Author: LEXPEEPS editor

–Report by Pranav Mathur

The Madhya Pradesh High Court, on 31st January 2023, dismissed an appeal filed before it by a murder convict, in the case of Ashok Malviya v. State of Madhya Pradesh. It deliberated on provisions of law related to Section 302 of the Indian Penal Code (hereinafter referred to as the “IPC”), which prescribes punishments for the commission of murder, and for the commission of culpable homicide relating to murder. It also dived into the question of whether the facts of the case represent a culpable homicide amounting to murder as given under Section 304 of the IPC, or not.

FACTS:

The incident occurred on the 21st of December 2011, approximately three years after their marriage. After the passage of a year of their marriage, the appellant had started physically assaulting the deceased, mainly because she was incapable of bearing a child, due to the size of her uterus. On the date of the incident, the appellant and the deceased were in their home, and around 10 pm when the parents of the appellant came back after their day’s work, they found the deceased lying on the bed, and subsequently to this, called a few relatives to their place to assess the situation. Two of those relatives went to the police station and filed a complaint against him. He was arrested on the 23rd of December 2011. The police also recovered the dupatta that had been used to strangle the deceased.

APPELLANT’S CONTENTIONS:

The appellant outrightly denied committing the offence and signified his intention to move the case to trial. The first and foremost contention of the appellant was the lack of eyewitnesses to corroborate the sequence of events. His parents, and then his relatives did not, with their own eyes, see him strangle her, and therefore the court relying on the testaments of the witnesses should not have been enough to decide the case. It was also contended that the neck injury, even if proved was caused by the appellant, isn’t sufficient enough to attract the charge of murder, rather the charge of culpable homicide not amounting to murder, under Section 304 of the IPC. The counsel for the appellant placed huge reliance on the cases of State of Madhya Pradesh v. Abdul Latif and Lavghanbhai Devjibhai Vasava v. State of Gujarat, which had held the contentions presented in the form of applicable judgments.

COURT’S OBSERVATION AND THE JUDGMENT:

Initially, the Court deliberated upon the issue of whether the particular death was a homicide or not, and a thorough inspection of the medical records and investigations that had been submitted concluded that it indeed was a case of homicide. It considered the cross-examinations of various relatives of the appellant who were witnesses and concluded that the deceased was previously married, from which she had obtained a divorce, and the appellant had the knowledge of her uterus and still made the voluntary decision of marrying her. According to the post-mortem report of the deceased, she had ante-mortem injuries, and the cause of death was revealed to be asphyxiation, which was concluded from the mark on her neck. The Court further held that the appellant had a clear motive to commit the offence. The relations between the deceased and the appellant had grown severe after her inability of conceiving a child started frustrating him, and their relations were also corroborated by the examinations in chief of the witnesses. The Court was of the opinion that the crime did not occur pursuant to a sudden quarrel, which may have given provocation to the appellant, and therefore ruled out Section 304 of the IPC, and instead, charged the appellant with culpable homicide amounting to murder, which is punished under Section 302 of the IPC. Therefore, observing how the essentials of Section 300 of the IPC, which defines and gives exceptions to and of murder, were fulfilled in the present scenario and also observing how the minimal sentence possible had been given to the appellant by the Trial Court, the High Court of Madhya Pradesh dismissed the appeal.

READ FULL JUDGEMENT: https://bit.ly/40Jp9Tm

-Report by Saloni Agarwal

The Supreme Court of India recently in the case of Gas Authority of India Limited v Indian Petrochemicals Corp. Ltd. & Ors concluded the dispute between parties relating to the contract signed for natural gas supply. The case was in favour of IPCL as its claim was just.

Facts:

The Ministry of Petroleum and Natural Gas provided a letter for the allocation of a Natural Gas Pipeline to IPCL. The contract was to be signed with GAIL and the pipeline would be from Hazira to the Gandhar unit carrying semi-rich gas. IPCL was asked to lay down the plant and a pipeline of its own which would be used to transport the gas. GAIL claimed that it was being charged with transportation costs. The clauses of the contract were clear that the buyer has to bear all the charges of transportation for himself and the seller. The main point of argument is the transportation cost dispute.

