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Need for protection in fashion law from infringement of copyright issues

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ABSTRACT

Fashion law is an inherent aspect of Indian culture. It is a lawful field that emerges throughout the life of a cloth piece or design frill. Some crucial issues in fashion law which arise are infringement, copyright issues, incorporated protected innovation, and business. Fashion houses and designers face different problems explicit to the industries. This comprehends the circumstances and creates hindrances to licensed innovation security. Thus fashion law is a new claim to the territory of training, it is picking up force and is making efforts to significant concentration. One in the fashion industry needs to take comprehensive shields under different enactments to get comprehensive security. The fashion industry has different provisions of law and conventional laws for the security of intellectual property rights. The customers who buy clothes or accessories from the fashion industry are also a part of this industry. This article will discuss all the necessary involvements of the fashion industry with examples, legal protection, virtual reality, and many more.

Keywords: fashion industry, fashion markets, copyright, ownership, infringement, property rights, fashion, designs, protection

INTRODUCTION

The fashion industry is said to be an apparel industry that brings trillions of dollars annually and it is a very known fact. The fashion industry employs millions of different people around the world where the tacit contribution of fashion goes unnoticed. Fashion has a broad spectrum of categories which has become a global phenomenon. Before clothes and jewelry were only made for the use of other practical purposes but now amongst the influencers and beauty gurus, the apparel industry. This is a manifestation of self-identity. This has become an expression of purity or aesthetic and transcends mere utility. After doing so much, the fashion industry remains weak with the legal protection offered. Fashion law has few requirements which arise from a fact known as “sui generis” because the fashion industry is far-ranging and is not limited to intellectual property such as trademarks and copyrights.

INDIA: LEGAL PROTECTION GIVEN IN OUR COUNTRY

Anyone can avail themselves of different forms of protection for their fashion-related works. If we talk about the intellectual property acts of the country, although some are frequently amended, some important areas do not clear the issues that come up in the fashion and apparel industry. We can take an example of visual appeal which cannot be granted any protection. In India, the fashion industry is unique and has handloom creators. The intellectual property rights of India protect different components of fashion. The Designs Act, 2000 protected the registered designs of fashion. If any proprietor claims himself to be the proprietor of a new design or his original design, has to send an application for the registration of such design . However, according to the Copyright Act, 1957, the registration of design and copyright over a particular article cannot co-exist .

If we look very carefully, we find that there are no copyright laws or any design act which gives full protection to all the creators in the fashion industry. The Copyright Act only protects the original and own work of the artist and the Designs Act works to protect the industrial application of the particular design .

EXISTING PROTECTION OFFERED TO FASHION: PROBLEMS AND THEIR OCCURRENCE

Dynamism is a crucial factor or component of the fashion industry. The fashion industry is constantly changing and is coming up with new trends now and then and with new artistic works. Every fashion house releases plenty of articles in a year to be successful. Keep this situation in mind, the registration requirements under different acts like designs act, copyright acts, or IP acts can pose as an encumbrance because it is very time-consuming. The registration procedure takes a long time and without proper and legal registration, no such protection is offered. Thus, the danger of the artistic work of the creator is being exploited in a way chosen by the creator looms large. The fashion industry also undergoes a lot of damage. When the pecuniary damages come to fashion dispute, it usually does not exceed Rs 50,000 but the threshold has to be altered immediately. Thus, the value of all the fashion articles gets undermined, especially the luxury ones which are subject to litigation. There is a huge problem in the fashion industry. If the main design is copied from a fashion industry but the patterns and garments which are used are mutated. This creates the work impression of the person not copied or infringed. This as a result seeks the remedies for piracy under the present legislation.

KNOCKOFFS: IS IT A PROBLEM?

Let us talk about a local Kanchipuram Saree artisan. So as it is known to most of us, this saree work is copied by large fashion markets and houses and sold on a larger scale. The local handloom manufacturers or creators lack certain resources to secure the IP protection of their fashion work. In addition to the local handloom creators, these local people do not have additional resources or materials which will secure IP protection. Thus for them, a small loss in income can result in the shutting down of their entire business because they cannot compete with premium fashion markets. No one will appreciate the fact that they are themselves the real owners of the designs only because they are local and the latter is a big fashion store with so many customers. The local handlooms exist in abundance in India and all-around the year contributes to the fashion industry. Our country needs proper holistic legislation which will protect the work and will not push them to the right to exploitation. Their right can be enforced in the cases of piracy.

The well-known and famous street shopping in Sarojini Nagar in Delhi is quite popular. The clothes found in those shops are of pretty good quality at reasonable prices. Even street shopping in Linking road in Mumbai is also very much popular. Every block there in Mumbai or Delhi has knockoffs that are sold for one-third or very less than the original. In today’s times, consumerism and technology are always together and Instagram and Facebook stores have also come up where people are doing online business through these sites. Luxury knockoff items are sold at throwaway prices. It is very much difficult to initiate a suit against every knockoff. However, if litigation is commenced against every knockoff, it will take long years to conclude the case. So, it is not possible to apply for legal remedies against knockoffs. Moreover, the legal ecosystem must be strengthened with strong laws, especially for the fashion industry.

ANALYZING PANDEMIC TIME FASHION LAW

The promotional fashion shoots, photographs, and fashion activities are sine qua non for the operation of the fashion industry. As the pandemic struck the country, everyone was sitting in their homes. But the fashion shoots still went on. The fashion industry and people have come up with photoshoots at their homes themselves instead of studios. The fashion industry is rising in novel and innovative ways with self-shot editorials known as “FaceTime Shoots “ . This is said that fashion shoots through virtual reality and artificial intelligence . This has given rise to digital promotion. Different statements regarding the protection of IP are being raised afforded to the new status quo.

The first question which comes to mind regarding these collaborative efforts is copyright law and authorship. As such a position has given rise to some debates, it is pertinent that the subjects of the photographs are not collaborators who are participating in the shoots. Difference between the authorship and ownership Qua copyright law is very different. This understands the law’s nuance in protecting all the subjects of the photograph.

Indian copyright allows for joint authorship in the fashion industry. Such a question was raised before the courts in the landmark case judgment Najma Heptullah v. Orient Longman Ltd . This held that these contributions are a result of intellectual collaboration. When joint authorship came into form, there were no specific criteria for the same. It is considered to be a nascent form or part of the copyright law.

VIRTUAL REALITY: IMPORTANCE IN FASHION LAW AND IPR?

Virtual reality in the fashion industry has solved the problems of different creators who are not able to attend fashion shows in person. A stimulation akin to fashion shows can be viewed by people through VR. There was a collaboration between Tommy Hilfiger and Zendaya which was displayed through VR experience in 2019. The use of virtual reality is very much limited to holding fashion shows which transports consumers to trial rooms and social settings are stimulated to the better consumer experience.

Virtual reality is accompanied by different IP problems which have a two-fold impact on the intellectual property rights of different fashion markets. The fashion houses employ virtual reality: firstly VR helps to detect the unlawful and unauthorized usages of the trademark of fashion house or copyright over fashion articles. Secondly, it is very difficult to investigate whether a trademark exists on other VR platforms or not. As virtual reality does not have any kind of search engine, the possibility of Infringement increases and makes it very difficult to conduct equivalent searches.

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There is an asymmetry of bargaining power between the fashion houses and retailers where the fashion house articles are being sold via virtual reality. In this, the possibility of disparagement increases in the instance of VR sales and marketing.

Further complex questions of ownership may come up. The contents which are created by the VR platform owned by the VR platforms convert the work given to them by the big fashion houses, arising whether the work was derivative? Or whether the work remains in the ownership of the fashion house? Such terms are negotiated between fashion houses and VR platforms which deal that the ownership of the work lies with the fashion house in the license agreement. In collaborative efforts, authorship and ownership should be delineated in the agreement terms.

Influencer law In India

The content of the influencer is known to all. Influencers are the people over social media who create different reels or videos and influence the people who are watching them. The latest promotion and paid partnerships are mostly done by the social media influencers known as “influencer marketing”. In this agreement, the influencer receives products from the brand free of cost and promotes the products over social media through various means. Previously, only celebrities were brand ambassadors of a particular brand and created advertisements and would take paid partnerships and sponsorship agreements. Now, new influencers are coming like Instagram Reels influencers, or YouTube creators and are signing brand ambassador deals.

However, there are certain regulations to implement these influencers and to fix their liability in the Consumer Protection Act, 2019, Central Consumer Protection Authority, Prevention of Misleading Advertisements for endorsement and guidelines, the 2020 Guidelines and Advertising Standards Council of India’s Code for Self-Regulation in Advertising .

The guidelines for the year 2020 are very important. It has imposed penalties for Misleading Advertisements and so the prosecution has been done against them. There is a code for self-regulation in advertising which maintains the following rules and regulations as well as the authenticity and actuality of the claims made in these advertisements by the influencers. The influencers are kept under the watch with such guidelines to protect the creators and customers.

The Fashion Foundation of India (FFI) has taken efforts to represent the leading designers of the fashion industry which takes up IP infringement issues affecting the industry. This is a legal cell that assists the design houses with IPR, arbitration, and licensing. There are other fashion industry organizations like the Fashion Design Council of India (FDCI) and the Apparels Export Promotion Council (AEPC). It helps in the protection of the intellectual property rights of the fashion industry and is involved in the analysis cell research programs. However, internal issues like exhausting procedural problems and cumbersome tasks take a huge time to solve a glitch.

