COMPANY CAN SUE POWER SUPPLIERS UNDER CONSUMER LAW: SUPREME COURT

The Supreme Court has ruled in Karnataka Power Transmission Corpn. & Anr. vs. Ashok Iron Works Pvt. Ltd. on 09/02/2009 that companies engaged in commercial activities can drag their electricity supplier to a consumer forum and seek damages for deficiency in services.

A bench of Justice Markandey Katju and Justice RM Lodha rejected a plea of Karnataka Power Transmission Corporation in which it had said a company using electricity for commercial purpose cannot approach a consumer forum against the utility. The sale of power to a commercial consumer for a commercial purpose was outside the scope of the Consumer Protection Act, 1986, the state utility had argued.

Ashok Iron Works had in 1991 applied an electricity connection, but it approached the district consumer forum after KPTC delayed power supply. The district forum had ruled that the matter was not under the jurisdiction of the Consumer Protection Act. The private company then approached the Karnataka State Consumer Disputes Redressal Commission, which decided in its favour. This had prompted KPTC to approach the National Consumer Disputes Redressal Commission, which quashed its plea. The utility then moved the apex court.

The apex court, while dismissing KPTC�s petition, remanded the matter back to the Consumer Disputes Redressal Forum, Belgaum, to decide whether there was any deficiency in services by the power supplier. KPTC had claimed that the complaint made by the company was not covered under the consumer law since the company was not a �person� as defined under Section 2(1)(m) and hence, not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act. The state utility had also argued that the private company was not a consumer since it had purchased electricity for a commercial purpose.

Section 2(1)(d) defines "consumer" as follows:-

"Consumer" means any person who, -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid
or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or for any commercial purpose; or
(ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or
partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person."

According to Section2(1)(m), "person" includes :-

"(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society;
(iv) every other association of persons whether registered
under the societies Registration Act, 1860 (21 of 1860)
or not."

Section 2(1)(o) defines "service" thus:

"Service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

re : contention -(i)

The question that falls for determination is: is a private limited company a `person' as contemplated under Section 2(1)(d).

Section 2(1)(m) which enumerates four categories namely,

(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society; and
(iv) every other association of persons

whether registered under the Societies Registration Act, 1860 (21 of 1860) or not while defining `person' cannot be held to be restrictive and confined to these four categories as it is not said in
terms that `person' shall mean one or other of the things which are enumerated, but that it shall `include' them.

The General Clauses Act, 1897 in Section 3(42) defines `person':

"Person shall include any company or association or body of individuals whether incorporated or not."

While defining `person' in Section 2(1)(m), the Legislature never intended to exclude a juristic person like company. As a matter of fact, the four categories by way of enumeration mentioned therein is indicative, categories (i), (ii) & (iv) being un-incorporate and category (iii) corporate, of its intention to include body corporate as well as body un-incorporate. The definition of `person' in Section 2(1)(m) is inclusive and not exhaustive.

Hence the apex court said: " It does not appear to us to admit of any doubt that company is a person within the meaning of Section 2(1)(d) read with Section 2(1)(m) and we hold accordingly."

It also said KPTC could be held liable for deficiency in service under the consumer law. "...the provision of facilities in connection with supply of electrical energy is a service. Supply of electricity by the (Karnataka state electricity) Board or for that matter KPTC to a consumer would be covered under Section 2(1)(o) being 'service' and if the supply of electrical energy to a consumer is not provided in time as is agreed upon, then under Section (2)(1)(g), there may be a case for deficiency in service."

No agreement for giving or taking dowry is required to prove the offence of dowry death

The Supreme Court has ruled that no agreement for giving or taking dowry is required to prove the offence of dowry death.

While upholding the conviction and sentence of father-in-law for setting afire his daughter-in-law for dowry, a bench comprising Justices Arijit Pasayat and Mukundakam Sharma, in the judgement in Prem Kumar vs State of Rajasthan dated 7/01/2009, noted, 'While interpreting section 304B of the IPC (Dowry death), if courts insist on such agreements than virtually no offender can be booked.' The apex court further noted, 'Hardly, any offender would come under the clutches of law.' Prem Kumar, the father-in-law, was acquitted by the trial court.

