Read Order: Anil Kumar V. The State of Kerala
Chahat Varma
New Delhi, November 2, 2023: The Supreme Court has upheld the life imprisonment sentence of a man who burned his wife to death. The Apex Court held that the husband took ‘undue advantage’ of the situation by lighting a matchstick and throwing it at his wife, who was already drenched in kerosene.
In the case at hand, an FIR was initially registered under Section 307 Indian Penal Code (IPC), wherein it was stated that the deceased wife, due to unbearable mental and physical harassment caused to her by the appellant, poured kerosene upon herself to deter the appellant from causing further torture to her and that the appellant with the clear intention to kill her, took advantage of the situation and lighted the matchstick and threw it on her body. Thus, the deceased wife was inflicted with burn injuries by the appellant with clear intention of killing her. Subsequently, when the deceased wife died in the hospital, the case was converted to Sections 302 and 498A of IPC.
The appellant's defence was that he was not responsible for burning his wife and that she had a history of suicidal tendencies. However, both the Trial Court and the High Court rejected this defence due to the substantial evidence on record documenting their frequent quarrels and the harassment the deceased wife endured.
The division bench, comprising Justice Abhay S. Oka and Justice Pankaj Mithal, observed that the appellant and the deceased wife had a history of quarrels, which continued on the fateful day. During their argument, a neighbour visited their house and saw injuries on the deceased wife from the earlier assault. However, he left, intending to return later. Subsequently, the act of pouring kerosene and setting the deceased on fire occurred. The presence of sufficient time between these two acts indicated that there was no sudden quarrel and provocation leading to the burning. The appellant deliberately lit the deceased wife, who was already drenched in kerosene, showing a premeditated intent to kill her.
The bench emphasized that the appellant cannot invoke the 4th Exception to Section 300 IPC merely by claiming that the act was not premeditated, did not stem from a sudden fight, or that his intentions were not malicious. Even if he attempted to douse the fire and save the deceased's life, the benefit of this exception would not apply because he had taken undue advantage of the situation.
The bench observed, “The exception clearly in unequivocal term states that it would be applicable where culpable homicide is committed not only without premeditated mind in a sudden fight or quarrel but also without the offender taking ‘undue advantage’ of the situation.”
The bench noted that in this case, the appellant, upon seeing the deceased drenched in kerosene, took undue advantage of the situation by lighting a matchstick and throwing it at her to cause her to burn. This action of the appellant, taking ‘undue advantage’ of the situation, disqualified him from receiving the benefit of Exception 4 to Section 300 IPC, and the case fell under Part-II of Section 304 IPC.
Consequently, the division bench ruled that the lower courts did not make any error in convicting the appellant and sentencing him to a maximum punishment of life imprisonment.
Read Order: Aditya Khaitan & Ors v. IL and FS Financial Services Limited
Chahat Varma
New Delhi, November 2, 2023: The Supreme Court has recently allowed the filing of written statements in a money recovery case despite the expiration of the limitation period. The Court cited orders issued in response to the COVID-19 pandemic, which extended statutory deadlines.
The present appeals challenged the judgment of the Calcutta High Court dated 26.02.2021. By the said judgment, the High Court denied the applicants/defendants’ prayer to take their written statements on record. The High Court's basis for denial was that the 30-day period for filing the written statements had expired on 08.03.2020. Additionally, the High Court had stated that since the orders of this Court under Article 142 of the Constitution of India had only extended the period of limitation and not the period within which the delay could be condoned, the applications to accept the written statements could not be entertained.
In the present case, IL and FS Financial Services Limited had filed a money recovery suit against nine defendants in August 2019. The 30-day period for filing written statements had expired on March 8, 2020, with an additional 90-day condonable period. However, no statements were submitted by the defendants during this time. Later, they applied to extend the time for filing written statements, citing the impact of the COVID-19 pandemic and the Supreme Court's orders extending limitation periods. The plaintiffs opposed these applications, arguing that the limitations had already expired before the Supreme Court's orders took effect. The Calcutta High Court sided with the plaintiffs, rejecting the written statements.
The division bench of Justice J.K. Maheshwari and Justice K.V. Viswanathan in its observation, noted that during the global pandemic, it was unreasonable to expect the parties to act promptly to protect their rights. This was the moment when the Supreme Court, using its powers under Article 142 of the Indian Constitution, issued orders to extend statutory deadlines, recognizing the unique circumstances.
