When a Father was ‘Falsely Implicated’ on the Charge of ‘Raping’ his ‘Own Daughter’

That the relation between a daughter and her father is sacrosanct needs no reiteration. Unfortunately, when the society reaches an extreme level of depravity, even this relation is not left from being wrongly used. It is very difficult to think that a mother, in order to satisfy her personal wants, can falsely implicate her ex-husband on the charge of raping ‘their’ own daughter. But, this was what happened in a case which has recently been decided by the Delhi High Court (“High Court”). In Atendar Yadav v. State Govt of NCT of Delhi [judgment dated 29^th October, 2013], the appellant, Atendar Yadav, had challenged the order of trial court in which he was convicted him for committing an offence under section 376(2)(f) of the Indian Penal Code, 1860 (“IPC”). The appellant was convicted by the trail court on charge of raping of no one else but his own daughter.

In May, 2007, it so happened that a complaint was filed against the appellant on the charge that he had raped his daughter, the Prosecutrix, in November and December 2006. The complaint was made after the mother of the Prosecutrix, Geeta Anand, became aware of the incident. While the story of the prosecution was appreciated by the trial court, the High Court was not very much convinced with the same. In fact, the High Court considered this to be a case of false implication. Before I go into the crux of the case, let me highlight its factual background.

Due to poor marital relations between them, Geeta Anand and the appellant had agreed to divorce through mutual consent in February 2007. While the custody of children (Prosecutrix and her younger brother) was given to the appellant, Geeta was granted visitation rights. Prior to the divorce, both Geeta Anand and the appellant had filed several cases against each other (Maintenance, Kidnapping, Domestic Violence etc.). Immediately after the divorce, appellant married another woman. When Geeta Anand became aware of this fact, she was baffled.  She was also not satisfied when, under the settlement, she had agreed to withdraw the all the cases in return of Rs. 1 Lac.

According to Geeta Anand, she was informed by the Prosecutrix of the incident when she had gone to meet the latter at the house of appellant’s parents. Highlighting the pervert behaviour of the appellant, she opined as to how he used to watch blue movies at home. In her testimony before the court, Geeta Anand stated that she became aware of the menstruation period of the Prosecutrix and, according to her, the same started after the rape. On knowing this, she was perplexed as by that time her daughter was only 9 years old. However, in her cross-examination, she had admitted to have told the appellant to take care of the Prosecutrix when she is on periods in September 2006. This was only one of the contradictory evidences given by her.

Quest for a World free of Child Marriages

Recently, India invited the wrath of the international community as well as that of the domestic civil rights bodies when it refused to co-sponsor a United Nations Human Rights Council (UNHRC) resolution recognising child, early and forced marriage. Although the resolution was unanimously adopted with India's support, India refused to join over 100 countries in co-sponsoring the resolution. Perhaps, the harsh realization of the magnitude of commitment required to free herself of this diabolical social evil made her adopt such stance.

It is nevertheless ironical as India continues to be the country with the highest number of child brides. While there exists statues to curb the evil (Prohibition of Child Marriages Act), certain sections of the society such as the Khap Panchayats and certain Islamic religious bodies continue to endorse the practice. As law is rendered toothless without social sanction it is important to analyse the sociological perspective behind early marriages. I came across this wonderfully written editorial in Economic & Political Weekly that seeks to analyse the unfortunately widely prevalent nefarious practice in the Indian society and urges the administrators to be more pro-active in curbing it.

Section 50 of the NDPS Act, 1985 Should not be Ignored While Conducting a Search

In a decision concerning the interpretation of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”), it has been held by the Supreme Court of India (“Supreme Court”) that the provision should not be dealt by the courts in a lightly manner. Section 50 of the NDPS Act provides for the search to be conducted in the presence of a Gazetted Officer or a Magistrate. In the present case, it was contended by the appellant, Gurjan Singh, that the search of the impugned gunny bags was not conducted in the presence of a Gazetted Officer. Rather, it was conducted in the presence of an ‘acting DPS’, who cannot be equated with a Gazetted Officer. In this post, I am highlighted the important facts, contentions and findings of the court.

Facts: On 04.04.1996, after catching the appellant with some suspected gunny bags in a tractor, S.I. Darbara Singh (P.W. 6) informed the appellant of his intention to check the bags. P.W. 6 also told the appellant if the latter wants, the search could be conducted in front a Gazetted Officer. When the appellant consented for search in front of a Gazetted Officer, Baldev Singh (P.W. 3), acting DSP, was called. In front of Baldev Singh, the search was conducted and poppy husk was recovered from the gunny bags. Accordingly, proceedings were initiated against the appellant.