Appellant’s Contention:

IPCL claimed that the price of natural gas should be fixed as mentioned in the contract. Earlier the High Court had charged IPCL to pay for the loss of transportation charges which was unfair as IPCL was asked to set up its own pipeline. Even after incurring a huge cost for the establishment, it would otherwise be unjust to pay for the transportation cost. The IPCL also claimed that it had no bargaining power and was asked to accept the contract within 60 days by the Authorities i.e., comes within the ambit of Article 12. Due to time constraints and unrestricted power possessed by GAIL, it dominated the clauses of the contract. Hence the writ petition is maintainable.

Respondent’s Contention:

The GAIL challenged the petition and claimed that the clauses were not unjust. It also claimed that it did not possess any dominating position and that equal rights were provided to both parties. It further said that the contract was a mutual one and was carefully discussed before the implementation.

Judgement:

The Court after hearing about the sides came to the conclusion that the writ petition was maintainable. It also said that there was unjust and unfairness in the contract and asked GAIL to refund the loss of transportation charges within two months failing which interest amounting to 8 per cent per annum will be charged. The IPCL had incurred huge costs in building the pipeline which was mandated in the contract and now cannot be burdened with the establishment cost and transport cost even when it is not using the HBJ Pipeline.

READ FULL JUDGEMENT: https://bit.ly/3YwTTou

–Report by Tannu Dahiya

Hon’ble Supreme while hearing the appeal on 8th February 2023 in the case of NATIONAL INSURANCE COMPANY LTD. Versus THE CHIEF ELECTORAL OFFICER & ORS., set aside the decision of Patna High Court made in 2017 and directed that the terms of the insurance policy should be strictly interpreted. 

Facts:

An MOU i.e memorandum of understanding was signed between the insurance company (Appellant) and Chief Electoral Officer, Bihar, Patna, on 9th Feb 2000, to cover the insurance of persons working for the Bihar Legislative Assembly Elections in the year 2000. 

Now clause 3 of the MoU mentioned that the insurance will be for the death caused by accident in extra violence and any other means. 

Now the duration of the scheme was extended from 24.05.2000 to 23.06.2000 seeing the period of the by-polls. 

The husband of respondent no.2, who was a constable died while performing his duty in Bihar Legislative Assembly. It happened during the extended time of the scheme. 

After a long time, the wife of the constable (respondent no. 2) claimed compensation in 2008.

The Assistant election officer of that time wrote to the secretary of Lokayukta, Patna, that it was not election duty but heat stroke which was the reason behind the death of the constable thus, no such compensation can be made. 

The wife filed a writ in High Court for quashing the above-said statement. The learned single judge first asked the insurance company to pay the claim but then relied on the judgement made in Lilawanti Devi v. The State of Bihar & Ors 1, which opined that the duration to make a claim has expired and it was chief electoral office liability to make the compensation. 

The chief electoral officer filed an appeal stating that it was the insurance company which should pay the compensation. The insurance company was then asked to take the liability. 

Plaintiff’s contentions

The appellant contended before the court that the chief electoral officer had already paid the claim to respondent 2 and just wanted to fasten the liability on the company. The learned counsel claimed that the death of the deceased was due to heat stroke which is beyond the scope of the MoU. The appellant insurance company was not made aware of the time issue. And was notified only after eleven years. 

Defendant’s contentions:

It was found that the chief electoral officer had already paid the claim to the wife. Also, it was clarified that the death was due to heat stroke which was beyond the scope of the MoU. The delay in raising the claim was not driven by the chief electoral officer. Its role was only till recommended, which it did. It was pleaded that the insurance company was under an obligation to honour the promise. 

Judgement :

The SC raised two aspects which need to be answered

• The result of a delay in claiming the amount
• Whether all the insurance policies covered the scenario of the death of the constable. 

To answer the first, respondent no. 2 never claimed the chief electoral officer to get compensation till 2008. Thus the claim was beyond the period. 

To answer the second, it said that the conduct of respondent no 1 would not allow them to fasten the liability on the appellant. 

The Supreme Court in its verdict said that the chief electoral officer ‘has been playing ducks and drakes’. 

The Supreme Court thus dismissed the judgement of Patna High Court calling it unsustainable. The insurance company was not liable. Also, the chief electoral officer would not recover any amount paid to the deceased wife. 

