SUPREME COURT HAS HELD THAT A MEMORY CARD IS A RELEVANT PIECE OF DOCUMENTARY EVIDENCE

In a recent case of P. Gopalkrishnan v/s State of Kerela & Anr, the Supreme Court has passed a Judgment dated on 2nd December, 2019, wherein,the central issue was whether the Accused was entitled to the copy of the contents of the Memory Card under Section 207 of the Code of Criminal Procedure 1973 as amended thereof.

The Petitioner sought a copy of a Memory Card that contains a video footage of the assault allegedly committed by his co-Accused at his behest. The relevant question was that would the Memory Card be considered a “material object” or “document” in the said case.

The Judgment referred to the following provisions that define certain records as documentary evidence:

  1. Section 3 of the Indian Evidence Act, 1872 as amended thereof – documentary evidence includes electronic record.
  2. So far, various courts have held tape records of speeches, and compact discs containing visuals etc., to be documentary evidence.
  3. Section 2(1)(t) of the Information Technology Act 2000 as amended thereof – “electronic record” includes ‘data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer ­generated micro fiche”.

The Apex Court herein considered Memory Tape as a documentary evidence based on the aforesaid principles and held that “On a bare reading of the definition of “evidence”, it clearly takes within its fold documentary evidence to mean and include all documents including electronic records produced for the inspection of the Court.”

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER

PRELIMINARY INQUIRY IS NOT A PRE-REQUISITE IN ALL CORRUPTION CASES

The Supreme Court has in a recent of The State of Telangana vs Sri Managipet dated 6th December, 2019 held that a preliminary inquiry before registration of a First Information Report (FIR) is not required to be mandatorily conducted in all corruption cases. The Judgement was given by the Bench consisting of Justices L. Nageswara Rao and Justice Hemant Gupta, while considering an appeal against a Police Officer who was said to be in possession of assets which were disproportionate to his disclosed income. The rationale behind the decision of the Bench is that preliminary investigation is to screen completely pointless complaints and to act fairly on serious ones.

Previously in the case of Lalita Kumari vs. Government of Uttar Pradesh 2013, the Supreme Court held that that a preliminary inquiry before registering a cognizable offence is necessary. On the contrary, the Supreme Court overruled its decision given in Lalita Kumari (supra) and held that, “The scope and ambit of a preliminary investigation inquiry being necessary before lodging a FIR would depend upon facts of each case. There is no set format or manner in which a preliminary inquiry is to be conducted. The objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. Thus, if the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry on the receipt of the information received by him.”

Thus, the Court clarified that it depends upon the facts of the case and the officer recording the complaint to decide if prior investigation is required or not. Presently in this case a prior information was available that the Police Officer was in possession of disproportionate income which was sufficient to move against the Accused for cognizable offence. The Court while overruling Lalita Kumari (supra) judgement, was of opinion that if the information received by the police officer registering the complaint is credible in nature then investigation is not mandatory to move against the accused. Therefore, any FIR registered cannot be said to be quashed solely because it was conducted without a prior investigation.

Thus, the Supreme Court herein was of view that the Order of the High Court of Telangana to quash the proceedings against the Accused Officer was not sustainable and was, therefore, set aside.

Aakritee Gambhir

Associate

The Indian Lawyer

MINISTRY OF CIVIL AVIATION INVITES TENDERS FOR AIRPORTS IN JAMMU AND KASHMIR, LADAKH AND NORTH-EASTERN STATES OF INDIA

Recently, the Ministry of Civil Aviation (Ministry) has invited tenders from airline operators for unserved and underserved airports in Jammu and Kashmir (J&K), Ladakh and North-Eastern states in India under the UDAN (Ude Desh Ka Aam Nagrik) Scheme or the Regional Connectivity Scheme (RCS) (Scheme). The said Scheme aims at connecting unserved and underserved airports to key airports through low-cost flights and also envisages to provide subsidy to airlines to offer such low-cost fares.

As per the Ministry, an unserved airport means any airport where there have been no scheduled commercial flights during the last 2 (two) flight schedules approved by the Directorate General of Civil Aviation (DGCA); whereas, an underserved airport means any airport where there are no more than 7 (seven) scheduled commercial flight departures per week as per the latest flight schedule approved by the DGCA.

