LEGAL NEWS 6.12.2008

SC gives reprieve to Pawar, BCCI officials in perjury case
http://www.lawyersclubindia.com/news/2008/12/sc_gives_reprieve_to_pawar_bcci_officials_in_perjury_case.asp
Posted on : 06 December 2008 by Shambasiv
Union Agriculture Minister Sharad Pawar and five other BCCI officials received a reprieve with the Supreme Court staying a Calcutta High Court’s directive to initiate criminal proceedings against them for filing “false” affidavits in the Jagmohan Dalmiya expulsion case.A bench of Chief Justice K G Balakrishnan and Justice P Sathasivam stayed the impugned judgement after upholding the plea of Pawar and the BCCI officials that the High Court acted erroneously in passing the directions for criminal proceedings.Pawar and the other BCCI officials took the plea that the High Court did not give them the opportunity to present their view and thus violated the principles of natural justice.The bench said it was wrong on the part of the High Court to have passed such an order as legally it was supposed to have conducted an inquiry into the allegation, recorded a finding and then directed registration of a case.”The High Court has to conduct an inquiry and was bound to record a finding and then make a complaint,” the apex court observed when senior counsel K K Venugopal, who appeared for Dalmiya, opposed the stay.The bench rejected Venugopal’s argument wherein he cited an earlier Supreme Court ruling that had upheld a similar direction for registration of criminal cases for perjury.The said case referred to by the counsel related to an issue where the trial court had recorded a finding on the basis of which it had directed registration of a criminalcase, the bench pointed out.Besides Pawar, others against whom the Calcutta High Court had ordered registration of criminal cases were BCCI president Sashank Manohar, former secretary Niranjan Shah, Ratnakar Shetty (Chief Administrative Officer), N Srinivasan (Secretary) and Chirayu Amin, junior Cricket Committee Chairman.The Calcutta High Court had on 12th November directed initiation of criminal proceedings against them for allegedly filing false affidavits in the Dalmiya expulsion case.The court’s order had come eight months after Dalmiya, a former BCCI president, alleged perjury against Pawar and Board officials and sought criminal proceedings against them for producing “false” documents.All the accused BCCI officials have challenged the ex-parte order directing the Registrar (Original side) to initiate criminal proceedings under section 195 of the Cr P C (prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence) at an appropriate court.

SC stays HC’s order on Commonwealth Games Village
http://www.lawyersclubindia.com/news/2008/12/sc_stays_hc_s_order_on_commonwealth_games_village.asp
Posted on : 06 December 2008 by Shambasiv
The Supreme Court on Friday stayed all proceedings pending in the Delhi High Court regarding construction of 1,100 flats for Commonwealth Games village near the Yamuna river bank.The High Court had earlier on November three refused legal sanction and appointed a committee to assess the ecological impact of the project.A Bench headed by Chief Justice K G Balakrishnan stayed the proceedings after Solicitor General G E Vahanvati made a mention of the High Court order.The Solicitor General submitted that the conduct of the Games would be in jeopardy if the order of the High Court was to be implemented.

Scrutiny of 2007-08 returns to take place in current fiscal
http://www.lawyersclubindia.com/news/2008/12/scrutiny_of_2007_08_returns_to_take_place_in_current_fiscal.asp
Posted on : 05 December 2008 by Y.Prakash
In a major departure from the usual practice, the Central Board of Direct Taxes (CBDT) has issued directions that scrutiny of the self-assessment returns filed by September 30, 2008 for the financial year 2007-08 will be taken up in the current fiscal.Fall in tax revenues and failure of many companies to pay their dues by September 30 have acted as a trigger for the CBDT to issue a circular to this effect to the income-tax offices across the country, sources said.Usually, September 30 is the date by which every company is expected to pay the final tax return for the said financial year. A company usually pays taxes in the form of advance taxes spread across the four quarters of a financial year. If the amount is not paid, it can be paid with the interest penalty under Section 234 (b) and (c), before filing the final return.In the normal course, tax returns for the financial year 2007-08 or assessment year 2008-09 should have been filed by September 30, 2008, and taken up for assessment next year (2009-10). These cases, which become time barring by 2010, will now be picked up for assessment and the demand will be raised before the end of this financial year for speedy recovery.Sources said this was due to a high rate of default in tax payments where the assessee has just filed the return form with the due amount, and in some cases even after calculating the interest penalty. Such defaults run into thousands of crores of rupees at a time when the government is facing a decline in yearly tax collections for the first time since 2003.Therefore, the tax department is preparing to serve notices on almost all the companies which have filed returns without paying the full taxes under Section 140 (a) (3) of the Indian Income Tax Act, 1961. Under Section 140 (A) (3), an assessee is issued a notice as a tax defaulter.“The finance ministry is of the view that since the tax data are available online under the annual information return (AIR) system, recovery for this year could be started immediately. Earlier, when it was a manual process, the compiled and processed information took time to be made available from the field to the decision-making authorities,” said sources.They added that it was an easier strategy for boosting revenue collections since the assessees had defaulted for no particular reason. The Income-tax Department is of the view that there is no reason for this default since the amount of tax is incidental upon the amount of income. Therefore, losses or decline in income for the current financial year could not be a reason for tax default for the last year.Interestingly, lack of funds has been cited as one of the reasons for the default in tax payments.

