Read Order: Nababuddin @ Mallu @ Abhimanyu v. State of Haryana
Chahat Varma
New Delhi, November 28, 2023: The Supreme Court has set aside the conviction of an accused in a Narcotic Drugs and Psychotropic Substances Act (NDPS Act) case. The decision was based on the failure of the Trial Court to present two crucial circumstances to the accused during his examination under Section 313 of the Code of Criminal Procedure (Cr.P.C.). This omission was deemed to have caused serious prejudice to the accused's defence, leading to the entire trial being vitiated.
In summary, the accused-appellant, along with two co-accused, was convicted by the Special Judge under the NDPS Act for the offense under Section 15 of the NDPS Act. The Special Judge concluded that the prosecution had successfully proven that the accused were in conscious possession of 205 kilograms of poppy straw without a license or permit. The Punjab and Haryana High Court upheld the conviction of the appellant and the other two individuals.
The appellant's counsel had argued that the accused no. 2 had visited the railway station to inquire about parcels on behalf of the owner. When accused no. 2 did not return, the appellant went to the railway station to inquire about him. The counsel stressed that the railway receipt for the parcels was presented by accused no. 2, not the appellant. Additionally, the counsel asserted that the prosecution's claim that the railway receipt was in the appellant's name was not addressed during the appellant's examination under Section 313 of the Cr.P.C. The counsel also highlighted that the allegation that the appellant approached the station supervisor to inquire about the parcel was not raised during the appellant's examination under Section 313 of Cr.P.C.
On the other hand, the counsel representing the State argued that the material circumstances, about which the appellant raised concerns, were indeed presented to the appellant. The counsel contended that the railway receipts were in the name of the appellant, and the appellant's visit to the railway station with accused no. 2 to inquire about parcels containing contraband indicated not only his involvement but also constructive possession of the contraband, given that the railway receipt was in his name.
The division bench, comprising of Justice Abhay S. Oka and Justice Pankaj Mithal, carefully reviewed the appellant's interrogation under Section 313 of the CrPC. The bench observed that a crucial circumstance against the appellant, related to his visit to the railway station and inquiry with the station supervisor about contraband parcels, was not brought to his attention during the examination under Section 313 of the Cr.P.C.
The bench, in discussing the significance of the examination of the accused under Section 313 of the Cr.P.C., cited a judgment from the case of Raj Kumar v. State (NCT of Delhi) [LQ/SC/2023/618]. In this judgment, the Court had observed that the Trial Court has the duty to present each material circumstance from the evidence against the accused in a specific, distinct, and separate manner. The failure to do so was considered a serious irregularity, and it could vitiate the trial if it could be demonstrated that such failure prejudiced the accused.
The bench observed that in the present case, a serious prejudice was caused to the appellant's defence as the only material circumstances pleaded by the prosecution were not presented to him during the examination under Section 313 of the Cr.P.C. Despite the appellant not raising the issue earlier, the omission was deemed significant and fundamental to the appellant's case. According to the bench, it constituted a serious and material illegality committed by the Court.
Thus, the bench held that subjecting the appellant to examination under Section 313 of the Cr.P.C. after more than twenty-two years of incarceration would result in prejudice. The failure to present two relevant circumstances to the appellant during this examination was considered fatal to the prosecution's case. Consequently, the Court determined that the appellant's conviction could not be sustained on this ground.
Consequently, the Court allowed the present appeal, resulting in the setting aside of the Trial Court and High Court judgments, but specifically in relation to the present appellant. Notably, the convictions of the other two accused were not disturbed.
Read Order: Vishesh Aggarwal & Ors. V. State of NCT of Delhi & Anr.
Chahat Varma
New Delhi, November 28, 2023: The Delhi High Court has refused to quash an FIR alleging extortion and assault, holding that the allegations were too serious to be quashed at the investigation stage.
The present petition was filed on behalf of the petitioners seeking quashing of FIR, registered for the offences punishable under Sections 323/341/384/506/34 of Indian Penal Code, 1860 (IPC).
In summary, the case involved an FIR registered based on the complaint of Daulatram, who alleged that several individuals, including the accused/applicant Vishesh, had physically assaulted his employee Sukhwinder and attempted to extort money from him. Daulatram claimed ownership of a property in Delhi with multiple tenants, including the accused/applicant, and had issued eviction notices due to the building being declared dangerous by the North Delhi Municipal Corporation. However, instead of vacating the premises, the accused began threatening the complainant. The complaint further alleged that the accused physically assaulted the complainant and his employee, with some of the accused allegedly armed with sharp-edged weapons.
The counsel for the petitioner stated that a compromise had been entered into between the parties at the very initial stage of the investigation, i.e., before filing the charge sheet. The APP for the State argued that the allegations against the accused persons were serious, involving physical assault on the complainant and extortion of money through threats to him and his family. It was asserted that the present case, characterized by such serious nature, could not be quashed during the ongoing investigation, despite a settlement being reached between the parties.
The single-judge bench of Justice Swarana Kanta Sharma opined that the allegations levelled in the FIR were serious in nature, including, among other things, the commission of an offense under Section 384 of the IPC, which deals with the offense of extortion. Such allegations could not be treated as a mere private dispute between two parties. If found true during the course of the investigation or trial, they were considered offenses against society at large. Therefore, FIRs with such serious allegations could not be quashed merely based on settlement agreements reached between two parties.