To date, people find it very difficult to understand IPR. And smaller organizations still struggle for justice, so there is a need for proper legislation to regulate the trillion-dollar industry.

Conclusion

The fashion industry has a huge role in the life of each person and thus it is growing day by day. Thus, it is very crucial to implement strict and formal laws for such industries. The need for this program in fashion law can be accessed either by separate legislation. Existing legal mechanisms can be amended to make it more conducive to the fashion industry. In this industry, 80% of the fashion designers and fashion designs are not properly recognized so they must be included in the statutory provisions to provide them with their rights and protect them from infringement.

During the Covid 19, as people are left without jobs, the buying capacity has reduced which has boosted the knockoffs industry and other copies of luxury designs. So, the penalties have to be increased with the implementation of proper legislation so that the rights of the original creators are protected and not misused.

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Policy & Politics

My brush with the PMO: Part I

Anil Swarup

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We were all happy when National Democratic Alliance (NDA) rode to power. The United Progressive Alliance (UPA) had really messed it. I was personally thrilled when I got to know that Mr Nripendra Mishra would be the Principal Secretary to the Prime Minister and would head the Prime Minister’s Office (PMO). I had worked with him as Director, Information and Public Relations when he was Secretary to Kalyan Singh. Chief Minister of the largest State, Uttar Pradesh during 1991-92. Mr Mishra was sharp with grasp and ability to get to the bottom of most complex issues (there were indeed many of them). It was a period of enormous learning to me. He was always available to guide. Much later, he was instrumental in pushing me to come to Delhi on deputation despite my reluctance. It transformed my career path.

When Mr Mishra took over as Principal Secretary in PMO, I was still looking after the Project Monitoring Group (PMG) created by the previous government to fast-track projects. Though UPA itself was floundering, the PMG seemed to be doing well. In the 15 months of its institution, it had managed to facilitate clearance worth Rs 5 lakh crore. Both the Apex Industry organizations, FICCI and CII had appreciated its working in their letters to the previous PM. When I went to meet Mr Mishra for the first time at the PMO, I was extremely surprised to find that he appeared very distant. Very unlike the Mr Mishra I knew, he continued to be engaged with is papers when he spoke to me. He had doubts about everything that was being done at the PMG, even questioning the outcomes. I was perplexed and the conversation did not last very long. It was much later that he recognized the role played by the PMG in fast tracking of projects and considering its utility, the PMG was shifted from the Cabinet Secretariat to the PMO.

I wasn’t aware that I was being considered for the post of Coal Secretary to clear the mess in the sector. One of my batchmates approached me to convey that I should meet the Coal Minister. As a matter principle, I didn’t meet the Minister. One day even the Mr Mishra asked me why I wasn’t meeting the Coal Minister. I politely told him that I had not met any Minister before being posted (this included my posting as Secretary to Mr Kalyan Singh during his second tenure as Chief Minister) and I had no intention on “calling on” the Minister before being posted. I was none the less posted as Officer on Special Duty (OSD) in the rank of Secretary on the 16th of October, 2014, a fortnight before my predecessor superannuated.

***

The initial forays at the PMO weren’t very smooth

The focus of the government was the auction of coal blocks that had been cancelled by the Supreme Court. There was no precedent available anywhere in the world and the whole process had to be developed from scratch. The process being evolved for the auction of coal blocks was complicated. Not many were convinced that it would withstand scrutiny and the expectations associated with it. It was too sensitive a matter to be left entirely to the officials of the Coal Ministry.

Mr Vinod Rai had been responsible for pointing out the irregularities in the allocation of coal blocks in his role as Comptroller and Auditor General. It was suggested that a committee be constituted under his Chairmanship to oversee the coal block auctions in the hope that he would give his judicious ‘rai’(advice) to the Coal Ministry in the conduct of coal block auctions. Ironically, perhaps aware of the risks entailed in such a sensitive sector, he was not keen to give any decision on his own!

The atmosphere was charged. Discussions were held in the room of the Mr Mishra’s room at the PMO. It was his suggestion that there should be a committee to oversee coal block auctions. I was taken aback as I deemed this as a lack of confidence in me. Hence, I did something that was not normally done in the context of a very powerful PMO. I opposed it.

I was not willing to have any such committee breathing down my neck. I was clear that the task of carrying out the auction was that of the Coal Ministry. Therefore, we were prepared to take all the responsibility associated with it. A heated debate ensued as I continued to resist. Normally no one argued with the PMO. The PMO was the final arbiter in all sensitive issues. Everyone was heard but the final writ came from this office. In this case, it was the Principal Secretary himself. However, even at the risk of being considered too impertinent, I stuck to my guns. I was clear that if I was to be in charge, I would lead the way. I was not opposed to seeking advice or consulting those around. But there was no way in which a formal consultative, supervisory or advisory committee was acceptable to me.

Having worked with me in the past, he perhaps knew that I would not relent easily. After a lot of fireworks, bordering on unpleasantness, the idea was shelved. We were spared the structured council of the ‘Rai Sahebs’ though we continued to benefit from informal advice right through the process of auctions.

In retrospect, it turned out to be a masterstroke as we had a lot of freedom in evolving the process without someone telling us to go strictly by the rule book. The process required that flexibility. There were a number of meetings at the PMO to assess how the auction process was going. We did arrive at a broad agreement on the process. The problem was that in the absence of any precedence, the process was always evolving. It was difficult to keep the PMO posted all the time. There were decisions taken at the Ministry itself. However, had the auctions been a failure or had something gone wrong, I would have been sacked. It was a crucial call that I had to take on the spur of the moment. I had taken a huge risk.

***

The Coal Block Auctions were a resounding success. All the newspaper sang praises about the transparent manner in which the entire exercise had been accomplished. Extensive use of technology also came in for praise. When the call from Mr Mishra came, I had expected a few words of praise from him as well. He was, however, upset. His complaint was that the PMO was not kept informed. I tried to explain to him that a note had been sent to him which he may not have seen do far. This conversation was late in the evening. Hence, I sent across yet another note to Mr Mishra, enclosing copy of the note that I had sent to him earlier. He immediately called up to compliment me and the entire team for the wonderful work we had done.

Apart from Mr Nripendra Mishra there was another Mishra, Mr P K Mishra in the PMO. As Additional Principal Secretary he was tasked to handle the human resource matters. As allocation and posting of all the officers in the rank of Joint Secretary and above required clearance of the PM in his capacity as the Chairman of Appointment Committee of Cabinet, I witnessed that Mr P K Mishra’s room was full of files. However, despite the pressure of work, I always found him smiling and ready to lend his ears. During the first year as Coal Secretary, I visited him on a number of occasions to discuss and seek assistance on personnel matters. He was always forthcoming. On a few occasions I even made requests to Mr Nriprendra Mishra for a few officers to be posted in the Ministry little realising that he had virtually no role to play in such matters. I discovered this incidentally when on when one occasion while sitting in his room. He was browsing through the papers when he came across an order regarding transfer of a Secretary in a crucial Department. The expression on his face revealed it all. He wasn’t aware that the concerned Secretary had been shifted out.

{Excerpts from “No More a Civil Servant”}

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Policy & Politics

But for gold, India would have become Sri Lanka

India had also faced a Sri Lanka-like crisis three decades back, but the leadership saved the country.

Vijay Darda

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Introduction

During the rule of demon king Ravana, his palace in Sri Lanka was made of gold. But today there is not an ounce of gold in Sri Lanka’s treasury to save it from bankruptcy! But quite amazingly, when India was on the verge of bankruptcy some three decades back, we saved ourselves by selling 20 tonnes of gold, and subsequent rapid economic recovery helped bolster the economy. Very few people of the present generation of the country would be aware of this story. Before examining the situation in Sri Lanka and its causes, it is pertinent to briefly learn about the then situation!

The Gulf War broke out in 1990 and the price of petroleum products skyrocketed in the international market. India’s petroleum imports suddenly increased from $2 billion to $5.7 billion in 1990-91. During this period, political instability was at its peak. In 1989, Rajiv Gandhi kept the Congress away from forming a coalition government.

Vishwanath Pratap Singh became the PM but he too had to resign in 1990. Rajiv Gandhi was assassinated in May 1991. The situation turned so bad that the NRIs started withdrawing their money. India’s foreign exchange reserves went down to less than one billion dollars. There was so little money that only essential imports could be paid for and that too only for 20 days. There was no money to do business with the world! The foreign debt on India had shot up to $72 billion. There were only two countries in the world above India in terms of debt – Brazil and Mexico.

India would have gone bankrupt had it not paid the debt. Chandrashekhar was the Prime Minister at that time. He got India out of a balance of payment crisis by selling 20 tonnes of gold, regardless of domestic politics and criticism. Meanwhile, the IMF gave a loan of $1.27 billion, but improving the situation was a big challenge. However, in June 1991 P V Narasimha Rao became the Prime Minister and he brought about a lot of changes in India’s economy through the then finance minister Manmohan Singh. Imports were curtailed, government spending was drastically cut, and the rupee was devalued by up to 20 per cent. Banks increased interest rates. This is how India survived!

