Transparency in the Functioning of the “Committee for Reforms in Criminal Laws”- Senior Lawyer’s and Former Judge’s urge Ministry of Home Affairs (MHA)- “Lack Diversity”

A letter signed by lawyers and former judges raises concerns that the present Committee “lacks diversity both in terms of the social identity of the members, as well as their professional background and experience.”

The Criminal Reforms Committee recently constituted by the Union Ministry of Home Affairs (MHA) has been urged by lawyers and former judges to ensure diversity and transparency in its functioning by disclosing details regarding the terms of its reference and how it proposes to function.

A letter signed by lawyers, academics, and former judges and bureaucrats working with the criminal justice system has raised concerns that the present Committee “lacks diversity both in terms of the social identity of the members, as well as their professional background and experience.

The five-member Committee was constituted earlier this year under the Chairmanship of National Law University, Delhi Vice-Chancellor Prof (Dr) Ranbir Singh.

The letter addressed to the Committee members points out that “unlike previous law reform efforts of similar magnitude, this Committee does not consist of full-time members.

This, the letter notes, is despite the existence of the 22nd Law Commission of India, which has the mandate to recommend law reform, although it remains understaffed.

The Criminal Reforms Committee has now been called on to “demonstrate its bonafides and its commitment to a rigorous law reform exercise by ensuring full transparency regarding its constitution and its functioning.”

In particular, the Committee has been urged to provide the following details which have not been published thus far on the Committee’s website:

  • The MHA notification constituting the Committee, and specifically any communication detailing the Terms of Reference of the Committee and the time frame provided for completing this exercise.
  • Any project proposal or concept note submitted by National Law University, Delhi or its members or research centres, to the MHA or to any other competent authority with respect to the setting up or functioning of this Committee
  • Details on whether the Committee will work independently of the MHA or any other ministry. Specifically, will the report of the Committee be finalized in consultation with, or after the approval of the MHA or any other ministry?

Given the broad mandate of the Committee, it has also been asserted that it is imperative to take steps to ensure that there is meaningful public engagement while framing the criminal law reforms. To this end, the letter has also called for the following measures to be taken by the Committee so that stakeholders may effectively participate in the process:

  • Release upfront, in one single tranche, the list of all questions/issues on which the Committee will be seeking inputs .
  • Provide at least 3 months time for stakeholders to respond to all questions/issues.
  • Ensure that the questionnaires are made available in all major Indian languages.
  • Remove word limits for responding to the questions: A 200-word limit, or any other word limit, in response to complex policy questions does not allow for any robust engagement with the questions, the letter notes.
  • Include more expertise and diversity: Create sub-committees with outside experts and other consultants with established track records in the field of criminal justice who can redress the lack of diversity and experience in the Committee’s current composition.
  • Provide additional mechanisms for inputs.
  • Commit to transparency and greater stakeholder engagement in the functioning of the Committee.

To this end, it has been urged that the Committee also agrees to the following:

  • Making all responses received by the Committee publicly available on the website of the Committee.
  • Making public and ensuring wide dissemination of the Committee’s draft report for public feedback on the website of the Committee for at least one month, with advance notice on when the report will be made available for feedback.

The signatories to the letter include former Supreme Court judges Aftab Alam, Madan Lokur and Gopala Gowda, former Delhi High Court Cheif Justice AP Shah, 10 former judges of various High Courts, a host of lawyers including Senior Advocates, academics, and former bureaucrats.

Recently, the Bar Council of Delhi had addressed a letter to the Union Home Minister urging that representatives from Bar Councils also be included in the Central Reforms Committee given that, “the legal community in India has many well experienced experts in criminal law and by virtue of their dealing with criminal cases extensively, they can help the government for bringing a better system and suggest suitable amendments.”

Read the Letter

Inordinate force has become routine in India: Plea in Supreme court seeks guidelines to fill legal lacuna in dealing with Custodial Death/Torture/Rape

Jeyaraj and his son Bennix died while in the custody of the Sathankulam Police following their arrest on June 19 citing a violation of the COVID-19 curfew

The plea before the Supreme Court notes that “Custodial Torture/Deaths/Rapes are a chilling reminder of how the excessive use of force has become a routine in India” leading to deaths.

