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Janhvi Songara Moot court Assignment

Constitutional Law (Gujarat University)

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Integrated Five Year B.com LL.B. Programme

Report on Moot Court Exercise and Internship

Submitted By,

Name: Janhvi N. Songara

Semester: X

Batch: 2016-17

Academic year: 2020-21

Roll no.: 19

CENTRE OF EXCELLENCE SCHOOL OF LAW, GUJARAT UNIVERSITY

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CONTENT

NO. PARTICULARS PAGE

NO.
1. UNIT-1 MOOT COURT
Moot court case no.1 4
Moot court case no.2 33
Moot court case no.3 52
2. UNIT-2 OBSERVATION OF TRIAL
Civil trial 71
Criminal trial 81
3. UNIT-3 INTERVIEWING TECHNIQUE & PRE-
TRIAL PREPARATION
3.1 Interviewing techniques and pre-trial preparation 96
3.2 Internship diary 109
ANNEXURES (INTERNSHIP CERTIFICATES)

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UNIT-I
MOOT
COURT
EXERCISE

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UNIT -1 MOOT COURT

Moot Court Case no. 1

IN THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

SPECIAL LEAVE PETITION

MR. SUDHIR MISHR (PETITOINER 1)

MR. DIPAK CHAUDHRY (PETITOINER 2)

V.

UNION OF INDIA (RESPONDENT)

SUBMITTED TO THE HON’BLE APEX COURT

MEMORIAL ON BEHALF OF PETITIONER

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TABLE OF CONTENT

Sr. no. Title Pg. no.

1 LIST OF ABBREVIATIONS 6
2 INDEX OF AUTHORITIES 7
3 STATEMENT OF JURISDICTION 9
4 STATEMENT OF FACTS 10
5 STATEMENT OF ISSUES 12
6 SUMMARY OF ARGUMENTS 13
7 ARGUMENTS ADVANCED 17
8 PRAYER 34

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LIST OF ABBREVIATION

1 IT Act, 2002 Information

Technology Act,
2002
2 AIDS Acquired immunodeficiency
syndrome
3 PAN Permanent Account
Number
4 SLP Special Leave
Petition
5 No. Number
6 IIT Indian Institute of
Technology
7 ICCPR International
Covenant on Civil
and Political Rights
8 Retd. Retired
9 PDS Public Distribution
System
10 v. Versus
11 Anr. Another
12 Ors. Others

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INDEX OF AUTHORITIES

I. STATUTES

1. THE CONSTITUTION OF INDIA, 1950

2. THE AADHAAR (TARGETED DELIVERY OF FINANCIAL AND

OTHER SUBSIDIES, BENEFITS AND SERVICES) ACT, 2016

3. PARICHAY ACT, 2014

4. INFORMATION TECHNOLOGY ACT, 2000

II. BOOKS 1 JAIN M.P, INDIAN CONSTITUTIONAL LAW, 6TH

EDITION 2011, LEXISNEXIS

2 BASU D.D, SHORTER CONSTITUTION OF INTDIA, 14TH EDITION,

LEXISNEXIS.

3. SINGH M.P., V.N. SHUKLA’S CONSTITUTION OF INDIA, 13TH

EDITION 2017, EASTERN BOOK CO.

4. JAIN M.P & JAIN S.N, PRINCIPLES OF ADMINISTRATIVE LAW,

6TH ENLARGED ED., VOL. I, WADHWA NAGPUR, 2010.

5. JAIN M.P, INDIAN ADMINISTRATIVE LAW: CASES AND

MATERIALS, VOL. I.1994, WADHWA AND COMPANY NAGPUR, 1994,

1996.

6. PANDEY T.N, “RULE OF NATURAL JUSTICE IN THE ADMINISTRATION OF

LAW”, VOL. 131, TAXMAN, 2003.

7. BLACK HC, BLACK'S LAW DICTIONARY, STANDARD EDITION,

LEGAL SOLUTION

CASE LAW

Mukesh Kumar Ajmera v. State of Rajasthan, AIR 1997 RAJ 250

Govind v State of Madhya Pradesh, 1975 AIR 1378

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M.P Sharma Singh & others v. Satish Chandra & Others, 1954 AIR 300

Shankarlal Agarwalla vs State Bank of India1, AIR 1987 Calcutta 29

Mr. K.J. Doraisamy vs The Assistant General Manage, WRIT PETITION

No.17761 of 2006

Kharak Singh v. The state of U.P & others, 1963 AIR 1925

Sharda v. Dharmpal, (2003) 4 SCC 493

Maneka Gandhi v. Union of India, 1978 AIR 597

R. Rajagopal & Anr. v. State of Tamil Nadu & Ors, 1994 SCC (6) 632

Shankarlal Agarwalla vs State Bank of India1, AIR 1987 Calcutta 29

Gobind v State of Madhya Pradesh, (1975) 2 SCC 148

Basheshar Nath vs. the Commissioner Of Income-tax, Delhi & Rajasthan &

another 1959 AIR 149

Subedar v. State AIR 1956 All 529

PUCL v. Union of India, (2011) 14 SCC 331

State of Kerala & others vs. President, Parents Teachers Association, SNVUP

and Others, (2013) 2 SCC 705

PUCL (Night Shelter Matters) v. Union of India, (2013) 11 SCC 505

Lokniti Foundation v. Union of India & Ors, Writ Petition (C) No. 607 of

2016 decided on February 06, 2017

Justice K S Puttaswamy (Retd.), And Anr. v, Union Of India And Ors., Writ

Petition (Civil)

Binoy Viswam v. Union of India, Writ Petition(Civil) No.247 Of 2017,

Supreme Court of India

McDowell & Company Limited vs The Commercial Tax Officer, 1985 154

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STATEMENT OF JURISDICTION

It is humbly submitted that the petitioner has approached this Hon’ble Court invoking its
jurisdiction under Article 136 of the Indian Constitution.

Article 136 in the Constitution of India 1949:

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order
in any cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces

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STATEMENT OF FACTS

1. The State of India is a Union of States and is a secular state. India was a colony for
about 150 years and it became a democracy on 15th April 1947. India enacted its own
constitution which provided for a Parliamentary form of government with federal
structure. It also has an independent judiciary which is made the guardian to the
constitution of India.

2. The government of India constituted a National Unique Identification Authority on

30th May 2013 which would work for making Parichay cards to be provided to the
citizens by taking their basic and intrinsic information like fingerprints, iris scan, blood
group, PAN card, religion, educational qualification etc.

3. This policy of Mandatory Parichay cards was challenged by an eminent Jurist Sudhir
Mishra in the High Court of Delhi through a PIL titled Sudhir Mishra v. Union of India
contending that this Parichay Policy violate right to life including right to privacy.
Petitioner also contended that the data collected by the government from its citizens are
intimate and private information’s, and to make it mandatory to provide such information
is unconstitutional and violates his Fundamental Rights.

4. During pendency of the case the government of India enacted the Parichay Act 2014
which is also contended to be violative of right to privacy as the data so collected are not
safe and there exists threat of leakage of data to unauthorized hands who might misuse it.

5. Upon this the respondent assured before the High Court that soon they will implement
appropriate technical organization security measures for the information in question and
that the information required for mandatory Parichay card does not fall within the
definition of privacy. Hence, it is not violative.

6. In the meantime on 13th February 2015 the government of India issued a notification
making parichay cards mandatory for issuing PAN cards, driving licence, passport, Bank
Account etc. and fixed February 2017 as the last date for providing the information for
Parichay Card.

7. The high Court after hearing the petitioner and the respondent gave its decision that
Right to Privacy is not explicitly provided in the constitution of India and hence the
government Parichay Policy is not violative.

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8. Simultaneously, another PIL was filed in the Supreme Court by a renowned social
activist Mr. Dipak Choudhury titled as Mr. Dipak Choudhury v. Union of India upon the
government’s claim to have Unique Identification Number to 80% of the targeted
population questioning the linking and availability of cyber security scheme to the
members and also asked for assurance from the government that same shall not be issued
to illegal migrants based on residence criteria. Further asked for assurance to the citizens
of India that the government will provide stringent safeguards against duplicacy and
unauthorized usage.

9. Sudhir Mishra being aggrieved moved an appellate petition to the Supreme Court since
both cases involved same question of law the Supreme Court decided to club both the
cases and proceed with the hearing. Hence, the Supreme court has fixed the date of
hearing on 31st May 2018.

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STATEMENT OF ISSUES

1. WHETHER RIGHT TO PRIVACY A FUNDAMENTAL RIGHT UNDER THE

CONSTITUTION OF INDIA?

2. WHETHER KEEPING BIOMETRIC DATA OF THE CITIZENS WITH THE

GOVERNMENT AND LINKING IT WITH PAN CARD LEGALLY JUSTIFIED?

3. WHETHER PARICHAY ACT, 2014 IS CONSTITUTIONAL?

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SUMMARY OF ARGUMENTS

I. WHETHER RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT UNDER THE

CONSTITUTION OF INDIA?

Right to privacy is the fundamental right enshrined within the right to life and liberty.
This right is so crucial that it becomes dangerous not to put such a right into the
fundamental rights. The right of privacy gets ample amount of attention as well as due
weight from the foreign courts, making it stand in the category of fundamental rights.
Countries such as the U.S.A, U.K among others, with its various judgements, have
considered it a Fundamental Right. Constitution of India, its commitment under various
international laws and the stand of Indian judiciary altogether prove, cogently, that right
to privacy is a fundamental right.

II. WHETHER KEEPING BIOMETRIC DATA OF THE CITIZENS WITH THE

GOVERNMENT AND LINKING IT WITH PAN CARD LEGALLY JUSTIFIED?

The data collected by the government from its citizens are intimate and private
information, and to make it mandatory to provide such information is unconstitutional
and violates his fundamental rights. The data so collected are not safe and there exists
threat of leakage of data to unauthorised hands who might misuse it. Keeping biometric
data of citizens with the government and linking it with PAN card is not justified as it
violates the right of privacy of citizens. data collected by government is not safe and it
can be leaked to private entities very easily threatening the life and liberty of the citizens.
The petitioner also wants to contend that 13 Crore data of citizens was leaked from
Parichay database and now this data is in the hands of the private companies, which can
use this data for telemarketing, making the life of the consumers/citizens hell by selling
all sorts of products to them.

III. WHETHER PARICHAY ACT, 2014 IS CONSTITUTIONAL?

The Parichay Act fails to fulfil both the tests which are indispensable for the correct
application of the Act forming the very ground for it to be a success. The twin test
classification puts forth two conditions to be complied with. These are: (I) Reasonable
classification; (ii) The presence of a Nexus of this reasonable classification to the basic
objective to be achieved. In the instant case the second condition is, clearly, ignored. The
state has failed to show that mandatory Linking of Parichay card with its accompanying

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consequences will make the state their goal. Putting an individual's privacy at stake,
without a reasonable condition, is the biggest danger the state can throw itself into. There
is a possibility of misuse of personal information parted with by an individual in the form
of biometrics. Various native and foreign laws/precedents emphasized time and time
again, on the importance of privacy. It ought not to be taken away by unconstitutional
conditions. The petitioner has this right as a fundamental right for which the provision of
invoking writs is also a remedy.

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ARGUMENTS ADVANCED

I. WHETHER RIGHT TO PRIVACY A FUNDAMENTAL RIGHT UNDER THE

CONSTITUTION OF INDIA?

Any meaningful human existence requires independence in thought and action which is
protected by privacy. The legal definition of privacy has evolved over a period of time.
In an 1890 article by Samuel Warren and Louis Brandeis who were concerned about the
invasion of privacy by the photographic images, argued for the creation of a general right
of privacy that would give an individual a right to prevent the unauthorized use of private
matters by the press. The authors foresaw that new technologies, such as the telephone
and photographs, would lead to violation of the right to be let alone, and they concluded
that privacy protection required better legal protection.

In 1967, a more modern definition of the Right to Privacy was propounded by Alan
Westin, which has also been accepted by the US Supreme Court. According to this
definition, the Right to Privacy is the “claim of individual, groups and institutions to
determine for themselves when, how and to what extent information about them is
communicated to others”. Although privacy may be a value common to most societies,
its recognition as an enforceable right in various legal systems has been relatively recent.
The French Declaration of Rights of Man and the American Bill of Rights both have fairly
specific declarations on the freedom of expression, but no equivalent general statement
of the Right to Privacy. It is heartening to see that the US courts did a good job in
protecting Right to Privacy.

Indian judicial response to privacy

The law on the Right to Privacy was almost well settled and the current controversy was
unnecessary. The case in which the issue of Right to Privacy was indirectly raised was
M.P Sharma1(1954), where the central question was about the state power of search and
seizure. The court strangely pointed out the lack of specific provisions on the Right to
Privacy in the Constitution like the Fourth Amendment of the US Constitution providing
for the right of the people to be secure in their persons, houses, papers, and other effects
against unreasonable search and seizure under the Indian Constitution and concluded in

1
M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300

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just one sentence that in such a situation we could not import a Right to Privacy in India.
In Kharak Singh2 case, six judges conceded the common law maxim that ‘everyman’s
home is his castle’ and held the regulations as unconstitutional but yet again in one small
sentence judgement said that there was no fundamental Right to Privacy in India. But
then there was a powerful dissenting judgement of Justice Subba Rao who argued that
even though the Right to Privacy was not specifically mentioned yet it was a necessary
ingredient of the right to personal liberty. In Gobind3 this minority opinion of Kharak
Singh4 case became the majority opinion. Justices Matthew, Krishna Iyer and Goswami,
JJ accepted the view that there does exit a Right to Privacy in India. They certainly
realized as Brandies, J. said in his dissent in Olmstead v. United States5, the significance
of man’s spiritual nature, of his feelings and his intellect and that only a part of the pain,
pleasure, satisfaction of life can be found in material things and, therefore, they must be
deemed to have conferred upon the individuals as against the government, a sphere in
which he should be left alone. The court without being hampered by precedent
consciousness held the Right to Privacy as an independent fundamental right, emanating
from the rights to personal liberty, freedom of speech and the freedom of movement. (the
US Court reviewed whether the use of evidence disclosed in wiretapped private telephone
conversations by federal agents, without judicial approval violated privacy) Then in
Malak Singh6, the court went a step ahead and held that surveillance was intrusive and
seriously encroached on the Right to Privacy guaranteed by Article 21 and 19(1) (d). In
Madhu Kumar Narain7, the ambit of the Right to Privacy was further enlarged when the
court rightly held that even woman of easy virtue had a Right to Privacy and no one was
entitled to invade her privacy. In Neera8, where a probationer with the Life Insurance
Corporation during medical examination had given a false declaration about her last
menstruation period, the court found clauses such as regularity of menstrual cycle and
number of conceptions, etc. as violation of the Right to Privacy and ordered deletion of

2
Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295
3
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148
4
Ibid
5
Olmstead v United States, 277 US 438 (1928)
6
Malak Singh v State of Punjab and Haryana, (1981) 1 SCC 420
7
State of Maharashtra v Madhukar Narayan Mardikar, (1991) 1 SCC 57
8
Mrs. Neera Mathur Vs. Life Insurance Corporation of India and Anr, AIR 1992 SC 392

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such columns. In Raja Gopal9, the apex court declared that even a person condemned to
death by the court had the Right to Privacy which was a fundamental right under Article
21. In People's Union of Civil Liberties vs Union of India and Anr10, after referring to
the cases of Gobind v state of Madhya Pradesh11 and Kharak Singh vs State of UP12, it
was finally stated that privacy as a right is imbibed within the meaning of “life” and
“personal liberty” under Article 21. Court in the present case observed in para 18: “we
have, therefore, no hesitation in holding that right to privacy is a part of the right to "life"
and "personal liberty" enshrined under Article 21 of the Constitution. Once the facts in a
given case constitute a right to privacy, Article 21 is attracted.”

The apex court declared that telephone tapping did violate the Right to Privacy which was
an integral part of not only the right to personal liberty but also freedom of speech and
expression. Then in Hinsa Virodhak Sangh 13 laid down that food preferences i.e.
vegetarian or nonvegetarian are included within the Right to Privacy. In case the court
observed: “What one eats is one's personal affair and it is a part of his right to privacy
which is included in Article 21 of our Constitution as held by several decisions of this
Court.” In District Registrar and Collector, Hyderabad v Canara Bank14, a judgement by
2 judge benches reaffirmed the fact that right to privacy emanates from liberties under
Article 19 and from protection of life and personal liberty under Article 21. Secondly, the
right to privacy is construed as a right which attaches to the person. In the view of the
Court, even if the documents cease to be at a place other than in the custody and control
of the customer, privacy attaches to persons and not places and hence the protection of
privacy is not diluted. Thirdly, information provided by an individual to a third party (in
that case a bank) carries with it a reasonable expectation that it will be utilized only for
the purpose for which it is provided. Parting with information (to the bank) does not
deprive the individual of the privacy interest. The reasonable expectation is allied to the

9
R. Rajagopal vs State Of T.N, 1995 AIR 264
10
PUCL v. Union of India, (1997) 1 SCC 301
11
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148
12
Kharak Singh vs. The State of U.P. and Ors. 1962 (1) SCR 332
13
Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat, (2008) 5 SCC 33
14
District Registrar and Collector, Hyderabad v Canara Bank, (2005) 1 SCC 496

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purpose for which information is provided. The decision in Canara Bank 15 has thus
important consequences for recognizing informational privacy.

India’s commitments under international law

The recognition of privacy as a fundamental constitutional value is part of India’s

commitment to a global human rights regime. Article 51 of the Constitution, which forms
part of the Directive Principles, requires the state to endeavour to “foster respect for
international law and treaty obligations in the dealings of organized peoples with one
another.

Article 12 of the UDHR, recognizes the right to privacy:

“Article 12: No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or attacks”.

Similarly, Article 17 the ICCPR provides:

“Article 17: The obligations imposed by this article require the State to adopt legislative
and other measures to give effect to the prohibition against such interferences and attacks
as well as to the protection of the right.”

The ICCPR casts an obligation on states to respect, protect and fulfil its norms. The duty
of a State to respect the right mandates that it must not violate the right. The duty to
protect the right mandates that the government must protect it against any interference,
even by private parties. The duty to fulfil norms postulates that government must take
steps towards realization of a right. While elaborating the rights under Article 17, general
comment specifically stipulates that:

“there is universal recognition of the fundamental importance, and enduring relevance, of

the right to privacy and of the need to ensure that it is safeguarded, in law and practice.”

Significantly, while acceding to the ICCPR, India did not file any reservation or
declaration to Article 17. Therefore, we are mandated to recognize right to privacy and
safeguard it. In the present case, there is no contradiction between the international
obligations assumed by state of India and the Constitution. There is no such inconsistency
between Indian laws which would make courts not to readily presume Privacy to be

15
Ibid

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fundamental. Our constitutional provisions must be read and interpreted in a manner

which would enhance their conformity with the global human rights regime.

II. WHETHER KEEPING BIOMETRIC DATA OF THE CITIZENS WITH THE

GOVERNMENT AND LINKING IT WITH PAN CARD LEGALLY JUSTIFIED?

1. It is humbly submitted before this Hon’ble bench that collection of data under the
Parichay Act, 2014 much less by Private entities is violative of Right to Privacy under
Article 21 of the Constitution of India.

