Read Order: Kiran Jyot Maini V. Anish Pramod Patel
Chahat Varma
New Delhi, December 7, 2023: The Delhi High Court has recently granted partial relief to a wife in a domestic violence case and directed her husband to pay 20% of the arrears of maintenance.
The brief issue involved in the present case was that the marriage between the petitioner-wife and respondent-husband took place on 30.04.2015. An FIR was filed by the petitioner against the respondent under Sections 498A/323/504 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act. The respondent filed a writ petition for stay on arrest and quashing of the FIR, which was initially referred to mediation. Thereafter, the High Court dismissed the writ petition. Subsequently, the petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act), seeking interim maintenance. The Judicial Magistrate ordered the respondent to pay Rs. 35,000 per month, later modified to Rs. 45,000 per month to the petitioner and Rs. 55,000 per month to their daughter. The respondent challenged these orders through applications under Section 482 of Cr.P.C. before the High Court. The matter was referred to mediation but failed. The petitioner then filed a criminal application under Section 31(1) of the PWDV Act for non-compliance of the maintenance order. Thereafter, the respondent sought the transfer of all criminal cases and complaints filed by the petitioner-wife to the Courts in Delhi. The Supreme Court allowed this request, transferring the cases to Tis Hazari Court, Delhi and the Allahabad High Court dismissed the applications filed by the respondent under Section 482 Cr.P.C. as infructuous.
In the present case, the petitioner, through prayer clause (a), had sought directions for the respondent to pay the maintenance amount as per the order dated 01.02.2019, encompassing the arrears of maintenance. Additionally, in prayer clause (b), the petitioner had requested the attachment of the respondent's bank account. Lastly, in prayer clause (c), she sought an alternative relief, urging the Trial Court to decide the issue regarding the non-payment of interim maintenance, without any delay.
The single-judge bench, presided over by Justice Swarana Kanta Sharma, observed that regarding the petitioner's prayer for the attachment of the respondent's bank accounts for failing to pay interim maintenance, the petitioner had already filed an application under Section 20(6) of PWDV Act. This application was pending adjudication before the Metropolitan Magistrate, Mahila Court, Central District, Tis Hazari Court. Thus, the bench found no reason to issue directions at this stage, as the appropriate remedy under Section 20(6) of the PWDV Act had already been pursued by the petitioner.
Additionally, concerning the petitioner's request for directing the respondent to clear the entire arrears of maintenance, the bench noted that the petitioner had already filed an Execution Petition before the Trial Court in Delhi.
However, the bench noted that in a connected matter, where the respondent contested the orders granting interim maintenance to the petitioner, the Court, in a judgment dated 01.12.2023, remanded the matter to the Trial Court in Delhi. The Court directed the Trial Court to decide afresh the issue of interim maintenance payable to the petitioner and her daughter within a period of 3 months.
Therefore, the bench held that the prayers in the present petition seeking directions to the respondent to pay the amount of interim maintenance awarded vide order dated 01.02.2019 and/or directing the Trial Court to expeditiously dispose of the pending cases could not be allowed at that stage, since the Trial Court had been directed to decide the issue of interim maintenance afresh. However, the bench noted that it was clarified in the connected matter, that until the Trial Court decides the aforementioned issue anew, the respondent, i.e., the husband, shall continue to pay Rs. 45,000 per month to the petitioner-wife.
Considering the overall facts and circumstances of the case and the amount of arrears of maintenance calculated as per the order of the Sessions Court, Gautam Budh Nagar, which was passed in the year 2019, the Court deemed it appropriate to direct the respondent to pay 20% of the amount of arrears of maintenance, i.e., 20% of Rs. 65,00,000 (approximately) which amounted to Rs. 13,00,000, within a period of 20 days from the date of order.
The bench reiterated that if the Trial Court awarded interim maintenance that was less than the amount of interim maintenance already decided in this case, the excess amount paid would be adjusted in the future amount of maintenance/interim maintenance to be paid by the respondent.
The Court also issued a stay on the adjudication of Execution Petition and the application filed under Section 20(6) of the PWDV Act for a period of three months until the decision of the Trial Court on the issue of interim maintenance payable under Section 20 read with Section 23 of the PWDV Act. The proceedings after this period will be contingent upon the amount of interim maintenance determined by the Trial Court.
With these directions, the present petition stood disposed of.
Read Order: Ved Pal & Anr. V. State of Haryana
Chahat Varma
New Delhi, December 7, 2023: In a significant ruling, the Supreme Court has acquitted two men accused of raping a minor girl. The Court observed that the prosecution had failed to prove the case beyond a reasonable doubt and granted the benefit of doubt to the accused.
The present appeal had challenged the judgment and order dated 15th July 2019, in which the Division Bench of the High Court of Punjab and Haryana had affirmed the convictions, whereby the appellants, were convicted for offenses punishable under Section 376(2)(g), 342, read with Section 34 of the Indian Penal Code (IPC).