Had India’s political leadership and administrative machinery not shown alertness, our story would not have been any different from Sri Lanka. The political leadership is largely to blame for the condition of Sri Lanka today. Until last month, the all-powerful Rajapaksa family dominated the island nation. The unbridled nepotism ensured the presidency for Gotabaya Rajapaksa. Mahinda Rajapaksa was the Prime Minister, Chamal Rajapaksa was the minister for irrigation, Basil Rajapaksa was the finance minister and Namal Rajapaksa was the sports minister. Thus, 75 per cent of the budget of Sri Lanka was grabbed by the Rajapaksa family. The Rajapaksa family ran Sri Lanka as their own private company. The children of the Rajapaksa family were roaming around in the world’s most expensive and customised luxurious cars. They behaved as if the country’s money was their own money. The Rajapaksa family ran the country according to their whims and fancy. It is not known why the use of fertilizers in farming was banned, leading to a sharp decline in yields. The export of tea and rice, which were prime sources of foreign exchange for Sri Lanka, declined drastically.

Tourism accounts for about 20 per cent of Sri Lanka’s revenue. Sri Lanka’s finances were already in the doldrums in the aftermath of the years of the civil war resulting from the LTTE insurgency. The outbreak of the coronavirus pandemic further worsened the situation. In the meantime, Sri Lanka went on seeking loans left, right and centre. When China dangled the carrot of Hambantota Port, the experts had cautioned that Sri Lanka does not need it but eventually Sri Lanka walked into China’s debt trap. Now the rumour mills are churning out the stories of how the Chinese financiers benefitted the Rajapaksa family for this. I don’t know how much substance these stories hold, but one thing is clear that Sri Lanka unnecessarily took a loan of billions of dollars from China. What is the condition today? China has got Hambantota Port on a lease for 99 years. Actually, the rulers of countries like Sri Lanka and Pakistan run the country like a private limited company. They use the public money to feather their own nests but we are proud that neither any party nor any prime minister has ever done this in our country. For us, our country is supreme.

The burden of foreign debt on Sri Lanka has now exceeded $50 billion. The Sri Lankan government has clearly admitted that it is not in a position to pay even the interest on the loans. It simply means that Sri Lanka has gone bankrupt. The value of one dollar has crossed 360 Sri Lankan rupees. Traditionally, it is believed that any country should have at least 7 months’ worth of foreign exchange reserves to import, but Sri Lanka’s foreign exchange reserves are not enough to pay for imports even for a few days. The situation is so bad that there is a complete power outage throughout the island nation. Petrol and gas are being supplied under the protection of the army. Essential goods are missing from the market and the poor have nothing to eat. There is no money for paper and hence newspapers have stopped publishing. Sri Lanka is burning in the fire of discontent. Meanwhile, the post of prime minister has been taken over by Ranil Wickremesinghe. He is considered very close to India. India has helped Sri Lanka a lot even during Rajapaksa’s reign, but how much can any other country help? The health of Sri Lanka will have to be restored by its own political leadership. Let us all pray for Sri Lanka!

The woeful plight of Sri Lanka is an eye-opener for the world that it is very risky to fall into the debt trap. An old saying in our Indian families says, stretch your legs no bigger than the coverlet. And there is another saying that there must be some money in hand for rainy days. This is the proverbial lesson for every family and also for the political setup and government! No one can say for sure when and where any calamity will strike!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

The crisis which the island nation of Sri Lanka is facing can be described as an extremely dreadful time for any country. Three decades back, India was on the verge of facing a similar situation, but our leaders took a bold and visionary decision to save the country by selling gold. It is the Sri Lankan leadership which has pushed the people on the brink of starvation.

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Policy & Politics

Domestic violence victim can enforce her right to reside in ‘shared household’ even if she has not actually lived there: SC

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While upholding the right of a woman to reside in a ‘shared household’ even if she has not actually lived there, the Supreme Court as recently as on May 12, 2022 in a learned, laudable, landmark and latest judgment titled Prabha Tyagi vs Kamlesh Devi in Criminal Appeal No. 511 of 2022 in exercise of its criminal appellate jurisdiction held that a victim of domestic violence can enforce her right to reside in a shared household, irrespective of whether she actually lived in the shared household. The Bench of Apex Court comprising of Justice MR Shah and Justice BV Nagarathna held in no uncertain terms that, “Even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the DV Act. Very rightly so!

To start with, this learned judgment authored by Justice BV Nagarathna for a Bench of Apex Court comprising of Justice MR Shah and herself sets the ball rolling by first and foremost putting forth in para 1 that, “The aggrieved person, being the appellant herein, who had filed Miscellaneous Case No. 78 of 2007 on the file of the Court of Special Judicial Magistrate- I, Dehradun, has assailed judgment dated 23rd July, 2019 passed by the High Court of Uttarakhand at Nainital, in Criminal Revision No. 186 of 2014, by which the judgment dated 11th July, 2014 passed by the Vth Additional Sessions Judge, Dehradun, in Criminal Appeal No. 53 of 2011 setting aside the order passed by the Special Judicial Magistrate-I, was sustained.”

While dealing with the factual background, the Bench then lays bare in para 3 that, “According to the aggrieved person, her marriage with Kuldeep Tyagi (since deceased) son of late Vishnudutt Tyagi was solemnized on 18th June, 2005 at Haridwar District, Uttarakhand as per Hindu rites and rituals and in connection with the marriage, the family members of the aggrieved person had given dowry to the family of her deceased husband and Stridhana to the aggrieved person. For the period immediately following the wedding, the aggrieved person was residing at the ancestral home of the respondents along with her mother-in-law-respondent no.1, two brothers-in-law, wife of her husband’s elder brother and six sisters-in-law. Thereafter, the aggrieved person began living with her husband and the respondents in village Jhabreda. That Kuldeep Tyagi, husband of the aggrieved person died on 15th July, 2005 in a car accident and after the Terhanvi ceremony of her husband, the aggrieved person was constrained to reside initially at Delhi, at her father’s house. That immediately prior to the death of her husband, the aggrieved person had conceived a child.”

While continuing in the same vein, the Bench then states in para 4 that, “That on 30th March, 2006 the aggrieved person gave birth to a daughter and owing to the misbehavior and torture meted out to her by her matrimonial family after her husband’s death, she moved to Dehradun, Uttarakhand with her daughter, where she began working as a teacher to support herself and her child. That the Stridhana given to her at the time of her wedding was never allowed to be enjoyed by her and even following her exit from her matrimonial home, the Stridhana was being used by her in-laws, respondent nos. 1 to 6. That the aggrieved person had sent a legal notice dated 22nd November, 2006, requesting them to return the articles of Stridhana, however, there was no response to the same.”

Furthermore, the Bench then discloses in para 5 that, “That the father of the aggrieved person had gifted her a Maruti (Alto) car, at the time of her wedding and the same was registered in the name of her deceased husband. Owing to the accident that her husband had met with, resulting in his death, the said car had also been damaged. That the aggrieved person’s mother-in-law had submitted an application before the insurance company, National Insurance Company which was processing the claim for damage caused to the car, stating therein that she was the mother of the deceased and was the only legal heir of the deceased and therefore any compensation may be made in her favour.”

Truth be told, the Bench then mentions in para 6 that, “That there exists a land in village Jhabreda to which the deceased husband of the aggrieved person had right and title. That respondent no. 1- mother-in-law, on being instigated by the other respondents objected to the recording of the aggrieved persons’ name in the revenue records of the said property. Respondent no. 1 objected by stating that the child borne by aggrieved person was not Kuldeep Tyagi’s daughter. Owing to such objection, the Court of Tehsildar passed an order of status quo with respect to the said property.”

It cannot be lost sight of that the Bench then observes in para 7 that, “That the respondents, on several occasions threatened the aggrieved person that she would face dire consequences if she ever attempted to claim any right over her husband’s property. That the respondents, having no sympathy towards the aggrieved person who had, while pregnant, lost her husband in a fatal accident, tortured her mentally by denying that her child was the daughter of Kuldeep Tyagi.”

As it turned out, the Bench then points out in para 8 that, “With the aforesaid averments, the aggrieved person approached the Court of the Special Judicial Magistrate under Section 12 and sought protection orders, residence orders and compensation orders to be passed under various provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, the ‘D.V. Act’). Further, prayers were also made for monetary reliefs under Section 22 of the D.V. Act.”

Briefly stated, the Bench then states in para 14 that, “Aggrieved by the judgment of the First Appellate Court, the aggrieved person preferred a criminal revision petition before the High Court of Uttarakhand at Dehradun. By judgment dated 23rd July, 2019, the criminal revision petition was dismissed and the judgment of the Vth Additional Sessions Judge, Dehradun was sustained. The aggrieved appellant has approached this Court challenging the judgments of the First Appellate Court and the High Court.”

Notably, the Bench then observes in para 51 that, “In the instant case, when the proviso is read in the context of the main provision which begins with the words ‘an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act’ would clearly indicate that the aggrieved person can by herself or through her advocate approach the Magistrate for seeking any of the reliefs under the D.V. Act. In such an event, the filing of a Domestic Incident Report does not arise. The use of the expression ‘shall’ in the proviso has to be read contextually i.e., the Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider. If the intention of the Parliament had been that filing of the Report by the Protection Officer is a condition precedent for the Magistrate to act upon the complaint filed by an aggrieved person even when she files it by herself or through her advocate then it would have been so expressed. But a conjoint reading of Sub-Section (1) of Section 12 with the proviso does not indicate such an intention. Thus, the plenitude of power under Section 12 of the D.V. Act is accordingly interpreted and pre-requisite for issuing notice to the respondent on an application filed by the aggrieved person without the assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise. If a contrary interpretation is to be given then the opening words of Sub-Section (1) of Section 12 would be rendered otiose and it would be incumbent for every aggrieved person to first approach a Protection Officer or a service provider, as the case may be, and get a Domestic Incident Report prepared and thereafter to approach the Magistrate for reliefs under the D.V. Act, which is not the intention of the Parliament. Hence, in our view, the judgments of the Madhya Pradesh High Court in Rama Singh vs. Maya Singh – [(2012) 4 MPLJ 612] and the Delhi High Court in Ravi Dutta vs. Kiran Dutta and Another – [2018 (2014) DLT 61], do not lay down the correct law and are hereby overruled while we affirm all other judgments referred to supra which are in consonance with the line of interpretation made above.”