Indian to be tried for murder of wife today
http://www.lawyersclubindia.com/news/2008/12/indian_to_be_tried_for_murder_of_wife_today.asp
Posted on : 05 December 2008 by Aravinthan Ganesan
New York, Dec. 4: Indian national Jo-seph Palli-purath, who drove all across the US from California to New Jersey to kill his 24-year-old wife, has been brought to Georgia to face trial. Palliparuth, a native of Kerala, who was shackled as he was taken off the plane on Wednesday night, is expected to be arraigned on Friday. Twenty seven-year-old Palliparuth had confronted his wife Reshma James, 24, who was said to be trying to escape from an abusive relationship, shot her and two others in a church frequented by the Indians in New Jersey on November 23. The injured were identified as Dennis John Mallosseril, 25, who tried to intervene and Reshma’s cousin Silvy Perincheril, 47.Reshma died four hours later, Mallosseril next day and Perincheril is lying in coma in the hospital. They were married in India about a year ago and then moved to California. Pallipurath, the police said, drove from their home in Sacramento in California on the West Coast to New Jersey on the east coast to confront his wife who had left him and was staying with one of her relatives. She had obtained a court order restraining him to come near her. The police said he would undergo psychological evaluation.

TN govt vows to curb illegal constructions in hill stations http://www.lawyersclubindia.com/news/2008/12/tn_govt_vows_to_curb_illegal_constructions_in_hill_stations.asp
Posted on : 05 December 2008 by Aravinthan Ganesan
Chennai: The Tamil Nadu government has told the Madras high court that it would enforce relevant rules and regulations to ensure that unauthorised construction activities, including digging trenches and road works, did not take place in hill stations such as Ooty, Kodaikanal and Yercaud.An undertaking to this effect was given before the first bench comprising Chief Justice A K Ganguly and justice F M Ibrahim Kalifulla, when a public interest writ petition filed by Elephant G Rajendran, managing trustee of In Defence of Environment and Animals (IDEA), came up for admission.Citing the provisions of the Tamil Nadu Hill Area (Preservation of Trees) Act 1955, Rajendran submitted that the legislation banned tree felling. He said that as per Section 4(1) no person should use any land having morethan 30 degrees slope for any purpose other than growing trees. In violation of these mandatory provisions, district revenue and forest department officials were permitting roads and tree felling in the ecologically-fragile Ooty, Kodaikanal and Yercaud areas.Expressing concern at the unabated deforestation in these hill stations, Rajendran wanted the court to direct the authorities not to allow anyone to lay road, construct any buildings or levelling the slopes. He said the forest and revenue authorities shall be mandated to prevent use of these lands for any purpose other than the ones specified in the act.Government pleader Raja Kalifulla told the court that the government would follow the acts, rules and regulations for the preservation of forest in the hill regions. The judges, noting that strict action should be taken against violators, said Rajendran too could furnish specific details to the authorities for necessary action.
Source : Times of India –

Bombay HC verdict strengthens IT department: CBDT Chairman
http://www.lawyersclubindia.com/news/2008/12/bombay_hc_verdict_strengthens_it_department_cbdt_chairman.asp
Posted on : 04 December 2008 by Y.Prakash
The CBDT, Chairman Shri N.B. Singh said that the decision of the Mumbai High Court in favour of the Income Tax Department in the case relating to transfer of securities of Vodafone Essar Limited has strengthened the hands of the Income Tax Department.In a writ petition, the validity and legality of the notice issued by the Income Tax department was challenged. The Hon’ble High Court has dismissed the writ petition with cost. Yesterday, the Hon’ble Mumbai High Court had delivered its judgement on the writ petition filed against a notice issued by the Income Tax department under section 201(1) of the Income Tax Act, 1961 to Vodafone International Holdings BV, asking it to show-cause as to why it should not be treated as an assessee in default for failure to deduct tax on payment made in respect of transfer of securities relating to Vodafone Essar Ltd. Shri Singh said that the judgement has strengthened the hands of the Income Tax department in its attempt to bring to tax in India, the transactions involving transfer of assets situated in India between entities located outside the country. PIB