The bench discussed the various orders related to the extension of limitation periods in response to the pandemic. These orders were issued in suo motu proceedings titled In Re: Cognizance for Extension of Limitation and were dated 23.03.2020, 06.05.2020, 10.07.2020, 08.03.2021, 27.04.2021, and 23.09.2021. They highlighted the contrast between the orders issued before and after the pronouncement of the Sagufa Ahmed case in September 2020.
The bench noted that the orders of 23.03.2020 extended the period of limitation to address the challenges posed by the pandemic, giving litigants more time to file their proceedings. Subsequent orders, including the one dated 08.03.2021, recognized the improving situation with the pandemic and aimed to gradually return to normalcy. These orders excluded the period from 15.03.2020 to 14.03.2021 when computing the limitation period for various proceedings.
The bench emphasized that the orders issued after 23.03.2020 expanded the scope of extension. They not only extended the period of limitation but also excluded the period from 15.03.2020 to 14.03.2021 for the purpose of computing outer limits within which the court or tribunal could condone delays.
In this context, the bench emphasized that the outer limit within which the court or tribunal could condone the delay in filing the written statement was 120 days from the date of service of summons, as stipulated by the amended Order 8 Rule 1, CPC.
Thus, the bench noted that in the case at hand, although the summons were initially served on 07.02.2020, with the 30-day period expiring on 08.03.2020, and the outer limit of 120 days concluding on 06.06.2020, the application for admitting written statements and requesting an extension was filed on 20.01.2021. By applying subsequent court orders issued on 08.03.2021, and onwards, which excluded certain time periods, the applications submitted by the applicants on 19.01.2021, were considered to be well within the extended time limits. Therefore, the bench ruled that the judgment of the High Court should be set aside based on the revised time limitations provided in these orders.
For the reasons stated above, the appeals were allowed and the written statements filed on 20.01.2021 were directed to be taken on record.
Read Order: IFFCO Tokio General Insurance Co. Ltd v. Geeta Devi and others
Chahat Varma
New Delhi, November 2, 2023: The Supreme Court has held that an insurance company cannot disclaim liability based on the vehicle owner's failure to verify the driver's license.
In this case, IFFCO Tokio General Insurance Co. Ltd. had challenged an order passed by the Delhi High Court, which had reversed the award of the Motor Accident Claims Tribunal. The Tribunal's award had granted the insurance company the right to recover the compensation amount, but the High Court denied this right.
The dispute arose from a fatal accident on 09.05.2010 when a Tempo vehicle, operated recklessly, collided with a motorcycle, causing fatal injuries to Dharambir. Dharambir's dependents, including his parents, widow, and children, sought compensation from the Motor Accident Claims Tribunal. The respondents in the case were Ujay Pal, the Tempo vehicle's driver, Netra Pal Singh, the owner of the vehicle (deceased during the case, represented by legal representatives), and the petitioner-insurance company. The Tribunal, in its Award dated 06.07.2018, ruled in favour of Dharambir's dependents and awarded them Rs.13,70,000 as compensation with interest. However, the Tribunal found that the Tempo driver possessed a fake driving license and, therefore, held that the insurance company was not liable to pay the compensation. The Tribunal directed the insurance company to deposit the awarded amount with the liberty to recover it from the owners of the Tempo. Dissatisfied with this decision, the vehicle's owners filed an appeal before the Delhi High Court, leading to the contested order dated 11.05.2023. The petitioner-insurance company sought to challenge the denial of its right to recover the compensation amount.Top of Form
The division bench of Justice C.T. Ravikumar and Justice Sanjay Kumar emphasized that neither the Motor Vehicles Act, 1988 nor the insurance policy required vehicle owners to verify a driver's license with the transport authorities as a standard practice. Employers typically rely on licenses issued by seemingly competent authorities as long as they are valid. Therefore, the insurance company could not disclaim liability based on the vehicle owner's failure to verify the driver's license with the Regional Transport Office (RTO) because no such mandatory condition was prescribed by the law or the insurance policy.
The bench observed that the petitioner-insurance company failed to raise the plea that the vehicle owner allowed Ujay Pal to drive the vehicle, knowing that his license was fake. The insurance company's argument was that the accident resulted from the victim's negligence. Additionally, the insurance policy did not impose an obligation on the vehicle owner to verify the driver's license with the RTO. As a result, the claim by the insurance company that it had the right to recover compensation from the vehicle owners due to a wilful breach of the insurance policy's condition, which required a licensed driver, lacked proper pleading and proof.