Before the trial court, it was contended on behalf of the appellant that there was clear violation of Sections 42 and 50 of the NDPS Act, in as much as, the search was not conducted in the presence of a Gazetted officer or a Magistrate. According to the appellant, P.W. 3 was not a Gazetted Officer since as he was as not a regularly promoted D.S.P. but was only an Inspector in the category of Own Rank Pay. Rejecting this, trail court held that there was no need to comply with section 50 of the NDPS Act. The appellant was therefore found guilty by the trial court. [Reliance was placed on State of Punjab vs. Balbir Singh, (1994) 3 SCC 299]. On appeal, the decision of the trail court was confirmed by the High Court.

Dawn for REITs in India: SEBI issues consultative paper on Draft SEBI (Real Estate Investment Trust) Regulation, 2013

SEBI has finally released the CONSULTATIVE PAPER on the draft regulation for paving the way for the introduction of Real Estate Investment Trust (REIT) in India. SEBI had, in 2008, issued the first draft regulation for introduction of REITs but since then nothing happened. Finally, SEBI has woken up and issued a consultative paper in order to introduce REITs.

Now, let’s understand what exactly REIT is and how it functions. Real estate investment trusts (“REITs”) allow individuals to invest in large-scale, income-producing real estate. A REIT is a company that owns and typically operates income-producing real estate or related assets. These may include office buildings, shopping malls, apartments, hotels, resorts, self-storage facilities, warehouses, and mortgages or loans. Further, these REITs are publicly traded on recognized stock exchanges. Globally, REITs have been a key driver towards development of the real estate sector, by providing a platform for retail and institutional investors to invest in real estate properties, with the benefits of a regulated structure and risk diversification. The opportunity to take an interest in completed and yield generating real estate assets with the option to obtain regular flow of income from REITs, makes them a popular instrument amongst investors.

STRUCTURE OF REIT IN INDIA

The draft regulation envisage a REIT as a trust set up under the provisions of the Indian Trust Act, 1882 which would raise funds through an initial public offer and be listed on stock exchanges. Further, REITs are required to invest at least 90 % of their funds in completed and rent generating properties. Also, the roles and responsibilities of various key parties to a REIT such as Trustee, the sponsor, the manager and the Principal Valuer appointed by manager are set out in detail.

‘Personal Information’ of a Mobile Subscriber is outside the purview of RTI Act

In an important decision, Delhi High Court (“High Court”) has allowed a writ petition filed by Telecom Regulatory Authority of India (“TRAI”) against the order of Central Information Commission (“CIC”). In the impugned order of CIC, TRAI was ordered to seek information of a mobile subscriber from the concerned service provider. [Telecom Regulatory Authority of India v. Yash Pal, judgment Dated 25^th October, 2013]

(Image Source: rationallibertariancorner.com)

Facts: The respondent, Yash Pal, had applied to the CPIO of TRAI seeking call and SMS details of certain mobile numbers. When his application was rejected by both the CPIO and the appellate authority, the respondent filed a second appeal before the CIC. By its order, CIC directed the TRAI to call for the requisite information subject to its availability with the  Service  Provider  and  pass  on  the  same  to  the  respondent. TRAI was required to do this by exercising its power under section 12(1) of Telecom Regulatory Authority of India Act, 1997 (“TRAI Act”). Against this order, TRAI filed the present petition before the High Court.

Relevant Legislations: Right to Information Act, 2005; Telecom Regulatory Authority of India Act, 1997]

Bench: Single Judge [Justice V.K. Jain]

'Doctrine of fairness' is not applicable to Statutory Contracts

Holding that doctrine of reasonableness or fairness is not applicable to statutory contracts, Supreme Court of India (“Supreme Court”) has rejected an appeal wherein the appellant had sought the refund of security amount which was deposited to open an arrack shop.  In Mary v. State of Kerala and Ors [Judgment dated October, 22, 2013], the court had to consider the following issue:

“.....in  case  of  a  statutory  contract,  will  it necessarily  destroy  all  the  incidents  of  an ordinary  contract  that  are  otherwise  governed  by the Contract Act?”

Facts: The appellant, Mary, having succeeded in an auction for sale of privilege to open an arrack shop, had deposited 30% of the bid amount as security. However, near to the area, where the arrack shop had to be started, was the birth place of Adi Sankaracharya and also a Christian pilgrim centre. Because of this, physical resistance was offered by the local people so that the arrack shop could not be opened in the area. This situation led the appellant to believe that it was not possible for her to open arrack shop in the area. Accordingly, she requested the concerned authorities to consider the ‘proposed contract’ as rescinded.

