LAW FOR ALL

Sunday, March 19, 2017

It is pertinent to reproduce the relevant portion in the respondent’s application before the ICC while objecting to the authority of the law firms representing the appellant. It stated:- “The seat of this arbitration is London.” Therefore, the two reasons for Part-I not being applicable are as follows:- Parties agreed that the seat maybe outside India as may be fixed by the ICC; and It was admitted that the seat of arbitration was London and the award was made there. Therefore, there is no doubt that Part-I has no application because the parties chose and agreed to the arbitration being conducted outside India and the arbitration was in fact held outside India. 33. In view of the foregoing observations, we find that the High Court committed an error in observing that the seat of arbitration itself is not a decisive factor to exclude Part-I of the Arbitration Act. We therefore set aside the judgment of the High Court and dismiss the petition filed by the respondent under Section 34 of the Arbitration Act before the Bombay High Court.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 3885 OF 2017
(Arising out of SLP (C) No. 34009 of 2013)

IMAX CORPORATION ... APPELLANT

VERSUS

M/S E-CITY ENTERTAINMENT (I) Pvt. LTD. ... RESPONDENT

1

2 JUDGMENT

S. A. BOBDE, J.

Leave granted.

2. The appellant-Imax Corporation has challenged the interim order
dated 10.06.2013 passed by the High Court of Judicature at Bombay in Notice
of Motion No.2560 of 2008 in the Arbitration Petition (Lodging) No.525 of
2008.

3. By the aforementioned order, the High Court held that the petition
under Section 34 of the Arbitration and Conciliation Act, 1996 (for short,
"the Arbitration Act") filed by the respondent-M/S E-City Entertainment (I)
Pvt. Ltd. against two partial final awards dated 11.02.2006, 24.08.2007,
and third final award dated 27.03.2008 was maintainable.

The appellant had objected to the maintainability of the petition under
Section 34 of the Arbitration Act on the ground that the arbitration clause
excluded the applicability of Part-I which contains the said section.

4. The only issue before us is whether the petition under Section 34 of
the Arbitration Act is maintainable before a court in India, and in this
case, the Bombay High Court.

5. On 28.09.2000, the appellant entered into an agreement with the
respondent for a supply of large format projection systems for cinema
theatres to be installed in theatres all across India. Clause 14 of the
agreement contained an arbitration clause which reads as follows:

"This Agreement shall be governed by and construed according to the laws of
Singapore, and the parties attorn to the jurisdiction of the courts of
Singapore. Any dispute arising out of this master agreement or concerning
the rights, duties or liabilities of E-City or Imax hereunder shall be
finally settled by arbitration pursuant to the ICC Rules of Arbitration."

6. On 16.06.2004, the appellant filed a request for arbitration with the
ICC, and claimed damages. On 08.10.2004, the ICC i.e. the chosen arbitral
forum fixed London as the place of arbitration i.e. the juridical seat of
arbitration, after consulting the parties.

FIRST PARTIAL FINAL AWARD

7. On 11.02.2006, the first partial final award was made in favour of
the appellant declaring that the respondent was in breach of the agreement
and therefore liable for damages. The award stated that the decision on the
other issues, including damages/costs would be reserved for a future award.

8. The aforementioned declaration was made after observing in the award
that the court of the ICC had decided to fix London as the juridical seat
of arbitration in accordance with the powers vested in the court under
Article 14(1) of the ICC Rules. The observation read as follows:

"As well be noticed, no provision was made for a venue for any arbitration
contemplated by Clause 14, but subsequently the court of the ICC decided on
the 8th of October, 2004 to fix London as the juridical seat of the
arbitration in accordance with the powers vested in the court under Article
14 of the ICC Rules. Accordingly, this is an arbitration to which Part-I of
the English Arbitration Act 1996 applies."

9. The appellant filed its statement of damages before
the Arbitral Tribunal. The respondent filed its statement
of defence.

10. On 05.09.2006 the respondent objected that the appellant has no legal
status and the law firm representing them is not authorized to pursue the
arbitration. In that application, the respondent stated as follows:

"The seat of this arbitration is London. Therefore, English law determines
the effect of any want of capacity suffered by "Imax Ltd" under the
Canadian law as
a result of its amalgamation into Imax Corporation with effect from 1st
January, 2001."

SECOND PARTIAL FINAL AWARD

11. On 24.08.2007, the Arbitral Tribunal passed the second partial award
rejecting the above objection filed by the respondent. By this award, the
tribunal determined the quantum of damages payable to the appellant. This
award was also made in London, the juridical seat of this arbitration. A
sum of $9,406,148.31 was awarded to the appellant.