2. It is humbly submitted that “Privacy is the constitutional core of human dignity. Privacy
has both a normative and descriptive function. At a normative level privacy sub-serves
those eternal values upon which the guarantees of life, liberty and freedom are founded.
Privacy includes at its core the preservation of personal intimacies, the sanctity of family
life, marriage, procreation, the home and sexual orientation. Personal choices governing
a way of life are intrinsic to privacy. While the legitimate expectation of privacy may
vary from the intimate zone to the private zone and from the private to the public arenas,
it is important to underscore that privacy is not lost or surrendered merely because the
individual is in a public place. Privacy attaches to the person since it is an essential facet
of the dignity of the human being”.16

3. It is humbly submitted that: As stated by this Hon’ble Court “The state must ensure
that information is not used without the consent of users and that it is used for the purpose
and to the extent it was disclosed. Thus, for e.g., if the posting on social media websites
is meant only for a certain audience, which is possible as per tools available, then it cannot
be said that all and sundry in public have a right to somehow access that information and
make use of it.17

4. It is humbly submitted on behalf of the petitioners that data collected by government

is not safe and it can be leaked to private entities very easily threatening the life and liberty
of the citizens. The petitioner also wants to contend that 13 Crore data of citizens was
leaked from Parichay database and now this data is in the hands of the private companies,
which can use this data for telemarketing, making the life of the consumers/citizens hell
by selling all sorts of products to them. Also, recently an IIT passed graduate hacked into
Parichay database to use its data for his online payment app. That the petitioners also

16
MANU/SC/1044/2017
17
Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors.

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contend that such data can be used by majoritarian governments for communal profiling
of communities and hence depriving them of basic rights and amenities provided by the
government. It is important to understand that this will result into massacre, if some
dictator assumes power in the republic of India. Hence, as the most intimate
information/data is demanded under Parichay scheme and is integral to personality and
hence violation of right to life under Article 21 of the Indian Constitution. Also, that the
collection of data by private entities for the making of Parichay card as government of
India is not having adequate resources and staff for this purpose.

5. The petitioner humbly submits that the government cannot just delegate its work to
private entities when privacy of the citizen can be violated in case on any misuse. In
District Registrar and collector, Hyderabad v. Canara bank18, the Right to Privacy was
construed as a right which attaches to the person. The significance of this is that the Right
to privacy is not lost as a result of confidential documents or information being parted
with by the customer to the custody of the bank. Access to bank records to the collector
does not permit a delegation of those powers by the collector to a private individual.
Information provided by an individual to a third party (in that case a bank) carries with it
a reasonable expectation that it will be utilized only for the purpose for which it is
provided. Parting with information (to the bank) does not deprive the individual of the
privacy interest. The reasonable expectation is allied to the purpose for which information
is provided. While legitimate aims of the state, such as the protection of the revenue may
intervene to permit a disclosure to the state, the state must take care to ensure that the
information is not accessed by a private entity.

6. The petitioner humbly submits that: “Data mining with the object of ensuring that
resources are properly deployed to legitimate beneficiaries is a valid ground for the state
to insist on the collection of authentic data. But the data which the state has collected has
to be utilized for legitimate purposes of the state and ought not to be utilized unauthorized
for extraneous purposes”.19

7. It is humbly submitted before this Hon’ble bench that the executive authority is
deriving excessive power then delegated by the Act, as the information asked from the
individual for making of Parichay card is much more then mentioned in the Act. As to

18
District Registrar and collector, Hyderabad v. Canara bank (2005) 1 SCC 496
19
Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. (24.08.2017 - SC)

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provide Parichay cards to the citizens their basic details like finger prints of both the
hands, scanning of iris of the eyes, blood group, spouse and child (ren) details, their
educational qualifications, number of spouses, the religion to which both spouse belong
to, laws under which marriage is solemnized, details of life-threatening diseases like
AIDS, Cancer and Hepatitis-B, permanent infertility both in male and female and
Criminal/civil cases pending in any court and government loan or any other liability on
the citizen are being taken by the Private vendors for making of Parichay Cards. Whereas
Parichay Act, 2014 states that for enrolling for Parichay Card one has to submit their
Biometrics and Demographic information as stated below: Section 3: (1) Every resident
shall be entitled to obtain a Parichay number by submitting his demographic information
and biometric information by undergoing the process of enrolment: Provided that the
Central Government may, from time to time, notify such other category of individuals
who may be entitled to obtain a Parichay number. (2) The enrolling agency shall, at the
time of enrolment, inform the individual undergoing enrolment of the following details
in such manner as may be specified by regulations, namely:— (a) The manner in which
the information shall be used; (b) The nature of recipients with whom the information is
intended to be shared during authentication; and (c) the existence of a right to access
information, the procedure for making requests for such access, and details of the person
or department in-charge to whom such requests can be made. (3) On receipt of the
demographic information and biometric information under subsection (1), the Authority
shall, after verifying the information, in such manner as may be specified by regulations,
issue a Parichay number to such individual. Whereas Section 2(g), Section 2(j) and
Section 2(k) of the Parichay Act, 2014 defines the Biometric and Core- Biometric and
Demographic information as: 2(g) “biometric information” means photograph, finger
print, Iris scan, or such other biological attributes of an individual as may be specified by
regulations; Section 2(j) “core biometric information” means finger print, Iris scan, or
such other biological attribute of an individual as may be specified by regulations; Section
2(k) “demographic information” includes information relating to the name, date of birth,
address and other relevant information of an individual, as may be specified by
regulations for the purpose of issuing an Parichay number, but shall not include race,
religion, caste, tribe, ethnicity, language, records of entitlement, income or medical
history.

8. The petitioner humbly submits that reading the provisions it is crystal clear that
excessive information is being asked for the purpose of making Parichay Card which is

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prohibited in the Provision itself. And also, the information being collected is of very
personal nature and therefore violative of Article 21 of the Constitution of India.

9. The Petitioners submits that In District Registrar and collector, Hyderabad v. Canara
bank 20 , it was reaffirmed that the right to privacy as emanating from the liberties
guaranteed by Article 19 and from the protection of life and personal liberty under Article
21. The court finds the foundation for the reaffirmation of this right not only in the
judgments in Kharak singh v. State of Uttar Pradesh21 and Gobind v. State of Madhya
Pradesh 22 and the cases which followed, but also in terms of India’s international
commitments under the universal declaration of Human Rights and International
Covenant on Civil and Political rights (ICCPR).

10. The petitioner contends that it is also necessary to highlight that a large section of
citizens feel concerned about possible data leak. This is a concern which needs to be
addressed by the government. It is important that the aforesaid apprehensions are
assuaged by taking proper measures so that confidence is instilled among the public at
large that there is no chance of unauthorized leakage of data whether it is done by
tightening the operations of the private entities who are given the job of enrolment, they
being private persons or by prescribing severe penalties to those who are found guilty of
leaking the details, is the outlook of the government. However, petitioner emphasize that
measures in this behalf are absolutely essential and it would be in the fitness of things
that proper scheme in this behalf is devised at the earliest as once the data is leaked it can
be transferred easily so just severe penalties are not sufficient. As information which is
already leaked cannot be protected further and therefore violates right to privacy of
citizen.

11. Therefore, the petitioner contends that the collection of information by private entities
is excessive then the information mentioned in the Parichay Act, 2014 and therefore is
Violative of Article 21 of the Constitution of India and also is not safe and stringent data
protection laws should be complied with, since a large data is already loosed. Government
should take measures to somehow protect the privacy of citizens and since data is leaked
hence, it violates of Article 21 i.e., Right to Life under which Right to Privacy is infringed.

20
District Registrar and collector, Hyderabad v. Canara bank (2005) 1 SCC 496
21
Kharak singh v. State of Uttar Pradesh (1964) 1 SCR 332
22
Gobind v. State of Madhya Pradesh (1975) 2 SCC 148

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III. WHETHER PARICHAY ACT, 2014 IS CONSTITUTIONAL?

1. Parichay act is violation of Art. 14 on the application of the twin-test of classification,

which is there should be a reasonable classification and that this classification should have
rational nexus with the objective sought to be achieved First test is met as individual
assesses form a separate class and, to this extent, there is a rational differentiation between
individuals and other categories of assesses. But the second limb of the twin-test of
classification is not satisfied because there is no rational nexus with the object sought to
be achieved. Objectives of the Parichay act are as follows:

• It is also meant to save duplicity of identities such as election cards, PAN cards

• The Parichay is meant to identify citizens for various benefits given by the government
and to check the leakage in government schemes and to prevent corruption happening in
PDS and other subsidy providing schemes of the government.

2. Basically, the philosophy behind this policy is ‘Zero Tolerance for corruption’. Even
if the State succeeds in showing a proper purpose and a rational connection with the
purpose, thereby meeting the test of Article 14, the impugned law clearly fails on clauses
(iii) (narrow tailoring) and (iv) (balancing) of the proportionality test of the above
decision. The State has failed to show that mandatory Linking of Parichay card with its
accompanying consequences for the life of an individual is narrowly tailored to achieving
its goal. In accordance with the arguments advanced above, the State’s own data shows
that the problem of duplicate PANs or Election cards was minuscule, and the gap between
the tax payer base and the PAN Card holding population can be explained by plausible
factors other than duplicates and forgeries. There is no wisdom compelling 99.6% of the
taxpaying citizenry to enrol for Parichay (with the further prospect of seeding) in order to
weed out the 0.4% of duplicate PAN Cards, as it fails the proportionality test entirely. On
the principle of proportionality, it is submitted that this principle was applied in the R.K.
Dalmia23 case as per the following passage:

“11 … (d) that the Legislature is free to recognize degrees of harm and may confine its
restrictions to those cases where the need is deemed to be the clearest; (e) that in order to
sustain the presumption of constitutionality the court may take into consideration matters
of common knowledge, matters of common report, the history of the times and may

23
R.K. Dalmia v. Justice S.R. Tendolkar, (1959) SCR 279

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assume every state of facts which can be conceived existing at the time of legislation;”
The affected persons by the objectives are individuals including people who are
professionals like lawyers, doctors, architects etc. and lakhs of businessmen having small
or micro enterprises. If the linking of Parichay to PAN and bank account is made
mandatory then there is a direct infringement to Art. 19(1)(g). Once it is shown that the
right under Art. 19(1)(g) has been infringed, the burden shifts to the State to show that
the restriction is reasonable, and in the interests of the public, under Art. 19(6) of the
Constitution. The correct test to apply in the context of Art. 19(6) was the test of
proportionality. The right to life extends to allowing a person to preserve and protect his
or her finger prints and iris scan. Thus, every individual or citizen in this country has
complete control over his/her body and State cannot insist any person for giving his/her
finger tips or iris of eyes, as a condition precedent to enjoy certain rights. Whenever a
person voluntarily entrusts his finger prints and iris scan to the state, the ‘property’ and
entitlement is retained with that individual throughout his life but the state merely acts as
a trustee or fiduciary. The trustee or fiduciary cannot compel the “beneficiary” to part
with such sensitive person information. According to John Locke, “Though the Earth, and
all inferior Creatures be common to all Men, yet every Man has a Property in his own
Person,” and Salmond reminds us that he speaks “of a man’s right to preserve his own
property i.e. his life, liberty and estate.” With today’s technology, there is every
possibility of copying the fingerprint and even the iris images. Various cases of fake
Parichay Card had come to light and even as per the Government’s statement, 3.48 lakh
bogus Parichay Cards were cancelled. There were instances of Parichay leak as well. Even
hacking is possible. Hence, the impugned provision coerces the individuals to part with
their private information which was a part of human dignity and, thus, the said provision
was violative of Art. 21 of the Constitution as it offended human dignity. In Maneka
Gandhi v. Union of India24, it was stated: "procedure which deals with the modalities of
regulating, restricting or even rejecting a fundamental right falling within Art. 21 has to
be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right
itself".

Republic of India is a sovereign country, its governance is controlled by the provisions of

the Constitution which sets parameters within which three wings of the State, namely,
Legislature, Executive and Judiciary has to function. Thus, no wing of the State can

24
Maneka Gandhi v. Union of India, 1978 AIR 597

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breach the limitations provided in the Constitution which employs an array of checks and
balances to ensure open, accountable government where each wing of the State performs
its actions for the benefit of the people and within its sphere of responsibility. The checks
and balances are many and amongst them are the respective roles assigned by the
Constitution to the legislature, the executive and the judiciary. Provisions in the
Constitution such as the fundamental rights chapter (Part III) and the chapter relating to
inter-state trade (Part XIII) also circumscribe the authority of the State. These limitations
on the power of the State support the notion of ‘limited government’. In this sense, the
expression ‘limited government’ would mean that each wing of the State is restricted by
provisions of the Constitution and other laws and is required to operate within its
legitimate sphere. Exceeding these limits would render the action of the State ultra vires
the Constitution or a particular law. This notion of a limited government is qua the
citizenry as a whole. There are certain things that the State simply cannot do, because the
action fundamentally alters the relationship between the citizens and the State. The
wholesale collection of biometric data including finger prints and storing it at a central
depository per se puts the State in an extremely dominant position in relation to the
individual citizen. Biometric data belongs to the concerned individual and the State
cannot collect or retain it to be used against the individual or to his or her prejudice in the
future. Further the State cannot put itself in a position where it can track an individual and
engage in surveillance. The State cannot deprive or withhold the enjoyment of rights and
entitlements by an individual or makes such entitlements conditional on a citizen parting
with her biometrics. The distinction between an individual or person and the State is the
single most important factor that distinguishes a totalitarian State from one that respects
individuals and recognizes their special identity and entitlement to dignity. The
Constitution does not establish a totalitarian State but creates a State that is respectful of
individual liberty and constitutionally guaranteed freedoms. The Constitution is not a
charter of servitude. There can be no question of free consent in situations where an
individual is being coerced to part with its biometric information (a) to be eligible for
welfare schemes of the State; and/or (b) under the threat of penal consequences. In other
words, the State cannot compel a person to part with biometrics as a condition precedent
for discharge of the State’s constitutional and statutory obligations, it has to be voluntary
Art. 21, guarantees the protection of “personal autonomy” of an individual personal
autonomy includes both the negative right of not to be subject to interference by others
and the positive right of individuals to make decisions about their life, to express

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themselves and to choose which activities to take part in. In Sunil Batra & Anr. v. Delhi
Administration & Ors25. And what is “life” in Art. 21? In Kharak Singh case26 Subba
Rao, J. quoted Field, J. in Munn v. Illinois27 to emphasise the quality of life covered by
Art. 21 “Something more than mere animal existence. The inhibition against its
deprivation extends to all those limbs and faculties by which life is enjoyed.” A dynamic
meaning must attach to life and liberty.” In general, in common law it is the right of every
individual to have the control of his own person free from all restraints or interferences
of others In the United States this right is reinforced by a constitutional right of privacy.
This is known as the principle of self-determination or informed consent. the informed
consent doctrine has become firmly entrenched in American Tort Law.

3. The logical corollary of the doctrine of informed consent is that the patient generally
possesses the right not to consent, that is, to refuse treatment. Hence, the right to life and
liberty and personal liberty under Art. 21 covers and extends to a person’s right to protect
his or her body and identity from harm. The right to life extends to allowing a person to
preserve and protect his or her finger prints and iris scan. In conclusion the basic structure
test propounded by the apex court, if any law encroaches upon the fundamental rights
guaranteed under part III of the constitution, then such law would be against basic
structure of the constitution and would be void. This test was reaffirmed in Minerva Mills
Ltd. & Ors v Union of India & Ors28 and I.R. Coelho (Dead) v State of Tamil Nadu &
Ors29.

Parichay act and private entities

1. Furthermore, the main objective of the Parichay confines itself only to governmental
entities. However, the Act also allows private persons to use Parichay as a proof of
identity for any purpose. Thus, allowing private agencies to use Parichay contradicts
statement of objects and reasons of the Bill. There is a possibility of misuse of personal
information parted with by the citizenry in the form of biometrics i.e. finger prints and
iris scan. The requirement of enrolment for Parichay is designed to facilitate and

25
Sunil Batra & Anr. v. Delhi Administration & Ors, 1980 AIR 1579
26
Kharak Singh v The State of U. P. & Others, 1963 AIR 1295
27
Munn v. Illinois, 94 US 113 (1877)
28
Minerva Mills Ltd. & Ors v Union of India & Ors, 1981 SCR (1) 206
29
I.R. Coelho (Dead) By Lrs v State Of Tamil Nadu & Ors, AIR 2007 SC 861

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encourage private sector operators to create applications that depend upon the Parichay
data base for the purposes of authentication/verification. This would mean that non-
governmental, private sector entities such as banks, employers, any point of payment, taxi
services, airlines, colleges, schools, movie theatres, clubs, service providers, travel
companies, etc. will all utilize the Parichay data base and may also insist upon an Parichay
number or Parichay authentication. This would mean that at every stage in an individual’s
daily activity his or her presence could be traced to a location in real time. One of the
purposes of Parichay is that it will be a single point verification for KYC. This is
permissible and indeed contemplated by the impugned Act. Given the very poor quality
of scrutiny of documents by private enrollers and enrolment agencies (without any
governmental supervision) means that the more rigorous KYC process at present being
employed by banks and other financial institutions will yield to a system which depends
on a much weaker data base. This would eventually imperil the integrity of the financial
system and also threaten the economic sovereignty of the nation. The provision by laying
down Mandatory enrolment of Parichay becomes discriminatory qua that class and,
therefore, is violative of Art. 14 of the Constitution. Thus, it enforces conformity as it
fails to satisfy the two tests. In the case of Subramanian Swamy v. Director, Central
Bureau of Investigation & Anr30.:

“58. The Constitution permits the State to determine, by the process of classification,
what should be regarded as a class for purposes of legislation and in relation to law
enacted on a particular subject. The basis of classification must be sound and must have
reasonable relation to the object of the legislation. If the object itself is discriminatory,
then explanation that classification is reasonable having rational relation to the object
sought to be achieved is immaterial.”

2. Parichay by its very design and by its statute is “voluntary” and creates a right in favour
of a resident without imposing any duty. There is no compulsion under the Parichay Act
to enrol or obtain a number. If a person chooses not to enrol, at the highest, in terms of
the Parichay Act, he or she may be denied access to certain benefits and services funded
through the Consolidated Fund of India. Sec.3 of the Parichay Act spells out that
enrolment of Parichay is voluntarily and consensual and not compulsory or by way of
executive action. Whereas there was a total reversal of the aforesaid approach by the high

30
Subramanian Swamy v. Director, Central Bureau of Investigation & Anr, (2014) 8 SCC 682

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court of Delhi. This mandating was unconstitutional. The Parichay Act came into force
on August 11, 2014. The Parliament continued to maintain Parichay as a voluntary
scheme vide Sec. 3 of the said Act. If Parliament so desired, it could have removed the
basis of this Court’s order by: (i) Amending Sec. 3 so that Parichay is made compulsory
for every resident of India; or (ii) Introducing either a proviso or adding a sub-section in
Sec. 3 to the following effect:

“Notwithstanding anything contained in sub-section (1), the Central Government may

notify specific purposes for which obtaining Parichay numbers may be made mandatory
in public interest.”

3. As long as the Parichay enactment holds the field, there is an implied limitation on the
power of Parliament not to pass a contrary law. Also, there was no compelling state
interest in having introducing compulsive element and depriving from erstwhile voluntary
nature of Parichay scheme. The ‘proportionality of means’ concept is an essential one
since integrating data beyond what is really necessary for the stated purpose is clearly
unconstitutional. In light of the decision in the case of Gobind v. State of Madhya
Pradesh31, which has been the position of this Court since the past forty-two years and
has been cited with approval often, the State has the onerous burden of justifying the
impugned mandatory provision. The ‘compelling state interest’ justification is only one
aspect of the broader ‘strict scrutiny’ test. The other essential facet is to demonstrate
‘narrow tailoring’, i.e., that the State must demonstrate that even if a compelling interest
exists, it has adopted a method that will infringe in the narrowest possible manner upon
individual rights. There is no compelling State interest warranting such a mandatory
provision. Sec. 29 puts a blanket embargo on using the core biometric information,
collected or created under the Parichay Act for any purpose other than generation of
Parichay numbers and authentication under the Parichay Act. The impugned provision
further confirms voluntary in nature, there was no question of making this very provision
mandatory. In Olga Tellis & Ors. V.Bombay Municipal Corporation & Ors. Etc32.

“It is far too well-settled to admit of any argument that the procedure prescribed by law
for the deprivation of the right conferred by Art. 2190 must be fair, just and reasonable.”