Following the custodial torture and death of P Jayaraj and J Bennix, a plea in the Supreme Court urges it to issue directions or lay guidelines to fill the legal lacunae surrounding custodial deaths, tortures and rapes.

The plea filed by an NGO, People’s Charioteer Organization through Advocate Devesh Saxena and drawn by Advocate Shashwat Anand calls for guidelines from Court concerning custodial deaths, rapes and tortures to be passed by invoking the inherent jurisdiction of the Court under Article 142.

The petition additionally prays for a direction to the Centre so that an independent committee may be formed and monitored by the Supreme Court, tasked with reviewing the existing legal framework around custodial deaths, tortures and rapes.

The father-son duo, P Jayaraj and J Bennix had been detained by the Sathankulam police on June 19 for keeping their mobile phone shop open beyond the permissible hours during the COVID-19 lockdown.

The two men were tortured in custody. Some reports indicated that they were sexually abused, which led to profuse bleeding. While the Tamil Nadu government initially tried to say that the deaths had occurred due to natural causes, public outrage and the High Court’s attention led to an eventual transfer of the case to the CBI.

The plea in Supreme Court notes that “Custodial Torture/Deaths/Rapes are a chilling reminder of how the excessive use of force has become a routine in India” leading to deaths.

“It sends an unfortunate chilling message about how broken the system is and the failure of police and political leaders to establish accountability measures for those who are found guilty of custodial crimes.”

On the specific legislative gap in this area, the plea states that Anti-Torture Bills, such as Prevention of Torture Bill, 2010, subsequently amended further by The Prevention of Torture Bill, 2017 were subjected to deliberations in the past. However, neither bill came to be passed.

Furthermore the petition takes note of the statement by the Executive Committee of Commonwealth Human Rights Initiative (CHRI) on the deaths of Jayaraj and Bennix, where it has been stated that the deaths were an “acute demonstration of a broken criminal justice system.” With this statement, the Government of India had also been urged to ratify the United Nations Convention Against Torture, 1985 to which India is already a signatory since 1997.

Death of National Law University Jodhpur student in 2017: Supreme Court asks Rajasthan Police to complete investigation in two months

Supreme court of India

The Court pulled up the state police for not having finished the investigation despite an order from the Rajasthan High Court to this effect passed in February this year.

The Supreme Court today directed the Rajasthan Police to complete its probe into the death of a National Law University, Jodhpur student that took place in 2017 [Neetu Kumar Nagaich v. State of Rajasthan and Ors].

The Bench of Justices Rohinton Nariman, Navin Sinha, and BR Gavai was hearing a petition filed by the deceased student’s mother seeking a transfer of the probe from the Rajasthan Police to the Central Bureau of Investigation (CBI).

The Court pulled up the state police for not having finished the investigation despite an order from the Rajasthan High Court to this effect passed in February this year. The Apex Court has now mandated that the investigation be complete in two months. The matter will be heard after two months.

In the previous hearing, the Court had issued notice to the State of Rajasthan and had said it would first hear the police as regards the status of the investigation and why it had not progressed in three years since the incident took place.

The petition filed by the deceased student’s mother raises various apprehensions as regards the investigation in the case and goes on to flag a number of purported lapses on the police’s part. Owing to these lapses, the petitioner moved the Supreme Court seeking a transfer of the probe to the CBI.

In her plea filed before the Supreme Court, the petitioner says that there is an “inescapable reasonable apprehension that the lackadaisical and negligent investigation and prosecution of the instant FIR is a result of probable collusion to shield some high, mighty and influential person(s).”

It is claimed that the FIR in the case was not registered for a period of 10 months from the date of the incident, and was reluctantly filed thereafter. Three years since, the investigation is at a standstill with no progress and no chargesheet filed in the case. The petitioner alleges that there have been no efforts made by the police to apprehend the offenders. It delves into the aspects of the investigation that the police are yet to explore.

In 2019, the Rajasthan High Court, on being approached by the petitioner, directed the constitution of a Special Investigation team (SIT) to probe the matter. However, in February this year, the petition before the High Court was disposed of, with the Court recording the submissions made by the investigating agency. The plea states,

“The Hon’ble High Court has indirectly condoned the callous manner in which the investigation was being conducted, and merely directed the Investigating Officer to thoroughly investigate, collect any other evidence which might possibly be available for solving the alleged crime, and file the result of investigation in the court concerned.”

