Case BriefsTribunals/Commissions/Regulatory Bodies

   

Competition Commission of India: In a significant development, the Commission while deliberating upon the alleged contravention of Sections 3 and 4 of the Competition Act by MakeMyTrip, Goibibo and OYO, was of the view that the commercial arrangement between OYO and MakeMyTrip and Goibibo which led to the delisting of FabHotels, Treebo and the independent hotels, which were availing the services of these franchisors, was anti-competitive and abuse of dominant position within the meaning of Section 3(4)(d) read with Section 3(1) of the Competition Act.

The Bench comprising of Ashok Kumar Gupta (Chairperson), Sangeeta Verma and Bhagwant Singh Bishnoi (Members) found it fit to impose a monetary penalty for MMT-Go at 5% of its relevant turnover, during the financial years 2017-18, 2018-19 and 2019-20 – Rs. 223 crores and 48 Lakhs. Meanwhile OYO’s penalty was fixed at 5% of its relevant turnover, as submitted by it, during the financial years 2017-18, 2018-19 and 2019-20 – Rs 168 Crores and 88 Lakhs.

The Allegations: some of the important allegations levied on MMT-GO and OYO are as follows—

  • Federation of Hotel & Restaurant Associations of India [FHRAI] – representative body of the hospitality industry in India, alleged that MakeMyTrip-Goibibo [hereinafter MMT-Go] imposed price parity in its agreement/contract with hotel partners whereby the hotel partners are not allowed to sell their rooms at any other Online Travel Agency [OTA] or on its own online portal at a price below which it is being offered on MMT-Go’s platform. However, MMT-Go in their own discretion can fluctuate the prices of such hotel rooms. Further, the hotel partners were mandated to observe room parity whereby they cannot refuse to provide rooms on MMT-Go platform at any given point of time if the rooms are being provided on any other OTA.

  • It was further alleged that chain hotels/ hotel aggregators, namely Treebo and FabHotels were denied market access because of their removal from the platform of MMT-Go as they did not agree to pay the exorbitant commission brokerage charged by the latter.

  • Further, it was alleged that MMT-Go and OYO have entered into confidential commercial agreements wherein MMT-Go has agreed to give preferential treatment to OYO on its platform, leading to a denial of market access to Treebo and FabHotels.

Investigations by the Director General

  • The Commission, prima facie, delineated the relevant market with regard to OYO as the ‘market for franchising services for budget hotels in India’ and found OYO to be holding a significant position in the said market, though not dominant. MMT-GO, on the other hand, was found to be dominant in the ‘market for online intermediation services for booking of hotels in India’.

  • The Commission having formed prima facie view ordered an investigation against MMT-Go for contravention of Section 4 as well as Section 3(4) of the Act. As regards OYO, investigation under Section 3(4) of the Act was ordered.

  • The DG reported that MMT-Go is the dominant player in their relevant market. As per the DG’s report, after the merger of MMT with GoIbibo in 2017, the market share of MMT-Go had increased. It was further reported that reliance of FabHotels on MMT-Go increased during 2016-17 and 2017-18. In 2018-19, after the termination of contract with MMT-Go, the proportion of bookings through MMT-Go declined substantially. DG reported that MMT is a dominant player in the relevant market for “online intermediation services of hotel bookings in India.

  • The DG also concluded that as a consequence of the delisting from the MMT-Go platform due to the OYO and MMT-Go agreement, FabHotels and Treebo were driven out of the business of franchising budget category hotels in India.

  • From the consumers’ perspective, the DG observed that the choice of inventory was narrowed down to the properties offered by OYO.

Contentions

  • FHRAI submitted that both MMT-Go and OYO are strong players and their inter-se exclusive arrangement is furthering their strength to the exclusion of other players in the markets in other segments.

  • It was further submitted that MMT-Go’s agreement with OYO discriminates in terms of the access granted to other competitors in the respective market segments of MMT-Go and OYO.

  • MMT-Go submitted that FabHotels and Treebo approached the Commission for their own ulterior motives. As regards Treebo, it was alleged that it is purely driven by commercial business interest and that the statements of its founder during cross-examination contradict the submissions made in the Treebo’s Information and its subsequent filings. As regards FabHotels, it was alleged that though its entire claim is based on the huge losses it has suffered in terms of growth post the delisting from MMT-Go platforms, response filed by it pursuant to the questions asked during the cross examination reveal that its revenue from operations doubled in FY 2019-2020 from the FY 2018-2019.

  • MMT- Go further contended that the DG’s ‘Theory of Gatekeeper’, as mentioned in the Investigation Report, is devoid of any legal basis. The “digital gatekeeper” construct does not have any legal basis in India or in other jurisdictions.

  • OYO denying all the allegations, stated that the main allegation with regard to the commercial agreements which OYO had with MMT-Go is not essential for hotels in any market in India and thus the contention of FabHotels and Treebo that MMT-Go is essential for their survival is not made out.

Observations of the Commission

  • Vis-a vis the Relevant Market the Commission observed that a hotel can also list itself on Google ‘without paying any cost’; however, presence and visibility are two different things. When a hotel partner opts for a channel of distribution like an OTA, it is more for visibility (and discoverability) and not just for mere online presence.

