A    INTRODUCTION

1. The object of Section 197 Cr.P.C is to save public servants from frivolous prosecution. The Section gives qualified protection and does not apply to all public servants and to all offences (vide Afzalur Rahman v. King Emperor AIR 1943 FC 18). 

2. Prosecution launched without a valid sanction is a nullity (Basdeo Agarwalla V. Emperor AIR 1945 FC 16 approved in Yusofalli Mulla Noorbhoy V. King AIR 1949 PC 264).

3. Trial without sanction amounts to trial without jurisdiction. (R.S. Nayak v. A.R.Antulay (1984) 2 SCC 183 = AIR 1984 SC 684 - 5 Judges).

B    SECTION 197 Cr.P.C. AND SECTION 19 P.C. ACT,1988 COMPARED

4. The following is a comparative table showing Section 197 Cr.P.C and Section 19 of the P.C. Act, 1988 :-

For distinction between the two Sections, refer to Para 22 below.

C    THE MEANING OF REMOVABLE FROM OFFICE BY OR WITH THE SANCTION OF THE GOVERNMENT

5. If as per the Rules and Regulations governing the Government servant, a lower officer of the Government has been invested with the power to appoint or dismiss such Government servant, then it cannot be said that such Government Servant is removable by or with the sanction of the Government so as to necessitate a prosecution sanction under Section 197 Cr.P.C. Section 197 Cr.P.C. does not contemplate prosecution sanction by a delegated authority competent to remove the Government servant from office. When some lower authority is by law, or rule or order, empowered to remove a public servant from office, then such public servant cannot be said to be one removable by or with the sanction of the Government so as to necessitate prosecution sanction under section 197 Cr.P.C or section 19 of P.C. Act, 1988. (Vide Nirendra Natha Sarkar v. State of Assam (1985 Crl.L.J. NOC 21 (Gauhati); Sakuntala Bai v. Venkata Krishna Reddy - 1952 Crl.L.J.1295 (Madras); Pichai Pillai v. Balasundara Mudaly - AIR 1935 Madras 442; Afzalur Rahman and Others v. Emperor - AIR 1943 FC 18 ; Sant Kumar v. State of Punjab - 2003 Crl.L.J. 2949).

Thus, an inspector of police or a sub-inspector of police or a police constable, if removable by the Inspector General of Police or by the Superintendent of Police, cannot be said to be removable by or with the sanction of the Government and hence no prosecution sanction under Section 197 Cr.P.C is necessary. (vide Nagraj v. State of Mysore AIR 1964 SC 269=1964(1) Cr.L.J 161; Fakhruzamma v. State of Jharkhand (2013) 15 SCC 552; Harikumar B v. Suresh @ Karupooru Suresh and Another 2014 (2) KLT 1028.) Where an officer is removable by the Railway Board, no sanction is necessary since the Board is neither the Central or State Government. (vide K.N. Shukla v. Navnit Lal Manilal Bhatt AIR 1967 SC 1331=1967 Cr.L.J. 1200-5 Judges). The decision of the Federal Court in Afzalur Rahman’s case (supra) was approved and followed in this decision.

D      “PUBLIC SERVANT” UNDER THE SECTION 197 Cr.P.C AND SECTION 19 OF P.C. ACT

6. DEFINITION OF PUBLIC SERVANT

7. Explaining and distinguishing the decision in State of Maharashtra v. Laljith Rajshi Shah (2002) 2 SCC 699, the Apex Court held that the definition of “public servant” in Section 21 IPC is of no relevance under the P.C Act, 1988. (vide State of Maharashtra v. Prabhakarrrao (2002) 7 SCC 636). But Section 2 of the Prevention of Corruption Act, 1947 had adopted the definition of “Public Servant” in Section 21 of the Indian Penal Code. In order to curb effectively bribery and corruption not only in government establishments and departments but also in other semi-governmental authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of “public servant” has been given in clause (c) of Section 2 of the 1988 Act. When the legislature has used such a comprehensive definition of “public servant” to achieve the purpose of punishing and curbing the growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of the definition clause by a construction which would be against the spirit of the statute. The definition of “public servant”, therefore, deserved a wide construction. Hence, in construing the definition of “public servant” in clause (c) of Section 2 of the 1988 Act, the Court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view, the Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. (vide Para’s 11 and 12 of Govt of A.P v. P. Venku Reddy (2002) 7 SCC 631= AIR 2002 SC 3346; State of M.P v. Shri. Ram Singh (2000) 5 SCC 88).

