannot be enforced in Slum Rehabilitation Schemes as against the statutory mandate of the SRA”, the Bench said while further clarifying that under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, SRA is the final authority for implementing a slum rehabilitation scheme.
“…SRA has to act in terms of its own policies and circulars without allowing private or contractual interests to prevail over public policy especially a policy which is welfare based”, the Bench said.
Pointing out that the Circular No. 162 was issued on 23.10.2015, the Bench observed that the appellant society though had filed two Writ Petitions subsequently in connection with the procedure for allotment undertaken by the SRA, yet it didn’t challenge the validity of Circular No. 162, instead it sought to impose its private contractual rights over and above the statutory provisions. This mechanism, according to the Bench, was not permissible.
In view of such findings, the Bench dismissed the Appeal and upheld the order passed by the High Court of Bombay. “The order of status quo on allotment of flats given by this Court on 24.01.2022 is also vacated. The Slum Rehabilitation Authority is directed to carry out the allotment of flats in accordance with law. All pending interim applications are disposed of in terms of the directions contained in the present judgement”, the Bench ordered.
Noticing the fact that the Developer had evidently taken a surreptitious route bypassing the statutory procedure, the Bench remarked that the SRA would be failing in its duty if it does not seek explanation from the Developer in this regard and takes suitable action.
Read Order: SUSHMA SHIVKUMAR DAGA & ANR v. MADHURKUMAR RAMKRISHNAJI BAJAJ & ORS
Tulip Kanth
New Delhi, December 18, 2023: While observing that the Arbitral Tribunal is competent to decide on its own competence, the Supreme Court has dismissed a challenge against a Trial Court’s order whereby the matter pertaining to a conveyance deed was referred to arbitration.
The factual scenario of this case was that the M/s Emerald Acres Private Limited (respondent no. 2) was incorporated by Late Mr. Shivkumar Daga and his wife, Mrs. Sushma Shivkumar Daga (appellant no.1) to carry on the business of real-estate development. Subsequently, two Tripartite Agreements were signed between Shivkumar Daga (SD), Madhurkumar Ramakrishnaji Bajaj & Ors. (MB) and M/s. Emerald Acres Private Limited (EAPL) to develop, trade, and deal with the property and also to acquire such further properties as may be mutually agreed between the parties. Both the Tripartite Agreements dated 31.03.2007 and 25.07.2008 contained an arbitration clause.
After the death of Shivkumar Daga, the appellants i.e., SD’s wife and his son then filed a suit seeking, inter alia, a declaration that the Deed of Conveyance dated 17.12.2019 be declared null and void, and that the Development Agreements entered into pursuant to the two Tripartite Agreements be declared validly terminated.
The Conveyance Deed dated 17.12.2019 sought to be declared void and the five Development Agreements dated 17.09.2007, 20.11.2007, 30.11.2007, 03.12.2007 and 27.02.2008 sought to be declared as validly terminated by the appellants, all had their source in the two Tripartite Agreements.
The respondents/defendants moved an application under Section 8 of the Arbitration & Conciliation Act, for referring the matter to arbitration by relying upon the arbitral clause in the two agreements dated 31.03.2007 and 25.07.2008.
It was contended that the aforesaid agreements formed the basis of the Conveyance Deed and the Development Agreements which were the subject matter of the suit. The Trial Court allowed the application of the defendant and referred the matter for arbitration. This order was challenged in Writ Petition by the appellants / plaintiffs before the Bombay High Court, which was dismissed. Aggrieved by these two orders, the appellants / plaintiffs approached the Top Court.
The core question before the Division Bench of Justice Aniruddha Bose & Justice Sudhanshu Dhulia was whether the Trial Court and the High Court had rightly referred the matter to arbitration or the dispute was of such a nature that it was not liable to be referred to arbitration, as there was no arbitration clause in the Conveyance Deed dated 17.12.2019 or if there was, yet the matter was not arbitrable.
“All jurisdictional issues including the existence and the validity of an arbitration clause can be gone into by the Arbitral Tribunal”, the Bench said while further addin g, “The Arbitral Tribunal is competent to decide on its own competence.”
Noting that after the 2015 amendment, primarily the court only has to see whether a valid arbitration agreement exists, the Bench also referred to Booz Allen and Hamilton Inc. v. SBI Home Finance Limited and Other, in order to clarify that the clear non-arbitrability of cases, such as where a party to the agreement is statutorily protected, such as a consumer “has also to be seen by the Court”. Short of the narrow field stated above, the scope of judicial scrutiny at the stage of Section 11 (6) or Section 8 is extremely limited, the Bench further added.