In brief, the prosecution's case involved an incident that occurred on August 6, 2022. The victim-P.W.1, a 9th-grade student, was sleeping on the roof of her ground floor house when the accused, Suresh and Ved Pal, entered her house and forced her into their ‘baithak’. The accused then committed rape on the victim, following which she raised an alarm, alerting her mother and cousin. Thereafter, the victim's parents and others accompanied her to the police post, where her statement was recorded, and she underwent medical examination. The case was investigated, and the accused were charged and tried. The Trial Court convicted the accused, and the guilt was confirmed by the High Court in an appeal.
The defence counsel representing the appellants argued that both the Trial Court and the High Court made significant errors while passing the conviction order. He pointed out material discrepancies in the testimonies of the victim and the victim's mother. The counsel additionally highlighted that even the medical experts and FSL report's evidence failed to support the prosecution's claims.
The division bench of Justice B.R. Gavai and Justice Pamidighantam Sri Narasimha observed that there was no doubt that the conviction of the appellants under Section 376 of the IPC could be recorded based on the sole testimony of the prosecutrix, provided the evidence was found to be trustworthy, cogent, and reliable.
However, in the present case, the bench observed that in the evidence of the victim and her mother, it came on record that there were three houses between the house of the victim and the house of the accused Suresh, where the alleged incident took place. It was clear that, according to the prosecution, the victim was dragged from her house to the house of accused Suresh. The bench found it difficult to believe that, at that time, the victim did not make any cries or hues.
The bench also took note of the medical evidence, where the doctor specified that no injuries were found on the person of the victim. While the doctor opined that the possibility of sexual intercourse could not be ruled out, it was also stated that the possibility of intercourse prior to the medico-legal examination could not be ruled out. Additionally, the FSL report confirmed that no semen was found on the clothes of the victim or on the vaginal swab.
The bench further observed that the accused asserted a specific defence, claiming a civil dispute between the grandfather of the appellant(s) and the grandfather of the victim. It was noted that while the victim initially denied this suggestion, at another instance, she stated that she was not aware of the dispute. Additionally, although the victim admitted to addressing a letter to accused Suresh, she later stated that neither she had visited Suresh's house nor had Suresh visited her house. Given that both the victim and the appellant(s) resided within close proximity, within three houses, the bench found this version difficult to believe.
Thus, in the totality of the circumstances, the Court found that the prosecution had failed to prove the case beyond a reasonable doubt and the accused were held entitled to the benefit of doubt.
Consequently, the impugned judgment and order dated 15th July, 2019 passed by the High Court, as well as the orders passed by the Additional District Judge, were quashed and set aside. The appeal was allowed and the appellants were directed to be set at liberty forthwith if their detention was not required in any other case.
Read Order: Bimalendu Ghosh Dastidar V. State & Ors
Chahat Varma
New Delhi, December 7, 2023: The Delhi High Court has set aside an order passed by the Additional Sessions Judge (ASJ) staying the proceedings in a criminal case pending the outcome of probate proceedings. The Court held that the ASJ lacked jurisdiction to pass such an order.
The petitioner had filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), challenging the judgment, passed by the ASJ. This judgment had stayed the proceedings pending in the Court of the Chief Metropolitan Magistrate, arising out of FIR registered under Sections 420/467/468/471/120B of the Indian Penal Code, 1860 (IPC). The stay was decreed until the conclusion of proceedings in probate case, pending before the Court of the Additional District Judge.
The counsel for the petitioner had argued that the ASJ had committed a grave error and illegality by exceeding his jurisdiction and superseding the order passed by a Single Judge of the Court. The Single Judge had previously recorded that the appropriate course for the petitioner would be to expedite the probate proceedings, rather than to stall or postpone the criminal proceedings.
The single-judge bench, presided over by Justice Amit Sharma, noted that the impugned judgment was passed in revision petitions challenging the order of framing of charges by the Metropolitan Magistrate. The ASJ was exercising the powers under Section 399 read with Section 401 of the Cr.P.C. while passing the impugned judgment. It was observed that the ASJ, in exercising such power, was examining the correctness, legality, or propriety of the order. The impugned judgment proceeded to exercise power under Section 309 of the Cr.P.C. without examining the order on charges.
The bench observed that Section 389 of the Cr.P.C. outlines the provision for the suspension of a sentence pending appeal and the release of the appellant on bail. Additionally, Sections 390 and 391 of the Cr.P.C. deal with the arrest of the accused in an appeal from acquittal and grant the appellate court the power to take further evidence, respectively. The bench noted that upon reviewing these provisions, it became evident that the ASJ, while examining the petitions challenging the charge order, lacked jurisdiction to issue an order under Section 309 of the Cr.P.C.
The bench referred to the Single Judge's order dated 17.03.2010, which conclusively settled the matter between the parties concerning the postponement of criminal proceedings pending the outcome of probate proceedings. This order, made after a thorough examination of Section 309 of the Cr.P.C., remained unchallenged and had thus achieved finality.