Bidding process in J&K and Ladakh:

The bidding process for the following 11 unserved airports in J&K and 2 underserved airports in Ladakh region have commenced on 03-12-2019 with the objective to establish strong air connectivity and to boost the tourism sector in the region:

1- Unserved Airports available for bidding in J&K Akhnur, Chamb, Chushal, Fukche, Gurex, Jhangar, Miran Sahib, Panzgam, Poonch, Rajouri and Udhampur

2- Underserved Airports available for bidding in Ladakh – Kargil and Thoise

Bidding process in North-Eastern states:

The Ministry has recently invited bids for 24 unserved and 6 underserved airports in the North-Eastern states of India on 06-12-2019, with the objective of providing aerial connectivity to the region and boosting the tourism sector, that would transform the economic situation of the region:

1- Unserved Airports available for bidding in various states of North-East India are as follows:

i) Arunachal Pradesh – Alinya, Along, Daparizo, Mechuka, Tuting, Vijaynagar, Walong, Yinghiong, Ziro

ii) Assam –Chabua, Darrang, Dinjan, Ledo, Misa Mari, Nazira, Sadiya, Sorbhog, Sukerating (Dum Duma) 

iii) Meghalaya –Dwara, Shella, Tura

iv) Tripura –Kailashahar, Kamalpur, Khowai

2- Underserved Airports available for bidding in various states of North-East India are as follows:

a) Arunachal Pradesh –Passighat and Tezu

b) Assam – Jorhat, Rupsi, Tezpur

c) Meghalaya –Shillong

3- Water Aerodrome available for bidding in Assam – Umrangso Reservoir

The successful airline operator bidder in both J&K and Ladakh, and in North-East States of India would avail a number of incentives including levy of 2% excise duty on aviation turbine fuel (ATF), reduction of value added tax to 1% on ATF at RCS Concession Airports, provision of minimum land, if required, free of cost and free from all encumbrances for development of RCS Concession Airports, provision of free security and fire services and low-cost electricity, water and other utility services at RCS Concession Airports, no landing and parking charges, and terminal navigation landing charges at RCS Concession Airports, increased viability gap funding (VGF) or financial support provided by Government to the RCS flight operating airlines, etc, for certain period of time.  

Thus, the Ministry has aimed at operationalizing 1000 routes and more than 100 airports in the next five years including development of no-frills airports to promote and encourage low-cost airlines and airports and eliminating non-essential features in flights and at airports.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT HELD THAT A CRIME COMMITTED AS A JUVENILE SHOULD NOT BE HELD AGAINST THE PERSON IN HIS/HER ADULTHOOD

The Supreme Court of India has in a recent case of Union of India vs. Ramesh Bishnoi 29-11-2019 held that, “The thrust of the legislation, i.e. The Juvenile Justice (Care and Protection of Children) Act, 2000 as well as The Juvenile Justice (Care and Protection of Children) Act, 2015 is that even if a juvenile is convicted, the same should be obliterated, so that there is no stigma with regard to any crime committed by such person as a juvenile. This is with the clear object to reintegrate such juvenile back in the society as a normal person, without any stigma.” This Judgement was given by Justice UU Lalit and Justice Vineet Saran, where they have dismissed an Appeal filed by Central Government in a matter concerning employment in the Central Industrial Security Force (CISF).

In this case, Mr. Ramesh Bishnoi (the Respondent) was denied employment in CISF, as at the time of appointment he had disclosed that previously he was charged with offences under Sections 354 (assault with intend to outrage the modesty of a woman), 447 (criminal trespass) and 509 (insult to outrage the modesty of a woman) of the Indian Penal Code as amended thereof (IPC) in 2009. These complaints were filed against him when he was minor. Also, the case was dismissed due to lack of evidence and he got acquitted with clean hands. But when his employment with CISF was rejected multiple times, the Rajasthan High Court passed directions to CISF to reconsider his application. Aggrieved by the said Order of the High Court, the Central Government approached the Hon’ble Supreme Court, whereby the Apex Court held that even if the Respondent committed such a crime when he was a minor, he could not be denied employment when he became a major, as any act or omission committed by a juvenile cannot be held against him when he attains majority.

Therefore, the Apex Court held that based on the principle of fresh start under the Juvenile Justice (Care and Protection of Children) Act, 2015, all past records of any child under the juvenile justice system should be erased except in special circumstances. This further helps to maintain the dignity of a person who has been convicted or charged for any offence when he was a juvenile.