The bench further placed reliance on the judgment rendered in Ram Chandra Singh vs. Rajaram and others [LQ/SC/2018/993], where the issue revolved around whether an insurance company could be relieved of liability due to the insured vehicle being driven by an individual without a valid driver's license at the time of the accident. In this case, the Court emphasized that it is only when the owner was aware of the fake driving license held by the driver but still allowed them to operate the vehicle that the insurer could be absolved of liability. Importantly, the mere fact that the driver's license was fake, in and of itself, would not release the insurer from its obligations.
Thus, the bench held that when a seemingly valid driving license is presented by an individual employed to operate a vehicle, the burden falls on the insurance company to demonstrate that there was a failure on the part of the vehicle owner to conduct due diligence regarding the authenticity of the license. This burden applies unless the license is evidently fake, has already expired, or there are genuine doubts about its validity.
In the present case, it was ruled that,no evidence was presented that could establish that the deceased vehicle owner should have verified Ujay Pal's driving license. As a result, the petitioner-insurance company had no right to recover the compensation amount from the present owners of the vehicle. The Delhi High Court's order, which upheld this principle, was deemed unassailable, both in terms of facts and the law.
As a result, the special leave petition was dismissed. The court also expressed its concern about insurance companies routinely raising such pleas without proper factual and evidentiary support, leading to unnecessary wastage of curial time and effort.
Read Order: Nikesh Kumar V. Suman Devi
Chahat Varma
New Delhi, November 1, 2023: In a recent case, the Supreme Court has exercised its discretion under Article 142(1) of the Constitution, to grant divorce to a couple on the grounds of irretrievable breakdown of marriage.
The case involved Nikesh Kumar, who appealed the Jharkhand High Court's decision to set aside the divorce decree originally granted to him. Nikesh Kumar and Suman Devi were married on December 8, 2004, but their marriage deteriorated quickly, leading to them living separately within a year. Nikesh Kumar sought a divorce, citing cruelty and desertion as grounds, and the Family Court in Hazaribagh, Jharkhand, granted the divorce decree on August 9, 2012. Subsequently, Nikesh Kumar remarried and had a child with his new spouse. Suman Devi filed an appeal challenging the 2012 divorce decree, and the Jharkhand High Court allowed her appeal on July 2, 2018.
The division bench, comprising Justice Sanjiv Khanna and Justice S.V.N. Bhatti, referred to the case of Shilpa Sailesh v. Varun Sreenivasan [LQ/SC/2023/555], where the court had established that a marriage can be dissolved under Article 142(1) of the Constitution when it irretrievably breaks down. The court had outlined critical factors for assessing this breakdown, including the duration of post-marriage cohabitation, the last cohabitation date, the nature of allegations, legal proceedings' orders, cumulative impact on the relationship, attempts at dispute resolution through court or mediation, and a separation period exceeding six years.
In the specific case, the division bench found that the appellant and the respondent had been living separately for over 17 years, with their last cohabitation in November 2005. The court concluded that the established facts demonstrated a complete failure of the marriage, with no prospect of reconciliation or cohabitation. Therefore, the court found it unjustified to continue the formal legal relationship between the parties.
Based on these circumstances, the court invoked its authority under Article 142(1) of the Constitution and issued a decree for divorce. The divorce was granted on the grounds of the irretrievable breakdown of the marriage between the appellantand the respondent.
Read Order: Court on its own motion V. Naresh Sharma
Chahat Varma
New Delhi, November 1, 2023: The Delhi High Court has sentenced a man to six months in jail for contempt of court in a suo moto proceeding.
Briefly stated, the contemnor had filed a writ petition under Article 226 of the Constitution, seeking a direction for immediate criminal prosecution of several respondents, including the Union of India, Delhi Police, Mumbai Police, Bengaluru Police, Tata Companies, Tata Sons Private Limited, and others. The writ petition was disposed of by a single bench of the Delhi High Court. The contemnor then filed an LPA challenging the single bench's judgment. When the High Court issued a show cause notice to the contemnor, he filed a reply making objectionable and shocking allegations against the single judge, government officials, and the Supreme Court. The contemnor also made a complaint to the SHO of Tilak Marg Police Station, Delhi, and later sent an addendum to the complaint.
The division bench of Justice Suresh Kumar Kait and Justice Shalinder Kaur noted that the Contemnor, in an email dated 29.08.2023, discussed three petitions related to mob attacks, the Delhi Police, and his own situation. Furthermore, he raised allegations involving Justice Sharma of this Court and the Delhi High Court, implying their involvement in exacerbating criminal activities, thereby adding complexity to the criminal situation.