Further, the bench noted that the ASJ, in the impugned judgment, had made an observation regarding the previous order, which had stayed the pronouncement of judgment in the case upon filing an application under Section 309 of the Cr.P.C. The ASJ noted that a fresh conclusion was necessary after the order to frame charges. However, the bench found this observation untenable, stating that there was no new application under Section 309 filed after the framing of charges that warranted consideration. Additionally, the Court clarified that the power to deal with such matters lies with the Trial Court, not the Sessions Court in revisional jurisdiction. The issue of exercising power under Section 309 was not challenged before the ASJ in the petitions filed by respondents no. 2 to 4.
Thus, in light of the aforementioned analysis, the Court deemed the impugned judgment legally unsustainable and, as a result, decided to set it aside.
Given that the revision petitions were filed specifically to challenge the order framing charges by the Metropolitan Magistrate, and this particular issue was not addressed in the impugned judgment, the Court remanded the matter back to the ASJ for a proper determination of these petitions in accordance with the law.
Read Order: Sabir Hussain (Dead) Thr. Lrs. and Ors V. Syed Mohammad Hassan (Dead) Thr. Lrs. and Anr
Chahat Varma
New Delhi, December 6, 2023: In a recent decision, the Supreme Court has set aside the judgment of the Madhya Pradesh High Court in a property dispute case and remitted the matter back to the High Court for a fresh consideration. The Court found that the High Court had failed to adequately consider all the evidence presented by the parties before reversing the judgment of the Trial Court.
The factual background of the case was that one Kallu Bhai had purchased the property in dispute from Amanat Ali in the name of Mohd. Jafar through a registered sale deed dated 03.04.1913, when Mohd. Jafar was three years old. Kallu Bhai, who had no children from his first wife (who pre-deceased him), died on 25.10.1952. Subsequently, on 27.08.1970, Bashirun Nisha, Kallu Bhai's second wife, also passed away. The defendant-respondent, Syed Mohd. Hasan, was 7-8 years old when his mother, Bashirun Nisha, died and was brought to live with Late Kallu Bhai. Late Mohd. Jafar was not in good health and on 05.11.1975, he entered into an agreement to sell the property in favour of Raza Hussain, which had been purchased by Late Kallu Bhai in his name in 1913. The sale deed was registered on 20.11.1975 in favour of Raza Hussain. Subsequently, on 17.01.1977, Raza Hussain filed a suit against Syed Mohd. Hasan, seeking restoration of possession of the property in dispute and claiming damages from 26.10.1976 onwards.
The Trial Court had decreed the suit. However, the Madhya Pradesh High Court, in the first appeal filed by Syed Mohd. Hasan, reversed the judgment and decree of the Trial Court.
The counsel for the appellants submitted that the well-reasoned judgment of the Trial Court had been reversed by the High Court in the first appeal without discussing the entire evidence on record, which it was duty-bound to do. Additionally, it was pointed out that in the written statement filed by the respondent-defendant, no plea of adverse possession was taken. It was argued that the agreement to sell and the sale deed were registered documents, and the genuineness thereof could not be doubted.
On the other hand, the counsel for the respondent-defendant submitted that the agreement to sell and the sale deed were registered within a period of fifteen days by Late Mohd. Jafar, despite his poor health at the time. It was asserted that Late Mohd. Jafar was never in possession of the property in question as it always remained with the predecessor-in-interest of the respondent-defendant, who had been living with Late Kallu Bhai after the death of his mother. Regarding the plea of adverse possession, the counsel argued that there was a specific plea raised as an additional plea in the written statement, to which no reply was given by the appellants. It was further contended that the respondent-defendant was never in possession of the property as a licensee, but rather in his own right, and that his possession was hostile to the knowledge of the owners who had sold the property. Consequently, it was suggested that as the owners had lost title in the property, the same could not have been passed on to the predecessor-in-interest of the appellants.
The division bench, comprising of Justice Vikram Nath and Justice Rajesh Bindal, took note of the opinion provided by the Handwriting Expert who examined three signatures on different documents, namely, sale deed, photocopy of sale deed, and agreement to purchase. The expert had concluded that the signatures on these documents were written by three different persons.
The bench also acknowledged the statement of Dr. Badrul Hasan Naqvi, who appeared as PW6. He was one of the witnesses of the sale deed dated 20.11.1975. According to his testimony, when the sale deed was registered, Mohd. Jafar was admitted to the hospital, and the Registrar came to the hospital to register the sale deed.
The bench pointed out that the High Court had viewed the sale deed with suspicion primarily due to differences in the signatures of the vendor on the agreement to sell and the sale deed. However, it failed to consider the evidence of the witness to the sale deed, who was present in the hospital when the Registrar registered the document.
The bench emphasized that the First Appellate Court is obligated to record comprehensive findings addressing all legal and factual issues and the evidence presented by the parties. The judgment of the First Appellate Court should demonstrate a conscious application of mind, and the findings should be substantiated by reasons covering all issues and contentions.