Vikrant Nagaich, a third-year law student of NLU Jodhpur, was found dead under mysterious circumstances in August 2017. Nagaich had reportedly gone out with this friends to an establishment near the campus. While his friends returned to the campus, he told them that he would come later. When he was contacted later in the night, he assured his friends that he would come back soon. His body was discovered the next morning.NLU Jodhpur student found dead near campus

The petitioner was represented by Advocate Sunil Fernandes and the petition is filed through Advocate Astha Sharma. State of Rajasthan was represented by Dr. Manish Singhvi.

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India has one of lowest COVID-19 cases per million in the world

Recovered cases nearly 4.4 lakhs, exceed active cases by more than 1.8 lakh

National Recovery Rate crosses 61%

The WHO Situation Report 168 dated 6thJuly, 2020 shows that India has one of the lowest cases of COVID-19 per million population. India’s cases per million population is 505.37 while the global average is at 1453.25.

The Chile has witnessed 15,459.8 cases of COVID-19 per million population, while Peru, US, Brazil and Spain have 9070.8, 8560.5, 7419.1 and 5358.7 cases per million population respectively.

The WHO Situation Report also shows that India has one of the lowest deaths per million population. India’s cases of death per million population is 14.27 while the global average is more than its four times, at 68.29.

The UK has witnessed 651.4 cases of COVID-19 related deaths per million population, while the metric for Spain, Italy, France and US is 607.1, 576.6, 456.7 and 391.0 respectively.

India has ramped up the hospital infrastructure to adequately and effectively manage the cases. The preparedness included arrangement of oxygen support, ICU and ventilator facilities. As on 7th July 2020, there are 1201 Dedicated COVID Hospitals, 2611 Dedicated COVID Healthcare Centres and 9909 COVID Care Centres to look after COVID patients from those with very severe to very mild symptoms. Such level of preparedness has shown results in continuously improving the Recovery Rate and resulting in low Case Fatality Rate.

Early detection and timely effective clinical management of COVID-19 cases have resulted in increasing daily recoveries. During the last 24 hours, a total of 15,515 COVID-19 patients have been cured, taking the cumulative figure of recovered cases among COVID-19 patients to 4,39,947 as of today.

Coordinated efforts at all levels of the national and State governments for prevention, containment and management of COVID-19 are showing encouraging results with consistently increasing gap between Recoveries and Active cases. As on date, there are 1,80,390 recovered cases more than the active COVID-19 cases. The recovery rate among COVID-19 patients has increased to 61.13% today.

Presently, there are 2,59,557 active cases and all are under medical supervision.

Enhanced focus on “Test, Trace, Treat”, further augmented with various measures has facilitated widespread COVID-19 testing by States/UTs. This has resulted in more than 2 lakh tests being conducted per day.  During the last 24 hours 2,41,430 samples have been tested. With this hike, the nationwide samples tested for COVID-19 stands at 1,02,11,092 as of now.

The testing lab network continues to expand with more number of labs being added in various States/lUTs. With 793 labs in the government sector and 322 private labs, there are as many as 1115 labs in the country.

These are:

• Real-Time RT PCR based testing labs: 598 (Govt: 372 + Private: 226)

• TrueNat based testing labs: 423 (Govt: 388 + Private: 35)

• CBNAAT based testing labs: 94 (Govt: 33 + Private: 61)

For all authentic & updated information on COVID-19 related technical issues, guidelines & advisories please regularly visit: https://www.mohfw.gov.in/ and @MoHFW_INDIA.

Technical queries related to COVID-19 may be sent to technicalquery.covid19@gov.in and other queries on ncov2019@gov.in and @CovidIndiaSeva .

In case of any queries on COVID-19, please call at the Ministry of Health & Family Welfare helpline no.: +91-11-23978046 or 1075 (Toll-free). List of helpline numbers of States/UTs on COVID-19 is also available at https://www.mohfw.gov.in/pdf/coronvavirushelplinenumber.pdf .