The bench noted that the contemnor had also sought criminal action against the single judge, alleging a violation of Article 14 of the Indian Constitution for mixing unrelated matters. The contemnor also made derogatory allegations against the Honourable Supreme Court and even suggested the imposition of the death penalty.
The bench stated that despite being issued a show cause notice, the contemnor did not plead guilty. Instead, he filed a highly disrespectful reply, stating that he has no remorse for his actions and stands by them. He also used derogatory language for the learned single bench judge, calling him a thief.
The bench remarked that the contemnor, who claimed to have received education in engineering and science from prestigious institutions such as the Indian Institute of Technology in Kanpur and Bombay, as well as in the USA, was expected to hold a deep respect for the Constitution of India and to have faith in the country's legal system.
“As a responsible citizen of the Country, the Contemnor is expected to set-forth his grievances in a civilized manner, maintaining the dignity of the Court and judicial process of law,” said the court.
The Central Government standing counsel representing the Union of India, requested that the contemnor, be directed to offer an unconditional apology for his conduct and allegations. However, the contemnor maintained that he stands by the allegations he made, both against the single bench and against the officers of the Government of India and the judiciary.
The court opined that the contemnor had no repentance for his conduct and actions.Consequently, the court found the contemnor guilty under the Contempt of Courts Act, 1971, and sentenced him to undergo six months in simple imprisonment, along with a fine of Rs. 2,000.
Read Order: Ajay Kumar V. The State NCT of Delhi
Chahat Varma
New Delhi, November 1, 2023: In a significant ruling, the Delhi High Court has converted consecutive sentences into concurrent sentences in a case involving rape and suicide. The court held that the two offenses were interconnected and that the suicide was a result of the trauma, humiliation, and shame that the victim felt after being raped.
In the case at hand, the applicant/appellant was originally sentenced to 10 years of rigorous imprisonment (RI) with a fine of Rs. 1,00,000 for offenses under Section 376 of the Indian Penal Code, 1860 (IPC), and 7 years of RI with a fine of Rs. 50,000 for the offense under Section 306 IPC. The sentences were ordered to run consecutively. The applicant/appellant had already served a total sentence of 7 years, 7 months, and 25 days. He requested the court to convert the consecutive sentences into concurrent sentences, expressing his willingness to accept the punishment without pursuing the appeal if the court granted this conversion.
The relevant facts of the case involved the unfortunate and untimely demise of a young lady namely 'P', who is stated to have committed suicide. The prosecution alleged that the accused had committed forcible sexual intercourse with the deceased on several occasions and upon feeling unable to narrate the rape incident to anybody on account of shame and also upon the instigation and threats of the accused that he would show her obscene video to everybody, if she did not oblige her, she committed suicide by hanging.
The single-judge bench of Justice Tushar Rao Gedela noted that it had the discretion to convert consecutive sentences into concurrent sentences under Section 427 of the Code of Criminal Procedure, 1973 (Cr.P.C.). It also observed that one of the primary principles for exercising this discretion was whether the two offenses are interconnected with the facts of a particular case in a way that the court could reasonably conclude they formed a single unitary aspect, despite being distinct offenses.
The bench observed that in the present case, although the two offenses were distinct and may have occurred at different times, the causal facts that gave rise to these offenses were intricately interconnected and interwoven in such a way that they could not be separated.
“This of course is not to say that the offences alleged and proved against the applicant/appellant are less heinous or are condonable,” added the bench.
The bench found that the deceased's suicide was a direct result of the trauma, humiliation, and shame she experienced while the accused was raping her over a period of time. The prosecution did not argue that the deceased committed suicide for any other reason, unrelated to the accused or the rape. Rather, the prosecution's case was that the rape, committed over time by the accused, led to the deceased taking the tragic step of taking her own life.
This above analysis led the court to apply the provisions of section 427 Cr.P.C., 1973 to the present case. As a result, the benefit of this provision was granted to the applicant/appellant, and consequently, the sentences imposed by the Trial Court for offenses under Section 376 and Section 306 IPC, which were originally ordered to run ‘consecutively’, were now directed to run ‘concurrently’.
Read Order: Birbal Nath V. The State of Rajasthan & Ors
Chahat Varma
New Delhi, November 1, 2023: The Supreme Court has modified the conviction of accused in a murder case, holding them guilty of culpable homicide not amounting to murder instead of murder. The Court also emphasized the importance of the testimony of an injured eyewitness as a significant piece of evidence that should not be easily discarded by a court, even if minor discrepancies exist.