Most significantly, the Bench then while clearing the air on the questions raised holds in para 52 that, “In view of the above discussion, the three questions raised in this appeal are answered as under:

i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?”

It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.

“(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?”

It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.

“(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?”

It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.”

Most remarkably, the Bench then directs in para 53 that, “Consequently, the judgment dated 23rd July, 2019 passed by the High Court of Uttarakhand in Criminal Revision No. 186 of 2014 as well as the judgment dated 11th July, 2014 passed by the Vth Additional Sessions Judge, Dehradun in Criminal Appeal No. 53 of 2011 are set aside and the order passed by the Special Judicial Magistrate-I in Miscellaneous Case No. 78 of 2007, Dehradun is affirmed.”

On a concluding note, the Bench then remarks in the final para 56 that, “Before parting with this case, we express our appreciation to the valuable services rendered by Shri Gaurav Agarwal, learned amicus curiae, who has painstakingly researched all the relevant judgments on the questions raised in this case arising from various High Courts and has made his submission schematically with particular reference to the facts of the case and all relevant provisions of the D.V. Act.”

In sum, the Apex Court has made the whole picture crystal clear in this notable judgment by the Apex Court. So it is now crystal clear that a domestic violence victim can enforce her right to reside in ‘shared household’ even if she has not actually lived there. No denying!

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Policy & Politics

POLICE ATROCITIES: GUJARAT HC URGES STATE TO INSTALL CCTV CAMERAS AND FOLLOW D.K. BASU GUIDELINES

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While according paramount importance to the human rights of prisoners and so also taking a serious note of the increasing incidents of human right violations of prisoners, the Gujarat High Court has in a recent, remarkable, robust, refreshing and rational judgment titled Vasaya Yunusali Alarakhabhai Vs State of Gujarat in R/Special Criminal Application No. 1615 of 2022 and delivered as recently as on May 5, 2022 has recommended that the State government take initiatives to implement the guidelines issued by the Apex Court in the landmark case of DK Basu v. State of West Bengal and to install CCTV cameras with night vision and maintain their records for 6 months to deal with police atrocities in the region. A Bench comprising of Justice Sonia Gokani and Justice Mauna Bhatt was hearing a habeas corpus petition involving an inter-religious couple when it came down heavily on the Gujarat police and directed the concerned authorities to intimate all police stations about the guidelines issued in the Paramvir Singh Saini case [Paramvir Singh Saini vs Baljit Singh and others (2021) 1 SCC 184]. The Bench said that, “We expect the State to complete the task of installing the new gadgets and also follow the directions of the Apex Court as earliest possible”.

To start with, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Sonia Gokani for a Bench of Gujarat High Court comprising of herself and Hon’ble Mrs Justice Mauna M Bhatt first and foremost puts forth in para 1 that, “This Court on 08.02.2022 in this petition under Article 226 of the Constitution of India issued the notice by passing the following order:

“1. The petitioner is a father of one of the persons (corpus) who is alleged to have been illegally detained by the respondent no.2. The prayers sought for in this petition is as follows: –

“(A) Your Lordships may kindly be pleased to admit and allow the present petition;

(B) Your Lordships may kindly be pleased to issue a writ of habeas Corpus and / or any other appropriate writ, order or direction directing the Respondent No. 2 to produce the Corpuses namely ‘Vasaya Nadeem Yunusali’ and girl namely ‘Kukreja Jayaben Hareshkumar’ before this Honorable Court, the custody of the Corpuses be handed over to the Petitioner in the interest oat her parental home and moreover, it was an absolutely illegal act on the part of the respondent no.2.

(C) Pending admission, hearing and final disposal of this Petition, Your Lordships may kindly be pleased to direct the Respondent No. 2 to produce Corpus namely namely ‘Vasaya Nadeem Yunusali’ and girl namely ‘Kukreja Jayaben Hareshkumar’ before this Honorable Court in the interest of justice;

(D) Your Lordship may kindly be pleased to grant such other and further relief(s) as may deed just and proper in the facts and circumstances of the case.”

2. It appears that both, the son of the petitioner and the girl – Jaya had intended to marry each other. This being interreligious/interfaith marriage, the notice of intended marriage was issued under Section 5 addressed to the marriage officer for Bhavnagar District on 14.12.2021. Before the same could be actually performed, on completion of 30 days period, it is alleged that they both were illegally taken away by the respondent no.2. Some of the family members had been beaten up badly. The photographs of which are forming part of the petition. The medical report dated 18.12.2021 also reflects the names of those persons who have allegedly beaten up the family members.

3. Learned advocate Ms. Laksha Bhavnani appearing with learned advocate Ms. Setu Joshi for the petitioner has urged that once the respondent came to know of this petition of habeas corpus, they have chosen to release both the corpora. However, the marriage has not taken place as the girl is sent at her parental home and moreover, it was an absolutely illegal act on the part of the respondent no.2.

4. Issue Notice returnable on 11.02.2022. Learned Additional Public Prosecutor waives service of notice for and on behalf of the respondent authorities.

5. Learned APP shall gather the details and shall file an affidavit of the respondent no.2 which shall be also vetted by the Superintendent of Police, Bhavnagar.

6. The girl has been allegedly forcibly sent to her residence. The Superintendent of Police, Bhavnagar shall ensure her production before this Court through video conference from the District Legal Services Authority, Bhavnagar in presence of the Chair Person, District Legal Services Authority, Bhavnagar at 1:30 p.m. on 11.02.2022. The Superintendent of Police, Bhavnagar also shall remain present on that day.””

Quite significantly, the Bench observes in para 7 that, “The guidelines of 09.07.2018 issued from the Office of Director General and Inspector General of Police gives the detailed modality of working of the RMS as in all police stations the CCTV camera system are installed for preventing the incident of custodial violence, non registration of First Information Report as also the violation of human rights etc. following the decision of the Apex Court rendered in case of D.K.Basu vs. State of West Bengal & others, reported in (2015) 8 SCC 744 and thereafter reiterated in Criminal Miscellaneous Petition No.16086 of 1997 r/w Criminal Miscellaneous Petition No. 19694 of 2010 on 02.09.2015. For enhancing the quality of services rendered by the police and for the use of technology these guidelines have been formulated.

7.1 It mandates maintaining of Dead Stock Register in all offices of Superintendent of Police with the District level. The Superintendent of Police or the Police Commissioner is expected to monitor at least once in a week through the RMS, the CCTV Camera System and the video footage. All the gadgets of their RMS shall need to be maintained by a Wireless Sub Inspector after giving him the training in this respect. It also mandates the preservation of the video footage of CCTV camera for 30 days’ period. There are many complaints for the use and maintenance of this CCTV Camera System and it has been mandated that the strictest actions be taken if some police personnel or the officers continue to do the objectionable activities.

7.2 The detailed guidelines further says as to in what manner the misbehavior or the unpalatable actions with the citizens should be checked.”

Be it noted, the Bench then envisages in para 8 that, “This very clearly gives the indications as to how for the Gujarat Police office of DG & IG has been vigilantly directing every police station to follow the use and maintenance of the CCTV footage. It has also further detailed the manner in which the Head of the District to monitor the CCTV footage every week at least in one case and thereafter, to take necessary actions as directed in the very guidelines. However, from the affidavit which has been filed by the Secretary, Home Department, it is quite clear that there are various levels of redressing the different kind of grievances for the complaints, but there is no specific guideline issued to intimate the District Police Head when there are complaints regarding the police harassment in the District. There is no specific direction for the senior police officer or the Superintendent of Police to be intimated of such harassment. Every police station is equipped with this technology and the advancement of this technology is for the succor of the citizen.”

Most remarkably, the Bench then enunciates in para 9 that, “We need to also make a reference of the decision of the Apex Court rendered in case of PARAMVIR SINGH SAINI VS. BALJIT SINGH AND OTHERS, reported in (2021) 1 SCC 184 where the question was of installation of CCTV cameras in police stations and credible recording of evidence and safeguarding the human rights inside the police stations. The Apex Court vide its order dated 03.04.2018 directed that the Central Oversight Body (referred to as COB) to be set up by the Ministry of Home Affairs to implement the plan of action with respect to the use of videograph in the crime scene during the investigation.

9.1 The Apex Court also referred to the decision issued in case of D.K.Basu (supra) to hold that there was a need for further directions that in every State an oversight mechanism be created whereby the independent committee can study the CCTV camera footage and periodically publish a report of its observations thereon. The COB also may issue the appropriate direction from time to time so as to ensure that use of videography becomes a reality in a phased manner. It had also given the constitution of the District Level Oversight Committee and eventually enlisted the duties and the responsibilities for working maintenance and recording of CCTV.