In the present case, the bench concluded that the High Court, acting as the First Appellate Court, failed to adequately reference and re-evaluate the evidence presented by the parties on various issues. Instead, the High Court had reversed the judgment and decree of the Trial Court without discussing the entire evidence in detail, which, according to the bench, was essential in such circumstances.
With the aforesaid observations, the bench decided to set aside the challenged judgment of the High Court. The case was remitted back to the High Court for a fresh consideration with a request for priority due to the matter being quite old.
Read Order: Virender Dhaka V. State Though Sho Fatehpur Beri
Chahat Varma
New Delhi, December 6, 2023: In a recent decision, the Delhi High Court has dismissed an anticipatory bail plea filed by an accused in a property fraud case, noting that the accused misled the investigating officer and the court by initially denying the execution of the agreement to sell and signing relevant registers. The Court found that during the investigation, it became evident that the applicant had received an amount, apparently as consideration for the sale, but had denied executing any agreement or signing any register.
In the said case, the present application was filed on behalf of accused/applicant, seeking grant of anticipatory bail in case registered for the offences punishable under Sections 420/406 of the Indian Penal Code, 1860 (IPC).
The factual matrix of the case was that the complainant, had lodged a complaint alleging that he and the accused had entered into an agreement for the sale of a property in New Delhi. The agreement stipulated the sale of a property for a total consideration of Rs.12,50,000. The complainant had made an advance payment of Rs.7,30,000, and the remaining Rs.5,20,000 was to be paid after the completion of the first floor. The accused, however, failed to provide possession and demanded the balance payment. The complaint alleged that despite fulfilling the full payment as per the agreement, the accused did not provide possession of the property for eight years. The complaint asserted that the accused had induced the complainant to make the purchase, causing wrongful gain to the accused and wrongful loss to the complainant. The accused was also accused of making threats to the complainant.
The defence argued that the accused was falsely implicated, highlighting an unexplained delay in the complaint and asserting that the case was an abuse of legal process. The defence contended that the essential elements of the offenses were not established and no custodial interrogation was needed.
On the other hand, the prosecution opposed the bail, citing a notarized agreement to sell and emphasized the accused's lack of cooperation during the investigation. The prosecution asserted the need for custodial interrogation to obtain specimen signatures and pointed out financial transactions between the complainant and the accused.
The single-judge bench of Justice Swarana Kanta Sharma observed that the applicant, seeking anticipatory bail, had initially failed to cooperate with the investigation and joined it only after receiving interim protection from the Sessions Court. The accused also denied entering into any agreement to sell with the complainant and signing relevant documents, claiming the property in question as his residential house. However, the investigating officer verified the agreement to sell, finding it genuine. The notary's statement and records supported the authenticity of the agreement. Additionally, it was revealed that the complainant had transferred Rs. 3.8 lakhs to the accused's bank account, which the accused admitted receiving without providing a clear explanation for the purpose.
Thus, the bench opined that the accused had misled the investigating officer and the court. The bench further observed that the accused offered to return the money during the investigation, but the purpose for receiving the money remained unexplained.
Upon considering the overall facts and the conduct of the accused/applicant, the Court concluded that custodial interrogation was necessary to obtain his signatures and confront him with registers and documents. Therefore, the Court held that no grounds for granting anticipatory bail were established.
Accordingly, the present bail application was dismissed.
Read Order: Bani Amrit Kaur V. State of Haryana and Others
Chahat Varma
New Delhi, December 6, 2023: In a recent ruling, the Supreme Court has dismissed an appeal challenging a land sale transaction that occurred 16 years earlier. The Court found that the appellant had failed to provide any evidence to support her claim and that her attempt to challenge the sale was motivated by greed.
Briefly stated, the predecessor-in-interest of the appellant, Sukhjit Singh (deceased), had initially filed a suit, challenging the validity of the first sale deed dated 28.09.1956, which had been registered by his father, Gurinder Singh (now deceased), for the land measuring 166 kanals and 15 marlas in favour of Harjit Singh. Subsequently, Harjit Singh sold a portion of this land to the State of Punjab (now falling in the State of Haryana) through a second registered sale deed dated 01.03.1958. The predecessor-in-interest of the appellant had contested the first sale deed, alleging that his father had sold the land when he was a minor without obtaining the required permission from the Court as per Section 8 of the Hindu Minority and Guardianship Act, 1956, and that the sale was not for the need and welfare of the minor.
The Trial Court had decreed the suit in favour of the predecessor-in-interest of the appellant. The First Appellate Court, had upheld the judgment and decree of the Trial Court. However, the Punjab and Haryana High Court, in second appeal, had reversed the judgments and decrees of the lower courts.
The division bench of Justice Vikram Nath and Justice Rajesh Bindal found the suit to be entirely misconceived. It was noted that the appellant had failed to provide any document showing the right in the property at the time when the first sale deed was registered. The bench also highlighted the absence of pleading or documents to demonstrate that the property in question was ever transferred in the appellant's name in a family partition, along with the corresponding shares of other daughters and sons of late Gurinder Singh.