Court rejects plea for probe into ‘Hindutva terror’
http://news.hinduworld.com/click_frameset.php?ref_url=/index.php&url=http%3A%2F%2Fwww.thehindu.com%2F2008%2F12%2F06%2Fstories%2F2008120656551300.htm
Legal Correspondent
Have you got evidence against any of them, CJI asks counsel
Malegaon blast being probed with a closed mind: JUH
Asks CBI to expedite probe into 2001 riots
New Delhi: The Supreme Court on Friday rejected at the admission stage itself a writ petition filed by Jamiat Ulama-i-Hind(JUH) Delhi unit president Maulana Arshad Madani for a probe by an independent agency into all acts of “Hindutva terror” from 2001.
A Bench consisting of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam dismissed as withdrawn the petition, saying the prayer could not be granted.
The petition expressed concern over the involvement of Hinduva fundamentalists in the recent bomb blast at Malegaon in Maharashtra and said the investigating agencies were conducting the probe with a closed mind. The petition sought a direction to the Central Bureau of Investigation to expedite the probe into the 2001 Malegaon riots and pleaded that it be monitored by the court.
The petitioner said the state investigating agencies did nothing even after clear evidence emerged of the involvement of Hindutva fundamentalists. The Chief Justice told Mr. Madani’s counsel: “It is for the state to do what it wants. They [police] are conducting an enquiry and it is being done by a special team. Have you got evidence against any of them [Hindutva groups]? How can you say that investigation is not being conducted properly?

HC asks for Todi’s medical report
http://timesofindia.indiatimes.com/Kolkata_/HC_asks_for_Todis_medical_report/articleshow/3799710.cms
6 Dec 2008, 0445 hrs IST, TNN
KOLKATA: Calcutta High Court on Friday asked for a detailed medical report of Ashok Todi. The court asked the superintendent of Presidency jail to furnish a health report of Todi since his first day of admission to the jail hospital. Only after going through that will the court consider his bail petition. The report is to be submitted to the court on Monday. The court also dismissed a writ filed by Todi, challenging the notice issued by the Regional Passport Authority (RPA) to impound his passport. Opposing the bail plea, CBI counsel Ranjan Roy argued that his health was not bad and he had never been hospitalised since his bypass surgery in March 2007. It was only after he was taken into custody on December 1, did Todi get admitted to the jail hospital. So, he cannot be granted bail on health grounds, Roy submitted. Earlier, Todi’s counsel Jaymalya Bagchi pleaded for his client’s bail on the grounds that he was a cardiac patient, who had undergone bypass surgery. The court adjourned the hearing till Monday when the jail authorities will produce the report on Todi’s health. In another case, Ashok Todi, his brother Pradip and cousin Anil Saraogi challenged a notice issued by the Regional Passport Authority that asked the Todis to showcause why their passports would not be impounded. Immediately after non-bailable warrants were issued against the Todis, CBI issued a notice to RPA. On the basis of that, RPA issued the showcause notices. After hearing all parties, Justice Indira Banerjee dismissed the Todis’ applications. RPA counsel, Asish Ghosh, said a look-out notice has already been issued.

Vodafone to move SC against HC’s verdict
http://economictimes.indiatimes.com/News/News_By_Industry/Vodafone_to_move_SC_against_HCs_verdict/articleshow/3799807.cms
6 Dec 2008, 0513 hrs IST, ET Bureau
MUMBAI: The Bombay High Court has come down heavily on Vodafone International for “suppressing facts” regarding the $11.2-billion purchase of stake