9.2 Apt would be to refer to the guidelines and the mandate given by the Apex Court in this regard.

“14. The duty and responsibility for the working, maintenance and recording of CCTVs shall be that of the SHO of the police station concerned. It shall be the duty and obligation of the SHO to 7 immediately report to the DLOC any fault with the equipment or malfunctioning of CCTVs. If the CCTVs are not functioning in a particular police station, the concerned SHO shall inform the DLOC of the arrest / interrogations carried out in that police station during the said period and forward the said record to the DLOC. If the concerned SHO has reported malfunctioning or non-functioning of CCTVs of a particular Police Station, the DLOC shall immediately request the SLOC for repair and purchase of the equipment, which shall be done immediately.

15. The Director General/Inspector General of Police of each State and Union Territory should issue directions to the person in charge of a Police Station to entrust the SHO of the concerned Police Station with the responsibility of assessing the working condition of the CCTV cameras installed in the police station and also to take corrective action to restore the functioning of all non-functional CCTV cameras. The SHO should also be made responsible for CCTV data maintenance, backup of data, fault rectification etc.

16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and/or Union Territory. Further, in order to ensure that no part of a Police Station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all entry and exit points; 8 main gate of the police station; all lock-ups; all corridors; lobby/the reception area; all verandas/outhouses, Inspector’s room; Sub-Inspector’s room; areas outside the lock-up room; station hall; in front of the police station compound; outside (not inside) washrooms/toilets; Duty Officer’s room; back part of the police station etc.

17. CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power. The internet systems that are provided must also be systems which provide clear image resolutions and audio. Most important of all is the storage of CCTV camera footage which can be done in digital video recorders and/or network video recorders. CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months. If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all States, Union Territories and the Central Government to purchase one which allows storage for the maximum period possible, and, in 9 any case, not below 1 year. It is also made clear that this will be reviewed by all the States so as to purchase equipment which is able to store the data for 18 months as soon as it is commercially available in the market. The affidavit of compliance to be filed by all States and Union Territories and Central Government shall clearly indicate that the best equipment available as of date has been purchased.

18. Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it.

19. The Union of India is also to file an affidavit in which it will update this Court on the constitution and workings of the Central Oversight Body, giving full particulars thereof. In addition, the Union of India is also 10 directed to install CCTV cameras and recording equipment in the offices of:

(i) Central Bureau of Investigation (CBI)

(ii) National Investigation Agency (NIA)

(iii) Enforcement Directorate (ED)

(iv) Narcotics Control Bureau (NCB)

(v) Department of Revenue Intelligence (DRI)

(vi) Serious Fraud Investigation Office (SFIO)

(vii) Any other agency which carries out interrogations and has the power of arrest.

As most of these agencies carry out interrogation in their office(s), CCTVs shall be compulsorily installed in all offices where such interrogation and holding of accused takes place in the same manner as it would in a police station. The COB shall perform the same function as the SLOC for the offices of investigative/enforcement agencies mentioned above both in Delhi and outside Delhi wherever they be located.

20. The SLOC and the COB (where applicable) shall give directions to all Police Stations, investigative/enforcement agencies to prominently display at the entrance and inside the police stations/ offices of investigative/enforcement agencies about the coverage of the concerned premises by CCTV. This shall be done by large posters in English, Hindi and vernacular language. In addition to the above, it shall be clearly mentioned therein that a person has a right to complain about human rights violations to the National/State Human Rights Commission, Human Rights Court or the Superintendent of Police or any other authority empowered to take cognizance of an offence. It shall further mention that CCTV footage is preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.

21. Since these directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and since nothing substantial has been done in this regard for a period of over 2½ years since our first Order dated 03.04.2018, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible. Affidavits will be filed by the Principal Secretary/Cabinet Secretary/Home Secretary of each State/ Union Territory giving this Court a firm action plan with exact timelines for compliance with today’s Order. This is to be done within a period of six weeks from today.

22. We record our gratitude to Shri Siddhartha Dave, learned Amicus Curiae, for rendering his services to this Court.”

9.3 This dictum insists on the CCTV system to be installed with night vision and to consist of audio and video footage both. The Apex Court has also asked for the requirement of the CCTV footage to be preserved for a period of six months and a firm action plan to be submitted within six weeks.”

For clarity, the Bench then adds in para 10 that, “This in addition to what has been already directed by way of guidelines in the year 2018 by the office of Director General and Inspector General of Police will take care of the maintenance of the CCTV cameras.”

Simply put, the Bench then states in para 11 that, “According to the learned APP, Ms.Jhaveri, for fulfilling the directions of the Apex Court, the mechanism is already underway. She has taken the instructions to ensure this Court that pursuant to this mandate and the guidelines issued by the Apex Court, the process is on and it is soon to be completed. Therefore, no further directions in respect of this will be additionally needed till the new system is purchased and installed.”

In addition, the Bench clarifies in para 12 that, “Let the other guidelines which have been directed by the Apex Court, if are not otherwise presently hampered by the technological limitations be followed. All police stations should be intimated the guidelines issued in case of PARAMVIR SINGH SAINI (supra).”

Without mincing any words, the Bench then directs in para 13 that, “According to us, any incident of the alleged atrocities or involvement of the police officers in violation of mandatory guidelines shall at least be intimated to the Head of the District, i.e. to the Superintendent of Police or the Police Commissioner, as the case may be. Let a specific guidelines in that respect also be initiated. It is one thing for the Superintendent of Police himself to find out from the CCTV camera footage the misbehavior or the misconduct and it is another thing when he, as the District Head, is made aware of such complaints and registered. Let that be worked out by the Home Department.”

What’s more, the Bench then observes in para 14 that, “We have noticed that, in the instant case, the matter is pending before the District Court and therefore, we chose not to presently intervene. After once the District Court finalise the matter, it will be for the petitioner to also take an appropriate remedy in respect of his personal complaint. None of these observations or the limitation of the technology will in any manner hamper his right to approach the appropriate authorities.”

Most commendably, the Bench then rightly holds in para 15 that, “We expect the State to complete the task of installing the new gadgets and also follow the directions of the Apex Court as earliest possible.”

Finally, the Bench then concludes by holding in para 16 that, “Present petition stands disposed of accordingly.”

No doubt, what the Gujarat High Court has directed so very commendably in this notable judgment must be implemented forthwith by the State. CCTV cameras must be installed in police stations and so also all other steps must be taken as we have already discussed herein aforesaid. No denying!

Sanjeev Sirohi, Advocate

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Policy & Politics

Group of Companies Doctrine set to undergo the test of a larger bench

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I. INTRODUCTION

The genesis of arbitration being chosen as the preferred mode of dispute resolution mechanism lies on the premise of mutual consent given by the parties under the agreement or contract, as the case may be. The same underlying principle is also surmised by Section 7 of the Arbitration and Conciliation 1996 (“A&C Act 1996”).

A significant change in the interpretation of Section 7 of the A&C Act 1996 evolved with the courts in India enlarging the scope by taking into consideration the intention of the parties, role of parties and its affiliates as per the Group of Companies doctrine etc. The Group of Companies doctrine aims to encompass, under certain conditions, the arbitration agreement signed only by one or some of the companies of a group to the non-signatory companies of the same group. This doctrine is inherently linked to piercing or lifting the corporate veil doctrine. By way of this article, we aim to understand the Group of Companies doctrine and its evolution by the Indian courts.

II. GROUP OF COMPANIES DOCTRINE

The doctrine of “Group of Companies” had its origins in the 1970s from French arbitration practice. The Group of Companies doctrine indicates the implied consent to an agreement to arbitrate, in the context of modern multi-party business transactions.

The Group of Companies doctrine was first invoked in 1984 by the International Chamber of Commerce Tribunal in the matter of Dow Chemical v. Isover Saint Gobain, 1984 Rev Arb 137: (1983) 110 JDI 899 wherein the Court duly held that in accordance with the common intention of all the companies involved, Dow Chemical France and Dow Chemical Company (USA) were found to be parties to the arbitration agreements although they did not actually sign them. The arbitration clause was applicable to them as well due to the common intention. It is pertinent to note herein that the Court duly held that arbitration clauses were applicable to Dow Chemical Company (USA) as they effectively and individually participated in the contract’s conclusion, their performance, and their termination.

Though the scope of an arbitration agreement is limited to the parties who entered into it and those claiming under or through them, the courts under the English law have, in certain cases, also applied the Group of Companies doctrine. This doctrine has developed in the international context, whereby an arbitration agreement entered into by a company, being one within a group of companies, can bind its non-signatory affiliates or sister or parent concerns, if the circumstances demonstrate that the mutual intention of all the parties was to bind both the signatories and the non-signatory affiliates. This theory has been applied in a number of arbitrations so as to justify a tribunal taking jurisdiction over a party who is not a signatory to the contract containing the arbitration agreement.

The focus point while applying Group of Companies doctrine comes into play in the form of extending arbitration proceedings to a non-signatory to the arbitration agreement which is beyond the rigours of Section 7 of the A&C Act 1996. A valid arbitration agreement is the essential element and the basis of the arbitration proceedings. As a consequence of the same, generally under normal circumstances, only those parties who have signed and are a part of the arbitration agreement may take part in the arbitration proceedings and would be bound by the relevant award passed by the arbitral tribunal. The difficulty arises where the arbitration agreement is sought to be extended to a non-signatory to the arbitration agreement based on the mutual intention of such non-signatory to be bound by such agreement.