  • Thus the Commission was of the view that online and offline are not part of the same market and secondly, even within the online segment, OTAs constitute a separate relevant product market. Viewed from the competition lens, the Commission does not find that the various distribution channels argued by MMT-Go (e.g. direct bookings made through the hotel’s own website; corporate sales; offline travel agents; unorganised intermediaries such as coolies, taxi drivers, etc.; metasearch services such as Trivago, Trip Advisor etc.) to be constraining MMT-Go. The relevant market in the present case, thus, is “market for online intermediation services for booking of hotels in India”.

  • Concerning dominance, the Commission agreed with the assertion made by the Informants that the commercial arrangement between MMT and OYO has further fortified the position of MMT-Go in the market. Such commercial arrangement resulted in the fact that a large number of consumers also book hotels on the said website which then leads to a great influx of hotel owners who are willing to list their hotels on MMT-Go.

  • The Commission observed that the deep discounts, exclusivity condition and parity conditions, in conjunction, created an ecosystem reinforcing MMT-Go’s dominant position in the relevant market- like helping MMT-Go to retain and further increase its network of users/travellers, who would increasingly use the platform for availing the best deals; impeding the competitive process between OTAs by limiting the competitive levers/instruments at the disposal of other portals who etc. “Hotels and OTA are in a contractual relationship and therefore, free riding of hotels on the investment made by OTAs in advertisement and promotion can be detrimental to the business of OTAs. However, wide price parity obligation is not justifiable as it reduces the competition between the OTAs and may have an adverse impact on prices charged to end-consumers”. The Commission thus observed that the wide parity obligations imposed by MMT-Go, along with exclusivity conditions, are in contravention of the provisions of Section 4(2)(a)(i) and 4(2)(c) read with Section 4(1) of the Competition Act.

    “The explosion of online commerce has changed the dynamics of consumer preferences and transactions. As a market regulator, it is thus imperative that the competition regulator ensures that all stakeholders get an opportunity to compete on merits and get a fair chance to be part of digital commerce”.

  • The Commission stated that it is not inclined to intervene with the contractual freedom of the parties to decide their commercial terms of dealing. However it was reiterated that such terms shall not be employed as tools to distort fair competition in the market. MMT-Go, as a dominant channel of distribution, shall endeavour to provide fair and non-discriminatory access of its platform to users.

[Federation of Hotel & Restaurant Associations of India v. MakeMyTrip India Pvt. Ltd., Case No. 14 of 2019, decided on 19-10-2022]


Advocates who appeared in this case :

For (FHRAI):

Ms. Rukhmini Bobde, Advocate

Mr. Ishan Nagar, Advocate

For Ruptub Solutions Pvt. Ltd.:

Mr. Abir Roy, Advocate

Mr. Vivek Pandey, Advocate

For Casa2 Stays Pvt. Ltd. (FabHotels):

Mr. Karan Singh Chandhiok, Advocate

Mr. Tushar Chawla, Advocate

Ms. Lagna Panda, Advocate

Mr. Vishnu Suresh, Advocate

Mr. Vaibhav Aggarwal, FabHotels

For MakeMyTrip India Pvt. Ltd. and GoIbibo (MMT-Go):

Mr. Ramji Srinivasan, Senior Advocate

Ms. Megha Dugar, Advocate

Mr. Shashank Gautam, External Counsel

Ms. Sreemoyee Deb, Advocate

Mr. Rajat Moudgil, Advocate

Mr. Anand Sree, Advocate

Mr. Hitesh Mehra, General Counsel (MMT-Go)

Mr. Justin Coombs, Economist

Dr. Kadambari Prasad, Economist

Mr. Avinash Mehrotra, Director, Economist

For Oravel Stays Pvt. Ltd. (OYO):

Mr. Rajshekhar Rao, Senior Advocate

Mr. Harman S Sandhu, Advocate

Mr. Rohan Arora, Advocate

Mr. Ravi Gangal, Advocate

Mr. Rakesh Prusti, General Counsel (OYO)

Ms. Urvashi Pathak, Assistant General Counsel (OYO)


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Case BriefsDistrict Court

   

POCSO Special Court, at Fort, Gr. Bombay: In a case where charge sheet is filed against the accused for offences punishable under sections 354(A), (B), 504, 506 of Penal Code, 1860 (IPC) and under section 12 of Protection of Children from Sexual Offences Act, 2012 (POCSO), Priya P. Bankar, J., convicted the accused and sentence him for imprisonment under Section 7 punishable under Section 08 of POCSO Act, Section 354 and Section 506 IPC. The Court further directed the accused to pay compensation to the victim child , failing which, the said amount will be paid out of Victim Compensation Scheme.

The victim is 15 years old residing along with her family members. Accused used to stand in front of her house. Once, when, victim went nearby to purchase the household articles, the accused allegedly pulled her dupatta and held her hand. On the victim threatening that she will complain to her father, the accused said ‘Tere pappa ko ghar me ghuske marunga‘. On returning home, the victim informed the said incident to her father to which he made a phone call to accused and the accused abused the father of the victim. So, the complaint was lodged against the accused at Mahim Police Station. The charge sheet was filed, and the trial commenced.