(Image Source: virginiabusinesslitigationlawyer.com)

Declining the request of the appellant, the Excise Inspector sent a notice to the appellant thereby awarding the contract to open arrack shop in her favour. In addition to this, security deposit, as requested by the appellant, was not returned. Further communications took place between the appellant and the authorities but the request of the appellant was not accepted. Against this, the appellant filed a writ petition before the High Court of Kerala (“High Court”). Applying the doctrine of frustration and impossibility, the single judge bench of the High Court held that the contract had become void from its inception. On appeal to division bench, the single judge bench judgment was reversed and it was held by the High Court that the state was justified in forfeiting the deposit made as a security.

Section 29(5) of the Trade Marks Act does not preclude the application of Section 29(4)

Recently, the Delhi High Court (“High Court”) has decided a trade mark dispute (Bloomberg Finance LLP v. Prafull Sak lecha & Ors.) wherein the court had to analyse whether section 29(5) of Trade Marks Act, 1999 (“TM Act”) is exhaustive for all situations of uses of the registered mark as part of the corporate name . That is, if conditions laid down under section 29(5) of TM Act are not satisfied, can the plaintiff still seek a remedy under section 29(4) of the Act. In the present case, a suit was filed by Bloomberg Finance LLP, the plaintiff, to restrain the defendants from using term ‘Bloomberg’ as a part of their corporate names.

(Image courtesy: Westpalmbeachlaw.com)

According to section 29(5) of the TM Act, a registered trade mark is infringed if (i) it has been used in relation to a trade, and (ii) it has been used in relation to goods or services in respect of which the trade mark registered. On the other hand, section 29(4) of the TM Act provides for a situation where a mark is infringed when it ‘is used in relation to goods or services which are not similar to those for which the trade mark is registered’. In this post, I am highlighting only the issues related to the interpretation of section 29(4) and section 29(5) of the TM Act and not the other parts.

Arushi Talwar Case: Applications for Addition Evidence may be rejected if the object is to stall proceedings

Is a criminal court bound to entertain the plea of accepting additional evidence? In a recent judgment, the Supreme Court answered the question in negative.

In a ground breaking development in the already long and controversial Arushi Talwar murder case, a two judge bench of the Hon'ble Supreme Court comprising of Dr. B.S. Chauhan and S.A. Bobde, JJ rejecting the plea of the petitioners seeking for the reports of the Narco-analysis tests, brain mapping tests, polygraph tests, lie detector tests and psychological tests conducted on the 3 persons arrested for allegedly helping the petitioners in the commission of the offence,recently held that the petitioners were adopting dilatory tactics in the trial as the learned Trial Judge who has been conducting the trial is likely to retire very soon. 

In order to arrive at the conclusion the Court considered the fact that the petitioners had not raised any previous objection regarding non-supply of the reports and documents allegedly proved by the witnesses to them or them not being made part of the Court record. They had even participated in the examination and cross-examination of two witnesses. The Hon'ble Court opined that criminal courts are not obliged to accede to the request made by any party to entertain and allow application for additional evidence and in fact, are bound by terms of Section 233(3) Cr.PC. to refuse such request if it appears that they are made in order to vex the proceedings or delay the same.

The full order of the court can be found here

Concealing Existing Marriage will allow Wife to claim Maintenance under Section 125 CrPC

Under Section 125 of the Code of Criminal Procedure (“CrPC”), wives, children and parents, if the situation requires, can claim maintenance. Recently, Supreme Court of India, while delivering the judgment in Badshah v. Sou. Urmila Badshah Godse & Anr, had to decide a vital question pertaining to section 125. In this case, a situation had arisen where a woman, being unaware of the existence of man’s first marriage, was claiming maintenance. The question which the court had to decide was – whether, in such a situation, a woman can be considered as ‘wife’ for claiming maintenance under section 125 of CrCP? Under Hindu Marriage Act, 1955 (“Hindu Marriage Act”), a person cannot marry where he/she has a spouse living at the time of marriage. Because of this, the question that arose in the present case becomes important. In this post, I have summarised the important points of this case where court had upheld the maintenance claim of wife.

(Singapore Cheating Spouse Blog)

Facts: The Petitioner, Badshah, married Respondent no. 1, Urmila, after the divorce of the latter from her first husband. Later, it was found by the Respondent No. 1 that the petitioner was already married to one lady, Sobha. Petitioner had duped respondent No.1 by not revealing the fact of his first marriage and pretending that he was single. Even after finding this fact, the Respondent no. 1 continued to live with the Petitioner as she had become pregnant. When the ill-treatment by the Petitioner became intolerable, the Respondent no. 1 was left with no choice but to go to the house of her parents. Subsequently, Respondent no. 1 gave birth to a girl child whose biological father was Petitioner. A proceeding was consequently initiated by Respondent no.1 for claiming maintenance under Section 125 of CrPC. The maintenance was granted in favour of the Respondent no. 1 by the Sessions Judgment and, on appeal, the order was affirmed by the High Court.