READ FULL JUDGEMENT: https://bit.ly/3JOZYsq

Civil appeal no. 4769 of 2022

–Report by Arun Bhattacharya

The Delhi High Court on Wednesday 8^th of February 2023 in the matter of THE STATE versus SACHIN SINGH & ORS reiterated the stand taken by the Additional Sessions Judge’s observation that “Mere vague allegations that accused tried to commit rape upon her does not ipso facto attract the penal provision of offence u/Section 376 read with Section 511 IPC.”

FACTS

The present matter invoked revisional jurisdiction of the Delhi High Court whereby an order passed by the Additional Sessions Judge was in question. The order dealt with chargesagainst a brother-in-law and father-in-law, who had allegedly committed attempts to rape. The complainant had alleged that the brother-in-law had gotten hold of the complainant in an attempt to commit rape, while in another instance the father-in-law had forcefully entered the complainant’s room to rape her. Although the complainant tried to raise these issues with her husband and mother-in-law, all such attempts were suppressed forcefully with the only reason provided by them being that the brother-in-law happens to be a police official. Therefore, the complainant filed a complaint to the Commissioner of Police and accordingly registered an FIR against her in-laws. They were also made parties to the initial chargesheet filed in the court of learned Metropolitan Magistrate, Rohini which was later transferred to the Court of Sessions. 

SESSIONS COURT’S ORDER

The Court of Sessions initially discharged the brother-in-law and the father-in-law under Sections 356 (Punishment of Rape) and 511 (Punishment for attempting to Commit Offences Punishable with imprisonment for life or another imprisonment) but framed separate charges of 498 (enticing or taking away or detaining with criminal intent a married woman), 406 (Punishment for criminal breach of trust), 354(Assault or criminal force to woman with intent to outrage her modesty) and 34 (Common intention). The court’s primary focus whilst discharging the two respondents was that the mere fact of the brother-in-law getting hold of her hand and the father-in-law barging into her room late at night does not suffice to prove a case of rape. These allegations of the complainant involved attempts but no specific action was committed which may indicate a clear intention of rape. This order has been challenged in today’s petition.  

PROSECUTION’S CONTENTION

The learned APP submitted that the learned Sessions court was not intended to satisfy itself on the graveness of evidence produced but merely on prima facie allegations of the complainant and he confined himself to the fact that the complainant had made specific allegations regarding her father-in-law and brother in the law regarding an attempt to commit rape on different occasions.

RESPONDENT’S CONTENTION

The learned counsel for the respondents’ primarily focused on the fact that no specific allegations were made against the father-in-law and brother-in-law and no such proof was also submitted on record. He also highlighted the fact that no action was committed in compliance with the definition provided under Section 375 of the Indian Penal Code and this would suffice as a reason for discharging the same. To point out the same the counsel had referred to the judgment of Tarkeshwar Sahu v. State of Bihar (now Jharkhand), IV (2006)  CCR 115 (SC).

DELHI HIGH COURT’S JUDGEMENT

The honourable high court pointing out that the revisional power under Section 397 of CrPC is very narrow which only allows it to satisfy itself to check the legality and correctness of an impugned order, reiterated the stance taken by the Court of Sessions and accordingly dismissed the revision petition.

READ FULL JUDGEMENT: https://bit.ly/40EQy8S

CITATION: 2023/DHC/000883

About Aishwarya Sandeep

Aishwarya Sandeep, an attorney from Mumbai, runs Second Innings, a company consultancy that offers legal, human resources, and content writing solutions to businesses in India and beyond. In addition, she has worked as a guest professor at law schools. They provide paperwork for numerous businesses, with a focus on media and start-up businesses. They also offer IT and non-IT manpower to a variety of businesses.

They have two openings for Internship, one in the month of February and the other in the month of March.

About the Responsibilities  

The Interns will be required to conduct research on the subjects given to them over the aforementioned months. It will be a flexible, online internship.

Starting Dates

• For February – 15th February 2023
• For March – 1st March 2023

Application Process

For the month of February, Apply HERE.
For the month of March, Apply HERE.

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–Report by Shreya Gupta

The petitioner in this case of LAL VEDANT NATH SHAH DEO v STATE (NCT OF DELHI) was Lal Vedant Nath Shah Deo and the respondent was the State. The petitioner filed the application for bail under section 439 of CrPC.