Surrender cannot be construed as consent for sexual intercourse: Kerala High court upholds conviction of 67-year-old man for rape of minor girl

The Kerala High Court recently held that a woman’s resignation to sexual intercourse when caused by fear or duress cannot be termed as “consent” as understood in law.

The Kerala High Court recently held that a woman’s resignation to sexual intercourse when caused by fear or duress cannot be termed as “consent” as understood in law (Thankappan v. State of Kerala).”In other words, in a country like ours committed to gender equality, only sexual intercourse which are welcomed could be construed as not violative of the rights of the victim, and accepted as consensual.”Justice PB Suresh Kumar observed.

Justice PB Suresh Kumar was hearing an appeal by a 67-year-old man convicted of having sexually assaulted and impregnated a minor from a scheduled caste.

The complainant, who was around 14 years of age when the act was committed, used to regularly visit the home of the accused to watch television. The man had a granddaughter who was around the same age as the complainant. One day, when the complainant was at the home of the accused, he forcibly had sexual intercourse with her. Just before the act, he had sent his granddaughter out to do some “shopping”.

Despite the complainant’s attempts to yell, the accused continued, warning her against revealing his actions to anyone. The accused continued to have intercourse with her on other occasions as well, which the complainant did not disclose to anyone for fear of her mother and sister being brought to harm.

While the complainant averred that his act was without her volition, the man through his counsel argued that the act was consensual because “she used to go to the house of the accused as and when desired or required by the accused and had sex with him.

The Court, however, observed, “In a situation of this nature, according to me, the conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse.

Since the case arose prior to the amendments to Criminal Law made in 2013 and amendments to the Scheduled Castes and Tribes (Prevention of Atrocities) Act, the laws in question were the unamended Section 375 of the Indian Penal Code (Rape) and the pre-2015 Scheduled Castes and Tribes (Prevention of Atrocities) Act.

In deciding the appeal, Justice Kumar held that consent in the face of fear, duress, or compulsion could not be termed as ‘lawful consent.’ He said:

“… mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law…”

The judgment further states,”Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.”Kerala High Court

Quoting from the Convention on the Elimination of Violence against Women, the Judge notes that sexual assault has historically been manifestations of unequal power relations between men and women, which has led to the former’s domination of the latter. Thus, sexual assaults are crimes of gender inequality, the Judge rules.

The Court cited the American case, Meritor Savings Bank, FSB v. Mechelle Vinson, to state that that ‘welcomeness’ and not consent is the standard that sex is required to meet so as not to violate the rights of women consistent with gender equality.

From the facts of the case, the Court concluded that there was nothing on record to prove the existence of “consent” as argued by the accused. The complainant had categorically stated that the accused had forced himself upon her in the first instance, the judgment records.

Rebutting the accused’s contention of his subsequent acts of intercourse being consensual, Court stated:”Insofar as it is established that the first instance of sexual intercourse spoken to by the victim girl was not consensual, it is immaterial as to whether the subsequent instances of sexual intercourse was consensual.”Kerala High Court

Since the accused was older and able to dominate the will of the complainant by reason of his being a “fatherly figure”, the Court observed,

“.. the victim girl was under a social and psychological hierarchical threat. In a situation of this nature, … the conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse.”

Referring to American Psychiatrist Judith Lewis Herman’s observations on rape survivors, Justice Kumar ends his judgment with a quote from her book “Trauma and Recovery”, where she writes,

“When a person is completely powerless, and any form of resistance is futile, she may go into a state of surrender. The system of self-defense shuts down entirely. The helpless person escapes from her situation not by action in the real world but rather by altering her state of consciousness…..”

The appeal was, therefore, dismissed.

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An accused cannot claim to be released on bail only on the ground of grant of bail to other co-accused: Rajasthan High Court- [Read Judgement]

Rajasthan High Court

The Rajasthan High Court has stated that parity with other accused is not the sole ground for a grant of bail, and the role of the accused and other considerations have to factored into the analysis.

The Jaipur Bench of the Rajasthan High Court yesterday ruled that parity of accused with other accused persons is not the sole ground upon which bail may be granted.

The Court, referring to prior judicial pronouncements, affirmed that the role of the particular accused and “other relevant factors” were to be considered when deciding a concession of bail (Dr. Ashok Singhvi v. Union of India and Mohammad Rashid Sheikh v. Ummanand Vijay, Assistant Director, ED).