in Vodafone Essar and said in such a scenario, the court can dismiss the petition without entering into the merits of the matter. UK-based telecom major, Vodafone International, has now decided to move the Supreme Court within the eight-week period granted by the high court for filing any appeal. In their 165-page order, put up on the high court website on Friday, Justices S Radhakrishnan and Anand Nirgude said: “The petition totally lacks particulars as to the nature of agreement dated on February 11, 2007. And all other agreements preceding or following the same entered into by Hutchison Telecommunications International (HTIL) and the petitioner (Vodafone International). The essential facts, supported by the necessary documents as proof of such facts, have been conveniently kept away from this court.” In a statement on Friday evening, the telecom behemoth said: “The exact details of the basis of the order will be evaluated by Vodafone. The telecom major confirms that it intends to appeal to the Supreme Court within the eight-weeks period granted by the Bombay High court.” Vodafone had paid $11.2 billion for buying a 67% stake in Hutchison Essar from HTIL in February 2007. The Income Tax department, which had sent a show-cause notice to Vodafone on September 19, 2007, had asked the company why it should not be treated as an “assessee in default” as HTIL, which had made profits on the disposal of the stake in India, was no longer present in the country. If tax authorities are able to prove that Vodafone is an “assesse in default”, the telecom giant will have to pay $1.7 billion as capital gains tax, an equal amount as penalty and interest on these two at 18% per annum, taking the potential outgo to over $4 billion. The I-T department had contended that it demanded a copy of the agreement entered into by both companies. However, Vodafone had not been able to provide it, the department said. Vodafone claimed that, “no such request (for a copy of the agreement) has been made in the proceedings before the court” or it would have provided the same to the tax authorities.

Apex court stays HC order of stay on Games Village work
http://www.indianexpress.com/news/Apex-court-stays-HC-order-of-stay-on-Games-Village-work/394949
Express News Service Posted: Dec 06, 2008 at 0234 hrs IST
New Delhi: Following a High Court order for setting up a committee to assess any possible environmental damages that might be caused by constructing the Commonwealth Games Village, the Supreme Court on Friday provided relief to the Delhi Government by ordering an interim stay on it.
The interim order came on an appeal filed by the Delhi Development Authority (DDA). The DDA had challenged the November 3 High Court order of setting up an expert panel, headed by Nobel laureate R K Pachauri, to review the alleged ecological impact of the ongoing construction of 1,100 flats at the Games Village, on the Yamuna riverbed.
Solicitor General G E Vahanvati, appearing on behalf of the government, urged the apex court bench headed by Chief Justice K G Balakrishnan to grant an ex-parte stay as the High Court’s directive would “seriously jeopardise the very idea of holding the 2010 Games in Delhi. He contended that the government has already invested Rs 500 crore on Games-related works. Vahanvati said the High Court had erroneously come to the conclusion that construction was being carried out on the riverbed. The High Court had also disregarded the voluminous scientific literature and experts’ opinion that the site in question was not located on the riverbed, the court was told.
The SC bench agreed to temporarily suspend the High Court directive and asked the latter not to pass any directions till further orders.
The matter will now be heard on December 15 by the apex court.
Questioning the High Court’s verdict following a host of PILs filed to oppose the construction of the Games Village, the government counsel also pointed to the “unusual and unconventional” manner in which the two judges of the HC bench — Justices A K Sikri and Rekha Sharma — delivered their verdicts separately after hearing the matter together.

HC revokes Roche’s patent
http://timesofindia.indiatimes.com/Business/India_Business/HC_revokes_Roches_patent/articleshow/3798630.cms
6 Dec 2008, 0202 hrs IST, Rupali Mukherjee, TNN
NEW DELHI: In a first-ever instance of a patent being revoked after being granted, the Madras High Court has set aside pharma major Roche’s patent on key drug, valganciclovir on procedural grounds. A patent on valganciclovir was granted to the company in June 2007. Valganciclovir is a treatment for cytomegalovirus (CMV), a virus that often attacks the retina of people with lower immune systems, such as AIDS patients. In addition, it is crucial for prevention of CMV infection in patients who have received organ transplant. The court has cited the failure of the Indian patent office to comply with the patent law and remanded the matter back to the Patent Controller. The judgment was delivered on a petition filed by civil society groups Indian Network for People Living with HIV/AIDS (INP+) and Tamil Nadu Networking People with HIV/AIDS (TNNP+), who had challenged the Indian Patent Offices decision to grant a patent without hearing the pre-grant opposition filed by them. In July 2006, INP+ and TNNP+ had filed a pre-grant opposition before the Chennai Patent Office objecting to the grant of patent to Roche and requested for a hearing. Under the Indian law, if an opponent requests a hearing, the patent office is required to provide the opponent an opportunity to be heard. However, this was not done. PI At Roche’s maximum retail price of over Rs 1000 per tablet, a patient who has to take a treatment course of approximately four months for CMV retinitis in India would have to pay over Rs 2.5 lakh. This puts the treatment unafforable for those who need them. The grant of patent to Roche allowed it to continue charging exorbitant prices and also prevented the entry of generic versions of valganciclovir. Hwoever, in May this year, Cipla launched the generic valganciclovir in the domestic market at a price of Rs 245 for a tablet. Under law, a generic producer can challenge the patent by taking the risk of launching a generic version after obtaining marketing approval. In response, Roche filed an infringement suit against Cipla in the Bombay High Court in September seeking an injunction, which is till pending. The dispute between the companies hinges on “patentability” of the drug. The validity of the patent is in question under the country’s patent laws that do not allow patents on new forms of old drugs, also known as Section 3(d). Experts pointed out that valganciclovir is a hydrochloride salt of an old drug `ganciclovir’ and hence not patentable. The generic producers of the drug, Matrix, Ranbaxy and Cipla have also filed post grant oppositions. While the opportunity to oppose the application is only granted to the patient groups, it is likely that Roche’s injunction proceedings against Cipla for launching the generic version will no longer have a legal basis as the patent is now revoked. Whether the Mumbai court will keep the infringement proceedings pending remains to be seen, legal experts say.