THIRD FINAL AWARD

12. The Arbitral Tribunal passed a final award on 27.03.2008 on the issue
of interest and costs. A sum of $1,118,558.54 by way of interest and a
further sum of $2,512.60 per day from 01.10.2007 until the payment of the
award was awarded in favour of the appellant. Sums of $400,000 and
$384,789.21 by way of costs of arbitration fixed by the ICC and costs by
way of attorney’s fees, expert fees and related expenses were also directed
to be paid. Final award dated 27.03.2008 was received by the respondent on
01.04.2008.

The final award on the issues of interest and costs was amalgamated
with the earlier awards, both of which were incorporated by reference into
itself. The third final award also stated that the place of arbitration is
London.

PETITION UNDER SECTION 34 BEFORE THE BOMBAY
HIGH COURT

13. On 21.07.2008, the respondent challenged the aforesaid awards under
Section 34 of the Arbitration Act before the Bombay High Court in India
after a period of more than two years from the first partial award, more
than one year from the second partial award and a period of 3 months, 24
days from the final award.

14. The learned Single Judge allowed the notice of motion
on the condonation of delay and held that the petition under Section 34 was
maintainable before the Bombay High Court.

Hence, this appeal.

15. The only question that arises for consideration before us is whether
the challenge to the award made by the respondent under Section 34 of the
Arbitration Act is maintainable before a court in India. Clearly, if the
answer is in the negative it is not necessary to decide the question of
delay. Thus, we make it clear that we are not deciding where else in the
world a challenge to the award would be maintainable.

16. Dr. A.M. Singhvi, learned senior counsel for the respondent relied on
Clause VIII (2) of the Request for Arbitration dated 16.06.2004 wherein the
petitioner stated as follows:

"VIII Place of Arbitration, Law and Language

(2) Section 14 of the letter Agreement is silent as to the place of the
arbitration. Claimant believes that Paris and France are suitable places
for arbitration to take place, indeed, this is the venue chosen by the ICC
for the related EML Arbitration and the claimant believes that this
arbitration should be consolidated along with the pending EML Arbitration.
Paris is roughly equal distant from both parties."

17. The above submission was made in response to Mr. Pallav Shisodia’s
argument, learned senior counsel for the appellant, that the respondent had
in fact stated in its petition under Section 34 of the Arbitration Act that
"the seat of arbitration was in London". Also in the counter affidavit
before this Court it was submitted that the seat of arbitration being
London in no way precludes the respondent from challenging the awards under
Section 34 of the Act.

Having noted the above submissions and statements made by the parties, we
propose to decide the question on the construction of Clause 14 and the law
governing such challenges.

CLAUSE 14: THE ARBITRATION CLAUSE

18. Clause 14 of the Agreement deals with two matters:

(i) the laws which will govern the agreement; and
(ii) a provision of settling disputes by arbitration.

As regards the first, it provides that in case a question arises as
to the agreement i.e. what the agreement means or what the parties
intended, it shall be interpreted according to the laws of Singapore and
these laws will govern the understanding and the acts of the parties.
Further, in case the parties resort to a court, they shall approach the
courts of Singapore which alone shall adjudicate upon the issue. The
courts of Singapore will thus adjudicate in relation to any non-arbitrable
dispute that might arise under the agreement or possibly a dispute
regarding the correctness or validity of an arbitration award. It is not
necessary to consider whether a challenge to the award would lie in
Singapore in this case because the award in fact was made in London and in
any case no party has approached the court in Singapore.

Secondly, this clause provides that any dispute arising out of this
agreement or concerning the rights, duties or liabilities of the parties
shall be settled by arbitration. The arbitration shall be pursuant to the
ICC Rules of Arbitration. In other words, the parties shall invoke the ICC
Rules of Arbitration in case a dispute arises between them concerning their
rights, duties or liabilities. The intention is to have the dispute
settled by and in accordance with the ICC Rules of Arbitration. In this
sense, the ICC Rules of Arbitration must be construed as being read into
this clause.

THE ICC RULES

19. The ICC Rules provide for the entire conduct of arbitration from its
commencement to the passing of an award. They provide that the arbitration
shall be conducted by the court i.e. the International Court of
Arbitration, appointed by the council of the ICC. A party wishing to have
recourse to arbitration under the rules is required to submit a Request for
Arbitration to the Secretariat of the ICC along with the information
prescribed and in particular comments as to the place of arbitration. The
ICC Rules clearly stipulate that the seat of arbitration shall be fixed by
the court, in the following words:-

“1. The place of the arbitration shall be fixed by the Court unless
agreed upon by the parties.