Counsel for State submitted that despite of understanding given to the accused by the father of the victim, he has continued his acts of assaulting the minor sexually, thus he deserves maximum punishment.

Counsel for accused submitted that he is the only earning member of his family and he is 23 years old, thus requests Court to show leniency while awarding the sentence and minimum sentence be awarded as he has no criminal antecedents.

The Court noted that the accused has taken defense about the love affair between him and the victim, but the said defense is not acceptable, looking at the age of the victim.

The Court further noted that in view of the evidence by PW 1 shows, the accused has threatened to beat her father after entering the house. So, said threat was causing injury to the father of victim, with intend to cause alarm and to do act, which she is not legally entitled to do by means of execution of such threats, is a criminal intimidation. Thus, the prosecution has proved the offence punishable under Section 506 of IPC.

Based on evidence, the Court observed that prosecution has proved that accused has outraged the modesty of 15 years old child and has sexually assaulted her and thus, he has committed the offence under Section 354 of IPC as well as under Section 7 punishable under section 8 of POCSO Act. He has also threatened the victim and also committed offence punishable under Section 506 of IPC.

The Court remarked that there is an increase in sexual offences against children. There is a very adverse impact of the incident on the victim girl, on her family members and even on the society. They are under the impression that house and nearby vicinity are not safe for children and it is going to cause an alarming situation in society. Definitely, such type of incident causes terror in the mind of people, victim and her family members and leave scar for longer time.

The Court thus passed the following order:

  1. Accused stands convicted of offence under Section 7 punishable under Section 8 of POCSO Act and is hereby sentenced to suffer Imprisonment for 03 years (three years) and to pay fine of Rs. 10,000/ (Rs. Ten thousand only), in default to pay fine, to suffer Simple Imprisonment for the period of 1 month (one month).

  2. Accused stands convicted of offence punishable under Section 354 of IPC and is sentenced to suffer Imprisonment for 01 year (one year) and to pay fine of Rs. 10,000/ (Rs. Ten thousand only), in default to pay fine, to suffer Simple Imprisonment for the period of 1 month (one month).

  3. Accused stands convicted of offence punishable under Section 506 of Indian Penal Code and is hereby sentenced to suffer Imprisonment for 01 year (one year).

  4. Out of the fine amount, if paid by the accused, an amount of Rs. 15,000/ (Rs. Fifteen thousand only) be paid to the victim girl, as compensation and if the said amount cannot be paid out of the fine amount, Legal Services Authority, Mumbai to pay the amount of compensation under Victim Compensation Scheme.

[State of Maharashtra v. Mohammed, 2022 SCC OnLine Dis Crt (Bom) 12, decided on 11-10-2022]


Advocates who appeared in this case :

S. S. Joshi, APP, Advocate,for the State;

Dhananjay Singh, Advocate, for the Accused.


*Arunima Bose, Editorial Assistant has put this report together.

Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: In a case where the Court came across highly objectionable photographs annexed by the counsel for the petitioner, a Division Bench of Revati Mohite Dere and S.M. Modak, JJ., directed the Advocate, to deposit costs of Rs. 25,000/- with the Kirtikar Law Library, within two weeks from the date of the order.

The Court remarked that “No sense of proportion or discretion is exercised by the Counsel whilst annexing the said photographs.”

The Court noted that the advocates fail to realize that these petitions are filed/placed before the Registry and get circulated through various departments, exposing the parties involved in the photographs and it is expected that all lawyers/Advocates must exercise some discretion and proportion whilst annexing the photographs which are highly objectionable.

The Court directed the counsel for petitioner to remove the said photographs which are annexed as well as from the copies served on the Counsel for the respondents and Assistant Public Prosecutor forthwith.

[Jyotsna D Souza v. State of Maharashtra, 2022 SCC OnLine Bom 3481, decided on 07-10-2022]


Advocates who appeared in this case :

Mr. Anand Pandey i/b Mr. Ramesh Tripathi, Advocate, for the Petitioner;

Mr. J.P. Yagnik, A.P.P, Advocate, for the Respondent-State;

Mr. Waqar Pathan, Advocate, for the Respondent 3.


*Arunima Bose, Editorial Assistant has put this report together.

Patiala House Courts, Delhi
Case BriefsDistrict Court

Patiala House Courts, Delhi: Nabeela Wali, J. took lenient view and sentenced a convict under Section 2 of Prevention of Insults to National Honour Act, 1971 to pay Rs 2000 as fine and distribute 20 national flags of a specific dimension at Child Care Institutions/ Educational Institutions for children including Madrasas under Delhi Waqf Board and Observation Home for Children under the supervision of Delhi State Legal Services Authority.

The instant case involves the accused pleading guilty of a charge framed under Section 2 of Prevention of Insults to National Honour Act, 1971 and did not claim trial. Thus, the accused was convicted of the aforesaid offence.

Counsel for convict submitted that the convict has clean antecedents and is remorseful of his act and thus the court must take a lenient view.

Reliance was placed on Kokaiyabai Yadav v. State of Chhattisgarh, (2017) 13 SCC 449 wherein it was observed that reforming criminals who understand their wrongdoing are able to comprehend their acts, have grown and nurtured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanizing the world.