In order to attract Section 304B IPC, the following ingredients are to be satisfied.

i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.

ii) Such death must have occurred within 7 years of the marriage.

iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

iv) Such cruelty or harassment must be in connection with the demand of dowry.


Sections 304B and Section 498A read as follows:

"304-B. Dowry Death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.

Explanation - For the purpose of this sub-section `dowry' shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

"498-A: Husband or relative of husband of a woman
subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation - For the purpose of this section `cruelty' means -

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit sucide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

The term "dowry" has been defined in Section 2 of the Dowry

Prohibition Act, 1961 (in short `Dowry Act') as under:-


"Section 2. Definition of `dowry' - In this Act, `dowry'
means any property or valuable security given or agreed
to be given either directly or indirectly -


(a) by one party to a marriage to the other party
to the marriage; or

(b) by the parents of either party to a marriage
or by any other person, to either party to the
marriage or to any other person,

at or before or any time after the marriage in connection
with the marriage of the said parties, but does not
include dower or mehr in the case of persons to whom
the Muslim personal law (Shariat) applies.

Explanation I- For the removal of doubts, it is hereby
declared that any presents made at the time of a marriage
to either party to the marriage in the form of cash,
ornaments, clothes or other articles, shall not be deemed
to be dowry within the meaning of this section, unless
they are made as consideration for the marriage of the
said parties.

Explanation II- The expression `valuable security' has
the same meaning in Section 30 of the Indian Penal
Code (45 of 1860)."


Explanation to Section 304-B refers to dowry "as having the same meaning as in Section 2 of the Act", the question is : what is the periphery of the dowry as defined therein ? The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be
given" occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and Ors. v. State of Haryana (1998 (3) SCC 309).

Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:-

 "113-B: Presumption as to dowry death- When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such
person had caused the dowry death.
Explanation - For the purposes of this section `dowry
death' shall have the same meaning as in Section 304-B
of the Indian Penal Code (45 of 1860)."


The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death.


A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates.
Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the
proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression `soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is not defined. A reference to expression `soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods `soon after' the theft, is either the thief or has received the goods knowing them to be stolen, unless he can
account for his possession. The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

Rajasthan High Court, however, reversed the order of the acquittal and held the appellant guilty of the killing of his daughter-in-law by setting her ablaze.

The apex court dismissed the appeal of the accused and held that as per section 3 and 4 of the Dowry Prohibition Act both giving and taking dowry is an offence.

An Accused can be convicted on the basis of reliable Extra-Judicial Confessions

The Supreme Court has said that an accused can be convicted on the basis of reliable extrajudicial confessions. It is not open to the court to presume such confessions as weak evidence while deciding the cases, said apex court.

A bench comprising Justice Arijit Pasayat and Justice P Sathasivam while deciding the case of Mohd. Azad @ Samin vs State of West Bengal, dated 5/11/2008, said:

An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility".

Judicial confessions are those which are made before a magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a magistrate or court.

Extra-judicial confessions are generally those that are made by a party to or before a private individual, which includes even a judicial officer in his private capacity. It also includes a magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973.

The court dismissed the plea of two appellant convicts who had challenged a Calcutta high court order. They were convicted taking into account extra-judicial confessions.

Sexual Harassment in the Workplace

It is behavior that is bothersome, irritating, demeaning, and annoying. Sexual harassment is harassment of a sexual nature. But it can be more! It is against the law! It can lead to substantial and embarrassing court fines and significant payments to an injured party. It can mean reduced productivity. It can be measured in lower stock value. It can be a hostile work environment. It is wrong.

Sexual harassment is basically defined as unwelcome sexual conduct that is servere or pervasive and that creates a hostile or abusive work environment. There are two types of sexual harassment claims. The most common in recent years has been hostile environment sexual harassment. This type of harassment is usually motivated by an animus toward women or sexual desire, and takes the form of sexual advances, jokes, comments or actions that alter the work environment. The second type of sexual harassment is called quid pro quo (”this for that”) sexual harassment. Quid pro quo sexual harassment most often occurs where a supervisor or manager threatens some adverse employment action absent relenting to sexual demands or offers employment benefits in exchange for sexual favors.

