List of Current Affairs

Source: Supreme Court

Why in News?

Recently the Supreme Court held that before accepting a dying declaration, the court must be satisfied that it was rendered voluntarily, it is consistent and credible and that it is devoid of any tutoring.

What was the Background of Rajendra s/o Ramdas Kolhe v. State of Maharashtra Case?

• The appellant (husband) was working in the army and his wife (Rekha) was a police constable and lived in a police colony.
• The appellant was on leave and came home.
• On 22^nd July 2002 Rekha sustained burn injuries. According to prosecution Rekha was subjected to cruelty by her husband, brother-in-law, mother-in-law, father-in-law and sister-in-law.
• On the day of incident, she was beaten by her husband and brother-in-law, and they tied her hands and feet with towel and gagged her face. After that they poured kerosene on her and set her on fire.
• She was taken to hospital by the neighbors. She was completely burned.
• The First Information Report (FIR) was registered in the Police station against the accused persons (the appellant and his family) for the offences under Section 307, 498A, 342, 323 and 504 read with Section 34 of Indian Penal Code, 1860 (IPC).
• In the hospital her dying declaration was recorded by Assistant Sub Inspector. But before recording her statement, he ensured that Rekha was in a position to give the statement.
• Another dying declaration was recorded by the Special Executive Magistrate. After that Rekha died because of burn injuries. Section 302 of IPC was added to FIR.
• In her dying declaration she stated that her husband and in-laws started ill-treating her after 15 days of marriage on the ground that she did not give her salary to them. On 22^nd July 2002 her husband and brother-in-law poured kerosene on her and set her on fire. At the time of incident other in-laws were present and she was shifted to the hospital by the neighbors. Her husband and in-laws fled away.
• After the completion of the investigation a charge sheet was filed, and the accusation was made against all the accused.
• The trial court did not find any material against mother-in-law, father-in-law and sister-in-law, they all were acquitted by the trial court.
• The trial court relied on both the dying declaration and held that appellant and his brother committed an offence of murder in furtherance of common intention. The trial court sentenced the appellant, and his brother was sent to Juvenile Justice Board as he was minor.
• The appellant filed an appeal before the High Court of Bombay against this conviction.
• The High Court also relied on the dying declaration and upheld the trial court's judgment of conviction.
• Thereafter he preferred an appeal before the Supreme Court.
• The defence of the appellant was that there are material contradictions in the evidence of the prosecution witnesses. It casts serious doubt about the credibility of the declaration.

What were the Court’s Observations?

• The Supreme Court stated that it is evident that in her dying declaration Rekha clearly stated about the role played by the husband (appellant) and the brother-in-law in the incident which led to her burn injuries.
• The contents of the dying declaration have been proved. Though there are certain inconsistencies in their evidence, it is quite natural. Moreover, those are not material and do not affect the sub-stratum of her statement.
• The Court held that if the dying declaration is voluntary, credible and consistent, a great deal of sanctity is attached to a dying declaration, and it can form the sole basis for conviction.
• The Supreme Court stated that there is no reason for us to doubt the correctness of the dying declaration of the deceased which has been proved in evidence.
• The substance of the dying declaration is also borne out by the medical history of the patient recorded by the doctor which has also been proved in evidence.
• That being the position, the evidence on record clearly establishes the guilt of the appellant beyond all reasonable doubt.
• The Supreme court upheld the decision of High Cout and Trial Court. Held that appellant is guilty of committing the offence and that the guilt has been proved beyond all reasonable doubt.

What is Dying Declaration?

• The term ‘dying declaration’ derived from word ‘leterm mortem’ which means ‘words said before death’.
• Dying declaration means a statement made by a person before the death containing the cause or reason of the death or circumstances of the transaction, which resulted in his/her death.
• The rationale behind the concept of dying declaration is that a person may not lie when he is on the deathbed.
• The concept is originated from the Latin maxim ‘Nemo moriturus praesumitur mentire’ which means ‘a man will not meet his maker or God with a lie in his mouth’.
• Dying declaration is admissible in court of law and considered as trustworthy evidence.
• Dying declaration may be in oral or written form and even it made by way of signs or verbal communication.
• The law relating to dying declaration is given under Section 32 (1) of Indian Evidence Act, 1872 (IEA).
• The general rule is that hearsay evidence is not admissible. Unless the evidence tendered is tested by cross-examination, it is not creditworthy. However, Section 32(1) of IEA is an exception to this general rule.