The real inference of the Group of Companies doctrine in the present commercial world is considerable, given the swelling complexity of commercial contracts. For example, it is rather usual to see multiple entities within a group company be involved in the negotiation, performance, or termination of a contract, even if they have not signed the said contract. The entity that formally signs and executes an agreement may also not essentially be the entity that performs it for various business organizational reasons. The performance of an agreement by a subsidiary may be funded by the holding and/ or parent company, or funds may flow between group companies to facilitate performance under the agreement. In these circumstances, and especially in relation to such complex commercial transactions where such entities may have formulated their deals to limit or separate liability among various group members, the Group of Companies doctrine may provide a legal basis for non-signatories to be compelled to arbitrate.

The interesting bit about the Group of Companies doctrine is lifting of or piercing the corporate veil of a company to identify where the true control of the company lies and to ascertain whether the arbitration agreement was intended to bind both the signatory and non-signatory affiliates. The parties’ intentions are typically ascertained through their conduct, which includes a consideration of whether the non-signatory participated in the negotiation, performance, or termination of the contract.

III. INDIAN COURT AND THE EVOLUTION OF GROUP OF COMPANIES DOCTRINE

The Doctrine took its time to be recognized in the Indian Jurisprudence. In the early 2000s, Indians courts have taken an orthodox view. For instance, in the case of Pramod C Patel v. Lalit Constructions and Anr, 2002 SCC OnLine Bom 546, the High Court of Bombay explicitly noted that the arbitration agreement needs to be signed by both the parties. Later, even the High Court of Delhi in K.K. Modi Investment and Financial Services Pvt. Ltd v. Apollo International Inc. & Ors, 2009 SCC OnLine Del 1595 reiterated that there should be a contract between the parties and if there is no contract between petitioner and respondent, the arbitration clause between them cannot be inferred.

The same view was taken by the Hon’ble Supreme Court in 2010 in the matter of Indowind Energy Limited v. Wescare (I) Limited and Another, (2010) 5 SCC 306. The Hon’ble Supreme Court held that it is fundamental that a provision for arbitration to constitute an arbitration agreement for the purpose of Section 7 should satisfy two conditions: (i) it should be between the parties to the dispute; and (ii) it should relate to or be applicable to the dispute. Further, each company being separate and distinct legal entity and the mere fact that the two Companies have common shareholders or common Board of Directors, will not make the two Companies a single entity or lead to an inference that one company will be bound by the acts of the other.

Eventually, it was in the year 2012, when the Apex Court for the first time adopted the Group of Companies doctrine in the matter of Chloro Controls (I) P. Ltd. v. Severn Trent Water Purification Inc. & Ors, (2013) 1 SCC 641 wherein the Court held that a non-signatory forming part of the same corporate group as a signatory could be made a party to the arbitration, where it is clear from circumstances surrounding the transaction that the ‘mutually held intent’ was to bind the signatory as well as the non-signatory to the arbitration agreement. The doctrine could be applied to join non-signatories based on: (i) direct relationship between the signatories and the non-signatories; (ii) direct commonality of the subject matter; (iii) the composite nature of the transaction between the parties; and (iv) whether the ends of justice would be served by referring the disputes to arbitration. Pertinently, the Court’s concluding remark on the doctrine was “An arbitration agreement entered into by a company within a group of companies can bind its non-signatory affiliates, if the circumstances demonstrate that the mutual intention of the parties was to bind both the signatory as well as the non-signatory parties”. After the passing of the judgment in 2013 by the Apex Court and the recognition of Group of Companies doctrine in the Indian diaspora, the doctrine has been widely applied in numerous cases and its scope has been diluted or enlarged on a case of case basis.

In the case of Cheran Properties Limited v. Kasturi and Sons Limited and Others, (2018) 16 SCC 413, the Hon’ble Court held that the doctrine is intended to facilitate the fulfilment of a mutually held intent between the parties, of arbitrating disputes involving signatory and non-signatory parties. The effort is to find the true essence of the business arrangement and to unravel from the commercial and business arrangement the real intent of the parties whether to bind a non-signatory to an arbitration clause or not. Even, in Ameet Lalchand Shah and Ors. v. Rishabh Enterprises and Anr., (2018) 15 SCC 678, the Hon’ble Supreme Court applied the doctrine to join non-signatories as parties in a composite transaction even though the participants in the transaction were not part of the same corporate group. The emphasis was on the interlinked agreements for a single commercial project.

In the matter of MTNL V. Canara Bank and Others, (2020) 12 SCC 767 the apex Court reiterated that conduct of parties evidencing a clear intention of the parties to bind both the signatories and non-signatories or where there is tight group structure with strong organisational and financial links, so as to constitute a single economic unit, or a single economic reality are pre-conditions for invoking the Doctrine. Further, in the matter of Reckitt Benckiser (India) Private Limited v. Reynders Label Printing India Private Limited and Another, (2019) 7 SCC 62 the Supreme Court reiterated the above by stating that mutual intention to bind the parties through their conduct is paramount for invoking the said Doctrine.

Recently, a three-judge bench of the Apex Court in the matter of Oil and Natural Gas Corporation Limited V. M/s Discovery Enterprises Private Limited and Anr, Civil Appeal No. 2042 of 2022 (Judgment dated 27 April 2022) set aside an interim award under Section 16 of the A&C Act 1996 deleting a party from the array of the parties as the Arbitral Tribunal failed to determine the legal foundation for the application of the Group of Companies doctrine. As per the apex Court, the Arbitral Tribunal erred by deferring an application for discovery and inspection after determining its jurisdiction in the application under Section 16 of the A&C Act which deprived the party a chance to establish Group of Companies doctrine by leading evidence which may come to light vide the said discovery and inspection application. Interestingly, when the interim award by the Arbitral Tribunal was passed, the Group of Companies Doctrine had not landed its foot in India, but the Apex Court observed that the foundation for the same had been laid down. In its judgment, the Hon’ble Supreme Court enlarged the scope of the doctrine under section 7 by stating that the following factors may be considered when deciding whether a non-signatory company within a group of companies would be bound by the arbitration agreement:

“i) The mutual intent of the parties;

(ii) The relationship of a non-signatory to a party which is a signatory to the agreement;

(iii) The commonality of the subject matter;

iv) The composite nature of the transaction; and

(v) The performance of the contract.”

The most recent judgment to join the queue is the matter of Cox and Kings Limited V. SAP India Private Limited & Anr., Arbitration Petition No. 38 of 2020 (Judgment dated 6 May 2022), wherein the Hon’ble Court examined whether the principles of party autonomy under arbitration law and corporate personality in company law have been adequately safeguarded in outlining the scope and applicability of the Group of Companies doctrine being followed at present in Indian jurisprudence. It was duly noted that Group of Companies doctrine is one such area which is utilized to bind third parties to an arbitration agreement. Theoretically, the policy consideration of efficiency is argued to allow such joinders. However, until a legal basis for the same is provided, efficiency cannot itself be the sole ground to bind a party to arbitration.

The Apex Court further noted that vide various precedents courts in India on one hand have reduced the threshold of arbitration being a consensual affair and on the other hand, the Group of Companies doctrine is transposed on requirements under contract law to bind a party to an arbitration. It was further noted that amendment to the A&C Act 1996 in 2015 has expanded Section 8 (1) to include persons claiming, “through or under”. But such change has not been carried out in Section 2 (1) (h) which has created an anomalous situation wherein potentially a party “claiming through or under” could be referred to an arbitration but would not have the right to seek relief under Section 9 of the A&C Act 1996.

Though the Group of Companies doctrine as expounded, requires the joining of non-signatories as ‘parties in their own right’. This joinder is not premised on non-signatories ‘claiming through or under’. Such a joinder has the effect of obliterating the commercial reality, and the benefits of keeping subsidiary companies distinct. Concepts like single economic entity are economic concepts difficult to be enforced as principles of law. Eventually and keeping in mind the evolution of the Doctrine, the Hon’ble Supreme Court deemed it appropriate to refer the following questions to larger bench for an authoritative determination:

A. Whether phrase ‘claiming through or under’ in Sections 8 and 11 could be interpreted to include ‘Group of Companies’ doctrine?

B. Whether the ‘Group of Companies’ doctrine as expounded by Chloro Control Case (supra) and subsequent judgments are valid in law?

C. Whether the Group of Companies doctrine should be read into Section 8 of the Act or whether it can exist in Indian jurisprudence independent of any statutory provision?

D. Whether the Group of Companies doctrine should continue to be invoked on the basis of the principle of ‘single economic reality’?

E. Whether the Group of Companies doctrine should be construed as a means of interpreting the implied consent or intent to arbitrate between the parties?

F. Whether the principles of alter ego and/or piercing the corporate veil can alone justify pressing the Group of Companies doctrine into operation even in the absence of implied consent?