Justice V.Ramkumar is a Former Judge, High Court of Kerala.

The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same.

Former Calcutta High Court Judge Justice CS Karnan who was convicted by the Supreme Court for contempt of Court, has been arrested by West Bengal Police from Coimbatore, Tamil Nadu.

He has been evading arrest since May 9, retired on June 12, became the first High Court Judge to have retired while still absconding.

This was in aftermath of an order passed on May 9, wherein the 7 Judge SC Bench had sentenced him to 6 months in jail after finding him guilty of contempt of Court. “On merits, we are of the considered view, that Sri Justice C.S. Karnan, has committed contempt of the judiciary. His actions constitute contempt of this Court, and of the judiciary of the gravest nature. Having found him guilty of committing contempt, we convict him accordingly. We are satisfied to punish him by sentencing him to imprisonment for six months. As a consequence, the contemnor shall not perform any administrative or judicial functions,” the 7 judge bench headed by Chief Justice J.S. Khehar had then observed.

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BJP Spokesperson Nupur Sharma yesterday night registered a police complaint against journalist Rana Ayyub for her tweet on NDA’s presidential candidate Ram Nath Kovind which she found as “defamatory, hate-filled and derogatory”

Ayyub had tweeted about Kovind: “And you thought Pratibha Patil was the worst bet.”

The copy of Sharma’s complaint, said that Ayyub’s tweet reflected an “extremely casteist, hateful and disrespectful mindset” against the scheduled castes, which Kovind has long represented.

The complaint added that Ayyub directly undermined “the abilities and position in society of a member of the scheduled castes” and was “blatant and scurrilously slanderous and casteist”. The complaint asks for Ayyub to be booked under the Scheduled Caste and Scheduled Tribe Prevention of Atrocities Act.

“I thereby request you (Delhi police commissioner) to book the journalist Ms Rana Ayyub for her public representation of ill-will via her tweet under section 3(r) and 3(u) of the SC and ST (Prevention of Atrocities Act) 1989 as also under any other section that may be relevant to protect the honour and dignity of our fellow citizen, which has hurt his status in society as well as cast aspersions on his ability based on his caste/birth/background”, said Sharma’s complaint.

Read the Complaint here.

The Himachal Pradesh High Court, on a plea by a student against the Himachal Pradesh University, has observed that conducting examination, declaring results, posting marks, issuing certificates and awarding degrees to students is a delicate function to be performed by a university with due diligence and care, as it involves not only the career of students, but also the faith reposed by them and society upon the university.

Justice Vivek Singh Thakur imposed an ‘exemplary cost’ of Rs. 40,000, while allowing a writ petition preferred by a student who had approached it seeking compensation for causing mental pain, physical harassment, torture, pecuniary losses and wastage of precious two years of his career and for depriving him from appearing in various examinations and interviews and also from getting the benefit of postgraduate degree in various interviews.

“It is true that despite due diligence and care there is always possibility of committing mistake, but such mistakes are also supposed to be rectified within reasonable period by dealing the issue with sensitivity so as to avoid adverse impact of such mistakes on career of students,” the court observed.

The court then disposed of the writ plea by directing the university to grant at least three chances to petitioner to pass Course III in old syllabus in which he was undertaking his studies of MA (Economics) by giving him reasonable time for preparation. The court also asked the university to pay him an amount of Rs. 40,000.

“Present case is a glaring example of not only indifferent attitude but also of careless, irresponsible and negligence behaviour on part of officers/officials of respondent university for which definitely respondent university is liable,” the court said.

The Bombay High Court has held that unless unaided schools conform to the policy of reservation as laid down by the state government, they would not be entitled to any grant-in aid.

A division bench of Justice BR Gavai and Justice Riyaz Chagla was hearing a bunch of petitions filed by unaided schools from across Maharashtra challenging the validity of Clause 2 of a Government Resolution dated Nov. 15, 2011.

Under the said GR, the state government sought to bring in permanent non-grant-in-aid primary and secondary schools.

Sub clause (b) of Clause 2 of the GR reads-

“While making an application for assessment, the policy of the State Government regarding reservation in employment should be followed by the school. (This should not be applicable to minority schools).”

Counsel for the petitioners, Suresh Pakale, submitted that in view of the judgment of the Supreme Court in TMA Pai Foundation vs State of Karnataka, PA Inamdar vs State of Maharashtra, Pramati Educational and Cultural Trust (Registered) vs Union of India, unaided schools cannot be imposed upon to have a reservation policy.