Further reliance was placed on Ravada Sasikala v. State of AP, (2017) 4 SCC 546 and reiterated that it is the duty of every Court to award proper sentence having regard to nature of offence and manner of its commission. The Supreme Court further said that Courts must not only keep in view the right of victim of Crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on society as a whole and rule of law needs to be balanced.

Thus, the Court took a lenient view and sentenced the convict to pay Rs 2000 as fine for the offence under Section 2 of Prevention of Insults to National Honour Act, 1971, which stands paid.

The Court further directed the convict to also provide 20 National Flags having dimension 900 x 600 mm, as per provisions of Flag Code of India, 2002 to Delhi State Legal Services Authority.

The Court further directed DSLSA having office at Patiala House Courts, New Delhi to ensure and supervise the compliance being done at Child Care Institutions/ Educational Institutions for children including Madrasas under Delhi Waqf Board and Observation Home for Children.

[State v. Mohd Tariq Azi, 2022 SCC OnLine Dis Crt (Del) 31, decided on 06-08-2022]


Advocates who appeared in this case :

Shubham Jain, Advocate, Counsel for the Convict.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT), Southern Zone, Chennai: While imposing a fine of Rs 41.21 crores on Singareni Collieries Company Limited, for violation of environmental clearance conditions and mining excess coal, the Coram of Justice K. Ramakrishnan (Judicial Member) and Dr Satyagopal Korlapati (Expert Member) expressed that,

“The Government Corporations are expected to be more law abiding and if any leniency or discrimination is shown for committing violation, then it is very difficult to maintain the rule of law, if any violations were committed by other persons. There will not be any moral right for the regulators to take action against others, if similar violations were committed by them.”

A resident of Telangana filed an application regarding the violation committed by respondent 1 in respect of violation of conditions in the Environmental Clearance (EC) and Consent granted and also pollution caused on account of the operation of the unit.

Allegations

It was alleged that the applicant along with 700 families were living adjacent to the Opencast Coal Mine operated by respondent 1 facing severe air, noise and water pollution besides severe heat due to massive blasting, drilling, and extraction of coal in the Opencast Mine.

Analysis and Decision

Tribunal noted that the grievance of the applicants was that, SCCL, a Government-owned public sector undertaking corporation had conducted their operation without necessary clearances and also in violation of the conditions of the Environmental Clearance (EC) granted and also doing excess mining, causing pollution to the neighbouring water bodies and properties of the residents of the locality both air and sound. Damage was being caused on account of the indiscriminate unscientific manner in which blasting was being done.

In a way it was admitted by the SCCL themselves that they had done excess mining than the permitted quality and when they applied for an expansion of the project, it was treated as a violation case, hence proceedings were initiated by filing a complaint under Section 19 of the Environment (Protection) Act, 1986.

The Joint Committee, after conducting the Ambient Air Quality and Vibration Study, found that the Ambient Air Quality and the sound level were within the permissible limit and the pollution control mechanism provided was adequate and that was not causing any dust pollution as claimed by the applicants.

The Joint Committee had come to the conclusion that except for excess mining and also partial cause for damage to the houses on account of the vibration caused during blasting, there was no other violation noted by the Joint Committee. 

It is seen from the report that excess mining was done at the instance of the Government to meet the supply of coal to thermal power stations to meet the power demand. It may be mentioned here that though it is a Government owned corporation, they are not expected to exploit natural resources, as no one including the Government said to be the owners of the natural resources are only the trustees to hold the natural resources to be used in a scientific manner so as to make the natural resources available for the generation to come, applying the “Doctrine of Public Trust”. 

Further, it was noted from the Joint Committee that on account of excess mining, they earned a profit of Rs 588.60 Crores in 11 years and 3% of that amount namely, Rs 17.65 Crores had to be contributed to remediation and including this amount, an amount of Rs 26,67,00,000/- (Rupees Twenty Six Crores and Sixty Seven Lakhs only) was directed to be produced as Bank Guarantee, which they had produced.

Coram directed the Mining Department to calculate the penalty for the excess mining done in view of the Supreme Court directions issued in Common Cause v. Union of India, (2017) 9 SCC 499.

Considering the period of violation, Tribunal opined that instead of 3% (Three percent), 10% (Ten percent) of the profit namely, Rs 58.86 Crore (Rs.588.60 Crore x 10%) can be imposed as compensation for excess mining and deducting Rs.17.65 Crores which was directed to be utilized for remediation purpose, the balance amount of Rs. 41.21 Crores will have to be paid by the Singareni Collieries Company Limited (SCCL) as compensation for excess mining done by them and this amount will have to be paid to the Telangana State Pollution Control Board within a period of 3 (Three) months.

Telangana State Pollution Control Board was directed to identify the persons whose houses were damaged due to vibration caused on account of blasting and quantify the amount required for repairing the houses.

SCCL was directed to comply with the recommendations of the Joint Committee and also conditions imposed in the Environmental Clearance (EC) already granted and subsequently granted for their combined expansion project, enhancing the capacity to 5 MTPA.