Aakritee Gambhir

The Indian Lawyer

Associate

SUPREME COURT STRIKES DOWN CONSTITUTIONAL VALIDITY OF SECTION 87 OF ARBITRATION AND CONCILIATION ACT 1996

The Supreme Court of India has in a recent case of Hindustan Construction Company Limited and Anr. vs Union of India and others dated 27-11-2019 struck down the constitutional validity of Section 87 of Arbitration and Conciliation Act 1996 as amended in 2019 (Act).

The Petitioner, Hindustan Construction Company Limited, had challenged Section 87 of the Amendment Act 2019 on the grounds that although certain arbitral awards were in their favour and certain amounts were due under such awards from the Government bodies, but as soon as the judgment debtors made an application under Section 34 before a court of law, thereby challenging such arbitral award, the court imposed an automatic stay on the execution of such award and the Petitioner was left remediless until and unless such court proceedings were complete. As a result, the Petitioner had become incapable of paying money to various operational creditors who had supplied manpower, machinery, etc to the Petitioner, and thus, they had initiated the process of recovery of dues under the Insolvency and Bankruptcy Code 2016 as amended thereof (the Code). Thus, the Petitioner became vulnerable to being declared insolvent under the Code.

The Apex Court discussed in this case that the 2015 Amendment Act had corrected certain mischiefs prevalent in the Act including the provision of application for setting aside an arbitral award in a court of law, which had acted as an automatic stay on enforcement of arbitral award, leaving the decree holder remediless till the court proceedings were complete. This 2015 Amendment Act had application with respect to court proceedings arising out of arbitral proceedings that are pending on, or commenced on or after 23-10-2015. Thus, accordingly, the courts had allowed a number of Section 34 applications (i.e. court proceedings to set aside arbitral award) that were pending on/commenced on or after 23-10-2015, and also granted conditional stay on enforcement of awards after deposits were made by judgment debtors. This ensured that there was a speedy disposal of court matters in arbitration cases.

The Apex Court further discussed that with the introduction of Section 87 of the Act in 2019, the provision of automatic stay on enforcement of arbitral award has been reinstated, thereby causing delay in disposal of cases, and an increase in the interference of courts in arbitration matters, which defeated the very object of the Act. Further, this 2019 Amendment Act has application with respect to court proceedings arising out of arbitral proceedings that were commenced on or after 23-10-2015. As a result, a number of refund applications had been filed by judgment debtors for refund of deposits made by them against grant of conditional stay in court proceedings that had arisen out of arbitral proceedings commencing on or after 23-10-2019. Further, Section 87 of the Act has also treated court proceedings pending on 23-10-2015 differently than those commenced on or after 23-10-2015.

Thus, on the aforesaid grounds the Apex Court considered Section 87 to be arbitrary and thus, violative of Article 14 of Constitution of India, as it brought back the mischief that was corrected by the 2015 Amendment Act. Therefore, the Supreme Court struck down the constitutional validity of Section 87 of the Act and refused to proceed with the objections pertaining to stay on the execution of the arbitral award in the present case as there was a pre-existing dispute between the parties regarding deposit made against such conditional stay.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

DELHI GOVERNMENT SETS UP PANEL FOR GRANT OF FUNDS FOR THE WELFARE OF ADVOCATES

In November 2018, the Delhi Bar Council had written to Shri Arvind Kejriwal, the Chief Minister of Delhi, requesting an annual grant of Rs 10 Crore to help it “streamline the legal system”, support needy lawyers and litigants, and build adequate infrastructure including a lawyers’ academy.

In February 2019, at an event organized in Tis Hazari Court Complex, Mr Kejriwal promised that instead of allocating funds, a committee of lawyers would be set up for making recommendations about how to use Advocates’ Welfare Fund of Rs 50 Crores.

The said promise has been reiterated by Mr Kejriwal on 29th November, 2019 whereby he stated that the grant of Rs. 50 Crores would not be a ‘one-time’ grant, but would be recurring in nature. He further stated that the Delhi Government recognizes the contribution of lawyers to legal system and society and thus, andhas fulfilled their demand for a separate scheme for their welfare.

It is also believed that this is the first time ever that any Government has set aside such a big amount for the benefit of lawyers. He further stated that a report of these recommendations would have to be submitted to the Delhi Government within ten days i.e. by 09th December, 2019.

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER

GOVERNMENT INITIATIVES TO MITIGATE AIR POLLUTION IN INDIA

The Government of India has recently planned and implemented the following measures and programmes to tackle extreme cases of air pollution in India, especially in Delhi-NCR regions, and for creating awareness amongst the general population for prevention, and reduction of air pollution in the country.