Pakale further submitted that his clients were discharging the duties as agents of the state in providing free and compulsory education to the students. Therefore, the state cannot shy away from its responsibility to reimburse these schools as mandated under Article 21 A of the Constitution, Pakale said.

Relying on a judgment of a constitution bench of the Supreme Court in Ashok Kumar Thakur vs Union of India, a separate division bench headed by Justice AS Oka, in a judgment dated January 7, 2015, held that the government cannot insist on retrospective application of reservation policy.

However, the state government’s lawyer, senior advocate RS Apte, submitted that the said judgment of the apex court in Ashok Kumar’s case was overruled by a separate bench in Pramati Educational and Cultural Trust (Registered) vs Union of India, and also the judgment by Justice Oka’s bench was challenged before the apex court and in that challenge, the Supreme Court had said: “However, we make it clear that the respondent will be entitled to grant-in-aid from the date on which it fulfills the requirements of the Government Resolution dated 15.11.2011 to the satisfaction of the petitioner.”

Therefore, in view of the above facts, the court held that unless unaided schools conform to the policy of reservation as laid down by the state government, they would not be entitled to grant-in-aid as per the Government Resolution dated November 15, 2011.

Suresh Pakale then submitted that most of the petitioners have already complied with the reservation policy. To this, the court said individual cases may be decided by the competent authorities in accordance with law.

The Central Board of Direct Taxes has notified Rule 10CB for operationalising the provisions of secondary adjustment under Section 92CE of IT Act, 1961.

It prescribes the time limit for repatriation of excess money and the rate of interest to be applied for computing the income in case of failure to repatriate the excess money within the prescribed time limit.

Separate rates of interest have been provided for international transactions denominated in Indian currency and in foreign currency. The rates of interest are applicable on an annual basis.

The time limit of 90 days for repatriation of excess money shall begin only when the primary adjustments exceeding Rs. 1 crore made in respect of Assessment Year 2017-18 or later, attains finality.

Where the transfer pricing order is appealed against by the taxpayer, the time limit for repatriation shall commence only after the appeal is finalised by the appellate authority. The Rule reads as follows:

Rule 10CB: Computation of interest income pursuant to secondary adjustments:

• For the purposes of sub- section (2) of section 92CE of the Act, the time limit for repatriation of excess money shall be on or before ninety days
• from the due date of filing of return under sub-section (1) of section 139 of the Act where primary adjustments to transfer price has been made suo-moto by the assessee in his return of income;
• from the date of the order of Assessing Officer or the appellate authority, as the case may be, if the primary adjustments to transfer price as determined in the aforesaid order has been accepted by the assessee;
• from the due date of filing of return under sub-section (1) of section 139 of the Act in the case of agreement for advance pricing entered into by the assessee under section 92CD;
• from the due date of filing of return under sub-section (1) section 139 of the Act in the case of option exercised by the assessee as per the safe harbour rules under section 92CB; or
• from the due date of filing of return under sub-section (1) section 139 of the Act in the case of an agreement made under the mutual agreement procedure under a Double Taxation Avoidance Agreement entered into under section 90 or 90A;
• The imputed per annum interest income on excess money, which is not repatriated within the time limit as per sub-section (1) of section 92CE of the Act, shall be computed:
• at the one-year marginal cost of fund lending rate of State Bank of India as on 1st of April of the relevant previous year, plus three hundred twenty five basis points in the cases where the international transaction is denominated in Indian rupee; or
• at six-month London Interbank Offered Rate as on Sept. 30 of the relevant previous year plus three hundred basis points in the cases where the international transaction is denominated in foreign currency.

Explanation- For the purposes of this rule, “international transaction” shall have the meaning assigned to it in Section 92B of the Act.

The Finance Act, 2017, inserted Section 92CE in the Income Tax Act, 1961, with effect from April 1, 2018, to provide for secondary adjustment by attributing income to the excess money lying in the hands of the associated enterprise, in order to make the actual allocation of funds consistent with that of the primary transfer pricing adjustment.

The provision shall apply to primary adjustments exceeding Rs. 1 crore made in respect of Assessment Year 2017-18 onwards.