The gist of the Directions

(i) The Singareni Collieries Company Limited (SCCL) is directed to pay a compensation of Rs 41.21 Crores [i.e. Rs.58.86 Crores (10% of the profit) – Rs 17.65 Crores (3% of the profit) which was directed to be adjusted towards the remediation plan] within a period of 3 (Three) months with the Telangana State Pollution Control Board and if the amount is not paid within that time, the State Pollution Control Board is directed to take steps to recover the amount from them by requesting the District Collector to initiate revenue recovery proceedings.

(ii) The Mining Department is directed to calculate the penalty payable for the excess mining done in view of the directions issued by the Supreme Court in Common Cause V. Union of India (2017) 9 SCC 499, as even at the time when it was treated as a violation case, the project proponent/SCCL has filed an undertaking that they will abide by the directions issued by the Supreme Court in Common Cause’s case cited supra.

(iii) The Telangana State Pollution Control Board in consultation with the District Collector of the concerned area, identify the persons whose houses have been damaged as observed by the Joint Committee partially due to vibration caused on account of blasting during the initial stages and the amount required for repairing the houses will have to quantified and the same will have to be paid to those persons whose houses have been identified as damaged on account of the operation of the Singareni Collieries Company Limited (SCCL) and this amount will have to be realized from SCCL. The environment compensation amount will have to be utilized for the purpose of preparing a welfare scheme for protecting the welfare and interest of the people who are residing in and around the coal mining area who are likely to be affected by the project activities and also a portion of the out of compensation will have to be utilized for meeting the welfare of the Tribal settlement, if any, situated in Khammam District or nearby districts. Mode of welfare scheme etc. will have to be evolved by the Committee appointed by this Tribunal for this purpose.

(iv) The preparation of scheme must be in consultation with the Chief Secretary to Government, State of Telangana and the Special Chief Secretary to Government – Department of Environment, Science & Technology and that will have to be jointly implemented by the State Pollution Control Board and the concerned District Collector.

(v) The Singareni Collieries Company Limited (SCCL) is directed to comply with the recommendations of the Joint Committee and also conditions imposed in the Environmental Clearance (EC) already granted and subsequently granted for their combined expansion project, enhancing the capacity to 5 MTPA. The expanded project can be permitted to be carried by the project proponent namely, the Singareni Collieries Company Limited (SCCL) after complying with the direction issued by the MoEF&CC while granting the Environmental Clearance (EC) as violation case and also after depositing the amount as directed by this Tribunal as compensation for excess mining done over and above the permitted quantity mentioned in the Environmental Clearance (EC) earlier granted.

(vi) In order to monitor the implementation of certain CSR Projects said to have been launched by the project proponent, we appoint a Joint Committee under the chairmanship of the Special Chief Secretary to Government, Department of Environment, Science and Technology, State of Telangana with following members (i) a Senior Officer from the Integrated Regional Office, MoEF&CC, Hyderabad, and (ii) the District Collector – Khammam District and they are directed to monitor the compliance of the Environmental Clearance (EC) conditions and also the projects said to have been launched by the SCCL in compliance with the direction issued in the Environment Remediation Plan as well as their CER activities and if they did not comply with the same, the MoEF&CC is directed to take appropriate action for violation of the conditions of the Environmental Clearance (EC) against the SCCL.

(vii) The Telangana State Pollution Control Board is directed to monitor the pollution control mechanism and compliance of conditions in the Environmental Clearance (EC) and Consent granted periodically and if there is any violation found, then they are directed to take appropriate action against the SCCL in accordance with law.

(viii) The Singareni Collieries Company Limited (SCCL) is also directed to take all necessary precautions to avoid complaints of pollution being caused on account of their operation both air and soil and also control the vibration and sound that is likely to be emanated during blasting operation to avoid complaints from the nearby residents.

(ix) The Singareni Collieries Company Limited (SCCL) is also directed to provide necessary greenbelt and also other pollution control mechanism to avoid air and dust pollution being caused. They are also directed not to discharge any trade effluents or liquid waste generated during the operation of their mine and they are directed to strictly implement the ZLD within their unit.

(x) The Singareni Collieries Company Limited (SCCL) is also directed to expedite the laying of railway track and complete the same and take steps to transport the coal using railway line instead of road as directed to be complied with within the timeline specified in the Environmental Clearance (EC) granted.

In view of the above directions, the applications were disposed. [Banothu Nandu Nayak v. Singareni Collieries Company Ltd., 2022 SCC OnLine NGT 127, decided on 6-5-2022]


Advocates before the Tribunal:

O.A. No.174/2020 (SZ):

For Applicant(s): Mr. Sravan Kumar.

For Respondent(s): Mr. A. Sanjeev Kumar, Spl. Govt. Pleader for R1. Mrs. Me. Saraswathy for R2.

Mr. T. Sai Krishnan for R3.

Mrs. H. Yasmeen Ali for R4 & R5.

O.A. No.20/2021 (SZ):

For Applicant(s): Mr. Sravan Kumar.

For Respondent(s):

Mrs. Me. Saraswathy for R1.
Mr. T. Sai Krishnan for R2.
Mr. A. Sanjeev Kumar, Spl. Govt. Pleader for R3

Case BriefsHigh Courts

Kerala High Court: Expressing that, Criminal prosecution followed by conviction and imposing substantive sentences and fines on those convicted of suicidal behaviours are believed to constitute an affront to human dignity, K. Haripal, J., pointed out that a large section of the society considers that suicidal behaviour is typically a symptom of psychiatric illness or an act of psychological distress, suggesting that the person requires assistance in his personal and psychological life, not punishment with imprisonment or fine.