Landmark Supreme Court judgment on Sexual Harassment of Women at Work Place

In the Landmark case of Vishaka and others versus State of Rajasthan (AIR 1997 Supreme Court 3011), The Supreme Court issued extensive guidelines to ensure prevention of sexual harassment of women at their work place. These directions were issued in a writ petition arising out of an incident of alleged brutal gang rape of a social worker in a village of Rajasthan.

This petition was filed for the enforcement of fundamental rights of working women under article 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is an increase in the effort to guard against such social violations; and the resentment towards incidents of sexual harassment is also increasing.

This petition was in Sexual Harassment in the Workplace and was brought as a class action by certain social activits and NGOs.

It has been held by the Supreme Court that it shall be the duty of the employer to prevent the commission of sexual harassment and to provide the procedures for the resolution and prosecution of acts of sexual harassment by taking all the steps required.

Sexual harassment has been described as including such unwelcome sexually determined behaviour (whether directly or by implication) as:

(a) physical contact and advances;

(b) a demand or request for sexual favours;

(c) sexually coloured remarks;

(d) showing pornography;

(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

It has been held that all employers should take appropriate step to prevent sexual harassment: (a) The prohibition of sexual harassment should be notified published and circulated in appropriate ways. (b) The rules/regulation of government of public sector bodies should included rules prohibiting sexual harassment and provide for appropriate penalties. (c) As regard private employees steps should be taken to include the prohibition in this standing orders under the Industrial Employment (Standing Orders) Act, 1946.

The employer has been directed to initiate criminal action by making a complaint in cases where specific offence of sexual harassment has taken place. He is also required to initiate disciplinary action.

Lawyers to observe strike against CrPC amendments Wednesday

New Delhi, Feb 16 (IANS) Lawyers across the country will observe a nationwide strike Wednesday demanding repeal of an amendment to the Criminal Procedure Code (CrPC) that they say takes away the mandatory provision of arrest in certain cases.

The Delhi High Court Bar Association (DHCBA) along with the federation of all Bar Associations of Northern States will observe a nationwide strike on Wednesday.

DHCBA secretary D.K.Sharma said: “We will observe hunger strike Wednesday to raise our voice against amendments in section 41 and section 309 of CrPC. We have also sent a memorandum to the home ministry to consider the amendments.”

The amendment to the CrPC gives the police freedom to use their discretion on whether to arrest an accused in offences punishable with jail terms of up to seven years.

Meanwhile, the Co-ordination Committee of all Bar Associations of Delhi will also abstain from work Tuesday and hold an all India strike Wednesday and a massive demonstration outside parliament.

“The legal fraternity of India strongly condemns the central government for making such amendments, which are pro-criminal and help the politicians, their henchmen and corrupt bureaucrats who indulge in bribes, land grabbing and other offences,” Rajiv Khosla, spokesperson for the striking lawyers’ coordination committee, told reporters.

He added: “In fact, the amendments brought by the government will give boost to criminals to commit more and more crimes as the fear of being arrested will no more be in their mind because the mandatory provision of arrest in cases that entail punishment upto seven years has been taken away.”

Jaiveer Singh Chauhan, Secretary Delhi Bar Association, said: “With the introduction of amendments in CrPC the chances of more corruption in the police department cannot be ruled out as already the police department has been found to be one of the most corrupt departments in the country.”

The amendment proposes that a police officer may, instead of arresting the person concerned, issue a notice of appearance, asking him to cooperate in the probe.

No arrest will be made in a non-cognisable offence except under a warrant or order of a magistrate. The reasons for arrest should be sound and recorded in writing by the police officer, the amendment proposes.