2. The Arbitral Tribunal may, after consultation with the
parties, conduct hearings and meetings at any location it
considers appropriate unless otherwise agreed by the
parties.

3. The Arbitral Tribunal may deliberate at any location it
considers appropriate.”

In this case, the appellant had proposed the venue of arbitration to
be Paris in France. Upon notice being issued, the respondent was obliged
to file an answer including a comment concerning the number of arbitrators
and their choice as to the place of arbitration.

The respondent, in their answer stated that the venue suggested by
the claimant i.e. Paris in France would unnecessarily increase the cost of
arbitration and therefore suggested that Singapore would be the most
appropriate and convenient venue for the arbitration, vide “Answer to
Request for Arbitration pursuant to Article 5(1) of the ICC Rules of
Arbitration” dated 30.08.2004.

The International Court of Arbitration decided inter alia that
London, United Kingdom will be the juridical seat of the arbitration in
view of Article 14(1) of the ICC Rules and, therefore, proceeded on the
basis of the Part-I of the English Arbitration Act, 1996.

What is significant and needs to be pointed out is that the parties
had agreed in pursuance of the agreement to have the dispute decided in
accordance with the ICC Rules by submitting the dispute to the ICC. The
court (of the ICC) considered the stand of the parties on the venue for
arbitration and fixed London as the seat of arbitration.

INTENTION OF THE PARTIES TO EXCLUDE PART-I

20. In this case, there is an express choice of the law governing
the contract as a whole i.e. Singaporean Law.

There is an express agreement that any arbitration would be
governed by the ICC Rules of Arbitration. The general principle is that,
in the absence of any contradictory indication, it shall be presumed that
the parties have intended that the proper law of contract as well as the
law governing the arbitration agreement is the same as the law of the
country in which the arbitration is agreed to be held.

21. It would be apposite to refer to a case decided by the Supreme
Court of Sweden from a passage in Redfern and Hunter[1]. Quoting the
Supreme Court of Sweden it is stated that:-
“…no particular provision concerning the applicable law for the arbitration
agreement itself was indicated [by the parties]. In such circumstances the
issue of the validity of the arbitration clause should be determined in
accordance with the law of the state which the arbitration proceedings have
taken place, that is to say, Swedish Law.”

In the present case, the arbitration clause contemplates an award made in
pursuance to the ICC rules without specifying the applicable law for the
arbitration agreement. It would therefore be appropriate to hold that the
question of validity of the award should be determined in accordance with
the law of the state in which the arbitration proceedings have taken place
i.e. the English Law. Though for the purposes of this decision we would
only hold that the conduct of the parties exclude the applicability of Part-
I.

In other words, where the parties have not expressly chosen the law
governing the contract as a whole or the arbitration agreement in
particular, the law of the country where the arbitration is agreed to be
held has primacy.

22. Here, an express choice has been made by the parties regarding
the conduct of arbitration, i.e., that a dispute shall be finally settled
by arbitration according to the ICC Rules of Arbitration. The parties have
not chosen the place of arbitration. They have simply chosen the rules
that will govern the arbitration, presumably aware of the provision in the
rules that the place of arbitration will be decided by the ICC vide Article
14(1) of the ICC Rules. The ICC having chosen London, leaves no doubt that
the place of arbitration will attract the law of UK in all matters
concerning arbitration.

23. The arbitration clause appears consistent with Section 2(7) of the
Arbitration Act, 1996 which recognizes the freedom to authorize any person
including an institution to determine an issue such as the choice of the
place of arbitration.

24. Dr. Singhvi rightly submitted that the decisions of the court in
Sakuma Exports Ltd. vs. Louis Dreyfus Commodities Suisse Sa[2], Harmony
Innovation Shipping Ltd. vs. Gupta Coal India Ltd.[3], and Reliance
Industries Ltd. vs. Union of India[4] do not help the appellant in view of
the main difference between the abovementioned cases and the present one
i.e. in all these cases, the parties had specifically agreed that the seat
of arbitration will be London. The arbitration clause in these cases
itself specified the seat to be at London. In Reliance Industries Ltd.
(supra), the agreement that the seat of arbitration would be London was
incorporated in the final partial award.

However, as we shall see the agreement to have the arbitration conducted by
the ICC and the choice of London as the seat of arbitration has made no
material difference for the purpose of exclusion of Part-I.

The relevant clause in these cases was undoubtedly different in that
the seat of arbitration outside India was specified in the clause itself.
However, we have found that the relevant clause in the present case had the
effect of an agreement to have the seat of the arbitration outside India,
as chosen by the ICC and agreed to by the parties.

