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Digitalised serving of summons: The need for legislative reform in India

Mohit Singhvi & Priyal Kothar

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With the advent of digital transformation, the insemination of information through fast, reliable and accessible mode of Internet has become more reachable than humans. We live within the contours of the internet because it makes our work easy to do and also far more effective and result oriented. Considering the outbreak of the pandemic and the post era in which we will be living in, using WhatsApp, E-mail, Telegram or any other online modes of facilities available in court is neither surprising nor something fascinatingly new and could prove to be a boon for those suffering from lis pendente at the initial stages of service of summons. This usage per se also strengthens the existence of the right to speedy trial, which is a fundamental right of every citizen. Allowing WhatsApp, Email, Telegram or any other online mode of facilities to serve the court summons has caused huge discussion on the Internet and has become a point of contention. The authors through this article have tried to highlight the need of the hour for online modes to be emphatically used in promoting service of summons in legal proceedings.

 In the modern era, technology provides information at the touch of a single button wherein all major services can be found through electronic media as such. The increasing digitization has not affected the judicial system much but the need of the hour puts forth a question in front of us as to amendments to be brought with regards to digital modes to be used for service of summons. The outbreak of the pandemic witnessed a major use of technology for effectively undertaking judicial activities, such as filing of petitions, arguments and passing of the order. The Indian judiciary has been beleaguered with the traditional approaches to the legal system. However, recent developments in the sphere have sharply rebutted this claim and have opened a Pandora of boxes. The technology has brought about a rapid change in the system and the need of the hour further facilitates the usage of “Digitalisation in the courts”.

 Procedure of Issuing of Summons

Summon is basically a legal instrument which is used by a court to call upon a person who is involved in a legal proceeding. They are served to ensure the presence of a person before the court on the given date of the proceeding and can be issued in both civil and criminal cases whereby the legal provisions are very well embedded under Section 61-69 of the Cr.P.C, 1973 and under Section 27 and Order 5 of the CPC, 1908. The principle method of the service of summons is personal service and the other method is affixing a copy of the summons on the outside door, or by way of a registered post where the defendant resides. In most cases, due to lack of manpower or lack of training, the summons is not timely served which ultimately ruins the purpose of institution of suits/petitions.

The validity of Summons served via Electronic Means was taken into consideration after the amendment in the Civil Procedure Code, 1908. Further, as we look into the Order V Rule 9(2) of Civil Procedure Code which empowers the court to deliver summons in such manner as the court deems fit. Likewise, Order 5 Rule 9(3) uses the expression “any other means of transmission” which includes fax message or electronic mail service. Therefore, it can very well be said that the proposed usage of WhatsApp or any other electronic mode by the court is not against the existing legal provisions rather finds its root and can be said that the same was the legislative intent while framing the law. Serving of summons through electronic media finds its existence even earlier and it cannot be completely said to be a naïve development altogether. There have been instances in the past where the court allowed usages of email or SMS to serve summons. There have been various precedents being laid down which makes us ponder over its effectiveness and the said provision includes transmission of summons through electronic media as well. In Tata Sons Limited & Ors vs. John Doe(s) & Ors., the Hon’ble Delhi High Court permitted affidavit of service through text message, WhatsApp or by email to serve summons to the defendant. In Kross Television India Private Limited & Anr. vs. Vikhyat Chitra Production & Ors., the Hon’ble the Bombay High Court considered the copies of the plaint, Notice of Motion to be served and received via WhatsApp after normal attempts for serving summons failed.

Furthermore, in SBI Cards & Payments Services Pvt. Ltd vs. Rohidas Jadhav the Hon’ble Bombay High Court held that, “For the purposes of service of Notice under Order XXI Rule 22, I will accept this. I do so because the icon indicators clearly show that not only was the message and its attachment delivered to the Respondent’s number but that both were opened.” Not only this, the Hon’ble Delhi High Court went a step ahead in a recent matter and while setting a milestone, allowed the petitioner to serve summons on the respondent through WhatsApp, text messages and email held that, “Double tick on WhatsApp is a prima facie proof of delivery of summons.” Also, The Hon’ble Supreme Court of India in Central Electricity Regulatory Commission Vs National Hydroelectric Power Corporation Ltd. & Ors. held that where the Advocates seek urgent interim reliefs, service of notices may be effected by E-mail, in addition to normal mode of service. The Delhi High Court notified the Rules on February 9, 2011, wherein service by fax and electronic mail was provided for. Following the same, the Hon’ble Andhra Pradesh High Court as well as the Hon’ble Bombay High Court as well has paved the way for such similar rules specially looking into the delay caused by persons who do not wish to be located and escape from the wriggles of law.

Overall if we guise into the precedents available with us, it ex-facie transpires that there is a dire need of amendments to be brought in the Code of civil procedure and Code of Criminal Procedure and other related laws. As a matter of fact, this shows that claiming the usage of WhatsApp or email is not a matter of right of the applicant for the time being as the same awaits codification and as such it is solely dependent upon the discretion of the court and may differ from case to case involving peculiar circumstances as there have been instances where the courts have dismissed the applications filed by the parties for substituted mode of service bereft of those mentioned in Order 5 Rule 20 of the CPC. Arguendo, in Dr. Madhav Vishwanath Dawal Bhakta & Ors. vs. M/s. Bendale Brothers, the High Court of Bombay sumptuously discussed and held that if the Court is satisfied that either the defendant is deliberately avoiding the service, the Court can take into account the modern ways of service and observed that the summons can be served also by courier or by email or by WhatsApp etc.