In light of this, the bench concluded that the litigation, where a sale deed registered in 1956 was sought to be challenged after 16 years by the appellant, seemed to be an attempt to extract more money from the State, which the State had purchased from the first purchaser.
The bench also noted that, in any case, the certificate presented by the appellant, indicating his enrolment in Doon School, Dehradun, strongly suggested that the property might have been sold for the welfare and educational needs of the child. It was emphasized that in cases where a plaintiff sought to challenge a sale transaction that occurred 16 years earlier, the burden of proof was substantial.
Further, it was noted that during the hearing, the State had offered an additional amount of Rs. 1,00,00,000 to the appellant, which was not acceptable to her as she claimed that the present value of the property may be more than Rs. 15,00,00,000, leading to the court's remark that she appeared to be greedy.
Thus, the Court found no grounds for intervention in the appeal and subsequently dismissed it.
Read Order: Government of NCT of Delhi v. Union of India & Ors
Chahat Varma
New Delhi, December 6, 2023: In a significant decision, the Supreme Court recently upheld the Union Government's authority to extend the tenure of the Chief Secretary of the Government of the National Capital Territory of Delhi (GNCTD).
In the case at hand, the incumbent Chief Secretary of the GNCTD was due to demit office on superannuation on 30 November 2023. The petitioner, GNCTD, had approached the court on the ground that they had reason to believe that the Union of India would unilaterally appoint the Chief Secretary in the exercise of the power under Sections 41 read with 45A(d) read with 45H (2) of the Government of National Capital Territory of Delhi Act 1991 as amended by the Government of National Capital Territory of Delhi (Amendment) Act 2023.
Thus, the petitioner, initiated proceedings under Article 32 of the Constitution seeking: a direction restraining respondents from making a unilateral appointment of the Chief Secretary of the GNCTD or extending the tenure of the incumbent Chief Secretary; and an order appointing one of the five senior most officers serving in the AGMUT cadre with the requisite experience of having served in the GNCTD.
The Solicitor General informed the court that the Union Government intends to extend the term of the current Chief Secretary by six months.
A three-judge bench, presided over by Chief Justice Dhananjaya Y Chandrachud, along with Justices J B Pardiwala and Manoj Misra, referred to its previous ruling in the 2023 Constitution Bench case [Govt. of NCT of Delhi Vs Union of India (LQ/SC/2023/610)]. This case addressed the issue of control over ‘services’ related to the National Capital Territory of Delhi (NCTD). The key points highlighted from the earlier decision were emphasized during the proceedings.
a. The subject of 'services' falls within the ambit of the legislative and executive competence of NCTD under Entry 41 of the State List of the Seventh Schedule.
b. However, the legislative and executive power of NCTD over Entry 41 does not extend over services related to the excluded subjects of public order, police, and land.
c. In the absence of a law conferring upon it executive power relating to any subject in the State List, the executive power of the Union Government covers only matters relating to the three entries which are excluded from the legislative domain of NCTD.
d. If Parliament enacts a law granting executive power on any subject which is within the domain of NCTD, the executive power of the Lieutenant Governor shall be modified to that extent as provided in the law.
e. The Lieutenant Governor is bound by the aid and advice of the Council of Ministers of NCTD in relation to matters which fall within the legislative domain of NCTD.
f. NCTD has legislative power over services excluding public order, police, and land. Therefore, the Lieutenant Governor is bound by the decisions of GNCTD on services, save and except for the excluded subjects and as modified by the law.
The bench observed, “At this stage, it must be noted that the reference before the Constitution bench is pending and there is no stay on the operation of the amendment Act. Thus, only a prima facie view is formed on the merits of the rival submissions.”
Following the reference to the 2023 Constitution Bench case, the bench turned its attention to two main issues:
Firstly, the bench examined whether the Union Government possessed unilateral power to appoint the Chief Secretary of NCTD. It was noted that Rule 55(2)(b) of the Transaction of Business Rules mandates the Lieutenant Governor to make a prior reference to the Central Government for the appointment of Chief Secretary, and further action should be taken in accordance with the decision of the Central Government. This indicates the involvement of the Central Government in the appointment process, and the final decision rests with them. The exclusion of the Chief Secretary from the competence of the Government of NCTD, especially in matters related to police, public order, and land, further emphasizes the role of the Central Government in the appointment process.
The second issue pertained to whether the Union Government had the authority to extend the service of the incumbent Chief Secretary. The Union Government relied on Rule 16 of the All-India Services (Death-cum-Retirement Benefits) Rules 1958, arguing that the State Government's recommendation, with prior approval of the Central Government, was required for such extensions. However, the bench highlighted the unique responsibilities of the Chief Secretary in NCTD, including control over subjects falling outside the legislative domain of the GNCTD. It concluded that the restrictions applicable to the grant of an extension under Rule 16 in the context of Chief Secretaries of the States did not strictly apply to the GNCTD Chief Secretary.
The bench further noted that the relief sought by the petitioner, which was to appoint one of the five senior most officers from the pool of officers serving in the AGMUT cadre with the requisite experience of having served as the Chief Secretary in the Government of NCTD, was beyond the scope of powers exercisable by the Court, as it cannot usurp the powers of the appointing authority conferred by law.