31
Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148
32
Olga Tellis & Ors. v.Bombay Municipal Corporation & Ors. Etc, 1986 AIR 180

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4. The government has argued that access to benefits can only occur upon the surrendering
of privacy. The real issue is not whether, in the abstract, citizens can surrender their
fundamental rights if they so choose. It is whether the government can impose waiver of
fundamental rights as a condition for accessing certain benefits. With respect to Parichay,
the debate has been framed around the needs of poorer citizens to access government
benefits. For many of these citizens, the choice between accessing benefits and losing
privacy is a false choice, because it requires them to choose between a privilege that is
essential for their livelihood, and a fundamental right. After the Right to Privacy
Judgement in KS Puttaswamy v Union of India33 the right to privacy is a fundamental
right. The question is can it then be waived voluntarily? The Supreme Court in Behram
v State of Maharashtra34 examined this question and stated that fundamental rights were
not kept in the Constitution merely for individual benefits. Fundamental rights were a
matter of public policy and thus, the doctrine of waiver does not apply in case of
fundamental rights. In other words, a citizen cannot ‘give up’ his fundamental rights.
Later, in the Basheshar Nath case35 limiting their decision to Art. 14, held that the right
conferred by the article, could not be waived.

DOCTRINE OF UNCONSTITUTIONAL CONDITIONS

1. The Supreme Court in 1974 elaborated the doctrine of unconstitutional condition in

Ahmedabad St Xavier’s College v State of Gujarat36 as

“any stipulation imposed upon the grant of a governmental privilege which in effect
requires the recipient of the privilege to relinquish some constitutional right.”

2. ‘The doctrine of unconstitutional condition’ means any stipulation imposed upon the
grant of a governmental privilege which in effect requires the recipient of the privilege to
relinquish some constitutional right. This doctrine emphasizes the right he is conceded to
possess by reason of an explicit provision of the Constitution, Justice Sutherland of the
US Supreme Court had spelt out how an unconstitutional condition, in the garb of
voluntariness, gives the carrier no choice “except a choice between the rock and the
whirlpool – an option to forego a privilege which may be vital to his livelihood or submit

33
Justice K S Puttaswamy (Retd.), And Anr. v, Union of India And Ors., Writ Petition (Civil) No 494 Of 2012
34
Behram v State of Maharashtra, AIR 1955 SC 123
35
Basheshar Nath vs. the Commissioner of Income-tax, Delhi & Rajasthan, 1959 AIR 149
36
Ahmedabad St Xavier’s College v State of Gujarat, 1975 SCR (1) 173

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to a requirement which may constitute an intolerable burden.” This is much the same as
what Das, C.J. said:” No educational institutions can in actual practice be carried on
without aid from the State and if they will not get it unless they surrender their rights,
they will, by compulsion of financial necessities, be compelled to give up their rights
under Art. 30(1). This doctrine posits that a condition attached to the grant of a
governmental benefit is unconstitutional if it requires the relinquishment of a
constitutional right. Unconstitutional condition on the receipt of a public benefit and came
within the rule of cases like Perry v. Sindermann. The government may not deny a benefit
to a person on a basis that infringes his constitutionally protected interests-especially. In
Re Kerala Education Bill37 and Ahmedabad St Xavier’s College38 make it clear that by
putting citizens in a position where they have to make a choice between a necessity and
the waiver of fundamental rights, the government is effectively giving them no choice at
all, and is restricting their fundamental rights indirectly, by providing an illusion of choice
and waiver. The power of the state is not unlimited; and one of the limitations is that it
may not impose conditions which require relinquishment of constitutional rights. It is
inconceivable that guarantees embedded in the Constitution of the United States may thus
be manipulated out of existence.

3. In chapter 7 of the Parichay regulations, there is a provision for a grievance redressal

mechanism whereby a person can approach a call centre through phone or email which
will provide residents with a tracking number till the matter is closed. But this is not
enough. There is no requirement for the call centre to give you a reasoned order like a
public authority does. The regulations are also weak on grievance redressal, and are
completely absent on authentication and data security. decision.

DATA MAINTAINED BY PARICHAY IS SENSITIVE DATA

4. “Nobody claims it is not a social justice welfare scheme. What they are worried about
is that whether information given to the agencies will be safe and for that do you have a
robust law. And if you don’t then you must have one,” Justice Chandrachud Pointing out
that Parichay “enrollers”, who collect citizens’ data and biometrics, are private parties
and there is serious threat of misuse or leakage of data “There are cases where such
information has been commercially sold. The law says life and body is paramount and if

37
In RE: The Kerala Education Bill, 1959 1 SCR 995
38
Ahmedabad St Xavier’s College v State of Gujarat, 1975 SCR (1) 173

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the fingerprints of an individual are stolen, it might end his identity. If we fail here, there
is tremendous possibility that state will dilute civil liberties and dominate its citizens. The
concept of civil liberties will go then.” In this new world the data is the new "oil", be it
the governments or the companies all want your data. Public Distribution System
(Ration), Health information, Mobile Number, Financial Details, Purchases, Loans,
Violations, Travel information, PAN, Electricity consumption, Water consumption of a
person are all linked to the Parichay, which is nothing but their detailed profile. Thus,
Parichay is mass surveillance technology. Unlike, targeted surveillance which is a good
thing, and essential for national security and public order — mass surveillance
undermines security. Data collected by government is not safe and it can be leaked to
private entities very easily threatening the life and liberty of the citizens, viz. 13 crore
data of citizens was leaked from Parichay. Moreover, recently an IIT passed graduate
hacked into Parichay database to use its data for his online payment App. Critics say the
Parichay identity card links enough data to allow profiling because it creates a
comprehensive profile of a person's spending habits, their friends and acquaintances, the
property they own, and a trove of other information. There are fears the data could be
misused by a government. Many 3rd parties are creating private database with Parichay
information and interlinking the identity with other sources. E.g. If a company combines
Parichay information with e commerce transactions, it can provide a very detailed profile
of an individual. Thus, Parichay makes it easier to compare and combine diverse
databases. Moreover, when NUIDA started its work of making Parichay cards, it assigned
this task to private entities having expertise in this field. These private entities further
outsourced this work to private vendors in every district and block of India to provide
Parichay cards to the citizens by taking their basic details like finger prints of both the
hands, scanning of iris of the eyes, blood group, spouse and child(ren) details, their
educational qualifications, number of spouses, the religion to which both spouse belong
to, laws under which marriage is solemnized, details of life-threatening diseases like
AIDS, Cancer and Hepatitis-B, permanent infertility both in male and female and
criminal/civil cases pending in any court and government loan or any other liability on
the citizen. This kind of process will lead to misuse of sensitive information in the hands
of unauthorised people. The other issue with binding so much information of a citizen,
including their bank accounts, to their Parichay card is if another country were to hack to
Parichay database. India deals with frequent cyber-attacks from China and Pakistan.
Republic of India has no specific legislation focusing on data protection. A few principles

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of data protection are scattered through IT Act, Guidelines issued by RBI, TRAI etc. The
Lok Sabha Standing Committee on Finance report on the Bill had given the United
Kingdom’s example to raise concerns over Parichay’s security. (Incidentally, the UK had
abandoned its ID project due to “high cost, unsafe, untested technology and the changing
relationship between the state and the citizen.”) Field researchers have noted that in
Rajasthan, for example, since Aadhaar was made compulsory for buying ration, over 25%
ration card holders, or 25 lakh families, have not been able to draw their supplies. During
the seeding, over ten lakh pensioners were removed from the government’s lists, written
off for dead. Many of them were later found to be alive but their pensions had been
stopped106. This is a major concern as Sec. 29 of the Parichay Act states that:

“(4) No Parichay number or core biometric information collected or created under this
Act in respect of an Parichay number holder shall be published, displayed or posted
publicly, except for the purposes as may be specified by regulations.” In February 2017,
UIDAI lodged criminal complaints against Axis Bank, Suvidha Infoserve, e-mudra for
illegally storing and using Aadhaar data to impersonate people and carry out transactions.
Allegedly, Suvidha Infoserve and e-sign provider e-mudra had conducted multiple
transactions using the same fingerprint, which implied that organisations are illegally
storing biometric data on their servers.107

5. Furthermore, there is the question of whether or not the government’s bureaucracy is

equipped to handle something like the Parichay database and this is pertinent as the
incapability to do so will only make it easier for hackers to target the Pehchaan system.
Just recently, MS Dhoni’s Aadhaar card details had made headlines. It wasn’t technology,
but a star-struck government official who had made the blunder.

Willis on Constitutional Law108, at page 89: - "A judicial declaration of the

unconstitutionality of a statute neither annuls nor repeals the statute but has the effect of
ignoring or disregarding it so fact as the determination of the rights of private parties is
concerned. The courts generally say that the effect of an unconstitutional statute is
nothing. It is as though it had never been passed.......".

6. The Parichay Act states that information will not be disclosed except “in interest of
national security in pursuance of a direction of an officer not below the rank of Joint
Secretary to the Government of India specially authorised in this behalf by an order of
the Central Government.” But there is no specific definition of ‘national security’ in the
Act. Effectively, the Act gives the government the power to reveal information in the

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Parichay database in the name of ‘national security’. Ms. Pillay’s report insisted that
known and accessible remedies need to be made available to those whose privacy is
violated, the Parichay legislation does no such thing. The remedies are supposed to
include thorough and impartial investigation and the option of criminal prosecution for
gross violation. The Parichay Bill excludes courts from taking cognisance of offences
under the legislation, requiring that the authority that runs Parichay consent to prosecution
for any action to be taken under the legislation.

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PRAYER

IN THE LIGHT OF LAW POINTS PUT FORTH, CASES CITED AND ARGUMENTS
ADVANCED IT IS MOST HUMBLY PRAYED TO THIS COURT:

1. To uphold the order passed by the Hon’ble Supreme Court declaring Right to Privacy
as a Fundamental Right under the Constitution of India.

2. To set aside the order of the High Court of Delhi holding Parichay Act, 2014 as
constitutional and making Parichay mandatory.

3. To declare Parichay Act, 2014 and Parichay Policy as illegal and violative of
constitutional provisions of India.

4. To give any other order which the court deems fit in the interest of justice.

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Moot Court case no. 2

IN THE HON’BLE DISTRICT COURT OF AHMEDABAD

UNDER SECTION 134 OF THE TRADEMARKS ACT, 1999

SUIT FOR INFRINGEMENT OF TRADEMARK

PRIMAXE CONSTRUCTION LTD. (PETITOINER)

V.

PRIMAXE REAL ESTATE PVT. LTD. (RESPONDENT)

SUBMITTED TO THE HON’BLE DISTRICT COURT

MEMORIAL ON BEHALF OF PETITIONER

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TABLE OF CONTENT

Sr. no. Title Pg. no.

1 LIST OF ABBREVIATION 37
2 INDEX OF AUTHORITIES 38
3 STATEMENT OF JURISDICTION 39
4 STATEMENT OF FACTS 40
5 STATEMENT OF ISSUES 41
6 SUMMARY OF ARGUMENTS 42
7 ARGUMENTS ADVANCED 44
8 PRAYER 53

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LIST OF ABBREVIATIONS

AIR All India Report

PVT Private
LTD Limited
SCC Supreme Court Cases
Anr. Another
TM Trademark
Crpc Criminal Procedure Code

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INDEX OF AUTHORITIES

1. Clinique Laboratories LLC and Anr vs Gufic Limited and Anr 2009(41) PTC41(Del)

2. Singer Company Limited & Anr. vs Ms. Chetan Machine Tools & Ors (2009) 159 DLT
135

3. Abbott Healthcare Pvt. Ltd. Vs. Respondent: Raj Kumar Prasad & Ors 2014(58)
PTC225 (Del)

4. Rajnish Aggarwal & Ors. vs. M/s. Anantam 2010(43) PTC442 (Del)

5. Dabur India Ltd. Vs. Real Drinks Pvt. Ltd. and Anr (2014(57) PTC213 (Del)

6. Ramdev Food Products Ltd. V Arvindbhai Rambhai Patel (2006)

7. Yahoo!, Inc. v. Akash Arora & Anr [78 (1999) DLT 285]

8. Trademarks Act, 1999

9. Intellectual Property Law, P. Narayanan, third edition (2001)

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STATEMENT OF JURISDICTION

It is humbly submitted that the petitioner has filed this petition under section 134 of the
Trademarks Act, 1999 for the infringement of Trademark.

Section 134 of the Trademark Act, 1999:

Suit for infringement, etc., to be instituted before District Court-

(1) No suit-

(a) for the infringement of a registered trade mark; or

(b) relating to any right in a registered trade mark; or

(c) for passing off arising out of the use by the defendant of any trade mark which is
identical with or deceptively similar to the plaintiff’s trade mark, whether registered or
unregistered, shall be instituted in any court inferior to a District Court having jurisdiction
to try the suit.

(2) For the purpose of clauses (a) and (b) of sub-section (1), a “District Court having
jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure,
1908 (5 of 1908) or any other law for the time being in force, include a District Court
within the local limits of whose jurisdiction, at the time of the institution of the suit or
other proceeding, the person instituting the suit or proceeding, or, where there are more
than one such persons any of them, actually and voluntarily resides or carries on business
or personally works for gain.

Explanation —For the purposes of sub-section (2), “person” includes the registered
proprietor and the registered user.

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STATEMENT OF FACTS

1. Primaxe Construction Ltd., is a company engaged in real estate development and

construction of buildings, roads, bridges, malls, shops, etc. It had adopted "Primaxe" as a
part of its corporate name and its services in the year 1989 and has been conducting its
business activities, using that trade name.

2. It has registered this trademark in the year 1995 having its place of business in the State
of Gujarat. Primaxe Construction Ltd. has developed a number of projects, consisting of
apartments and villas, including Primaxe Plaza Wedding Mall, Primaxe Green Valley,
Primaxe NRI City, Primaxe Arcade, Primaxe Heights and Primaxe City.

3. "Primaxe" has thus become a Well-recognized name in the field of real estate, is a
coveted property of the Primaxe Construction Ltd. and is entitled to highest degree of
protection. Primaxe Construction Ltd. have turnover of about Rs. 450 Crore and have
invested huge amount in advertising and promoting the brand of the "Primaxe". However,
during the preceeding one year the Company has incurred a loss of 2 Crore and 50 lakhs.

4. However, the competent authorities of company came to know that another company
by the name “Primaxe Real Estate Pvt. Ltd.” had been registered with the Registrar of
Companies in January, 2006 having its place of business in the state of Maharashtra. It is
honestly doing business in the state of Maharashtra since last 12 years.

5. According to Mr. Rohtas Goel the Chairman and Managing Director of Primaxe
Construction Ltd the use of the word “Primaxe” is in clear violation of their statutory and
common law rights and use of this word as a of prominent and essential part of the
corporate name of Primaxe Real Estate Pvt. Ltd is completely mala fide and dishonest, as
this word has no obvious meaning.

6. Further the use of the word "Primaxe" as part of the corporate name of Primaxe Real
Estate Pvt. Ltd. would also result in enormous confusion and deception in the market
since Primaxe Real Estate Pvt. Ltd, also is in the field of real estate. The matter is listed
up for hearing in the District court of Ahmedabad.

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STATEMENT OF ISSUES

I. WHETHER THE REGISTERED PROPRIETOR HAS AN EXCLUSIVE RIGHT

OVER THE REGISTERED TRADEMARK?

II. WHETHER THE REGISTERED PROPRIETOR CAN INSTITUTE A SUIT

AGAINST THE INFRINGEMENT OF TRADEMARK?

III. WHETHER THERE IS AN INFRINGEMENT OF REGISTERED TRADEMARK?

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SUMMARY OF ARGUMENTS

I. WHETHER THE REGISTERED PROPRIETOR HAS AN EXCLUSIVE RIGHT

OVER THE TRADEMARK?

The Primaxe construction Ltd. registered this trademark in the year 1995 having its place
of business in the state of Gujarat. Section 28(1) of the Act provides that subject to the
other provisions of this Act, registration of a trademark, if valid, give to the registered
proprietor of the trademark the exclusive right to use the trademark in relation to the goods
or services in respect of which the trademark is registered.

It confers an exclusive right of using TM to a person who has the trademark registered in
his name. Such right is, thus, absolute. However, from the opening of Section 28(1) of
the Act namely, “subject to the provisions” the right conferred on the registered proprietor
is not an indefeasible right. This is further, made clear by Section 27(2) of the Act, which
says “nothing in this Act shall be deemed to affect the right of action any person for
passing off the goods as goods of another person, or the remedies in respect thereof. It is
also pertinent to note that the registered proprietor of a trademark gets exclusive rights to
use the trademark in relation to goods or services in respect of which it is registered and
that person may not have the right to use the TM in respect of the other goods or services
in respect of which the trademark is registered”.

II. WHETHER THE REGISTERED PROPRIETOR CAN INSTITUTE A SUIT

AGAINST THE INFRINGEMENT OF TRADEMARK?

Section 28(1) also provides that the registered proprietor of a trademark can seek legal
remedy in case of an infringement of his trademark in the manner provided by this Act.
He may obtain an injunction and at his option, either damages or an account of profits by
instituting a suit against the alleged infringer. The proprietor of an unregistered trademark
cannot initiate the infringement proceeding in the event of a deliberate counterfeiting. The
Delhi High Court has observed that registration of a trademark confers on the person
some very valuable rights. To mention only one such right, one may turn to Sub-section
(1) of Section 27 which provides that no person shall be entitled to institute any
proceedings to prevent or to recover damages for, the infringement of an unregistered
trademark. So Basically, for the institution of the suit for infringement the trademark must
be registered.

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III. WHETHER THERE IS AN INFRINGEMENT OF REGISTERED TRADEMARK?

Infringement of trademarks as per Section 29 of the Trademarks Act, 1999 is defined as

a use of a mark, by an unauthorised or an authorised person or a person who is not the
registered proprietor, which is identical or deceptively similar to the trademark in relation
to the goods or services in respect of which the trademark is registered. Trademark
infringement is a violation of the exclusive rights attaching to a registered trademark
without the authorization of the trademark owner or any licensees.

As per section-29 registered trade mark is infringed by a person if he uses such registered
trade mark, as his trade name or part of his trade name, or name of his business concern
or part of the name, of his business concern dealing in goods or services in respect of
which the trade mark is registered. The defendant had used the registered trademark of
petitioner for their business name and infringed the exclusive right of the petitioner to use
that trademark.

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ARGUMENTS ADVANCED

I. WHETHER THE REGISTERED PROPRIETOR HAS AN EXCLUSIVE RIGHT

OVER THE TRADEMARK?

1. It is humbly submitted to this Hon’ble court that section 28(1) of the said act prescribes
that, subject to the other provisions of the Trademarks Act, 1999 the registration of a
trademark, if valid, gives to the registered proprietor of the trademark, the exclusive right
to the use of the trademark "in relation to the goods or services in respect of which the
trademark is registered" and to obtain relief in respect of infringement of the trademark
in the manner provided by the act. Sub-section (2) stipulates that the exclusive right to
the use of a trademark given under Sub-section (1) shall be subject to any conditions and
limitations to which the registration is subject. As already indicated earlier, Sub-section
(3) deals with a situation where two or more persons are registered proprietors of
trademarks which are identical to or nearly resemble each other. In such a situation, the
exclusive right to the use of any of those trademarks shall not be deemed to have been
acquired by anyone of those persons as against the other "merely by registration of the
trademarks". Of course, each of those persons would otherwise have the same rights as
against other persons, not being registered users using by way of permitted use, as he
would have if he were the sole registered proprietor. It is noteworthy that the registered
proprietor of a trademark gets the exclusive right to use the trademark in relation to the
goods or services in respect of which the TM is registered. This means that a trademark
is registered not merely in favour of a person but also bears relation to goods or services.
So, while a particular trademark may be registered in favour of one person in respect of
certain goods, that person may not have the exclusive right to use the mark in respect of
other goods. This means that under normal circumstances the right to use a trademark to
the exclusion of others is only in respect of the goods or services in connection with which
the trademark is registered. There are exceptions which shall be alluded to presently.

2. It confers an exclusive right of using trademark to a person who has the trademark
registered in his name. Such right is, thus, absolute. However, from the opening of Section
28(1) of the Act namely, “subject to the provisions” the right conferred on the registered
proprietor is not an indefeasible right. This is further, made clear by Section 27(2) of the
Act, which says “nothing in this Act shall be deemed to affect the right of action any

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person for passing off the goods as goods of another person, or the remedies in respect
thereof. It is also pertinent to note that the registered proprietor of a trademark gets
exclusive rights to use the trademark in relation to goods or services in respect of which
it is registered and that person may not have the right to use the trademark in respect of
the other goods or services in respect of which the trademark is registered”.

