Whether the expression “relative”, has been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only ?

Supreme Court: In a special leave petition presented to the apex court against a judgement of a Division Bench of the Bombay High Court, the court adjudicated the constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005.

Earlier the Bombay High Court has explained the above mentioned section of the said act as "the provisions of "respondent" in section 2(q) of the DV Act is not to be read in isolation but has to be read as a part of the scheme of the DV Act, and particularly along with the definitions of "aggrieved person", “domestic relationship" and "shared household" in clauses (a), (f) and (s) of section 2 of the DV Act."

Shri Harin P. Raval, the senior advocate who appeared for the appellants argued that according to the definition of “respondent” in Section 2(q) of the said Act can only mean an adult male person. However Ms. Meenakshi Arora, the senior advocate appearing before the court on behalf of the respondents countered the appellants submissions and stated that if at all the act restricts the reach of the act for the social benefit to protect women from domestic violence of all kinds it must either be struck down as being violative of Article 14 of the Constitution or read down.

There was a complaint filed by a mother and a daughter against the brother/son, and his wife, and two sisters/daughters, alleging various acts of violence against them. Later the complaint was withdrawn with liberty to file a fresh complaint. Later the mother and daughter filed two separate complaints against them. The accused persons filed before the Magistrate stating that as the complaint was made under Section 2(a) read with Section 2(q) of the 2005 Act, it can only be made against an adult male person and the three respondents not being adult male persons were, therefore, required to be discharged however this application was refused. Later the discharge was granted by the Honorable Bombay High Court. Thereafter the complainants filed before the Supreme Court and challenged the constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005.

The court after ascertaining the object sought to be achieving by the act and also referring to the earlier judgement by the Court in similar matters stated "A cursory reading of the statement of objects and reasons makes it clear that the phenomenon of domestic violence against women is widely prevalent and needs redressal. Whereas criminal law does offer some redressal, civil law does not address this phenomenon in its entirety. The idea therefore is to provide various innovative remedies in favour of women who suffer from domestic violence, against the perpetrators of such violence."

The court further noticed that the definition of “domestic relationship” contained in Section 2(f) is a very wide one. Finally the court in its judgement struck down the word "adult male" before the word "person" in section 2(q) of the act and after giving reference of the previous judgement stated "the rest of the Act is left intact and can be enforced to achieve the object of the legislation without the offending words."

Read the full judgement here.

Restrictions of advertisement and prohibition as to unfair trade practices

Food Supply and Standards Act, 2006: This acts regulates the rules and laws related to the food products and its standards and how it is distributed and advertised. The Sector 24 of this act deals with restrictions of advertisement and prohibition as to unfair trade practices.
It reads as:
"(1) No advertisement shall be made of any food which is misleading or deceiving or contravenes the provisions of this Act, the rules and regulations made thereunder.
(2) No person shall engage himself in any unfair trade practice for purpose of promoting the sale, supply, use and consumption of articles of food or adopt any unfair or deceptive practice including the practice of making any statement, whether orally or in writing or by visible representation which-
(a) falsely represents that the foods are of a particular standard, quality, quantity or grade- composition;
(b) makes a false or misleading representation concerning the need for, or the usefulness;
(c) gives to the public any guarantee of the efficacy that is not based on an adequate or scientific justification thereof: Provided that where a defence is raised to the effect that such guarantee is based on adequate or scientific justification, the burden of proof of such defence shall lie on the person raising such defence.”

Based on the above mentioned act, the Supreme Court decided on a Public Interest Litigation file by a petitioner on the matter of soft drinks' supply and advertisement. Through this writ petition, the petitioner requested the court to constituting an independent Expert/Technical Committee to evaluate the harmful effects of soft drinks on human health, particularly on the health of the children, and also for a direction to the government of India to put in place a regulatory regime which could control and check the contents in a particular chemical additive in foods, including soft drinks. It was also one of the demand in the petition were the court must direct the government to to make it mandatory for the soft drinks manufacturers to disclose the contents and their specific quantity on the labels of soft drinks, including appropriate warnings, particular ingredient, and its harmful effects on the people. Petitioner also sought for a direction to the Government of India to check and control the misleading advertising of soft drinks, particularly advertisements targeted at children, unwary uneducated and illiterate people.