Thus, the bench concluded that, at this stage, considering the principles enumerated in the judgment of this Court in the 2023 Constitution Bench judgment and the subsequent developments resulting in the enactment of the amendment to the GNCTD Act 1991, the decision of the Union Government to extend the services of the incumbent Chief Secretary for a period of six months could not be construed to be violative of the law.
The Court also made several observations regarding the role of the Chief Secretary. It was highlighted that the post of the Chief Secretary is of great confidence and is considered a lynchpin in the administration. The Court also emphasized the importance of political neutrality for civil servants, stating that they must abide by the directions of the elected arm to give effect to the principle underlying the triple-chain of collective responsibility.
Furthermore, it was noted that the Chief Secretary performs functions that fall both within and outside the executive competence of the GNCTD. Even though the Chief Secretary is appointed by the Central Government, they are required to comply with the directions of the elected government over matters on which their executive competence extends. The actions or inactions of the Chief Secretary must not put the elected government at a standstill.
With the above observations, the writ petition was disposed of.
Read Order: Anish Pramod Patel V. Kiran Jyot Maini
Chahat Varma
New Delhi, December 6, 2023: The Delhi High Court has ruled that a person cannot be summoned under Section 31 of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act) for non-compliance with a monetary order, such as an order for the payment of maintenance issued under Section 20 of the PWDV Act.
The present petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), had sought the quashing of the summoning order, issued under Section 31(1) of the PWDV Act. The summoning order pertained to non-compliance with the monetary relief or interim maintenance order in criminal case titled 'Kiran Jyot Maini v. Anish Pramod Patel'.
Briefly stated, the petitioner-husband and respondent-wife got married on 30.04.2015. Subsequently, an FIR was registered on the complaint of the wife under Sections 498A/323/504 of the Indian Penal Code, 1860, and Sections 3/4 of the Dowry Prohibition Act, 1961. The petitioner filed a criminal miscellaneous writ petition before the Allahabad High Court for stay on arrest and quashing of the FIR, which led to mediation. The wife then filed an application under Section 12 of the PWDV Act, seeking interim maintenance. The Judicial Magistrate initially ordered the petitioner to pay Rs. 35,000 as interim maintenance, which was later modified to Rs. 45,000 per month to the wife and Rs. 55,000 per month to the daughter. Dissatisfied, the petitioner filed an application under Section 482 of Cr.P.C. before the High Court, leading to mediation that failed. The wife then filed criminal application under Section 31(1) of PWDV Act for non-compliance with the interim maintenance order, resulting in summons challenged by the petitioner.
The single-judge bench of Justice Swarana Kanta Sharma observed that within the statutory framework of the PWDV Act and Rules, orders granting maintenance or interim maintenance under Section 20 of the PWDV Act, as monetary relief to the aggrieved women, must be enforced as provided under Section 20(6) of the PWDV Act or through other means specified in the Cr.P.C., including the procedures for enforcing orders passed under Section 125 of the Cr.P.C.
The bench further observed that Section 31 of the PWDV Act exclusively addressed breaches of 'protection order' or 'interim protection order.' An order granting maintenance, which is issued under Section 20 based on an application filed under Section 12, providing for 'monetary relief,' should not be interpreted to fall within the scope of the term 'protection order' as used in Section 31 of the Act.
The bench opined that the legislative intent was evident from the language used in the enactment, and a scrutiny of Section 20, Section 28, Section 9 of the PWDV Act, and Rule 6 of the PWDV Rules elucidated the procedure for addressing and handling the non-compliance of monetary orders, including orders for maintenance.
The bench remarked, “when there is no ambiguity in the scheme of legislature and the purport of provisions of the Act and Rules, no purpose would be served by giving a different interpretation to the provisions, which are otherwise clear and unambiguous.”
The bench opined that the focus of the PWDV Act was on providing immediate and effective relief to victims of domestic violence through maintenance or interim maintenance orders. It was emphasized that the primary intention was not to immediately initiate criminal proceedings against the respondent for non-payment of maintenance, leading to imprisonment.
Thus, the Court held that the 'respondent' under the PWDV Act could be summoned as an accused under Section 31 for non-compliance with an order of monetary relief. Consequently, the Court was inclined to quash the impugned order dated 12.03.2019 passed by the Additional Civil Judge, Third, Gautam Budh Nagar, and all consequential proceedings pending before the Mahila Court, Tis Hazari Courts, Delhi.
The present petition was disposed of accordingly.
Read Order: Ram Naresh V. State of U.P.
Chahat Varma
New Delhi, December 6, 2023: The Supreme Court has upheld the conviction of an individual for murder under Section 302 of the Indian Penal Code (IPC) with the aid of Section 34 IPC. The Apex Court held that the appellant had a common intention with the other co-accused to kill the deceased.