Another objection pertained to the fact that the suit filed by the appellants was for cancellation of a document relating to immovable property i.e. land and it therefore amounted to an action in rem and hence arbitration was not the remedy. Relying upon Deccan Paper Mills v. Regency Mahavir Properties, the Bench observed that an elaborate analysis on this issue was done therein and it was held that whether it is a suit for cancellation of a deed or a declaration of rights rising from the deed, it would only be an action in personam and not in rem
On the issue of fraud, the Bench opined that the plea of fraud raised by the appellants in their objection to the Section 8 application had never been substantiated and except for making a bald allegation of fraud there was nothing else.
Reiterating that a plea of fraud must be serious in nature in order to oust the jurisdiction of an Arbitrator, the Bench also referred to Rashid Raza v. Sadaf Akhtar, wherein the Top Court has mentioned two conditions which must be satisfied before the Court can refuse to refer the matter to the Arbitrator. The first is whether the plea permeates the entire contract and above all, the arbitration agreement, rendering it void or secondly, whether the allegation of fraud touches upon the internal affairs of the parties inter se having no implication in the public domain
Noting that in the present case, there was absolutely no ambiguity that both the Tripartite Agreements contained an arbitration clause, which formed the basis of all subsequent agreements including the agreements sought to be declared as validly terminated by the appellants and the conveyance deed sought to be declared as null and void, the Bench came to the conclusion that both the trial court as well as the High Court had given a correct finding on facts as well as on law.
Thus, finding no scope for interference in the matter, the Bench dismissed the appeal.
Read Order: Aditya Raj V. State & Another
LE Correspondent
New Delhi, December 18, 2023: The Delhi High Court has granted bail to an accused in a case involving sexual harassment, stalking, and criminal intimidation charges. The Court cited contradictions in the statements of the prosecutrix and concerns about the potential misuse of POCSO cases as mitigating factors in its decision.
The factual background of the case was that the present FIR was registered, based on a complaint made by the complainant/prosecutrix. The complaint alleged that the petitioner, a senior in the complainant/prosecutrix's school, became over possessive and insecure, which affected her studies. The petitioner's behaviour led the complainant/prosecutrix to refuse the relationship. Subsequently, the petitioner engaged in various threatening behaviours, including sending a suicide note, attempting suicide, threatening the complainant/prosecutrix's father, hacking her social media account, and sending troublesome and obscene messages and pictures. The complainant/prosecutrix also alleged that the petitioner established sexual intercourse with her after making her drink an intoxicating drink despite her refusal and without her consent. The charge sheet was filed for offenses punishable under Sections 354C/354D/506/34 IPC, Section 6 of the Protection of Children from Sexual Offences Act, 2012, and Section 67/67(A)/66E of the Information Technology Act, 2000. The petitioner was arrested and subsequently filed an application for grant of regular bail, which was dismissed by the Additional Sessions Judge.
The petitioner had requested bail on the grounds of being a young individual with no prior criminal record, actively preparing for Civil Services, having strong ties within the community, and hailing from a family of government servants. It was contended that the petitioner and the complainant/prosecutrix developed a relationship only after the complainant/prosecutrix turned 18, and that she had even expressed her desire to marry the petitioner. However, due to the petitioner's focus on Civil Services preparation, he requested the complainant/prosecutrix to wait. Subsequently, the complainant/prosecutrix and her family allegedly began pressuring the petitioner to marry her and threatened to implicate him in a false case if he refused. The petitioner claimed that the present FIR was based on false, frivolous, and baseless allegations and that the complainant/prosecutrix provided contradictory statements.
The single-judge bench, presided over by Justice Sudhir Kumar Jain referred to a previous case, Praduman v. The State (Govt. of NCT, Delhi) [LQ/DelHC/2021/2663], wherein bail was granted to the accused on the grounds of contradictions in the statements of the prosecutrix. In the said case, the court had highlighted the legal grey area surrounding consensual sex with a minor, acknowledging that a minor's consent cannot be considered valid in the eyes of the law. It pointed out the unfortunate practice of filing POCSO cases due to objections from the girl's family regarding her friendship and romantic involvement with a young boy, leading to the misapplication and misuse of the law. Considering the age of the petitioner and the prosecutrix, photographic evidence indicating a relationship between the two, and the discrepancies in the various statements provided, the court concluded that these were mitigating factors favouring the grant of bail to the accused.
In the case at hand, the bench noted discrepancies in the complainant/prosecutrix's statements and actions, where she took different stands in the complaint, the statement under Section 164 Cr.P.C., and during her medical examination. Additionally, she refused to undergo an internal medical examination.
Considering the petitioner's deep roots in society, the completion of the investigation, and the mitigating factors surrounding the case, the Court granted bail to the petitioner, who had been in judicial custody since 13th November 2022.
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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