SEBI finally releases Draft Regulation on Consent Order i.e. SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2013

SEBI has finally issued draft regulation on Consent order i.e. SEBI (Settlement ofAdministrative and Civil Proceedings), Regulations 2013. Now, before moving on to discuss the main features of the draft regulations, certain important point needs to be discussed here. The need to have a regulation for consent and settlement order became increasingly necessary following the promulgation of the Securities Law Amendment Ordinance, 2013. Now, I shall bring out one important fallacy currently prevailing in matters relating to Consent orders passed by SEBI.

[Image Source- Click here]

The Ordinance granted statutory approval and sanction to the consent orders of the SEBI passed over the several past years from any challenge. It may be recalled HERE that the legal basis for guidelines relating to consent order was challenged before the Delhi High Court. However, the PIL was not successful. Thus, it appears that to overcome this and other related concern that the securities ordinance has specifically inserted Section 15JB to empower SEBI to settlement of proceedings with retrospective effect from 20th April, 2007. Also, the first GUIDELINES relating to consent order was issued on 20th April, 2007.

Now, the newly inserted SECTION 15JB (2) states that SEBI ‘may’ agree to a proposal for settlement on such terms “as may be determined by the Board in accordance with the regulations made under this Act”

SECTION 15JB (3) further reads as follows:-

“The settlement proceedings under this section shall be conducted in accordance with the procedure specified in the regulations made under this Act.”

Interestingly, no such Regulations, as mandated, have ever been framed for the settlement proceedings. Only guidelines were issued in the form of Circular by the SEBI. It seems that the earlier Guidelines relating to consent order are liable to be set aside as not being Regulations. Therefore, the SEBI has finally come up with the draft regulations to overcome this difficulty.

Now, we shall move on to discuss the salient features of the Draft regulations released by SEBI.

Modifications in the existing Buy Back Regime: SEBI’s new ‘Buy Back of Securities (Amendment) Regulations, 2013’

SEBI has recently amended the existing buy back regime (Buy Back of Securities Regulations, 1998) concerning the securities market vide notification dated 8^th August, 2013. Thus, the new buy back regime has kicked in by the way of SEBI (Buy Back of Securities) Regulations,2013. Various changes have been introduced in the new regulations to ensure that there is lower volatility in the capitals market. Further, the new regulations has taken a substantial amount of flexibility and leeway, the companies earlier enjoyed concerning the time lines attached to open market purchase of the securities.

Now, before moving on to discuss the changes and modifications introduced in the new buy back regime, a little understanding of what exactly is ‘buy back of securities’ would be useful.  

[Image Source-taxmantra.com]

Buy Back of securities basically means the purchase of securities by a company from its existing shareholders. Thus a company purchases backs its own share in order to reduce the number of shares in the market. Buy back of shares is usually done by a company due to of following reasons-

i.            Return surplus cash to the shareholders

ii.   Support share price during periods of temporary weakness

iii.         Increase the underlying share value

iv.          To increase the value of shares still available (by reducing the supply)

v.      To eliminate any threats by shareholders who may be looking for controlling stake(hostile takeover)

Now, we shall discuss the modifications and amendments introduced by the new Buy Back of Securities, Regulations 2013.

Delhi High Court rejects ESPN’s plea on Sharing Live Signals with Prasar Bharti

In what can be considered as an important decision, Delhi High Court (“High Court”) has dismissed a writ petition filed by ESPN Software India Pvt. Ltd (“Petitioner”) wherein the validity of Rule 5 of the Sports Broadcast Signals (Mandatory Sharing with Prasar Bharti) Rules, 2007 [“Broadcasting Rules”] had been challenged. Rule 5 of the Broadcasting Rules casts an obligation on television/radio broadcaster to ensure the compliance with statutory obligation of sharing live feed with Prasar Bharti while an agreement is entered into with event organiser. Rule 5 covers a situation where television or radio broadcasting service provider is different from the contents rights owner or holder. 