What are the Landmark Judgments Related to Dying Declaration?

• Khushal Rao v. State of Bombay (1958)
  • The Supreme Court examined the following principles governing acceptance of dying declaration:
  • It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated.
  • Each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made.
  • It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence.
  • A dying declaration stands on the same footing as another piece of evidence. It has to be judged in the light of surrounding circumstances and with reference to the principles governing weighing of evidence.
  • A dying declaration which has been recorded by a competent Magistrate in the proper manner stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character.
  • In order to test the reliability of a dying declaration, the court has to keep in view various circumstances including the condition of the person concerned to make such a statement; that it has been made at the earliest opportunity and was not the result of tutoring by interested parties.
• Sher Singh v. State of Punjab (2008)
  • The Supreme Court held that acceptability of a dying declaration is greater because the declaration is made in extremity. When a party is on the verge of death, one rarely finds any motive to tell falsehood.
  • It is for this reason that the requirements of oath and cross-examination are dispensed with in the case of a dying declaration.
• Amol Singh v. State of Madhya Pradesh (2008)
  • The Supreme Court clarified that if there are inconsistencies between one dying declaration and the other, the court has to examine the nature of the inconsistencies, i.e., whether those are material or not.

What is the Legal Provision Related to Dying Declaration?

• Section 32 (1) of Indian Evidence Act, 1872 and Section 26 (a) of Bharatiya Sakshya Adhiniyam, 2023 covers the following:

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. –

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) When it relates to cause of death. – When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

Source: Kerala High Court

Why in News?

Recently, the Kerala High Court in the matter of M. Amanulla Khan v. Sajeena Vahab and Ors., has held that the provisions of Section 188 of the Criminal Procedure Code, 1973(CrPC) is attracted only when the entirety of the offence is committed outside India.

What was the Background of M. Amanulla Khan v. Sajeena Vahab and Ors. Case?

• In this case, the petitioner approached the Kerala High Court to quash the FIR registered against him.
• The petitioner was working in Dubai and is alleged to have unauthorizedly withdrawn money from the account of the company by misusing the power.
• The amount so misappropriated has been transferred to his personal account and the account of his wife in various banks in Kollam District.
• The learned counsel for the petitioner stated that as the offences were committed outside India the Investigating Agency was not competent to enquire into the allegations except with the previous sanction of the Central Government as provided in Section 188 of the CrPC.
• The case was dismissed by the High Court as it lacked merit.

What were the Court’s Observations?

• Justice K. Babu observed that if the offence was not committed on its entirety, outside India, the matter would not come within the scope of Section 188 CrPC and there is no necessity of any sanction as mandated by the proviso to Section 188.
• The Court further concluded that in view of the settled law, the contention of the petitioner relying on Section 188 of CrPC fails.

What is Section 188 of CrPC?

About:

• Section 188 of CrPC provides for the trial and inquiry when an extra-territorial jurisdiction comes into play. it deals with offences committed outside India.

Legal Provision:

• This Section states that when an offence is committed outside India—

(a) By a citizen of India, whether on the high seas or elsewhere; or

(b) By a person, not being such citizen, on any ship or aircraft registered in India.

he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found.

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.

Case Laws

• In the case of Nerella Chiranjeevi Arun Kumar v. State of Andhra Pradesh (2021), the Supreme Court observed that as per Section 188 of CrPC, the trial of a criminal case against an Indian citizen for the crimes committed at a place of action outside of India, cannot begin without the approval of the Central Government.
• In the case of Sartaj Khan v. State of Uttarakhand (2022), the Supreme Court held that the sanction of the Central Government under Section 188 of the CrPC is only necessary when the entire offence was committed outside India.

Source: Allahabad High Court

Why in News?

Recently a bench of Justice Shekhar B Saraf noted that in franchise agreements, the franchisor retains control and can license the same rights to multiple franchisees, reinforcing the licensing framework rather than a full transfer.

• The Allahabad High Court gave this observation in the case of Commissioner Commercial Tax v. Pan Parag India Limited.

What was the Background of Commissioner Commercial Tax v. Pan Parag India Limited Case?