The Central Board of Excise and Customs, in exercise of the powers conferred by Section 1(3) of the Central Goods and Services Tax Act, 2017, has notified that the provisions of sections 1, 2, 3, 4, 5, 10, 22, 23, 24, 25, 26, 27, 28, 29, 30, 139, 146 and 164 of the Act shall come into force, with effect from Thursday (June 22).

Meanwhile a GST facilitation cell has been set up in the Department of Industrial Policy & Promotion to answer queries regarding  GST.  The GST facilitation cell is headed by Shri Sudhansu Sekhar Das, Economic Adviser (ss.das@nic.in, Tel:23063932) and consists of the following:

1. Shri Piyush Mishra

2. Ms. Astha Funda

3. Ms.Akshita Bhatia

4. Ms. Nitu Jaiswal

They can be contacted over phone: 011-23062379, 23062665; gstcell-dipp@gov.in, #mociseva.

The cell will function on all working days between 9.00 A.M.to 5.30 P.M.

The Central Board of Excise and Customs, in exercise of the powers conferred by section 164 of the Central Goods and Services Tax Act, 2017, has notified the Central Goods and Services Rules 2017.

The definitional clause finds place in the first chapter. The Rules, in the second chapter, contain provisions regarding intimation, effective date, conditions and restrictions, validity and rate of tax of the composition levy. The third chapter lays down comprehensive provisions for registration.

Meanwhile the Cabinet Secretary Shri P.K.Sinha today took a detailed review of the preparedness for the roll-out of Goods and Services Tax (GST) from 1st July 2017. In a Review Meeting attended by the Secretaries of 30 Ministries/Departments of the Central Government connected with GST, and video conferencing with CMDs/CEOs of about 167 Central Public Sector Undertakings (CPSUs) under their administrative control, the Cabinet Secretary asked all those involved to take full responsibility of their respective stake-holders, and ensure the successful implementation of the GST.

The Cabinet Secretary Shri Sinha expressed his satisfaction over the preparedness of different Ministries and CPSUs for the roll-out of GST w.e.f. 1st July 2017. However, he asked them that they should leave no stone unturned for its effective and smooth implementation by educating and involving all the stakeholders concerned.

The Supreme Court’s Vacation Bench of Justices D.Y.Chandrachud and Sanjay Kishan Kaul, on Monday, June 19, issued notice returnable in three weeks, on an appeal by the Directorate of Enforcement against the Karnataka High Court’s March 13 order, quashing retrospective application of the Prevention of Money Laundering Act against an accused. The order was delivered by the High Court bench of the Chief Justice Subhro Kamal Mukherjee and Justice R.B.Budihal.

In the instant case, the accused, M/s Obulapuram Mining Company Private Limited challenged the action of the authorities in lodging and enforcing of an Enforcement Case Information Report in September 2010, and an order of attachment, under the PMLA, 2002.

The allegation is that the accused acquired 17.59 lakh MT of iron ore by extracting the same from outside the leased area, and thus, committed the offences under Sections 120B, 420, and 411 of the IPC and Sections 13(2) read with Sections 13(1)(d) and 13(1)(e) of the Indian Penal Code and the Prevention of Corruption Act.  However, in the final order of attachment, it is alleged that 29.32 MT iron ore were extracted from outside the leased area.

Offences under Sections 120B, 420, 411 and 471 of the IPC, and the provisions of the PCA, 1988, were included as scheduled offences under the Act only on June 1, 2009. But the offences were allegedly committed between June 21, 2007 and May 15, 2009.  Therefore, the accused contended that all the offences were allegedly committed prior to the coming into operation of the amendment to the PML Act.

The Union of India, however, submitted before the High Court that the offences alleged against the petitioner are all civil in nature, and therefore, PML Act could be invoked with retrospective effect for the offences committed prior to June 2009.

The High Court, in its judgment, held that the petitioner could not be tried and punished for the offences under the PML  Act when the offences were not inserted in the schedule of offences under the PML Act.  This would deny the writ petitioner the protection provided under clause (1) of Article 20 of the Constitution, the High Court held.

Article 20(1) of the Constitution prohibits the conviction of a person or his being subjected to penalty for ex-post facto laws. Consequently, the High Court set aside the order of attachment also.   It was submitted that since there was absence of conviction of the accused, there could not have been a final order of attachment.  Agreeing with the petitioner’s counsel, Sudhir Nandrajog, the High Court quashed the action initiated against the accused by the ED, and the attachment orders passed against them.

On Monday, ASG, P.S.Narasimha argued on behalf of the ED.