(Image Source: Dashbrust.com)

According to the petitioner, Rule 5 of Broadcasting Rules was violative of section 3 of Sports Broadcast Signals (Mandatory Sharing with Prasar Bharti) Act, 2007 (“Signal Sharing Act”) and Article 14 of the Constitution of India. Section 3 of the Signal Sharing Act makes it obligatory for a content owner/holder and a broadcasting service provider to share live signals of sports of national importance with Prasar Bharti. While sharing such signals, it should be ensured by the content holder, owner etc. that ‘its advertisements’ are not present in the shared in the shared signal. The provision can be read as:

                                       “3. Mandatory  sharing  of  certain  sports  broadcasting  signals-(1)  No  content  rights  owner  or  holder  and  no  television  or radio  broadcasting  service  provider  shall  carry  a  live television broadcast on any cable or Direct -to-Home network or radio commentary broadcast in India of sporting events of national importance, unless it simultaneously shares the live broadcasting  signal,  without  its  advertisements, with the Prasar Bharati to enable them to re-transmit the same on its terrestrial  networks  and  Direct-to-Home  networks  in  such manner  and  on  such  terms  and  conditions  as  may   be specified...........”

‘Sanction’ Required for an Investigation Order against a 'Public Servant' under Section 156(3) of Code of Criminal Procedure, 1973

Section 156(3) of the Code of Criminal Procedure, 1973 (“Code”), provides that any magistrate, who is empowered under Section 190 (of the Code) to take cognizance of an offence, may order an investigation. Yesterday, Supreme Court of India (“Supreme Court”) has decided a case (AnilKumar & Ors v. M.K. Aiyappa & Anr) wherein the following the question had arisen:

                                            `“Whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 Cr.P.C. for investigation............, in exercise of powers conferred under Section 156(3)  Cr.P.C. without  the  production  of  a  valid sanction  order  under  Section  19  of  the  Prevention  of Corruption Act, 1988.”

(Image Source: Lawyersbook.com)

While section 200 of the Code provides for the competency of a magistrate to take the cognizance of an offence on the basis of a complaint, section 156(3) of the Code provides for magistrate's power to order an investigation . In the present case, a complaint had been filed by the Appellants, Anil Kumar & Ors, before the Special Judge (Prevention of Corruption) thereby accusing the Respondents, M.K. Aiyappa & Anr, of certain offences. The alleged offences, as contended by the Appellants, were under (“IPC”) and Prevention of Corruption Act, 1988 (“Corruption Act”).

Any 'THIRD PERSON' other than an Intermediary could also be held liable for "Front Running": Securities Appellate Tribunal (SAT)

In a landmark judgment (Vibha Sharma & Anr. v. SEBI) passed by the Securities Appellate Tribunal (SAT) on 4^th Sept. 2013, the tribunal has held that even a “third person” other than an intermediary could also be held liable for ‘front running’ under SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 (“FUTP Regulations”). This case is of immense importance as SAT has finally clarified the position of law on matters concerning front running by third persons. Also, the ruling of SAT in the instant case is significant for the reason that SAT had on the contrary, in 2012, in the case of "Dipak Patel" held that only intermediary could be held liable for the offence of front running and not third person under the FUTP regulations.

Now, before moving on to discuss the reasoning of the tribunal, let’s first comprehend what exactly is “front running”. Front running means buying or selling of securities ahead of a large order so as to benefit from the subsequent price move. This denotes persons dealing in the market, knowing that a large transaction will take place in the near future and that parties are likely to move in their favour[1]. Now, this can be best understood through an illustration: Stockbrokers and traders often have access to inside information regarding the investment plans of their firm. Brokers and traders might be lured to use this insider information to make investments that benefit them personally. Suppose a stockbroker at an investment bank has learned that his bank's executive board will purchase 100,000 shares of Company XYZ stock in the coming week. Knowing that this large purchase will push up the price of the stock, the stockbroker purchases 100 shares of Company XYZ for his personal account, hoping to profit from the price jump.

Now, we shall discuss the facts, arguments advanced by both the parties and the tribunal’s reasoning for holding the appellants guilty of ‘front running’.

SEBI Updates: Circular on Investor Grievance Redressal Mechanism

In order to make investor grievance redressal mechanism at Stock Exchanges more effective, Securities and Exchange Board of India (“SEBI”) has decided to shorten the time taken for the proceedings as well as to give monetary relief to the investors. Further, it has been decided to provide monetary relief to the investor. Vide circular dated October 28, 2004, SEBI had notified Comprehensive guidelines for Investor Protection Fund/ Customer Protection Fund at Stock Exchanges. Further, other two circulars, dated August 11, 2010 and January 20, 2010, had notified Arbitration Mechanism and Investor Grievance Redressal Mechanism respectively. The latest circular [favourable to investors], dated September 26, 2013 has the following important features:

         

(Image Source: Smart Business Solutions)

Ø  ØStock Exchanges shall ensure that all complaints are resolved at their end within 15 days. The correspondence with the Member & investor (who is client of a Member) may be done on email.

Ø  ØWhere the matter is not resolved, the conciliation process will start. The Investor Grievance Redressal Committee (IGRC), while resolving the dispute amicably, should adopt a two-fold approach: (i) Consumer Related Complaints - Direction to the Member to render required service; (ii) Trade Related Complaints - an order concluding admissibility of the complaint or otherwise.