FACTS:

The sub-inspector Gajendra Singh found Raghav Mandal a 23-year-old student of Amity University with 334 grams of charas. He disclosed about the co-accused Himanshu Singh and Lal Vedant Nath Shah Deo who was also arrested. Lal Vedant was arrested under a non-bailable warrant. Raghav further disclosed that he used to get paid Rs. 500 to 1000 for every delivery. Their phones were checked and details of the Paytm account where they used to receive the payments were taken out. The Paytm account details showed that Himanshu Singh had credited a total sum of Rs. 4,70,390 and Rs. 28,03,561.11 to Lal Vedant. The petitioner was charged with section 82 of the CrPC and section 201 of the IPC.

PETITIONER’S CONTENTIONS:

The advocate of the petitioner contends that no incriminating material was obtained from the petitioner on the raid in his house and that his name was earlier not mentioned in the FIR. He states that the rigours of section 37 are not applicable. He stated that section 35 and 54 of the NDPS act is not applicable since there was no conscious and intelligible possession. He stated that only on the basis of the disclosures by the co-accused the petitioner can’t be denied bail. He stated that mere phone calls among the accused and Paytm transactions can’t be the means to deny bail since the accused were college friends.

RESPONDENT’S CONTENTIONS:

The advocate contended that a total sum of Rs. 4,70,390 and Rs. 28,03,561.11 was credited to Lal Vedant. He contended that the petitioner tried to run away and was so charged with section 82 of the CrPC and section 201 of IPC for trying to disappear the evidence.

JUDGEMENT:

The court stated that the rigours of section 37 of the NDPS act are not applicable if the cannabis quantity is less than 1 kg and the quantity found in this case is only 334 grams. It further stated that since there is no evidence to show that the transaction between them took place for the recovery therefore it concludes that they were not involved in any other offence under the NDPS act except the buying and selling of drugs. The court stated that no useful purpose will be served by keeping the petitioner in custody and therefore the application for bail was passed on some terms and conditions and on the furnishing of a personal bond of Rs. 50,000. The Hon’ble Supreme Court to conclude referred to the Sanjay Chandra v. Central Bureau of Investigation, 2012.

READ FULL JUDGEMENT:

CITATION: 2023/DHC/000885

About Nexus Bhati and Associates

Nexus Bhati and Associates is a leading national law firm in India. They are over 100 professionals. For over 10 years they have provided legal representation, advice and services.

Their mission is to provide outstanding legal solutions in their chosen practice areas with a strong emphasis on ethics. Their clients benefit from their expertise and experience as a large firm while still enjoying the privilege of the personal attention and responsiveness of a small firm.

Practice Areas

The areas of practice of the firm include:

1. Dispute Resolution – Arbitration & Litigation
2. General Corporate and Commercial Contracts
3. Mergers and Amalgamation
4. Corporate Employment, Labour and Industrial Laws
5. Real estate and Land Acquisition
6. Healthcare and Pharmaceutical
7. Intellectual Property
8. Insolvency and Bankruptcy

Eligibility

LLB Students

No. of Positions

4

Tenure

A period of 2 months (to be extended based on performance). 

Location

Tis Hazari court, Delhi

Perks

Stipend and Certificate will be provided upon the successful completion of the internship.

Interested candidates can mail their CVs with a suitable cover letter to nexusbhatiassociates@gmail.com.

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About IBM

At IBM, work is more than a job – it’s a calling: To build. To design. To code. To consult. To think along with clients and sell. To make markets. To invent. To collaborate. Not just to do something better, but to attempt things you’ve never thought possible.

Role and Responsibilities

IBM is a leader in the provision of open hybrid cloud and AI solutions to governments and companies globally in industries like finance, telecommunications, health, transport, and logistics. IBM’s services and products extend across consulting, AI and data, cybersecurity, and cloud to help companies digitally transform to meet current and emerging challenges.

As a Senior Attorney, you will be part of the India and South Asia (ISA) legal team which consists of 18 lawyers and support staff who provide legal advice and support to IBM’s domestic businesses in India and South Asia as well as IBM’s global delivery missions.

