Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: In the instant petition for quashment, the issue arose that whether a legal heir should be permitted to come on record and prosecute the case in place of the informant or with the death of the informant, the act initiated by the informant also dies? The Bench of M. Nagappasanna, J., while relying upon several decisions rendered by the High Courts of Madras and Allahabad, inferred that a genuine victim must be permitted to come on record and the definition of ‘victim’ as found in Section 2(wa) of CrPC cannot be rendered a restrictive meaning and must be liberally construed.

Facts of the Case: K.T. Rajashekar (Complainant/2nd Respondent), approached the Scania Commercial Vehicles (1st Petitioner) in the capacity of Proprietor of SRS Travels, a business establishment in the field of tours and travels in the country and with a fleet of more than 4000 buses. The complainant showed interest in procuring Scania buses and by entering into an agreement to purchases buses from the petitioners.

The purchases took place in batches between 2014 and September 2018 and total of 77 buses were purchased by the complainant from Scania. However, after purchase of buses, the complainant registered a complaint before the jurisdictional police on the ground that the buses had some malfunctioning in them, and that the complainant was burdened with numerous problems in the operation and maintenance of vehicles which has led to huge loss of finance and goodwill of his customers.

The registration of complaint drove the petitioners to the Court and an interim stay was granted by the High Court in June 2020. However, during the pendency of the subject petition, the complainant died. An application was filed by his legal representative (daughter), to come on record and prosecute the case further, which was objected by the petitioners.

The petitioners contended that the legal representative of an informant/complainant has no personal right to come on record. Arguing on the lines of “Actio personalis moritur cum persona”, the petitioners submitted that the complainant had registered the complaint on his personal right; and since the complainantis dead, the cause of action is dead as well.

Per contra, the respondent argued that the matter is at the stage of investigation and the informant, or his legal heir is a necessary party to the proceedings. The respondent prayed that the meaning of “victim” should be given a liberal meaning and permit legal heir of the complainant to come on record.

Observations: Perusing the facts and contentions presented, the Court observed that whether locus standi is alien to criminal jurisprudence and liberal interpretation of the word “victim” as defined in Section 2(wa), CrPC, are the main issues involved in the instant petition.

The Court further observed the definition of “victim” and “charge” as defined in the CrPC and referred to the decision of the Allahabad High Court in Suneel Kumar Singh v. State of U.P., 2019 SCC OnLine All 957, wherein the Court had stated that “the victim should not be kept aloof from the judicial process in which the wrongdoers are undergoing the process of ascertainment of his guilt for wrong committed by him”.

The Karnataka High Court also referred to a decision rendered by the Single Judge Bench of Madras High Court in Sathyavani Ponrani v. Samuel Raj, 2010 SCC OnLine Mad 3758, wherein the Court had concluded that, “The word ‘victim’ would also include a legitimate and genuine person representing a victim”. The Karnataka High Court further observed that the Madras High Court’s decision considered in detail the entire spectrum of law with regards to the concept of ‘victim’ and held that victim would be necessary to be heard and has locus to step into the shoes of the informant.

Decision: Based on the afore-stated observations, the Court noted that due to the acts of the petitioners, the proprietorship of SRS Travels suffered huge losses and the same were transferred to the legal representative who claims to be the only legal heir of the complainant.

It was concluded that even on a restrictive meaning of the word “victim”, in the peculiar facts of this case, the legal heir in the instant case must be permitted to come on record, as the matter is still at the stage of investigation and the police have not yet filed the charge sheet.

The Court also rejected the petitioner’s argument of “Actio personalis moritur cum persona” and held that in the peculiar facts of the instant case, as the cause continues, the legal heir who has stepped into the shoes of the complainant is entitled to agitate the cause brought up by complainant.

The Court therefore permitted the daughter of the complainant to come on record in place of the complainant as the legal heir as she has locus to continue the case on the allegations initiated by her father particularly in the light of the offences being under Sections 406, 420 and 120-B of the Penal Code, 1860.

[Scania Commercial Vehicles India Pvt. Ltd. v. State of Karnataka, 2022 SCC OnLine Kar 1590, decided on 03-09-2022]


Advocates who appeared in this case :

C.V. Nagesh, Sr. Advocate A/W Shwetha Ravishankar, Advocate, for the Petitioners;

K.P. Yashodha, HCGP FOR R1; Sandesh J. Chouta, SR. Advocate for Ismail M. Musba R2, Advocates for Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: While deciding the instant appeal for restoration assailing the order passed by the Trial Court wherein the case was dismissed due to non-prosecution, the Bench of P.N. Desai, J., observed that it is the duty of the Court to record plea of the accused by putting substance of the accusation against him. The complainant’s presence/ personal attendance at the time of recording the plea of the accused is not essential at all. It was held that simply in order to dispose of the cases, a complaint should not be dismissed when there is no necessity of the complainant’s presence.

The appellant (complainant before the Trial Court/JMFC) had filed a private complaint against the respondent/accused under the provisions of Section 138 of Negotiable Instruments Act, 1881. However, even after recording the sworn statement, the case was dismissed for non- prosecution as the complainant had not appeared before the Court.