3. A registered proprietor of trademark means the person for the time being entered in the
register as proprietor of the trademark. Any person claiming to be the proprietor of a
trademark used or proposed to be used by him, who is desirous of registering it, shall
apply in writing to the registrar in the prescribed manner for the registration of his
trademark. The procedure for registration is as specified under the Act. The registration
of the trademark shall be for a period of 10 years, and it can be renewed after that once
the prescribed fee is paid to the registrar. As long as a proprietor of a trademark can prove
that the mark is associated with the company alone, which is also the source of the
trademark, and any use of the same by a third party is detrimental to its business interest
or is bound to raise confusion among the public, the proprietor will be in a position to
protect its rights in that particular mark. These rights may comprise the common law right
of “passing off” or the statutory right of infringement of registered trademark or both.

4. It is humbly submitted by the petitioner that he is the registered proprietor of the mark
Primaxe w.e.f. 14-02-1995 in relation to Real Estate development and construction of
buildings, roads, bridges, malls, shops etc. The defendant does not have a registered trade
mark in respect of goods falling under class 6 of the said schedule. However, as things
stand today, the defendant is the registered proprietor of the mark "Primaxe" w.e.f.
26.04.2001 in respect of "Building materials (steels)" falling under class 19. Whether the
registration is liable to be cancelled, as alleged by the plaintiff, or not, as contended by
the defendant, is not a matter for consideration before this Court. For the present, in view
of Section 31 of the said Act, the registration of the trade mark is prima facie evidence of
its validity. So, considering the defendant's registration to be valid, for the time being, it
must be kept in mind that the mark Primaxe is registered in class 19 and not class 6. The
plaintiff has brought this suit claiming its exclusive right to the use of the trade mark
Primaxe in relation to "steel rolled products, CTD bars, angles, flats, rounds, channels
and girders" falling under class 6 of the Fourth Schedule to the Trade Marks Rules, 2002.
The defendant, admittedly, does not have any registration in class 6 (its registration being

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under class 19). Consequently, neither is Section 28(3) attracted nor can the defendant
take refuge under Section 30(2)(e).

II. WHETHER THE REGISTERED PROPRIETOR CAN INSTITUTE A SUIT

AGAINST THE INFRINGEMENT OF TRADEMARK?

1. According to Section 28(1) of the Act, the registration of a trade mark ensures exclusive
right to the registered proprietor to use of the registered trade mark and the right to obtain
relief in respect of infringement of the trade mark. Only a registered proprietor or
registered user can institute a suit for infringement against an identical or deceptively
similar mark to his registered trade mark according to Section 27(1). The owner of
Registered Trademark enjoys exclusive right over the trademark. The owner can use the
same for all the products falling under the class(es) applied. Further, the owner can enjoy
the sole ownership of the Trademark and can stop other from the unauthorised use of the
Trademark under the same class where it is registered. It gives the right to sue the
unauthorized user of the Trademark Registered.

2. It is humbly submitted by the petitioner that prior to the landmark Judgment Clinique
Laboratories LLC and Anr vs Gufic Limited and Anr it was opined that under Sections
28(3), 30(1) (b), 31 and 33 of the Act, a proprietor of a registered mark cannot file or
initiate infringement action against another registered proprietor of an identical or similar
mark. However, registered user had exclusive right in relation to goods against third
persons in respect of which it had been registered. In the landmark judgment Clinique
Laboratories LLC and Anr vs Gufic Limited and Anr39, the court held that a suit for
infringement by a registered trade mark owner/proprietor is certainly maintainable against
another registered trade mark owner/proprietor. It was further held that Section 124(5) of
the Act also allows the grant of an interim injunction in such suits for infringement. The
view of the Hon’ble Court can be summed up from the following case laws –

➢ Clinique Laboratories LLC and Anr vs Gufic Limited and Anr40

Court, in the instant case, observed that Sections 28(3), 29 & 30(2) (e) cannot be read in
isolation. As stated by the court, Section 31 makes registration of a trademark as only
prima-facie evidence of validity thereof while giving the right for rectification before the
Registrar. Therefore, intention of the legislature was not that there could be no action for

39
Clinique Laboratories LLC and Anr vs Gufic Limited and Anr 2009(41) PTC41(Del)
40
Ibid

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infringement against the registered proprietor. Because if the intention was that as long
as the registration exists it is valid, without any question of prima-facie or not, the courts
would have had to wait for the outcome of the rectification proceedings. Reference was
made to the judgment in Singer Company Limited & Anr. vs Ms. Chetan Machine Tools
& Ors.41 where it has been held on a prima facie view that a suit by a registered proprietor
of a trade mark against another registered proprietor of the same trade mark cannot be
refused to be entertained at the threshold - such a suit can lie but may have to be stayed
pending adjudication of the defence raised by the defendant. However, in this judgment
no final opinion was expressed on this issue and in any case the question of interim relief
to be granted was not discussed.

➢ Abbott Healthcare Pvt. Ltd. Vs. Respondent: Raj Kumar Prasad & Ors42

The question raised in the said case was whether the Court can entertain the present suit
in view of Section 28(3) read with Section 30(2) (e) of the Act. With respect to the above
question it was stated by the court that, ‘This Court has already held that a suit for such
an injunction would lie where the two trademarks are registered and Sections 28(3) and
30(2) (e) do not bar filing of a suit. Reference may be had to the judgment of Clinique
Laboratories LLC and Anr. vs. Gufic Limited and Anr. (supra) where in para 14 this Court
concluded as follows- I thus conclude that a suit for infringement of registered trade mark
is maintainable against another registered proprietor of identical or similar trade mark and
in such suit, while staying the further proceedings pending decision of the registrar on
rectification, an interim order including of injunction restraining the use of the registered
trade mark by the defendant can be made by the court, if the court is prima facie convinced
of invalidity of registration of the defendant's mark.’

3. Court also relied on the judgment Rajnish Aggarwal & Ors. vs. M/s. Anantam43, where
this Court in paragraphs 21 to 22 held as follows, I thus conclude that a suit for
infringement of registered trade mark is maintainable against another registered
proprietor of identical or similar trade mark and in such suit, while staying the further
proceedings pending decision of the registrar on rectification, an interim order including
of injunction restraining the use of the registered trade mark by the defendant can be made

41
Singer Company Limited & Anr. vs Ms. Chetan Machine Tools & Ors (2009) 159 DLT 135
42
Abbott Healthcare Pvt. Ltd. Vs. Respondent: Raj Kumar Prasad & Ors 2014(58) PTC225 (Del)
43
Rajnish Aggarwal & Ors. vs. M/s. Anantam 2010(43) PTC442 (Del)

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by the court, if the court is prima facie convinced of invalidity of registration of the
defendant's mark. In view of the finding given in the earlier paras above and the case law
referred, I hereby hold that a suit for infringement is maintainable in the present case and
that this court has got jurisdiction as per the averment made in the plaint.

4. The question whether Section 28(3) of the Act bars the Plaintiff from suing defendant
infringement, since both are the registered proprietors of identical marks was also
answered in the paragraph 17 of the very recent case of Dabur India Ltd. Vs. Real Drinks
Pvt. Ltd. and Anr44. The Delhi High Court observed that, in the first place, it must be
noted that under Section 28 read with Section 31 of the TM Act, the protection to a mark
is conditional upon its validity. Thus, it becomes clear that the grant of registration is only
a prima facie proof of its validity and the court has the power to examine the question of
validity of registration of a mark in an infringement suit, if the registration of the trade
mark was fraudulent, ex facie totally illegal or shocks the conscience of the court.

5. In Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel45, the Supreme Court
observed that the purpose of a trade mark is to establish a connection between the goods
and the source thereof which would suggest the quality of goods and that if the trade mark
is registered, indisputably the user thereof by a person who is not otherwise authorised to
do so would constitute infringement. It was further noted that a proprietor of a registered
trade mark indisputably has a statutory right thereto. In the event of such use by any
person other than the person in whose name the trade mark is registered, he will have a
statutory remedy in terms of Section 29 of the 1958 Act. The registration of the trade
mark Primaxe in relation to "steel rolled products, CTD bars, angles, flats, rounds,
channels and girders" falling under class 6 has established a connection between such
goods and the plaintiff who manufactures them. Whenever such goods are found in the
market and they bear the mark Primaxe, the prospective consumer connects the goods
with the source, that is, the plaintiff. If another person such as the defendant uses the same
mark or a similar mark in relation to the very same goods (steel rolled products, CTD
bars, angles, flats, rounds, channels and girders falling under class 6) then, that would be
seen as an interference and an attempt at breaking the connection between the goods
bearing the mark Primaxe and the source, the plaintiff. In such a situation, the plaintiff

44
Dabur India Ltd. Vs. Real Drinks Pvt. Ltd. and Anr (2014(57) PTC213 (Del)
45
Ramdev Food Products Ltd. V Arvindbhai Rambhai Patel (2006)

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would have the statutory remedy of seeking injunction for preventing further
infringement.

III. WHETHER THERE IS AN INFRINGEMENT OF REGISTERED TRADEMARK?

1. A registered trademark will be infringed if a person in the course of trade, in relation

to the same goods for which the mark is registered, uses without authority the same mark
or a deceptively similar mark. The use must be use as a trademark. It is sufficient if the
essential feature of the mark is taken. The identification of an essential feature depends
partly on the courts’ own judgement and partly on the evidence. If the goods bearing the
registered mark have come to be known by a word then the use of that word by any other
trader may constitute infringement. If the whole of the registered mark is taken the
additional of other matter will not affect the issue.

2. It is humbly submitted that the fraudulent intention is not necessary to prove

infringement, but if established it will go a long way to prove infringement especially in
doubtful cases. The mark must be used in the course of trade as a trademark and use must
be of a printed or other visual representation of the mark. Use on advertisement, invoices
or bills would be infringement.

3. It is humbly submitted by the petitioner that under section 29 infringement of the

trademark is provided. Under section 29 (2) and (3) the following uses of the registered
trademark which are likely to cause confusion or likely to have an association with the
registered mark also constitute infringement of the registered trademark; (a) marks
identical and goods or services are similar (b) marks similar and goods or services
identical or similar (c) marks identical and goods or services identical.

4. The plaintiff has alleged that its mark Primaxe which is registered in respect of "steel
rolled products, CTD bars, angles, flats, rounds, channels and girders" falling under class
6 of the Fourth Schedule to the Trade Marks Rules, 2002 has been infringed by the
defendant inasmuch as the defendant has used and is using the mark "Primaxe" in respect
of its products. The defendant, on the other hand, has taken the stand that there is no
infringement on its part because it is a registered proprietor of the mark "Primaxe" in
respect of "Building materials (steels)" falling under class 19. It was, therefore, contended
on the strength of Section 28(3) and 30(2)(e) of the said Act that the defendant has not
infringed the plaintiff's registered trade mark Primaxe and that both the plaintiff and the
defendant can co-exist in the market using their respective marks. The plaintiff also

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propounded the view that the defendant's registration under class 19 is invalid as the said
class does relate to metallic products at all.

5. To examine the relative merits of these contentions a brief survey of the relevant
provisions of the said Act would be necessary. Section 28(1) of the said act prescribes
that, subject to the other provisions of the said act, the registration of a trademark, if valid,
gives to the registered proprietor of the trademark, the exclusive right to the use of the
trademark "in relation to the goods or services in respect of which the trademark is
registered" and to obtain relief in respect of infringement of the trademark in the manner
provided by the act. Sub-section (2) stipulates that the exclusive right to the use of a
trademark given under Sub-section (1) shall be subject to any conditions and limitations
to which the registration is subject. As already indicated earlier, Sub-section (3) deals
with a situation where two or more persons are registered proprietors of trademarks which
are identical to or nearly resemble each other. In such a situation, the exclusive right to
the use of any of those trademarks shall not be deemed to have been acquired by anyone
of those persons as against the other "merely by registration of the trademarks". Of course,
each of those persons would otherwise have the same rights as against other persons, not
being registered users using by way of permitted use, as he would have if he were the sole
registered proprietor. It is noteworthy that the registered proprietor of a trademark gets
the exclusive right to use the trademark in relation to the goods or services in respect of
which the trademark is registered. This means that a trademark is registered not merely
in favour of a person but also bears relation to goods or services. So, while a particular
trademark may be registered in favour of one person in respect of certain goods, that
person may not have the exclusive right to use the mark in respect of other goods. This
means that under normal circumstances the right to use a trademark to the exclusion of
others is only in respect of the goods or services in connection with which the trademark
is registered. There are exceptions which shall be alluded to presently.

6. Section 29(1) of the Trade Marks Act, 1999, which deals with the issue of infringement
of registered trademarks indicates that a trade mark is infringed by a person who, not
being a registered proprietor or a person using by way of permitted use, uses in the course
of trade, a mark which is identical with or deceptively similar to the trade mark "in relation
to goods or services in respect of which the trade mark is registered" and in such manner
as to render the use of the mark likely to be taken as being used as a trade mark. So, for
an infringement action, it must be shown that -- (1) the registered trade mark is being used

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by a person other than the registered proprietor or by a person permitted to use the same;
and (2) the use must be in the course of trade; and (3) in relation to goods or services in
respect of which the trade mark is registered. This means that if a trade mark is registered
in respect of a certain set of goods or services, then the use of that trade mark by a person
other than the registered proprietor or by a person permitted to use the same would not,
ipso facto, amount to infringement if such person uses the trade mark in relation to an
entirely different set of goods or services. However, Sub-section (2) of Section 29 of the
said Act brings within the fold of infringement, uses of the registered trade mark by a
person other than a registered proprietor in respect of "similar" goods also in three
different sets of circumstances -- where there is (a) identity with the registered trade mark
and similarity of the goods or services covered by the registered trade mark; or (b)
similarity to the registered trade mark and identity or similarity of goods or services
covered by such registered trade mark; or (c) identity with the registered trade mark and
identity of the goods or services covered by the registered trade mark -- and there is
likelihood of confusion being caused on the part of the public or the likelihood of such
user having an association with the registered trade mark. Sub-section (3) of Section 29
of the said Act provides that where there is an identity of the impugned trade mark with
the registered trade mark and there is also an identity of the goods or services covered by
the registered trade mark, the court shall presume that it is likely to cause confusion on
the part of the public. By virtue of Sub-section (4) of Section 29, there may be
infringement of a registered trade mark even where the mark is used in relation to goods
or services which are not similar to those for which the trade mark is registered provided,
inter alia, the registered trade mark has a reputation in India and the use of the mark
without due cause takes unfair advantage of or is detrimental to the, distinctive character
or repute of the registered trade mark.

7. A reading of the relevant provisions of Sections 28 and 29 of the said Act, therefore,
reveals that the registration of a trade mark is linked to the goods or services in respect of
which the trade mark is registered. If a person uses a registered trade mark in relation to
goods and services which are different and distinct from the goods or services in respect
of which the trade mark is registered, then he would not be infringing the registered trade
mark except in the case covered by Sub-section (4) of Section 29 which requires that the
registered trade mark must have a reputation in India and the use of the mark without due
cause would be amounting to taking unfair advantage of or would be detrimental to the
distinctive character or repute of the registered trade mark.

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8. In the case, Yahoo!, Inc. v. Akash Arora & Anr46 [78 (1999) DLT 285] The domain
names owned by the Plaintiff and the Defendant, ‘Yahoo!’ and ‘Yahoo India!’
respectively, were almost identical and similar phonetically too. It was felt by the plaintiff
that this similarity would confuse and deceive users and lead them to believe that the two
domain names were connected. It was held by the Delhi High Court that the name
‘Yahoo!’ has become distinct and unique and is associated with the plaintiff by public at
large. It further held that even a domain name served a similar purpose as that of a
trademark and must be granted similar protection.

46
Yahoo!, Inc. v. Akash Arora & Anr [78 (1999) DLT 285]

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PRAYER

IN THE LIGHT OF LAW POINTS PUT FORTH, CASES CITED AND

ARGUMENTS ADVANCED IT IS MOST HUMBLY PRAYED TO THIS COURT:

1. To grant an interlocutory injunction, to obstruct Primaxe Real Estate Ltd. from using
the alleged trademark until the main suit for infringement is determined.

2. To issue any appropriate directions and orders as the Hon’ble Court deems fit in the
interest of justice, equity and good conscience.

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Moot court case no. 3

IN THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 133 OF THE CONSTITUTION OF INDIA

RIMA SETHI (APPEALLANT)

V.

RAMA KHATRI (RESPONDENT)

SUBMITTED TO THE HON’BLE APEX COURT

MEMORIAL ON BEHALF OF APPEALLANT

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TABLE OF CONTENT

Sr. no. Title Pg.

no.
1 LIST OF ABBREVIATIONS 56
2 INDEX OF AUTHORITIES 57
3 STATEMENT OF JURISDICTION 58
4 STATEMENT OF FACTS 59
5 STATEMENT OF ISSUES 60
6 SUMMARY OF ARGUMENTS 61
7 ARGUMENTS ADVANCED 63
8 PRAYER 69

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LIST OF ABBREVIATION

1. SC Supreme
Court
2. HC High Court
3. Anr. Another
4. AIR All India
Report

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INDEX OF AUTHORITIES

1. Code of Civil Procedure, 1908

2. Code of Criminal Procedure, 1973

3. Hindu Marriage Act, 1955

4. Sudarshan Kumar Arora vs Satish Arora & Anr. December 04, 1973

5. Ms. Gita Hariharan v. Reserve Bank of India AIR 1999, SC 1149

6. Ruchirkumar Gajanandbhai Suthar vs Amitaben D/O Hasmukhlal, December 05, 2006

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STATEMENT OF JURISDICTION

It is humbly submitted that the petitioner has approached this Hon’ble Court invoking its
jurisdiction under Article 133 of the Indian Constitution.

Article 133 in The Constitution of India 1949

133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to
civil matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in
a civil proceeding of a High Court in the territory of India if the High Court certifies under
Article 134A

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court

(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court
under clause (1) may urge as one of the grounds in such appeal that a substantial question
of law as to the interpretation of this Constitution has been wrongly decided

(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law
otherwise provides, lie to the Supreme Court from the judgment, decree or final order of
one Judge of a High Court

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STATEMENT OF FACTS

1. Rama Khatri, a wealthy and prosperous business man and Rima Sethi, a home maker
entered into wedlock on 01-02-2009 as per Hindu religious rites and customs from which
they were blessed with a son, Amar, currently 12 years old. After 10 years of their
marriage, they started living separately. Rima alleged that her husband was involved in
an extra marital affair and he was witnessed with another woman and used to receive late
night calls from her. After that the husband was barred from visiting to Rima’s maternal
home where she and her son were residing. Rama filed a suit for restitution of conjugal
rights but it was dismissed by the family court. Rima alleged that she was harassed and
physically assaulted by her husband in order to get access to their son and Rama never
paid attention towards her and their child when they were living together instead, he used
to verbally abuse her if she asked him to make time for them.

2. Rima has filed a petition for divorce on the grounds of adultery, cruelty and also has
claimed the maintenance and custody of her child under guardians and wards act. Rama
contested the divorce through a written statement and stated that his wife is still intimated
with her past lover, Varun to which she has accepted. The second contention was that
child must not be in Rima’s company as she is not financially sound, being a school
teacher working currently in Varun`s school because it would affect his education and
hence the custody must rest in his favour. The trial court after considering the oral
evidence, examining the documentary evidence and interviewing the child came to the
conclusion that the custody must rest with the mother looking after the welfare of the
child. The court also granted divorce and permitted maintenance.

3. Then the husband filed an appeal before the high court against the trial court`s decision
contesting that Rima had remarried before the completion of trial procedure in which
matter of divorce was still pending. Rama argued that custody of child with the appellant
would be detrimental to his interest, progress and welfare. The high court ignoring the
willingness of the child allowed the appeal on the ground of remarriage of Rima and
further held that father, being a prosperous business man would be apt to protect the
child`s interest and imparting the required standard education to him and maintenance
was not entitled to Rima. Thus, aggrieved by the high court`s order, Rima filed an appeal
to Supreme Court.

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STATEMENT OF ISSUES

1. WHETHER THE APPEAL TO THE SUPREME COURT MAINTAINABLE?

2. WHETHER THE HIGH COURT’S JUDGEMENT WITH REGARD TO THE

CUSTODY OF THE CHILD VALID?