It was alleged that, when the de facto complainant and others had demanded the issue of certificates to the applicants in connection with the Life Mission Scheme through manual mode, the petitioner insisted that she would issue certificates manually only on getting instruction from the official hierarchy, which led to altercation in the village office and out of mental turmoil, the petitioner attempted to commit suicide by cutting her veins and thus committed the offence under Section 309 of the Penal Code, 1860.

Analysis and Discussion


Petitioner’s counsel stated that Section 115 of the Act saves criminal liability of the petitioner, an attempt to commit suicide shall be presumed unless proved otherwise, to have been done under severe stress and shall not be tried and punished under the Code. Further, the counsel added that any person under stress can get the benefit of the said provision.

High Court expressed that the legality and correctness of the provision punishing attempt to commit suicide have always been the subject matter of hot discussion in the judicial circle for decades.

Bench cited the decisions of Orissa and Himachal Pradesh High Courts in which prosecutions initiated under Section 309 IPC were quashed by the High Courts.

In Pratibha Das v. State of Orissa, Orissa High Court had quashed the proceedings in light of Section 115 of the Act stating that proceedings cannot be continued for want of criminal intent. Similarly, the Himachal Pradesh High Court in Pratibha Sharma v. State of Himachal Pradesh, it was held that the proceedings are a sheer abuse of the process of law.

“…decriminalisation of attempt to commit suicide is the general view of Courts and legal luminaries.”

“Medical circles also believe that it is not an offence against the State, but, on the contrary, the State itself may be indirectly responsible for the plight of the victim who is left with no other alternative, except to end his life.”

Moving to the present facts, the petitioner had no malafides in delaying the issue of certificates and she had her own explanations, infact she was not expected to issue certificates in manual mode, when the applications were received online. Though the president of the panchayat and her lieutenants rounded up the petitioner and put her under severe mental stress. Petitioner was subjected to abuse and shouting.

High Court noted that there was a tense situation created in the office due to which police reached there and everything had to be faced by the petitioner single-handedly. The petitioner was being abused and pressurized to do an official act against the procedures to be followed in the office. It also appeared that she was illegally restrained and confined in her room.

Lastly, the Bench stated that under severe stress she lost balance and attempted to commit suicide by cutting her veins.

“…overwhelming reasons are made out to say that she had committed the said act under severe mental stress which stands saved from being tried and punished under the Penal Code.”

Hence, Section 115 of the Act saved the act of the petitioner from the penal provision.[Simi C.N. v. State of Kerala, Crl. MC No. 6522 of 2021, decided on 7-4-2022]


Advocates before the Court:

For the Petitioner:

BY ADVS.RAJIT

                   RAMAKRISHNAN M.N.

                   MARY MANJU VINCENT

For the Respondent:

BY SMT. SREEJA V., SENIOR PUBLIC PROSECUTOR

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar, J., disposed of the petition and modified the judgment of the appellate court.

The facts of the case are such the petitioner was driving KSRTC bus and thereby caused an accident by dashing against a private bus due to rash and negligent driving. The petitioner was tried in the Court of JMFC, Belthangady, for the offences punishable under Sections 279 and 337 of IPC, held guilty and sentenced to two months simple imprisonment and fine of Rs1, 000/- with default sentence period of 15 days imprisonment in relation to offence under Section 279 IPC i.e. Penal Code, 1860, and two months simple imprisonment with fine of Rs 500/- and a default sentence period of 15 days for the offence under Section 337 IPC. The appeal preferred before IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, was also dismissed, and hence the instant revision petition was filed.

Counsel for petitioner Mr Keshava Bhat submitted that the photograph of the accident scene clearly shows that probably two buses collided with each other because of the width of the road being very narrow. In this view, a lenient view may be taken and the petitioner may be just subjected to fine with an observation that the conviction is not a stigma to his employment.

Counsel for respondent Mr K S Abhijith submitted that when there is no scope for appreciation of evidence, another view cannot be taken with regard to accident and there is no scope for reducing the quantum of sentence also.

The Court observed that the evidence shows that the accident occurred when two buses were taking turn in a curve, however because of consistent findings of both the courts below, I do not find it necessary to re-appreciate the evidence because there is no perversity in them.

The Court stated that the petitioner is a driver in the KSRTC. Examined whether there is scope for imposing fine only, section 279 IPC provides for sentencing the accused with imprisonment which may extend to six months, or with fine which may extend to Rs.1,000/-, or with both. Similarly, section 337 IPC provides for sentencing an accused for imprisonment of either description for a term which may extend to six months, or with fine which may extend to Rs.500/-, or with both.

The Court thus held Therefore having regard to the sentencing structure provided in both the sections, I am of the opinion that the sentence may be confined to fine only instead of subjecting the petitioner to imprisonment. [Devendrappa H. v. State, Criminal Revision petition no. 1145 of 2021, decided on 17-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT): Coram of Justice Tarun Agarwala (Presiding Officer), Dr C.K.G. Nair (Member), and Justice M.T. Joshi (Judicial Member) held the appellants responsible for non-compliance of Regulation 33 of SEBI (Listing Obligations and Disclosure Requirements) Regulation, 2015.

