Policy on witness protection to be framed in 3 months

In the light of the observations made by the Law Commission of India on providing protection to witnesses, the division bench headed by Justice Abhay Oka of Bombay High Court directed Maharashtra government to frame a fresh policy on providing protection to witnesses within three months. Court also expects that, the new policy should have a provision for wider protection measures including protection to family members of witnesses.

The bench also directed the Government to ensure the protection to witnesses even when investigation is underway if the witness applies to the investigating officer in writing or orally until the new policy is formulated.

Court while hearing the Public Interest Litigation, observed the term witness should include not only those who are going to depose in the court but anybody who possesses information and documents related to a crime.

As per the recommendations of the Law Commission, witness protection measures must be taken up right from the stage of investigation to ensure that witnesses feel secure and come to the court to record evidence, Bench observed. The bench also suggested that there should be a provision of continuance of protection even after the trial or appeal proceedings are over; the state should also consider creating a separate dedicated fund for these protection measures.

The Bench observed that, “while framing the policy under the GR dated April 11, 2014, the state government completely glossed over 198th Report of the Law Commission on the witness identity protection and witness protection programmes“. It was also noted that, Courts have come across cases where due to threat perception or after considering the antecedents of the accused and the gravity of the offence, witnesses fail to co-operate with investigating officers. Hence, court opined that, there should be a provision to give protection to witnesses’ right from the probe stage.

Bombay HC Rejects Divorce Plea by Parsi Man under HMA

The Bombay High Court has rejected the plea of a Parsi man to declare his 15-year-old marriage to a Hindu as null and void as their wedlock was arranged in accordance with Hindu rituals though they professed different religions.

A division bench recently dismissed an appeal filed by Viraf Phiroz Bharucha, a city resident, against a family court order rejecting his plea to grant divorce under the Hindu Marriage Act, saying that there was no merit in the case and that the plea was barred by law.

“The appellant has admitted that he got married to the respondent in 1999. The petition was filed before the Family Court in 2011. There was a delay of 12 years (now 15 years) and a baby boy was born to the couple in 2001. No reason is pointed out to show what compelled the appellant to suddenly realise that he belonged to a different religion and hence the marriage should be declared a nullity,” the judges said.

“This shows that the appellant is taking advantage of his own wrong,” the bench remarked.
Upholding the impugned family court order, Justices A R Joshi and Vijaya Tahilramani held that the appellant had taken too long to realise that his marriage to the respondent be declared null and void as they belonged to different religions.

The bench said the appellant had come up with a very strange case. According to him, he is a ‘Parsi’ by birth and continues to profess his faith in the same religion. However, petition was filed by him before the Family Court under the Hindu Marriage Act.

The Bench held that the provisions of Hindu Marriage Act can be availed and are applicable when both spouses are Hindus and it does not apply to any person who is a Parsi, Jew, Christian or Muslim. “The appellant is a Parsi, so he cannot avail of the provisions of this Act,” the Judges ruled.
“It is also necessary under the Act that at the time of filing of petition, both the spouses are Hindu by religion. If one of the party to such marriage is not a Hindu, the provisions of Hindu Marriage Act cannot be invoked to seek remedy,” the bench held.

No infringement in using similar prefixes by registered owners

Shatrunjay Bose, Student of law UPES, Dehradun

The Bombay High Court stated that if two parties have registrated their trademarks using identical prefix, those parties can use the same for all its trading and miscellaneous purposes and the use is not limited for use by only one of the party While relying on the Trademarks Act, the court said use of such registered trademarks by another registered owner cannot be treated as “infringement”.

The court had heard a plea by Pritikiran Katole who appealed against the district court’s order that had forbidden him from using the trademark of ‘Godwa’ which was attached with his trade and commercial enterprise. The lower court had observed that it was “breach of registered trademark” which was used by the applicant Harsha Katole.

In past the megabrand Apple has been dealt a severe blow having been told that it no longer has a monopoly on the letter “i” as part of the name for its products. A trademarks tribunal has overruled Apple’s bid to stop a small company from trademarking the name DOPi for use on its laptop bags and cases for Apple products. Apple contended that the DOPi name – which is iPod spelt backwards – was too similar to its own popular portable music player, which has sold in excess of 100 million units worldwide. But actually DOPi was an acronym which stood for Digital Options and Personalized Items. Therefore using of the same prefixes cannot lead to trademark infringement.

The use of the logo of Lexus automobiles was determined not to be confusing consumers of the Lexis database services.

In the case of Micronix India vs Mr. J.R. Kapoor the use of same prefixes was challenged were the Supreme Court observed that micro-chip technology being the basis of many of the electronic products, the word “micro” has much relevance in describing the products and therefore no one can claim monopoly over the use of the said word. Anyone producing any product with the use of micro chip technology would be justified in using the said word as a prefix to his trade name and thus who are familiar with the use of electronic goods know fully well and are not likely to be misguided or confused merely by the prefix `micro’ in the trade name. Thus, in the nutshell, the Supreme Court has held that once it is found that the word `micro’ is a common or general name descriptive of the products.

Justice Anoop V Mohta took the Trademarks Act’s provision in this matter into consideration and stated that “The main objection with regard to the word ‘Godwa’ although both the parties got registration under the provisions of the Trademarks Act, 1999, just cannot be the issue to pass such injunction order against the registered trademark owner. Such two persons cannot prevent each other from using the same registered trademark. The section itself contemplates that such registered trademark need to be treated as in their individual capacity `the sole registered proprietor’.”

The section 9 of the Trade Marks Act, 1999 says that a trade shall not be registered in proviso that before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark. In this case It was also observed that Harsha has been using the title since 2008 and Pritikiran since 2006 and they were both aware of each other’s use in each of their respective transactions.

The counsel on behalf of Pritikiran’s gave an undertaking to the court that his client in future, will not use the word ‘Godwa’ in the pattern and the blueprint style, in the way the other party has been using along with the emblem used by Harsha.


Teachers can’t be compelled to work for census, says High Court

Ipsita Mishra

The judges observed that the work of sixth economic census has no relation with the education. The petition was filed by a teacher who was employed in a school in Bhiwandi. He challenged the show cause notice that was issued to him by the Joint Census Commissioner. The corporation asked St Mary’s School, Vashi, to make 20 teachers available for census duty. The school refused. Reasoning that they were busy with educational duties, the school’s principal told the corporation that only five teachers could be spared. In reply, the civic body warned of ‘penal consequences’ if the school did not comply. St Mary’s stuck to its ground.

The Bombay high court ordered the state cannot force the teachers from private unaided schools into census duty. The government had asked for postponement of exams without consulting the school management. The government uses the many unemployed people as enumerators. The petition stated that there is discrimination against employees of unaided private schools. The state could not summon the staff of unaided schools for government duties since it has no authority over them.

Section 27 of Right of Children to Free and Compulsory Education Act states that is ‘no teachers shall be deployed for non educational purposes other than decennial population census, disaster relief duties or duties relating to elections to local authority or State Legislatures or Parliament as the case may be.’ The government resolution dated 25 September shows that sixth economic census has nothing to do with the Census under the Census Act, 1948.