The bench also noted that in the case of State of Haryana v. Chaudhari Bhajan Lal [LQ/SC/1990/744], the Hon'ble Supreme Court had cautioned that the High Court, in the exercise of powers under Article 226 of the Constitution of India or Section 482 Cr.P.C., might interfere in proceedings related to cognizable offenses to prevent the abuse of the process of any court or otherwise to secure the ends of justice. However, such power should have been exercised sparingly and that too in the rarest of rare cases.
In the present case, the bench held that a bare perusal of the FIR made it clear that there were serious allegations of extortion of money by the accused/applicant. The accused had allegedly assaulted the complainant and his employee, further threatening to initiate false criminal cases against them and their family members if the demand for payment of money was not met. The allegations in the FIR were deemed sufficient for the police to conduct further investigation against the accused. The bench also expressed the view that, applying the principles laid down in the case of Bhajan Lal, the FIR could not be quashed since the investigation was still pending, and the chargesheet was yet to be filed. It was emphasized that it was the duty of the police and the investigating officer to inquire into and investigate the serious allegations in the FIR to ascertain the truth.
Further, the bench noted that the police must be permitted to complete the investigation unless, on the face of it, the allegations seemed to be inherently absurd or improbable. Pronouncing a conclusion based on uninvestigated facts that the complaint did not deserve investigation and amounted to an abuse of the process of law would be premature. It was emphasized that, during or after the investigation, if it was found that there was no substance in the complaint made by the complainant, the investigating officer could file an appropriate report before the Magistrate. The report could then be considered by the Magistrate in accordance with the law.
Thus, considering the overall facts and circumstances of the case, along with the allegations and material available on record, the Court found no reason to quash the FIR at the present stage of the investigation.
Accordingly, the present petition was dismissed.
Read Order: Rajinder Singh Chadha V. Union of India Ministry of Home Affairs Through its Chief Secretary & Anr.
Chahat Varma
New Delhi, November 28, 2023: In a significant ruling, the Delhi High Court has held that the Enforcement Directorate (ED) cannot continue proceedings under the Prevention of Money Laundering Act (PMLA) if the underlying scheduled offenses have been compounded.
The relevant facts of the case were that two FIRs, were registered under Sections 420/406/120B of the Indian Penal Code, 1860 (IPC) at PS Economic Offences Wing (EOW). Both FIRs arose from allegations that despite payment of monies in 2006-07, the complainants did not receive possession of flats as promised by the accused company, M/s Uppal Chadha Hi-Tech. It was alleged that the petitioner, in his capacity as a director of the firm, was responsible for siphoning off the funds collected from the complainants. During the pendency of the trials, the accused persons settled the disputes with the respective complainants amicably. Thereafter, an ECIR was lodged on 26.07.2019 by the Directorate of Enforcement against M/s Uppal Chadha Hi-Tech, the petitioner, and other individuals. Following this, the department conducted several search and seizure operations, including the retention of records and digital devices seized under the PMLA. Subsequently, a show-cause notice was issued to the petitioner under Section 8(1) of the PMLA, requiring a written response as to why the department's application under Section 17(4) of the PMLA should not be allowed.
The primary issue before the Court was whether the department was justified in continuing the investigation/proceedings in the impugned ECIR, initially registered based on scheduled offences in FIR No. 16/2018 and subsequently continued based on FIR No. 49/2021 and FIR No. 55/2023, especially considering that the scheduled offences in the first two FIRs were compounded/quashed.
The single-judge bench of Justice Amit Sharma highlighted that the Supreme Court, in Vijay Madanlal Choudhary & Ors v. Union of India & Ors [LQ/SC/2022/908], distinctly differentiated between an ECIR under the PMLA and an FIR under the provisions of the Cr.P.C. The Supreme Court had acknowledged the department's assertion that the ECIR is an 'internal document' created by them.
In the present case, the bench acknowledged that the ECIR was registered based on a prima facie satisfaction for the commission of an offence under Section 3 of the PMLA. The department, through this ECIR, focused on the alleged 'proceeds of crime' generated from the commission of scheduled offences in the FIR registered at the instance of home-buyers/investors, rather than investigating the case of home-buyers/investors concerning the allegations in the first two FIRs. While recognizing that the third FIR, FIR No. 55/2023, also related to the same project as the two previous FIRs, the bench stressed that, in the present factual context, even if separate FIRs were registered at the instance of distinct home-buyers/investors, each FIR could not be considered a separate cause of action for the registration of different ECIRs.
The bench further observed that in the mentioned cases, the 'scheduled offence' was either quashed or compounded entirely. However, the 'scheduled offences' through the third FIR still existed. It was also noted that even in an FIR being investigated by the local police involving multiple complainants, compounding with some of them would not be a ground for quashing the said FIR. However, partial compounding/quashing was permissible.
The bench, referring to the judgment in Vijay Madanlal Choudhary, highlighted that the offence under the PMLA was dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It was stated that if a person was finally discharged/acquitted of the scheduled offence or the criminal case against him was quashed by the competent court, there can be no offence of money laundering against him or any claiming such property. Therefore, the bench held that if there was no scheduled offence, there can be no offence of money laundering with respect to the same.