The court thoroughly went through various acts and laws which governs the rules and regulations related to the food products. The Counsel for the GOI argued that the parliament has already enacted a law namely Food Supply and Standards Act, 2006 (the FSS Act), which along with its Rules and Regulations framed thereunder, constitute a vigorous regulatory regime, takes care of all the above mentioned situations and provisions of the FSS Act and the Rules and Regulations are being enforced scrupulously and meticulously.

The gave reference of many enactments regarding the manufacturing, distributing and advertising he soft drinks and also stated that "most of the situations have already been taken care of by the above mentioned provisions of the FSS Act as well as the regulations mentioned hereinbefore, so as to achieve an appropriate level of protection of human life and health and protection of consumers’ interest, including fair practices in all counts of food trade with reference to food safety standards and practices."

The court further went on stating that "Article 21 of the Constitution of India guarantees the right to live with dignity. The right to live with human dignity denies the life breach from the Directive Principles of the State Policy, particularly clauses (e) and (f) of Article 39 read with Article 47 of the Constitution of India."

The court was of the view that the provisions of the FSS Act and PFA Act and the rules and regulations framed thereunder have to be interpreted and applied in the light of the Constitutional Principles, discussed and endeavour has to be made to achieve an appropriate level of protection of human life and health.

"Enjoyment of life and its attainment, including right to life and human dignity encompasses, within its ambit availability of articles of food, without insecticides or pesticides residues, veterinary drugs residues, antibiotic residues, solvent residues, etc. But the fact remains, many of the food articles like rice, vegetables, meat, fish, milk, fruits available in the market contain insecticides or pesticides residues, beyond the tolerable limits, causing serious health hazards. We notice, fruit based soft drinks available in various fruit stalls, contain such pesticides residues in alarming proportion, but no attention is made to examine its contents. Children and infants are uniquely susceptible to the effects of pesticides because of their physiological immaturity and greater exposure to soft drinks, fruit based or otherwise."

The court directed the Food and Safety Standards Authority of India to gear up their resources with their counterparts in all the States and Union Territories and conduct periodical inspections and monitoring of major fruits and vegetable markets, so as to ascertain whether they conform to such standards set by the Act and the Rules.

Whether a dead body, once buried, cannot be exhumed under Mohammedan law ?

Supreme Court heard a matter in a Special Leave Petition in which the petitioners appealed against the judgement and order given by the Bombay High Court. By the order and judgement, the high court had issued directions to exhume the body of late Baba who was a muslim with full respect to his saintly-hood and to arrange for its appropriate honorable burial in accordance with law, within a period of three days. The one of the other direction was to take all necessary steps to restore normalcy in the area so as to prevent the wrongdoers and mischief mongers from creating/continuing to affect the law and order situation, so that schools can be reopened and normal tempo of life is restored.

Facts of the case:

One 'Mohd. Mustafa Mohd. Ansari', popularly known as “Baba” died in 2011. He used to sit outside a school premises and he was respected by people of the locality. The school premises was leased out to Central Tanzeem Committee by the Government.

After the death of "baba", some people forcefully took his body and entered into the premises of the school, dug in the playground of the school and buried his dead body. As a result of this illegal act, there was disturbance of law and order in the locality and consequently there was also disturbance of the communal harmony amongst two sects at Mominpura. Since no action was taken by the police, the petitioners filed a writ petition in the high court who later adjudicated upon the matter however being aggrieved by the findings recorded by the high court, the parties moved to the Apex Court.

The Supreme Court while hearing the case, referred to various fatwas issued by the religious heads amd also some previous adjudged cases of similar issues. The court also considered the scope and ambit of Articles 25 and 26 of the Constitution of India while deciding on this case.

The court found that there was statutory violation in the unauthorized action of burial of the saint and Article 226 of the Constitution of India was the only remedial measure available. There was also the statutory violation in the instant case of Section 269 of the City of Nagpur Corporation Act and as held by the High Court, there was also violation of Section 133 of the Code of Criminal Procedure.
The action created tention in the public place and disturbed law and order there.

The court stated that "We also direct that the dead body of the saint would be exhumed from the place of its present burial and shifted to another appropriate place and buried in accordance with law with all dignity and respect and he shall be laid in peace for enabling his devotees to offer their prayers and respects as and when they desire in accordance with law."

