Technology & Law

The law follows the technology...



First posted 19.01.2021 here.

The factual background:  

A case was filed against Person A, a male, under Section 12 of the PWDV Act, by person B, a female. In this petition, a magistrate determined that the issue whether there was a marriage / marriage like relationship between the parties requires trial. The order was overturned by a sessions judge in appeal on grounds that neither there was a marriage between the parties, nor there was a marriage like relationship between them. A year later, B files a petition under Section 498A of the IPC against A and charges are framed against him.
In this post, we look at issues about issue estoppel and double jeopardy. At first blush, there seems to be no case of double jeopardy here as the requirements of the two provisions are entirely different, and one is quasi-civil (but not completely civil) and other is purely criminal. However, as this post argues, a closer look would suggest things are not so straightforward. 

Nature of the PWDV Act
The Bombay High Court, in Nandkishor Pralhad Vyawahare v. Mangala [2018 (2) BomCR (Cri) 626] in a criminal reference answered the question, “Whether or not the proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings?” in the negative and concluded: 

“…[I]t appeared from provisions of Act that what they essentially create was plethora of civil rights breach of which results in basically providing civil remedies which were alien to criminal law. Therefore court was of considered view that proceedings under Act were predominantly of civil nature and it was only when there was breach of protection order as was contemplated under section  31 of Act and failure or refusal to discharge duty without any sufficient cause by protection officer as contemplated under section 33 of Act proceedings assume character of criminality.” 
Now, it is one thing to state that proceedings under the PWDV Act are quasi-civil, but this statute provides for such "quasi-civil" matters to be tried first by a metropolitan magistrate followed by an appeal before a sessions judge. This is the usual procedure for a criminal trial not a quasi-civil one. The problems are compounded as a magistrate or a sessions judge is inclined to look at evidence for all of the cases under the beyond reasonable doubt standard (though not bound to do so). It is difficult to accept that a judge simply changes glasses to look at evidence from a balance of probabilities just for the PWDV case on the roster. Thus, while PWDV Act matters are "quasi-civil" in theory, they are an entirely different thing in practice.

Comparing PWDV Act and 498-A IPC
With this background, it will be helpful to compare the two provisions:

Section 498A, IPC |  498A. 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. …

Section 2(a) PWDV Act | “Aggrieved Person" as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. 
Section 498A IPC is specifically applicable to a husband and the victim must either be the wife or one in a marriage like relationship.  Section 2(a) of the PWDV Act defines an Aggrieved Person as being a woman who is in a domestic relationship with the Respondent (husband). Critically, in both situations there needs to be a determination of whether the parties are (a) married, i.e. husband and wife or (b) in a marriage like relationship – i.e. lived together as husband and wife. 

Considering Estoppel in the Purely Criminal Case

A perusal of Section 498A IPC shows that it is against “A Husband or relative of a woman subjecting her to cruelty”, and thus there is no question of framing charge where this relationship does not exist [See Mohit Gupta & Ors. v. State Govt. of NCT of Delhi & Anr., 135 (2006) DLT 390; Capt. Rajinder Tiwari v. The State (NCT of Delhi), I (2007) DLT (CRL.) 26]. In the factual background offered above, the ingredients to determine both the alleged offences under both statutes are the same, viz. to determine whether the parties are married or a marriage like relationship. The sessions court judgement specifically held “neither there was a marriage nor a marriage like relationship”. This determination is a finding of fact.  Could it, or should it, have had a bearing on the 498-A case?

Section 11 of the Code of Civil Procedure 1908, provides, that “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” Section 300 of the Cr.P.C. provides that “a Person once convicted or acquitted not to be tried for same offence”, and Article 20 (2) of the Constitution of India also bars prosecution and punishment after an earlier punishment for same offence. The foundation of this rule is to prevent a multiplicity of findings on identical issues, besides the problems of exposing a person to criminal charges and the potential deprivation of liberty that appear in a criminal context [See, Sangeeta Mahendrabhai Patel v. State of Gujarat and Anr., AIR 2012 SC 2844]. The strict reading of Article 20(2) offered by the Supreme Court [See, e.g., Maqbool Hussain v. State of Bombay AIR 1953 SC 325] means that the two sets of proceedings must be wholly identical with same ingredients constituting the offence in both instances. While on the face of it, this might appear inapplicable in a PWDV Act and 498A context, but would not launching a 498A IPC proceeding where the PWDV court has found non-existence of marital relationship amount to the same? 

Notwithstanding this issue, there is another way to approach the issue and treat findings PWDV Act case as having a bearing on the 498A proceeding. This is by way of the idea of "issue estoppel", which as the name suggests, requires honouring a finding of fact that is arrived at by a competent court in subsequent proceedings. The Supreme Court in Manipur Administration v. Thokchom Bira Singh [AIR 1965 SC 87] confirmed the narrow scope of application of this rule, which does not prohibit subsequent proceedings as under Double Jeopardy but only requires that the earlier findings of fact be honoured. In the given fact pattern, issue estoppel would arise in the 498A trial, as the issue of fact had already been tried by a competent court on an earlier occasion and a finding was recorded in favour of A. 