Consequently, the Court held that while the ECIR dated 27.06.2019 cannot be quashed due to the registration of FIR No. 55/2023 dated 10.07.2023 under Sections 409/420/120B of the IPC at PS EOW, legitimizing the existence of the ECIR, the ‘scheduled offences’ in FIR No. 16/2018 dated 24.01.2018 and FIR No. 49/2021 dated 12.03.2021, both under Sections 420/406/120B of the IPC, had been compounded and quashed. As a result, the department cannot initiate or continue any proceedings, including investigations, in connection with these two FIRs.
Thus, the petition was partly allowed and disposed of accordingly.
Read Order: Mohar Singh (Dead) Through Lrs. & Ors. V. State Of Uttar Pradesh Collector & Ors.
Chahat Varma
New Delhi, November 28, 2023: In a recent decision, the Supreme Court has ruled that inordinate delay in filing an appeal in compensatory matters, per se, may not be fatal as the rights and equities between the parties can be well balanced by denying the statutory benefits, such as interest for the delayed period.
In the given case, the appellants' land in village Khora, District Ghaziabad, was part of a larger tract of 902.2046 acres, proposed for acquisition by a notification dated 17.03.1988 under Section 4(1) of the Land Acquisition Act, 1894. Ultimately, only 337.892 acres, including the appellants' land, were acquired, and the Special Land Acquisition Officer issued an award, providing compensation at the rate of Rs.70 per sq. yard. Subsequently, the appellants, along with other landowners, filed references under Section 18 of the Act. The Xth Additional District Judge, Ghaziabad, in an award dated 06.04.1998, partially accepted the references and increased the compensation to Rs.106 per sq. yard. Following this, several landowners, including the appellants, approached the Allahabad High Court seeking further enhancement of compensation.
The appellants, however, failed to file an appeal before the High Court within a reasonable time. Subsequently, they initiated the first appeals in 2011, facing a delay of 12 years and 353 days. Seeking condonation of the delay, the appellants cited reasons such as illiteracy and poverty, which hindered their ability to arrange the required Court Fee. Despite their plea, the High Court refused to condone the delay, leading to the dismissal of the first appeal(s) filed by the appellants.
Meanwhile, the batch of first appeals preferred by other land owners, came to be decided, wherein the High Court enhanced the compensation at the rate of Rs.130 per sq. yard.
The division bench, comprising Justice Surya Kant and Justice Dipankar Datta, acknowledged that certain landowners, who remained discontent with the compensation rate set by the High Court, had approached this Court. A coordinating bench, through an order dated 12.12.2017, had partially granted relief in those appeals.
Further, the bench opined that the appellants had the right to seek parity with their co-villagers in receiving compensation for their acquired land.
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“All that the High Court ought to have emphatically denied to the late-comers was the benefit of interest including on the solatium, under Section 34 of the Act for the period from the date of passing of the award by the Reference Court till the filing of the first appeals,” observed the division bench.
Also, considering the appellants' plea for enhanced compensation at the rate set by the High Court for the land in village Makanpur, the bench noted that this argument was explicitly presented before the High Court when their initial appeals were adjudicated on 04.07.2016. The High Court decisively dismissed this claim, opting for a lower rate of Rs.130 per sq. yard for the land in village Khora. In a subsequent appeal, this Court partially accepted the landowners' claim for village Khora, increasing the compensation to Rs.150 per sq. yard. Essentially, the plea for parity between the acquired lands of village Khora and Makanpur was implicitly rejected by this Court. Consequently, the bench found no merit in asserting that the appellants should receive compensation at par with the landowners of village Makanpur.
The bench noted that there was another plausible reason to reject the appellant's claim for the higher rate of Rs.297 per sq. yard. The delay of nearly 13 years in filing their first appeals was condoned solely to achieve parity among similarly situated landowners under Article 14 of the Constitution. Granting the appellants compensation higher than their counterparts, despite the latter being diligent in pursuing their remedy promptly, would result in hostile discrimination.
Having made this determination, the appeals were allowed in part, and the appellants were deemed entitled to compensation at the rate of Rs.150 per sq. yard for their acquired land. However, it was clarified that the compensation amount would not include statutory interest, including on solatium, at the rate prescribed under Section 34 of the Act for the period from the date of passing of the award by the Reference Court under Section 18 of the Act until the filing of the respective first appeals before the High Court.
Read Order: Dilip B Jiwrajka V. Union of India & Ors
Chahat Varma
New Delhi, November 24, 2023: The Supreme Court has upheld the constitutionality of Sections 95 to 100 of the Insolvency and Bankruptcy Code 2016 (IBC), rejecting a batch of petitions challenging their validity.
In the case at hand, the petitioners, in a batch of three hundred and eighty-four petitions under Article 32 of the Constitution, had contested the constitutional validity of Sections 95 to 100 of the IBC.
A three-judge bench of Chief Justice Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra highlighted a fundamental distinction between Part II and Part III of the IBC. It was noted that Part II, specifically Chapter II, was dedicated to the resolution of insolvencies of corporate entities, while Part III dealt with insolvency resolution and bankruptcy for individuals and partnership firms. The observation emphasized that these parts addressed distinct processes tailored to the resolution of insolvencies in different contexts, with Part II focusing on corporate entities and Part III addressing the insolvency concerns of individuals and partnership firms.