Paternity suit: N D Tiwari moves HC against order
http://www.indianexpress.com/news/paternity-suit-n-d-tiwari-moves-hc-agai…/394872/
Express news service Posted: Dec 06, 2008 at 0117 hrs IST
New Delhi: Veteran Congress leader and Andhra Pradesh Governor N D Tiwari, who is facing a paternity suit filed by Rohit Shekhar, the 29-year-old grandson of a former Union minister, on Friday moved the Delhi High Court against its direction for his personal appearance.
Raising objections against the summon for December 16 on various grounds, Tiwari sought stay of the order saying that his appearance would prejudice the constitutional post he holds.
“Appellant is Governor of Andhra Pradesh, a constitutional appointee and it would gravely prejudice him and his office, if he is directed to appear in person, especially when suit is liable to be rejected on the ground of limitation and lack of jurisdiction,” senior advocate S B Sanyal, who was appearing for Tiwari, submitted.
A single-judge bench of the High Court on November 25 had directed him to appear before it on December 16 for in-chamber hearing, considering it to be a family matter.
Tiwari’s personal appearance was directed by the court on a suit filed by Shekhar, grandson of former Union minister Sher Singh, claiming that he was born out of a relationship between Tiwari and his mother Ujjwala Singh, who is also associated with the Congress. The 85-year-old Governor has however rubbished the claim.
Appearing before a bench comprising Justices A K Sikri and Manmohan Singh, Tiwari’s counsel termed the direction as “premature”, for his personal appearance was not required at such an initial stage.
The four-time chief minister also expressed his displeasure over treating the matter as a “family matter” and said in his petition, “… by no stretch of imagination, the present matter can be said to be family matter as the plaintiff (Rohit) is alleged to be born during the wedlock of his mother and B P Sharma and I cannot be their family member especially when I had denied all the allegations in the plaint.”

Company shut, HC comes to workers’ rescue
http://timesofindia.indiatimes.com/Ahmedabad/Company_shut_HC_comes_to_workers_rescue/articleshow/3798884.cms
6 Dec 2008, 0041 hrs IST, TNN
AHMEDABAD: The Gujarat High Court has dismissed a petition by Union Bank of India objecting to workers’ claims that the bank alone cannot take possession of all assets of a closed company as per law. This has brought relief to 400-odd workers of a company that they would be paid their dues. As per case details, city-based Kiran Processors
Ltd shut down its operations rendering about 400 workers jobless. However, the company was closed without obtaining necessary permission of the labour commissioner. And the bank, being one of creditors, took possession of all the assets to recover the dues. Against the bank’s move, the workers’ union moved a labour court questioning how the bank can take possession of the property of the closed company. The union also made the bank a party, to which the bank objected. When the labour court refused to remove the bank from the list of respondents, it approached the high court urging that it should not be impleaded as a party. After hearing arguments from the union’s advocate Dhimant Vasavda, Justice Jayant Panchal dismissed the bank’s plea observing that though the company was not ordered to be wound up, at the same time it has closed down its operations and a large number of worker have lost their jobs. Therefore, they are entitled to receive their legitimate dues as per the Securitization Act as well as various provisions of the Company Act.