The bail applicants were co-accused in a mining scam that allegedly materialised when one, Dr Ashok Singhvi (also a bail applicant) was Principal Secretary (Mines) in the Government of Rajasthan.

The “conspiracy” was unearthed in 2015 when the Rajasthan Anti-Corruption Bureau conducted a raid that revealed bribery and an amount of Rs 2.55 crores that was obtained illegally.

The accused were then charged under provisions of the Prevention of Money Laundering Act (Money-Laundering Act).

The counsel for the accused, Advocates Anil Upman and Deepak Chauhan, argued that other co-accused in the conspiracy had been granted bail and that they had cooperated in the investigations completed so far.

The State’s Counsel, Additional Solicitor-General RD Rastogi and Advocate Anand Sharma, however, urged the Court to reject the application for bail. In their arguments, the State referred to the legal position that bail in economic offences should be considered on “distinct criteria” as they affect the economy as a whole and destroy the very basic fibre of society.

Further, the Money-Laundering Act disallows a grant of bail when a prima facie case is made out against persons accused of offences under the Act, they argued further. Since the accused were “kingpins” in the conspiracy, they were placed-differently from the other accused and thus not entitled to bail, the State submitted.

The Single-Bench of Justice Satish Kumar Sharma accepted the State’s submissions and declined the grant of bail, stating that:“… the case of present applicants is not similar to those co-accused persons looking to their major role in the alleged crime, the evidence collected against them, their conduct of evading trial and other relevant factors.”Justice Satish Kumar Sharma

“… keeping in view the specific major role of the present accused applicants, strong evidence available against them, their conduct to evade the trial, probable impact on the Society on granting bail to present accused applicants having distinct status in this economic offence of severe nature of rampant corruption in Government departments and all other relevant factors as envisaged in PML Act, as well as in above referred judicial pronouncements, both the present applicants do not deserve to be enlarged on bail”, the Court said.

While it agreed that a prima facie case has been made out against the accused, the Court emphasized it has not expressed any opinion on the merits of the case.

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Pulling down leggings of a child victim and touching of thighs is sexual assault under Section 7, The Protection of Children from Sexual Offences (POCSO) Act, 2012: Delhi High Court

Pulling down the leggings of a child victim and touching of the thighs is evident of sexual intent and accordingly constitutes an offence of sexual assault in terms of Section 7 of Protection of Children from Sexual Offences Act, 2012, Delhi High Court has held (Rajender vs State).

The judgment was passed by a single Judge Bench of Justice Sanjeev Sachdeva against an order of conviction passed by the Trial court against the Appellant, Rajender.

The Trial Court had convicted the Appellant for the offence under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

He was sentenced to undergo Rigorous Imprisonment for a period of 5 years and to pay a fine of Rs. 10,000.

According to the Prosecution’s case, at about 2:30 pm on August 21, 2015, the victim girl, then aged 9 years, was sitting in her house with her brother (then aged 7 years) when the Appellant came and enquired about the presence of the mother in the house.

When the child victim informed that her mother was away to her job, the Appellant came inside the house and removed her leggings and started feeling/rubbing his hand on her thighs.

The victim became frightened and ultimately managed to run out of the house.

At about 3.30 pm, the Appellant once again came into the house of the victim and asked the victim to play songs on TV. The victim told the Appellant to go away upon which the Appellant left.

Thereafter, at about 4.00 pm when the victim was going to her tuition class, the Appellant once again met her on the way and asked her as to what time she would return

At about 8.00 pm, when the victim came home, she informed her mother about the incident and thereafter the police was called.

Based on the evidence led by the Prosecution, the Trial Court found the Appellant guilty of the offence under Section 10 of the POCSO.

In appeal before the High Court, the Appellant contended that the entire complaint was an offshoot of a loan transaction between the Appellant and the mother of the victim.

It was argued that there was discrepancy in the statement of the victim and that the Prosecution’s story was not believable.

The Prosecution argued that the testimonies of the child victim and her brother were of sterling quality and there was no material to show that there was ever any loan transaction between the Appellant and the family of the child victim.