The bench further observed that the resolution professional in the context of individual or partnership insolvencies, as outlined in Chapter III of Part III of the Insolvency and IBC, did not possess an adjudicatory function according to Section 99. The resolution professional's role, as specified in Section 99, was to gather relevant information based on the application, conduct necessary processes, and submit a report recommending the acceptance or rejection of the application. The expressions ‘examine the application’, ‘ascertain and satisfy the requirements’ and ‘recommend the acceptance or rejection of the application’ made it clear that the resolution professional's role was purely recommendatory and did not involve performing adjudicatory functions or arriving at binding conclusions on facts.
The bench also observed that Clause (b) of sub-section (1) of Section 14 empowered the adjudicating authority to declare a moratorium restraining the transfer, encumbrance, alienation, or disposal by the corporate debtor of any of its assets or any legal right or beneficial interest therein. Importantly, the moratorium under Section 14 operated based on the order passed by an adjudicating authority. The purpose of the moratorium under Section 96 was protective in nature, aiming to insulate the corporate debtor from the initiation or continuation of legal actions or proceedings concerning the debt.
The bench expressed the considered view that the resolution professional, operating under the regulatory oversight of the Board, plays a vital role in the effective functioning of the insolvency process and significantly contributes to its efficiency. The bench highlighted two key aspects: firstly, the resolution professional is only entitled to seek information strictly relevant to the examination of the application for Insolvency Resolution Process (IRP); and secondly, regulation 7(2)(h) of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016, read with para 21 of the First Schedule, imposes an obligation on the resolution professional to ensure the confidentiality of all information related to the insolvency process.
The bench held the view that the submission advocating for an adjudicatory role to be introduced at the stage of Section 97(5) cannot be accepted. The authority bestowed upon the adjudicating authority at the application filing stage is for the appointment of a resolution professional. This appointment serves a facilitative purpose outlined in Section 99, culminating in a report that either recommends the acceptance or rejection of the application. Considering the statutory scheme, the bench deemed it impermissible for the court to allow adjudicatory intervention by the adjudicating authority to determine what is described as a jurisdictional question at the Section 97(5) stage.
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With the above observations, the Court concluded that no judicial adjudication was involved in the stages outlined in Sections 95 to Section 99 of the IBC. The resolution professional appointed under Section 97 played a facilitative role, collating relevant facts for examining the application for the commencement of the insolvency resolution process. The report submitted to the adjudicatory authority was recommendatory in nature, suggesting whether to accept or reject the application.
Further, the argument that a hearing should be conducted by the adjudicatory authority for determining jurisdictional facts at the stage of appointing a resolution professional under Section 97(5) of the IBC was rejected. It was noted that no adjudicatory function was contemplated at that stage, and introducing such a requirement would have amounted to rewriting the statute. The resolution professional could use the powers under Section 99(4) of the IBC to examine the application for insolvency resolution and gather information relevant to the application to facilitate the submission of the report recommending its acceptance or rejection. There was no violation of natural justice under Sections 95 to 100 of the IBC, as the debtor was not deprived of an opportunity to participate in the examination process by the resolution professional. No judicial determination occurred until the adjudicating authority decided under Section 100 whether to accept or reject the application. The report of the resolution professional was merely recommendatory and did not bind the adjudicatory authority when exercising its jurisdiction under Section 100.
The bench held that the adjudicatory authority had to observe the principles of natural justice when exercising jurisdiction under Section 100 to determine whether to accept or reject the application. The purpose of the interim-moratorium under Section 96 was to shield the debtor from further legal proceedings. The provisions of Sections 95 to 100 of the IBC were not unconstitutional as they did not violate Article 14 and Article 21 of the Constitution.
Consequently, the present writ petitions were dismissed.
Read Order: State of Punjab v. Principal Secretary to the Governor of Punjab and Another
Chahat Varma
New Delhi, November 24, 2023: In a significant ruling, the Supreme Court has held that the Governor cannot withhold action on Bills passed by the State Legislature.
In this case, the State of Punjab had moved to the Supreme Court under Article 32 of the Constitution, seeking relief in relation to the Sessions held on 19 June 2023, 20 June 2023, and 20 October 2023 of the Punjab Vidhan Sabha. Specifically, the state was seeking a declaration affirming the legality of these sessions and validating the business transacted by the House. Additionally, the State of Punjab was seeking a mandamus to ensure that seven Bills, including three Money Bills, which had been kept pending by the Governor, are processed in accordance with the law.
The Supreme Court had entertained the petition on 6 November 2023 and had been informed that subsequent to the filing of the petition, the Governor had recommended the introduction of two out of the three Money Bills, namely, the Punjab Goods and Services Tax (Amendment) Bill 2023 and the Indian Stamp (Punjab Amendment) Bill 2023, before the Vidhan Sabha.
Two issues arose for consideration: first, whether the Governor could withhold action on Bills that had been passed by the State Legislature; and second, whether it was permissible in law for the Speaker to reconvene a sitting of a Vidhan Sabha session that had been adjourned but not prorogued.