• The respondent (dealer) entered franchise agreements with various parties, granting them the right to use the respondent's brand name/title.
• The Commercial Tax department assessed that the respondent had sold its brand name/title under the franchise agreements and levied Value Added Tax (VAT) on it.
• The First Appellate Authority upheld the VAT levy, concluding that the franchise agreement constituted a sale of the brand name/title.
• The Commercial Tax Tribunal relied on the Delhi High Court's judgment in McDonald's India Pvt. Ltd. v. Commissioner of Trade Taxes (2019) and held that since the franchise granted a non-exclusive right to use the trademark, it did not constitute a transfer of the right to use goods, and hence, no VAT could be levied.
• Hence, an appeal was preferred before the Allahabad High Court.
  • The issue for consideration is whether the franchise of a trademark constitutes a transfer of the right to use goods, thereby making it subject to VAT?

What were the Court’s Observations?

• The court analyzed the definition of 'franchise' under Section 65(47) of the Finance Act, 1994, which states that a franchise agreement grants only a representational right and not an exclusive right to sell/manufacture goods.
• The court highlighted that in trademark licensing, the licensee's use of the mark is considered the owner's use, maintaining the continuity of the trademark's reputation and legal protections.
• The court observed that franchise agreements primarily involve the licensing of intangible assets, such as trademarks and business methods, rather than the sale of tangible goods.
• The court emphasized that franchise agreements involve an ongoing relationship between the franchisor and franchisee, characterized by training, support, and ongoing assistance, unlike a one-time sale of goods.
• The court noted that in the present case, the respondent had already paid service tax on the royalty amount received from the franchisees, and thus, the same cannot be subjected to VAT.
• Based on the above analysis, the court held that the franchise agreement in the present case granted a non-exclusive license rather than a transfer of the right to use goods, and therefore, the transaction did not attract Value Added Tax under the UPVAT Act.
• Consequently, the court dismissed the revision application and upheld the Commercial Tax Tribunal's order, finding no reason to interfere with its view.

What is a Franchise Agreement?

• About:
  • A franchise agreement is a contract between two parties - the franchisor and the franchisee.
  • The franchisor is the owner of a trademark, brand name, and business system, while the franchisee is granted the right to use these intellectual property assets and operate a business following the franchisor's methods and procedures.
• Section 65(47) of the Finance Act, 1994:
  • It defines a 'franchise' as “An agreement by which the franchisee is granted representational right to sell or manufacture goods or to provide service or undertake any process identified with franchisor, whether or not a trademark, service mark, trade name or logo or any such symbol, as the case may be, is involved.”
• Key Features:
  • Grant of rights: The franchisor grants the franchisee the right to use its trademarks, trade names, logos, and proprietary business methods and systems within a defined territory.
  • Non-exclusive rights: As per Section 65(47), the franchise agreement grants only a representational right, not an exclusive right to the franchisee to sell/manufacture goods.
  • Territorial restrictions: The agreement specifies the geographical area in which the franchisee can operate under the franchisor's brand.
  • Operational standards: The franchisor sets standards for the franchisee to follow regarding product quality, service delivery, marketing, etc., to maintain brand consistency.
  • Fees and royalties: The franchisee pays an initial franchise fee and ongoing royalty fees to the franchisor, typically based on a percentage of sales/revenue.
  • Term and renewal: Franchise agreements have a defined term, often with provisions for renewal subject to certain conditions.
  • Training and support: The franchisor provides initial and ongoing training, operational support, and assistance to the franchisee.

What are the Landmark Cases of Franchise Agreement?

• Bharat Sanchar Nigam Ltd. v. Union of India (2006):
  • The Supreme Court laid down a test to determine if a transaction constitutes a transfer of the right to use goods, including
    • availability of goods for delivery,
    • consensus on the identity of goods,
    • legal right for the transferee to use the goods,
    • exclusion of the transferor during the transfer period, and
    • inability of the owner to transfer the same rights to others during that period.
• McDonald's India Pvt. Ltd. v. Commissioner of Trade Taxes (2017):
  • The Delhi High Court held that since a franchise agreement grants only a non-exclusive right, it does not constitute a transfer of the right to use goods.
• Malabar Gold Private Limited v. Commercial Tax Officer (2013):
  • The Kerala High Court held that a franchise agreement does not constitute a deemed sale under the Kerala Value Added Tax Act, as the franchisor retains effective control and possession, and the transaction involves non-exclusive rights.
• Godfrey Phillips India Limited v. State of Uttar Pradesh (2005):
  • The SC held that the Constitution does not permit overlapping of taxes, and once an activity is taxable as a service, it cannot be taxed as a sale or deemed sale of goods.