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Indian Laws - Case Laws
Showing 21 to 40 of 67 Records
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2021 (4) TMI 1318 - SUPREME COURT
Seeking grant of Bail - allegation against the persons named in the FIR is that they were operatives/functionaries of a terrorist gang TPC and they were extorting levy from coal traders, transporters and contractors - Sections 414, 384, 386, 387, 120B Indian Penal Code, Sections 25(1B)(a)/ 26/35 of the Arms Act and Section 17(1)(2) of the CLA Act - HELD THAT:- While considering the grant of bail Under Section 43D(5), it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the Accused or not.
A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy/extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other Accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the area of operation of the organization. It is alleged in the second supplementary charge-sheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization.
It is not satisfying that a prima facie case has been made out against the Appellant relating to the offences alleged against him - these findings are restricted only for the purpose of grant of bail to the Appellant and the trial court shall not be influenced by these observations during trial.
Appeal allowed.
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2021 (4) TMI 1307 - MADRAS HIGH COURT
Suit for recovery of money - jurisdiction to set aside the exparte decree or not - HELD THAT:- The petitioners are the defendants in the suit filed by the respondent for recovery of money. The first petitioner is a private limited company and the second and third defendants are its Directors. They availed term loan to the tune of ₹ 10 lakhs from the respondent on 25.10.1995 to purchase machineries. Accordingly, the deed of hypothecation in respect of machineries and vehicles were executed on 25.10.1995. They also executed letter of undertaking on the same day and thereafter they defaulted payment of loan. Therefore, the respondent filed suit for recovery of money to the tune of ₹ 9,93,812/- - the respondent filed suit and suit summons were sent to the address given by the petitioners. Those summons were returned unclaimed and as such substituted service was ordered. Accordingly, the respondent effected paper publication and the petitioners were set exparte and exparte decree was passed on 12.02.2004.
Now it cannot be said that the fixed deposit made by the petitioners not returned to the petitioners by the respondent. That apart, the petitioners filed petition to set aside the exparte order without any condone delay petition. Though it was numbered and ordered on merits, the petitioners failed to mention sufficient cause for the delay in petition to set aside the exparte decree. Exparte decree was passed on 12.02.2004 - It is unbelievable statement and as rightly pointed by the learned counsel for the respondent, it is nothing but cock and bull story and only to maintain the petition to set aside the exparte decree without condone delay of petition. Therefore, the petitioners failed to state any sufficient cause to consider the petition to set aside the exparte decree.
Admittedly, the machineries are also sold out and no amount was paid towards loan in favour of the respondent herein. While admitting the present civil revision petition, this Court imposed condition and the said condition was only complied with by the petitioners by depositing 50% of the decree amount. Though the learned counsel for the petitioners submitted in respect of jurisdiction of the Debts Recovery Tribunal, on perusal of the order passed by the court below, it does not refer any jurisdiction point. The petition to set aside the exparte decree was dismissed only on merits. Therefore, there is nothing to go into the ground of jurisdiction of Debts Recovery Tribunal. Hence, this Court finds no irregularity of infirmity in the order passed by the court below.
This civil revision petition is dismissed.
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2021 (4) TMI 1299 - SUPREME COURT
Quashing of Signature Not Verified Digitally signed by Sanjay Kumar - framing of charge against the respondent-accused for the offence under Section 7 of the Prevention of Corruption Act - revisional jurisdiction of High Court - HELD THAT:- In the case of P. VIJAYAN VERSUS STATE OF KERALA & ANR. [2010 (1) TMI 1097 - SUPREME COURT], this Court had an occasion to consider Section 227 of the Cr.P.C. What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 Cr.P.C., if not, he will discharge the accused.
The High Court has exceeded in its jurisdiction in exercise of the revisional jurisdiction and has acted beyond the scope of Section 227/239 Cr.P.C. While discharging the accused, the High Court has gone into the merits of the case and has considered whether on the basis of the material on record, the accused is likely to be convicted or not. For the aforesaid, the High Court has considered in detail the transcript of the conversation between the complainant and the accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all. As rightly observed and held by the learned Special Judge at the stage of framing of the charge, it has to be seen whether or not a prima facie case is made out and the defence of the accused is not to be considered.
After considering the material on record including the transcript of the conversation between the complainant and the accused, the learned Special Judge having found that there is a prima facie case of the alleged offence under Section 7 of the PC Act, framed the charge against the accused for the said offence. The High Court materially erred in negating the exercise of considering the transcript in detail and in considering whether on the basis of the material on record the accused is likely to be convicted for the offence under Section 7 of the PC Act or not - the High Court was required to consider whether a prima facie case has been made out or not and whether the accused is required to be further tried or not. At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.
The impugned judgment and order passed by the High Court discharging the accused under Section 7 of the PC Act is unsustainable in law - Appeal allowed.
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2021 (4) TMI 1295 - DELHI HIGH COURT
Seeking grant of Regular Bail - petitioners found to have possession 110 bottles of Phensydle containing Codeine Phosphate - offences under Section 21(C) & 23(C) of the NDPS Act - HELD THAT:- Issue notice.
List on 28.04.2021.
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2021 (4) TMI 1287 - MADRAS HIGH COURT
Dishonor of cheque - insufficiency of funds - issuance of cheque, admitted or not - rebuttal of statutory presumption - Sections 118 and 139 of the Negotiable Instruments Act - HELD THAT:- It is very much clear that the accused had admitted the issuance of Ex.P.3 cheque, but according to him, the cheque was issued to the complainant's son-in-law siddque. Whatever it is, as rightly observed by the trial Court as well as the Appellate Court, the accused has admitted that the cheque in dispute Ex.P.3 was belonging to him and that he had not disputed the signatures found in Ex.P.3 cheque. Consequently, both the Courts below have rightly drawn the presumption under Section 139 and 118 of Negotiable Instruments Act in favour of the complainant.
It is settled law that the accused in order to rebut the presumption drawn in favour of the complainant under Sections 118 and 139 of Negotiable Instruments Act, is not required to adduce any evidence and he can prove his probable defence through the evidence adduced by the complainant and that the standard of proof required is of preponderance of probability - In the present case, as already pointed out, the accused has disputed the alleged loan transaction existed between him and the defacto complainant, but admitted the issuance of the cheque to the complainant's son-in-law. As rightly contended by the complainant's side, the accused, at no point of time, disputed the signature found in Ex.P.3 cheque.
No doubt, the accused has taken another stand that the complainant was not having sufficient means or capacity to advance the loan, but the same was dealt with by the trial Court as well as the appellate Court. As already pointed out, the accused has taken a stand that Ex.P.3 cheque was issued only to the complainant's son-in-law Sidque and he has not produced any evidence to substantiate the same. Though P.W.1 and P.W.2 were subjected to cross examination, nothing was elicited by the defence in their favour - the defence has neither produced any materials nor shown any facts and circumstances to infer that the defence put forth by the accused is probable.
This Court has no hesitation to hold that the accused has not rebutted the statutory presumption under Section 139 of Negotiable Instruments Act. Hence, this Court decides that the finding of the trial Court as well as the Appellate Court, that the accused is guilty of the offence under Section 138 of Negotiable Instruments Act, cannot be found fault with and this Court is in entire agreement with the concurrent judgments of conviction passed by the Courts below - Criminal Revision Case is dismissed.
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2021 (4) TMI 1281 - DELHI HIGH COURT
Execution of the works and rendering of services - contract for Civil and Structural work for the Balance of Plant (BoP Works) - whether prima facie an arbitration agreement exists between Indiabulls and Shapoorji in respect of the BTG Contract for execution of BTG Works and BoP Contract for execution of the BoP Works? - HELD THAT:- In the present case, it is evident that Indiabulls had fully participated in the formation of the BTG Contract. It is material to note that the thermal power plant in question was being developed by Indiabulls as its undertaking. Undisputedly, Indiabulls is a beneficiary of the works being executed by Shapoorji. Whether a non-signatory is a direct beneficiary of the contract containing the arbitration clause is material in determining whether the said beneficiary can be compelled to arbitrate even though it is not a signatory to the Agreement. However, this is coupled with the condition that such benefit should be direct and not indirect - In the present case, Indiabulls (and not Elena) had invited offers for BTG Works. Shapoorji had submitted its bid (revised offer) directly to Indiabulls pursuant to the invitation issued by Indiabulls. The said bid was accepted and such acceptance constituted a binding contract. Concededly, on Shapoorji's bid (revised offer) being accepted, it was no longer open for Shapoorji to resile from its commitments. In this view, there is ample evidence to show that Indiabulls had directly participated in the negotiations and formation of the contract for execution of the BTG Works even though it was not a signatory to the BTG Contract that was executed subsequently.
There is also ample material on record to show that Indiabulls had a direct involvement in the BTG Contract. It is not disputed that in terms of Clause 6 of the LoA, Shapoorji was obliged to provide Bank Guarantees to Indiabulls. It is also not disputed that in terms of the LoA, Shapoorji had furnished Bank Guarantees against the advances received as well as a Performance Bank Guarantee and the same were in favour of Indiabulls and not Elena. Thus, Indiabulls had secured itself against performance of the BTG Contract by Shapoorji - It is also not disputed that Indiabulls had directly issued Letters of Credit to Shapoorji and made certain payments to Shapoorji, which were due under the BTG Contract. In the given facts, this Court finds it difficult to accept that Indiabulls can avoid its obligation to arbitrate even though it has been a direct beneficiary of the BTG contract and to some extent been directly involved with Shapoorji in negotiating and execution of the contract.
There is material on record to impute that Indiabulls is a party to the arbitration agreement. There is also merit in Mr. Mukhopadhyay's contention that since Shapoorji had made a revised offer to Indiabulls and it is not disputed that the same was accepted, it must follow that the resultant contract was also made with Indiabulls. Clearly, a third party cannot accept an offer to constitute binding contractual obligations and it is not disputed before this Court that the LoA did give rise to a contract that bound Shapoorji to the terms contained therein. The LoA was accepted by Shapoorji. Thus, it also agreed to the terms thereof which are stated above, which included a specific condition that it would enter into a formal contract agreement with Indiabulls - Estoppel principles have frequently been applied by Courts in the United States of America to hold that a party is bound by the arbitration clause associated with the substantive contractual agreement.
Whether the relationship between Indiabulls and Elena and their conduct, is sufficient to compel Indiabulls to be a party to the arbitration regarding the disputes raised by Shapoorji? - HELD THAT:- This Court is inclined to accept the contention that Elena is a Special Purpose Vehicle and it would be apposite to treat Elena as an extended division of Indiabulls as it is not involved in any other business other than executing the projects for Indiabulls. Although it is contended that Elena is an independent contractor and was awarded three separate contracts by Indiabulls, there is no material on record to indicate that Elena and Indiabulls function as independent and separate organisations. On the contrary, there is material to indicate that Elena is not organized and staffed separately and is independent of Indiabulls.
This Court is of the view that it would be apposite to compel Indiabulls to arbitrate as there is sufficient material to show that Elena is its alter ego. This is evident from the fact that Elena's name has been mentioned in parenthesis against the name of Indiabulls in the LoA. The shareholding pattern confirms that Indiabulls does exercise complete control as a shareholder over Elena. The fact that the officials of Indiabulls acted on behalf of Elena also indicate that Indiabulls exercises substantial and dominant direct control over the affairs of Elena.
Elena had appointed Justice C.K. Prasad as its nominee arbitrator. He would also be considered as the nominee Arbitrator of Indiabulls. He, along with the learned Arbitrator nominated by Shapoorji, shall nominate the third Arbitrator to constitute an Arbitral Tribunal within a further period of two weeks from date, failing which the parties are at liberty to approach this Court for appointment of the third Arbitrator.
Petition allowed.
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2021 (4) TMI 1278 - DELHI HIGH COURT
Seeking multifarious reliefs embracing several causes of action, including a challenge to the termination orders of the employees working in the Food and Beverages department of Delhi Golf Club - issuance of various directions to DGC, Government of India, Government of National Capital Territory of Delhi and other Authorities under different labour welfare legislations - HELD THAT:- The functions carried out by DGC cannot even remotely be termed as public functions. Providing recreation as a Club to its restricted members cannot be compared to the functions of the BCCI on any pedestal.
Since this Court has held that writ petitions are not maintainable as no writ would lie against a private body not performing public functions, it would be unnecessary to decide the other issues raised by the parties including the existence or otherwise of an alternate remedy. It is left open to the Petitioners to resort to appropriate remedies available to them in accordance with law for ventilating the grievances raised in the present petitions. It is made clear that this Court has not expressed any opinion on the merits of the issues raised.
Petitioners seek prosecution of the office bearers of DGC, alleging violation of the various provisions of the Industrial Disputes Act, 1947, Factories Act, 1948, Disaster Management Act, 2005 and Contract Labour (Regulation & Abolition) Act, 1970. The reliefs sought cannot be granted by this Court as it is the prerogative of the State Government to initiate prosecution, depending on the facts and circumstances of each case before it. A writ of mandamus cannot be issued for directing prosecution or institution of legal proceedings to any party and there is a complete mechanism available to the Petitioners under the relevant statutes for the said purpose.
Petition dismissed.
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2021 (4) TMI 1276 - SUPREME COURT
Seeking grant of Bail - homicidal deaths - Applicability of principles of parity - recovery of two country made guns, two indigenous counterfeit guns, four dhariyas and one wooden stick, from the scene of offence - it is alleged that Accused had produced fake documents for the purpose of obtaining bail - Section 439 of the Code of Criminal Procedure 1973 - HELD THAT:- The incident which took place on 9 May 2020 resulted in five homicidal deaths. The nature of the offence is a circumstance which has an important bearing on the grant of bail. The orders of the High Court are conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on whether bail should be granted.
We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In NEERU YADAV VERSUS STATE OF U.P. [2014 (12) TMI 1347 - SUPREME COURT], this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail.
Principle of parity - HELD THAT:- Parity while granting bail must focus upon role of the Accused. Merely observing that another Accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the Accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.
There has been a manifest failure of the High Court to advert to material circumstances, especially the narration of the incident as it appears in the cross FIR which was lodged on 13 May 2020. Above all, the High Court has completely ignored the gravity and seriousness of the offence which resulted in five homicidal deaths. This is clearly a case where the orders passed by the High Court suffered from a clear perversity.
Grant of bail Under Section 439 of the Code of Criminal Procedure is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail-as in the case of any other discretion which is vested in a court as a judicial institution-is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice - This Court in CHAMAN LAL VERSUS STATE OF U.P. AND ORS. [2004 (8) TMI 745 - SUPREME COURT] in a similar vein has held that an order of a High Court which does not contain reasons for prima facie concluding that a bail should be granted is liable to be set aside for non-application of mind.
The orders granting bail to the Respondent-Accused Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17) suffer from a clear perversity - Appeal allowed.
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2021 (4) TMI 1274 - BOMBAY HIGH COURT
Travel Restrictions - validity of detention at Mumbai Airport - principal contention raised on behalf of the petitioner is that when he is not arraigned as an accused in any FIR, much less FIR pertaining to offences registered against the owner of Kingfisher Airlines, there was no basis for Respondent Nos. 2 and 3 to impose travel restrictions on him - HELD THAT:- It is specifed that recourse to issuance of LOC is to be taken in cognizable offences under the IPC or other penal laws. It is also specifed therein that in cases where there is no cognizable offence under the IPC or other penal laws, LOC subject cannot be detained/arrested or prevented from leaving the country. The agency which has caused the issuance of LOC can only request that it be informed about arrival/departure of the subject in such cases. This is of signifcance in the present Writ Petition.
A perusal of the office memoranda would show that in the present case, since the petitioner is not arraigned as accused for cognizable offence and he was merely called for questioning only once by Respondent No. 2-CBI in connection with case of Kingfisher Airlines, travel restrictions could not have been imposed upon him. All that Respondent No. 2-CBI could insist upon, under clause (h) of the office memorandum dated 27.10.2010, was that it be informed about arrival/departure of the petitioner in connection with his trips abroad - It is not even the case of the respondents that if the petitioner is permitted to leave the country it would be detrimental to the sovereignty, security or integrity of India or bilateral relations with any country or to the strategic/economic interests of India. It is also not the case of the respondents that any amounts are to be recovered from the petitioner for which the Chairman of the SBI or any other public sector bank has made a request for issuance of LOC.
There can be no doubt that the petitioner needs to co-operate with Respondent No. 2-CBI in that regard. But, it cannot be said that Respondent No. 2 was entitled to impose travel restrictions to prevent the petitioner from travelling abroad.
The Petitioner shall be entitled to travel abroad for his personal and professional obligations, subject to the conditions imposed - petition allowed.
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2021 (4) TMI 1270 - SUPREME COURT
Deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes - manner in which documents referred to are presented and exhibited in the judgment - lack of uniform practices in regard to preparation of injury reports - deposition of witnesses - translation of statements - numbering and nomenclature of witnesses - labeling of material objects - HELD THAT:- The High Courts unanimously welcomed the suggestion of separating the prosecution from the investigation, (i.e. Rule 18 in the Draft Rules, 2020) which provides that a separate team of lawyers, distinct from Public Prosecutors must advise the police during the investigation. However, as pointed out by many High Courts, this is a step that should be actively pursued by the State Governments. Similarly, the High Courts welcomed the uniform manner in which body sketches, spot panchnamas etc. are to be brought on record (Draft Rules 1-4). However, they state that the onus for the implementation of these Rules is on the investigation agencies.
Apart from Section 148, there are other provisions of the Evidence Act (Sections 149-154) which define the ground rules for cross examination. During questioning, no doubt, the counsel for the party seeking cross examination has considerable leeway; cross examination is not confined to matters in issue, but extends to all relevant facts. However, if the court is not empowered to rule, during the proceeding, whether a line of questioning is relevant, the danger lies in irrelevant, vague and speculative answers entering the record. Further, based on the answers to what (subsequently turn out to be irrelevant, vague or otherwise impermissible questions) more questions might be asked and answered. If this process were to be repeated in case of most witnesses, the record would be cluttered with a jumble of irrelevant details, which at best can be distracting, and at worst, prejudicial to the accused.
This court is of the opinion that the courts in all criminal trials should, at the beginning of the trial, i.e. after summoning of the accused, and framing of charges, hold a preliminary case management hearing. This hearing may take place immediately after the framing of the charge - the concerned witnesses may be bound down to appear for 2-3 consecutive dates, in case their depositions are not concluded. Also, in case any witness does not appear, or cannot be examined, the court shall indicate a fixed date for such purpose. The recording of deposition of witnesses shall then be taken up, after the scheduling exercise is complete. This court has appropriately carried out necessary amendments to the Draft Rules.
The court hereby places its appreciation and gratitude to the contributions and effort of the three amici Shri Siddharth Luthra, Shri R. Basanth (Senior Advocates) and Shri K. Parameshwar, Advocate - they gave valuable inputs and innumerable suggestions, considered all suggestions given by various stakeholders, reported to the court and made extremely useful submissions - the suo motu proceeding is disposed off.
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2021 (4) TMI 1258 - DELHI HIGH COURT
Direction for working of Hon’ble Benches of this Court - covid-19 situation - HELD THAT:- In view of the curfew imposed by the GNCTD, and the extremely limited functioning of Courts, the routine matters would be adjourned en-bloc to the dates to be notified. Consequently, the advocates and the litigants would not be in a position to appear in the said matters, including those where stay, bail, parole have been granted by this Court, or the Courts Subordinate to this Court on or before 19.03.2021. As a result, interim orders operating in favour of the parties would start expiring on and from 19.04.2021.
The registration of the present Petition are directed as suo motu Writ Petition. The same be listed before Hon’ble the Chief Justice for constitution of an appropriate bench and for passing appropriate orders therein.
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2021 (4) TMI 1248 - KERALA HIGH COURT
Seeking immediate release of detenues - subjective satisfaction of legal detention by detaining authority - whether there was any delay in either issuing the order of detention or executing it? - HELD THAT:- In the facts of the present case, it is not disputed that for the entire period from the date of the detention order, until and up to the date of execution of the detention order, the detenue was abroad. It is clear from the affidavits filed by the respondents that efforts were taken to execute the order of detention and that steps as contemplated under Section 7(1)(b) of the COFEPOSA Act were initiated. Under such circumstances, we fail to see how there was any unexplained delay in the execution of the detention order in the instant case - Further, it is trite that an absconding detenue cannot cite a delay in the execution of the order to contend that the detention order must be quashed on that ground.
Whether there was any delay in serving the grounds of detention, in the facts and circumstances of this case? - HELD THAT:- The detaining authority has, in paragraph 26 referred to the bail orders dated 16-2-2016 and 1-6-2016 for the purpose of establishing that the detenue had not stopped prejudicial activities even after the first incident at Bangalore and had continued with such activities. It is also noted that the bail conditions are likely to be relaxed and that they were not sufficient to prevent the detenu from committing prejudicial activities. Apart from contending that certain pages of the 'bail order' are not available in the documents served together with the grounds of detention, there is no pleading or contention regarding the issue. Even assuming that the case put forth by the detenue is correct, we are unable to find that the non-supply of the 4 pages of the bail order has in any manner affected the right of the detenue to make an effective representation. The detenue also did not make a request for the supply of any document. He also did not raise this issue before the advisory board. For these reasons we reject the contention of the detenue that he was not served with clear copies of all the relied upon documents amongst the documents supplied to him - the communication of grounds, in the facts of the present case, satisfies the requirements of Article 22(5) of the Constitution of India.
Whether Ext. P.12 & P.13 representations made by the petitioner, after the matter was considered by the Advisory Board, were expeditiously considered by the authorities concerned? - HELD THAT:- Both the representations have been disposed of with reasonable expedition and that the detention order is not vitiated in any manner on account of the alleged delay in disposal of the Ext. P.12 & P.13 representations.
Period of detention of the detenue - HELD THAT:- The detenue was detained on 12-07-2020 and Ext. P1 order of detention was served on him on 13-07-2020. In Ext. P11 order, the detention is seen confirmed for a period of one year from 22-07-2020. It is stated that this was on account of the fact that on account of the COVID-19 pandemic the detenue was undergoing quarantine for the period from 12/13-07-2020 to 22-07-2020 and therefore that the period of detention should be counted from 22-07-2020 - the detenue having been detained in terms of Ext. P1 order of detention, on 12-07-2020, the period of one year has to be counted with effect from 12-07-2020 and not from 22-07-2020 as stated in Ext. P11 order.
W.P.(Crl.) Nos. 279 & 280 of 2020
Smuggling - Gold - non-supply of certain relied upon documents - HELD THAT:- The law regarding supply of documents requires no re-iteration at our hands. Our summation of the law at the inception of this judgment shows that it is well settled that the detenue has the right to receive all the relied upon documents and also such other documents that may be necessary to enable him to make a proper and effective representation against the order of detention. That said, the question as to whether there was, in fact, a failure to supply any relied upon document is a matter to be determined on a case-to-case basis - Keeping in mind the fact that the law requires only the subjective satisfaction of the detaining authority, and keeping in mind the fact that the jurisdiction to detain under a law providing for preventive detention is 'a jurisdiction of suspicion' we have examined Ext. P4 in WP (Crl.) 279/2020 and Exhibit P3 in WP (Crl.) 280/2020 to determine whether the non-supply of documents requested for therein has prevented the detenues from making a proper representation, which is a right guaranteed under Art. 22(5) of the Constitution.
Substantial delay in the execution of the detention order - HELD THAT:- There is absolutely no delay in the disposal of the various representations detailed.
Petition disposed off.
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2021 (4) TMI 1244 - SUPREME COURT
When to grant interim order - correct stage of granting the Interim Order - when and where the High Court would be justified in passing an interim order either staying the further investigation in the FIR/complaint or interim order in the nature of "no coercive steps" and/or not to arrest the Accused either pending investigation by the police/investigating agency or during the pendency of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India pending before the High Court?
HELD THAT:- While dealing with the inherent powers of the High Court Under Section 561-A of the earlier Code (which is pari materia with Section 482 of the Code), it is observed and held that the inherent powers of the High Court Under Section 561 of the earlier Code cannot be exercised in regard to the matters specifically covered by the other provisions of the Code; the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice; ordinarily criminal proceedings instituted against an Accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage.
In the case of KURUKSHETRA UNIVERSITY AND ORS. VERSUS STATE OF HARYANA AND ORS. [1977 (3) TMI 172 - SUPREME COURT OF INDIA], this Court observed and held that inherent powers Under Section 482 Code of Criminal Procedure do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice; that statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases - In catena of decisions, this Court has reiterated the parameters for exercise of inherent powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India in the matter of quashing the FIR/complaint.
The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 deals with information in cognizable offence and Section 156 with investigation into such offence and under these Sections the police have the statutory right to investigate into the circumstances of any alleged cognizable offence - When the High Court would be justified in interfering with the investigation by the police, while exercising the inherent powers Under Section 482 Code of Criminal Procedure and/or Article 226 of the Constitution of India, few decisions of this Court are required to be noticed - In the case of STATE OF ORISSA & ORS. VERSUS UJJAL KUMAR BURDHAN [2012 (3) TMI 649 - SUPREME COURT], it is observed and held by this Court that unless case of gross abuse of power is made out against those in charge of investigation, the High Court should be loath to interfere at early/premature stage of investigation.
Whether the High Court would be justified in granting stay of further investigation pending the proceedings Under Section 482 Code of Criminal Procedure before it and in what circumstances the High Court would be justified? - HELD THAT:- There may be some cases where the initiation of criminal proceedings may be an abuse of process of law. In such cases, and only in exceptional cases and where it is found that non interference would result into miscarriage of justice, the High Court, in exercise of its inherent powers Under Section 482 Code of Criminal Procedure and/or Article 226 of the Constitution of India, may quash the FIR/complaint/criminal proceedings and even may stay the further investigation. However, the High Court should be slow in interfering the criminal proceedings at the initial stage, i.e., quashing petition filed immediately after lodging the FIR/complaint and no sufficient time is given to the police to investigate into the allegations of the FIR/complaint, which is the statutory right/duty of the police under the provisions of the Code of Criminal Procedure - in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.
Therefore, even while passing such an interim order, in exceptional cases with caution and circumspection, the High Court has to give brief reasons why it is necessary to pass such an interim order, more particularly when the High Court is exercising the extraordinary and inherent powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India. Therefore, in the facts and circumstances of the case, the High Court has committed a grave error of law and also of facts in passing such an interim order of "no coercive steps to be adopted" and the same deserves to be quashed and set aside.
The final conclusions on the principal/core issue are as follows:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power Under Section 482 Code of Criminal Procedure is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged Accused and the court when it exercises the power Under Section 482 Code of Criminal Procedure, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the Accused should be relegated to apply for anticipatory bail Under Section 438 Code of Criminal Procedure before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed Under Section 173 Code of Criminal Procedure, while dismissing/disposing of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.
Appeal allowed.
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2021 (4) TMI 1243 - KERALA HIGH COURT
Criminal Misconduct - public servant, acting as quasi judicial authority under a statute - allegation against the petitioner is that he passed Annexure-VI order without verifying the back records and without ascertaining the factual position and therefore, he committed criminal misconduct - initiation of criminal proceedings against such quasi judicial adjudication - HELD THAT:- There can be no dispute with regard to the fact that the proceeding under Section 12 of the Act is a quasi judicial proceeding. In fact, it is specifically mentioned in this provision that, for the purpose of Section 199 of the Indian Penal Code, the proceedings taken under this provision shall be deemed to be judicial proceedings - An aggrieved party can file appeal as provided under Section 16(1) against an order passed under Section 12 of the Kerala Land Conservancy Act. Revision against such order is also provided under Section 16(2) of the Act, which states that the Collector may either suo motu or on application revise any decision made or order passed under the Act by an authorised officer.
If a public servant, acting as a quasi judicial authority under a statute passes an order and if such order is in favour of a person other than the Government, any pecuniary advantage obtained by such person by virtue of such order, cannot be the basis for prosecution of the public servant under the PC Act, unless there is an allegation that he was actuated by extraneous considerations or oblique motives in passing the order - to fall within the four corners of sub-clause (ii) of clause (d) of Sub-section (1) of Section 13 of the P.C. Act, the decision/conduct of the public servant must be dishonest amounting to corruption. Mens rea, the intention and/or knowledge of wrong doing, is an essential condition of the offence of criminal misconduct under Section 13(1)(d)(ii) of the P.C. Act. The presumption under Section 20 of the P.C. Act does not apply to the offence under Section 13(1)(d)(ii) of that Act.
The condition precedent to the commencement of investigation is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. The right of the police to conduct investigation is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably have reason so to suspect unless the F.I.R., prima facie, discloses the commission of offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation.
The Annexure-I F.I.R., as against the petitioner, is liable to be quashed by invoking the power of this Court under Section 482 of the Code - petition allowed.
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2021 (4) TMI 1236 - TRIPURA HIGH COURT
Dishonor of Cheque - insufficiency of funds - opportunity of hearing provided or not - Section 138 of NI Act - HELD THAT:- Petitioner filed the said petition dated 17/11/2015 in the trial court after the petitioner was examined under Section 313 Cr.P.C. and the case was listed for arguments. The trial court vide order dated 26/11/2015 disposed the petition holding that adequate opportunity was provided to the petitioner to rebut the case by adducing his own evidence and it would not be proper to turn back the clock without any justifiable ground. Section 243 Cr.P.C. provides that if the accused in a criminal trial who has entered upon his defence applies to the court for the purpose of examination or cross examination, or the production of any document or other thing, the magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or defeating the ends of justice. The court is required to record the reasons in writing while rejecting such application.
Admittedly the petitioners were jointly carrying on partnership business of manufacturing and selling of bricks in the name of “MAA Brick Society” and they used to operate the accounts of their company in their joint names. It has been proved beyond doubt that the complainant supplied coal to them for which they had an existing liability to the complainant and in the discharge of such liability the petitioners jointly issued the impugned cheque to the complainant which was later dishonoured for insufficiency of fund. The courts below have returned the findings of guilt of the petitioners on proper appreciation of evidence and held the petitioners guilty and sentenced them appropriately.
Revision dismissed.
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2021 (4) TMI 1216 - DELHI HIGH COURT
Grant of regular bail - Smuggling - Heroine - Cocaine - Methaempthaine - Service of valid notice or not - HELD THAT:- Notice U/s 50 of the NDPS Act is a defective notice, it requires deep scrutiny of the statement of the witnesses and the documents and at the stage of bail, it would not be proper to minutely analyze the statement of the prosecution witnesses and the documents and in depth analysis of the case of the prosecution is not to be undertaken as it might prejudice the case of either of the parties. The question as to whether the petitioner and his co-accused were having common intention is also to be seen during the course of trial.
The allegations against the petitioner are that of dealing with the commercial quantity of the contraband and therefore, rigors of Section 37 NDPS Act are applicable. In the present case, there is nothing before this Court to believe that the petitioner/accused is not guilty or he would not commit the offence once granted bail. It is also pertinent to mention that the statements recorded U/s 67 of the NDPS Act are not exculpatory - no ground for bail is made out, the bail application is, therefore, dismissed.
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2021 (4) TMI 1113 - SUPREME COURT
Concealment of documents - false statements - in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court Under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court Under Section 482 Code of Criminal Procedure? - HELD THAT:- It is settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.
The issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances, (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and (ii) the fact that the arbitral proceedings have been initiated at the instance of the Appellants. Both the alleged circumstances noticed by the High Court, in our view, are unsustainable in law. The facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction - So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings. That apart, the High Court has not even looked into the charge-sheet filed against 2nd Respondent which was on record to reach at the conclusion that any criminal offence as stated is prima facie being made out and veracity of it indeed be examined in the course of criminal trial.
Appeal allowed.
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2021 (4) TMI 1106 - JAMMU & KASHMIR HIGH COURT
Dishonor of Cheque - joint complaint by two complainants - Section 138 read with Section 142 of NI Act, allows for such joint complaints or not - HELD THAT:- From the legal position enunciated by various High Courts in reference to Section 200 of Cr. P. C, a joint complaint by two or more person against an accused is clearly not maintainable - reliance may be placed in the case of Parijanashram Swamiji vs. Kailaje [1985 (11) TMI 242 - KARNATAKA HIGH COURT].
Whether what is held by various High Courts with reference to Section 200 of Cr. P. C is applicable to the complaints filed under Chapter XVII of the Act? - HELD THAT:- The reference to the complainant as a "person" in Section 138 of the Act, prima facie, indicates that Section 138 too envisages a complaint by a single person. Similarly, if we look at the provisions of Section 141 of the Act, which pertains to the offences by the companies, it also refers to a "person" committing an offence under Section 138 - Section 142, which lays down the procedure as to how the cognizance in a complaint filed under Section 138 of the Act is to be taken by the Court, also speaks of a complaint and not the complaints which would also indicate that it envisages only one complainant in a complaint and, therefore, rules out filing of a joint complaint by two or more than two persons.
As is provided under Section 143 of the Act, the cases under Section 138 of the Act are required to be tried summarily by following the procedure laid down under the provisions of Sections 262 to 265 of the Code of Criminal Procedure. It is only when at the commencement of, or in the course of, a summary trial, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness that may have been examined and proceeded to hear or rehear the case in the manner provided by the Criminal Procedure Code. It is, thus, not correct to say that Chapter XVII is a complete Code in itself and exclude the applicability of the Criminal Procedure Code.
This petition is allowed in part and the impugned complaint and the proceedings taken thereon, in so far as respondent No.2 is concerned, shall stand quashed.
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2021 (4) TMI 1058 - DELHI HIGH COURT
Availability of beds for COVID patients - availability of medical Oxygen in the NCT of Delhi - Efficient usage of Oxygen - testing facilities for Covid-19 through the RT-PCR test - critical medicines required for the treatment of serious Covid-19 patients falling in short supply - Wastages of vaccine.
Availability of beds for COVID patients - HELD THAT:- Ms.Roli Khare, Director, Ministry of Health and Family Welfare has stated that the Central Government is endeavoring to make more beds available. She states that presently the hospitals of the Central Government are occupied by non-covid patients in need of critical care, such as patients who require dialysis, or suffering from cancer and other serious disease. Considering the fact that the number of COVID patients, who are now needing hospitals if for greater than the numbers which were turning up last year – even during the peak of the pandemic, the Central Government should urgently look to allocate more beds among their hospitals for COVID patients - Central Government directed to look into the aspect of bed allocation for COVID patients keeping in view the prevailing circumstances, and report in this regard on the next date of hearing i.e. 22.04.2021.
Availability of medical Oxygen in the NCT of Delhi - HELD THAT:- Looking to the number of COVID positive patients all over the country, and the pattern which is emerging with regard to the spread of the viral infection and the severity with which it is impacting people in different States and regions, we direct the Central Government to review the allocation of Oxygen on a dynamic basis i.e. on a day to day basis, so that its utilization is achieved in the most efficient manner.
Efficient usage of Oxygen - HELD THAT:- The need for oxygen is now. Any delay in this regard would lead to loss of precious lives. We, therefore, direct the Central Government to implement the said decision forthwith, and make available oxygen to hospitals which are running out of their supplies, lest there is grave loss of life suffered by patients being treated thereat.
Ramping up of the testing facilities for Covid-19 through the RT-PCR test - HELD THAT:- For the purpose of setting up of Covid testing facilities, the entrepreneurs/ doctors have to obtain clearance from the Indian Council for Medical Research (ICMR). It has been brought to our notice that the procedure for such clearances is also highly time consuming. We do not wish to, in any way, impinge on the authority of ICMR, and we do not expect the ICMR to relax its standards in the matter of granting its permissions and clearances. However, looking to the present day situation, we direct the ICMR to give top priority for such clearances so that the RTPCR Labs could be set up or expanded without any delay.
Delay in preparation of RT-PCR Test Reports - HELD THAT:- The patients who undergo the RT-PCR test,s are required to provide their Aadhar Cards. Despite that being the position, the testing agencies are required to fill up detailed forms online, which take up to 15 minutes per form. We, therefore, direct the Central Government, and the ICMR, to review the form in which the information is required to be uploaded by the testing agencies, so as to reduce their burden and wastage of time, as this appears to be acting as a bottleneck in the matter of preparation of reports.
Critical medicines required for the treatment of serious Covid-19 patients falling in short supply, and also being sold at a premium in the black market - HELD THAT:- The Central Government should dynamically review the distribution of Remedesivir in the States and Union Territories on a daily basis, on the basis of the need, assessed on the basis of the serious active Covid patients, who need to be administered the said Drug. This is essential to maximise the efficient use of the said Drug - Looking to the present day situation, there can be no doubt that a case is made out for exercise of its power by the Central Government/ Controller under the aforesaid provisions of law. At the same time, the interests of the Patent holders/ licensees should be kept in mind, since it on account of their investments, inventions and hard work that such like medicines are made available to the public at large. The best course would be encourage the existing manufacturers to ramp up their production on a war footing. They should also be encouraged to grant voluntary licenses to other entities to manufacture the requisite drugs.
Wastage of vaccines - as many as about 44 lakhs vaccines have been wasted out of the 10 crores vaccines allocated to different States - HELD THAT:- This is because of the restriction with regard to the age, or category of people who are entitled to take the vaccine. According to the present dispensation, people who are above 45 years of age are entitled to take the vaccine. The Government has recently announced that from 01.05.2021, all above the age of 18 years would be entitled to take the vaccine. In our view, wastage of even a single dose of vaccine, when the same is proving to be life–saving, would be a criminal waste. We are informed that each vial of the vaccine has 10 doses. Once the vial is opened, it has to be either fully consumed, or the remainder goes waste. It should be possible for the Government(s) to devise ways and means so as to register volunteers who may be below the age group of 45 years, and above the age of 18 years – who could be called upon to take the residual doses of vaccine, in case, there are doses left unutilised after, say, 05.00 P.M on each day. That would ensure that all the doses are fully utilised, and not wasted - We direct the Government to look into this aspect forthwith and report status on the next date.
List on 22.04.2021.
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2021 (4) TMI 1056 - SUPREME COURT
Territorial Jurisdiction - Forum for Arbitration outside India - Foreign award - two companies incorporated in India can choose a forum for arbitration outside India or not - award made at forum outside India, is “foreign award” under Part II of the Arbitration and Conciliation Act, 1996 or not - enforceabillity of such award.
Seat of the arbitral proceedings in the present case - HELD THAT:- Clause 6 of the settlement agreement extracted above would show that arbitration is to be resolved “in Zurich” in accordance with the Rules of Conciliation and Arbitration of the ICC. In similar circumstances, in MANKASTU IMPEX PRIVATE LIMITED VERSUS AIRVISUAL LIMITED [2020 (3) TMI 302 - SUPREME COURT], where disputes were to be resolved by arbitration “administered in Hong Kong”, the Court concluded that On a plain reading of the arbitration agreement, it is clear that the reference to Hong Kong as “place of arbitration” is not a simple reference as the “venue” for the arbitral proceedings; but a reference to Hong Kong is for final resolution by arbitration administered in Hong Kong. The agreement between the parties that the dispute “shall be referred to and finally resolved by arbitration administered in Hong Kong” clearly suggests that the parties have agreed that the arbitration be seated at Hong Kong and that laws of Hong Kong shall govern the arbitration proceedings as well as have power of judicial review over the arbitration award.
The closest connection test strongly relied upon by Mr. Himani would only apply if it is unclear that a seat has been designated either by the parties or by the tribunal. In this case, the seat has clearly been designated both by the parties and by the tribunal, and has been accepted by both the parties - it is not possible to accept Mr. Himani’s contention that the seat of arbitration ought to be held to be Mumbai in the facts of the present case.
Part I and Part II of the Arbitration Act are mutually exclusive - HELD THAT:- This Court categorically held that a foreign award cannot be refused to be enforced merely because it was made between two Indian parties, under pari materia provisions of the Foreign Awards Act. The Court also held that since this plea had never been taken in any of the courts below, it was not available to the appellant to raise the said plea before this Court for the first time - It must be remembered that when a foreign award is sought to be enforced under Part II of the Arbitration Act, the explanation to section 47 makes it clear that it is the High Court alone which is the court on whose doors the applicant must knock. This is sought to be answered by Shri Himani by stating that since the explanation to section 47 is in direct collision with section 10(3) of the Commercial Courts Act, vide section 21 of the Commercial Courts Act, section 10(3) would prevail over the explanation to section 47.
It will be noted that section 10(1) applies to international commercial arbitrations, and applications or appeals arising therefrom, under both Parts I and II of the Arbitration Act. When applications or appeals arise out of such arbitrations under Part I, where the place of arbitration is in India, undoubtedly, the definition of “international commercial arbitration” in section 2(1)(f) will govern. However, when applied to Part II, “international commercial arbitration” has reference to a place of arbitration which is international in the sense of the arbitration taking place outside India. Thus construed, there is no clash at all between section 10 of the Commercial Courts Act and the explanation to section 47 of the Arbitration Act, as an arbitration resulting in a foreign award, as defined under section 44 of the Arbitration Act, will be enforceable only in a High Court under section 10(1) of the Commercial Courts Act, and not in a district court under section 10(2) or section 10(3).
Appeal disposed off.
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