A three-judge bench of Chief Justice Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra observed that in a Parliamentary form of democracy, real power was vested in the elected representatives of the people, both at the State and Central levels. The Governor, as an appointee of the President, was the titular head of the State. The fundamental principle of constitutional law consistently followed since the adoption of the Constitution was that the Governor acted on the 'aid and advice' of the Council of Ministers, except in areas where the Constitution entrusted the exercise of discretionary power to the Governor. The bench emphasized that this principle cemented the constitutional foundation, signifying that the power to make decisions affecting the governance of the State or nation primarily lay with the elected arm of the government.Furthermore, the bench underscored that the Governor was intended to be a constitutional statesman, guiding the government on matters of constitutional concern.
The bench stated that the Governor, as an unelected Head of the State, possesses constitutional powers, but these powers cannot be utilized to impede the normal course of lawmaking by the State Legislatures. If the Governor decides to withhold assent under the substantive part of Article 200, it is logical to pursue the course indicated in the first proviso, which involves remitting the Bill to the state legislature for reconsideration. The power to withhold assent under Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso. Failing to do so would allow the unelected Head of State to potentially veto the functioning of the legislative domain, thus contradicting fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance.
Further, the bench noted that concerning Money Bills, the power of the Governor to return a Bill in terms of the first proviso was excluded from the purview of the constitutional power of the Governor. Money Bills were governed by Article 207, requiring the recommendation of the Governor for the introduction of the Bill on a matter specified in clauses (a) to (f) of clause (1) of Article 199.
The bench emphasized that the Governor was not at liberty to withhold his action on the Bills that had been placed before him and had no avenue but to act in a manner postulated under Article 200 of the Constitution.
Thus, the bench ruled that the Governor of Punjab was not empowered to withhold action on the Bills passed by the State Legislature and must act ‘as soon as possible’.
Further, the bench, referred to the case of Ramdas Athawale (5) v. Union of India and Others [LQ/SC/2010/328], wherein the constitutional distinction between the prorogation of the House and its adjournment was highlighted. The Court had explained that an adjournment was an interruption in the course of one and the same session, while prorogation terminated a session, putting an end to all proceedings in Parliament. The bench noted that in the present case, the Vidhan Sabha being adjourned on 22 March 2023 without prorogation, the Speaker was empowered to reconvene the sittings of the House within the same session.
The bench observed that under Article 122(2), the decision of the Speaker, in whom powers are vested to regulate the procedure and conduct of business, is final and binding on every Member of the House. The validity of the Speaker adjourning the House sine die and the subsequent direction to resume sittings could not be inquired into on the grounds of any irregularity of procedure.
The bench held that Rule 16 of the Rules of Procedure and Conduct of Business in the Punjab Vidhan Sabha (Punjab Legislative Assembly)empowered the Vidhan Sabha to adjourn from time to time by its own order. The first proviso to Rule 16 acknowledged that adjournment of the Vidhan Sabha could be either to a particular day or sine die. Thus, the bench concluded that it was legally permissible for the Speaker to reconvene the sitting of the Vidhan Sabha after it was adjourned sine die without prorogation. Furthermore, the Speaker was empowered as the sole custodian of the proceedings of the House to adjourn and reconvene the House.
The bench observed that the submission made by the State of Punjab in the present petition, seeking a declaration that the sessions of the Vidhan Sabha and the business transacted within them were legal, was based on misconceptions. The bench noted that the declaration was not sought in isolation but as a response to the Governor's inaction on the Bills, purportedly due to the belief that the sessions were invalid. The State of Punjab consistently asserted that the sessions of the Vidhan Sabha and the business conducted therein were legal and constitutionally valid, as evidenced by the correspondence.
Consequently, the bench had held that there was no valid constitutional basis to cast doubt on the validity of the session of the Vidhan Sabha held on 19 June 2023, 20 June 2023, and 20 October 2023. It stated that any attempt to cast doubt on the session of the legislature would pose significant risks to democracy. The Speaker, recognized as a guardian of the privileges of the House and a constitutionally authorized representative of the House, was deemed to have been acting within his jurisdiction in adjourning the House sine die. Furthermore, the re-convening of the House was considered to be within the scope of Rule 16 of the Rules of Procedure.
The Court emphasized that casting doubt on the validity of the session of the House was not a constitutional option open to the Governor. It noted that the Legislative Assembly was comprised of duly elected Members of the Legislature, and during the tenure of the Assembly, the House was governed by decisions taken by the Speaker in matters of adjournment and prorogation.
Based on these considerations, the Court concluded that the Governor of Punjab must proceed to take a decision on the Bills submitted for assent on the basis that the sitting of the House conducted on 19 June 2023, 20 June 2023, and 20 October 2023 was constitutionally valid.
Read Order: Majibullah Mohammad Haneef V. Union of India
Chahat Varma
New Delhi, November 24, 2023: The Delhi High Court has dismissed a writ petition filed by an Indian national challenging his extradition to Oman to face murder charges. The Court upheld the extradition order passed by the Additional Chief Metropolitan Magistrate (ACMM).
Briefly stated, the petitioner, a permanent resident of Uttar Pradesh, India, worked as a labourer in Bidiyah, the Sultanate of Oman. On July 31, 2019, Bidiyah Police Station received a report of the death of an Omani national, along with his wife and three minor children. Preliminary investigations in Oman revealed fingerprints and DNA samples of the petitioner, along with those of other Fugitive Criminals (FCs). According to the preliminary investigation, all four FCs were found to have committed offenses of premeditated murder, a felony punishable under Article 302-A of the Penal Code of Oman. Subsequently, all four FCs absconded from Oman to India.
