Case BriefsHigh Courts

Gauhati High Court: Reiterating that mere likelihood of suspicion cannot be a reason to charge someone for an offence, Rumi Kumari Phukan, J. allowed a criminal petition and quashed the FIR registered against the petitioners under Section 120-B, 32 and 307 IPC.

The matter related to a long pending land dispute between the petitioners on one hand and the injured and the informant on the other hand. The injured was shot from the backside while riding his motorcycle. The informant, the wife of the injured, lodged an FIR against the petitioners on suspicion that the attack was committed by them in response to their land dispute.

J.J. Borbhuiya, I., Mohan, R. Ali and K.H. Choudhary, Advocates, representing the petitioners vehemently submitted that the criminal proceeding could not stand and continue on sheer suspicion. Per contra, T. Sarma and H.K. Sarma, Advocates, for the informant asserted that the proceedings should continue till the end. However, D. Das, Additional Public Prosecutor, submitted that the injured himself could not identify the assailants.

 Perusing the record, the High Court noted that the informant tried to project the case only on suspicion and there was no supporting evidence to suggest the complicity of the petitioners. It was observed: “Criminal prosecution cannot be permitted to continue on the whims and pleasure of the litigants unless cogent, clear and convicting evidence collected in course investigation.” Holding that the same was very much lacking in the present case, the Court was of the view that continuance of the criminal proceeding against the petitioners would cause a miscarriage of justice. Thus, the prayer made by the petitioners was allowed and the impugned FIR was quashed. [Anuradha Gogoi v. State of Assam, 2019 SCC OnLine Gau 2296, decided on 14-05-2019]

Cyril Amarchand MangaldasExperts Corner

In December 2018, the Competition Commission of India (CCI) amended the Competition Commission of India (General) Regulations, 2009 (General Regulations) and included a new regulation restricting advocates from accompanying individuals summoned by the office of the Director General (DG). Specifically, the newly inserted Regulation 46-A (2) of the Competition Commission of India (General) Amendment Regulations, 2018 does not allow advocates to, “sit in front of the person so summoned” and states that an advocate, “shall not be at a hearing distance and shall not interact, consult, confer or in any manner communicate with the person, during his examination on oath”.[1] In case of contravention of these conditions, the amendment states that an advocate may be held liable for misconduct, such that he or she may be disallowed from appearing before the DG and the CCI for a time period the CCI deems necessary. Additionally, in cases of misconduct, the CCI may also forward a complaint against the relevant advocate to the Bar Council of the State of which the advocate is a member.

Pursuant to the notification of this amendment, the Tamil Nadu Advocates Association (TNAA) along with the former Vice-Chairman of the Bar Council of Tamil Nadu and Puducherry filed a petition challenging the validity of the amendment on grounds of it violating provisions of the Advocates Act, 1961 and that it attempts to usurp the exclusive functions of the Bar Council of India with respect to undertaking disciplinary action against advocates. In this regard, on 4-1-2019, the Madras High Court (HC) issued an interim stay on the implementation of the amendment until further orders. In this context, currently there exists an inherent ambiguity with regard to the position of advocates vis-à-vis the amendment and the Competition Act, 2002.

Inherent Ambiguity and HC Interim Stay

The amendment is the first attempt to frame written rules and/or regulations on advocates accompanying persons summoned by the DG. Despite lack of such rules and regulations, in practice, advocates would, in any case, be placed in a position wherein he or she could not communicate, consult, or confer with the person being examined under oath. While this has now been codified in the amendment, there is additional language that states that an, “advocate shall not be at a hearing distance” from the person being examined under oath. This is a major concern and creates significant ambiguity, as advocates being placed in a different room from the person being examined becomes a real possibility.

Further, the amendment does not elaborate on what essentially constitutes “misconduct” and nevertheless goes on to detail methods of punishment that the CCI can impose on the advocate in cases of misconduct, which includes the ability to disallow an advocate to appear before the DG and CCI. This magnifies the amendment’s ambiguity, as an advocate’s misconduct is left to the subjective assessment of the DG at the time of the deposition/examination of a person under oath. Moreover, the ability to discipline such an advocate who engages in misconduct is also a prima facie encroachment of the powers of the Bar Council of India that is empowered to discipline advocates in accordance with the provisions of the Advocates Act, 1961. While the HC appears to have taken cognizance of the latter fact i.e. potential encroachment of the Bar Council of India’s powers and has issued an interim stay on the implementation of the amendment pursuant to the petition filed by TNAA, the inherent ambiguity of the amendment is yet to be examined as a ground for invalidity.