Hence, charges could not be framed against person A in the 498A matter given that the PWDV case has already been decided in his favour.

[Postscript: Given that the Bombay High Court has held that a matter under PWDV Act is predominantly a civil matter; civil judges, not magistrates or session judges, should be hearing these cases. Otherwise, a real likelihood of parties suffering miscarriages of justice will persist as it is unfair to expect criminal courts to change their perspectives for appreciating these matters.]


Some time back, I had posted that Philips had sued Vivo and others, on the blog here.  The Delhi High Court in two separate orders has issued orders against Vivo and Xiaomi to secure Philips interest during trial (see attached orders below).

This post focusses on the value on the basis of which Philips interest is secured. 

The operative part from the judgments first:

Philips v. Vivo

2. Counsel for the parties are agreed that in order to hasten the trial in the suit and final adjudication, the following directions can be issued: 

 (i) The defendant nos. 1 and 2 will not create any encumbrance or third party rights in the immovable property and the superstructure described as follows: “IT Park – Plot No. 8, Sector 24, Yamuna Expressway Area, Uttar Pradesh” 

(ii) The defendant nos. 1 and 2 will file an affidavit, to that effect, and, in particular, shall indicate that they have the title to the aforementioned property and that no encumbrance or third-party rights will be created during the adjudication of the instant case. The affidavit will be filed within 7 days from today; a copy of which will be furnished to the counsel for the plaintiff.

Philips v. Xiaomi
1. ....iv..
 In the alternative, pass an appropriate pro-tem order/interim arrangement during the pendency of the interim injunction application safeguarding the Plaintiff’s rights and interest and secure recovery of amounts for past infringing activities of the Defendant; v. Any further orders that this Hon’ble Court may deem fit in interest of justice and equity be passed in favor of Plaintiff and against the Defendant.” 
2. ... I take on record the submission made by [counsel] that till the next date of hearing the defendants shall maintain in their bank accounts operated in India an amount of Rs.1000 crores. The said statement is taken on record .It is made clear that the defendants are bound by the statement given by their counsel.

It is very interesting to see the Xiaomi order. 

The interim arrangement so agreed to between parties is, according to my analysis,  is directly related to Philips royalty demand.  The prayer in para 1.iv in Philips v. Xiaomi makes it clear that Philips is seeking to secure it current and past infringement of its patents.   Xiaomi started off in India in 2013 and so royalty is determined from then.  Sales during 2013 was much less (say about ~15% of current sales), and to make it as round figure, I take sales per year from 2013 - 2016 as ₹ 6000 crores.  Xiaomi's sales took off in 2016 and should be around ₹ 25000 Crores per year today.  So I take approximate average sales  per year as ~₹ 16000 Crores per year from 2016 till 2020.  As such the total average sales during this period is ₹ 80000 Crores, and total sales from Xiaomi is approximately ₹ 98000 Crores.

Once this figure is seen and compared with ₹1000 Crores (the amount to be retained by Xiaomi in its bank account), Philips is asking for a royalty of approximately 1% on net sales: 1% of 98000 Crores is 980 Crores. 

Of course, I may be off by some amount, but I am sure that the range that Philips has demanded is around this much only.   Same is the case with Vivo (they started in 2016-17: so they have to secure Philips for a lesser amount). 

Hence both parties are securing Philips for the same amount / range determined on their net sales. 

This is another reason why I do not like confidentiality clubs in SEP matters.  This information that is being hidden is for use by all potential cell phone providers / manufacturers.  What is information that is being hidden by the manufacturer? Their sales are public information.  So all this hush-hush benefits the patent owner only.

Philips_v__Vivo___383___Order_dt__17_11_2020.pdf 533 KB
Philips_v__Xiaomi___Order_dt__27_11_2020.pdf 140 KB


This is in continuation of my previous post that the DHC has become a go to venue for SEP litigation.

The latest is that Philips has sued VIVO (18.09.2020) and others for infringing its 3G / 4G patents, some of which have already expired.   
The patents in issue are:

(i) IN 275419 (ii) IN 271469 (iii) IN 228133 (iv) IN 221703 (v) IN 211041

Out of these patents,  IN 221703 and IN 211041 have expired.

More precisely, the patents relate to Universal Mobile Telecommunication System / High Speed Packet Access / Evolved High Speed Packet Access and Long Term Evolution.

In the first order of 18.09.2020, I see that Philips (allegedly) had demanded $1  from Vivo.  Whether or not that is FRAND, only will be seen in the course of litigation.  Philips makes the argument that for two years they have been in discussions with Vivo but they have not taken a license.
18092020.pdf 439 KB

The only comment that I would make at this stage is that this matter too is going the same way the other SEP matters have been going.  Same confidentiality club arrangements etc. 

The matter is now listed for tomorrow 12.11.2020, subject to availability of court.

20102020.pdf 490 KB