The single-judge bench of Justice Amit Bansal referred to the Extradition Act and observed that extradition concerning a Treaty State must be in relation to an offense provided for in the Extradition Treaty with that State. It was noted that India had an Extradition Treaty with the Sultanate of Oman, duly notified by the Ministry of External Affairs. Article 2 of the Extradition Treaty stipulated that individuals accused of an offense punishable under the laws of both Contracting States by imprisonment for not less than one year or for a more severe punishment shall be extradited.
The bench relied on the judgment rendered inSarabjit Rick Singh v. Union of India [LQ/SC/2007/1530], where the court had outlined the parameters of an inquiry to be conducted by the Magistrate under the Extradition Act: (i) The Magistrate needs to establish prima facie finding on whether the offense for which extradition is sought is of a political character or is otherwise an extraditable offense. (ii) No formal trial is necessary to determine the guilt of the fugitive criminal; only a report is required. (iii) According to Section 10 of the Extradition Act, exhibits and depositions, along with duly authenticated copies, can be accepted as evidence. (iv) Strict formal proof of evidence is not essential. During the inquiry, the Court may presume that the contents of the document would be proved.
The bench stated that the standard of proof in an inquiry in an extradition case is not of the same level as that required in a trial. This is because the scope of the inquiry is only to come to a prima facie conclusion and not to establish the actual guilt of the FCs.
The bench observed that the murder charge against the petitioner was not indicated as a political offense, and no arguments in this context were presented to the court by the petitioner.
Further, the bench noted that the offense of murder met the criteria for an extraditable offense, as it was punishable by more than one year of imprisonment in both India and Oman, as specified in the Extradition Treaty. The petitioner did not contest this aspect before the court.
The bench, after considering the evidence presented by the Requesting State, noted that there was sufficient material to establish a prima facie case supporting extradition. The evidence included detailed autopsy and medical reports, fingerprint reports linking the petitioner to various locations in the house, DNA sample reports matching those from the victims and the house to the petitioner, and CCTV footage showing the petitioner using the victim's ATM card. The petitioner's defence, asserting that the fingerprints and DNA samples were related to the petitioner's engagement in whitewashing the house and checking on the victims' well-being, was presented but not supported by any defence evidence during the inquiry.
Also, the bench, addressing the petitioner's contention, rejected the argument that authorities from the Requesting State should have appeared before the ACMM in India to authenticate the submitted documents. It emphasized that Section 10 of the Extradition Act did not require the presence of authorities from the Requesting State in Indian Courts for the documents to be admitted in evidence.
The bench further observed that the petitioner raised a contention asserting that a fair trial in the Requesting State, governed by Sharia/Islamic Law, would be compromised. The petitioner highlighted the difference in punishment for murder between India and Oman, emphasizing that in Oman, the offense is only punishable by the death penalty. However, the communication from the Embassy of the Sultanate of Oman, addressed the concerns raised by the petitioner. The assurances included the right to a fair and just trial, legal defence with a competent lawyer, provision of an interpreter, and the possibility of commutation of the death penalty to life imprisonment.
In light of the preceding discussion, the bench dismissed the present petition, and upheld the impugned order passed by the ACMM. As a result, the bench affirmed the decision of the Union of India to extradite the petitioner to the Sultanate of Oman.
Read Order: Yashovardhan Birla & Ors. V. Kamdhenu Enterprises Limited and Anr.
LE Correspondent
New Delhi, November 24, 2023: The Delhi High Court has dismissed applications filed by Kamdhenu Enterprises Ltd. and M/s Jads Services Pvt. Ltd. seeking the dismissal of petitions filed by Yashovardhan Birla, chairman of the Yash Birla Group of industries, under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).
In the said case, the present applications, filed by Kamdhenu Enterprises Ltd. and M/s Jads Services Pvt. Ltd., sought the dismissal of petitions filed by Yashovardhan Birla on grounds of fraud and the initiation of proceedings under Section 340 read with Section 195(1)(b) of the Code of Criminal Procedure, 1973 (Cr.P.C.). The captioned petitions aimed to quash cases instituted by the applicant under Section 138 of the NI Act, pending in the Court of the Metropolitan Magistrate, Patiala House, Delhi.
The main crux of the arguments presented by the counsel appearing on behalf of the applicant was the alleged concealment by the non-applicant concerning the earlier petitions filed under Section 482 of the Cr.P.C. seeking similar relief as in the present petitions. The fact that both petitions primarily sought similar relief was not disputed. The earlier petitions were disposed of by a Single Judge of this Court vide order dated 14.08.2014.
The single-judge bench of Justice Amit Sharma referred to Arunima Baruah v. Union of India and Ors. [LQ/SC/2007/584], wherein it was observed that it is trite law that to enable the court to refuse to exercise its discretionary jurisdiction, suppression must be of a material fact. Material fact would mean material for the purpose of the determination of the lis, the logical corollary whereof would be that whether the same was material for the grant or denial of the relief. If the fact suppressed is not material for the determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction.
The bench considered the argument of alleged suppression of facts in the present petitions regarding previous petitions filed under Section 482 of the Cr.P.C. It emphasized that for suppression to be material, it must affect the rights of the parties in determining the case's merits. It was noted that the order from the previous petitions did not determine the current lis and simply allowed withdrawal with the liberty to raise contentions before the Metropolitan Magistrate. Therefore, the bench concluded that the alleged suppression did not impact the determination of the present case's merits.
The bench also stated that in the present applications, there was no averment made regarding the effect of non-disclosure of the earlier petitions and the order on the merits of the case. The bench expressed the view that the order could not be considered as res judicata between the parties.
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“Similarly, the non-mentioning of the filing of the applications under Section 145(2) of the NI Act and the discrepancy in the language of the list of dates and the content of the main petition is not a material discrepancy which warrants a dismissal of the captioned petitions, at the very outset, without an examination of the merits of the case,” further observed the bench.
Consequently, the bench ruled that the non-mentioning of details of the earlier petitions and their withdrawal did not amount to deliberate concealment. The bench emphasized that prosecution for perjury should be sanctioned only in cases where the perjury appears to be deliberate and conscious, and where there is distinct evidence of the commission of an offense. The bench also highlighted the need for exceptional circumstances and distinct evidence of deliberate perjury to initiate contempt proceedings.
With the above observations, the present applications were dismissed and disposed of accordingly.
Read Order: Inspector TD Cyril Mimin Zou V. Union of India & Ors
Chahat Varma
New Delhi, November 24, 2023: The Delhi High Court has refused to consider the petitioner's request for relaxation in height standards for the Indo-Tibetan Border Police (ITBP) recruitment process, leaving the question open for future consideration.
In the said case, the petitioner, Inspector TD Cyril Mimin Zou, was disqualified in the recruitment process for the ITBP on the grounds that his height measured 163 cm, falling short of the prescribed standard height of 165 cm. In an order dated 17.02.2023, it was directed that the respondent should allow the petitioner to proceed in the selection process. However, the results were to be kept in a sealed cover, and it was specified that the height issue should not be considered while permitting the petitioner to participate in the selection process. The respondents, in compliance with the directive, allowed the petitioner to continue in the selection process, temporarily overlooking the height condition.
Before the division bench of Justice Sanjeev Sachdeva and Justice Manoj Jain, the result of the petitioner was presented in a sealed cover, revealing that the petitioner had scored lower marks in merit compared to other candidates in the same category, i.e., Scheduled Tribe.
The counsel for the respondent asserted that there were no vacancies in the Scheduled Tribe category. In contrast, the counsel for the petitioner argued that there was, in fact, one vacancy in the Scheduled Tribe category within the ITBP.
The bench determined that, without delving into the mentioned controversy, it was evident that the petitioner did not hold the senior-most position in the order of merit within the Scheduled Tribe category. Even if there were one vacancy, the bench concluded that the vacancy should be filled by a person senior in merit to the petitioner.
“Since petitioner has not made it on merit, we are not examining the question of relaxation in terms of height raised by the petitioner. Said question is left open,” observed the division bench.
With the above observations, the Court directed for the release and publication of the petitioner's result and disposed of the petition accordingly.
Read Order: Rakesh Bhatnagar V. Central Bureau of Investigation
Chahat Varma
New Delhi, November 24, 2023: The Delhi High Court has quashed charges against DANICS officer in a cooperative society fraud case. The Court held that the charges were untenable in the absence of the appropriate sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.).
In this case, the Central Bureau of Investigation (CBI) had registered a case against several individuals, including Rakesh Bhatnagar, for offenses under various sections of the Indian Penal Code and the Prevention of Corruption Act. The case pertained to the alleged conspiracy and fraudulent activities involving the Arvind Cooperative Group Housing Society Limited in New Delhi. The society, which was purportedly not functioning in accordance with applicable laws and regulations, was wound up, and subsequently, individuals including Srichand, Anna Wankhede, Mohan Lal, and others were accused of conspiring to cheat the Government of NCT Delhi. The investigation revealed alleged instances of impersonation, forgery, cheating, and use of forged documents to fraudulently obtain land from the Delhi Development Authority at a lower rate. The investigation also uncovered the concealment of material information with a purported mala fide intention and conspiracy between the accused individuals. Rakesh Bhatnagar, working as Joint Registrar in the Registrar Cooperative Societies office, New Delhi, was implicated for irregularly recommending a note sheet, not ensuring the revival or liquidation status of the society, and endorsing recommendations for the approval of a freeze list of society members for land allotment to the Society. It was alleged that as a Joint Registrar, Bhatnagar failed to point out that the society was under liquidation and therefore ineligible for land allotment without revival.
The single-judge of Justice Tushar Rao Gedela bench highlighted that a strong suspicion, founded on material that can be translated into evidence at the trial stage, was essential to maintain an order on charges. It noted that such suspicion should not be based on pure subjective satisfaction or moral notions, but rather be premised on material that allows the court to entertain a prima facie view that the accused had committed the offense.
The bench observed that both the Trial Court and the CBI, presumed that the petitioner, was aware of the order for the liquidation of the society. However, it was admitted by the prosecution that this winding-up order was not part of the subject file and was discovered by the CBI in the society's file maintained by the DDA. Given this admitted factual situation, the bench found it difficult, if not impossible, to conclude that the petitioner had conscious knowledge of the said order. The observation suggested that it would be challenging to determine complicity or culpability on the part of the petitioner for wilfully concealing or overlooking such an order when approving a note put up by his subordinate.