The factual background of the case was that an FIR was filed by Balram at Police Station Ramnagar, alleging that Virender, Rajaram, Jogendra, and Ram Naresh assaulted and ultimately killed Ram Kishore. The incident occurred when Balram and Ram Kishore were confronted by the four accused at Babulal’s Dhaba. Despite shouting for help, the accused attacked Ram Kishore with lathis and an iron rod, leading to his demise. Subsequently, a case under Section 302/34 IPC was registered and investigated, culminating in the trial court's finding all four accused guilty. They were convicted under Section 302 read with Section 34 IPC, a decision that was later affirmed by the Allahabad High Court.
The division bench of Justice Abhay S. Oka and Justice Pankaj Mithal observed that the reading of Section 34 of the IPC revealed that when a criminal act is done by several persons with a common intention, each person is liable for that act as if it had been done by them alone. It was noted that where the participation of the accused in a crime was proven, and the common intention was also established, Section 34 IPC came into play. It was emphasized that to attract Section 34 IPC, there was no requirement for a prior conspiracy or premeditated mind. The common intention could be formed even in the course of the incident, i.e., during the occurrence of the crime.
The bench further clarified that for Section 34 IPC to apply, there should be a common intention among all the co-accused persons, indicating a community of purpose and common design. It was clarified that common intention did not necessitate the co-accused persons to engage in any discussion or agreement to prepare a plan or hatch a conspiracy for committing the offence. The bench emphasized that common intention is a psychological fact and can be formed a minute before the actual happening of the incident or even during its occurrence.
The bench held that in the said case, the appellant had been rightly convicted with the aid of Section 34 IPC for the offence of killing the deceased. This decision was based on the fact that they all had come armed, assaulted the deceased together, and subsequently left the place of occurrence together.
Thus, in light of the evidence on record and the conclusions reached by both the trial court and the High Court, the Court held that the argument that the appellant cannot be convicted with the aid of Section 34 IPC was held to be devoid of merit.
Consequently, the present appeal was dismissed.
Read Order: Digvijaysinh Himmatsinh Jadeja V. The State of Gujarat & Ors.
Chahat Varma
New Delhi, December 6, 2023: The Supreme Court has allowed an appeal against an order of the Gujarat High Court that had quashed an FIR filed by Digvijaysinh Himmatsinh Jadeja against Geetanjali Gems Limited and Geetanjali Jewellery Retail Limited (GJRL) for alleged criminal breach of trust and cheating.
In the said case, there were disputed questions of fact, as the private respondent(s) had asserted that the two agreements dated 25.07.2013 and 13.08.2013 were not binding on the company-GJRL, a subsidiary of Gitanjali Gems Limited. However, the counsel representing the appellant, Digvijaysinh Himmatsinh Jadeja, acknowledged that the agreements were valid and binding. It was further asserted that, pursuant to the agreement dated 13.08.2013, the private respondent(s) had agreed to return 24 karat pure gold bars, for which the consideration or price had been paid but were held in deposit with GJRL in a fiduciary capacity.
The impugned judgment dated 05.05.2017, passed by the Gujarat High Court, had involved a thorough factual examination and evaluation. The judgment had granted the prayer for quashing the FIR.
However, the division bench of Justice Sanjiv Khanna and S.V.N. Bhatti remarked, “We are of the opinion that the said examination and evaluation should not have been done by the High Court.”
The bench acknowledged that the counsel for the appellant, had pointed out documents such as confirmation letters signed by Mr. Santosh Srivastava as the Managing Director at GJRL and Mr. Shivendra Singh, Associate Vice-President (Finance), on behalf of GJRL. Additionally, the statement of accounts, also signed by the aforementioned individuals, was highlighted, asserting that these documents confirmed the fiduciary nature of the deposit. The stand of the private respondent(s) was that Mr. Santosh Srivastava had resigned on 09.12.2013, and the agreements executed by him were without authority. The bench held that these assertions were disputed factual questions. The private respondents did not dispute the signatures of Mr. Santosh Srivastava or Mr. Shivendra Singh, nor their designation.
The bench also took note of the contention raised by the counsel for the private respondent(s) regarding contradictions in the stand taken by the appellant in the notice dated 15.07.2014, which mentioned a breach of contract, and another notice/letter dated 23.08.2014. The bench decided not to delve into these aspects, considering them matters to be examined during the investigation. It was emphasized that while a wrong may be a civil wrong, in some cases, it may also constitute a criminal offense. However, the bench refrained from making detailed observations on this matter.
The counsel for the private respondent(s) further raised a contention that the appellant had failed to account for and pay the sale proceeds as per the Operational and Commercial Agreement dated 13.08.2013. The appellant contested this reasoning on various grounds. The bench remarked that the High Court should not have examined and recorded conclusions on disputed facts to quash the FIR.
In view of the aforesaid, the impugned judgment was set aside and the appeal was allowed.
The Court added that the observations in the order should not be construed as comments or opinions on the merits of the case. The Court clarified that, during the investigation, the Investigating Officer(s) should consider the rulings of this Court and High Courts interpreting Sections 406, 420, 464, and 465, etc., of the Indian Penal Code.