The present appeals arose from the judgment and order passed by the Rajasthan High Court. In this judgment, the accused, who had previously been convicted by the Trial Court for various offenses under the Indian Penal Code (IPC), were acquitted of the major charges under Sections 302 and 307. Instead, they were convicted for the lesser offenses under Sections 147, 148, 323, 324, and 325/149.
In the case at hand, an FIR had been lodged by the complainant, Birbal Nath. The FIR revealed that, while the complainant's uncle, Chandernath, and his aunt, Rami (injured witness), were working in their agricultural field, a group of seven armed men approached the field. All the accused, armed with weapons, initiated an assault on the complainant's aunt and uncle, resulting in severe injuries to both. Tragically, Chandernath passed away while being transported to the hospital. Subsequently, the police initiated an investigation and filed a chargesheet against all the accused. The case was later transferred to the Sessions Court, where charges were framed under various sections of the IPC, including 147, 148, 302, 323/149, 324/149, 325/149, 447, 307/149, against all six accused mentioned in the chargesheet. The Trial Court convicted all the accused under these sections and sentenced them, including imposing rigorous life imprisonment. The accused then filed an appeal before the High Court, leading to a partial allowance of their appeal.
The division bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia emphasized that statements given to the police during an investigation under Section 161 are considered ‘previous statements’ under Section 145 of the Indian Evidence Act. These previous statements can be used for the limited purpose of contradicting a witness. However, the mere act of contradicting a witness does not automatically mean that the witness's credibility is entirely discredited. The bench expressed the view that the learned judges of the High Court had erred in this regard.
The bench emphasized that one cannot lose sight of the fact that the witness in question, PW-2 Rami, was an injured eyewitness and the wife of the deceased. Her presence in the agricultural field on the day of the incident was natural. Her statement during examination-in-chief provided details of the incident and the specific roles played by each of the assailants. The bench recognized that this witness, being a woman residing in a village and the wife of a farmer who worked on his land, may exhibit some degree of articulation limitations when testifying in a court of law. The rural setting and the witness's level of articulation were considered relevant factors when evaluating the credibility of her testimony.
The bench referred to the case of Tahsildar Singh v. State of U.P [LQ/SC/1959/95], wherein it was held that to contradict a witness would mean to ‘discredit’ a witness. Therefore, unless the former statement of a witness is capable of ‘discrediting’ that witness, it would have little relevance. A mere variation in the two statements would not be enough to discredit a witness.
The bench criticized the High Court's assessment of the case, both in terms of facts and law. It emphasized the importance of the statement of an injured eyewitness as a significant piece of evidence that should not be easily discarded by a court, even if minor discrepancies exist.
The bench found that the reasons given by the High Court for disbelieving the statement of PW-2 were incorrect. The High Court had discredited her statement due to discrepancies between her earlier statement under Section 161 Cr.P.C. and her examination-in-chief. The bench, however, emphasized that these discrepancies were not sufficient to completely discredit an injured eyewitness. Furthermore, the recovery of weapons and blood-stained clothing from the accused was not in doubt, and the manner of recovery was also found to be reliable. The High Court's conclusion that the assailants did not have a common intention or common objective in killing the deceased Chandernath was not entirely correct, according to the bench.
The bench acknowledged that the incident might not have been premeditated, taking into account the overall circumstances presented. The witness, PW-2, was considered reliable, but certain contradictions in her statements were noted. Despite these contradictions, the bench did not completely discredit her testimony. They concluded that the case should be classified as culpable homicide not amounting to murder rather than murder. The contradictions, in the given context, provided a benefit of doubt to the accused, and the attack was seen as falling under Exception 4 to Section 300, as it was not premeditated but occurred in a sudden fight in the heat of passion upon a sudden quarrel without the offender taking undue advantage or acting in a cruel or unusual manner.
In conclusion, both the appeals were allowed, and the order of the High Court was quashed. The findings of the Trial Court were modified, converting Section 302 to Section 304 Part I IPC and Section 307 to Section 308 IPC. The accused were directed to surrender before the court to carry out the remaining sentence.
Read Order: Sudhir Singh and Others V. State of U.P. and Others
Chahat Varma
New Delhi, November 1, 2023: The Supreme Court has upheld the Allahabad High Court's order rejecting the claims of three ex-servicemen for recruitment as Village Development Officers in Uttar Pradesh.
In this case, the appellants were serving in the Armed Forces when they applied for the position of Village Development Officer in response to an advertisement from the Uttar Pradesh Subordinate Service Selection Commission. They applied as ex-servicemen and received temporary appointment letters in 2019. However, their appointments were later challenged by the District Development Officer, Badaun, who argued that they did not meet the ex-servicemen criteria and lacked the required Computer Concept (C.C.C.) Certificate. Consequently, in 2020, their appointments were declared null and void due to these reasons.