  1. National Clean Air Programme-

The Central Government had launched a National Clean Air Programme (Programme) to tackle the growing issue of air pollution across the country in a comprehensive manner which would help to achieve the target of 20%–30% reduction of concentration of PM2.5 and PM10 particles in air by 2024. Failing which these particles also have potential to be trapped in nose, mouth, throat and lungs of a body. So far, 102 cities mostly in Indo-Gangetic Plains have been identified for implementation of the Programme.

2. Comprehensive Action Plan and Graded Response Action Plan-

Further, the Central Government has planned to implement a Comprehensive Action Plan and a Graded Response Action Plan to prevent, control and mitigate air pollution in Delhi and NCR. Under the Graded Response Action Plan, the Delhi Government has re-implemented the Odd-Even Scheme, extended ban on diesel engine generators to Guragon, Noida, Ghaziabad, Faridabad, Sonepat, Panipat, Bahadurgarh, etc.

3. ‘SAMEER’ App

Also, the Central Pollution Control Board (CPCB) has launched ‘SAMEER’ App which provides hourly updates on the National Air Quality Index (AQI) and has also deployed 46 teams across the Delhi-NCR region to identify problem areas and catch polluting activities. The App also enables people to lodge a complaint against.

4. Environment Education, Awareness and Training Scheme-

The Ministry of Environment, Forest and Climate Change has planned to implement an Environment Education, Awareness and Training Scheme to promote environmental awareness amongst public that focus on promotion of cycling, water and electricity conservation, growing trees, reduce crowding on roads by carpooling, etc.

5. National Green Corps (NGC) Programme-

The Ministry of Environment, Forest and Climate Change has, under the National Green Corps (NGC) Programme, around 1 lakh schools have been identified as eco-clubs, whereby, about thirty lakh students would be actively participating in environment protection and conservation activities.

The Central Government has thus taken the aforesaid measures for curbing air pollution, conserving the environment and also for creating awareness among the public to participate in such conservation programmes, where possible, and lodge complaints through social and digital media against any polluting activities.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT ASSISTS POOR FARMERS

The National Capital Region is choking! One of the primary reasons is crop stubble burning in and around Delhi NCR more particularly Haryana, Punjab, U.P.

Farmers in these States due to poverty have taken to burning crop stubble in order to get rid of the crop residue of non-basmati rice that is there in the fields.

On Wednesday 13th November, 2019 a Special Bench of the Supreme Court of India consisting of Justices Arun Mishra and Deepak Gupta passed an interim Order after hearing the parties for 2 hours on the issue of severe air pollution that has engulfed the Delhi-NCR.

The Court observed that the machines that are used for getting rid of crops stubble cannot be afforded by small time farmers. It therefore directed that such machines should be provided by the State Governments of Haryana Punjab and U.P to small and marginal farmers to deal with the issue of crop stubble. The Court was of the view that punishing such farmers cannot be an ultimate solution and asked the Government to provide such poor farmers basic facilities and amenities. The Court further held “farmers are to be equipped; not punished”. The Court further directed the Central Government to prepare a scheme to protect the interests of small and marginal farmers within 3 months and stated that the said scheme should be applied across the country. The Courts also directed the adjoining States to pay incentives to their farmers from State Funds.

The Hon’ble Supreme Court of India came down very heavily on the Chief Secretaries of Haryana, Punjab and U.P. for their failure to stop farmers from stubble burning. The Court further held that these Governments failed to make advance plans to handle the pollution and held several Government authorities liable for inaction.

The Court headed by Justice Mishra questioned the Government authorities stating “can you permit people to die like this? What is the advantage of having all these developments in the country? This is a failure of machinery and scientific brain of the country”. In fact Justice Mishra orally stated that if you don’t care about the farmers and don’t have funds then tell us we will provide the funds. The Bench observed that the air pollution has become a recurring event. The Supreme Court of India has passed the following directions to deal with air pollution:

  • Chief Secretaries of Punjab U.P and Haryana to take measures to reduce crops stubble burning.
  • Local Administration both administrative and Police to be held liable if stubble burning takes place.
  • Panchayats to prepare inventory of incumbents who have burned stubble in the area.
  • Delhi Government to take steps to tackle garbage disposal
  • All demolation activities in Delhi to be banned and violators to be penalized Rs. 1 lakh.
  • To stop coal based industries in the area.
  • Sprinkling of water on roads to reduce road dust.
  • Ban on use of diesel generators.
  • Pollution Control Boards of Delhi U.P., Punjab and Haryana to stop polluting industries working against the law.

