TMI Blog2001 (4) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions and the effect of globalisation of trade. Incidentally, the Statements of Objects and Reasons of the Arbitration and Conciliation Act records it to be an act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto. While the earlier enactment of 1940 was to be the most expeditious methodology of adjudication and disposal of disputes through arbitration but practicability of the situation lately produced a rather dismal picture and proved contrary to the normal belief and expectation that arbitration would be an otherwise expeditious method to do so. The uncitral model on the basis of which this Act of 1996 was engrafted in the statute book, in no uncertain terms recognises party autonomy philosophy and minimum interference from the Courts. In England also, similar such situation was the felt-need and resultantly in 1996, a similar enactment came into force but neither of the legislations however can be attributed to be an exact copy of the uncitral model though undoubtedly ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint made under this section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding Officer of the Court, (Correspondent Law: S.476 (1)Proviso of Act V of 1898) 4) In this section, Court has the same meaning as in Section 195. Section 195: Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence (1) No court shall take cognizance- (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or (iii) of any criminal conspiracy to commit, or att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age as noticed hereinbefore in this paragraph, the intent of the Legislature cannot thus be far to seek it is connotative of a definite meaning. Mr. Yogeshwar Prasad, the learned Senior Advocate took some pains to take us through different provisions of the Act and contended that the whole tenor of legislation will have to be considered in a much broader perspective so as to assess the intent of the legislature and citations on the earlier repealed act ought not to be looked into or be considered since the answer for any inquiry ought to be kept within the parameters of the new law and when interpreting or analysing the philosophy of party autonomy noticed above should and ought to be the basis and de hors the jurisprudential effect of the legal decisions under the old Act. The main thrust of the submission in support of the Appeal however, rests on a simple proposition that Court means and implies authority to decide controversy between the parties authoritatively and the decision being binding amongst the parties. Strong reliance was placed on the decision of this Court in the case of Brajnandan Sinha v. Jyoti Narain (AIR 1956 SC 66) wherein this Court observed that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B provides for an appeal from an order passed under Section 476 to the appropriate Court. The result then is that if the complaint relates to offences mentioned in Sections 195 (1)(b)and 195 (1)(c), an appeal would be competent, but not if it relates to offences mentioned in Section 195(1)(a). Now, the order of the Magistrate dated 17.9.1952 directs that the appellant should be prosecuted for offences under Sections 181,182 and 193. There is no dispute that the order in so far as it relates to offences under Sections 181 and 182 is not appealable, as they fall directly under Section 195(1)(a). The controversy is only as regards the charge under Section 193. Section 193 makes it an offence to give false evidence whether it be in a judicial proceeding or not, and it likewise makes it an offence to fabricate false evidence for use in a judicial proceeding or elsewhere. If the offence is not committed in a judicial proceeding, then it will fall outside section 195 (1)(b), which applies only when it is committed in or in relation to a proceeding in Court, and there is in consequence no bar to a complaint being made in respect thereof unaffected by the restrictions contained in Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither party to the award against the Arbitrators award direct to the High Court a time limit has been prescribed for preferring such appeal which may also be admitted beyond the prescribed period if the High Court is satisfied about the grounds of the delay. An appeal to the High Court against the award shall not lie only where the amount of compensation awarded does not exceed ₹ 5,000 in lump or 250 per mensem. The dispute between the claimant claiming the compensation and the State resisting such claim is certainly a civil dispute and the lis between the parties is of a civil nature. The arbitration proceedings before the Arbitrator, originating on a reference at the instance of the claimant by the Collector before the Arbitrator under the D.I Act and the Rules mentioned above in relation to such a civil dispute are proceedings which refer to an original matter in the nature of a suit. The Arbitrator in such arbitration proceedings which refer to an original matter in the nature of a suit shall have the like powers and follow the like procedure as the Court has and follows in the exercise of its ordinary original civil jurisdiction under the Code of Civil Procedure, 1908. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lief sought; (c) the evidence to be obtained, in particular,- (i) the name and address of any person to be heard as witness or expert witness and a statement of the subject matter of the testimony required; (ii) the description of any document to be produced or property to be inspected. (3) The Court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal. (4) The court may, while making an order under sub- section (3), issue the same processes to witnesses as it may issue in suits tried before it. (5) Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the Court. (6) In this section the expression Processes includes summonses and commissions for the examination of witnesses and summons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted by Dr. Chitale, appearing on behalf of the appellant, or was merely declaratory of the law as declared by the court in Lalji Haridas case, as argued by the learned Advocate-General, and therefore the decision in Lalji Haridas case is still good law. It cannot be doubted that sub- sections (3) of Section 195 of the Code has been enacted by Parliament to implement the recommendations of the 41st report of the Law Commission which brought about the unsatisfactory state of law due to conflict of opinion between different High Courts as to the meaning of the word Court in Section 195 (1)(b) read in the context of Section 195 (2) of the earlier Code. The interpretative exercise undertaken by the courts over the years as to the precise meaning of the term Court as defined in Section 195(1)(b) of the old Code prior to the introduction of sub- section (3) of section 195 of the present Code, reveals an endless oscillation between two views each verging on a fringe of obscurity and vagueness. As echoed by Lord Macmillan in his Law and Other Things at p. 48: In almost every case except the very plainest, it would be possible to decide the issue either way with reasonable legal justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution. After referring to the state of law prevailing in the then Provinces prior to the Constitution as also to the chaos and confusion that was brought about in interstate trade and commerce by indiscriminate exercising of taxing powers by the different provincial legislatures founded on the theory of territorial nexus, SR Das, Actg. C.J. speaking for himself and Vivian Bose and Jafer Imam, JJ. proceeded to say: (SCR p.635) It was to cure this mischief of multiple taxation and to preserve the free flow of interstate trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the Constitution-makers adopted Article 286 of the Constitution. An illustration of the application of the rule is also furnished in the construction of Section 2(d) of the Prize Competitions Act, 1955. In RMD Chamarbaugwalla v. Union of India [1957 SCR 930] Venkatarama Ayyar, J. speaking for the court after referring to the previous state of the law, to the mischief that continued under that law and to the resolutions passed by different state legislatures under Article 252 (1) of the Constitution authorising Parliament to pass the Act, stated: (SCR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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