25. We find that in the present case, the seat of arbitration has not
been specified at all in the arbitration clause. There is however an
agreement to have the arbitration conducted according to the ICC rules and
thus a willingness that the seat of arbitration may be outside India. In
any case, the parties having agreed to have the seat decided by the ICC and
the ICC having chosen London after consulting the parties and the parties
having abided by the decision, it must be held that upon the decision of
the ICC to hold the arbitration in London, the parties agreed that the seat
shall be in London for all practical purposes. Therefore, there is an
agreement that the arbitration shall be held in London and thus Part-I of
the Act should be excluded.

26. The construction that the parties agreed to exclude the applicability
of Part-I of the Act and generally to have the entire agreement governed
not according to Indian law is also apparent from the express provision
that:

“This agreement shall be governed by and construed according to laws of
Singapore and parties attorn to jurisdiction of the Courts of Singapore”.

In para 25 of National Thermal Power Corporation vs. Singer
Company[5], this Court held:
“On the other hand, where the proper law of the contract is expressly
chosen by the parties, as in the present case, such law must, in the
absence of an unmistakable intention to the contrary, govern the
arbitration agreement which, though collateral or ancillary to the main
contract, is nevertheless a part of such contract”.

This principle is again reiterated in Sakuma Exports
Ltd. (supra).

This stipulation expressly excludes Part-I of the Act because it governs
both the principal agreement as well as the accompanying arbitration
agreement.

NON- APPLICABILITY OF PART-I

27. It is settled law in India that the provisions of Part-I of the
Arbitration Act would apply to all arbitrations and all proceedings
relating thereto. In Bhatia International vs. Bulk Trading S.A. and
Anr.[6], this Court observed:-

“32. …….Where such arbitration is held in India the provisions of Part I
would compulsorily apply and parties are free to deviate only to the extent
permitted by the derogable provisions of Part I. In cases of international
commercial arbitrations held out of India provisions of Part I would apply
unless the parties by agreement, express or implied, exclude all or any of
its provisions. In that case the laws or rules chosen by the parties would
prevail. Any provision, in
Part I, which is contrary to or excluded by that law or rules will not
apply.”

This view has been followed in several cases, See Venture Global
Engg. vs. Satyam Computer Services Ltd.[7], Videocon Industries Limited vs.
Union of India[8], Dozco India (P) Ltd. vs. Doosan Infracore Co. Ltd.[9],
Cauvery Coffee Traders vs. Horner Resources (International) Co. Ltd.[10],
Reliance Industries Ltd. (supra) and Sakuma Exports Ltd. (supra), Union of
India vs. Reliance Industries Ltd.[11], Harmony Innovation Shipping Ltd.
(supra) and Eitzen Bulk A/S vs. Ashapura Minechem Ltd.[12]

The relevant clause in these cases was undoubtedly different in that, the
seat of arbitration outside India was specified in the clause itself.
However, we have found that the clause in this case had the effect of an
agreement to have the seat of arbitration outside India, as chosen by the
ICC, and as agreed to by the parties.

28. On a true construction of Clause 14 in this case, there is no doubt
the parties have agreed to exclude Part-I by agreeing that the arbitration
would be conducted in accordance with the ICC Rules. The parties were
undoubtedly conscious that the ICC could choose a venue for arbitration
outside India. That in our view is sufficient to infer that the parties
agreed to exclude
Part-I. The ICC could well have chosen a venue in India. The possibility
that ICC could have chosen India is not a counter indication of this
inference. It could also be said that the decision to exclude the
applicability of Part-I was taken when the ICC chose London after
consulting the parties. Either way Part-I was excluded.

29. The view that it is the law of the country where arbitration is held
that will govern the arbitration and matters related thereto such as a
challenge to the award is well entrenched. In Dozco India (P) Ltd.
(supra), this Court observed:-

“In the absence of express agreement, there is a strong prima facie
presumption that the parties intend the curial law to be the law of the
‘seat’ of the arbitration i.e. the place at which the arbitration is to be
conducted, on the ground that that is the country most closely connected
with the proceedings. So in order to determine the curial law in the
absence of an express choice by the parties it is first necessary to
determine the seat of the arbitration, by construing the agreement to
arbitrate.”