The Central Board of Excise and Customs, in the exercise of the powers conferred by sub-section Section 23(2) of the Central Goods and Services Tax Act 2017, has notified that persons, who are only engaged in making supplies of taxable goods or services or both, the total tax of which is liable to be paid on reverse charge basis by the recipient of such goods or services or both under Section 9(3) of the Act, are exempted from obtaining registration under the Act.

This notification shall be effective from Thursday.

The Central Board of Excise and Customs, under the exercise of powers conferred upon by sub-Rule 26(1) of the Central Goods and Services Tax Rules 2017, has notified the following modes of verification for the purpose of the said rule:

1. Aadhaar-based Electronic Verification Code (EVC)
2. Bank account-based One Time Password (OTP)

Provided that where the mode of authentication of any document is through any of the aforesaid modes, such verification shall be done within two days of furnishing the documents.

This notification shall come into effect from Thursday.

The Karnataka State’s Legislative Assembly on Tuesday passed an amendment to reserve 50% seats at the National Law School of India University, Bangalore, for candidates who are domiciled in Karnataka. The Bill now needs to be passed by the Legislative Council.

The amendment to the NLSIU Act, 1986 was piloted by Higher Education Minister Basavaraj Rayareddy in the absence of law minister T.B. Jayachandra. As per reports, the Bill initially reserved 30 percent of the seats for resident students of Karnataka. It had also defined domicile as a student whose either parent has resided in Karnataka for at least 10 years before the qualifying examination, and had stipulated that the student has to have studied in a recognized educational institute in the State for 5 years preceding the exam.

BJP members in the House, however, demanded that the reservation be increased to 50% and that the domicile requirement be brought down to a minimum of 7 years, rather than 10. With these amendments, the Bill was passed unopposed.

Currently, the NLSIU has 80 seats for the BA.LL.B (Hons.) programme, out of which, 57 are for the General Category applicants. For an LLM in Business Laws, 28 out of 35 seats are available for General Category applicants, and for an LLM in Human Rights Law, 12 out of 15 seats are available for General Category applicants.

It has been five years since the Copyright (Amendment) Act, 2012 that came into effect from 21st June, 2012 after the unanimous support of all political parties in passing the Copyright Bill, 2010 in the both houses of the parliament. These amendments to the Copyright Act, 1957 has been considered as the major step which brought the Act into conformity with the WIPO Copyright Treaty(WCT) and the WIPO Performances and Phonograms Treaty (WPPT) which together famously known as “WIPO Internet Treaties”. This policy initiative was imperative to extend the protection of copyright to the online and digital environment. These amendments were greeted with generally positive reviews by all stakeholders especially regarding provisions strengthening and clarifying the copyright protection to the Music and Film Industry and specific amendments to address the concerns of the physically disabled persons and to protect the interests of the author of any work. It is fair to say that the reflection of the five years period of implementation reminds that there have been many hits and misses, which are explained in this article.

Hits:

First, specific amendments were introduced to address the issue of access to published works by the physically disabled persons, especially for visually impaired persons. Indian legislation not only provided one of the best access to read provisions for visually impaired persons but also succeeded in influencing the negotiators of the Marrakesh Treaty to Facilitate Access to Published Works to Visually Impaired Persons and Persons with Print Disabilities, 2013 to adopt them at the international level. These exceptions allowed authorised entities such as educational institutions and NGOs working for beneficiaries to make accessible format copies of books even though they are commercial available. The beneficiaries are also permitted exceptions to share accessible format copies among themselves which can be made available to them by next person who may be a friend or a relative of the beneficiary. The crowning glory of the Modi government during this period was to make India the first member state to ratify the Marrakesh Treaty that persuaded other WIPO member countries to fall in the line to make the treaty effective from 30 September 2016 with 20 member states ratifying it.

Secondly, the significant achievement of these amendments was clarifying the performing rights of authors (lyricists) and music composers and recognising their ‘right to receive 50% royalties collected by the Copyright Society which are non-waivable and non-transferable. This disruptive legislative step became imperative in the light of non-distribution of royalties to a few authors and composers following a dispute over rights in IPRS, a copyright society registered under the Copyright Act by the government for administering their rights. The legislation invoked Article 12 of the Rome Convention which provides that when there is a disagreement between the parties on a business model, then national legislation may lay down the conditions as to the sharing of royalties. The amendments ensured implementation of the business model already in vogue in India. However, film producers and the music industry vehemently opposed fearing that their copyright in the film would be weakened. The recent success of many films at the box office by making Rs 100 crores indicates that the above fear of producers was misguided. The International Confederation of Societies of Authors and Composers (CISAC) highly appreciated the above protection extended to authors and composers on 50% share of royalties entitled by them.