The imposed a fine of Rs 5,54,600 on the appellants for non-compliance of the said regulation. In a meeting of its Board of Directors, unaudited financial results were approved and this had to be uploaded on the Company’s website as well as on the stock exchange platform within 30 minutes of the conclusion of this meeting as well as within 24 hours as a per a circular. In addition to that, Annexure 1 relating to imposition of fine for violation of Regulation 33 stated if the said information is not disseminated in the stock exchange platform and on the Company’s website, a penalty of Rs 5000 per day till the non compliance would be levied and if it continues for more than 15 days then additional fine of 0.1% of paid-up capital would be automatically levied.

The appellant contended that they had uploaded the financial results in XBRL mode within 30 minutes instead of 24 hours but on account of a glitch the appellant could not upload the financial results along with the audit report within 30 minutes on the BSE platform though it was uploaded on the NSE as well as on the Company’s website. These results were published in the leading newspapers too. There was only a technical defect for which the appellant should not be penalised.

The Tribunal held that since the regulations and the circular require the financial results to be disseminated to the public for the desired purpose so that the investors are made aware of the financials of the Company. Thus, the limited audit report along with the financial results was required to be uploaded within 30 minutes of the conclusion of the Board of Directors. The financial results had price sensitive information and could not have remained unpublished and it was not complied with.

The Tribunal also held that the fine imposed was excessive as there was no deliberate intention on the part of the appellant to violate Regulation 33 of the Listing Regulations. The violation was a human error. In the interest of justice, the penalty was reduced to Rs 2,50,000.[SPL Industries Ltd. v. BSE Ltd., 2019 SCC OnLine SAT 151, decided on 20-08-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Shaji P. Chaly, J. allowed a civil writ petition filed by a former student of a CBSE school assailing CBSE officials’ order, rejecting her application seeking correction of particulars in her class X and XII certificate.

Petitioner herein had completed her X and XII standard from the respondent 4 school (Kendriya Vidyalaya CRPF, Pallippuram) under the Central Board of Secondary Education Board (CBSE). The instant petition was filed assailing the order of Regional Officer, CBSE (Respondent 2 and 5 herein) declining to carry out a correction in the certificates issued by CBSE with respect to the name of petitioner’s mother.

The reason for rejection of petitioner’s request was that there was delay on her part in seeking correction in class X certificate in accordance with the provisions of examination bye-laws of the CBSE; and so far as XII standard’s certificate was concerned, it was not in consonance with the school records and therefore, a Gazette notification was required for changing the name.

The Court relied on Subin Mohammed S. v. Union of India, 2015 SCC OnLine Ker 34544 where it was held that in case of delay in seeking correction in a certificate, the said correction can be carried out by imposing a fine of Rs 5000. As far as the class XII certificate was concerned, petitioner’s application was within time, and the change sought by the petitioner was in accordance with her birth certificate in which the name of her mother was shown correctly.

In view of the above, the impugned order was set aside directing the respondent 2 to reconsider the application submitted by the petitioner in accordance with law at the earliest.[Archa Mohan v. Controller of Examinations, 2019 SCC OnLine Ker 1161, decided on 01-04-2019]

Reserve Bank of India
Business NewsNews

As reported by ANI, Four Public Sector Banks have been fined by Reserve Bank Of India.

The stated banks are Corporate Bank of India, State Bank of India, Bank of Baroda and Union Bank of India. All the 4 banks breached the RBI directions regarding monitoring of end-use funds, exchange of information with other banks, classification and reporting of frauds and on the restructuring of accounts.

Penalties have been imposed in compliance with provisions of Section 47A (1) (c) read with Section 46 (4) (i) of the Banking Regulation Act, 1949.

[Source: ANI]

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of Madan B. Lokur, Deepak Gupta and Hemant Gupta, JJ. pronounced an order while imposing costs on various States with the primary concern regarding “Mid-Day Meal” Scheme.

The present order specifies the allegations submitted by the petitioner, stating that the food-grains have been disappearing and not reaching the schools and thereby the benefit of Mid-Day Meal Scheme is being denied to children.

For the above-stated allegation, the Court with disappointment stated that States have been asked to render assistance and to upload all the data so that necessary corrective steps can be taken from time to time and even after various orders in that regard, no co-operation has been seen from the States.

Further, the Bench stated that, on 26-10-2018, it was submitted by the States of Arunachal Pradesh, Meghalaya, Andhra Pradesh, and Odisha that they would comply with the requirements of the Mid-Day Meal Scheme, but the Court stated that a month has passed and there has been absolutely no progress by the States, which leaves no option other than imposing costs of Rs 1,00,000 and a direction being given to deposit the amount with Supreme Court Legal Services Committee.

The Court lastly, stated that NCT of Delhi had no representative on the last day of the hearing, and for the present hearing the appearance of the representative serves no purpose as no information is available, therefore, the costs of Rs 2,00,000 are imposed.