IV. CONCLUSION

From the above analysis, it is clear the Group of Companies doctrine is set to undergo a major overhaul whenever the larger bench of the Supreme Court takes up the matter and decides the questions as noted above. Their interpretation and answers will either make the Group of Companies doctrine a part and parcel of arbitral law as prevalent in India or would simply render it useless which may be invoked only in very exceptional cases. As noted above, it is important to balance the basic ethos of arbitration i.e. consent of the parties to choose arbitration as their preferred mode of dispute resolution and at the same time make sure that a party may be able to enforce its right against such company which effectively was performing the obligations under the Agreement. It is also important to note that the relevant extant commercial laws of India provide a for separate corporate identity and therefore, any judgement that shall be rendered by the larger bench of Supreme Court will have a direct impact on the same. In view of the complex commercial transactions which is the norm in today’s commercial world, it is important to hold the right company responsible for any wrong but at the same time, it is also important to even out the issues that might be felt by a company which is forced to participate in an arbitration proceeding when it had nothing to do with the arbitration agreement and has been made a party just because it is a group or a holding or a subsidiary company. It may be an option for the parties to contracts governed by Indian law to specifically exclude the application of Group of Companies doctrine by noting in their contracts (including arbitration agreements) that (i) the benefits derived from the contract will be restricted to only the parties to the contract; and (ii) only the signatories and defined individuals/entities will be treated as parties.

The authors are advocates at Khaitan & Co. Ajay Bhargava (Partner), Aseem Chaturvedi (Partner), Trishala Trivedi (Principal Associate) and Milind Sharma (Senior Associate) are part of the Dispute Resolution Practice at Delhi.

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Policy & Politics

Madhya Pradesh HC acquits man wrongly convicted for murder and imprisoned for 13 years

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In a most deserving case, the High Court of Madhya Pradesh in a learned, laudable, landmark and latest judgment titled Chandresh Marskole vs The State of Madhya Pradesh in Criminal Appeal No. 1580/2009 pronounced as recently as on May 4, 2022 has set aside the conviction of a man for murder and further directed the State to pay compensation worth Rs 42 lakhs observing that his conviction was a result of a botch and maliciously motivated investigation by an ‘outrightly partisan’ police. While directing the State to pay compensation, the Division Bench of Justice Atul Sreedharan and Justice Sunita Yadav further held that the appellant was free to proceed against the State for an action in tort for malicious prosecution. The Court was deciding an appeal preferred by the appellant against his conviction under Section 302, 201 IPC.

To start with, this learned judgment authored by Justice Atul Sreedharan for a Bench of Madhya Pradesh High Court at Jabalpur comprising of himself and Justice Sunita Yadav sets the ball rolling by first and foremost putting forth in the opening para that, “The Appellant Chandresh Marskole, has filed this appeal aggrieved by the judgment and conviction dated 31/07/2009, passed in Sessions Trial No.06/2009 by the learned 8th Additional Sessions Judge, Bhopal, by which, the Appellant was found guilty of an offence U/s.302 of the I.P.C and sentenced to suffer rigorous imprisonment for life. A fine of Rs.5000/- was also imposed upon him, which was deposited by the Appellant vide receipt No.59, book No.10430 on 31/07/2009 itself. He was also found guilty of an offence U/s.201 of the I.P.C and was convicted and sentenced to suffer rigorous imprisonment for a term of three years for the said offence. For reasons given in this judgement, the case reveals a sordid saga of manipulative and preconceived investigation followed by a malicious prosecution, where the police have investigated the case with the sole purpose of falsely implicating the Appellant and perhaps, deliberately protecting a prosecution witness who may have been the actual culprit.”

Be it noted, the Bench then observes in para 66 that, “In the present case, the following would reveal the nature of the investigation done by the police:- 66.1 The statement u/s. 161 Cr.P.C of PW9 Ram Prasad is recorded by the police on 21/09/08. He states that the Appellant had brought down the bedding from his hostel on 19/09/08 and loaded it onto the dickey of the car. He does not say that he had either helped the Appellant in loading the bedding into the dickey of the car or that he had even touched the bedding. Thus, when this witness says in his police statement that the bedding was heavy, the police ought to have asked him as to how he knew that the bedding was heavy if he had not assisted the Appellant in loading the same into the car? However, no such question is asked to this witness (in his Court testimony the witness specifically states in para 8 that he never touched the bedding). No question is put to this witness by the police as to how, the Appellant managed to open the hatch of the dickey at Denwa Darshan which was locked and the key to which was with him (PW9)? Ex.P26C was given by PW13 to the police on 25/10/08 and it revealed that there were four occupants in the car including PW9. However, no supplementary statement of PW9 is taken by the police enquiring who the two other occupants of the car were, as PW9 only says that besides himself, the other occupant was the Appellant. Thus, the police statement of PW9 (Ex.D3) reflects that the police recorded it as has been given by the witness and there was no interrogation of PW9 which may have revealed if he was truthfully stating the events of 19/09/08.

66.2 PW1, Dr. Hemant Varma’s police statement leaves much to be desired, and he too ought to have been interrogated by the police. Whatever has been stated by PW1 to the police on 20/09/08 (Ex.P1) and his police statement recorded on 24/09/08 is ostensibly based upon the information that he received from PW9. According to his police statement and Ex.P1, Dr. Hemant Varma had gone to Indore on 19/09/08 for some personal work. The police never interrogated PW1 as to what was the personal work for which he went to Indore on 19/09/08? where he stayed at Indore? and what was the mode of transport by which he went to Indore and whom he met there? The police never questioned PW1 that if he had to go to Indore on 19/09/08, then why did he let the Appellant borrow his vehicle with driver to go to Hoshangabad? The police deliberately did not investigate into the absence of PW1 from Bhopal on 19/09/08 and neither did they ascertain if PW1 actually went to Indore on 19/09/08 or did he go somewhere else? The police also do not question PW1 as to how he arrived at the conclusion on 20/09/08 itself that (a) the Appellant was a murderer and (b) what was the reason for PW1 was to mention in Ex.P1, that the Appellant was in a relationship with a girl and that the bedding probably contained the body of Shruti Hill? as these facts were never told by Ram Prasad (PW9) to Dr. Hemant Varma. Ram Prasad (PW9) only says that the circumstances in which the bedding was allegedly disposed of by the Appellant was suspicious. He does not even fleetingly indicate in his police statement that he suspected the bedding to contain human remains let alone the remains of a girl and if that be so, how does Dr. Hemant Varma indicate by necessary implication in his letter dated 20/09/08 (Ex.P1) addressed to the SHO P.S Kohefiza that the Appellant is a murderer and the body may be that of the deceased Shruti Hill? Dr. Hemant Varma ought to have been interrogated intensively by the police on this aspect, but he never was.

66.3 The FSL report had disclosed that there was human sperm in the panties (FSL Article A4) worn by the deceased and in the blanket in which the body was wrapped. However, the police do not send the same for a DNA analysis as it ought to have. If the evidence revealed that it was the Appellant’s sperm, it would not have been of much consequence as the consistent evidence of the prosecution points to a romantic relationship existing between the deceased and the Appellant and that in all probability they were married (as is revealed by the presence of a mangal sutra which was sent along with the body and noticed by the doctor who performed the post-mortem). However, if the DNA revealed that it was not the sperm of the Appellant, the scope of the investigation could have been enhanced.

66.4 The largest hole in the prosecution’s case is Ex.P26C. This is the receipt issued by PW13 at the Pachmarhi toll barrier which reflects that there were four passengers in the Qualis and not two as stated by PW9. PW13 in cross examination has clearly stated that there were four persons travelling in the vehicle and that the receipt was issued to the driver Ram Prasad (PW9). This receipt should have set the alarm bells ringing in the mind of the Investigating Officer. He should have resorted to more strenuous interrogation of PW9 to unravel the truth. Once Ex.P26C revealed that there were four passengers in the Qualis and not two, it should have become apparent to the IO that PW9 was lying. That coupled with the fact that Dr. Hemant Varma gave no proof of his absence from Bhopal and his presence at Indore on 19/09/08, as he did not provide any proof of journey from Bhopal to Indore on 19/09/08 and neither did he produce any witness who could have given a statement to the police establishing his presence at Indore on 19/09/08. The conduct of Dr. Hemant Varma and his claim of absence from Bhopal on 19/09/08 when analysed in the circumstance of Ex.P26C and the statement of PW13, should have goaded the IO to subject Dr. Hemant Varma to rigorous interrogation with regard to his alleged absence from Bhopal and his presence at Indore on 19/09/08 in order to either confirm or eliminate the presence of Dr. Hemant Varma as one of the four occupants of the Qualis. The IO does not even ask Dr. Hemant Varma as to why he gave his Qualis to the Appellant to go to Hoshangabad when Dr. Hemant Varma himself had to travel to Indore on the same day? The IO should have also realised that there was no material unearthed in the course of the investigation to reveal that the relationship between Dr. Hemant Varma and the Appellant was extremely close that Dr. Hemant Varma chose to sacrifice his own comfort of travelling in his car to Indore and instead offered the same to the Appellant to go to Pachmarhi? On the contrary, the letter dated 20/09/08 (Ex.P1) written by the Dr. Hemant Varma to the SHO of PS Kohefiza clearly reveals that from the very outset itself, Dr. Hemant Varma was referring to the Appellant as a murderer even before the body was recovered. All these aspects of the case ought to have made a vigilant investigator to examine the role of Dr. Hemant Varma critically to ascertain, if his role in this case was more insidious than innocent, as was sought to be made out by the police which attributed the role of a witness to him. The omission on the part of the IO of not questioning Dr. Hemant Varma (PW1) and his driver Ram Prasad (PW9) in the light of Ex.P26C is not inadvertent but deliberate. The police knew that the entire case of the prosecution was based on the testimony of PW1 and PW9 and as per their version, on 19/09/08, only two persons travelled in the Qualis to Pachmarhi and back and they were the Appellant and PW9. The emphatic evidence revealed by Ex.P26C that there were four persons in the Qualis threw the investigation into a disarray. Obviously PW9 knew for sure that there were four persons in the vehicle. The driver Ram Prasad’s continued silence and his negation of the suggestion put forth by the defence that there were four people in the vehicle, was to protect them.