3. WHETHER RIMA SETHI SHALL BE ENTITLED TO MAINTENANCE FROM

HER HUSBAND?

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SUMMARY OF ARGUMENTS

I. WHETHER THE APPEAL TO THE SUPREME COURT MAINTAINABLE?

According to Art. 134A of the Indian Constitution the appeal to the SC is maintainable
as Article 134A does not constitute an independent provision under which a certificate
can be issued. It is ancillary to articles 132, 133 and 134. That is the reason for the use of
the words “if the High Court certifies under article 134A” in article 132(1) and in article
133(1) and for the use of the words “certificate under article 134A” in article 134(1)(c)
of the Constitution. The High Court can issue a certificate only when it is satisfied that
the conditions in article 132 or article 133 or article 134 of the Constitution, as the case
may be, are satisfied. Article 134A has to be read only with articles 132, 133 and 134
inasmuch as it seeks to streamline the High Court’s grant of certificates for appeal to the
Supreme Court. Articles 134A ordains that every High Court giving a “judgement,
decree, final order or sentence” under its appellate jurisdiction vide articles 132, 133 and
134 in civil, criminal or other cases involving “a substantial question of law as to
interpretation of the Constitution” “may”, on its own determine whether a certificate of
fitness for appeal to the Supreme Court is to be given. But, it “shall” do so “as soon as
may be” if an “oral application” is made by the aggrieved party “immediately after”
passing of the judgement, decree, final order or sentence. The determination, in either
case, has to be in accordance with the provisions of Articles 132(1), 133(1) and 134(1).

II. WHETHER THE HIGH COURT’S JUDGEMENT WITH REGARD TO THE

CUSTODY OF THE CHILD VALID?

Under Section 26 of the Act, the court has been empowered to pass any order or make
any arrangement in respect of custody, maintenance and education of children during the
pendency of the proceedings or after any decree is passed under the Act in any case
between the parents of the children. In the absence of any such proceeding only the
Guardian Courts can pass such order. The object of making such a provision is that the
interest of children is not adversely affected or neglected on account of the proceedings
between their parents. Whenever the court proceeds to pass such an order it would take
into consideration the wishes of the children as far as possible. So, the judgement of the
HC with regard to the custody of the child is not valid as it ignored the willingness of the
child.

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III. WHETHER RIMA SETHI SHALL BE ENTITLED TO MAINTENANCE FROM

HER HUSBAND?

Under Section 25 of the Hindu Marriage Act, either spouse can claim maintenance and
permanent alimony but that can be done only after judicial separation or after divorce.
When the marriage is subsisting there is no question of applicability of Section 25, Hindu
Marriage Act, 1955.

Section 125 of the Code provides that " if any person, having sufficient means, neglects
or refuses to maintain his wife, unable to maintain herself...a Magistrate of the first class,
may, upon proof of such neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife. Provided that if such person offers to maintain
his wife on condition of her living with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal stated by her, and may make an order
notwithstanding such offer, if he is satisfied that there is just ground for so doing.

The High court denied to grant maintenance on the sole ground of remarriage of the
appellant without considering the facts and evidences which is not valid as per the section
25 of Hindu Marriage Act, 1955 and the Crpc Section 125.

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ARGUMENTS ADVANCED

I. WHETHER THE APPEAL TO THE SUPREME COURT MAINTAINABLE?

1. It is humbly submitted to the Hon’ble Supreme Court that Article 134A of Indian
Constitution provides Certificate for appeal to the Supreme Court that every High Court,
passing or making a judgment, decree, final order, or sentence, referred to in clause (1)
of Article 132 or clause (1) of Article 133, or clause (1) of Article 134 (a) may, if it deems
fit so to do, on its own motion; and (b) shall, if an oral application is made, by or on behalf
of the party aggrieved, immediately after the passing or making of such judgment, decree,
final order or sentence, determine, as soon as may be after such passing or making, the
question whether a certificate of the nature referred to in clause (1) of Article 132, or
clause (1) of Article 133 or, as the case may be, sub clause (c) of clause (1) of Article
134, may be given in respect of that case.

2. With a view to avoiding delays, articles 132,133 and 134 was amended to insert a new
article 134A to provide that a High Court should consider the question of granting a
certificate for appeal to Supreme Court immediately after the delivery of the judgment,
decree, final order or sentence concerned on the basis of an oral application by a party
or, if the High Court deems fit so to do, on its own motion.

3. It is contested by the petitioner that the order of the High Court is not valid so the
petitioner has to file an appeal to the Supreme Court under Art. 133 against the order of
the High Court.

4. Under Art. 134A it is obligatory on the High Court to consider the question of grating
certificate immediately on the delivery of the judgement, decree, order, final order, or
sentence concerned either on oral application by the party aggrieved, or, if it deems fit to
do so, on its own motion. Prior to this, High Court could grant certificate only on the
formal application of the aggrieved party, whereas under this article the HC can grant a
certificate suo motu if it thinks fit.

5. As mentioned earlier, Article 134A provides for a checklist to certify that the case is
fit to be presented before the Supreme Court. This article basically provides the certificate
for the appeal to the Supreme Court. The appeal is only maintainable if the High Court
deems it fit to do so in the motion of its own or if the aggrieved party just after the

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judgment is passed makes an oral application and the decisions are to be made with
respect to Art. 132(1), Art. 133(1) and Art. 134(1).

III. WHETHER THE HIGH COURT’S JUDGEMENT WITH REGARD TO THE

CUSTODY OF THE CHILD VALID?

1. It is contested by the petitioner that under Section 26 of the Act, the court has been
empowered to pass any order or make any arrangement in respect of custody,
maintenance and education of children during the pendency of the proceedings or after
any decree is passed under the Act in any case between the parents of the children. In the
absence of any such proceeding only the Guardian Courts can pass such order. The object
of making such a provision is that the interest of children is not adversely affected or
neglected on account of the proceedings between their parents. Whenever the court
proceeds to pass such an order it would take into consideration the wishes of the children
as far as possible. So, the judgement of the HC with regard to the custody of the child is
not valid as it ignored the willingness of the child.

2. Section 26 in The Hindu Marriage Act, 1955-

Custody of children- In any proceeding under this Act, the court may, from time to time,
pass such interim orders and make such provisions in the decree as it may deem just and
proper with respect to the custody, maintenance and education of minor children,
consistently with their wishes, wherever possible, and may, after the decree, upon
application by petition for the purpose, make from time to time, all such orders and
provisions with respect to the custody, maintenance and education of such children as
might have been made by such decree or interim orders in case the proceeding for
obtaining such decree were still pending, and the court may also from time to time revoke,
suspend or vary any such orders and provisions previously made: [Provided that the
application with respect to the maintenance and education of the minor children, pending
the proceeding for obtaining such decree, shall, as far as possible, be disposed of within
sixty days from the date of service of notice on the respondent.]

3. This provision is made for the interest of the child only that the child is not adversely
affected on account of the proceedings between their parents. If the court is going to pass
such an order then the wish or the willingness of the child must be taken into the
consideration. According to the facts of the cases the High Court passed an order ignoring
the wish of the child that whether he wants to live with his mother or father.

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4. It is humbly submitted by the petitioner that the Hon’ble HC neglected the willingness
of the child in the matter and passed an order that father, the respondent, being a
prosperous businessman would be apt to protect the child’s interest and importing the
required standard education to him.

5. It is further submitted that in the case of Sudarshan Kumar Arora vs Satish Arora &
Anr., 47 the court observed that the mere desire of a parent to have his child must be
subordinate to the consideration of the welfare of the child. Any other view would put the
Judge exercising wardship proceedings in a straight-jacket and prevent him from
fulfilling his duty under the law (Section 1 of the Guardianship of Infants Act. 1925 in
that case) to have regard to the infant's welfare as the first and paramount consideration.
The Indian legislature has in providing for the welfare of the minor, directed the courts to
also take into consideration the minor's wishes "wherever possible". Such an order is in
the very nature of things temporary, and can, as the section itself provides, be revised
from time to time, as needed.

6. The petitioner also rely on the judgment of the Hon'ble Supreme Court in the case of
Ms. Gita Hariharan v. Reserve Bank of India48 where the Hon'ble Supreme Court has held
that if the father and mother are staying separately and the minor daughter was under the
care and protection of her mother (though her father was alive) the Hon'ble Supreme
Court held that the mother should be considered as the natural guardian of the minor girl.
In all situations where the father is not in actual charge of the affairs of the minor either
because of his indifference or because of an agreement between him and the mother of
the minor and the minor is in the exclusive care and custody of the mother or the father
for any other reason is unable to take care of the minor because of his physical and or
mental incapacity, the mother can act as a natural guardian of the minor and all her action
would be valid even during the life time of the father, who would be deemed to be 'absent'
for the purpose of Section 6(a) of the act.

7. It is further submitted that the appellant has shown that the minor child can be properly
taken care of and he will be able to take care the well- being of the minor child.

47
Sudarshan Kumar Arora vs Satish Arora & Anr. December 04, 1973
48
Ms. Gita Hariharan v. Reserve Bank of India AIR 1999, SC 1149

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8. In the case of Ruchirkumar Gajanandbhai Suthar vs Amitaben D/O Hasmukhlal 49

opportunities must be given to the child to expel the willingness of the child, further
excluding the of the same since court gave the decree in favour of Rama which contravene
the section 26 of the Hindu Marriage Act, 1955.

9. Order 8 Rule 10 of CPC provides that in case of the defendant fails to present the
written statement within the time permitted or fixed by the court, the court shall
pronounce judgment and on the pronouncement of such judgment a decree shall be drawn.

III. WHETHER RIMA SETHI SHALL BE ENTITLED TO MAINTENANCE FROM

HER HUSBAND?

1. Section 25 provides for the grant of permanent alimony and maintenance to any of the
party to marriage at the time of passing any decree under the Act or at any time subsequent
thereto. The court shall take into account the status of opposite party in fixing the amount
for maintenance. The court has been empowered to rescind or modify the order at any
subsequent stage if the circumstances so warrant; and if petitioner becomes inchoate or
remarries at any subsequent stage the court may at the instance of the other party vary,
modify or rescind any such order in such manner as the court may deem just. The right to
permanent alimony accrues only when a decree has been passed in favour of the petition
under Sections 9 to 13. In case no such decree has been passed in favour of the petitioner,
the right to claim any maintenance or alimony is ruled out. Thus, where a petition of the
husband is dismissed under any of the sections i.e., Sections 9 to 14 the application for
permanent maintenance filed by the wife under Section 25 of the Act will be rejected.
Still the wife could claim maintenance under Section 18(1) of the Hindu Adoption and
Maintenance Act, 1956 or under Section 125 of the Criminal Procedure Code, 1973. The
court cannot entertain any claim for maintenance in any proceeding under Section 25 of
the Hindu Marriage Act, 1955, which are maintainable under Section 18 of the Hindu
Adoption and Maintenance Act, 1956. Section 125 of the Code of Criminal Procedure is
an economic umbrella that makes provisions for maintenance to be provided to divorced
wives to help them to maintain and support themselves both during and at the conclusion
of Divorce Proceedings.

2. Maintenance is an essential factor that is taken into consideration by the Courts while
deciding on Divorce Proceedings in India. The Hon’ble Supreme Court, in a recent case,

49
Ruchirkumar Gajanandbhai Suthar vs Amitaben D/O Hasmukhlal, December 05, 2006

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has stated that the Family Courts must not delay the grant of maintenance to a wife
estranged from her husband and that the husband cannot shy away from the responsibility
of sustaining the wife irrespective of the status of their relationship. The Court went on
to state that a delay in such adjudication by the Court is against human rights and also
against the basic dignity of an individual. In today's world, it is extremely difficult to
conceive that a woman of her status would be in a position to manage within Rs.2,000/-
per month.

3. It can never be forgotten that the inherent and fundamental principle behind Section
125 CrPC is for amelioration of the financial state of affairs as well as mental agony and
anguish that woman suffers when she is compelled to leave her matrimonial home. The
statute commands there has to be some acceptable arrangements so that she can sustain
herself. The principle of sustenance gets more heightened when the children are with her.
Be it clarified that sustenance does not mean and can never allow to mean a mere survival.
A woman, who is constrained to leave the marital home, should not be allowed to feel
that she has fallen from grace and move hither and thither arranging for sustenance. As
per law, she is entitled to lead a life in the similar manner as she would have lived in the
house of her husband. And that is where the status and strata of the husband comes into
play and that is where the legal obligation of the husband becomes a prominent one. As
long as the wife is held entitled to grant of maintenance within the parameters of section
125 of Crpc, it has to be adequate so that she can live with dignity as she would have
lived in her matrimonial home. She cannot be compelled to become a destitute or a
beggar. There can be no shadow of doubt that an order under section 125 Crpc can be
passed if a person despite having sufficient means neglects or refuses to maintain the
wife. Sometimes, a plea is advanced by the husband that he does not have the means to
pay, for he does not have a job or his business is not doing well. These are only bald
excuses and, in fact, they have no acceptability in law. If the husband is healthy, able
bodied and is in position to support himself, he is under the legal obligation to support his
wife, for wife’s right to receive maintenance under section 125 Crpc, unless disqualified,
is an absolute right. While determining the quantum of maintenance, this court in Jabsir
Kaur Sehgal v. District Judge Dehradun & Ors.

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4. In Utpal Das v. Rinki Sarkar50 undisputed facts of the case are that the parties were
formerly married to each other. Some marital disputes arose and the husband filed a
petition seeking divorce which was granted by the family court. Subsequent to the divorce
decree, the wife filed a petition under Section 25 of the Hindu Marriage Act, 1955 seeking
permanent alimony of Rs 15 lakhs. Partly allowing the wife’s application, the family court
awarded her alimony of Rs 2.5 lakhs. Aggrieved thereby, the husband filed the present
appeal. Dipika Kalita and Rumi Kalita, Advocates for the husband told the Court that
during the pendency of the husband’s divorce petition, the parties entered into an
agreement whereby the wife conceded to the prayer for divorce. Further, she also agreed
that there would be no claim between the parties against each other. It was contended that
the family court’s order was not justified. Regarding the alleged agreement, the family
court observed and the High Court noted that what was submitted in the divorce
proceedings was a photocopy of the said agreement. The family court took note of the
same and concluded that it was not enforceable. The High Court observed, “the law is
well settled that the maintenance or the alimony to be granted is to enable the party who
seeks the same subsequent to the dissolution of the marriage to maintain herself. At that
stage, what would be relevant is as to whether the party seeking for such maintenance or
alimony is able to maintain herself.” As such, the High Court was of the opinion that the
family court rightly held that the wife was entitled to receive alimony. Also, no error was
found with the quantum of alimony so granted. Holding it to be devoid of merits, the
Court dismissed the appeal.

50
Utpal Das v. Rinki Sarkar, 2019 SCC OnLine Gau 1048, dated 08-03-2019]

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PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND THE

AUTHORITIES CITED IT IS MOST HUMBLY PRAYED TO THIS HON’BLE
COURT:

1. The divorce should be granted to the appellant and the custody of the minor child
should held in the hands of the appellant.

2. The maintenance must be granted to the appellant so that both child and mother could
maintain required standard of living.

3. Further the council prays to the Hon’ble court to set aside the impugned order of the
High court and pass any other order which may be fit in the interest of the justice, equity
and good concise.

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UNIT-II
Observance of
Trial Cases

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Introduction

Trial observation/monitoring is simultaneously the exercise and the observation of a

fundamental human right: the right to a fair and public hearing. While legal systems may
vary in both process and substance, all must comply with the fundamental norms and
standards set out in the international human rights framework. States must ensure that
trials are fair and (usually) open to the public. Those in attendance, including observers,
must be in a position to observe the evidence proffered, the witnesses testifying, and the
judicial actors carrying out their functions. The public’s attendance at a trial allows
scrutiny of its fairness and acts as a bulwark against judicial arbitrariness. Events
observable in the courtroom and in publicly available documents provide significant
indicators of the state of the system, but in trial observation/monitoring it is also borne in
mind that much of what is relevant to a particular trial takes place “behind the scenes”,
i.e., outside the courtroom.

Trial observation/monitoring can also serve multiple purposes beyond reinforcing the
right to a fair and public hearing. It can help assess strengths and weaknesses in the
system, identify and counter biases and stereotyping by judicial actors, foster
transparency, engage local legal professionals, feed into capacity-building resources and
training, and at times it can prompt judicial actors to comply with international human
rights norms and standards. Trial observation is also an information-gathering mechanism
that can lead to empirically based recommendations for systemic improvements to the
justice sector. Historically trial observers assessed fairness principally out of concern for
the rights of the accused.

While that function remains a priority, more recently trial observation has been
increasingly used to assess whether justice has been achieved, whether impunity is being
afforded to human rights abusers, or whether complainants, victims, survivors, witnesses
and the accused are treated fairly and, in a gender-, child- and disability-sensitive manner.
Trial observation efforts of the Office of the United Nations High Commissioner for
Human Rights (OHCHR) have varied considerably over time, with differences in
mandate, capacity, resources and host-country context. Structurally, observation
undertaken by OHCHR, including its field presences, generally follows one of these three
models:

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(1) Ad hoc observation: Attending particular trials (or hearings) because of an identified
human rights concern relating to that case.

(2) Thematic observation: Monitoring a certain type or category of trial (e.g., cases
involving war crimes, domestic violence or the death penalty, or appellate proceedings),
or how a certain law, rule or practice functions within the judiciary (e.g., “plea
bargaining”, sentencing, rules of procedure, victim and witness protection, physical and
economic accessibility or the provision of legal aid).

(3) Systemic observation: Assessing not only what happens in the courtroom but the
justice system as a whole, in all its phases – from arrest to exhaustion of appeals to release
– and possibly all types of trials: civil, criminal and administrative. Systemic observation
can include observing the education and training of legal professionals; the available
guidance and protocols for judiciaries; judicial selection processes; deliberations,
rulings/decisions and decision making; detention and prison systems; influence wielded
by other actors such as political or religious bodies; threats to or offences against legal
professionals including judges; budgets and infrastructure; and barriers to accessing
justice, including harmful stereotypes, social norms, discrimination and other violations
of civil, political, economic, social or cultural rights, where relevant. In this era of
evidence-based medicine, clinicians require a comprehensive range of well-designed
studies to support prescribing decisions and patient management. In recent years, data
from observational studies have become an increasingly important source of evidence
because of improvements in observational-study methods and advances in statistical
analysis. This article reviews the current literature and reports some of the key studies
indicating that observational studies can both complement and build on the evidence base
established by randomized controlled trials (RCTs). A literature search using the
MEDLINE/ PubMed database (years: 1966-present) was carried out using the search
terms observational or observational study, historical control, nonrandomized, and post-
marketing surveillance. All references comparing observational studies with randomized
controlled trials were obtained and reviewed and were also hand-checked for studies not
identified in the database searches. Observational studies play an important role in
investigating treatment outcomes. Data from large observational studies can clarify the
tolerability profile of marketed medicines. In particular, observational studies can be of
benefit in the study of large, heterogeneous patient populations with complex, chronic
diseases such as diabetes mellitus.

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Importance of trail observation

Observational studies have played a key role in supporting the results of Phase III studies
of insulin analogues for the treatment of patients with type 1 and type 2 diabetes. Future
observational studies in the field of diabetes such as PREDICTIVE (Predictable Results
and Experience in Diabetes through Intensification and Control to Target: an International
Variability Evaluation) and IMPROVE will further our understanding of this global
pandemic. Well-designed observational studies can play a key role in supporting the
evidence base for drugs and therapies. Current evidence suggests that observational
studies can be conducted using the same exacting and rigorous standards as are used for
RCTs. The observational study design should be considered as a complementary rather
than a rival analytic technique

OBSERVATION OF CIVIL CASE

Introduction of civil case

Civil cases involve a conflict between people or institutions, generally over money. A
civil suit begins when a legal person claims that he has been harmed by the actions of
another person or business and asks the court for relief by filing a “complaint”. Most of
the civil suits are guided by the well settled principles of the Code of Civil Procedure .

Court cases that involve disputes between people or businesses over money or some
injury to personal rights are called “civil” cases.