The present matter has been asked to be listed after 4 weeks. [Antarrashtriya Manav Adhikaar Nigraani Parishad v. Union of India,2018 SCC OnLine SC 2677, Order dated 04-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of V. Kameswar Rao, J. decided a contempt petition filed by Jawaharlal Nehru University seeking action against the respondent Students Union for disobeying Court’s order dated 9-8-2017 whereby Court directed restriction on any protest within 100 meters of the Administrative building.
According to the facts alleged by the University, the respondents disobeyed the said order of the Court and staged protests against compulsory attendance rule inside the Administrative building. They formed human chains, marched throughout the prohibited area, went all the way to VC’s residence, vandalised the area, held University officials under wrongful confinement, etc. The respondents submitted that the contempt petition was vindictive and vexatious. Further, that they believed in rule of law as a part of the basic structure; that they have a right to peaceful protest; that dissent in dialogue and peaceful demonstration were part of the expression of free speech.

The High Court held that the order mentioned hereinabove stood against the respondents till such time as it was set aside or varied, which wasn’t a case here. The Court observed it as a settled position of law that fundamental right under Article 19(1) does not enable any citizen to exercise the same in a manner which may encroach upon a similar right guaranteed to another citizen. Further, the respondents had a fundamental right of peaceful protest but with certain responsibilities towards fellow students/staff/visitors, etc. The Court observed that the respondents did not express any regret for violating the order. It was not a case of non-compliance by mistake, inadvertence or misunderstanding. In such circumstances, the Court held the respondents guilty of contempt and fined each respondent with Rs 2000. [Jawaharlal Nehru University v. Geeta Kumari,  2018 SCC OnLine Del 9601, decided on 03-07-2018]

Case BriefsEnvironmental LawHigh Courts

Delhi High Court: Deciding on the issue of legality and validity of the fee schedule prescribed by the  Delhi Pollution Control Committee, wherein the petitioner Hotel was served with show-cause notices under Section 33-A of the Water (Prevention & Control of Pollution) Act, 1974 and Section 31-A of the Air (Prevention Control of Pollution) Act, 1981 the learned Single Judge Manmohan, J., observed that a writ petition solely praying for refund of money against the State is not maintainable. The Court held that the present writ petition is liable to be dismissed not only on the grounds of statutory non-compliance of the environmental law, but also since the petitioner did not approach this Court with clean hands.

The petitioner had contended that under the threat of imminent closure and penal actions, it was forced to pay an amount of Rs 41 lakhs as condonation fee under protest, seeking consent to operate and that it was liable to pay Rs. 46,000 only as per the previous fee structure and sought for the refund of the remaining amount. The Court held that, to treat the omission on the part of petitioner to comply with the laws as innocent non-compliance trivializes the statutory provisions which has a vital and direct impact on the lives of the citizens. The petitioner continued to run his hotel without obtaining any “consent to establish” and “consent to operate” and without installation of any anti-pollution equipment for the past twenty years. Since a very important and salutary provision of the environmental law was not complied with by the petitioner, the Court decided not to entertain the writ petition in exercise of equitable jurisdiction under Article 226 of the Constitution. The petition was dismissed. [Krishna Continental Ltd.v. Delhi Pollution Control Committee, 2016 SCC OnLine Del 3629, decided on May 2, 2016]

High Courts

Allahabad High Court: Taking cognizance of the matter on a reference letter sent by ACJM Amit Kumar Prajapati, the Court imposed a punishment of simple imprisonment and a fine of Rs. 2000 each on the guilty advocates and also barred them from entering the court of Sonbhadra for six months for abusing and misbehaving with the Additional Chief Judicial Magistrate of Sonbhadra in 2013.

According to the reference letter the ACJM was conducting judicial work, when the contemnor advocates entered the courtroom and enquired as to how the court is working when a strike call had been given by the advocates. When the ACJM told them that the court could never be on strike and those wanting to work cannot be forced to shun the same, the guilty advocates resorted to sloganeering, use of abusive language thus obstructing the functioning of the court. A serious charge was also levelled against the ACJM without any substantial justification in respect of the judicial order passed by him in granting interim bail ignoring the resolution passed by the body of advocates that the order was passed in league and collusion with accused person.

The High Court held that the suggestion that the advocates were on a strike cannot be a justification for alleged misbehaviour. The Court relying on Supreme Court rulings in Common Cause (A Registered Society) vs. Union of India and Others (1995) 5 SCC5, Indian Council of Legal Aid and Advice vs. Bar Council of India (1995) 1 SCC 732 among others held that a call, which has the effect of paralysing judicial function ex facie, amounts to a direct interference in the administration of justice and is a ‘criminal contempt’ under Section 2(c) of the Act, 1971. The Court further held that though it did not intend to lay down any code of conduct for advocates but certainly do not hesitate in observing that no advocate has any business to condemn a judge by abusing etc. If there is any lacking on part of a judicial officer touching his integrity, advocates may not remain silent spectator, but should come forward in appropriate manner before the proper authority. But there cannot be a license to raise finger over competency and integrity etc. of a judicial officer, casually or negligently, or on other irrelevant grounds. In re Sri Mahendra Prasad Shukla Advocate, decided on 02.07.2015