Section 27 of the Arbitration and Conciliation Act, 1996 is an 'Enabling Provision' : Supreme Court

Section 27 of the Arbitration and Conciliation Act, 1996 (“1996 Act”) provides that an arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the court for assistance in taking evidence. On Monday, the Supreme Court of India (“Supreme Court”), in the case of Delta Distilleries Limited v. United Spirits Limited & Ors,[1] has to deal with the scope of Section 27 of the 1996 act. In this post, I am explaining the relevant parts of the judgment.

(Image Source: Smooth Transitions Law Blog)

Facts: In the present case, a judgment of the Bombay High Court (“High Court”) had been challenged wherein an arbitration petition, filed by United Spirits Limited (“Respondent” before the Supreme Court), was allowed. The arbitration petition had sought to invoke the powers of the court under Section 27 of the 1996 Act. The Respondent had filed arbitration petition before the High Court when Delta Distilleries (“Appellant” before the Supreme Court”), on being ordered by the arbitral tribunal, refused to produce sales tax assessment orders. It was the contention of the appellant that such orders were highly confidential and cannot be produced before the arbitral tribunal.  Further, it was contented, for the first time before the High Court, that appellant was not in possession of those sales tax orders. The contention was rejected by the High Court. Apart from these contentions, it was further submitted on behalf of the appellant that at the highest, an adverse inference can be drawn against him under Order 21, Rule 11 of Code of Civil Procedure (“CPC”). Reliance was also placed on some other acts which do not deal specifically deal with the 1996 Act.

Delhi High Court rejects the applicability of ‘HOT NEWS’ Doctrine in India

In a landmark case (Akuate Internet Service & Anr v. Star India & Anr.) ,decided on 30th August 2013, concerning the applicability of ‘hot news’ doctrine in India, the Delhi High Court replied in negative and concluded that hot news doctrine does not apply in India. The basic question before the Court was ‘is there a copyright or any other kind of right, such as right to protect ‘hot news’ in the scores in a cricket match’?

[Image Source: SpicyIP]

Background

In 2012, by an Agreement, BCCI granted exclusive broadcasting rights to Star TV to disseminate the information/content emanating from the cricket matches. Also, other copyrights emanating from recording of the live match too were assigned which included the right to record, reproduce, broadcast, etc. Later on, Cricbuzz, Idea Cellular and ONMOBILE started SMS services providing contemporaneous ball-by ball coverage of live cricket matches. Star TV India (plaintiff) filed three suits against Piyush Agarwal (Cricbuzz), Idea Cellular and ONMOBILE (Defendants)

Issues

Now, the main point of dispute in the instant case was the ‘mobile distribution rights’ granted by BCCI (Board of control for cricket in India) to STAR TV. These rights were a part of the exclusive broadcasting rights and other related rights in respect of cricket matches such as right to record, reproduce and broadcast the match events. The plaintiff objected to the defendants’ dissemination of ball-by-ball and minute-by-minute match information and alerts through live score cards, score alerts and match updates.

“Invention” under Patents Act, 1970 : An Overview and Analysis

(Important note: Though this post is fairly long, it thoroughly discusses the concept of “invention” under Patents Act, 1970. Starting from the basic understanding of the concept, the post culminates its discussion on the landmark decision of the Supreme Court of India in Novartis AG v. Union of India)

Invention: A historical background prior to the enactment of Patents Act, 1970

In 1947, when India was released from rule of British Government, the country was still dominated with a patent regime favourable to multinationals abroad. Though much has changed since then, Indian patent jurisprudence is still witnessing ups and downs. To the core of the patent law lies an ‘invention’ which, according to Black’s Law Dictionary, means an act or operation of finding out something new. Defining this ‘something new’ has, even in 21^st century, remains the most problematic issue under Indian patent law.

(Image Source: 123RF.com)

The old patent regime, which was governed by Indian Patents and Designs Act, 1911 (“Old Act”), defined an invention as ‘any manner of new manufacture and includes an improvement and an alleged invention’.[1] According to the Old Act, term ‘manufacture’ included ‘any art, process or manner of producing, preparing or making an article, and also any article prepared or produced by manufacture’.[2] That is, in order to qualify as an invention under the Old Act, there should have been an existence of a new art, process or manner of producing.......any article prepared or produced by manufacture.

