by LFIAdmin | Nov 25, 2020 | Uncategorized
By Kinjal Bhatt, Advocate
bhattkinj1@gmail.com | Nov 30, 2020
Under a contract, the Force Majeure clause is invoked to safeguard a party from the consequences of non-performance of the contract due to circumstances beyond the control of such party. It is an express provision by way of which the performance of the obligations under a contract may be excused or suspended. The term Force Majeure (“superior force” in French) is defined in the Black’s Law Dictionary “as an event or effect that can be neither anticipated nor controlled”. The Hon’ble Supreme Court of India has interpreted the term ‘Force Majeure’ in Dhanrajamal Gobindram v. Shamji Kalidas & Co. [1] and observed the following:
“The expression ‘force majeure’ is not a mere French version of the latin expression ‘vis major’. It is a term of wider import. Strikes, breakdown of machinery, which, though normally not included in ‘vis major’ are included in ‘force majeure’ …where reference is made to “force majeure”, the intention is to save the performing party from the consequences of anything over which he has no control. This is the widest meaning that can be given to ‘force majeure’…”
The term ‘Force Majeure’ has a much wider import than merely an ‘Act of God’ [2] and shall also include an ‘uncontrollable event’ [3]. The Supreme Court in the case of Industrial Finance Corporation of India v. Cannanore Spinning & Weaving Mills Ltd. [4] interpreted ‘Force Majeure’ to include non-performance for reasons of an impediment beyond one’s control which could neither be foreseen at the time of entering into the contract nor can the effect of the supervening event be avoided or overcome. However the Indian Courts have not directly ruled on whether an epidemic/ pandemic like Covid-19 is an ‘Act of God’, an argument to that effect can derive support from the decision of the Hon’ble Supreme Court in the case of The Divisional Controller, KSRTC v. Mahadava Shetty [5], wherein it has been held that the expression ‘Act of God’ signifies the operation of natural forces free from human intervention with the caveat that every unexpected natural event does not operate as an excuse from liability if there is a reasonable possibility of anticipating their happening.
A. The Force Majeure Clause: Phraseology
A Force Majeure provision cannot be implied under Indian Law. It has to be to be expressly provided for under the contract. The phraseology of the Force Majeure clause plays a pivotal role in ascertaining whether a particular event would fall within the ambit of the said clause. Therefore, some clauses contain specific terminologies so as to protect the parties to the contract which may include terms like ‘non-fulfilment of obligations due to restrictions imposed by the Government’, ‘non-fulfilment of obligations due to unforeseen events’ and/or may specifically state the occurrence of such an event like a pandemic, epidemic or a natural calamity.
A Force Majeure clause may also provide for the party invoking the said clause to notify the other party/parties within a specified period of time from the occurrence of the event/circumstances that have rendered the performance of the contract impossible [6]. The nature of the contract, the intention of parties and the phraseology of the Force Majeure clause shall determine whether the Force Majeure clause relieves the party/parties of their obligations to the contract or simply affords them the liberty of delayed performance.
The burden of proof of the unforeseen event/circumstances that have rendered the performance of the contract impossible shall lie on the party invoking the Force Majeure clause who may also be required to demonstrate that it has taken all reasonable efforts to avoid or mitigate the Force Majeure event and its effects. The Hon’ble Supreme Court in case of Jerryl Banait v. UOI [7] has termed the current Covid-19 situation as a “national calamity”, which phraseology may be helpful in interpreting force majeure clauses in contracts executed between the parties.
B. The Doctrine of Frustration
The Doctrine of Frustration, introduced by the Court of Queen’s Bench in Taylor v. Caldwell [8] provides for temporary discharge of obligation on the ground of impossibility of performance on account of unforeseen circumstances. The said doctrine also finds place under Section 56 of the Indian Contract Act, 1872 (the ‘Contract Act’). The sine qua non for invoking such a clause is (a) existence of a valid contract between the parties; (b) the contract is yet to be performed; (c) the performance of the contract has become impossible due to the prevailing circumstances. It is pertinent to note that the Doctrine of Frustration can only apply to executory contracts and not the transactions, which have created a demise in praesenti [9].For a contract to be rendered frustrated, the change in circumstances must be so fundamental as to be regarded by law as striking at the root of the contract [10].
The word ‘impossible’ under Section 56 of the Contract Act need not be interpreted with respect to physical or literal impossibility. To ascertain whether a contract is frustrated, the performance of an act may not necessarily become physically/literally impossible. The impracticality of performance with respect to the parties and the object of the agreement will also have to be taken into account [11].