The Court recorded that the Prosecution had produced 8 witnesses and perused the testimonies of the two children and their mother as recorded by the Trial Court.

The Court concluded that the testimony of the children was of sterling quality and no discrepancy had been pointed out to disbelieve the testimony of the two children.

The child victim was consistent in her rukka statement, her statement recorded under Section 164 CrPC as well as in the testimony before the Trial Court, the Court noted.

The Court observed that the Appellant had not been able to show any reason as to why the testimony of the two children should be disbelieved.

Stating that under Section 29 of POCSO Act, a statutory presumption was raised against the accused, the Court held,”Accused has not been able to dispel the presumption or discharge the onus. It is established from the testimony of the child victim and her brother that the appellant/accused had pulled down the leggings of the child and touched her thighs. Pulling down the leggings of the child victim and touching of the thighs is evident of sexual intent and accordingly constitutes an offence of sexual assault in terms of Section 7 of POCSO Act.”Delhi High Court

In terms of Section 9 (m) of the POCSO Act, since the sexual assault was committed on a child below the age of 12, it would amount to aggravated sexual assault punishable under Section 10 of POCSO Act, it added.

The Court thus opined that nothing had been pointed by the Appellant to show that the conclusion arrived at by the Trial Court was erroneous or suffered from any material irregularity.

I find that the trial court has passed a well-reasoned order after examining the evidence and the law. I find no infirmity in the view taken by the trial court in holding the appellant guilty under Section 10 of POCSO Act.”, it stated.

The appeal was accordingly dismissed.

The Appellant was represented by DHCLSC counsel, Advocate Anuj Kapoor.

APP Raghuvinder Verma appeared for Prosecution.

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Hindustan Unilever Limited gets ad-interim relief from Bombay High Court over Trademark tussle for “Glow & Handsome” with Emami- [Read Order]

Hindustan Unilever Limited

Emami (which owns Fair & Handsome) is now required to give written notice 7 days in advance before it can initiate any legal proceeding against HUL (which owns Fair & Lovely) over the trademark “Glow & Handsome.”

The Bombay High Court on Monday directed that Emami Limited should give Hindustan Unilever Limited (HUL) prior written notice seven days in advance before it may choose to initiate any legal proceedings over the Trademark for “Glow & Handsome” with respect to skin lightening products (Hindustan Unilever Limited v. Emami Limited).

Respoding to a plea by HUL, the Court directed that Emamni should give “at least 7 clear days prior written notice” to HUL “before initiating any legal proceedings in any court or claiming any interim or ad-interim reliefs against the Plaintiff as threatened in the statements issued / made on behalf of the Defendant (Emami) against the Plaintiff’s use of the trademark ‘GLOW & HANDSOME’.”

While granting this ad-interim relief in HUL’s favour, Justice BP Colabawalla observed,”Considering the facts and circumstances of the present case, I believe that no harm or prejudice would be caused to the Defendant (Emami) if the said limited relief is granted.”Bombay High Court

HUL recently announced its decision to rebrand its skin lightening products Fair & Lovely (for women) and Men’s Fair & Lovely (for men) to Glow & Lovely and Glow & Handsome, respectively.

The move prompted swift press statements threatening legal action from Emami, which had launched its rebranded skin lightening product “Glow & Handsome” last week. Earlier the product was named Fair & Handsome.

This, in turn, led HUL to move an urgent application before the Bombay High Court asserting that HUL had made applications to trademark Glow & Lovely and Glow & Handsome as early as September 2018 (i.e.before Emami is stated to have filed applications to trademark Glow & Handsome).

Whereas the Registrar of Trademarks refused to allow the registration of Glow & Handsome as HUL’s trademark in 2019, an appeal against this decision was made which is still pending before the Intellectual Property Appellate Board. Thereafter, it is submitted that another set of applications were made in June this year to trademark the labels of Glow & Lovely and Glow & Handsome.

In any case, HUL contended that it was the prior adopter and user of the trademark ‘Glow & Handsome.’ It was argued that since Emami has not used the said trademark, Emami is not entitled to disturb HUL’s “honest and bonafide use” of Glow & Handsome which was HUL’s “prior adopted trade mark.”

On Monday, Justice Colabawalla found prima facie merit in HUL’s plea and granted it ad-interim relief in the matter. The Court observed,

“Prima facie it does appear that having filed its trade mark application in September 2018 and subsequently on 25th June 2020 for the mark ‘GLOW & HANDSOME’, the Plaintiff (HUL) is the prior adopter of the said mark. Further, from a perusal of the newspaper cutting at Exhibit-S to the Plaint, it prima facie appears that the Plaintiff has already started commercial advertisements in respect of the trademark ‘GLOW & HANDSOME’.”

The Court further guaged from press reports that it prima facie appeared that Emami had adopted the “Glow & Handsome” mark for the first time on June 25, and that it has not used the same commercially till date.

As such, Jusice Colabawalla went on to note that, “The statements made by the Defendant (Emami) and published in various newspapers annexed to the Plaint do amount to a threat, however, whether they are unlawful or groundless, that is something that will have to be decided after hearing both the sides.”

The matter has been posted to be taken up next on July 27.

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Ministry of Home Affairs permits conduct of examinations by Universities and Institutions

Ministry of Home affairs

Ministry of Home Affairs, in a letter to Union Higher Education Secretary, today permitted conduct of examinations by Universities and Institutions.  The final Term Examinations are to be compulsorily conducted as per the UGC Guidelines on Examinations and Academic Calendar for the Universities; and as per the Standard Operating Procedure (SOP) approved by the Union Ministry of Health & Family Welfare.

Press Release

Police cannot register FIR under Section 188 of IPC: Madras HighCourt quashes case against Anti-CAA protestor [Read Order]

The case concerned an activist who was arrested on allegations that he had protested against the Citizenship (Amendment) Act, 2019 (CAA) on a public road without permission last January.

While quashing a criminal case filed against an Anti-CAA protestor, the Madras High Court was recently prompted to reiterate that the police cannot by itself register an FIR for offences falling under Section 188 of the Indian Penal Code (Shamsul Huda Bakavi v. State and ors).

The case concerned an activist who was arrested on allegations that he had protested against the Citizenship (Amendment) Act, 2019 (CAA) on a public road without permission last January. An FIR was filed thereafter against him, citing charges under Sections 143 and 188 of the Indian Penal Code (IPC).

Section 188, IPC deals with the offence of disobeying orders promulgated by a public servant, whereas Section 143, IPC deals with punishment for the offence of participating in an unlawful assembly.

Pertinently, Section 195(1)(a) of the Code of Criminal Procedure (CrPC) bars courts from taking cognizance of an offence under Sections 172 to 188, IPC unless there is a complaint in writing from the public servant concerned or of some other public servant to whom he is administratively subordinate.

“Therefore, it is very clear that for taking cognizance of the offences under Section 188 of IPC, the public servant should lodge a complaint in writing and other than that no Court has power to take cognizance”, Justice GK Ilanthiraiyan observed in his June 26 order.
Notably, the Court also referred to the cases of Mahaboob Basha v. Sambanda Reddiar and others and Jeevanandham and others v. State rep. by the Inspector of Police, Karur District. In the latter case, the Madras High Court had already issued guidelines with respect to when cases under Sections 172 to 188 of the IPC can be registered.

In that case, the Court had clarified that “A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.”

Other guidelines issued by the Court in that case included that:

A Police Officer by virtue of the powers conferred under Section 41, CrPC may carry out arrest when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC.

The role of the Police Officer will be confined only to the preventive action of arrest (as stipulated under Section 41, CrPC) and immediately thereafter, he has to inform about the same to the public servant concerned/ authorised.

Such public servant may then give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC.

In the instant case, however, the Court observed that the police had registered the FIR citing Section 188, IPC against the anti-CAA protestor without being competent to do so. Further, the Judge did not find anything on record to indicate that the petitioner had participated in an unlawful assembly.

The Court, therefore, quashed the case, observing that,

“He (the police officer) is not a competent person to register FIR for the offences under Section 188 of IPC. As such, the First Information Report or final report is liable to be quashed for the offences under Section 188 of IPC. Further, the complaint does not even state as to how the protest formed by the petitioner and others is an unlawful protest and does not satisfy the requirements of Section 143 of IPC. Therefore, the final report cannot be sustained and it is liable to be quashed.”

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