By not defining what is ‘new’, the definition had provided space for the existence of ambiguity. Could minor changes be considered as ‘new’, and hence, sufficient for patent protection? A similar problem still exists under the Patents Act, 1970 (“1970 Act”) while defining 'inventive step'. While the definition of invention under the Old Act did not provide that the patented invention should be useful, the Supreme Court of India (“Supreme Court”), in Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, stated that courts have generally held that an invention must be useful.[3]Under the 1970 Act, it was provided that an invention should be useful (originally enacted definition).

“Special Reasons” for Death Penalty under Section 354(3) of Code of Criminal Procedure

Under Section 354(3) of the Code of Criminal Procedure, 1973 (“Code”), the court has to provide ‘special reasons’ before death sentence can be awarded to a convict. In a recent case (Deepak Rai v. State of Bihar), a three-judge bench of the Supreme Court of India (“Supreme Court”) has clarified as to what constitutes “special reasons” under the Code. In the instant case, the appellant-accused, along with other accused, burnt seven persons alive which included a man, his wife and his five children. The incident took place when the deceased man, along with his wife and children, was sleeping at his house. Though the deceased man was burnt alive by putting kerosene over him, his wife and children were fire trapped inside the room which they were sleeping in. It had been pointed out in the judgment that the appellant had committed the crime after the deceased man refused to withdraw a theft case against him.

(Image Source: Fatih University MUN Website)

In this post, I am culling out the relevant part wherein court has discussed Section 354(3) of the Code. The judgment is fairly long and it discusses a number of cases where death penalty has been awarded and rejected. The case involved two main issues: (i) whether the reasons assigned the courts below, for awarding death sentence, are ‘special reasons’, and (ii) whether the impugned matter falls into the category of ‘rarest of rare crimes’. In this post, it is the first issue which I am dealing with.

Overview of SEBI Notification on 'Angel Funds" and Investors

Recently, Securities and Exchange Board of India (“SEBI”) had notified amendments to SEBI (Alternative Investment Funds) Regulations, 2012 (“AIF Regulations”) which seek to insert new provisions for “Angel Funds”. The amendments will play an important role especially since they intend to provide a framework for angel funds and angel investors. In this post, I am highlighting the important features of the “Amendments”, i.e., Securities and Exchange Board of India (Alternative Investment Funds) (Amendment) Regulations, 2013].

(Image Source: Growing Business Website)

What are Angel Funds: According to the newly inserted regulation 19A, an “Angel Fund” is a sub-category of Venture Capital Fund under Category I – Alternative Investment Fund (“AIF”). The definition of “Venture Capital Fund”, provided under Regulation 2(1)(z) of AIF Regulations, has been amended accordingly.

As per the amendments, Angel Funds can only be raised by issuing units to angel investors. The corpus of an Angel Fund shall be of at least ten crore rupees. In addition to this, up to a maximum of three years, Angel Funds shall accept an investment of not less than Rs. 25 lakhs (Of Course, through angel investors only!)

Companies Act, 2013: Independent Directors

In this post, important changes relating to introduction of Independent Directors (IDs) in the new Companies Act, 2013 would be discussed. [For an analysis & discussion of M&A and Corporate Restructuring in the ‘new act’, kindly click here].

Now, the primary role of corporate governance is always to ensure the independence of the board of directors (BOD) in a company. Independent directors on the board predominantly enhance the monitoring and supervising of the management and the promoters of a company. Thus is turning immensely helps in protecting and safeguarding the interests of the public shareholders. The new Companies Act, 2013 on one hand bestows independent directors with greater say in corporate governance & on the other hand places greater demand from them. Now, the relevant provisions concerning IDs in the new act are Section 149, 150 and Schedule IV. The primary features concerning Independent directors (IDs) in the new Companies Act, 2013 are as follows-

Number of Independent Directors

The new Companies Act, 2013 requires all the listed companies to have at least 1/3rd independent directors on their board. But this provision of the Act is a slight departure from clause 49 of the listing agreement. Clause 49 of the Listing agreement issued by SEBI requires that at least 50% of the Board of Directors (BOD) must comprise of Independent Directors in case the chairperson is in an executive capacity or a promoter or related to a promoter. Now, one thing which must be noted is that the listed companies will be required to comply with the more onerous of the two requirements, while others can merely comply with the company law. The consequences of violation may also be different under company law and securities regulation i.e. under clause 49 of the listing agreement.

Earlier "Adverse Remarks" can be considered for Compulsory Retirement

Even if the adverse remarks/record were made in the past, it can be taken into account for determining the 'overall performance' of an employee. This view has been taken by the Supreme Court of India (“Supreme Court”) in the case of Rajasthan State Road Transport Corp. & Ors. v. Babu Lal Jangir, decided on 16^th September, 2013. In this case, the pertinent question which arose for consideration was – whether the adverse entries/record of an employee, being not made in ‘immediate paste’, can be taken into consideration for ordering a premature/compulsory retirement? Answering the question in affirmative, the Supreme Court noted that while considering the premature retirement of an employee, it is the entire service record which is taken into consideration.