Force Majeure and Doctrine of Frustration of contract have been continuously regarded as exceptional defenses in events of complete impossibility. While the threshold of proof shall continue to be high, the Courts will ascertain practicalities of the situation more dynamically. Hence, a surge in the number of commercial contracts incorporating Force Majeure clauses is very likely – to specifically cover situations such as Government imposed lockdowns, epidemics and pandemics, apart from traditional events such as Act of God, natural calamities, etc.
[1] AIR 1961 SC 1285.
[2] Ibid 1; Please also see Assam State Co-operative Marketing and Consumers’ Federation Limited v. Anubha Saha & Ors. [2000 SCC Online Gau 39].
[3] Gujarat Urja Vikas Nigam Ltd. v. Tarini Infrastructure Ltd. & Ors. [(2016) 8 SCC 743].
[4] (2002) 5 SCC 54.
[5] 2003 7 SCC 197
[6] A.I.R. 1955 Hyd. 233 – Shree Krishen v. Gambhirmal; A.I.R. 1957 Pat 586 – Dominion of India v. Bhikhraj Jaipuria; 2009 (16) SCC 208- M.D., H.S.I.D.C. v. Hari Om Enterprises; A.I.R 2008 A.P. 264 – Alluri Narayana Raju v. Dist. [8] Collector, Visakhapatnam Dist.
[7] 2020 SCC OnLine SC 357
[8] [1863] EWHC QB J1
[9] 2003 (12) SCC 91 – Ganga Retreat & Towers v. State of Rajasthan
[10] Naihati Jute Mills Ltd. v. Hyalira Jagannath, 1968 (1) SCR 821.
[11] Satyabrata Ghose v. Mugneeram Bangur& Co. [1954 SCR 310 (12); Also see: Sushila Devi v. Hari Singh [AIR 1971 SC 1756]; AIR 1986 SC 156 – U.P. State Electricity Board v. Kanoria Chemical; AIR 2002 SC 2290 – NirmalaAnand v. Advent Corporation Pvt. Ltd.; 2016(13) SCC 561 – DDA v. Kenneth Builders; 2014 (14) SCC 272 – Mary v. State of Kerala; 2004 (9) SCC 619 – M.D.Army Welfare Housing Organization v. Sumangal Services; 2004(6) SCC 537 – HPA International v. Bhagwandas Fateh Chand; 1999(5) SCC 77 – K. Narendra v. Riviera Apartments; 2007 (12) SCC 175 – Rozan Mian V. Tahera begum and Ors.
by LFIAdmin | Nov 25, 2020 | Uncategorized
By Shlok Parekh- Advocate, Bombay High Court
Parekhshlok24@gmail.com | Nov 30, 2020
History of the Doctrine
The Clean-Slate doctrine was developed in the late 19th century under the influence of voluntaries theory, which dominated the International Law during that period. According to the said theory, the sovereign state can only enjoy rights and incur obligations to which they consent. Therefore, the rights and the obligation of the predecessor state relating to the territory transferred cannot be considered to automatically pass to the successor state. In essence, the clean slate doctrine which meant at that point was, when a state is captured by another state, the rights and obligations of the predecessor sate cannot be considered to automatically pass to the successor state.
The Clean Slate doctrine is completely opposite to its predecessor doctrine of Universal Succession (also known as the doctrine of continuity) which provided that the rights and the obligations of the predecessor state, relating to the territory transferred, as transmitted to the successor state. Thus, the successor state gains the treaty rights and obligations of the predecessor state, relating to the territory transferred. As well as, the successor state inherits the public property and the debts belonging to the predecessor state relating to the territory transferred.
Both the Universal Succession and the Clean Slate doctrine have been highly criticized by the scholars. It has been argued that neither doctrine makes sense with respect to cases of cession of territories.
Examples of both the “universal succession” and the “clean slate” doctrines can be found in the practice of States. Thus, while the “universal succession” doctrine governed the emergence of Dominions, such as Canada, as independent States, the “clean slate” doctrine was invoked by Israel. However, State practice rarely reflects either the “universal succession” doctrine or the “clean slate” doctrine in their entirety. In most cases of State succession, some rights and obligations relating to the territory transferred are transmitted from the Predecessor State to the Successor State, while others are not.
Clean Slate in IBC
The doctrine of Clean Slate finds its roots in the Insolvency and Bankruptcy Code (“Code”) in the newly introduced Section 32A read with Section 31(1) of the Code. The theory of clean slate has also been put into effect by the Hon’ble Supreme Court of India in the landmark judgment of Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta & Ors.[1], (“Essar Steel Judgment”) decided on 15th November 2019.