Read the full judgement here.

Whether decision taken by State Government for withdrawal of cases is open to judicial review or not ?

Allahabad High Court: There was a petition made to the High Court of Allahabad under section 226 in which following questions were sought to be cleared:

"1. Whether the power of withdrawal can be exercised by State Government under Section 321 of Code of Criminal Procedure in a whimsical or arbitrary manner or it is required to be exercised for the considerations, just, valid and judicially tenable? 
2. Whether decision taken by State Government for withdrawal of cases communicated to Public Prosecutor with direction to proceed ahead is open to judicial review or not in a writ jurisdiction under Article 226 of the Constitution of India? 
3. Whether State Government should not be required to make scrutiny of various criminal cases pending in Subordinate Courts to find out if they deserve withdrawal in exercise of powers under Section 321 Cr.P.C. irrespective of fact that accused or anyone else has approached the government for this purpose or not? "

The writ petition was filed by an under trial person who had pleaded to the Chief Minister to withdraw the case against him. The application was then forwarded to the District Magistrate for his view on the matter to which the magistrate opined not to withdraw the case and to let the trial continue. The view was sought from Assistant Public Prosecutor, Senior Public Prosecutor and Superintendent of Police who all gave the same view not to withdraw the case. The matter was finally referred to a committee of 2 member, Shri R.M.Srivastava, the then Principal Secretary (Home) and Shri S.K. Pandey, the then Principal Secretary Law and Legal Remembrancer who then gave their opinion that the case is doubtful and it should be withdrawn.

In the meantime, the accused who was facing trial filed the writ petition in the Court and sought the direction of the court in the matter. The Court took serious note of the manner in which power under Section 321 Cr.P.C. was sought to be exercised. The court answered the issues as below:

"Issue No. I: State Government is not at all free to exercise its authority under Section 321 Cr.P.C. in whimsical or arbitrary manner or for extraneous considerations apart from just and valid reasons. 
Issue No. II: The decision taken by the State Government for withdrawal of the case communicated to the Public Prosecutor, is open to judicial review under Article 226 of the Constitution of India on the same parameters as are prescribed for invoking the authority of judicial review. 
Issue No. III: The State Government is free to act under the parameters provided for to make scrutiny of criminal cases pending in subordinate courts to find out as to whether they deserve withdrawal under Section 321 Cr.P.C. or not as it is in the realm of the policy decision, and call on the said score has to be taken by the State Government and same has to be based on the parameters required to be observed while moving an application for withdrawal of prosecution under Section 321 Cr.P.C. "

Read the full judgement here.

Whether a complaint can be filed by a Trust under the provisions of the Consumer Protection Act, 1986 ?

In an appeal before the Supreme Court today, a question was raised whether a Trust can file a complaint under the provisions of Consumer Protection Act, 1986. Earlier on this question The National Consumer Disputes Redressal Commission constituted under the same act denied accepting the fact that a Trust can file a complaint being a consumer. Later it came before the Apex Court and the Supreme Court too answered it negatively confirming that a Trust has no title to file a complaint under the said provisions.

The act empowers a complainant to complain for an unfair trade practice or a restrictive trade practice adopted by any trader or service provider; a complaint in respect of goods (bought by a complainant) suffering from one or more defects; a complaint of deficiency in services hired or availed of by a complainant and so on. The court also defined a complainant referring to the section of the act which defines the complainant as "complainant" means − (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act,1956 (1 of 1956) or under any other law for the time being in force; or (iii) the Central Government or any State Government; or (iv) one or more consumers, where there are numerous consumers having the same interest; (v) in case of death of a consumer, his legal heir or representative ; who or which makes a complaint.

The court confirmed that according the above mentioned definition of a complainant a Trust is not included and hence cannot be a complainant.  The court further explained and answered to the question whether a Trust can be a 'Consumer". To which the court referred to the provisions of the act which defines a consumer as "consumer" means any person who, − (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; but does not include a person who avails of such services of any commercial purpose.

The Supreme Court said "A reading of the definition of the words ‘complaint’, ‘complainant’ and ‘consumer’ makes it clear that a Trust cannot invoke the provisions of the Act in respect of any allegation on the basis of which a complaint could be made.