Thirdly, providing exclusive rights to Performers was another hallmark of these amendments. Performers were also provided with right to receive royalties despite they lose their exclusive rights to their performance when they give consent for inclusion of their performance in the film due to a ‘cut-off’ clause. Indian delegation introduced this concept of right to receive royalties to help to resolve the issue of transfer of rights at international level which ultimately resulted in finalisation of the WIPO Audiovisual Performances Treaty at the Beijing Diplomatic Conference in 2012. This policy initiative facilitated registration of a performers’ society to administer the singer’s rights namely, Indian Singers Rights Association (ISRA). ISRA has successfully fought cases claiming royalties from Delhi restaurants and bars and IPL Mumbai following favourable orders from the Delhi and Mumbai High Courts in recognition of performers rights provided in the Act.

Fourthly, another significant amendment to the Act was to extend education exceptions to the digital environment. The education exceptions provided in the Act was supported by the Delhi High Court in recently concluded Delhi University photocopy case wherein photocopying of books for preparation of course packs was considered as not an infringement of copyright. Fifthly, the amendments also re-introduced the concept of perpetual moral rights used in the French Copyright Law which was deleted from the Act following 1994 amendments which recognised moral rights especially the right to integrity as co-terminus with economic rights. This was done to protect moral rights of authors in the digital environment.

Lastly, protection of anti-circumvention of technological protection measures and the rights management information introduced under these amendments reflects Indian legislation making use of the flexibilities provided under the provisions of WCT and WPPT. These provisions unlike the DMCA Act of the USA recognise the act of circumvention as copyright infringement. The amendments also introduced the liability of ISP with ‘safe harbour’ provision to curb unauthorised circulation of online content. These amendments have protected the digital distribution of films and provided protection in containing online piracy of films.

Misses

The Copyright (Amendment) Act, 2012 has proposed constitution of permanent Copyright Board instead of an ad-hoc body. However, the Board has not yet been constituted due to various administrative and policy reasons. In the meantime, Lok Sabha passed the Finance Bill, 2017 on March 22, 2017, wherein the Copyright Board is set to be merged with the Intellectual Property Appellate Board (IPAB). This may require further amendments to the Trademark Act and the Copyright Act. The delay in constitution of the regulator has lead to non-implementation of schemes envisaged in the Act such as statutory licensing for broadcasting and approval of tariff scheme of the copyright societies. This delay is causing serious problems in monetization of content to the content creators and access to content for users in the entertainment industry.

The amendments mandate re-registration of all Copyright Societies. However, this process has not been implemented except by IRRO due to intransigence attitude and the vested interest of IPRS and PPL the copyright societies managed by the music industry. A ray of hope has emerged with the recent agreement between the authors & music composers lead by Javed Akthar and the music industry which may lead to a continued distribution of royalty flow with transparency and accountability in management in the affairs of these copyright societies.

The Copyright Bill 2010 introduced international exhaustion of published works with the consent of authors anywhere in the world by amending the definition of infringement but later withdrawn due to protest form mostly foreign publishers. The idea was to introduce affordable books and competition in the publishing industry. The NCAER study report on this matter is yet to be implemented.

Wayforward:

The government should take immediate steps to amend the provisions of the Trademark and Copyright Acts for merging of the Copyright Board with IPAB. It also needs to expedite reorganising IPAB by filling up the post of Chairman and other technical members including copyright experts. This can facilitate IPAB to regulate tariff schemes of the copyright societies and fix royalties rates under the statutory licensing scheme for TV and radio broadcasters. India has exercised its sovereign right in adopting the provisions of the WCT, WPPT following the flexibilities in the provisions. There is no need for any external opinion for India’s accession to these treaties including the Beijing Treaty on Audiovisual Performances, 2012 as all the provisions are in complete harmony with the provisions of these treaties and no further amendments are required after accession to these treaties. Moreover, the Indian Parliament has passed the amendments to the Copyright Act 2012 unanimously. The accession to these treaties will help India’s national interest in protecting its globalised film; music and television content and make our creative persons earn royalties worldwide. There is a need to focus on the recommendation of the Parliamentary Standing Committee which examined the Copyright Bill, 2010 on bringing the copyright law in tune with the Information Technology Act, 2000 so far as internet piracy is concerned.