HC orders HMC to clear dump
http://www.thestatesman.net/page.news.php?clid=22&theme=&usrsess=1&id=234673
Statesman News ServiceKOLKATA, Dec. 5: Howrah Municipal Corporation was directed to demolish illegal structures at the Belgachia trenching ground of Howrah and clear it by 15 January, 2009, by the Division Bench of Mr Justice SS Nijjar and Mr Justice Sanjib Banerjee of Calcutta High Court today. A series of orders had been passed in this matter to destroy houses, factories and a Kolkata Municipal Development Authority (KMDA) office but the HMC has not carried out the court order leading to pollution, the Division Bench observed. In 2003, the HMC and the state government were directed to explore an alternate spot for dumping garbage. In October, 2006, the matter was brought to the notice of the court by Mr Subhas Dutta of Howrah Ganatantrik Nagarik Samity that no alternative dumping ground has been explored and 40 per cent of the existing trenching ground has been encroached. The court directed the HMC to draw up a scheme. In August, 2008 HMC was fined Rs 20,000 for not complying with the court order. Mr D Mukherjee, the HMC counsel expressed the inability of his client to comply with the earlier court order. The court further directed the district magistrate of Howrah to render necessary assistance to HMC to carry out the order.

Dodging tax: HC seeks help from Mattewal
http://www.expressindia.com/latest-news/dodging-tax-hc-seeks-help-from-mattewal/394776/
Express News Service
Posted: Dec 06, 2008 at 0014 hrs IST
Chandigarh Realising the sensitivity of the case involving two Ludhiana-based companies that have been accused of evading verification or stamping fees worth crores of rupees, the Punjab and Haryana High Court has sought the assistance of Punjab Advocate General H S Mattewal in the case.
The case came up for resumed hearing today before a division Bench comprising Chief Justice Tirath Singh Thakur and Justice Jasbir Singh. The Controller of Legal Metrology, Punjab, was present in the court, as directed by the court on Thursday. The two tape-manufacturing companies — Freemans Measures Limited and FMI Ltd — are in the dock for allegedly evading stamping fees for the last four years.
The issue had come to light after a petition was filed in the Punjab and Haryana High Court by advocate N K Jain. The petitioner has sought action against the alleged large-scale evasion in the stamping fees in connivance with the officers of the Controller of Legal Metrology department.
“To manufacture three metres of measuring tape, a stamping fee of Rs 18.75 fee is to be paid,” said the petitioner. The petitioner alleged that by dodging stamping fees, the two firms were selling their product at cheaper rates in the market and making huge profits.

SC stays HC order on Commonwealth Games construction row
http://www.ptinews.com/pti/ptisite.nsf/0/3DF36C60D976F69E65257516004FCF75?OpenDocument
New Delhi, Dec 5 (PTI) The Supreme Court today stayed a Delhi High Court judgement appointing a committee to assess the perceived adverse ecological impact arising out of the construction of 1,100 flats for the forthcoming Commonwealth Games near the Yamuna.A bench of Chief Justices K G Balakrishnan and P Sathasivam stayed the November 3 High Court order after Solicitor General G E Vahanvati during the “mention time” assailed the judgement on the ground that it would seriously “jeopardise” conduct of the games for which crores of rupees have already been invested.Appearing on behalf of the DDA, Vahanvati said the High Court had erroneously come to the conclusion that the construction was being carried out on the river bed.In doing so the High Court has disregarded and ignored voluminous scientific literature and opinion of experts that the site in question was not located on the river bed, the DDA submitted.According to Vahanvati, already Rs 500 crore had been spent on the project and the High Court’s judgement may have the effect of disrupting the construction as no buyer would come forward to purchase the flats.On November 3, the High Court refused to approve the construction and appointed a committee to assess the perceived adverse ecological impact of the project. PTI

Editor’s PickCyber theft and the Indian Telegraph Act, 1885
http://www.indlawnews.com/display.aspx?4342
Puneet Shukla
Internet is believed to be full of anarchy and a system of law and regulation therein seems contradictory. However, cyberspace is being governed by a system of law called Cyberlaw. As the Internet grows, numerous legal issues arise. One of the most important issues concerning cyberspace today is that of Cyber crime.
Introduction

Since the beginning of civilization, man has always been motivated by the need to make progress and better the existing technologies. This has led to tremendous development and progress which has been a launching pad for further development. Of all the significant advances made by mankind from the beginning till date. Probably the most important of them is the development of Internet to put in a common mans language internet is a global network of computers, all speaking the same language.