It further said that a Trust is also not a person as per the definition of a person defined in the act and hence it is clear that "a Trust is not a person and therefore not a consumer. Consequently, it cannot be a complainant and cannot file a consumer dispute under the provisions of the Act".

Read the judgement here.

The Court may convict or may acquit on the testimony of a single witness: Supreme Court of India

The Supreme Court adjudicated on an appeal filed by the accused who was convicted under section 304 of IPC and revived the sentence from 10 years imprisonment to life imprisonment and also changed the section under which he was convicted to 302 IPC.

In the instant case a man from the Naik community and a girl, from the Lingayat community, were in love. Being from different castes and apprehending opposition to their marriage by the family of Shilpa, they decided to elope and got married in 2002. They got their marriage registered before the Sub-Registrar, Hospet in 2003. Eventually, the couple returned to their village Taranagar to stay with the parents of the man. When this marriage came to the knowledge of girl's father, the accused, he bitterly opposed the same and reportedly berated the man's father and his family on several occasions, stating that they had brought down the honour of his family and that he would “finish” his daughter for marrying into a lower caste.

In the days leading up to the alleged incident, Shilpa was pregnant (around nine months).
The accused absconded after the incident but was later arrested after 20 days.

During the trial, prosecution led evidence of 25 (twenty five) witnesses including the experts. The eye witnesses who had arrived at the spot of the incident turned hostile with the exception of the father in law of the girl, whose testimony has been found to be truthful and reliable by the High Court.

The Sessions Court had earlier, acquitted the accused on the ground that mere intent on the part of the accused to commit the crime was not sufficient to record a finding of guilt. The Sessions Court discarded the evidence of the lone witness. It held that the evidence was replete with improvements on her previous statement and was unreliable. Further, the circumstantial evidence was not enough to convict the accused.

In appeal by the State, the High Court accepted the prosecution’s case that the accused was a frustrated father because of his daughter having married to the man who belonged to lower caste and was the motive to commit the crime. Further, even if there was a little exaggeration of the events by the witness during the evidence, the same could be ignored and that the circumstantial evidence was sufficient to convict the accused. The High Court also relied on the post mortem report and serology report which stated that blood stains on the sickle matched with those on the clothes of the deceased. The High Court recorded a finding of guilt against the appellant but went on to convict the appellant for offence under Section 304 Part I of IPC and sentenced him to 10 years of imprisonment. This order of conviction and sentence has been challenged by the appellant.

The supreme court observed that "In the present case, the evidence has been corroborated by other circumstances and prosecution evidence. That leaves no manner of doubt that the accused not only had strong motive to kill his daughter but was responsible for doing so and excludes the probability of someone else being responsible for the death of deceased. Taking overall view of the matter, we are of the considered opinion that the finding of guilt recorded against the accused (appellant) by the High Court is unexceptionable and does not warrant any interference."

The Apex court also quoted the portion of High Court's Judgement and stated that "it is evident that the High Court has made no attempt to explain as to how the case on hand would be covered by one of the five exceptions given in Section 300 of IPC. Unless the case falls under one of the specified exception, it cannot be brought under first part or second part of Section 304 of IPC.
The first exception will be attracted only if it is possible to hold that the accused whilst deprived of the power of self-control by grave and sudden provocation, caused death. From the established facts on record, it is seen that the accused followed his daughter into the women’s public toilet of the village and assaulted her."

Suffice it to observe that none of the exceptions in Section 300 of IPC is attracted in the present case. It would necessarily follow that the accused committed murder of his daughter who was in the advanced stage of pregnancy and for which he was liable to be punished with either imprisonment for life or death under Section 302 of IPC alone.

Whether the income from the use of “Global Telecommunication Facility” cannot be taxed in India

Supreme Court today in a judgement decided which came as appeal to decide on the matter "Whether the High Court is correct in holding that the income from the use of Global Telecommunication Facility called 'Maersk Net' can be classified as income arising out of shipping business and not as fees for technical services?”

There was a foreign company, a tax resident of Denmark, engaged in the shipping business. There is a Double Taxation Avoidance Agreement between India and Denmark. The Company had several agents working for booking cargo and were acting as clearing agents for the foreign company. As the company was in the business of shipping it had several agents in various countries for booking of cargo and servicing customers in those countries, preparing documentation etc. through these agents.
In the present case, a common facility of using Maersk Net System is provided to all the agents across the countries to carry out their work using the said system.