(Image Source: Thomas Carroll Group Website)

Facts: The respondent, Babu Lal Jangir, joined the services of the appellant, Rajasthan State Road Transport Corporation (“Corporation”), on the post of driver. On the recommendation of Screening Committee and Review Committee, an order was passed against the respondent thereby ‘compulsory retiring’ him from the service. Against this order, respondent filed a writ petition before the High Court of Judicature for Rajasthan (“High Court”). Through counter-affidavit, it was submitted by the appellant (appellant before the Supreme Court, i.e., Corporation) that the service record of the respondent showed a dismal performance, and hence, the order of compulsory retirement was justified. However, The single judge of the High Court held the order of compulsory retirement arbitrary on the ground that the impugned acts of misconduct, which showed dismal picture of performance, pertained the period 12 years prior to the order of retirement. This view of the single judge was upheld by the division bench of the High Court. Hence, the matter came before the Supreme Court.

Director 'may' be held liable for the penalty imposed upon the Company

Today, Delhi High Court has pronounced a judgment (Ved Prakash v. Union of India & Ors.) wherein an issue, regarding the liability of director for the acts of the company, had arisen. One significant question that had arisen in the petition was - whether the penalty imposed upon the Company can be recovered from its Directors?

Facts: The petitioner, in the instant case, claimed to be the Director of M/s. Hitkari China Limited (“Company”). The Company, in 1997, received an advance licence for import of certain goods subject to the condition that the company would fulfil the export obligations of Rs. 1,24,25,099/-. Since the company failed to discharge this obligation of export, a penalty of Rs. 2,51,81,335/- was imposed on it. When penalty was not paid, a recovery notice was sent to the Govt. of NCT which, in turn (via. Asst. Collector), issued a notice to four persons (including the petitioner) requiring them to deposit the amount of Rs. 2,51,81,335/-. It is this notice against which the petitioner filed this writ petition before the Delhi High Court.

Section 138, Negotiable Instruments Act: An Agent can file a Criminal Petition

A three-judge bench of the Supreme Court of India (“Supreme Court”) has clarified the position regarding the filing of criminal petition through the holder of power of attorney for an offence under Section 138 of Negotiable Instruments Act, 1881 (A.C. Narayanan v. State of Maharashtra & Anr). The present case, which consisted of a set of two criminal appeals,  involved the issue whether, under Section 138 and 142 of NI Act, a criminal petition can be filed by a person through a power of attorney. While section 138 of NI Act makes one liable for dishonour of cheque, section 142 of NI Act provides for the conditions before a court can take cognizance of the offence under Section 138.

(Image Source: Queensland Family Law Practice)

The present matter was heard by the Full Bench of the Supreme Court when a reference was made by a division bench of the Court. According to the division bench, there was a difference of opinion amongst various High Courts as also the decisions of the division benches of the Supreme Court in M.M.T.C. and Anr. vs. Medchl Chemicals & Pharma (P) Ltd. and Anr [2002 (1) SCC 234] and Janki Vashdeo Bhojwani and Anr. vs. Indusind Bank Ltd. and Ors [2005 (2) SCC 217]. In M.M.T.C. case (supra), it was held by the Supreme Court that no court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. On other hand, in Janki Vashdeo case (supra), it was held by the Court that under Order 3, Rules 1 and 2 of the Code of Civil Procedure, 1908 (“CPC”), the holder of power of attorney cannot depose for the principal for the acts done by the principal.

Companies Act, 2013: What's in the box for Mergers & Amalgamations (M&A) and Corporate Restructuring?

The Companies Bill, 2012 has finally become the Companies Act, 2013. See the official Gazette Notification here. Further, we already had an overview of the Companies Bill, 2012 here. But it must be noted that all the substantive sections are yet to be notified in due course of time by the Central Government. Only section 1 of the Act has come into effect, and section 1(3) provides:-

This section shall come into force at one and the remaining provisions of this Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any provision to the commencement of the Act shall be construed as a reference to the coming into force of that provision.

Thus, the substantive sections would be notified by the Government later. Now, I would be delineating, in this post, the key provisions relating to Mergers & Acquisitions in the new Companies Act, 2013. The new Companies Act, 2013 has sought to streamline and make M&A more smooth and transparent. The newly added provisions have made it easier for companies to implement ‘Schemes of Arrangement’ (mergers & acquisitions (M&A), de-merger, corporate debt restructuring etc) and at the same time impose checks & balances to prevent abuse of these provisions.

Now, the key provisions relating to M & A transactions and corporate restructuring are as follows-