The State contended that the appellants were ineligible for appointment because they did not possess the required qualifications. They argued that the appellants were not ex-servicemen at the time of the advertisement, and none of them had the necessary C.C.C. Certificate when they applied. The State also claimed that the appellants' failure to disclose their actual qualifications at the time of application constituted grave misconduct.
The appellants, on the other hand, argued that the authorities had accepted the documents they provided, indicating they possessed the necessary qualifications for the job. They asserted that the date of their appointment should be considered the date when the appointment letters were issued in May 2019. Prior to this, appellant no.1 was released from the Armed Forces on July 31, 2016, appellant no.2 on November 30, 2016, and appellant no.3 on February 29, 2016. Regarding the lack of a C.C.C. Certificate, the appellants claimed they had higher qualifications than required and already possessed an equivalent qualification, which led the Commission to recommend their appointment.
The division bench, comprising of Justice Vikram Nath and Justice Ahsanuddin Amanullah, emphasized that eligibility must be determined based on the cut-off date established by the date of the advertisement, which is the last date for the submission of application forms, unless extended by the relevant authority. In this case, the bench held that none of the appellants could be considered ex-servicemen at the time of the advertised position because they were still actively serving in the Armed Forces.
The bench made a reference to the judgment in the case of State of Bihar v. Madhu Kant Ranjan [LQ/SC/2021/3212], in which the court had held that candidates or applicants must meet all the conditions and eligibility criteria specified in the advertisement before the cut-off date mentioned therein, unless the recruiting authority extends that date.
The bench clarified that, in the case at hand, there was no concept of serving personnel being deemed as ex-servicemen. It would not be appropriate for the court to interpret otherwise. Additionally, they mentioned that it would be unfair to a significant number of individuals in similar situations as the appellants who were not ex-servicemen at the time of the advertisement but later qualified for the category. These individuals did not apply at the relevant time, and it would be unjust to interpret the rules differently for the appellants in this case.
Further, the court noted that it was unnecessary to delve into the question of equivalence regarding the C.C.C. Certificate, but due to the arguments presented, they reiterated that the advertisement clearly stated the essential qualification as a C.C.C. Certificate. Since the appellants failed to demonstrate such equivalence despite the opportunity to do so, the court found no merit in their appeal.
Consequently, the appeal was dismissed, and the impugned judgment was upheld. However, the court specified that any payments made to the appellants for the period during which they worked as Village Development Officers would not be subject to recovery. If any such recoveries had already been made, they were to be returned to the appellants without delay.
Read Order: Chen Khoi Kui V. Liang Miao Sheng & Ors
Chahat Varma
New Delhi, November 1, 2023: In a recent judgment, the Supreme Court has upheld the authority of the Registrar of Societies to cancel the registration of societies under the West Bengal Societies Registration Act, 1961.
The central question addressed in this case was whether the Registrar, who has the power to grant registrations under the West Bengal Registration Act 1961, also possesses the authority to cancel such registrations.
This case originated from a dispute between two factions of Chinese tannery owners in Kolkata over the management of Pei May Chinese School. The school, founded in 1929 in Kolkata's China Town area, was later relocated to Tangra by the Chinese Tannery Owners Association. Although the Association had been operating since 1944, it formally registered as a society in 1967 and managed its school, Pei May School. However, a claim was made by the appellant, who asserted to be the school's secretary, arguing that it was under the jurisdiction of the Chinese Tannery Owners Association.
The conflict escalated when the Registrar granted registration to Pei May Chinese High School as an independent society on February 19, 2010, using an address disputed by the Chinese Tannery Owners Association. The appellant contended that the Association had no legitimate affiliation with the school. This led to a complaint filed with the Registrar, and subsequently, letters from seven individuals, disputing their roles in the school society, alleging forgery, and requesting the cancellation of the school's registration.
Legal disputes between the parties began in 2011, with the central issue focusing on the Registrar of Societies' authority to cancel an order issued on January 25, 2012, in response to an application alleging a forged signature. Notably, a criminal case related to the forgery allegations was under investigation. The Division Bench of the Calcutta High Court found that the Registrar's determination that the signature was not forged was premature, despite the absence of explicit provisions for substantive review in the relevant legislation.