The bench also observed that, on the date of approval by the petitioner, the rule in force indicated that the order of liquidation may not have been in effect. The definition of 'Defunct Society' as per Rule 2 (viii) of the Delhi Co-Operative Societies Rules 1973, which was applicable at the time of the alleged offence, required a formal and written order by the Registrar of Cooperative Societies for a society to be deemed defunct. No such order was found to exist or was presented by the CBI.
Thus, the bench held that the question of the petitioner being part of a larger conspiracy with all other co-accused persons, including other government servants, did not seem to be established. The bench emphasized that suspicion, unless found to be grave, should not lead to the framing of charges.
Further, the bench referred to the judgments rendered in Prof. N.K. Ganguly v. CBI New Delhi [LQ/SC/2015/1543] and A. Sreenivasa Reddy v. Rakesh Sharma & Anr [LQ/SC/2023/812], elucidating the legal principles concerning sanction under Section 197 of the Cr.P.C. The bench highlighted key aspects from these judgments. Firstly, it was emphasized that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of the Cr.P.C., it was vital to establish that the alleged offense was committed in discharge of official duty by the accused. The bench also noted that the protection provided by Sub-section (1) of Section 197 of the Cr.P.C. was available only to public servants whose appointing authority was the Central Government or the State Government, and not to every public servant. Furthermore, the bench clarified that while in a prosecution under the Prevention of Corruption Act, sanction was mandatory for offenses exclusively under the Act, in cases under the general penal law against a public servant, the necessity of sanction under Section 197 of the Cr.P.C. depends on factual aspects. The bench emphasized the importance of establishing a ‘nexus’ between the act and the official duty of the public servant, and noted that to commit an offense punishable under the law can never be a part of the official duty of a public servant.
The counsel for the CBI had not contested the absence of sanction under Section 197 of the Cr.P.C obtained from the Competent Authority against the petitioner. Given this admission, the petition was allowed, and the order framing charges against the petitioner with respect to offenses under the PC Act as well as the offenses under the IPC were quashed and set aside.Top of Form
Read Order: Rihan V. The State (GNCTD)
Chahat Varma
New Delhi, November 24, 2023: The Delhi High Court has granted bail to a man accused of murdering his wife in a dowry death case, citing discrepancies in the prosecution's evidence.
The accused, Rihan, had filed a petition seeking regular bail in connection with an FIR registered under Section 306 of the Indian Penal Code (IPC) and subsequent charges filed under Sections 306, 201, 498A, and 302 of the IPC.
The prosecution's case was based on the information received from GTB Hospital regarding the admission and subsequent death of the victim, Shama. The deceased's father stated that she had complained of being tortured by her husband for money and alleged that the accused had threatened her when she refused to comply with his monetary demands.
The single-judge bench of Justice Vikas Mahajan emphasized that an application for bail involved a comprehensive evaluation of multiple factors. These factors include determining whether there is prima facie or reasonable ground to believe the accused committed the offence, assessing the nature and gravity of the charge, considering the severity of the potential punishment upon conviction, evaluating the risk of the accused absconding or fleeing if granted bail, examining the character, and standing of the accused, gauging the likelihood of the offence being repeated, appraising the reasonable apprehension of witnesses being tampered with, and weighing the risk of justice being thwarted by the grant of bail.
The bench also cited the case of Satish Jaggi v. State of Chhattisgarh [LQ/SC/2007/596], wherein the Supreme Court had held in cases of non-bailable offences, the primary factor to be taken into account while considering a bail application was the nature and the gravity of the offence.
In the present case, the bench observed that the father of the deceased, while initially stating in his examination-in-chief that his daughter used to inform him about the accused demanding Rs. 5 lakhs for purchasing a plot, later, during cross-examination, claimed ignorance about the specific date of the alleged demand made by the accused. Additionally, he admitted to not filing any complaint regarding the harassment or cruelty faced by the deceased at the hands of the accused.
The bench also noted that the children of the accused, who were examined and supported the prosecution's case, were of a young age—around 8 and 9 years. The bench pointed out that, given their young age and the fact that they had been in the custody of the maternal grandparents since the death of the deceased, the possibility of their statements being influenced or tutored cannot be ruled out at this stage.
Further, the bench observed that, considering the unequivocal opinion of the doctor that the cause of death was asphyxia due to antemortem hanging, it prima facie indicated a misalignment between the medical evidence and the prosecution's narrative. The medical expert did not attribute the death to strangulation, emphasizing that ligature marks in hanging cases differed from those in strangulation. The bench, acknowledging the gaps in the evidence favouring the accused, decided that, at this point, the court could not ignore these discrepancies.
The bench noted that, among the 22 witnesses listed by the prosecution, only public witnesses had been examined so far. Consequently, a significant number of witnesses remained to be examined, pointing towards the likelihood of a protracted trial.
Considering these factors and the accused's extended custody, the Court concluded that no useful purpose would be served in keeping the accused in judicial custody. It also emphasized that there was no indication of the accused having a criminal record or being a flight risk, and that material witnesses had already been examined without the possibility of the accused influencing them if granted bail.
Thus, considering the factors in entirety, the Court was of the view that the accused had made out a case for the grant of regular bail.
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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