Read Order: Ram Lal V. State of Rajasthan & Ors
Chahat Varma
New Delhi, December 5, 2023: The Supreme Court has reinstated a Rajasthan Armed Constabulary constable who was dismissed from service over allegations of altering his date of birth in official documents. The Court reasoned that if the evidence, witnesses, and circumstances were the same in both criminal and departmental proceedings, and the acquittal in the criminal case resulted from a full consideration of the evidence, the court could provide redress.
In the case at hand, Ram Lal, a Constable with the Rajasthan Armed Constabulary, 9th Battalion, Jodhpur, was involved in a legal dispute concerning the alteration of his date of birth in official documents. This alteration was alleged to have been made in his 8th standard marksheet, changing his birth year from 1974 to 1972, with the intention of misrepresenting his age during recruitment. Both criminal and departmental proceedings were initiated against Ram Lal, with the same allegations forming the basis of both cases. Although the trial Court convicted him under Section 420 of the Indian Penal Code (IPC) and sentenced him to imprisonment and a fine, the Appellate Judge subsequently acquitted him in the criminal trial.
Post-acquittal, the appellant sought reinstatement, by filing a writ petition, to quash the dismissal order, the Appellate Authority's decision, and subsequent refusal to review. The Single Judge, dismissed the writ petition, emphasizing the differing standards of proof in criminal and departmental proceedings. The writ appeal met a similar fate, with the court reiterating the limited parameters for judicial review in departmental proceedings.
The division bench of Justice J.K. Maheshwari and Justice K.V. Viswanathan stated that it was conscious of the fact that the power of a writ court to review the order of the Disciplinary Authority was very limited. The scope of the inquiry was confined to examining whether the decision-making process was legitimate. The bench also remarked that it was also aware that the mere acquittal by a criminal court would not grant the employee the right to claim any benefits, including reinstatement.
However, the bench highlighted that if the evidence, witnesses, and circumstances are the same in both proceedings, the situation takes on a different character. In cases where the court in judicial review determines that the acquittal in the criminal proceeding resulted from a full consideration of the prosecution evidence, and the prosecution failed to prove the charge, the court, in certain circumstances, can provide redress. The court, in judicial review, retains the discretion to grant relief if it concludes that allowing the findings in the disciplinary proceedings to stand would be unjust, unfair, and oppressive.
The bench observed that it was well settled that if the findings of the disciplinary authorities were arrived at after ignoring the relevant material, the court in judicial review could interfere. The bench stated that they were satisfied that in the present case, the disciplinary proceedings were vitiated and deserved to be quashed.
In this context, the bench expressed inclination to accept the explanation given by the appellant that the overwriting in the application form was only due to the correction of an inadvertent error. The bench emphasized that as long as the original 8th standard marksheet reflected his date of birth as 21.04.1972, without any correction or manipulation, the appellant could not be penalized.
The bench further stated that it was crucial to recognize that the Appellate Judge had explicitly recorded that in the original marksheet of the 8th standard, the date of birth was clearly stated as 21.04.1972. The other documents presented by the prosecution were either letters or a duplicate marksheet. Although the Appellate Judge expressed doubt about whether the date of birth was 21.04.1974 and acknowledged that the accused might be entitled to the benefit of doubt, the bench highlighted the importance of focusing on the substance of the judgment. The bench clarified that a comprehensive reading of the entire judgment unmistakably indicated that the appellant was acquitted after a thorough examination of the prosecution evidence and a recognition that the prosecution had failed to prove the charge. The emphasis was on examining the substance of the judgment rather than dwelling solely on the expressions used.
The bench held that the findings of the appellate judge in the criminal case clearly indicated that the charge against the appellant was not just ‘not proved’, but in fact, the charge even stood ‘disproved’ by the prosecution evidence. The bench emphasized the distinction between a fact being ‘disproved’ and ‘not proved’, citing the decision in Vijayee Singh and Others v. State of U.P. [LQ/SC/1990/266]. According to this decision, a fact is considered ‘disproved’ when the court, after considering the evidence before it, believes that the fact does not exist or considers its non-existence so probable that a prudent person ought to act upon the supposition that it does not exist. On the other hand, a fact is deemed ‘not proved’ when it is neither ‘proved’ nor ‘disproved’.
The bench stated that the charges brought against the appellant in both the criminal trial and the departmental inquiry were not just similar, but identical. In light of this observation, the bench opined that the disciplinary proceedings and the orders passed thereon could not be allowed to stand. Thus, the bench exercised its discretion to quash the orders of the disciplinary authority and the appellate authority, reasoning that allowing these orders to stand would be unjust, unfair, and oppressive in this particular case.
Thus, the Court declared the order of termination, the order of the Appellate Authority, and the subsequent orders, which refused to reconsider and review the penalty, as illegal and untenable.
Consequently, the appellant, was reinstated with all consequential benefits, including seniority, notional promotions, fitment of salary, and all other benefits. The Court also awarded the appellant 50% of the backwages.
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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