66.5 The police kept the Appellant in illegal custody from 20/09/08 till his arrest on 25/09/08. Dr. Hemant Varma in his court testimony as PW1, states in paragraph 7 that the TI of PS Kohefiza took away the Appellant with him on 20/09/08. There is no material on record to show that the police ever released Appellant after he was taken away from the hostel on 20/09/08. In order to arrive at this conclusion, we took into consideration Ex.P7 which is a memorandum of identification of the dead body. The document reveals that the identification was effected by the Appellant on 22/09/08 at 1330 hrs, in the presence of witnesses Ramprasad and Rajendra in which the Appellant has confessed that he has murdered the deceased in his hostel room by strangling her and thereafter disposed of her body at Denwa Darshan. On that date, the FIR was not registered, and neither was the Appellant arrested. The next document relied upon by us is inquest report Ex.P5 dated 22/09/08 in which also the Appellant has confessed to his crime in the presence of the witnesses to the inquest proceedings. The FIR is Ex.P51 and it has been registered on 24/09/08 and the Appellant was formally arrested on 25/09/08 and the memorandum of arrest is Ex.P53. Thus, it is clear from the prosecution’s documents that the Appellant has been in the custody of the police since 20/09/08 till he was formally arrested on 25/09/08. Before his arrest, he was made to confess to the crime during the period he was in custody of the police as is reflected by Ex.P5 and 7 which clearly reveals the malice with which the police was conducting its investigation against the Appellant. The police was well aware of the inherent fallacies and shortcomings in their investigation which have been discussed hereinabove and yet, it went ahead and prosecuted the Appellant knowing fully well that he had no role to play in the crime.

66.6 The police was outrightly partisan in its investigation. It did not investigate the offence from the standpoint of the Appellant at all. Its bias is reflected from Ex.P5 and Ex.P7 where it got the Appellant to confess to his crime before witnesses on 22/09/09 even before the FIR was registered on 24/09/08 and before the Appellant was arrested on 25/09/08. The timeline establishes that the Appellant was in the continuous custody of the police from 20/09/08. This is also proved by the testimony of PW1 Dr. Hemant Varma who states that the Appellant was taken away from the hostel by the police on 20/09/08. The conduct of the police clearly reveals that it was bent upon convicting the Appellant and the statement of the Appellant u/s. 313 Cr.P.C is telling. In response to question No.2, the Appellant has answered that PW1 Dr. Hemant Varma is vengeful towards him due to campus politics. In question No. 130, the Appellant is informed by the Court that PW6 Dr. Bhagwan Waskle stated that the Appellant was staying in the boys’ hostel since 2003 to which the Appellant answers that it is correct to say so but that due to campus politics, PW6 and the Appellant are opposed to each other. Likewise, the Appellant, in his answer to question No. 135 says that PW17 Pragyesh Navlakhe is also inimical terms with him on account of campus politics. Lastly, in response to question 198 where the Appellant is asked as to why the prosecution witnesses are against him, the Appellant replies that on account of political rivalry, he has been implicated on the basis of suspicion and that Dr. Hemant Varma has got him falsely implicated. The Appellant further says that Dr. Hemant Varma knows senior officers in the police and with their help has fabricated evidence against the Appellant and has got him implicated so as to spoil the Appellant’s career and to ensure that the Appellant is unable to study in the college.

66.7 In this regard, it is painful to note that the Ld. Trial Court has not cared to reflect upon the case of the Appellant as per his statement u/s. 313 Cr.P.C. Recently, a two judge bench the Supreme Court held that it is necessary for the Trial Court to deal with a parallel hypothesis set up by the accused in the following words, “Section 313 CrPC cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2) CrPC. The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) CrPC the Court is duty-bound under Section 313(4) CrPC to consider the same. The mere use of the word “may” cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available, is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 CrPC, in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 CrPC and to either accept or reject the same for reasons specified in writing” [Reena Hazarika v. State of Assam – (2019) 13 SCC 289 – para 19]. This judgement was once again followed by a three judge bench of the Supreme Court where it held, “Under the Code of Criminal Procedure, 1973, after the prosecution closes its evidence and examines all its witnesses, the accused is given an opportunity of explanation through Section 313(1)(b). Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial court in compliance with the mandate of Section 313(4). Such opportunity is a valuable right of the accused to seek justice and defend oneself. Failure of the trial court to fairly apply its mind and consider the defence, could endanger the conviction itself [ Reena Hazarika v. State of Assam, (2019) 13 SCC 289, para 19 : (2019) 4 SCC (Cri) 546] . Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities [M. Abbas v. State of Kerala, (2001) 10 SCC 103, para 10 : 2002 SCC (Cri) 1270] . Thus, once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defence plea” [Parminder Kaur Vs. State of Punjab – (2020) 8 SCC 811 – paragraph 22].

66.8 However, the Ld. Trial Court has not even fleetingly dealt with the version put forth by the Appellant in his statement u/s. 313 Cr.P.C. It was incumbent upon the Ld. Trial Court to deal with the allegation levelled by the Appellant in his answer to question No. 198, that Dr. Hemant Varma was close to the police authorities. In fact, this assertion of the Appellant assumed great significance as Dr. Hemant Varma (PW1) has himself stated in paragraph 12 of his Court testimony that he contacted IG Bhopal Mr. Shailendra Shrivastava directly on his mobile phone which reflects the close relationship between Dr. Hemant Varma and the then IG Bhopal Mr. Shailendra Shrivastava, as the personal mobile number of such a senior official is not in the public domain that anyone and everyone can have access to it. Moreover, PS Kohefiza that conducted the entire investigation was under the jurisdiction of Mr. Shailendra Shrivastava, the then IG Bhopal and therefore, his influence in the case, though no more than a lingering presence like Du Maurier’s Rebecca, was enough for the Trial Court to find that the entire investigation showed signs of manipulation though the same may not be directly attributable to Mr. Shailendra Shrivastava. However, the Ld. Trial Court has unfortunately not even referred to the contentions of the Appellant in his statement u/s. 313 Cr.P.C.

66.9 The enthusiasm shown by the police in conducting this case in a tearing hurry, adds to the suspicion. A speedy trial is most desirable but when a case is investigated, charge sheeted and concluded in less than a year, the same, in the light of other circumstances and the average time usually taken to conclude a trial in this state, makes the cloud even more dense. The incident is of 19/09/08 and the judgement of the Trial Court convicting the Appellant is dated 31/06/09. In less than one year, twenty seven witnesses are examined and sixty documents are exhibited on behalf of the prosecution. A tad too efficient to not arouse suspicion.”

It cannot be lost on us that the Bench then observes in para 67 that, “Thus, from the material on record, we find the conduct of the police is malicious and the investigation has been done with the intention of securing the conviction of the Appellant for an offence he did not commit and perhaps, for shielding Dr. Hemant Varma (PW1) whose involvement in this offence is strongly suspected though there is no material to hold affirmatively against him as he was not on trial. The proximity between Dr. Hemant Varma and the then IG Bhopal Mr. Shailendra Shrivastava, and the fact that PW1 Dr. Hemant Varma’s involvement in the case was far more than that of an innocent bystander in view of what has been discussed by us hereinabove, the investigation ought to have been done by a neutral agency like the Central Bureau of Investigation in the first place.”

Most significantly, the Bench then minces no words to hold in para 68 that, “This is a case that has been deliberately botched up and the Appellant falsely implicated to protect perhaps, the actual perpetrators of the offence who may have been known to the higher echelons of the state police. Under the circumstances, the appeal succeeds, and the judgement of conviction dated 31/07/09 passed in S.T No. 6/09, imposing on the Appellant the sentence of rigorous imprisonment for life for the offence of murder punishable u/s. 302 IPC and for three years for an offence u/s. 201 IPC, is set aside. The Appellant shall be set at liberty forthwith.”

While referring to a recent case law, the Bench then pointed out in para 77 that, “More recently, the Supreme Court in Nambinarayanan Vs. Siby Mathew (2018) 10 SCC 804, awarded a compensation of rupees fifty lakhs to the former ISRO scientist Nambinarayanan who was indicted by the Kerala Police and exonerated by the Central Bureau of Investigation. However, during the course of investigation, which the Supreme Court concluded was malicious, Nambinarayanan had to spend about fifty days as an undertrial.”

Quite significantly, the Bench then concedes in para 78 that, “In comparison to the fate suffered by Nambinarayanan, the Appellant’s fate is almost one of eternal damnation. The Appellant in this case, a Gond tribal, who with much difficulty, thanks to the provision for affirmative action in the Constitution, made it to a State run Medical College and was in the fourth (final) year of M.B.B.S and was on the verge of becoming a full-fledged doctor, a support for his family and a source of inspiration for his community. However, on account of this case, his entire life has been thrown into a disarray. He has spent over four thousand seven hundred and forty days in prison, first as an undertrial after being taken into custody on 20/09/08 (formal arrest was on 25/09/08) and thereafter as a convict. Even by modest accounts, the Appellant would have earned at least rupees three lakhs per annum, whether he be in the service of the State or in private practice. Therefore, in the unique factual circumstances of this case, we hold that the Appellant is eligible for compensation on account of the violation of his fundamental right to life under Article 21 of the Constitution of India.”

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