After taking note of Section 19 of the Income Tax Act,1961 and explanation 2 thereof which defines fee for technical services, the Court went on to describe the meaning of the said expression in the following manner:

“What meaning should be ascribed to the words “technical services” appearing in Explanation 2 to clause (vii) to Section 9(1) of the Act is the moot question. In CIT v. Bharti Cellular Ltd. [CIT v. Bharti Cellular Ltd., (2014) 6 SCC 401 : (2011) 330 ITR 239] this Court has observed as follows: (SCC p. 402, para 5) “5. Right from 1979, various judgments of the High Courts and Tribunals have taken the view that the words “technical services” have got to be read in the narrower sense by applying the rule of noscitur a sociis, particularly, because the words “technical services” in Section 9(1)(vii) read with Explanation 2 comes in between the words “managerial and consultancy services”.

“Managerial and consultancy services” and, therefore, necessarily “technical services”, would obviously involve services rendered by human efforts. This has been the consistent view taken by the courts including this Court in Bharti Cellular Ltd. [CIT v. Bharti Cellular Ltd., (2014) 6 SCC 401 : (2011) 330 ITR 239] However, it cannot be lost sight of that modern day scientific and technological developments may tend to blur the specific human element in an otherwise fully automated process by which such services may be provided. The search for a more effective basis, therefore, must be made.

A reading of the very elaborate order of the assessing officer containing a lengthy discourse on the services made available by the Stock Exchange would go to show that apart from facilities of a faceless screen based transaction, a constant upgradation of the services made available and surveillance of the essential parameters connected with the trade including those of a particular/single transaction that would lead credence to its authenticity is provided for by the Stock Exchange. All such services, fully automated, are available to all members of the Stock Exchange in respect of every transaction that is entered into. There is nothing special, exclusive or customised service that is rendered by the Stock Exchange. “Technical services” like “managerial and consultancy service” would denote seeking of services to cater to the special needs of the consumer/user as may be felt necessary and the making of the same available by the service provider. It is the above feature that would distinguish/identify a service provided from a facility offered. While the former is special and exclusive to the seeker of the service, the latter, even if termed as a service, is available to all and would, therefore, stand out in distinction to the former. The service provided by the Stock Exchange for which transaction charges are paid fails to satisfy the aforesaid test of specialised, exclusive and individual requirement of the user or consumer who may approach the service provider for such assistance/service. It is only service of the above kind that, according to us, should come within the ambit of the expression “technical services” appearing in Explanation 2 to Section 9(1)(vii) of the Act. In the absence of the above distinguishing feature, service, though rendered, would be mere in the nature of a facility offered or available which would not be covered by the aforesaid provision of the Act.

There is yet another aspect of the matter which, in our considered view, would require a specific notice. The service made available by the Bombay Stock Exchange [BSE Online Trading (BOLT) System] for which the charges in question had been paid by the appellant assessee are common services that every member of the Stock Exchange is necessarily required to avail of to carry out trading in securities in the Stock Exchange. The view taken by the High Court that a member of the Stock Exchange has an option of trading through an alternative mode is not correct. A member who wants to conduct his daily business in the Stock Exchange has no option but to avail of such services. Each and every transaction by a member involves the use of the services provided by the Stock Exchange for which a member is compulsorily required to pay an additional charge (based on the transaction value) over and above the charges for the membership in the Stock Exchange. The above features of the services provided by the Stock Exchange would make the same a kind of a facility provided by the Stock Exchange for transacting business rather than a technical service provided to one or a section of the members of the Stock Exchange to deal with special situations faced by such a member(s) or the special needs of such member(s) in the conduct of business in the Stock Exchange. In other words, there is no exclusivity to the services rendered by the Stock Exchange and each and every member has to necessarily avail of such services in the normal course of trading in securities in the Stock Exchange. Such services, therefore, would undoubtedly be appropriate to be termed as facilities provided by the Stock Exchange on payment and does not amount to “technical services” provided by the Stock Exchange, not being services specifically sought for by the user or the consumer. It is the aforesaid latter feature of a service rendered which is the essential hallmark of the expression “technical services” as appearing in Explanation 2 to Section 9(1)(vii) of the Act.”

Read the full judgement here.