G.R.Raghavender is Joint Secretary in Department of Justice, Ministry of Law & Justice. A copyright law expert and chief negotiator for India in negotiations leading to the Beijing Treaty, 2012 and the Marrakesh Treaty, 2013. The views expressed by the author in this article are personal.

The Supreme Court’s Vacation Bench of Justices D.Y.Chandrachud and Sanjay Kishan Kaul, on Monday, June 19, issued notice returnable in four weeks, on an appeal filed against the Punjab and Haryana High Court order dated June 2, directing the SHO, Police Station Kotwali, Bathinda, Punjab, to act against the valuers of a public sector bank, and attach their properties. The appeal was filed by the bank’s valuer, Mani Kant Garg.

The Supreme Court, while issuing notice on the appeal, also stayed the order of attachment of valuer’s properties, as directed by the Punjab and Haryana High Court, on June 2. The High Court had fixed July 6, within which its order of attachment was to be complied with.

In the instant case, the husband and wife proprietors of a firm dealing in cement, had applied for an overdraft credit loan facility with a public sector bank in Bathinda. They offered immovable property allegedly in their name by way of mortgage and the valuation of the property was stated to be Rs.5 crores. They obtained the loan in the sum of Rs.2.70 crores. The bank engaged the services of a valuer for certifying the title/ownership and valuation of the proposed mortgaged property.

Thereafter, the bank terminated the loan, asking the borrowers to repay the loan with due interest. Since the borrowers failed to repay the amount, the Bank proceeded to take possession of the property, and found that the Bank was cheated inasmuch as the property mortgaged was consisting of streets and drainage channels, which are hardly of any value. The bank also found that another person claimed to be the owner thereof on the basis of sale deed in 2007, and to have even received the compensation for the land acquired for the street-widening from the government.

The Punjab and Haryana High Court had granted anticipatory bail to the two borrowers in October 2015. The Bank and the State of Punjab, submitted that the borrowers and the valuers have systematically conspired to obtain huge amount of loan from the public sector bank by mortgaging the property fraudulently.

The High Court noted that the borrowers had deposited the amount of Rs.30 lakh after one year, although the High Court directed them to do so within one month from April 27, 2016. The High Court, therefore, recorded that it would monitor the entire payment of the bank, since the borrower have promised to pay back the amount within one year to the bank.

The High Court has found that the offence of cheating was clearly made out by the prosecution against the borrowers and the valuers, who had conspired together by overevaluating the mortgaged property. Therefore, the High Court rejected the argument that it is a routine bank transaction and a civil dispute.

The High Court observed: “It is seen that it has become an order of the day to siphon out money from the public sector banks, which is public money, by resorting to such type of acrobatics. The fraud and cheating has taken place by active connivance and deliberate actions of the petitioners in collusion with the valuers, namely, Manikant Garg of Garg & Associates and Kiran and Associates. This Court finds that it would not have been possible for the petitioners to siphon out the public funds had the valuers, namely Garg & Associates and Kiran & Associates not given the false, fictitious, misleading and bogus reports to the bank about the existence of property and the valuation thereof.”

The High Court continued: “The public money from the public sector banks cannot allowed to be siphoned off in the manner that has been done. It is strange that the police has not taken action against the valuers to proceed to attach all their properties for recovery of public money and for nominating them in the present FIR”.

The Supreme Court on Monday refused to interfere with the Delhi High Court order directing the Delhi Metro Rail Corporation (DMRC) to pay Rs. 60 crore as interim payment to Delhi Airport Metro Express Private Limited (DAMEPL), a Reliance Infrastructure Subsidiary.

A vacation Bench comprising Justice D.Y. Chandrachud and Justice S.K. Kaul, however, extended by a week, the time for complying with the Delhi HC order.

DMRC had challenged the Delhi HC’s June 7 order, wherein it was asked to pay Rs. 60 crore as three months interest to a lender of DAMEPL, a former concessionaire for airport express line. The High Court had then upheld an order passed by a single Judge, who had on May 30, directed DMRC to deposit three months interest amount within 10 days directly into DAMEPL’s loan account with Axis Bank, the main lender, after DAMEPL had sought early payment of Rs. 3, 502 crore, which is 75% of the arbitral award of Rs. 4, 670 crore, granted in its favour on May 11.