Responsibilities

Members of IBM’s legal team are expected to provide advice across IBM’s 2 primary Business Units: IBM Consulting, and IBM Technology. Generally, that work involves advising and negotiating commercial engagements and contracts with government and commercial entities. The ISA legal team also provides business and support functions like procurement, security and transport, real estate, human resources, and financial advice on regulatory compliance and change, contractual disputes, litigation, intellectual property, workplace relations, privacy, and cybersecurity.
The ISA legal team also facilitate compliance with IBM’s policies and procedures.

Required Technical and Professional Expertise

• Qualified to practice law in India.
• Deep experience in negotiating IT contracts with government and commercial entities in services, software, and cloud solutions.
• Experience in providing advice concerning issues like privacy, cybersecurity, intellectual property, and regulatory compliance.
• The ability to work autonomously on matters with the requirement for supervision diminishes as the candidate becomes more familiar with IBM’s business.
• Familiarity with Indian government procurement policies and procedures.
• Demonstrated initiative in improving processes and procedures to drive improved performance not only for the business by also for the legal function.
• Strong evidence of a commitment to integrity and ethical conduct.

Preferred Technical and Professional Expertise

• Experience in advising on disputes and litigation in India.
• Sector experience in financial services, telecommunications, or both.
• Prior experience in an in-house legal environment preferably with a multinational company.

Location

Banglore

APPLY HERE

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–Report by Umang Kanwat

Arbitration is the out-of-court resolution of a dispute by one or more (odd number) individuals chosen by both parties to serve as arbitrators. Any type of arbitration, regardless of its nature, has been legally recognised in India by placing it under the purview of the Arbitration and Conciliation Act. The arbitral award has the same legal force and effect as a judicial order or judgement. The present case of Union of India v Pushkar Paint Industries talks about the power or ability of the arbitrator.

Facts:

In the present case of Union of India v Pushkar Paint Industries, the Arbitral Tribunal’s mandate has been terminated under the current petition, which had been submitted under Section 14 of the Arbitration & Conciliation (Amended) Act. The Indian Army’s Ordnance Department, which is a division of the Ministry of Defence, was the petitioner in this case and the respondent in the arbitration procedures. Due to the respondent’s failure to produce the advance sample by the deadline specified in the contract, the petitioner suffered significant losses and was forced to revoke the previously approved Supply Order.

Petitioner’s Contentions:

The petitioner stated that the learned Arbitrator began pressuring the petitioner’s conducting officer to assist him in receiving the maximum amount as his fee, but the conducting officer retorted that it was beyond his purview. Furthermore, it ed claimed that the proceedings were not concluded by the learned Tribunal within the allotted year. The petitioner believed that the learned Arbitrator was biased towards the respondent/claimant and was operating in their favour.

He argued that the learned Sole Arbitrator failed to determine the case’s final fee because he continued to oppose the petitioner’s schedule of fee payment and insisted on paying under the Fourth Schedule of the Act. Allegedly the learned Arbitrator’s actions do not reflect well on the Office and instead, he was vehemently opposing the petitioner to further his interests. By bringing false accusations, he had attempted to harm the Conducting Officer’s career. He was not accurately capturing the events. In reality, he never documented the events as they happened but instead created fictitious orders later on according to his whims and fancies.

Therefore, a request was made that the learned Arbitral Tribunal’s mandate is terminated and replaced by the appointment of another Arbitrator.

Respondent’s Contentions

The petitioner’s claims that the arbitrator was demanding a high charge were unjustifiable in that he had been acting on his whims without ever getting the respondent’s permission to agree to any such fee structure. No agreement would be possible without the other party’s approval.
According to the Act, which does not make a distinction between Government and private parties and is equally applicable to both, the petitioner was not an exception.

It is submitted that the petition is without merit and is liable to be dismissed.

JUDGEMENT

The petitioner’s assertion was unfounded. It was plain that the petitioner was bringing frivolous objections, which are clearly against the statute’s requirements, to evade its obligation to pay the arbitrator’s fees. In the current instance, there is no evidence to suggest that the learned Arbitrator ever agreed to the petitioner’s proposed fee schedule, nor at any stage did he ever admit to it. According to the court, this claim made by the petitioner had no support. The petitioner in this matter, in the view of the court, was unable to show any of the grounds listed in Sections 14 or 15 of the Act. The current petition was determined to be without merit and dismissed with the remark that the learned Arbitrator may continue the arbitration and publish the Award following the Rules.