Internet is believed to be full of anarchy and a system of law and regulation therein seems contradictory. However, cyberspace is being governed by a system of law called Cyberlaw. Cyberlaw is a generic term which refers to all the legal and regulatory aspects of internet. Publishing a web page is an excellent way for any business to vastly increase its exposure to millions of individuals world-wide. It is that feature of the Internet which is causing much controversy in the legal community.

Cyberlaw is a constantly evolving process. As the Internet grows, numerous legal issues arise. One of the most important issues concerning cyberspace today is that of Cyber crime. The world over cyber crime has taken deep root and the use of cyberspace by sophisticated cyber criminals has assumed serious proportion today. Criminals and terrorists associated with drug trafficking, terrorist outfits are employing Internet for anti social, anti national and criminal activities with impunity. There can be no one exhaustive definition about Cybercrime. However, any activities which basically offend human sensibilities, can also be included in its ambit. Child Pornography on the Internet constitutes one serious Cyber crime. Similarly, online pedophiles, using internet to induce minor children into sex, are as much Cybercriminals as any other.[1][1]

Cybercrimes can be basically divided into 3 major categories being Cybercrimes against persons, property and Government. Cybercrimes committed against persons include various crimes like transmission of child-pornography, harassment of any one with the use of a computer such as e-mail, and cyber-stalking.

The second category of Cybercrimes is that of Cybercrimes against all forms of property. These crimes include unauthorized computer trespassing through cyberspace, computer vandalism, transmission of harmful programs and unauthorized possession of computerized information.

Hacking and cracking are amongst the gravest Cybercrimes known till date. It is a dreadful feeling to know that someone has broken into your computer systems without your knowledge and consent and has tampered with precious confidential data and information. Coupled with this, the actuality is that no computer system in the world is hacking proof. It is unanimously agreed that any and every system in the world can be hacked. Using one””s own programming abilities as also various programmes with malicious intent to gain unauthorized access to a computer or network are very serious crimes. Similarly, the creation and dissemination of harmful computer programs or virus which do irreparable damage to computer systems is another kind of Cybercrime. Software piracy is also another distinct kind of Cybercrime which is perpetuated by many people online who distribute illegal and unauthorised pirated copies of software.[2][2]

The third category of Cybercrimes relate to Cybercrimes against Government. Cyber Terrorism is one distinct kind of crime in this category. The growth of Internet has shown that the medium of Cyberspace is being used by individuals and groups to threaten the international governments as also to terrorise the citizens of a country. This crime manifests itself into terrorism when an individual cracks into a government or military maintained website.[3][3]

In this assignment, we are basically concerned with the second type of Cybercrime, i.e. Cybercrime related to property since it is property which can be stolen. In this assignment, we shall discuss whether cyber theft can be covered under the Indian Telegraph Act of 1885 or not.

The Indian Ielegraph Act of 1885 and Cybertheft

Before the Information Technology Act of 2000 was passed, India faced one of its first cases of Cybercrime. A Krishan Kumar was arrested by the Delhi police for having stolen the Internet hours of a Col. (Retd.) Bajwa. He was booked under the Indian Telegraph Act, 1885. The main contention was whether the provisions of the Act would be applicable to such a case.[4][4]

First, we must discuss theft. Section 379 of the Indian Penal Code defines the punishment for theft under Section 378 as follows:-

Theft – Whoever, intending to take dishonestly any moveable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft.

It can be argued that it will be very difficult to bring the cyber crime of stealing of internet hours or for that matter, using stolen internet hours, within the ambit of the criminal law. Section 378 of IPC defines theft and section 379 and talks of the punishment for theft. However, section 378 of IPC defines theft as stealing of moveable property. Section 378 makes it clear that moveable property is one which is severed from the earth. But can internet time be brought within the ambit of property, moveable or immoveable? It can be argued that time has never been considered as a property at any point of time in history. Clearly, theft of Internet hours could not be brought under the ambit of IPC since for an offence of theft to be committed, the property should be moveable and must be severed from the earth. Internet hours will certainly not fall within that ambit.

We do have many old laws like the Indian Telegraph Act, which date back to 1885. The Information Technology Act 2000 has not amended the Indian Telegraph Act, 1885 .The important thing that arises for consideration is whether the Indian Telegraph Act, 1885 in its present form is capable of being interpreted in todays cyber age to include cyberspace within its ambit.[5][5]

The Indian Telegraph Act, 1885 was enacted 121 years back with the main object being to give power to the Government and to any company or person licensed under section 4 of the Indian Telegraph Act, 1876, and specially empowered in this behalf, to place telegraph lines under or over property belonging whether to private persons or to public bodies. The preamble of the Telegraph Act says that it is an Act to amend to the law relating to telegraphs in India. Section 3 of the Indian Telegraph Act defines telegraph as following:-

telegraph means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals; writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means.