A civil case usually begins when one person or business (called the "plaintiff") claims to
have been harmed by the actions of another person or business (called the "defendant").
The plaintiff starts a court case by filing a "complaint" (a document that outlines the
plaintiff’s facts and legal theories and makes a request for relief). In the complaint, the
plaintiff might:

(A) Ask the court for "damages," meaning money to pay the plaintiff for any harm
suffered

(B) Ask for an "injunction," which is a court order to prevent the defendant from doing
something or to require the defendant to do something

(C) Ask for a "declaratory judgment," meaning a court order stating the parties' rights
under a contract or statute

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Eventually, a judge or jury will determine the facts of the case (in other words, figure out
what really happened) and then apply the appropriate law to those facts. Based on their
analysis of the law and facts, the judge or jury will make a final “judgment” (sometimes
also called a "decision" or "order") and decide what legal consequences flow from the
parties' actions.

The parties also might resolve the case themselves. At any time during a case, the parties
can agree to settle their disputes and reach a compromise to avoid trial and the risk of
losing. Settlement often involves the payment of money and can be structured to result
in an enforceable judgment.

Procedure for Filing A Suit/Case

There is a detailed procedure laid down, for filing a civil case. If the procedure is not
followed, then the registry has a right to dismiss the suit.

The Procedure is as follows:

(D) Filing of Suit/Plaint

(E) Vakalatnama

(F) Court Fees

(G) How Proceedings Are Conducted

(H) Written Statement

(I) Replication by Plaintiff

(J) Filing of Other Documents

(K) Framing of Issues/List of Witness

(L) Final Hearing

The detailed process has been laid down in Code of Civil Procedure, for filing a civil
case. However, if the process is not followed, then the “registry” has a right to dismiss
the suit. “Registry here means an office which every court has which provides the
information about any court matter and court forms”.

The procedure for filing a civil suit is as follows:

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The first step to initiate a suit is to file a plaint. A plaint is a written complaint or
allegation. The party who files it is known as “plaintiff” and the party against whom it is
filed is known as “Defendant”.

A Plaint contains:

1. Name of the Court

2. Name and Addresses of the parties between whom the dispute arose

3. Subject (a brief statement telling about the sections and orders under which the
jurisdiction of the court is evoked)

4. Main Content or submissions made by plaintiff

5. Verification from plaintiff stating that the contents of the plaint are true and correct.

Vakalatnama

Vakalatnama is a written document, by which the parties to the suit authorises an

Advocate to represent them before the Hon’ble Court. However, if the party is personally
representing its own case, then they need not file a Vakalatnama.

Some of the General Terms and Conditions that a Vakalatnama may contain:

1. That the client will not hold the Advocate responsible for any decision

2. That the client has to bear all the cost and expenses incurred during the proceedings

3. That the advocate will have a right to retain the documents, unless complete fees is
paid

4. That the client is free to disengage the Advocate already appointed, at any stage of
the Proceeding

5. That the advocate shall have all the rights, to take decisions on his own during the
hearing in the court of Law, in the best interest of his client.

Filing of Plaint

Next step is filing of the plaint before Chief Ministerial Officer (Sherestedar) at the filing
counter, along with appropriate court fee and process fee (For different types of
documents, a person has to pay different amount of Court fees.)

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Court Fees

Court fees is a nominal percentage of the total value of the claim or the value of the suit.
The requisite amount of Court fees and stamp duty is different for every suit, and the
same is mentioned in the “Court Fees Stamp Act”.

Some of them are as follows:

1. In case of plaint/written statement – Rs. 10 if the value of the suit exceed Rs. 5,000/-
upto 10,000/-

2. In case of plaint filed in a suit for possession – Rs. 5

3. On a copy of a Decree or order – 50 paise

Court fees as per value of the Suit

1. If the value of the suit exceeds Rs. 1,50,000-1,55,000 – Rs. 1700/-

2. If the value of the suit exceeds Rs. 3,00,000-3,05,000 – Rs. 2450/-

3. If the value of the suit exceeds Rs. 4,00,000-4,05,000 – Rs. 2950/-

How proceedings are conducted

Hearing

If on the first day of hearing, the court thinks that there is merit in the case, it will issue a
notice to the opposite party, calling upon him to submit their arguments on a date fixed
by the court.

After the notice is issued the plaintiff is required to do the following:

(1) File requisite amount of procedure-fee in the court.

(2) File 2 copies of plaint for each defendant in the court

(3) Of the 2 copies filed for each defendant, one copy shall be sent by Speed
post/Courier/Regd. A.D. and the other copy shall be sent by Ordinary Post.

(4) Such filing should be done within a period of seven days from the date of
order/notice.

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Written Statement by Defendant

1. Once the notice has been issued to the defendant, he is required to appear on the
date mentioned in the notice. However, before appearing on the date, the defendant is
required to file his “written statement” i.e., his defence against the allegation raised by
the plaintiff.

2. The written statement should be filed within 30 days from the date of service of
notice, or within such time as given by the court.

3. The maximum period that can be extended for filing of Written Statement is 90
days, after seeking permission of the court.

4. The written statement should specifically deny the allegations, which according to
defendant is wrong and false. Any allegation, not specifically denied, is deemed to be
admitted.

5. The written statement should also contain a verification from the Defendant, stating
that, the content of the Written Statement are true and correct.

Replication by Plaintiff

The next step for plaintiff, once the Written Statement is filed by the Defendant, is to file
a replication. Replication is a reply against the written statement, filed by the Plaintiff.
The defences made by the Defendant in written statement is to be specifically denied by
the Plaintiff in Replication. Anything which is not denied is deemed to be accepted. Once
the Replication is filed, the pleadings are stated to be complete.

Filing of Other Documents

After pleadings are completed and both the parties have filed their submissions, both the
parties are given an opportunity to produce and file documents that are substantial to their
claims. The procedure for filing other documents are as follows:

There may be a situation where documents filed by one party is admitted by the opposite
party.

There can be another situation where the documents filed are denied by the opposite party.
In that case it can be admitted by the witness produced by the party whose documents are
denied.

Once the documents are admitted, it shall be taken on record and all the details of suit
shall be inscribed on the document as per Order 13 Rule 49 of Code of Civil Procedure.

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It is mandatory that any document which is filed by the parties must be “original” and a
copy of such document shall be provided to the opposite party.

Any document which is not filed or produced cannot be relied on during final arguments.

Framing of Issues

1. The next stage in a civil proceeding is Framing of Issues. Issues are framed by the
court on the basis of which arguments and examination of witnesses takes place.

2. Issues are framed, keeping in view the disputes in the suit, and the parties are not
allowed to go outside the purview of ‘Issues”.

3. Issues framed may be of Fact or of Law.

4. At the time of passing final order, the court will deal with each issue separately,
and will pass judgements on each issue.

List of Witness/Cross Examination

1. All the witnesses that the parties wish to produce, and examined, have to be
presented before the court within 15 days from the date on which issues are framed or
within such other period as the court may fix.

2. Both the parties to the suit have to file a list of witnesses.

3. The parties may either call the witnesses by themselves, or the court can ask the
same by sending summons to witnesses.

4. In case summons are issued by the court, then the party who asked for such presence
of a witness, has to deposit money with the court for their expenses. This money deposited
is known as “Diet Money”.

5. On the date of hearing, the witnesses produced before the court will be examined
by both the parties and once the cross examination is over at this stage the court will fix
a date for final hearing.

Final Hearing

1. On the day of final hearing, the arguments takes place which should be strictly
confined to the issues framed.

2. After hearing the final arguments of both the parties, the court shall pass a “final
order”, either on the day of final hearing itself or on some other day fixed by the Court.

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However, before the final arguments, the parties to the suit can amend their pleadings
with the permission of the court.

Stages of trail of civil cases are as follows

6. Submission of List of Documents

7. Framing of Issues.

8. Examination of Plaintiff witnesses

A. Chief In-Examination.

B. Cross- Examination.

C. Re- Examination.

9. Examination of Defendant witnesses

A. Chief In-Examination.

B. Cross- Examination.

C. Re- Examination.

10. Arguments

A. Arguments of the plaintiff advocate

B. Arguments of the defendant advocate

11. Judgment

12. Decree.

Court Observation

As a part of court observation, all the students have been instructed to observe the court
proceedings from 01th Jan to 31st Jan. Further we have been ordered to observe one civil
case and one criminal case.

On 01-01-2021 we went to court and seated in 11TH additional district & sessions court
Ahmedabad. On the same day a civil case came up for hearing.

As per as details of case is concerned,

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IN THE COURT OF DISTRICT SESSIONS COURT: AHMEDABAD

O.S.No.234 of 1994

Between -Sri M. Mahadeva Naidu … Plaintiff

V/S

Sri R. Veera Gajjar … Defendant

PLAINT PRESENTED UNDER OR VII RULE 1 AND SEC. 26 OF C.P.C.

(5) Address of the Plaintiff :

Sri M. Mahadeva Naidu, S/o. Anganelu, Hindu, aged about 37 years working in T.T.
Devasthanam and residing at No.14 ‘E’ type quarters N.G.O. Colony,Ahmedabad.

For the services of summons, notices etc. to the address of the plaintiff as stated above
and of his counsel.

(6) Address of the defendant: -

Sri R. Veera Gajjar, S/o. Ramachandra Gajjar, Hindu, aged about 52 years, businessman
and residing at No.101, R.R. Colony, Ahmedabad.

For the services of summons, notices etc. to the address of the defendant as stated above.

(7) The defendant is running a business on provisions and is having his shop at Bazar
Street, Ahmedabad to run the business to purchase provisions for his shop from the
wholesale dealer he was in urgent need of some funds. Hence the approached the plaintiff
demanding some loan from him. Both are known to each other for many years.

(8) The defendant borrowed a sum of Rs.50000/- (fifty thousand only) from the
plaintiff on 16-09-1992 for his family business and to discharge some sundry debts,
agreeing to repay the some on demand either to the plaintiff or to his agent with an interest
at the rate of 24%

p.a. and executed the suit promissory note on the same date at Ahmedabad. The suit pro-
note is marked herewith as DOC.No.1.

(9) Later on, in spite of several oral demands made by the plaintiff and his servants,
agents, the defendant did not pay a single pie either towards interest or towards Principal.

(10) Hence the plaintiff issued a registered notice through his counsel to the defendant,
on 5th June 1995 calling upon the defendant to repay the said debt with the accused

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interest, through the defendant duly received the notice on 8th June 1995 he failed to reply
nor to pay. The office copy of the lawyer notice along with the postal receipt and
acknowledgement are marked herewith as Doc.NO.2 and 3 respectively.

(11) The cause or action for this suit has arisen on and from 16th September 92 when
the suit debt is borrowed by the defendant and executed the suit pro-note on and from 5th
June 95 when the notice was sent calling the defendant to repay on and 8th June, 95.
When the defendant duly received notice at Ahmedabad within the jurisdiction of this
Hon’ble Court.

PARTICULARS OF VALUATION

Principal sum : Rs.30,000.00

Interest there on form 16-09-92 to 31-08-95 @ 24% p.a. (2 years, 11m. 15 days) :
Rs.15,500.00

Total claim amount: Rs.45,500.00

Court fees paid there on u/s. 20 of A.P.C.F.S.R. Act. : Rs. ……………………

(12) The plaintiff valued the suit at Rs.85,500/- and paid a court fee of Rs. … and paid
a court fees of Rs u/s.20 of Gujarat Court fees and suit valuation Act.

Therefore, it is prayed that this Hon’ble court may be pleased to pass a decree and
judgment in favour of the plaintiff.

(a) Directing the defendant to pay a sum of Rs.85,500/- (Rupees eighty-five thousand
and five hundred only) and the future interest there on from the date of the plaint till the
date of realization

(b) Directing the defendant to pay the costs of this proceedings and

(c) Granting such other further reliefs that Hon’ble court deems fit and proper under
the circumstances of this case and thus render justice.

Advocate Plaintiff

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Verification

I, the plaintiff here in do hereby solemnly affirm and declare that the above stated facts
are true to the best knowledge of me and in taken thereof I signed here under on this 30th
day of August 1995 at Ahmedabad.

Plaintiff.

On 12th Feb. 1996 we went to District Court Ahmedabad where this above stated case
O.S.234/95 was taken for evidence; Defendant was called out and set ex-prate. Plaintiff
was as PW1 ex-prate examination.

PW1: on his examination spoke about the loan he advance to the defendant, the execution
of the suit pro-note which was marked as “A1” his issuance of notice through his counsel
office and copy of the notice with postal receipt was marked as “ExA2”. The postal
acknowledgement is also marked as “ExA3”. Further he prayed to the court to decree the
suit as prayed for.

Judgment: - The suit is decreed in the costs.

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OBSERVATION OF CRIMINAL CASE

Indian Penal Code and Code of Criminal Procedure are together known as “twin sisters”
of criminal law.

Code of Criminal Procedure (Cr. P. C.) is the procedural law for conducting a criminal
trial in India. The procedure includes the manner for collection of evidence, examination
of witnesses, interrogation of accused, arrests, safeguards and procedure to be adopted by
Police and Courts, bail, the process of criminal trial, a method of conviction, and the rights
of the accused of a fair trial by principles of natural justice.

Indian Penal Code (IPC) is the primary penal law of India, which applies to all offences.
Indian Evidence Act (IEA) is a comprehensive, treaty on the law of “evidence”, which
can be used in the trial, the manner of production of the evidence in a trial, and the
evidentiary value which can be attached to such evidence.

PROCESS OF TRIAL OF CRIMINAL CASES IN INDIA

India has a well-established statutory, administrative and judicial framework for criminal
trials. Indian Penal laws are primarily governed by 3 Acts:

1. The Code of Criminal Procedure, 1973 (Cr.P.C.);

2. The Indian Penal Code, 1960 (IPC);

3. The Indian Evidence Act, 1872 (IEA).

Cr.P.C. is a comprehensive and exhaustive procedural law for conducting a criminal trial
in India, including the manner for collection of evidence, examination of witnesses,
interrogation of accused, arrests, safeguards and procedure to be adopted by Police and
Courts, bail, process of criminal trial, method of conviction, and the rights of the accused
for a fair trial. The procedure for a criminal trial in India, is primarily, except as otherwise
provided, governed by The Code of Criminal Procedure, 1973 (Cr.P.C.). IPC is the
primary penal law of India, which is applicable to all offences, except as may be provided
under any other law in India. IEA is a detailed treaty on the law of “evidence”, which can
be tendered in trial, manner of production of the evidence in trial, and the evidentry value,
which can be attached to such evidence. IEA also deals with the judicial presumtions,
expert and scientific evidence. There are certain other laws, which have been enacted to
deal with criminality in special circumstances.

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It is also important to note that India follows the adversarial system, where generally the
onus of proof is on the State (Prosecution) to prove the case against the accused, and until
and unless the allegation against the accused are proved beyond reasonable doubt, the
accused is presumed to be innocent. In certain exceptional cases, which may relate to
terrorism, etc., the onus of proof has been put on the accused person, who claims to be
not guilty. India has a highly developed criminal jurisprudence and prosecution system,
supported by judicial precedents, however, there may be certain issues or concerns
relating to the execution of the same by Police and implementation by Judiciary. The
courts in India, particularly High Courts and Supreme Court have been proactively
guarding the rights of the accused. Even Article 21 of the Constitution of India has been
interpreted in a highly dynamic manner to protect the rights, life and liberty of the citizens,
by also incorporating the principles of natural justice. By the flowchart hereinbelow, an
attempt is being made to make the reader briefly understand the process of criminal
investigation and trial in India, as a lot of foreign companies and Ex-pats are coming to
India, and due to unfortunate circumstances, they may, at times find themselves
embroiled in unnecessary criminal cases. To appreciate the process of Indian criminal
law, it is necessary that to understand following important terminology:

1. Bailable Offence, means an offence, which has been categorized as bailable, and in
case of such offence, bail can be claimed, subject to fulfilment of certain conditions, as a
matter of right under Section 436 of the Cr.P.C. In case of bailable offences, the Police is
authorised to give bail to the accused at the time of arrest or detention.

2. Non-bailable Offence, means an offence in which the bail cannot be granted as a matter
of right, except on the orders of a competent court. In such cases, the accused can apply
for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the
grant of bail in a non-bailable offence is subject to judicial discretion of the Court, and it
has been mandated by the Supreme Court of India that “Bail, not Jail” should be the
governing and guiding principle.

3. Anticipatory Bail, under Section 438 of the Cr.P.C., means that a person who
apprehends arrest on a wrong accusation of committing a non-bailable offence, can apply
before a competent court for a direction to police to immediately release such a person on
bail in the event of arrest. However, the grant of anticipatory bail is discretionary and
dependant on the nature and gravity of accusations, the antecedents of the applicant and
the possibility of the applicant fleeing from justice.

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4. Cognizable Offence/case, has been defined under Section 2 (c) of Cr.P.C., as an

offence/case in which a Police Office can arrest without a warrant.

5. Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an

offence/case in which a Police Officer has no authority to arrest without a warrant.

6. Whether an offence/case is bailable or not bailable, and cognizable or non-cognizable,

has been qualified under the 1st Table of the 1st Schedule of Cr.P.C., which relate to the
offences under IPC.

7. F.I.R (first information report), is formal record of a complaint, by police in case of

commission of a cognizable offence, and can be considered as a first step in the process
of the investigation of a cognizable offence by Police.

8. The Table II of the 1st Schedule of Cr.P.C., gives a general guideline to determine
whether an offence is bailable, non-bailable, cognizable or non-cognizable. The criteria
in the table below, is applicable in those cases which are silent on this aspect. For easy
understanding, the following criteria may be understood: Offence Cognizable or Non-
Cognizable Bailable or Non-bailable

Punishable with Imprisonment For

• Less Than 3 Years or with fine only

Non-cognizable Bailable

Punishable with Imprisonment For

• 3 Years or more

Cognizable Non-Bailable

9. The criminal investigation process and prosecution mechanism in India, can be started
in any of the following manner:

a. On complaint /reporting /knowledge of the commission of a cognizable offence, any

police officer, even without the orders of a Magistrate, can investigate the cognizable
case. [Section 156 (1) of the Cr.P.C.]

b. In case of failure or inaction of a police officer to investigate a cognizable offence, a

criminal complaint can be filed before a Magistrate under Section 190 of Cr.P.C., for
taking cognizance of such offence, and on such complaint, the Magistrate himself can

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take cognizance of the case and do the enquiry, or in the alternative under Section 156 (3)
of the Cr.P.C., order Police to register an F.I.R and investigate the offence

c. In case of non-cognizable offence, Police is not obliged to investigate, and the judicial
process can be started by filing a criminal complaint before the competent court, under
Section 190 of the Cr.P.C.

The stages of trial of Criminal Case are as follows:

4. Complaint/FIR.

5. Investigation

6. Bail

7. Charge sheet/ charge

8. Discharged charge / Frame

9. Prosecution Evidence

10. Defence Evidence

11. Statement of Accused

12. Argument

13. Judgement

Court Observation

As a part of court observation, all the students have been instructed to observe the court
proceedings from 01th Feb to 28st Jan. Further we have been ordered to observe one civil
case and one criminal case.

On 16-02-2021 we went to court and seated in 12TH additional district & sessions court
Ahmedabad. On the same day a Criminal case came up for hearing. As per as details of
case is concerned,

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: GANDHINAGAR

CRIMINAL APPEAL NO. _________OF 2021

Under Section 374 of the Code of Criminal Procedure against the order dated 22.02.2021
passed by the Hon'ble District and Sessions Judge, Gandhinagar in Sessions Case No.18
of 2018;

And

In the matter between;

4. Jayesh @ Sahdev Bhikhabhai Desai

Sex: Male, Aged: 31 years,

Having address as:

Rabari Vaas, Jogmayanagar,

Veljibhai no Kuvo,

Motera, Ahmedabad.

5. Shaileshbhai Mohanbhai Bharvad

Sex: Male, Aged: 35 years,

Having address as:

7, Kodiyar Nagar,

Behind Parimal Hospital,

Motera, Chandkheda,

Ahmedabad.

……Appellants

(Orig. Accused Nos. 8 & 9)

VS

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The State of Gujarat,

Notice to be served through

Learned Public Prosecutor,

High Court of Gujarat,

Ahmedabad.