Here it would not be out of place to mention that, The Hague convention on the Service of Summons, 1965 is applicable where service of summons are to be affected by a foreign court in India or on a foreign national or a corporate entity by an Indian Court. Furthermore, India has opposed all modes of service under Article 10, which means that no service of documents shall be affected by postal channels, and can be done only through the Ministry of Law, Government of India. However, a United States Court has recognized service of summons in India vide facebook and e-mail by holding that there is no impediment under Article 10. In Anupama Sharma v. Union of India, the summons issued by the New York Court was privately delivered to the Petitioner in the proceedings which were pending before the New York Court. However, the Bombay High Court observed that it will not be possible for it to stay the service of summons while exercising its writ jurisdiction under Article 226 of the Constitution of India and the petitioner can take the said objection of non compliance of Article 3, 5 and 10 before the New York Court itself.

Concluding Remarks

 As a crux of the abovementioned cases, it can be deduced that Indian legal system is ready to accept changes only if the vicissitudes align to meet the ends of justice and have a positive impact on the entirety. If we look into this approach where digitalisation can be brought into effect with amendments than various stages of legal proceedings would be simplified and it would also have an effective impact as it would be less time consuming. The use of electronic mode in serving summons is the last resort which means that it should be used when all the other available means are exhausted. Moreover, the Indian judiciary has left not even as single stone unturned whenever it touched the interest of innocent parties at stake. The grundnorm dogma of speedy trial designated as one of the fundamental rights under Article 21 by the application of Article 141 of the Constitution of India, 1950 has been reaffirmed by extending the service of summons through the new and advanced digital platforms is yet another example of judicial activism. Therefore, digitalisation in courts is the need of hour. Moreover, even in the grave situations such as the present pandemic of COVID-19 where it has caused a huge delay in this service of summons, it could have proved to be a boon. Therefore, these electronic modes of serving of summons can be proved to be a boon if given a proper legal emphasis and succulently it can be a major change in the legal system, if the present laws are amended.

Adv. Mohit Singhvi is founder and head, Singhvi & Co. Coauthor Priyal Kothari is pursuing law at Bangalore Institute of Legal Studies.

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Legally Speaking

POSSESSION/OWNERSHIP OF PROPERTY RELEVANT CONSIDERATION FOR PROCEEDINGS AGAINST ELECTRICITY THEFT, OBSERVES GUJARAT HIGH COURT

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The Gujarat High Court in its recent order in the case State of Gujarat Versus Balvantsinh Amarsinh Raj observed while upholding the acquittal of a man under Section 135 of the Electricity Act for alleged unlicensed connection has made it clear that possession/ownership of the property in question has to be factored into consideration.

The bench comprising of Justice Ashokkumar Joshi observed and rejected the State’s appeal on several grounds, which includes the fact that the Police did not call for any certificate or documents to show the ownership or possession of accused for the so-called place of occurrence.

The Court held that the order of the trial court has meticulously considered all the depositions of the witnesses and the state has failed to prove the case against the Accused-Respondent and the trial court’s order did not warrant any interference.

It was observed that while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at by any reasonable person would not be arrived at.

The Deputy Engineer of the South Gujarat Vij Company Ltd lodged a complaint accusing the Respondent of theft of electricity. Alleging, the Applicant did not have a regular connection and he had obtained illegal direct connection from low transmission line. The allegations were made that an average bill of Rs. 2 lacs were prepared and issued to the Accused which was not paid by him and thus an instant complaint was filed.

The Trial’s court order is opposed by the APP by relying on the deposition of several witnesses who were said to be ‘reliable and trustworthy’ and other documentary evidence.

It was argued by the respondent that it was not proved by the Prosecution that the ownership of the premises belonged to the Accused. However, there was no need to interfere with the judgement order.

It was noticed by the bench of Justice Joshi that the lineman at the respective time was cross-examined and had admitted that he had no knowledge of the number of persons who were residing at the place. In the market, the captioned wire which was confiscated was easily available and did not contain any piece of marking paper. Further there was no PVC/Wire wiring at the residential place of the Accused person. It was also admitted by the Panch Witness that theft was not possible through the captioned wires. Another Panch Witness had turned hostile.

It was also admitted by the In-Charge PSO at the Police Station that he merely registered the offence and had done ‘nothing’ except for this. Consequently, there was also no evidence for the possession or ownership of the place of occurrence by the Accused.

Accordingly, the bench dismissed the State’s appeal.

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Legally Speaking

Verbal cruelty in marriage

Pinky Anand

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Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.

At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.

But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.

Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.

WHAT IS MATRIMONIAL CRUELTY?

Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.

The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.

As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.

The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.

As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.

The author has served as the Additional Solicitor General of India.

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Legally Speaking

‘FAILURE TO PROVIDE EVIDENCE OF DECEASED’S INCOME DOES NOT JUSTIFY ADOPTION OF LOWEST TIER OF MINIMUM WAGE IN MOTOR ACCIDENT’

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.

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The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

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Legally Speaking

VIOLATION OF RETRENCHMENT PROCEDURE U/S 25F & 25G OF INDUSTRIAL DISPUTES ACT WARRANTS REINSTATEMENT, NOT MERE COMPENSATION: GUJARAT HIGH COURT

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The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

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Legally Speaking

CENTRE NOTIFIES APPOINTMENT OF ELEVEN ADDITIONAL JUDGES IN PUNJAB & HARYANA HC

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On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

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Legally Speaking

KERALA HC: BAIL GRANTED TO A DOCTOR ACCUSED OF POSTING DEFAMATORY ARTICLES AGAINST LAKSHADWEEP ADMINISTRATIVE OFFICERS

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The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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