It is pertinent to note that the definition of telegraph is wide enough to even include a large number of modern gadgets. However, the crucial issue is whether do we interpret the law out of the context of the time and against the aims and objects of the law. The Indian Telegraph Act was enacted, as a law on telegraphs and in my opinion, cannot be extended beyond the ambit of telegraphs.

Section 25 of the Telegraph Act, which has been alleged to have been invoked in Indias first cyber trial, talks of intentionally damaging or tampering with telegraphs.[6][6] The said section says:-

If any person, intending – (a) to prevent or obstruct the transmission or delivery of any message, or (b) to intercept or to acquaint himself with the contents of any message, or (c) to commit mischief, damages, removes, tampers with or touches any battery, machinery, telegraph line post or other thing whatever, being part of or used in or about any telegraph or in the working thereof, he shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.
The definition of telegraph, though loosely defined, cannot be stretched so much as to include internet and cyberspace. In any case, in todays scenario, telegraph and internet are two separate concepts, each having their own separate meaning and implications. In case, we endeavour to include internet within the definition of telegraph, the same shall be an extremely dangerous exercise.

CONCLUSION

From the discussion above it is clear that the Indian Telegraph Act, 1885 is not equipped to deal with the complex issues involved in cybertheft and more generally, cybercrime. In any case, the Indian Telegraph Act, 1885 is sought to be repealed by the proposed Communications Convergence Bill 2001, which is presently pending before the government, after the Parliamentary Standing Committee has given its recommendations about the same. What we must keep in mind is that as time passes and new challenges emerge, law will have to change with time so as to retain its flexibility and relevance.

Basically, information and knowledge are sources of empowerment for the citizens, enabling them to effectively participate in decisions affecting their lives and livelihood, and in ensuring accountability and transparency of those in charge of the institutions of governance. For the government information and knowledge are vital to the formulation of the appropriate policies, the delivery of the essential services and the promotion of human development. ICTs in general and e-governance in particular can play a very critical role in empowering the people.

We must note that e-Governance is not a panacea for Indias overnight development, though. Governance is a process; and the electronic is merely a tool to enhance the efficiency and effectiveness of the process of governance. Hence e governance is not a substitute for good governance or democracy. It does not substitute for the principles of good governance or those of democracy. E-governance is about transformation that helps citizens and those in business explore new, efficient and effective ways of getting things done in the evolving global knowledge society and economy, and in responding to the challenges and opportunities of globalization. What is needed is a clear road map and overarching strategy for e-Governance, a strategy that can address and overcome the obstacles of infrastructural constraints, quality of human capital, financial inadequacy, potential for cyber crime and societal handicaps. A working coalition of all groups in the country, the State and the public sector, the private sector, foreign collaborators, non-governmental organizations and active participation and involvement of civil society itself backed by a strong and supportive legal framework with the appropriate laws, can help realize the dream of electronica in governance. The possibilities are two. One, ICTs will emerge as a fleeting window of opportunity for us Indians to leapfrog into the 21st century world of science and technology or two, it could well be just another lost opportunity irreparably dividing our people into unjustifiable groups, the technologically rich and the information-poverty-ridden poor, a separator and a marginaliser of the populace, a bane for any nations forward progress towards change for the better. The choice is ours.

(Author is an Editor at Indlaw Communications Pvt. Ltd.)
[1] Atul Kuma, Cyber Crime- Crime without Punishment,
available at http://www.afentis.com/download/7hs_seminar_jan06/dl/UNPAN002368.pdf
2] Sharique M. Rizvi and Dr. Madhvendra Misra, Computer Forensics-New Vistas In Evidence Technology, available at http://mba.iiita.ac.in/augsept05/technova4.htm
[3] Pavan Duggal, Cybercrime, available at http://cyberlaws.net/cyberindia/cybercrime.html
[4] Anupa Sarah, Information Technology and Governance, available at http://www.loksatta.org/itgovernance.pdf
[5] Pavan Duggal, Handling Net Stalkings, available at http://economictimes.indiatimes.com/articleshow/41798017.cms
[6] Pavan Duggal, Cyber Theft and the Indian Telegraph Act, 1885,
available at http://cyberlaws.net/cyberindia/coloum13june.htm.


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