The doctrine of Clean Slate in IBC comes into effect only after the Resolution Plain is approved by the Committee of Creditors, which is to say that the said Resolution Plain is binding on all the stakeholders, including the guarantors. Therefore, in order to explain the same, His Lordship the Hon’ble Mr. Justice R. F. Nariman stated the following in the Essar Steel Judgment:
“66- Section 33(1)of the Code makes it clear that once a resolution plan is approved by the Committee of Creditors it shall be binding on all stakeholders, including guarantors. This is for the reason that this provision ensures that the successful resolution applicant starts running the business of the corporate debtor on a fresh slate as it were”
The Supreme Court therefore has interpreted Section 31(1) of the Code to say that the successful Resolution Applicant should start running the revived company on a fresh slate vis-à-vis adopting the doctrine of clean slate. The Supreme Court has laid down the emphasis on the revived company starting a new life and therefore the doctrine of clean slate is important, so that the revived company is not burdened with the litigations and outstanding dues of the old company.
It is pertinent to note that the Counsel for one of the parties in the Essar Steel Judgment argued that in Section 60 (6) (which is for computing period of limitation specified for any suit or application by or against Corporate Debtor and excludes the period of moratorium), the legislation has intended to allow litigations to continue even after the CIRP process has ended. This argument was negated by the Supreme Court to say the following:
“67- For the same reason, the impugned NCLAT judgment in holding that claims that may exist apart from those decided on merits by the resolution professional and by Adjudication Authority/Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60 (6) of the Code, also militates against the rational of Section 31 of the Code. A successful resolution applicant cannot suddenly be faced with “undecided” claims after the resolution plan submitted by him has been accepted as this would amount to a hydra dead popping up which would throw into uncertainty amounts payable by a successful resolution applicant who successfully takes over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove. For the reasons, the NCLAT judgment must be set aside on this ground.”
Therefore, by virtue of the Essar Steel Judgment, the Supreme Court has made it amply clear that, the doctrine of clean slate applies to the Code, pursuant to the Committee of Receiver and thereafter the Adjudicating Authority accepting the Resolution Plan. The Supreme Court’s analysis is logical as much as to say that the Resolution Applicant, in order to take over the Operational/Financial Creditor, will be bringing in a huge sum of money to pay all the debts and therefore after having paid the said debts, it would be unfair to then burden the Resolution Applicant with undecided claims, which can in some cases be a loss making proposition for the Resolution Applicant. Assuming the situation, if the Resolution Applicant is burdened with the undecided claims, no company would want to come forward and take over a company which has undecided debts even after paying a reasonable high amount and therefore the same will defeat the very purpose of the Code, which is to revive the insolvent company. Therefore, in order to give effect the main objective of the Code, it was utmost important for the Supreme Court to introduce the doctrine of clean slate and in the Code.
Pursuant to the Essar Steel Judgment, the Rajasthan High Court in Ultra Tech Nathdwara Cement Ltd. v. Union of India [2] also applied the doctrine of clean slate. Ultra Tech has taken over Binani Cements after emerging as a successful Resolution Applicant and had paid all the dues as admitted by the Resolution Professional in terms of the Resolution Plan. The GST department demanded GST dues from Ultra Tech of Binani Cement until the date of approval of the Resolution Plan. The Hon’ble Court held that no new demands as to any claims can be raised by any creditor after the acceptance of the Resolution Plan, which is the date the Resolution Applicant successfully takes over the company.
The only debatable point which arises is that the Code does not provide for extinguishment of proceedings. The proviso under Section 14 states that “moratorium shall cease to have effect from the date of the approval of the Resolution Plan” which seems to suggest that adjudication of claims, which are in dispute before the appropriate forum may continue, after the moratorium comes to an end. The doctrine of clean slate seems to have not settled this facet in a way. The discrepancy arises to an extent that, if the disputed claims are to be adjudicated after the end of the moratorium, then is the section suggesting that the successful Resolution Applicant should be burdened with undecided claims, even after having paid the required amounts as decided by the Resolution Professional. Therefore, for the purpose of argument, this section negates the doctrine of clean slate and hence the interference of the Supreme Court is required for the same.
Conclusion:
In view therefore, though Supreme Court has very explicitly made the applicability of the Doctrine of clean slate as a part of the Code, but there still lies a discrepancy when the observations of the Supreme Court are read with the provisions of the Code, more specifically being proviso to Section 14 of the Code. The said proviso was not dealt by the Supreme Court in the Essar Steel Judgment, and therefore it is assumed that sooner or later, the Supreme Court is going to get one more opportunity to interpret the doctrine of clean slate again.
[1] Civil Appeal No. 8766-67 of 2019
[2] D.B. Civil Writ Petition No. 9480/2019- Rajasthan High Court (Jodhpur Bench)
by LFIAdmin | Nov 25, 2020 | Uncategorized
By Aishwarya Vashishth, Final Year Student at Jindal Global Law School
aishwaryavashishth07@gmail.com | Nov 30, 2020
‘Ivory’ is a rare and valuable substance that is usually procured from the teeth or tusks of certain animals. The Convention on International trade in Endangered Species of Wild Flora and Fauna (CITES) had banned ivory trade due to the rapid extinction of many African elephant populations [1].During the 1980s, the international ivory trade averaged some 800-100 tons per year, demonstrating the killing of almost 100,000 elephants per year. In recent times, many countries have expressed their wish to start a controlled trade in ivory subject to some limitations [2].
In the case of Indian Handicrafts Emporium and others vs. Union of India and others, the appellants are involved in the business of manufacturing and selling articles made from ivory, the trading of which had been banned by the union of India. The applicability of the Wildlife (Protection) Act of 1972 as well as the constitutional validity of the subsequent amendments to the said act were challenged by the appellants. This commentary tends to focus on the multiple arguments that were raised by the both sides and analyze them using different perspectives.
PROCEDURAL HISTORY
The appellants had filed writ petitions before the High Court of Delhi, challenging the constitutionality and validity of the 1991 Amendment Act that led to the prohibition of ivory trade. The High court had put a stay on the operation of the act by an interim order for a period of two months after which the court upheld the vires of the said act which gave rise to the current set of appeals before the Supreme Court of India [3].
FACTS OF THE CASE
The appellants had imported ivory from African countries between 1971 and 1986 and manufactured some articles out of it. They were in possession of 756 kgs of ivory articles. The 1986 amendment to the Wildlife Protection Act banned the trade of wild animals, animal articles, trophies etc. The 1991 amendment to the said act imposed a complete ban on the imported ivory trade and provided a stipulated period of six months for the disposal of the ivory stocks. The appellants contented that the act was unconstitutional and violated their right to property by not provided appropriate compensation.
MAIN LEGAL ISSUES
According to one of the first issues raised by the appellants, the impugned provisions of the act in question are violative of Article 19 (1) (g) where the right of appellants to practice their profession of ivory trade was being curbed. The appellants also alleged that this prohibition on traders was unreasonable and arbitrary under Article 14 of the Constitution.
Another issue faced by the court was whether the ivory imported into India before the amendment could be sold by the traders, or on what conditions could the ivory be retained for personal use.
Additionally, there was another question that was faced by the Apex Court where the right to property of the appellants was being violated as a result of the 1991 Amendment Act.
JUDGEMENT
The Supreme Court ruled in favour of the respondents in this case, where it opined that the prohibition on the ivory trade in India was permissible and reasonable. It was not violative of Article 19 (1) (g) of the Constitution. This was reasoned by discussing the dangers to ecology that the ivory trade posed along with emphasis on the dangers posed to the Indian Elephant. The Apex Court also held that the right to property was a constitutional right but was not a fundamental right where any and all claims to property would not be understood as a property right.
ANALYSIS
In the case of Indian Handicrafts Emporium v. Union of India, one is not only faced with the issues relating to the Wildlife (Protection) Act, 1972, but also matters of complex constitutional interpretation along with a brief contact with international law. According to the facts and circumstances of this case, as discussed earlier, the Appellants used to trade in ivory before its trade had been banned. The court, in its Judgment, does not contest the status of the Appellants as traders, since before the enactment of the 1991 Amendment Act, they used to engage in a trade of goods that were not illegal.
One of the major contentions of the Appellants was that the 1991 Amendment Act placed arbitrary restrictions on their right to carry out their trade, under Article 19 (1) (g) of the Constitution. Since ivory trade was not banned before the said 1991 Amendment, the Appellants were indeed recognized as traders, but the Court was adept at providing justifications for curbing this erstwhile legal trade. The Court held that this ban would not constitute an unreasonable restriction since the safety of the ecology and a sharply dwindling species was at stake. This reasoning is important considering the dynamic nature of the environment; animals, objects, resources that once might have been an acceptable source of income by way of a legitimate trade, might be prohibited or restricted as per the need of the hour.
To understand what exactly the term reasonable restriction implies, the court refers to a couple of case laws. In the case of Narendra Kumar v. UOI, it was held that the word restriction can include cases of prohibition. The court needs to balance the direct impact on the fundamental rights of the citizens against the greater good of the society to determine whether a total prohibition would be reasonable or not. The court re-emphasis on the competence of the legislature and its powers in such a matter where a ban and the subsequent measures to ensure the effectiveness of the ban rested with the legislature itself. The Court re-emphasized settled law on the matter where the provisions of the act should be in coherence with the object that it intended to achieve.
In this case, this objective was to ensure that the ecological and environmental security of India be enforced. The Court then uses the case of Municipal Corporation of the City of Ahmedabad V. Jan Mohammed Usman Bhai and Anr. where the Supreme Court had held that while determining the validity of a law which placed restrictions on a fundamental right, the burden of proving that the restriction was reasonable lies on the state. The tests of reasonableness need to be viewed from the prospective of furthering the social interests that the legislation intends to promote. The enacted law must intend to solve the problems envisaged and should be in the interests of the general public.
The major objective of the act, as mentioned in the Judgment, was to protect the illegal killing of the Indian Elephant. The import of ivory from Africa had been prohibited since it was felt by the legislature that imported ivory trading might implicitly promote the illegal sale of ivory obtained from the Indian Elephant. However, in the judgment, there seems to be no explicit discussion on the area where a clear nexus between the import of ivory from Africa and the increase in sale of illegal ivory was reasonably concluded. There exist several items that are restricted for import into India but could be imported in certain circumstances. These include certain live birds and animals, semi-processed hides and skins, endangered species of plants and animate, certain vintage products, amongst others. In many of these scenarios, the production or making of these items is prohibited, but impact under special circumstances is permitted [4].
The 1989 ban of ivory by the CITIES, and its inclusion of Appendix I, might have led to a reduction in ivory trading, but it would not essentially mean that the peaching of elephant has markedly reduced. The complete prohibition of ivory trade could have counterintuitive effects where the scarcity of supply could lead to a severalfold increase in price, thus defeating the purpose of the legislation. This could have an impact on the reasonableness of this restriction on the trade of imported ivory [5]. The Court was extremely clear in opining that India, as a sovereign country, was not bound to follow exactly certain were needed, then those would be applied by the legislature.
There were also contentions by Appellants that they be allowed to trade with the ivory of dead animals by way of a natural death and not poaching. It was also argued with the assistance Supreme Court precedents that if the statute had been vague in certain areas, then the amending should be ultra vires. This was supported with certain modifications to CITIES, as elephants had been placed into Appendix II of the convention from Appendix I. The former was a stricter category inviting more stringent bans, whereas in the latter regulated trade could still continue [6]. It was argued that the resurging elephant number in Africa did not require stringent protection as envisaged by the Act, where its nexus with the Indian Elephant’s Population was weak. One could, for the sake of legislative interpretation, analyse this judgment, through the lens of Balram Kumawat v. Union of India, which was passed by the Supreme Court in 2003.
In this Judgment, the Supreme Court applied the reasoning of Indian Handicrafts Emporium to ban the trade of mammoth ivory in spite of it being extinct [7]. The Appellants had appealed against the Judgment of a division bench of the Delhi High Court and had urged that the Court had made an error since mammoths were deceptively similar to elephants. It was argued that the substance ivory and its chemical composition could be found in whales, walruses, hippos, etc. and that the word ivory could not possibly cover all these animals, when the intention was manifestly directed towards the Indian Elephant.
In this case, it was upon the Apex Court to adopt either a lenient or strict construction of the term ivory, and whether it could be applied to mammoth tusks. In this judgment, the court did not look favourably towards the perspective that would be against the intended social goals of the law and would thus make the impugned legislation futile. The Court acknowledged the perils of assigning any ordinary dictionary meaning to a word over its technical meaning but differentiated the same by giving the justification that the impugned statute was not one like tax statutes but was for the higher purpose of ecological protection [8].
It held that a purposive interpretation of a stature and its risks did not need to be discussed in the case, and that the Parliament had enacted the 1986, 1991 and 2003 amendments not only to protect the Indian Elephant, but also to obstruct the activities of poachers with a goal of complete prohibition of ivory irrespective of its biological or geographical source. The Court placed full reliance on the Indian Handicrafts Emporium case in arriving to its conclusions, both in reasoning in relation to the ambit of the word ivory, and in the powers of the administrative authorities regarding the power to use thin discretion.
CONCLUSION
In light of the above analysis of the Indian Handicrafts Emporium Case and its aftereffects, it is clear that the Supreme Court had chosen an approach towards the protection and conservations of wildlife. In providing its reasoning in the areas of exceeding the limits of CITIES restrictions, expanding the ambit of ivory to not only include ivory from elephants, but also from mammoths and other animals. The court has definitely taken an extremely strict interpretation of the statute. The intentions and effects of this judgment undoubtedly seem to be complementing the legislation, and they end up give more power to the state to restrict and prohibit certain detrimental activities in relation to the environment and its conservation. This support of the highest court of the land is essential in these troubled times of rising water levels and smog, as we head towards a mass extinction of life as we know it.
[1] Scott Hitch, Losing the Elephant Wars: CITES and the Ivory Ban, 27 Ga. J. Int’l & Comp. L. 167 (1998).
[2] Andrew Dobson & Joyce H Poole, Ivory: Why the Ban Must Stay!, 6 Conservation Biology 149-151 (1992).
[3] Indian Handicrafts Emporium and Others v. Union of Indian and Others, AIR 2003 SC 3240.
[4] Restricted Items | Directorate General of Foreign Trade | Ministry of Commerce and Industry | Government of India, Dgft.gov.in (2017), https://dgft.gov.in/policies/restricted-items (last visited Nov 5, 2019).
[5] Branden D. Jung, The Tragedy of the Elephants, 2017 Wis. L. Rev. 695 (2017).
[6] Angela Ostrowski, (Elephant) Death and Taxes: Proposed Tax Treatment of Illegal Ivory, 21 Animal L. 221 (2015).
[7] Balram Kumawat v. Union of India, AIR 2003 SC 3268.
[8] Id. at 2.
by LFIAdmin | Nov 23, 2020 | Uncategorized
By Harsha Sawant, Advocate
sawantharsha20@gmail.com | Nov 30, 2020
Criminal trial
A criminal trial is designed to resolve accusations levied (usually by the State) against a person accused of a crime. The rights afforded to criminal defendants are typically broad. The rules of criminal procedure provide rules for criminal trials.
A criminal trial can be understood by the procedural understanding of the functioning of criminal courts wherein, it is a stage, that begins after framing the charge and ends with conviction or acquittal.
An English trial in simple words, can be defined as a formal examination of evidence by a judge, typically before a jury, in order to decide guilt in a case of criminal or civil proceedings.
In India the system of jury has long been abolished. A criminal trial however is the analysis and examination of Evidence in order to either convict or acquit the alleged accused.
Criminal trials in India are conducted as per the provisions of the Code of Criminal Procedure, 1973.
Types of Trials as per the Code of Criminal Procedure
As per CRPC the procedure to conduct trial of an accused charged with an offence is distinguished as per the tenure of Punishment of the alleged offence. The trial of an accused as per the Offence committed by him is divided into five parts.
1. Complaints to Magistrate
2. Sessions Trial
3. Warrant Trial
4. Summons Trial
5. Summary Trial
I. Complaints to Magistrates.
This is discussed under Chapter XV under the provisions of section 200 of Cr PC. If both the local police station and the superior officer refuse to register an FIR, the informant/Complainant can approach the Magistrate under Section 156(3) of Cr PC seeking direction to the police to investigate in the matter and further Issue Process directing the Superior Police Officer having jurisdiction to arrest the Accused and further register an FIR.
The Procedure for conducting trial when a private Complaint is made to the Magistrate is discussed under Sections 200 to 210 of the Cr PC.
In Devarapalli Lakshminarayana Reddy[1] the Supreme Court explained the power of the Magistrate under Section 156(3) and Sections 200 and 202 of Cr PC. The following discussion and ultimate conclusion are relevant which reads as under:
It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words “may take cognizance” which in the context in which they occur cannot be equated with “must take cognizance”. The word “may” gives discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.
II. Sessions Trial.
The act classifies certain categories of cases, which are triable by the Sessions Judge. In compliance with S. 209 of the Cr PC when the accused appears before the Magistrate, the Magistrate shall further commit the case before the Court of Sessions. Provisions for trial of a Sessions Case are provided under Chapter XVIII from section 225 to 237 of Cr PC.
Also for an offence to be tried by the Court of Sessions, the tenure of punishment shall be more than seven years of imprisonment or Life imprisonment or Death. All sexual offences against Women and Children are tried by the Sessions Court.
III. Trial of Warrant Cases.
Warrant Triable Cases are classified under chapter XIX. Offences punishable for a tenure of more than 2 years of Imprisonment or more are tried as warrant cases.
A trial in a warrant case begins either by filing an FIR in a Police Station or by filing a Complaint before a Magistrate. Procedure for trial of Warrant Cases is provided under section 238 to 250 of Cr PC.
IV. Trial of Summons Cases.
Any offences wherein the tenure of punishment does not exceed two years shall be categorized as summons cases. Trial of cases by summons procedure is provided in Chapter XX of the Code from sections 251 to 259.
V. Summary Trials.
The Procedure for trial of a Summary triable case is similar to that of a warrant and summons case. However, the difference is that the evidence in such trials is not discussed exhaustively and they are majorly petty offences. Summary trials are discussed in details in Chapter XXI of Cr PC from section 260 to 265.
No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
“Trial of cases by summons procedure is provided in Chapter XX of the Code. Instead of Charge being framed, substance of accusation is to be read over to the accused and his plea has to be recorded. Prosecution evidence and the defense evidence is required to be taken but evidence is not to be recorded or dealt with in the manner provided under Sections 275, 278 and 279 of the Code memorandum of substance of the evidence is prepared and that is not required to be read over to the witness nor his signature is required to be taken. Procedure for summary trial is prescribed in Chapter XXI of the code. The procedure for summary trials is exactly the same as the procedure for trial of summons cases. Warrant case procedure being more elaborate provides better opportunity to the accused to defend himself. The summons or summary procedure is prescribed only for trial of comparatively minor offences involving comparatively lesser sentences. In serious cases, it is open to the Magistrate to convert summons case into a warrant case, as seen in Section 259 of the Code. The purpose of providing summons of summary procedure is to shorten the record and the work of the Magistrate and save his time. The power of the Magistrate to try cases summarily under Section 209 is discretionary. The offences under the Act being offences against the health and wellbeing of people, it is necessary that these cases should be dealt with expeditiously.”
Jagdish Prasad vs. State of M.P. and Ors. (03.01.1995 – MPHC)[2]
“In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.
Thus, the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials.”
J.V. Baharuni and Ors. vs. State of Gujarat and Ors. (16.10.2014 – SC)[3]
Procedure for conducting Criminal Trials.
Chapters XV to XXI state the procedure for conducting Criminal Trial.
Every Trial begins post producing the Police Report (charge sheet) in the Court having Jurisdiction to try the offence and further presenting the Accused before the Magistrate. At this step the offence alleged upon the Accused is explained to him and he is asked whether he pleads guilty to the alleged offence. If the Accused pleads guilty, the Magistrate grants him Conviction whereas, if the accused pleads not guilty the Magistrate shall proceed with the trial by Examination-in-chief of the prosecution witnesses, followed by the cross-examination by the Defense of the Prosecution witnesses and further by presenting defense witnesses for Examination-in-chief and Cross-examination by the Prosecution.
However, upon receiving of the Police Report the Magistrate finds that the Case is Sessions Triable, he shall further commit the case to Sessions Court where in the procedure is then conducted by the Sessions Court Judge in the similar manner as above.
In situation wherein the Complaint is directly made to the Magistrate it will be categorized as cases instituted otherwise than on a Police Report. In this scenario the Magistrate shall examine the Complainant upon oath, post which at the discretion of the Magistrate as per Section 200 of Cr PC, he shall take cognizance of the offence and issue process against the Accused. After process is issued against the Accused if the offences illustrate that the case is a Summons Case, a Summons is issued to the Accused whereas if the case is a Warrant Case a warrant may be issued to him and he may be arrested by the Police Authorities.
An exception to the procedure of conducting a trial, is a Summary Triable Case where in the Evidence lead by the Prosecution is not at length and Judgement contains a brief statement of the reason for finding the same is recorded.
Upon taking Evidence if the Magistrate finds the Accused not guilty he shall record an order of Acquittal. Where in case the Accused is proven Guilty of the alleged offence the Magistrate shall after hearing the accused on the question of sentence, pass sentence upon him according to law.
India has a highly developed criminal jurisprudence and prosecution system, supported by judicial precedents. There are however many issues and concerns relating to the execution of the same by Police and implementation by Judiciary. The courts in India, particularly High Courts and Supreme Court have been proactively guarding the rights of the accused. Even Article 21 of the Constitution of India has been interpreted in a highly dynamic manner to protect the rights, life, and liberty of the citizens, by also incorporating the principles of natural justice.
[1] MANU/SC/0108/1976
[2] MANU/MP/0636/1995
[3] MANU/SC/0995/2014
by LFIAdmin | Nov 25, 2020 | Uncategorized
By Amritha Vyas, Associate Advocate, Gajria and Co.
amritha@rgajria.com | Nov 30, 2020
INTRODUCTION:
This question has been laid to rest by a Special Bench of five judges of the Delhi High Court in Carlsberg Breweries A/S. vs. Som Distilleries and Breweries Ltd. reported as 256 (2019) DLT 1. The Delhi High Court held that a composite suit in relation to the infringement of a registered design and passing off in relation to the same design, where the parties are the same, is maintainable in a court of law.
The primary issue before the court was whether a composite suit joining the two causes of action (one for infringement of a registered design and the other for passing off of the plaintiff’s goods) was maintainable?
The court allowed the joinder of the suits in the case on account of “existence of common questions of law and fact between the two causes of action” i.e. infringement of a registered design and passing off.
FACTS:
The present suit was filed, by Carlsberg complaining that Som Distilleries had adopted an imitation of its registered bottle design, trademark and trade dress to sell its Hunter beer which amounted to infringement of design and trademark, as well as passing off. Carlsberg also filed an injunction application to restrain Som from carrying out its infringing activities. The interim injunction application was considered by the court and it ruled in favour of Som.
Carlsberg’s claim was based on the distinctive dress up of its Tuborg beer bottle registered under the Design’s Act, 2000 and common law right in the distinctive shape of the bottle.
Som Distilleries responded by stating that two claims for passing off and relief for design infringement [as per Mohan Lal v Sona Paint, 2013 (55) PTC 61 (Del) (FB)], could not be combined in one suit.
In the case of Mohan Lal, the Full Bench formulated three questions to be determined; the third issue being:
“III. Whether the conception of passing off as available under the Trade Marks can be joined with the action under the Designs Act when the same is mutually inconsistent with that of remedy under the Designs Act, 2000?”
The full bench held that “composite suit for infringement of a registered design and a passing off action would not lie”.
For design infringement, the test to be applied is of a knowledgeable person who knows the field and not of any customer. Further, design resides in the shape of the bottle without the label and when the designs of the bottles are compared there are marked differences.
There was no novelty in Carlsberg’s bottle design, as the shape, pull caps and labels are common to the trade over which no monopoly can be claimed.
Thus, the single bench in respect of Carlsberg was of the view that the issue as decided in Mohan Lal’s case needed re-examination, hence, the Special Bench was constituted.
JUDGEMENT:
The Special Bench considered two important issues from the present case:
1. If two causes of action cannot be clubbed, is the court compelled by law to reject a Plaint for misjoinder?
2. Are the two causes of action, i.e. a claim for design infringement and the other for passing off, so different that the court cannot try them together in one suit?
For the first issue, the court came to the conclusion that, for a composite suit with different causes of action, the court will only entertain if it has the jurisdiction of both subject matters. The Court also held that misjoinder by itself is not sufficient to entitle the Defendant to have the proceedings set aside or action dismissed.
In the second issue, the court suggested that a composite suit has the advantage of a “bird’s eye view” by the court, with respect to a common set of facts. If for some reason, the claim for design infringement is prima facie weak and the plaintiff cannot secure interim relief, it does not have to face the uncertainty of another action before another court. The same court can review the same facts and evidence. Also, if the facts that compel a Plaintiff to approach a court, complaining of design infringement are the same as passing off, then it is inconceivable that a cause of action can be split in some manner and presented in different suits.
The bench held that there is a significant difference between causes of action relating to design infringement and those based on passing off, that the factual overlap is with respect to presentation in the design and the novelty, and in a passing off action, the distinctiveness of the mark and association with the owner.
The bench came to a conclusion that to establish infringement of a design, fraudulent imitation has to be proved. Similarly, in a passing off action it is necessary for the Owner of the mark to establish that the Defendant has misrepresented to the public irrespective of the interest, that its goods are those of the Plaintiff and the resulting harm to its reputation is actionable.
COMMENTS:
It is, thus, possible to club two causes of action arising out of the same facts i.e. for infringement of a registered design and passing off against the same Defendant in one suit so as to avoid multiplicity of proceedings which will otherwise result in waste of time, money and energy of the parties and also that of the courts. Provisions for joinder of multiple causes of action, where the court has jurisdiction to entertain one cause of action and not the others, are also contained in Clause 14 of the Letters Patent of the High Courts of Bombay, Madras and Calcutta.
This provision is often invoked in cases of Trade Mark infringement where the court has jurisdiction to entertain the cause of action for infringement but not passing off as the products are not available within the jurisdiction of the court or the Defendant does not reside or carry on business within the jurisdiction of the court.