CrPC (Amendment) Act 2008 gets Presidents accent

http://www.vakilno1.com/LegalViews/index.php/tag/crpc-amendments/

President gives accent to Law forbidding arrest in offenses carrying upto seven years imprisonment

It has been reported in the Times of India dated 19th January, 2009 that the President has granted assent to the law past nearly three week back by the parliament which brings about major changes in the Criminal Procedure Code. This newly enacted law take away the powers of the police to arrest in cases of alleged offenses which carry a maximum sentence upto seven years of imprisonment.

Once the law, CrPC (Amendment) Act 2008, becomes effective, the police, instead of arresting the accused, will be obliged to issue him/her a “notice of appearance” for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice.

Seven years or less is the maximum penalty for a lot of offences. These offences include such as attempt to commit culpable homicide, kidnapping, death by negligence, cheating, voluntarily causing grievous hurt, outraging a woman’s modesty, robbery, attempt to suicide.

These amendments have been made in section 41 of the CrPC. Under Section 41, as it originally stood, a police officer may, without an order of a magistrate and without a warrant, arrest any person who has been concerned in any cognisabale offense. The rationale of the amendment in section 41 of the code of criminal procedure has been justified by the home minister of India Shri P. Chidambaram reportedly in his letter which says that the provision was being capable of being misused and was in fact actually being misused in practice. He substantiated this claim of misuse of the arrest law by the police using it more of an engine of harassment rather than an instrumentality of fair investigation by citing the various reports of the law commission of India, the Malimath committee of reforms, and the landmark supreme court judgment in the case of DK Basu. In fact it was misused of this law that had necessitated the delivering of DK Basu judgment in which various dos’ and donts’ were prescribed to be strictly complied by the police force while investigating a case and arresting an accused.

The amendment in CrPC, however, allows police to arrest without an order from a magistrate and without a warrant a person who commits a cognisable offense “in the presence of a police officer”.

It also enables arrest of “a person who has committed a cognisable offence (punishable for a term which may be less than 7 years or extend upto 7 years) if there is a reasonable complaint or credible information or a reasonable suspicion and the police officer is satisfied that such arrest is necessary for proper investigation of the offence or for preventing tampering with the evidence“. The only additional requirement in such cases is that the police officer will have “to record his reasons” for making the arrest.

SUPREME COURT BAR ASSOCIATION OPPOSED TO CRIMINAL PROCEDURE CODE AMENDMENT BILL

The Supreme Court Bar Association is opposed to the amendments made in the Criminal Procedure Code (CrPC) giving discretionary powers to police not to arrest a person who is involved in an offence having maximum sentence of seven years.

The bill, which was passed by Parliament on December 23 without any discussion as on that day eight bills were passed in 17 minutes and has also received Presidential assent, is likely to be challenged in the Supreme Court when it is notified by the government to enforce the amendments.

SCBA President P H Parekh told UNI that he was with the bar associations of the country, who are opposing the amendments. SCBA Secretary K C Kaushik said it was wrong on the part of the government to introduce such a bill in Parliament without taking the legal fraternity and bar associations into confidence. According to Mr Parekh, the SCBA has already passed a resolution opposing the amendments. There is widespread belief among lawyers that these amendments would give a free hand to frauds, unscrupulous elements, extortionists, those demanding dowry and other offenders without any fear of being arrested, leaving law-abiding citizens at the mercy of anti-social elements, police and politicians with criminal track records. Police would misuse its discretionary powers to shield the culprits, they contend. The apex court is already seized of a PIL which raises the important and similar issue of whether police officers should be given discretionary powers in case of commission of a cognisable offence or not.

Chief Justice K G Balakrishnan had expressed the views that a person should not be arrested without verifying the veracity of allegations so that people are not implicated in false cases to settle personal and political scores while Justice B N Aggarwal, who is the next senior most judge in the Supreme Court, holds opposite views and had observed, �Discretion will amount to give the police a handle.' The lawyers have already declared that they would observe a nationwide strike against the amendments on February 3. According to the amendments, police would have to seek prior permission of the court before arresting a person and would be able to arrest people only involved in heinous crimes like murder, rape and dacoity.