Sushila Ram and Govind Gupta

Advocates

THE INDIAN LAWYER

New Delhi.Mumbai.Hyderabad.Chennai.

DELHI STILL STRUGGLING TO BREATHE

Recently a person named Sanjiv Kumar filed a petition in High Court of Delhi challenging the Odd Even Scheme implemented by the Delhi Government to curb pollution in the national capital. He contested that Odd Even Scheme is Ultra Vires to Article 14, 15 ,19(1)(g), 21 and is also violative of Section 115 of the Motor Vehicles Act,1955. He also stated in his petition that the scheme was arbitrary, irrational, unconstitutional and applied in an unreasonable manner without determining principle cause and remedy.

The important clauses which have been stated in the petition are: –

“That Delhi Government Odd Even Scheme is being implemented to curb the Pollution, but it’s clear that the cause and remedy is totally mismatched; two wheelers that cause maximum pollution has been exempted. Also, according to 3 authorities mentioned in the petition confirm that the Odd Even Scheme does not lower pollution levels.”

The petition mentioned that the scheme was illegal as it exempts women drivers which means discrimination on the basis of gender which also violates one’s fundamental rights. The petition also says that the scheme is illogical on the basis that auto rickshaw and taxi are not within the scheme but CNG operated vehicles which were earlier introduced to lessen pollution are within the scheme.

The petitioner claims the scheme to be “nothing but political a gimmick for self-promotion and advertisements.”

After his petition was rejected by Delhi High Court, he appealed to the Hon’ble Supreme Court of India where again it got dismissed. The Hon’ble Supreme Court ruled that according to the Constitution of India State Government is empowered to make laws or by laws in public Interest.

The Supreme Court recently suo moto registered a case after air quality level in New Delhi and surrounding states increased. According to the Hon’ble Court the air quality has drastically crossed all toxic levels, even after the installation of air purifiers the quality of toxins is still high. The Hon’ble Court recently directed the Central Government to review technology from Japan with a view to tackle this increased pollution.

Aakritee Gambhir

Associate

The Indian Lawyer

HIGHLIGHTS OF THE 11th BRICS SUMMIT 2019

The Annual BRICS (Brazil, Russia, India, China and South Africa) Summit has recently been organized from 13th to 14th November, 2019 in Brazil, where Prime Minister, Shri Narendra Modi participated in the Leaders Dialogue and discussed about the following ways to bring about innovation in development of various sectors and to strengthen economic cooperation amongst the BRICS nations and other emerging economies:

  1. BRICS Business Council and New Development Bank

The partnership between two institutions, namely, BRICS Business Council, which aims at promoting and strengthening business, trade and investment ties amongst the BRICS countries, and New Development Bank (NBD), which aims at mobilizing resources for infrastructure and development projects in BRICS and other developing countries, aims at achieving the $500 Billion Intra-BRICS trade target by the next summit in 2020. Further, PM Shri Modi has requested cooperation from the said institutions and BRICS countries to build a disaster resilient infrastructure and to set up a regional office of NBD in India, in order to strengthen BRICS economic cooperation.

2. India-Russia bilateral trade

PM Shri Modi and Mr Vladimir Putin, President of the Russian Federation, further discussed and reviewed the progress made by both countries in the field of infrastructure, defence, civil nuclear energy, and the potential cooperation prospects in the field of oil and natural gas. The two Leaders also decided to organize the 1st Bilateral Regional Forum in Russia or India next year to reduce the trade barriers at regional level.

3. India-Brazil strategic partnership

PM Shri Modi and H.E. Mr. Jair Messias Bolsonaro, President of the Federative Republic of Brazil, discussed about the areas for potential investment from Brazil, including agricultural equipment, animal husbandry, post-harvest technologies and biofuels, space and defence sectors, visa free travel to Indian citizens, etc.

4. Mutual cooperation in the fields of fitness and health, water management, sanitation, counter-terrorism and such others

PM Shri Modi highlighted the increased importance for mutual cooperation in the field of trade and investment, fitness and health, sustainable water management and sanitation, better travel and work conditions, security cooperation against terrorism and other organized crimes including terrorist financing, use of internet for terrorism purpose, etc.

Thus, the aforesaid cooperation efforts have been aimed at enhancing global economic growth by identifying various areas of cooperation and business opportunities.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer