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LexTalk World Talk Show with Tushar Agarwal, Advocate, Supreme Court of India.





LexTalk World interviews Mr. Tushar Agarwal. Mr. Tushar Agarwal completed his LL.B. from the Amity Law School, Amity University, Noida in the year 2015, and enrolled with the Bar Council of Delhi. Mr. Agarwal also successfully completed a Diploma Course in “Criminal Justice” from Harvard University, United States.

His practice primarily focuses on Criminal Law, Constitutional Law and Commercial Arbitration.


Mr. Agarwal was one of the assisting counsels representing Dr. Shashi tharoor in a famous Sunanda Pushkar Death Case. He has also appeared in few pro bono cases with Senior Counsels representing Association of Victims of Uphaar Tragedy, Association of Victims of Meerut Fire Tragedy etc. Mr. Agarwal is currently handling few important matters relating to corruption, corporate frauds, money laundering & GST tax evasion being investigated by Central Bureau of Investigation (CBI), Serious Fraud Investigation Office (SFIO), Enforcement Directorate (ED) & Director General GST Intelligence (DGGI) respectively. His Chamber is currently handling some highlighted matters like Bhushan Steel Financial Fraud Case, UPPCL PF Scam, DHFL Scam, Noida Ponzi Scheme Scam etc.


Interview:


Host: Tell us about a complex legal issue you worked on. Describe the complexity and tell us how you approached it.


Tushar: Although every case legal case has some complexity, but I would like to mention one case of Protection of Women from Domestic Violence Act 2005 (DV Act). My Chamber was hired by the husband who was an Australian Citizen being prosecuted by his wife in India despite all allegations of domestic violence and shared household in Australia. My Chamber was being hired at the stage when already an interim maintenance order was passed and due to non-compliance of that order by my client, the Complainant had already filed a Contempt Petition before Hon’ble High Court wherein a Show Cause Notice had already been issued to my client.

Now the challenge was to save my client from contempt and also legally justify the non-compliance of order by him. Usually, it is very difficult to convince the judges about the non-compliance of an interim maintenance order by the husband because unfortunately Indian Courts work on a presumption that husband is duty bound to maintain his wife irrespective of his personal and financial difficulties and the falsity of the allegations levelled by his wife. So in order to save my client, my Chamber had to adopt some out of the box strategy.


Finally after thorough legal research, in order to save my client from contempt, I filed an objection that in view of the pendency of execution proceedings filed by the wife for the said interim maintenance order, she cannot invoke the contempt jurisdiction simultaneously. The Hon’ble high Court appreciated my objection and deferred the contempt till the disposal of execution proceedings. Further I advised my client to file an appeal u/s 29 of DV Act 2005 challenging the interim maintenance order on the ground that no jurisdiction lies in India as shared household and alleged domestic violence incidents took place in Australia.


Further Section 28 of DV Act mandates that before passing any order of interim maintenance u/s 23(1) of DV Act, it is necessary to allow both the parties to lead evidence in terms of Section 126 Cr.P.C. Fortunately, the court issued the notice on the appeal and remanded back the matter to trial court.


So in this manner my Chamber not only saved the client from the contempt but also got him another chance to lead evidence by getting the interim maintenance order remanded back to Ld. Magistrate.


Host: The pandemic saw some courts begin moving towards more remote proceedings and availability. Is this sustainable, and a possible way to increase access to justice, in your opinion?


Tushar: The pandemic has made the legal fraternity in India realized the importance of technology. When the courts were shut due to pandemic, it was virtual hearing which made the court proceedings and litigation possible through video conferencing. Now Court hearing through video conferencing has become an integral part of the litigation. In metropolitan cities like Delhi, Mumbai etc., the courts have permitted Hybrid model of hearing wherein on the request of the counsel, the hearing through VC can be permitted.


However, VC cannot completely substitute the physical hearing. If we still see the condition of courts in tier 2 and tier 3 cities, they don’t have adequate infrastructure to hold virtual hearings. So hearing through VC has definitely increased the access to justice but it cannot become the only mode of court hearings in view of the diverse conditions disparities prevailing across India. But for some kind of cases like Arbitration, Matrimonial matters, 138 NI Act matters (Cheque Bounce Cases) etc., the court proceedings through VC has made the process much faster and less time consuming which is a positive development.


Host: In the era of legal technology, what are the most commonly used tools for you?


Tushar: Technology has become an inevitable part of legal system as well. Now without investing in technology, it is very difficult to run a Chamber. According to me, the most commonly used technological tools are (i) Video Conferencing Applications like Cisco Webex, Zoom, Microsoft Teams etc., (ii) Document & PDF Editors for the purpose of e-fling; (iii) Legal Research Portals like SCC Online, Manupatra etc. , (iv) Online Case Management Applications like E-court Services, ProVakil etc.


Host: What is your major area of practice? Would you like to share a few important and landmark cases being handled by you and your Chamber?


Tushar: My major practice area is CRIMINAL LAW. My Chamber is currently handling few important matters relating to corruption, corporate frauds, money laundering & GST tax evasion being investigated by Central Bureau of Investigation (CBI), Serious Fraud Investigation Office (SFIO), Enforcement Directorate (ED) & Director General GST Intelligence (DGGI) respectively. Sunanda Pushakar Death Case, DHFL-UPPCL Scam, Noida Ponzi Scheme Scam, Bhushan Steel Corporate Fraud Case etc. are few landmark cases being handled by me and my chamber.

Host: Since your major practice area is criminal law and that to Economic offences, what do you think about the latest Judgment delivered by Supreme Court regarding provisions of the Money Laundering Act?


Tushar: The recent 3 Judge bench judgment delivered by Supreme Court regarding provisions of the Prevention of Money Laundering Act, is a landmark judgment which will govern the money laundering cases being investigated by Enforcement Directorate. The judgment has discussed and analysed in detail various provisions of PMLA. However if I do the critical analysis of the judgment, I found that some findings were not in consonance with the spirit of Constitution of India. For example- The judgment said that ECIR is an internal document of ED and cannot be provided to the proposed accused. According to me, not providing ECIR to an accused will deprive him of putting his defence in an effective manner which is against the basic principal of criminal jurisprudence. The accused will be oblivious of the material facts of the case against him and he will be compelled to fight the case on the basis of half-baked and unverified information.


Further the said judgment upheld the draconian twin conditions for grant of bail provided u/s 45 of PMLA which requires an accused to establish at the stage of bail itself that he is not prima facie guilty of the alleged offences. According to me, these twin conditions mandates the conduct of a mini trial at the stage of bail which is again violative of the rights of the accused.


Fortunately, Hon’ble Supreme Court of India has agreed to review the said judgment on certain aspects. I am hopeful that the constitution of India and the law of the land will prevail.


Host: In view of increasing pendency of cases and late delivery of justice, how do you think that the belief of a victim of crime can further be strengthened in criminal justice system of India?


Tushar: Pendency and backlog of cases is an alarming situation especially after the pandemic and it requires an urgent redressal. However this pendency issue will be resolved much faster if all the stakeholders of the criminal justice system performs its duty with utmost sincerity.


For example: State Police has to have a dedicated force for investigation purpose which is not indulged into day to day law and order problem. In 2006, Hon’ble Supreme Court of India suggested a police reform whereby there has to be two separate wings of State police for handling law & Order and Investigation. However the same has not been implemented in an effective manner. Therefore on many occasions, the investigating officer remains absent during the hearing of the case on the ground of being busy in the law & Order problem. Secondly the Complainant/victim also has to be pro-active in providing effective assistance to public prosecutor so that the facts of the case can be explained to the judge in the most lucid manner possible. Thirdly the public prosecutor should provide effective assistance to the court about the facts and law points involved in the case. Fourthly, the counsel of accused should not resort to undue delay tactics for frustrating the purpose of the court proceedings. The counsel of accused should present the case in the fair manner and assist the court as a responsible law officer. Lastly it is the Ld. Judge who should ensure that the court proceedings are being conducted as per the due process of law.