……Respondent

TO

THE HON’BLE THE CHIEF JUSTICE AND OTHER COMPANION JUDGES OF THE
HIGH COURT OF GUJARAT AT AHMEDABAD.

THE HUMBLE APPEAL OF THE APPELLANT ABOVENAMED.

MOST RESPECTFULLY SHEWETH THAT:

6. The appellants submit that the present appeal is preferred being aggrieved by the
judgment and order dated 22.01.2021 passed in Sessions Case No.18 of 2018 by the
Hon'ble District and Sessions Judge, Gandhinagar convicting the present appellants under
Sections 186 and 332 of the Indian Penal Code in connection with FIR bearing I-
C.R.No.77 of 2017 registered with Chandkheda Police Station, District: Gandhinagar.

7. The appellants submit that the brief facts of the case are as under:

7.1 The appellants submit that as stated in the FIR, the first informant viz. Govindsinh
Madhusinh Dabhi at the time of alleged incident was working as S.R.P. Group-7
Constable, Nadiad and was deputed with C.N.C.D. Department, Ahmedabad Municipal
Corporation 5 years ago from the date of the alleged incident.

7.2 It is alleged that the first informant at around 12:30 p.m. on 24.04.2017 alongwith
S.R.P. Police Inspector Shri K.V. Devra and other S.R.P. Staff as well as Sanitary
Inspector (S.I.) of Ahmedabad Municipal Corporation Shri Piyush Vyas and other
employees of Ahmedabad Municipal Corporation left the Jamalpur Slaughter House with
Animal Cather Vehicle and other vehicles for the purpose of catching the strayed cattle.
During the course of their duty at around 2:30 p.m. on 24.04.2017, they reached near
Suryadeep Bungalows near Motera Stadium. The employees of Ahmedabad Municipal
Corporation were catching cattle and during that time, around 35 to 40 owners of cattle

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viz. Rabari and Barvad by creating unlawful assembly came alongwith sticks, clubs and
other weapons and hindered the staff of Ahmedabad Municipal from catching the cattle.

7.3 It is alleged that the first informant alongwith the Police Inspector were making the
said Rabari and Bharvad understand as to not to hinder them from performing their duty.
But the situation became fierce and one of the persons from the group of Rabari and
Bharvad gave an iron stick blow on left side of the head of the first informant and blood
came out and first informant had fell down on the floor. It is also alleged that in the same
manner, the other people and also beaten other staff members of Ahmedabad Municipal
Corporation and other staff. The first informant was taken to the Panchsheel Hospital and
in these facts and circumstances, the FIR bearing I-C.R.No.77 of 2017 came to be
registered with Chandkheda Police Station, District: Ahmedabad for the alleged offence
under Sections 143, 147, 148, 186, 307, 332, 333 of the Indian Penal Code and under
Section 135(1) of the Gujarat Police Act against as many as 7 accused. The appellants
submit that the present appellant No.1 is not named in the FIR and was subsequently
added as an accused.

7.4 Thereafter, the FSL Mobile Van was called at the place of incident and evidence
was collected and panchnama was drawn. The statement of the first informant, witnesses
etc. were recorded and necessary articles, etc. were taken in custody and accordingly the
investigation proceeded.

8. The appellants submit that thereafter, the charge sheet came to be filed on
12.12.2018 and the same was presented before the court on 10.01.2018 which came to be
filed as Criminal Case No.240 of 2018 before the learned Judicial Magistrate First Class,
Gandhinagar. The appellants submit that the appellant No.1 viz. Jayesh @ Sahdev
Bhikhabhai Rabari was granted bail by order dated 24.05.2017 in Criminal Misc.
Application Session No.646 of 2017 and the appellant No.2 viz. Ajitbhai Mohanbhai
Bharvad was granted bail by order dated 14.06.2017 in Criminal Misc. Application
Session No.721 of 2017 pending trial.

9. The appellants the offence was sessions triable, therefore, the learned Judicial
Magistrate First Class, Gandhinagar committed the case of the Sessions Court under
Section 209 of the Code of Criminal Procedure and the same came to be registered as
Sessions Case No.18 of 2018 before the Hon'ble Sessions Court.

10. The appellants submit that thereafter, the learned Sessions Court was pleased to
confirm the charge against the appellants and other accused at Ex.5 for the alleged

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offences under Sections 143, 147, 148, 186, 307, 332, 333 of the Indian Penal Code and
Section 135(1) of the Gujarat Police Act.

11. The appellants submit that thereafter, on behalf of the prosecution, necessary list of
documents was submitted and, thereafter, the prosecution has examined as many as 17
witnesses.

12. The appellants submit that thereafter, further statement of the appellants came to
be recorded under Section 313 of the Code of Criminal Procedure and appellants
thereafter, did not examined any witnesses for defense and, thereafter, the learned Trial
court was pleased to fixed the matter for final arguments.

13. The appellants submit that, thereafter, the Hon'ble Court was pleased to hear the
final arguments of the prosecution and the appellants and was pleased to convict the
appellants by order dated 22.01.2021.

14. The appellant submits that after the commencement of trial the Hon'ble District and
Sessions Judge, Gandhinagar was pleased to convict both the appellants under Sections
186 and 332 of the Indian Penal Code. Other accused came to be acquitted. Both the
appellants were convicted under Section 186 of the Indian Penal Code to undergo 2
months simple imprisonment and fine of Rs.500/- and in default of payment of fine, to
undergo 5 days simple imprisonment. Both the accused were also convicted under Section
332 of the Indian Penal Code to undergo 2 years rigorous imprisonment and a fine of
Rs.7000/- and in default of payment of fine, to undergo 5 months simple imprisonment.
It is also ordered that compensation of Rs.5000/- be given to the witness No.15 under
Section 357 of the Code of Criminal Procedure. It is also ordered that both the sentences
would run concurrently. Copy of the judgment and order dated 22.01.2021 passed by the
Hon'ble District and Sessions Judge, Gandhinagar in Sessions Case No.18 of 2018 is
annexed herewith and marked as ANNEXURE - A.

15. The appellants submit that since the appellants were convicted, therefore, the
appellants preferred application under Section 389 of the Code of Criminal Procedure at
Ex.81 submitted on 22.02.2021 and the learned Sessions Court was pleased to grant stay
till 22.03.2021 and, therefore, at present the appellants are on bail and not in custody.

16. The appellants submit that being aggrieved by the judgment and order of conviction
dated 22.02.2021 passed in Sessions Case No.18 of 2018 by the Hon'ble District and

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Sessions Judge, Gandhinagar, the appellants are preferring the present appeal on the
following grounds and other may be urged at the time of hearing.

GROUNDS

(A) The appellants submit that in the present case, during the court of investigation, no
test identification parade has been held by the appellants and, therefore also, the learned
Trial Court erred in convicting the appellants.

(B) The appellants submit that mere identification in the court room by witness after a
long time is not substantive piece of evidence as the date of offence is 24.04.2017 and the
evidence of the witnesses was recorded from the May, 2019 i.e. after nearly two and,
therefore, because of long period of time, it is not possible for the witnesses to identify
the accused, hence the learned Trial Court erred in relying upon the said evidence.

(C) The appellants submit that in the present case there is also discrepancy of evidence
by witness as to who has given the blow i.e. by the appellant No. 1 or 2 still the said fact
is not considered by the learned Trial Court.

(D) The appellants submit that the witnesses were not personally knowing the
appellants and it is not also brought on record by the prosecution as to how the name of
the appellant No.2 appeared in the FIR. Moreover, the name of appellant No.1 i.e. Jayesh
@ Sahdev Bhikhabhai Desai is not named in the FIR and, therefore also, the impugned
order is required to be quashed and set aside.

(E) The appellants submit that even in the medical history given, the name of the
appellants are not stated and, there were nearly 35 to 40 unknown accused who have made
assault and, therefore also, the impugned order is required to be quashed and set aside.

(F) The appellants submit that the prosecution has not produced any evidence that the
witnesses were on duty as no duty register is produced or no other evidence is produced
for work which they were discharging and, therefore also, the learned Trial Court erred
in convicting the appellants under Section 332 of the Indian Penal Code.

(G) The appellants submit that likewise the offence under Section 186 is also not made
out as the witnesses were not performing their public duty and no evidence is produced
about the same.

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(H) The appellants submit that if the evidence of the eye witnesses is seen, then there
is dispute pertaining to the identity of the appellants and, therefore also, the learned Trial
Court erred in convicting the appellants.

(I) The appellants submit that the learned Trial Court erred in not considering the
explanation tendered under Section 313 of the Code of Criminal Procedure.

(J) The appellants submit that in the further statement also, the incriminating evidence
is not put and hence also, the learned Trial Court erred in convicting the appellants.

(K) The appellants submits that the first informant viz. Govindsinh Madhusinh Dabhi
does not clearly states that the appellant No.1 viz. Jayesh @ Sahdev Bhikhabhai Desai
has given stick blow and in the same manner, it is also not proved that the appellant No.2
viz. Shaileshbhai Mohanbhai Bharvad has assaulted Pankajbhai Devjibhai Parmar and,
therefore also, the learned Trial Court erred in convicting the appellants accused.

(L) The appellants submit that even the panchas of recovery of muddamal has also
turned hostile and, therefore, no recovery is proved and the said fact is admitted by the
Hon'ble Trial Court and still erred in convicting the appellants.

(M) The appellants submit that the learned Trial Court has granted compensation to the
witness No.15 viz. Pankajbhai Devjibhai Parmar but the said witness in his cross
examination at Ex.47 has not seen as to who has assaulted him therefore also, learned
Trial Court erred in convicting the appellant.

(N) The appellants submit that the appellant No.1 is injured and the prosecution has not
brought on record as to how he has sustained the injury and, therefore also, the same is
not considered by the Trial Court.

(O) The appellants submit that in fact cross complaint i.e. NC Complaint is also lodged
but the investigating officer has not conducted investigation in fair and proper manner as
the public servants were allegedly assaulted, therefore also the impugned order is
required to be quashed and set aside.

(P) The appellants submit that the learned Trial Court erred in holding that the presence
of the appellant is proved at the scene of offence but mere presence is not sufficient as
there is no evidence on record that the appellants assaulted the injured and there is also
dispute pertaining to the identity and also wrong identification of the appellants in the
courtroom during the course of evidence, therefore also, the impugned order is required
to be quashed and set aside.

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(Q) The appellants submit that even from the FSL report also nothing is proved against
the appellants.

17. The appellants submit that after the order of conviction passed by the Hon'ble
Sessions Court, Gandhinagar both the appellants i.e. accused Nos. 8 and 9 had paid fine
i.e. of Rs.7,500/- each and necessary receipt was also given by the registry and the
payment of fine is also endorsed on the last page of the impugned judgment dated
22.02.2021 and, therefore, the appellant have paid the fine.

18. The appellants submit that the appeal is filed within a period of limitation.

19. The appellants submit that save as stated hereinabove the appellants have not filed
any other appeal before any other Court including this Hon’ble Court with regards to the
subject matter of this appeal except the present appeal.

20. The appellants, therefore, pray that this Hon’ble Court be pleased:

(M) To allow this appeal.

(N) To call for record and proceedings of Sessions Case No.18 of 2018 from the Court
of learned District and Sessions Judge, Gandhinagar and be pleased to quash and set aside
the judgment and order dated 22.02.2021 convicting the appellants and be pleased to
acquit the appellants arising out of FIR bearing I-C.R. No.77 of 2017 registered with
Chandkheda Police Station, District: Gandhinagar.

(O) To pass any other and further orders as may be deemed fit and proper.

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE APPELLANTS AS IN

DUTY BOUND SHALL FOR EVER PRAY

Place: Ahmedabad. R. J. GOSWAMI & MITESH V. PANCHAL

Dated: 12.03.2021 ADVOCATES FOR THE APPELLANTS

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: GANDHINAGAR

CRIMINAL APPEAL NO. 2435 OF 2021

Jayesh @ Sahdev Bhikhabhai Desai & Anr.

…Appellants

(Orig. Accused Nos. 8 and 9)

Versus

The State of Gujarat

…Respondent

INDEX

Sr. No. Annexure Particulars Page Nos.

1. - Events

2. - Memo of Appeal

3. A Copy of the judgment and order dated 22.01.2021 passed by the Hon'ble
District and Sessions Judge, Gandhinagar in Sessions Case No.18 of 2018.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: GANDHINAGAR

CRIMINAL APPEAL NO. 4512 OF 2021

Jayesh @ Sahdev Bhikhabhai Desai & Anr.

…Appellants

(Orig. Accused Nos. 8 and 9)

Versus

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The State of Gujarat

…Respondent

EVENTS

-------------------------------------------------------------------------------------------

Date Particulars

-------------------------------------------------------------------------------------------

2017 The appellants submit that as stated in the FIR, the first informant viz. Govindsinh
Madhusinh Dabhi at the time of alleged incident was working as S.R.P. Group-7
Constable, Nadiad and was deputed with C.N.C.D. Department, Ahmedabad Municipal
Corporation 5 years ago from the date of the alleged incident.

24.04.2017 It is alleged that the first informant at around 12:30 p.m. alongwith S.R.P.
Police Inspector Shri K.V. Devra and other S.R.P. Staff as well as Sanitary Inspector
(S.I.) of Ahmedabad Municipal Corporation Shri Piyush Vyas and other employees of
Ahmedabad Municipal Corporation left the Jamalpur Slaughter House with Animal
Cather Vehicle and other vehicles for the purpose of catching the strayed cattle. During
the course of their duty at around 2:30 p.m. on 24.04.2017, they reached near Suryadeep
Bungalows near Motera Stadium. The employees of Ahmedabad Municipal Corporation
were catching cattle and during that time, around 35 to 40 owners of cattle viz. Rabari
and Barvad by creating unlawful assembly came alongwith sticks, clubs and other
weapons and hindered the staff of Ahmedabad Municipal from catching the cattle.

-> It is alleged that the first informant alongwith the Police Inspector were making the
said Rabari and Bharvad understand as to not to hinder them from performing their duty.
But the situation became fierce and one of the persons from the group of Rabari and
Bharvad gave an iron stick blow on left side of the head of the first informant and blood
came out and first informant had fell down on the floor. It is also alleged that in the same
manner, the other people and also beaten other staff members of Ahmedabad Municipal
Corporation and other staff. The first informant was taken to the Panchsheel Hospital and
in these facts and circumstances, the FIR bearing I-C.R.No.77 of 2017 came to be
registered with Chandkheda Police Station, District: Ahmedabad for the alleged offence
under Sections 143, 147, 148, 186, 307, 332, 333 of the Indian Penal Code and under

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Section 135(1) of the Gujarat Police Act against as many as 7 accused. The appellants
submit that the present appellant No.1 is not named in the FIR and was subsequently
added as an accused.

-> Thereafter, the FSL Mobile Van was called at the place of incident and evidence
was collected and panchnama was drawn. The statement of the first informant, witnesses
etc. were recorded and necessary articles, etc. were taken in custody and accordingly the
investigation proceeded.

-> The offence was sessions triable, therefore, the learned Judicial Magistrate First
Class, Gandhinagar committed the case of the Sessions Court under Section 209 of the
Code of Criminal Procedure and the same came to be registered as Sessions Case No.18
of 2018 before the Hon'ble Sessions Court.

-> Thereafter, the learned Sessions Court was pleased to confirm the charge against
the appellants and other accused at Ex.5 for the alleged offences under Sections 143, 147,
148, 186, 307, 332, 333 of the Indian Penal Code and Section 135(1) of the Gujarat Police
Act.

-> Thereafter, on behalf of the prosecution, necessary list of documents was submitted
and, thereafter, the prosecution has examined as many as 17 witnesses.

-> Thereafter, further statement of the appellants came to be recorded under Section
313 of the Code of Criminal Procedure and appellants thereafter, did not examined any
witnesses for defence and, thereafter, the learned Trial court was pleased to fixed the
matter for final arguments.

-> Thereafter, the Hon'ble Court was pleased to hear the final arguments of the
prosecution and the appellants and was pleased to convict the appellants by order dated
22.02.2021.

-> Being aggrieved by the judgment and order of conviction dated 22.02.2021 passed
in Sessions Case No.18 of 2018 by the Hon'ble District and Sessions Judge, Gandhinagar,
the appellants are preferring the present appeal

HENCE THE PRESENT APPEAL

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Unit-III
Interviewing
Technique &
Pre-Trial
Preparation

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INTERVIEWING TECHNIQUE

REPORT ON CLIENT COUNSELLING SESSION

INTRODUCTION

The issue of possessing the competency to become a good lawyer or legal advisor that
fulfils market demands is not a new one among fresh graduates from either civil or Sharia
backgrounds. The question of whether law graduates possess the qualities or aptitude that
is necessary in the legal profession (Williams, 1990) often persists in the minds of
students who desire to pursue a career in the former. In 2012. the Malaysian Bar
Association conducted a study involving 100 law firms in Malaysia, and found that the
majority of the employers were dissatisfied with the proficiency of their younger lawyers.
This may possibly stem from the neglect of certain institutes of higher learning to take
into account the basic legal practical skills in both the teaching and learning process in
university (Cheng. 2012). According to Cooper (1962). many legal practitioners believe
that law schools or faculties do not play a serious enough role in the effort to equip law
graduates to that end. This failure poses a problem to the judicial system as a whole (Sarat,
1991). especially when the law, the sole purpose of which is to provide justice, oppose
prejudice and protect the rights and interests of individuals and society. cannot be fittingly
implemented.

Law students must possess the basic skills to become lawyers such as problem solving,
legal analysis and reasoning, legal research, factual investigation, communication,
counselling and negotiation (Brayne, Duncan & Grimes, 1998). However, it is a
consistent fact that students are only exposed to these skills after they graduate (Baron &
Corbin, 2012), ie. churing their chambering, although it is also noted that most students
can easily acquire a position in a law firm as soon as they graduate from university
without being in possession of any additional skills. This does not however apply to those
who wish to pursue a carcer in litigation (Goodpaster. 1975). This is due to the fact that
skills such as comunication, counseling and negotiation carry considerable weight in legal
proceedings (Lande, 2012). In relation to the aforementioned, one of the primary advocate
skills that new future lawyers should grasp is client counseling. This skill corresponds
exactly to the main duty of a lawyer, which is to advise a client that requires legal advice

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and assistance (Jayakumar. 2007). It thus follows that a program which provides training
of such skill would be enormously beneficial in enabling students to be given early
exposure to the reality of their future career choice while still in university.

Unfortunately, whatever early exposure to client counselling via training programs

currently available to students is neither thorough nor uniform, and is usually dependent
on the initiative of the lecturer or student himself. For example, lecturers who feel the
necessity of instilling client counselling capability in their students may include a training
program to that effect as part of an activity-based teaching process, or as part of their
subject continuous assessment.

Professional Legal Education should necessarily focus on the lawyering skills. Client
counselling is a vital skill in which the students of law should be trained. One of the
significant functions of a lawyer is to advise the people who seek assistance in knowing
the legal implications of their actions. The lawyer is looked upon to facilitate decision
making in certain critical legal matters. This function of the lawyer influencing and
facilitating decisions is called counselling. Bar Council of India, the highest professional
body of lawyers, has a key role in Professional Legal Education

1. It has drawn up a detailed scheme on practical training consisting of professional ethics,

bar-bench relations, contempt of court, moot court, pre-trial procedures, negotiations,
interviewing and counselling, drafting of conveyances and pleadings, legal aid, public
interest lawyering etc.

2.The word 'Counsel' has its origin in the Latin word 'consilium' which means advice.

3. According to Blacks' Law Dictionary, counsel means advice and assistance given by
one person to another in regard to a legal matter, proposed line of conduct, claim or
contention. As a matter of facts lawyers are also legal counsels. Counsellor is an attorney;
lawyer; member of the legal profession who gives legal advice and handles the legal
affairs of client, including if necessary, appearing on his or her behalf in civil, criminal
or administrative action and proceedings.

The process of counselling has two functions:

1. To help the person talk about, explore and understand his or her thoughts and feelings

and workout that what he or she might do before taking action.