Prevalent Scenario

In light of the interim stay passed by the HC on the implementation of the amendment, there seems to be a procedural vacuum in relation to advocates accompanying persons summoned by the DG. Prior to the amendment, an advocate would accompany the person without any prior notification to the DG, if there existed an executed power of attorney in favour of the advocate. Presently, despite the interim stay of the HC, advocates duly authorised by a power of attorney to represent the person summoned by the DG must file a letter prior to the date of interrogation requesting that he or she can accompany the person summoned by the DG and the presence of an advocate during such an integration which is essential to the interest of the client is uncertain .


*Anshuman Sakle is a Partner with the Competition Law Practice at Cyril Amarchand Mangaldas and can be contacted at anshuman.sakle@cyrilshroff.com.  Dhruv Rajain, Senior Associate can be contacted at dhruv.rajain@cyrilshroff.com and Balaji Venkatakrishnan, Associate can be contacted at  balaji.venkatakrishnan@cyrilshroff.com with the Competition Law Practice at Cyril Amarchand Mangaldas.

[1] The Competition Commission of India (General) Amendment Regulations, 2018, available at <https://www.cci.gov.in/sites/default/files/regulation_pdf/193680.pdf>.

 

Case BriefsForeign Courts

Supreme Court of Canada: A five-judge Bench comprising of Wagner CJ and Abella, Côté, Rowe and Martin , JJ. while hearing Crown’s appeal against the decision of Court of Appeals, ruled that in the presence of admitted incriminating evidence on record, Court’s failure to compel a witness to answer a question related to such evidence would not have a bearing on conviction of the accused.

Respondent was convicted at trial of attempting to commit murder, uttering a threat to cause death, breaking and entering a place and committing attempted murder. The trial judge had relied on a few notes found in respondent’s residence, along with other evidence, to find him guilty of these offences. However, in an appeal to the Court of Appeals, the trial court order was set aside. Hence, the instant appeal was preferred by the Crown as a matter of right.

In the trial court, the defence counsel had raised a question to a witness in an attempt to find out as to who had written the two notes found in respondent’s residence. But the witness refused to answer this question. The main submission advanced on behalf of respondent was that the trial judge had erred in the way he addressed witness’ refusal to answer a vital question, and as such his conviction was liable to be set aside.

The Supreme Court, after appreciating the materials on record, noted that since the respondent had subsequently admitted to writing most of the incriminating statements in the notes found in his residence, therefore the trial judge’s failure to take further steps to compel the witness to answer the question put to him did not have an effect on the verdict. It was a proper exercise of the trial court’s discretion in continuing with the main proceedings and leaving the issue of potential contempt proceedings, against the aforesaid witness, for being taken up later in time.

It was observed that even if one assumed that the trial judge had committed an error in his addressal of witness’ refusal to answer the question put to him, any such error did not result in a substantial wrong or miscarriage of justice, and therefore respondent’s convictions were upheld as per Section 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown’s appeal was allowed and respondent’s conviction was restored. [Queen v. Alex Normore, 2018 SCC OnLine Can SC 37, decided on 19-10-2018]

Case BriefsForeign Courts

Supreme Court of Canada: This appeal was filed before a 5-Judge Bench comprising of Wagner, CJ. Abella, Cote, Rowe and Martin, JJ., against the judgment of the Court of Appeal of Newfoundland and Labrador.

Facts of the case were that one Mr. Normore was convicted for attempt to commit murder, uttering a threat to cause death and breaking and entering a place. His appeal against the above conviction was allowed by Court of Appeal. However, this appeal was filed by the Crown.

Supreme Court observed that trial court did not err in addressing a witness’s refusal to answer a question put to him by defence counsel. It was upon the discretion of the trial judge to take further steps in attempting to elicit an answer from the witness. Court found it proper on part of the trial judge to proceed to the main proceedings rather than using its discretion as the same was not found to have caused substantial wrong or miscarriage of justice. Therefore, the convictions were restored pursuant to Section 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.  [Queen v. Alex Normore, No. 37993, dated 17-10-2018]