Aggrieved with the said the dismissal, the appellant challenged the order via revision petition under Section 397, CrPC before the Sessions Judge, who while allowing the petition, directed to restore the case. The respondent/accused then filed a petition for quashment before the High Court and the same was allowed. Aggrieved with the High Court’s decision, an instant appeal was preferred.

The counsel for the appellant contended that the Trial Court did not dismiss the case on merits rather it was dismissed for default.

Per contra, the respondent argued that there was inadvertent delay in filing the appeal and that the appeal does not have any valid or detailed reasons/grounds showing the need for restoration.

Perusing the facts and contentions presented, the Court noted that the respondent/ accused did not appear before the Courts for many years. Though the case is of 2013, the respondent appeared in 2018 and when the matter was posted for recording of plea, the Trial Court/JMFC dismissed the matter due to non-appearance of the complainant.

The Court noted the delay of 44 days in filing the revision petition that was condoned by the Sessions Judge. The Court also noted the observations made in Collector (LA) v. Katiji, (1987) 2 SCC 107, wherein it was observed that, Judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so”.

The Court thus pointed out that the Trial Court/JMFC did not take into consideration that the respondent/ accused was continuously dodging the Courts for 5 years after the complaint was filed and kept the case pending for the want of his appearance, and then dismissed the complaint when the appellant failed to make an appearance.

The Court pointed out Section 256, CrPC which deals with ‘non-appearance or death of the complainant’ and noted that the Court has to exercise discretion judiciously and stated that the Section’s proviso clearly indicates that if the Court is of the opinion that personal attendance of the complainant is not necessary, then the Magistrate may dispense with the attendance and proceed with the case.

The Court noted that in the instant case, during the stage of recording of accused person’s plea, the appellant was represented by his counsel. At the stage of recording plea, a complainant’s presence is not essential. Therefore, the Trial Court ought not to have dismissed the case. Thus, the High Court allowed the instant appeal.

[Nagaraj v. Ishwar, 2022 SCC OnLine Kar 1586, decided on 30-09-2022]


Advocates who appeared in this case :

Santosh Patil, Advocate, for the Appellant;

M.A. Jagirdar and G.B. Yadav, Advocates, for the Respondent.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Sanjay Kishan Kaul and M.M. Sundresh, JJ., issued notice to BCI to respond to suggestions made before the Court at the earliest with regard to introducing changes in Bar examination.

The instant appeal was filed by Bar Council of India (BCI) to assail the impugned order of the Gujarat High Court wherein the High Court had read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment Rules) under Section 28(2)(d)  read with Section 24(1)(e) of the Advocates Act, 1961so as to read that a person may be either in full or part time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice.

Noticeably, Rule 1 and Rule 2 of the Bar Council of Gujarat (Enrollment) Rules provide prohibition from admission of a person who is otherwise qualified to be admitted as an advocate, but is either in full or part time service or employment or is engaged in any trade, business or profession, as an advocate. Noting the impracticality of the requirement to resign from work even before appearing for the exam, the High Court had remarked,

“The lady is in a helpless situation. Today, if she gives up her job being a single mother, and god forbid if she is unable to clear the All India Bar examination, then she would be left without any means of livelihood.”

As the case reached the Supreme Court, following interesting suggestions were made by the parties:

  1. Instead of reading down the Rules, suggestions were made to avoid link between enrollment and ability to take exams.
  2. It is a difficult decision of economic necessity for those in jobs to resign from job to write bar examination.
  3. It was debated by the BCI that persons in job wanting to take the Bar exam cannot be given provisional enrolment, however, a roll number can be issued to take the examination and that exam should be treated in furtherance the aspect of enrollment as and when it arises.
  4. A suggestion was made that succeeding in bar exam cannot give liberty to indefinitely postpone decision to seek enrollment or not. Thus, the result of the Bar exam, if successful, would hold good for three years within which the candidate can take the choice and if he continues his job for a longer period of time, he may be again required to take the Bar exam at the appropriate stage, as such long hiatus period may otherwise snap the link.
  5. Amicus Curiae K. V. Vishwanathan has suggested that there can be a viva exam for such candidates.
  6. Emphasis was also made on a more monitored process by the BCI to ensure that a law college which obtain recognition once, does not rest on that and maintain the parameters as set forth by the Bar Council.
  7. Instead of focusing on a rote ability, the Bar exam should focus on analytical thinking process to make the process of enrolment more meaningful.
  8. To restrain the candidates from taking advantage of random answers made without any consequence of a wrong answers, suggestion was made to introduce 1/4th negative mark for every wrong answer. However, the same need not be uniform throughout the paper but in certain nature of questions posed, and should be introduced in that particular section. Amicus Curiae pointed out that in UK the exams are based on the ‘Miller Pyramid Scheme’ of evaluation in all aspects of reading, writing, expression and communication of a prospective Bar entrance is evaluated. In USA some questions are marked with no provision of negative marking and there may be questions, in the very nature of things there, there may be more than one answer possible.
  9. Lastly, emphasis was also placed on evolving a fair system for juniors to find placement in chambers.

Considering the aforementioned suggestions, the Bench directed BCI to on the aforesaid process with expedition and issue instructions to S.N. Bhatt, senior counsel for BCI before next date of hearing. The matter is listed on 12-04-2022 for further hearing.

[Bar Council of India v. Twinkle Rahul Mangaonkar, C.A. No(s). 816-817 of 2022, decided on 15-03-2022]


Appearance by:

Amicus Curiae: K.V. Vishwanathan, Sr. Advocate

Others Present: R. Venkatraman, Amartya Sharan, Rahul Sangwan, M.G. Aravind, Chanakya Dwivedi, K. Sivagnanam, Advocates

For Appellant(s): S.N. Bhatt, Sr. Advocate, Durga Dutt, AOR, N.P.S. Panwar, D.P. Chaturvedi, Tarun Kumar Thakur, Parvati Bhat, Advocates

For Respondent(s): Anushree Prashit Kapadia, AOR, Megha Jani, Priyanka Rathi, Advocates


Kamini Sharma, Editorial Assistant has put this report together 

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Case BriefsSupreme Court

Supreme Court: In a crucial verdict, the bench of AK Goel and UU Lalit, JJ held that foreign law firms/companies or foreign lawyers cannot practice profession of law in India either in the litigation or in nonlitigation side.

The Court explained:

“practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts of non-litigation practice which is part of practice of law. Scheme in Chapter-IV of the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies to non-litigation work also. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner also.”

“Fly in and fly out” basis:

  • Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis. A casual visit for giving advice may not be covered by the expression ‘practice’.
  • In case of a dispute whether a foreign lawyer was limiting himself to “fly in and fly out” on casual basis for the purpose of giving legal advice to their clients in India regarding foreign law or their own system of law and on diverse international legal issues or whether in substance he was doing practice which is prohibited can be determined by the Bar Council of India.
  • Bar Council of India or Union of India will be at liberty to make appropriate Rules in this regard including extending Code of Ethics being applicable even to such cases.

Bar on conducting arbitration in India:

  • There is no absolute right of the foreign lawyer to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.
  • If the Rules of Institutional Arbitration apply or the matter is covered by the provisions of the Arbitration Act, foreign lawyers may not be debarred from conducting arbitration proceedings arising out of international commercial arbitration in view of Sections 32 and 33 of the Advocates Act. However, they will be governed by code of conduct applicable to the legal profession in India.
  • Bar Council of India or the Union of India are at liberty to frame rules in this regard.

Services provided by BPO Companies:

  • BPO companies providing range of customized and integrated services and functions to its customers may not violate the provisions of the Advocates Act, only if the activities in pith and substance do not amount to practice of law. The manner in which they are styled may not be conclusive.
  • If their services do not directly or indirectly amount to practice of law, the Advocates Act may not apply. This is a matter which may have to be dealt with on case to case basis having regard to a fact situation

The Court was hearing the appeal arising from the Judgment of Madras High Court in A.K. Balaji v. Government of India, 2012 SCC OnLine Mad 723 : AIR 2012 Mad 124 and Bombay High Court in Lawyers Collective v. Bar Council of India, 2009 SCC OnLine Bom 2028 : 2010 (2) Mah LJ 726 on the issue of whether foreign law firms/lawyers are permitted to practice in India. [Bar Council of India v. A.K. Balaji, 2018 SCC OnLine SC 214, decided on 13.03.2018]

Case BriefsHigh Courts

Kerala High Court: In an appeal filed against a decision of the trial court which declared that the people belonging to the Sambava community had successfully established that burial of dead bodies in the property under question was their customary right, a Single Judge Bench of K. Ramakrishnan, J. upheld the lower court’s decision. In the suit before the lower court, the appellant had contended that the property belonging to him was being used for burial grounds without the existence of any right and sought for injunction. The respondents contended that the aforesaid property was being used as a burial ground to bury the dead bodies of the members of the Sambava community of that locality since time immemorial and they had subsequently acquired a customary right for the same.

The issues before the Court were whether the respondents herein had successfully established the presence of ingredients that grant customary easement over a property and whether the lower court was justified in declaring such usage of property to be a custom without considering the question of unreasonableness. The Court, relying on a plethora of previous decisions with respect to both the issues established that the right to use a portion of land as burial ground by persons belonging to a community in a locality (instead of being claimed by a definite person) is a customary right and not easement and that a practice to be recognized as a custom “should be immemorial in origin, certain and reasonable in nature and continuous in use.”

Basing the decision on the examination of two Commissioners, reports submitted by an executive officer and enquiries made by the District Colletor, the Court affirmed the decision of the lower court that the respondents had a customary right over the property for the purpose of burying their dead as a customary right. [Devassykutty v. Ayyappan, 2017 SCC OnLine Ker 8164, decided on 21.06.2017]