This was in furtherance with the guidelines approved by the Cabinet Committee on Economic Affairs (CCEA) issued by Niti Ayog last year, which mandate PSUs to pay 75 per cent of the award amount against bank guarantee even if they propose to challenge the arbitral award.

“We find no grounds to interfere in the impugned order passed by the learned Single Judge, firstly, for the reason that order dated 30.05.2017 is an interim order by which the appellant herein has been directed to deposit Rs.60 crores out of an award in favour of the respondent in the sum of Rs.4670 crores; secondly, for the amount to be deposited, the respondent has been directed to provide the bank guarantee of Rs.65 crores which would cover the interest on Rs.60 crores to be deposited by the appellant herein; and thirdly, this amount is to be paid directly to the Axis Bank keeping in view the large sums of interest to be paid by the respondent (Rs.65 lakh per day/Rs.20 crores per month) and also for the reason that all the grounds sought to be urged have been kept open to be decided by the learned Single Judge. Accordingly, the present appeal as well as the application is dismissed,” the High Court Bench comprising Justice G.S. Sistani and Justice Vinod Goel had observed.

The award was granted in favor of RInfra, on the basis of termination provisions of the concession agreement, which was entered into between the two on August 25, 2008. Under the agreement the DMRC was to carry out the civil works, excluding at the depot, and the balance, including the project system works, were to be executed by DAMEPL. The Airport Express line was commissioned on February 23, 2011 after an investment of Rs 2,885 crore funded by DAMEPL’s promoters’ fund, banks and financial institutions.

DAMEPL had, however, terminated the concession agreement as the DMRC had not cured some defects in the line within 90 days of the notice issued by it. The Agreement was terminated with effect from January 1, 2013 and the project was handed over to the DMRC on June 30, 2013. Till handing over of the project, the DAMEPL had operated the line as a deemed agent of DMRC. Arbitration was resorted to in August, 2013, after failure of efforts to amicably resolve the issues.

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A two Judge Bench of Supreme Court of India on Wednesday has rejected the former Calcutta High Court Judge Justice CS Karnan’s application for bail and suspension of sentence.

Justice CS Karnan was arrested from a guest house in Coimbatore, by West Bengal police on Tuesday.

A Seven Judge Bench of Supreme Court had found him guilty and sentenced to 6 months in jail for contempt by an order dated 9^th May. He had been evading arrest since May 9. He retired on June 12, and became the first High Court Judge to have retired while absconding.

The Seven Judge Bench in its order said, “On merits, we are of the considered view, that Sri Justice C.S. Karnan, has committed contempt of the judiciary. His actions constitute contempt of this Court, and of the judiciary of the gravest nature. Having found him guilty of committing contempt, we convict him accordingly. We are satisfied to punish him by sentencing him to imprisonment for six months. As a consequence, the contemnor shall not perform any administrative or judicial functions,” the 7 judge bench headed by Chief Justice J.S. Khehar had then observed.

The Allahabad High Court, in the case of Abdul Azad vs State Of UP, has held that the testimony of a witness cannot be rejected merely because the witness happens to be a blood relative.

In this case, Abdul Azad, the appellant, preferred an appeal against his conviction under Section 302 of IPC, Section 7 of Criminal Law Amendment Act and sections 25 and 27 of the IPC.

An issue before the court in this case was whether or not the testimonies of his blood relatives can be used as valid testimonies.

A bench comprising Justice Prabhat Chandra Tripathi and Justice Bharat Bhushan noted that a mechanical rejection of testimonies would amount to a failure of justice and that an otherwise trustworthy testimony cannot be rejected, merely because the testator shares a blood relation.

The bench further noted that during the course of the cross-examination, nothing had emerged to shatter or discredit the testimony of the witness.

“31. It is the duty of the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient. Falsity of a particular material witness or material particular would not ruin it from the beginning to the end. The maxim "falsus in uno falsus in omnibus" has no application in India.”

The court further noted that it is the duty of the court to unravel the truth and that minor discrepancies should not come in the way of shaking the prosecution story.

Further, if majority of the testimony is found deficient, but the remainder is sufficient to establish the guilt of the accused, then the entire testimony cannot be rejected and the grain must be separated from the chaff.

The court opined that the case of the prosecution had been proven beyond all reasonable doubt. However, it also noted that the event occurred in the spur of the moment and the appellant got involved due to a row between the women in the family. The court partly allowed the appeal by observing that it falls within the ambit of Section 304 of the IPC and reduced his sentence.