Conclusion

The dedication of the Indian government to turning India become a hub for arbitration and other ADR mechanisms is demonstrated by the several revisions made to the Arbitration and Conciliation Act to meet the demands of the constantly changing international business community. India can only strengthen its position as the global leader in rapid and effective dispute resolution by continuous adjustments based on lessons learned from the relevant commercial jurisdictions throughout the world and proper execution of those learnings concerning arbitration.

READ FULL JUDGEMENT: https://bit.ly/3I7Pp2p

CITATION: 2003/DHC/000894

–Report by Shweta Sabuji

The appeal in the case of ITC LIMITED Vs. AASHNA ROY was made under Section 23 of the Consumer Protection Act of 1986. It questions the validity of the decision made by the National Consumer Disputes Redressal Commission in Consumer Complaint No.1619/18 between Aashna Roy and Yogesh Deveshwar and another in which the consumer’s rights were communicated.

FACTS:

On April 12, 2018, the respondent went to the ITC Maurya Hotel’s saloon for hair styling so that she would look presentable and well-groomed when she appeared before the interview panel a week later. She asked for Ms Alem, the hairdresser who had previously cut her hair on several occasions when she had visited the saloon. Since Ms Alem was unavailable, the respondent’s hair was styled by Ms Christine, a different hairstylist. The respondent, who had previously expressed dissatisfaction with Ms Christine’s services, agreed to hire her after the saloon’s manager assured her that Ms Christine had significantly improved her performance over some time.

The reply specifically instructed the mentioned hair stylist to “length flicks/layers covering her face in the front and at the back and 4-inch straight hair trim from the bottom,” using those exact words. The respondent was told to keep her head down since she was wearing high-powered glasses, which were taken off for the hairstyling process, and she was unable to view herself in the mirror to see what the hairdresser was doing. The respondent claimed that the directions were straightforward and would not require much time, but when the hair stylist spent more than an hour styling the subject’s hair, the respondent questioned why.

The hairstylist responded by telling her that she was giving her “the London Haircut.” When the hair styling was finished, she was shocked to see that the hair stylist, Ms Christine, had completely chopped off her hair, leaving only 4 inches from the top and barely brushing her shoulders, which was quite the opposite of what she had requested. She voiced her complaint to Mr Gurpreet Acharya, the saloon manager, right away. The Manager did not present a bill because she had complained, so she did. She was, however, so irritated and angry that she left the saloon.

Later, the saloon offered the respondent services for free treatment and hair extensions for the interview, and it appears that she accepted both offers. To extend its offerings, the salon hired an outside technical hair specialist from MoeHair (an international brand). She was instructed to repeat the procedure two to three more times. On March 5, 2018, the respondent underwent hair treatment once more. She was told that Ms Alem would supervise Mr Vicky, the on-staff hairdresser, as he performed the procedure. The respondent was informed that Mr Vicky was a highly skilled hair stylist with training. It ends up being a disaster for the respondent once more. Her hair and scalp were severely damaged during the treatment because too much ammonia was utilized, which caused intense scalp burning and irritation.

PLAINTIFF’S CONTENTIONS

The appellant, who was positioned as Opposite Party No. 2 before the NCDRC, raised several issues in separate written objections, including doubting the respondent’s status as a consumer given the free services provided; the compensation claim was extremely excessive; no documentary evidence had been presented to support such a large claim; and the complaint should be dismissed for lack of pecuniary jurisdiction. The appellant presented its argument even on the merits. The respondent also submitted a response affidavit to the NCDRC. Affidavits were used to present the evidence by both parties. Additional photos, CCTV footage, social media talks, and other materials were also included in the package.

DEFENDANT’S CONTENTIONS

The NCDRC determined that the respondent’s hair had been cut shorter than she had requested. Additionally, it noted a conclusion that the respondent’s appearance may have changed as a result of poor hair styling. The NCDRC further determined that the appellant had been careless in how it treated the respondent’s hair and had also damaged the respondent’s scalp. After then, the NCDRC handled the quantification of the compensation.

JUDGEMENT

In the aforementioned ruling, the National Consumer Disputes Redressal Commission accepted the solitary respondent’s complaint and ordered the present appellant, who is Opposite Party No. 2, to pay compensation in the amount of Rs. 2 crores to the NCDRC.

READ FULL JUDGEMENT: https://bit.ly/3DRwsOU