On April 19, 2016, the Registrar issued an order stating that Pei May School should continue to operate under the Chinese Tannery Owners Association, registered under the West Bengal Societies Registration Act, 1961. The Registrar's rationale was based on the emergence of a new society, Pei May Chinese High School, at the same address, without the necessary amendment to the Memorandum of Association of the Chinese Tannery Owners Association, violating the law. Consequently, the Registrar cancelled the registration of Pei May Chinese High School, citing Section 22 of the Bengal General Clauses Act, 1899.
Efforts to challenge the Registrar's order through legal petitions were unsuccessful, and a division of opinion emerged within the Division Bench of the Calcutta High Court during an appeal filed by respondents contesting the Single Judge's decision to uphold the cancellation order.
Thereafter, the Referee Judge referred to judgments of the Supreme Court, including those in Grindlays Bank Ltd. -vs- Central Government Industrial Tribunal and Others [LQ/SC/1980/487] and Kapra Mazdoor Ekta Union -vs- Birla Cotton Spinning and Weaving Mills Ltd. and Another [LQ/SC/2005/376] and concluded that the Registrar had effectively exercised his power of substantive review without taking into account the successful application for registration.
The division bench of Justice Aniruddha Bose and Justice Sudhanshu Dhulia held that the principle of constructive res judicata did not apply in this case. The appellant had argued that the judgment of the Division Bench, had attained finality and, therefore, it was not permissible for the Division Bench and subsequently the Referee Judge to re-examine the Registrar's exercise of power. However, the bench found that the Referee Judge had not addressed any issue already covered by the Division Bench's decision. The Division Bench had explained the position of the law regarding substantive review and procedural review, and the Referee Judge had applied the same principles to assess the Registrar's order.
The bench further opined that the closure of the criminal case and the discharge of the accused (respondent no.14) did not conclusively resolve the dispute between the two sets of parties regarding the allegations of filing false and fabricated documents before the Registrar of Societies. They highlighted that the closure report and the discharge in the criminal case did not equate to a final determination of the dispute in the civil matter.
Thus, the bench expressed the view that the challenged judgment did not have any legal shortcoming that would justify their intervention or interference.
Accordingly, the present appeal was disposed of.
Read Order: Manak Chand @ Mani V. The State of Haryana
Chahat Varma
New Delhi, October 31, 2023: The Supreme Court has acquitted a man of rape charges, holding that that the prosecution had failed to prove that the girl was a minor at the time of the alleged incident and that there was no evidence to suggest that the sexual intercourse was non-consensual.
In this case, the prosecution's version was as follows: On 02.09.2000, Pappu, who is the elder brother of the appellant, asked Gian Chand (complainant), his father-in-law, to send Gian Chand's younger daughter (prosecutrix) to Pappu's house to take care of her sister, who had recently given birth to a child. The prosecutrix was allegedly 15 years old at the time. She was sent by her father to live with her sister's matrimonial family for a temporary period. More than a month later, the prosecutrix returned to her own house and disclosed to her mother that, during her stay at her sister's house, the appellant, Manak Chand @ Mani, had raped her. Allegedly, this offense occurred on two to three occasions. Initially, due to the family relations, efforts were made to settle the matter, and both families had even agreed to the marriage of the prosecutrix with the appellant. However, it is alleged that the appellant's family later declined this offer, leading to the lodging of a FIR under Sections 376, 342, and 506 of the Indian Penal Code (IPC).
A three-judge bench of Justice Sanjay Kishan Kaul, Justice C.T. Ravikumar and Justice Sudhanshu Dhulia opined that the testimony of the prosecutrix did not inspire confidence. They pointed out several reasons for their scepticism.
The bench noted that the prosecutrix alleged that the first incident of rape occurred on 12.09.2000 but the prosecutrix did not disclose this to anyone immediately. She later alleged rape on two or three different occasions, but did not provide specific dates and times. Secondly, evidence presented during the trial, particularly from a school register submitted by a witness (PW-2), indicated that the prosecutrix had attended her school on the same day, when she alleged the first incident of rape. This was at a different location from where she claimed to be staying at the time, which raised doubts about the credibility of her story. Furthermore, the prosecution admitted that the FIR was filed only after the initial proposal of marriage was turned down. This raised questions about the motivations behind the allegations.
Further, the bench observed that the primary evidence used to establish the prosecutrix as a minor (less than sixteen years of age) was the school register of Government Girls High School. However, the bench noted that this date of birth was recorded not based on the statement of the prosecutrix's parents but by someone else, and it was derived from a transfer certificate of Government Primary School. Importantly, the transfer certificate that served as the basis for recording the date of birth was never produced in court.