2. To help the person decide on his or her own solutions.

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3. Lawyers counsel the client in deciding how his problem can be sorted out under the
laws. Legal counselling is the process by which a lawyer communicates advice to a client.

4. A client is a person, natural or legal who approaches the lawyer for legal assistance.
The word client has its roots in the Latin word 'clients'. Client is a person using the
services of a professional person or organization.

5.Counselling is the activity in which one person seeks and in one way or another, pays
for help from another person. It is characterized by need on one side of the relationship,
by willingness to help on the other, and by and inter personal contract based on mutual
attraction.

6. Counselling as a professional activity will involve competence and expertise in

addition to mere willingness. Legal counselling is fairly considered a 'service' under the
Consumer Protection Act, 1986 making the lawyer accountable for deficiency.

7. In a counselling relationship the client has to open himself to help and the lawyer has
to protect the best interests of his client. Legal interviewing and counselling is what
lawyers do in an office where they see clients one or two at a time, with the door
closedLawyers elicit information from their clients, which information forms the basis
for their advice. Legal counselling can be for litigation or for planning. Clients may seek
advice as to proper legal course of action before Courts or as to estate, tax or business
planning.

Importance of Legal Counselling

• To help the person talk about, explore and understand his or her thoughts and feelings
and

workout that what he or she might do before taking action.

• To help the person decide on his or her own solutions.

Importance of Lawyers in the Society

The lawyer has a particularly onerous and multi-dimensional role to fulfil. As expressed
by Mathew, J., “A Counsel has a tripartite relationship: one with the public, another with
the court, and the third with his client. That is a unique feature. Other professions or
callings may include one or two of these relationships but no other has the triple duty.”[1]
The satisfaction of the obligations and expectations arising out of these three relationships
are frequently difficult to reconcile. The role of the advocate in these three capacities

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requires a closer scrutiny. The lawyer, as a professional, to some extent, acts on behalf of
the client, and representing the client. This is particularly relevant in an adversarial system
of adjudication followed by common law countries which is characterized by a neutral
adjudicating authority, which, on the basis of the arguments and evidence placed before
it, arrives at a conclusion. The role of an advocate in an adversarial system, therefore, is
to represent the case of the client before the adjudicating authority.

The primary duty of the lawyer is to inform the court as to the law and facts of the case
and to aid the Court to do justice by arriving at correct conclusion. Since the court acts
on the basis of what is presented by the advocates, the advocates are under the obligation
to be absolutely fair to the Court.

All statements should be accurate, and the advocate is under a sacrosanct obligation to
ensure that he does not, through any act or omission lead to the possibility of
misrepresentation, or mislead the court or obfuscate the case in any manner. Good and
strong advocacy by the counsel is thus necessary for the good administration of justice.
Viewed in this context, it can be said that the lawyer is indeed the channel through which
the general public can access the law, and avail of the protection of the law, in the shrine
of justice. Client Interviewing

In a lawyer - client meeting, the client opens up and talks his problem and concerns and
expresses his expectations. The lawyer listens, notes down and questions the client for
necessary information. There is a sharing of information, views and needs through verbal
communication. This communication which is the life blood for effective counselling is
called 'interviewing'. Client interviewing is a prominent part of legal profession. Giving
options, suggesting alternatives, effective client representation, drafting of documents,
pre-trial preparations etc. are all dependent on this client interviewing.

Purpose of Client interviewing

The lawyers require to know the factual dimensions of their client's situation. Factual
matrices are the conditions for laws to operate. "Neat packages of fact are a predicate for
professional activity by lawyers".10 One fundamental purpose of interviewing is to know
the facts story. The responsibility of gathering the facts is that of the lawyer. The fact that
the client has approached a lawyer itself conveys that he or she has identified some legal
problems. But the client may not know what matters, facts, instances and documents are
significant and relevant. The lawyer will have to extract the necessary information and
identify the legally sensitive facts. Expression of feelings like disillusionment, disgustion,

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pain etc can also constitute important facts. Identification of witnesses, documents etc,
are also done by interviewing.

The second significant purpose of interviewing is building the professional relationship

with the client. The lawyer shall ensure to the client that his interests will be well taken
care of and he and his feelings will be genuinely respected. Mutual trust is the
characteristic feature of the professional relationship. If the client does not trust he may
not divulge certain secrets and may find uneasy to discuss certain delicate matters. It is
pertinent to note that the duty to maintain confidentiality is implicit in the lawyers duty
to give priority to the interests of the client. Bar Council standards of professional conduct
and etiquette mandates that the advocates shall not directly or indirectly, commit a breach
of the obligations imposed by Section 126 of the Indian Evidence Act.

Meaning of pre trail preparation

A hearing conducted before a jury by a judge, an arbitrator, etc., to clarify the legal and
factual problems and to stipulate such matters between the parties to speed up the court’s
justice and the costs. Pre-trial proceedings are critical components of the justice process
because at this point the vast majority of all criminal cases are resolved informally and
never come before the courts. These include pre-arrest investigation, conviction,
detention, court decision, initial appearance before a municipal judge, preliminary or
grand jury hearing, evidence or indictment arraignment, and motions for pre-trial
proceedings.

Usually, after the preliminary hearing and before a criminal case goes to trial, the
prosecutor and the defence team appears before a criminal court judge and makes pre-
trial motions, arguments about some evidence to be kept out of the trial, that some persons
must or cannot testify, or that the case should be dismissed entirely. The term ‘trial’ has
not been defined under the code of criminal procedures. The judicial tribunal determines
and examines the case. It is a court proceeding that ends with conviction or acquittal but
not discharges.

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CLIENT COUNSELLING SESSION 1

A client counselling session was held at my sir’s office. The interns were divided into
groups of two out of which one student was to play the part of a junior counsel and the
other of a Senior Counsel. I played the part of Senior Counsel, played the part of junior
counsel. As a Senior Counsel I was to handle client, had to take notes of the facts narrated
by the client.

The client entered our cabin and we greeted him. We introduced ourselves and before
starting the session we informed him some important details as to the charge of the session
and about the confidentiality agreement. We asked him to consider that the first session
was charge ₹1000 per hour and from the next session the client would be charged ₹5000
per hour, before signing the confidentiality agreement. We made sure he knew about his
rights as to his choice of counsel and the legal position of the privileged communication
as per Section 122 of the Indian Evidence Act. The client was assured that communication
with the counsels was confidential and so he must state the full facts of the case truthfully
without any fear thereby establishing an effective professional relationship with the client.

The client began with the narration of the facts of his case to the best of his competence.
He tried to give us as much details as he remembered and we asked him questions as to
obtain further information from him which he might have missed in his narration. The
case was of copyright infringement. Two students of the client namely Miss Bira and Ms.
Shweta had written a book. A professor of another university claimed that they had copied
certain content from his book. The students wanted to claim copyright of the book. We
asked him about the prevalence of any contract between the students and the publishing
company and the date on which the book was published as a means to obtain information.

Thereafter we asked the client as to what are his goals and expectations as to the case and
whether he wishes to resort to Alternative Dispute Resolution or wants to resort to legal
proceedings.

We explained the client that the work by his students was protected under copyright law
if it was an original work as the Copyright Act 1957 defines ‘work’ as including includes
an artistic work comprising of a painting, a sculpture, a drawing (including a diagram, a
map, a chart or plan), an engraving, a photograph, a work of architecture or artistic
craftsmanship, dramatic work, literary work (including computer programmers, tables,

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compilations and computer databases), musical work (including music as well as

graphical notations), sound recording and cinematographic film. We informed the client
that in India, the registration of copyright is not mandatory as the registration is treated
as mere recordable of a fact. The registration does not create or confer any new right and
is not a prerequisite for initiating action against infringement. The view has been upheld
by the Indian courts in a catena of judgments. The awareness of Intellectual Property (IP)
Laws is considerably low among the enforcement authorities in India, and most of the IP
litigation is confined to metropolitan cities. Despite the fact that the registration of
copyright is not mandatory in India and is protectable through the International Copyright
Order, 1999, it is advisable to register the copyright as the copyright registration
certificate is accepted as a "proof of ownership" in courts and by police authorities, and
acted upon smoothly by them. The law of copyright in India not only provides for civil
remedies in the form of permanent injunction, damages or accounts of profits, delivery of
the infringing material for destruction and cost of the legal proceedings. etc. but also
makes instances of infringement of copyright, a cognizable offence punishable with
imprisonment for a term which shall not be less than six months but which may extend to
three years with a fine which shall not be less than Rs 50,000 (approx. US$ 800) but may
extend to Rs 2,00,000 (approx. US$ 3,000). For the second and subsequent offences, there
are provisions for enhanced fine and punishment under the Copyright Act. The (Indian)
Copyright Act, 1957 gives power to the police authorities to register the Complaint (First
Information Report, ie, FIR) and act on its own to arrest the accused, search the premises
of the accused and seize the infringing material without any intervention of the court.

We advised the client to register their copyright and then bring the certificate of
registration along with their work as well as the work of the professor who claims
copyright infringement in the next session to decide further course of action. The next
session was fixed on 31st January 2021 at 5:00pm.

After the client leave we discussed about the possible strategies that could be adopted in
furtherance of the case. We agreed that advising the client to get a copyright registration
for the book was wise since the certificate of registration will strongly support their
argument of copyright infringement being a prima facie proof of authorship of copyright
work. The suit can be filed before the district court within whose jurisdiction, the claimant
either resides, carries on business or personally works for gain. If the professor institutes
a suit against our clients then we may use the grounds for defence given under section 52

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of the Copyright Act, 1957 to defend our client. We can choose a possible action to be
taken after comparing the work of the client and that of the professor after receiving the
documents in the next meeting.

“With the previous client counselling training, I find it easier to communicate and know
how to help the client in the manner and skill taught during that training.”

CLIENT COUNSELLING SESSION 2

Now today is my second client counselling session

WHOM ARE WE GOING TO INTERVIEW?

The client counselling was conducted at my sir office on 27 of May 2019 at about 3:45pm.
The counsellors were contacted by Mr. Akash, a Hyderabad based supplier of shirts. Mr.
Akash got supplies of his raw material from a place called Surat in Gujarat state. But from
last 2 to 3 months the supplier of raw material delayed his supply to Mr. Akash because
of which his business began to go in loss and when Mr. Akash confronted the supplier of
raw material. he said he will stop sending the raw material. So, Mr. Akash came for his
aid because he had paid advance sum of Money and the raw material owner is declining
to accept that fact. After we have actively listened, and after we have worked on
understanding our clients goals, values, and feelings, we move on to the analysis portion
of the interview where we asked certain details to get a further insight into the case After
that we gave the potential legal issues related to our clients stories and offered to propose
potential solutions to our clients' problems and discuss the risks and benefits related to
these solutions, also mentioning an outline of the additional work that which was used to
perform in order to represent the clients in the best manner.

This report provides a brief summary of our first experience of legal client counselling.
It gave us a practical example on how as a legal entity, to represent a firm and help a
client with the problems they faced.

When the client was arrived at my sir office I say him hello sir good morning may we
know your name please

Client: Mr Akash he replied

I ask him to please sit sir also ask him did you have any problem in finding this place.

Client: no, I had no problem

My sir asked Mr. Akash how did you come to know about this place

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CLIENT- My friends and relatives told me about this place and since it is one of the best
firm, I personally decided to come here for advice

My sir: So, I would like to introduce you to ourselves my name is Rahul

and this is my co-council.

CLIENT (Mr. AKASH) - Thank you and nice to meet you and Rahul

Now administrative talks started.

Later sir is about to tell Mr Akash about our policies and explain him regarding that and
also tell him about his fee statements, non-disclosure policies, conflict of interest etc.)
Mr. Akash (client) understand and acknowledge. Now I said I would further like to
explain you about our no withdrawal rule from our side whereas the client can always opt
for a better option and please be clear in communication, we are always there to listen to
you and will do nothing which is against your conflict of interest

Mr. Akash said yes, I acknowledge and understand.

INFORMATION GATHERING

I ask Mr Akash our client Sir I would like to ask you certain question which will help us
establish your issue and help us understand it, this will further help us in providing you
with solutions or remedies to your said issues.

Mr. AKASH - Okay I understand

Now I ask Mr Akash please explain us your entire issue in detail.

Mr. AKASH - So this issue I am facing is regarding the loss of my business profits. Since
last 2 or 3 months the supplier of my raw material is sending me the goods at the delay of
10 to 15 days which starts affecting my business because with the delay of raw material
the processing of my shirts gets delayed. whenever I confronted him with this issue, he
used to say that it will be soon solved and it won’t repeat again. But last time when I again
confronted him with the same, he stopped sending me the supply of the raw material
which is now started to affect my business badly. I had paid him an advance for the same
and now he is not acknowledging this very fact. Also we had signed a contract for the
same and it is a written contract signed in Hyderabad.

And Mr Akash ask me that whether he can challenge this and what are the possible
remedies available to me.

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I told him that this issue is very much challengeable in court and I would lay down your
remedies to you. But before that I would like to know that since how long you are doing
business with another person.

Mr. AKASH- This is the third contract we have signed. Our contract gets renewed after
every one year.

I asked him- When does the validity of this contract will end this year.

Mr. AKASH- It will end in June of this year.

I said Okay so this has been in plan for some time now. So last year in June it got renewed
again Mr. AKASH from what I can see is that the validity of this contract is still for next
3 months and which means your supplier of raw material cannot stop sending you raw
material whenever you ask him for next 3 months.

Mr. Akash- I had paid him the advance of my next supply which he is denying how can I
get my money back?

Sir: my asked him How did you paid him?

Mr. AKASH- I paid him through cheque

Sir: Then it would be very easy for us to prove that so now what we will do is we will
show the bank detail from your account in court which will say that the money has been
transferred in his account.

I asked Mr. AKASH where was the contract between you and the supplier signed means
what will be the jurisdiction of the contract.

Mr. AKASH- The contract was signed at Hyderabad only.

Again, I asked him Does somewhere in the contract says that the time and date of arrival
of your raw material from SURAT is fixed?

Mr. AKASH- Yes, it is expressly written in the contract that the time is fixed of the arrival
of the raw material.

Sir asked Mr Akash from what I can see is your case is very clear and we will try our best
to serve you justice.

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REASON BEHIND USING THE ABOVE-MENTIONED QUESTIONS

Firstly, the question asked during the greeting process was used to relive the mood and
make the client comfortable with the setting and the environment around. Secondly the
administrative questions were explained so that a professional image of the firm is created
and its social accept like wavering of fee and confidentiality principles are highlighted.
Thirdly the informative question asked were precise so as to get the entire Gist of the
problem without any loopholes occasional nod and responses by yes were given to keep
the client engaged and entertained. The questions about business was asked in order to
understand the relationship of the client with the other business person and to establish
motives. Finally, solutions were proposed which would benefit the client the most and
which would have the least chance of being challenged.

TECHNIQUES USED

Techniques used are very subjective to the listeners and based solely and need to be
tailored. Now me and sir gave him legal advice

ADVICE GIVEN WITH REASONS

APPLYING THE LAW AND POSING REMEDIES

Sir said So MR. AKASH I will be telling you the remedies which are available to you
and which u can use in court of law as well some extra judicial remedies. Firstly, I would
like to tell you that u can opt for damages, there are many types of damages which you
can claim for and the best possible one for you would be special damages. Special
damages is nothing but if your share of profit would have a particular yield in the future
then you could claim the money which you were going to get if you would have let to
continue with your share of profits, in the new contract formed And secondly you can file
your case under section 73, 74, and 75 of the Indian contracts act which says

Section 73 of the Act provides that When a contract has been broken, the party who
suffers by such breach is entitled to receive, from the party who has broken the contract,
compensation for any loss or damage caused to him thereby, which naturally arose in the
usual course of things from such breach, or which the parties knew, when they made the
contract, to be likely to result from the breach of it. Such compensation is not to be given
for any remote and indirect loss of damage sustained by reason of the breach

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Section 74 says that Compensation for breach of contract where penalty stipulated for:-
When a contract has been broken, if a sum is named in the contract as the amount to be
paid in case of such breach, or if the contract contains any others stipulation by way of
penalty, the party complaining of the breach is entitled, whether or not actual damage or
loss is proved to have been caused thereby, to receive from the party who has broken the
contract reasonable compensation not exceeding the amount so named or, as the case may
be, the penalty stipulated for.

Section 75 says that Party rightfully rescinding contract, entitled to compensation. —A

person who rightfully rescinds a contract is entitled to compensation for any damage
which he has sustained through the non-fulfilment of the contract.

Mr. AKASH-

Sir said: Coming to other remedies you can opt for recession of contract which basically
means cancelling your part of contract and discharge from your part of liability. You can
also opt for novation which means cancelling the old contract and forming a new one with
altered terms and conditions.

Now I said can also use mediation and solve the matter internally and can also opt for
specific performance in which the parties will have to continue with the old contract or
whatever you desire until the land is sold and proportionately distributed.

Mr Akash So you mean that all these remedies will help me in challenging the others
party. Well thank you very much your services have been appreciated.

I said it is our pleasure Mr. AKASH if u have any others issue, we will always be there
so felt free to contact us regarding any matter to the case.

Lastly said him, we would need your phone number in order to notify you of any furthers
developments regarding your case.

Mr. AKASH- I will mail it you along with my others credentials.

I said Thank you

Sir - Thank you

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Throughout the client counselling program, at the beginning or you can say in first
counselling session my interest in legal counselling was not much to speak of. But now
that I’m chambering, I can reflect on how important the client counselling program was
while I was still in university. As of now, my wish to be a lawyer is increasingly strong.”

“After I completed my client counselling training, I became more interested in the legal
profession,

which before that I had never thought of pursuing. With the client counselling training, I
understood better and eventually changed my mind which had told before that I was
incapable of doing it.”

“I’ve been keen on being a lawyer since a long time ago. So when there was a program
like client counselling while I was studying, I was definitely excited and more convinced
to be a lawyer.

CONCLUSION

We can better serve our clients when we establish the trust, comfort, and communication
that accompany a strong professional relationship. Effective client interviewing and
counselling can help facilitate the development of a strong professional relationship with
our clients.

Thus, the essence of Client's Interview and Counselling Skills breeds lawyers who have
mastered the human arts of lawyering and these lawyers are excellent practitioners
intuitively exercising psychological skills of a high order: they know how to listen, how
to persuade, how to meet emotional and psychological needs of clients, opponents,
judges, and even. everyone they dealt with emotionally. This mean the Client's Interview
and Counselling Skills have highly developed abilities of awareness and objectivity.

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INTERNSHIP – 1

Academic Year: 2016-17

Weeks: 4 Weeks

Date: From 4th April to 6th May, 2017

At: Blind People’s Association (Name of NGO)

Under the Guidance Of: Ms. Kinnari Desai and Mr. Nandini Rawal

Worked On:

Advocacy department and helped to compile the entire database of employment and
placement centre.

Conducted classes of blind students

Helped the students to complete their assignments

Observation and outcome:

1. NGOs plays an important role to provide certain services to communities need.

2. I got the experience to teach the Blind students.

3. NGO creates a much more intimate relationship with the communities being served.

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INTERNSHIP REPORT-2

Academic Year: 2017-18

Weeks: 4 weeks

Date: From: 1st May to 30th May

At: Prabhakar Upadhyay & Associates

Under the Guidance Of: Girish B. Aadivala (Name of advocate issuing certificate)

Worked On:

Took notes on client meeting

Drafting a written statement based on the information received from the client

Marking statements for the purpose of cross- examination

Observation and outcome:

1. The work ranges from all facts of law and got to draft which is a massive learning
experience in itself.

2. Sometimes the timings can be issue to some interns.

3. I got to know that the drafting is to litigation is what an engine to a vehicle.

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INTERNSHIP REPORT-3

Academic Year: 2018-19

Weeks: 4 weeks

Date: From 1st May to 30th May

At: Mukesh Mishra & Associates

Under the Guidance Of: Advocate Mukeshchandra Mishra

Worked On:

Research on judgement that are related to facts of cases

Reading any suggested law material for my own benefit

Assigned to observe the proceeding during the examination in chief, cross-

examination

Observation and outcome:

1. Learned that how the files are maintained and how the records are maintained.

2. Interaction to various lawyers in the office.

3. It helped me to develop confidence.

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