The bench referred to the case of Birad Mal Singhvi v. Anand Purohit [LQ/SC/1988/362], where the Supreme Court had observed that the date of birth recorded in a school register would lack evidentiary value unless supported by the testimony of the person who made the entry or the person who provided the date of birth.
Thus, the bench stated that, in their opinion, the evidence provided by the prosecution regarding the age of the prosecutrix, based on the school register, was not adequate to establish that the prosecutrix was less than sixteen years of age. Therefore, it was neither safe nor fair to convict the accused, especially given the critical significance of the prosecutrix's age in the case.
The bench also pointed out that, given the significance of age as a determining factor, the prosecution should have conducted a bone ossification test to establish the age of the prosecutrix. However, this essential step had not been taken in the present case.
The bench highlighted that the prosecution's case included the claim that the proposal for the marriage of the prosecutrix with the appellant was initially accepted by the appellant's family. It was only when the appellant refused the marriage offer that the FIR was lodged. The bench considered these circumstances, along with the relative ages of the prosecutrix and the accused, as factors that indicated the alleged act might have been consensual rather than rape. Furthermore, the bench emphasized that the age of the prosecutrix was a crucial factor in determining whether the act constituted rape. However, the medical evidence indicated that she was over 16 years of age. The only evidence provided by the prosecution to establish the date of birth as 04.04.1987, which was the school register, had not been conclusively proven. This raised doubts about the veracity of the rape allegations in the case.
Thus, the bench determined that the prosecution failed to conclusively prove that the prosecutrix was less than sixteen years of age at the time of the alleged crime, which should have led to the benefit of the doubt in favour of the appellant. Secondly, they were not convinced that the elements of rape, as defined under Section 375 of the IPC, were met in this case, as there was a lack of evidence suggesting non-consensual sexual intercourse between the appellant and the prosecutrix.
As a result of its findings, the court allowed the appeal and overturned the judgments of both the Punjab and Haryana High Court and the Trial Court. Consequently, the appellant was acquitted of the charges under Section 376 of the IPC.
Read Order: Bhisham Lal Verma v. State of Uttar Pradesh and another
Chahat Varma
New Delhi, October 31, 2023: In a significant decision, the Supreme Court has ruled that individuals cannot file multiple successive petitions under Section 482 of the Criminal Procedure Code (Cr.P.C.) to challenge the same order or proceeding, particularly when all the grounds for challenge were accessible at the initial filing of the petition.
The ruling comes in a case where the petitioner, a government official, was accused of irregularities in the construction of toilets under a government scheme and embezzlement of public funds. After the government granted sanction to prosecute him, he filed a petition under Section 482 Cr.P.C. challenging only the sanction order. The Allahabad High Court granted him permission to approach the Trial Court to challenge the sanction order. However, much later, the petitioner filed a second petition under Section 482 Cr.P.C., seeking to quash the charge sheet, the cognizance order, and the proceedings against him. The High Court dismissed this petition, holding that the petitioner could not keep challenging the proceedings one by one and that he should have raised all his grounds for challenge in the first petition itself.
The division bench of Justice C.T. Ravikumar and Justice Sanjay Kumar endorsed the judgment in S. Madan Kumar vs. K. Arjunan [LQ/MadHC/2006/237], which was delivered by the Madras High Court. This judgment had emphasized that a person invoking Section 482 of the Cr.P.C. should present all available pleas honestly at the outset and should not approach the court with instalment pleas. While it acknowledged that changes in circumstances during a criminal case might warrant invoking the court's inherent jurisdiction, it highlighted that a person, when aware of all the facts and circumstances, cannot withhold some of them to file another petition seeking the same relief.
The bench noted that while there was no absolute rule prohibiting a second petition under Section 482 of the Cr.P.C. in every situation, the permissibility of such a petition depends on the specific facts and circumstances of each case.
“Permitting the filing of successive petitions under Section 482 Cr.P.C. ignoring this principle would enable an ingenious accused to effectively stall the proceedings against him to suit his own interest and convenience, by filing one petition after another under Section 482 Cr.P.C., irrespective of when the cause therefor arose. Such abuse of process cannot be permitted,” remarked the division bench.
With the above observations, the court concluded that in the case at hand, the charge sheet and the cognizance of the case were already in place before the first petition was filed under Section 482 of the Cr.P.C. In that initial petition, only the sanction order was challenged. Therefore, the petitioner was not allowed to later invoke the High Court's inherent jurisdiction to challenge the charge sheet and cognizance order. The court determined that the order of the Allahabad High Court, which upheld this position, was sound and did not warrant any interference.
Accordingly, the special leave petition was held to be devoid of merit and was dismissed.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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