30. The relationship between the seat of arbitration and the law
governing arbitration is an integral one. The seat of arbitration is
defined as the juridical seat of arbitration designated by the parties, or
by the arbitral institution or by the arbitrators themselves as the case
may be. It is pertinent to refer to the following passage from Redfern and
Hunter (supra):-

“This introduction tries to make clear, the place or seat of the
arbitration is not merely a matter of geography. It is the territorial
link between the arbitration itself and the law of the place in which that
arbitration is legally situated:

When one says that London, Paris or Geneva is the place of arbitration, one
does not refer solely to a geographical location. One means that the
arbitration is conducted within the framework of the law of arbitration of
England, France or Switzerland or, to use an English expression, under the
curial law of the relevant country. The geographical place of arbitration
is the factual connecting factor between that arbitration law and the
arbitration proper, considered as a nexus of contractual and procedural
rights and obligations between the parties and the arbitrators.

The seat of arbitration is thus intended to be its centre of gravity.”

Further, in the same work on International Arbitration by Redfern and
Hunter (supra), the following passage emphasizes the connection between the
lex arbitri and lex fori:-

“Parties may well choose a particular place of arbitration precisely
because its lex arbitri is one which they find attractive. Nevertheless,
once a place of arbitration has been chosen, it brings with it its own law.
If that law contains provisions that are mandatory so far as arbitration
are concerned, those provisions must be obeyed. It is not a matter of
choice any more than the notional motorist is free to choose which local
traffic laws to obey and which to disregard.”

Thus, it is clear that the place of arbitration determines the law
that will apply to the arbitration and related matters like challenges to
the award etc, see Eitzen Bulk A/S (supra).

31. The significant determinant in each case is the agreement of the
parties as to the place of arbitration and where in fact the arbitration
took place.

If in pursuance of the arbitration agreement, the arbitration took place
outside India, there is a clear exclusion of Part-I of the Arbitration Act.
In the present case, the parties expressly agreed that the arbitration will
be conducted according to the ICC Rules of Arbitration and left the place
of arbitration to be chosen by the ICC. The ICC in fact, chose London as
the seat of arbitration after consulting the parties. The arbitration was
held in London without demur from any of the parties. All the awards i.e.
the two partial final awards, and the third final award, were made in
London and communicated to the parties. We find that this is a clear case
of the exclusion of Part-I vide Eitzen Bulk A/S (supra), and the decisions
referred to and followed therein.

32. The respondent contends before us that Part-I of the award was
applicable, however they themselves stated the place of arbitration to be
London.

It is pertinent to reproduce the relevant portion in the respondent’s
application before the ICC while objecting to the authority of the law
firms representing the appellant. It stated:-

“The seat of this arbitration is London.”

Therefore, the two reasons for Part-I not being applicable are as
follows:-

Parties agreed that the seat maybe outside India as may be fixed by the
ICC; and

It was admitted that the seat of arbitration was London and the award was
made there.

Therefore, there is no doubt that Part-I has no application
because the parties chose and agreed to the arbitration being conducted
outside India and the arbitration was in fact held outside India.

33. In view of the foregoing observations, we find that the High Court
committed an error in observing that the seat of arbitration itself is not
a decisive factor to exclude Part-I of the Arbitration Act. We therefore
set aside the judgment of the High Court and dismiss the petition filed by
the respondent under Section 34 of the Arbitration Act before the Bombay
High Court.

34. In the result the appeal is allowed as no order to costs.

…...................................………J.

[S.A. BOBDE]

..………………………….…..........…..J.
[ASHOK
BHUSHAN]
NEW DELHI,
March 10, 2017

-----------------------
[1]

Redfern and Hunter on International Arbitration, Fifth Edition
[2] (2015) 5 SCC 656
[3] (2015) 9 SCC 172
[4] (2014) 7 SCC 603
[5] (1992) 3 SCC 551
[6] (2002) 4 SCC 105
[7] (2008) 4 SCC 190
[8] (2011) 6 SCC 161
[9] (2011) 6 SCC 179
[10] (2011) 10 SCC 420
[11] (2015) 10 SCC 213
[12] (2016) 11 SCC 508

No doubt, the appellant has made out a case, since there was liberty given to the appellant/insurance company to recover the excess sum payable to the respondents. However, having regard o the peculiar facts of this case, we are of the view that this is an eminently fit case to invoke our jurisdiction under Article 142 of the Constitution of India for the reason that the deceased employee died at the age of 32 years and the claimants having not been granted 50% of enhancement in the salary, no amount was given to the minor towards loss of love, care and protection and further that for consortium only an amount of Rs.25,000/- was paid. 8. Hence, having regard to the peculiar facts of this case, we dismiss this appeal, leaving the question of law open.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3867 OF 2017
[ARISING FROM SPECIAL LEAVE PETITION (C) NO.4009 OF 2017]

ORIENTAL INSURANCE CO LTD APPELLANT(S)

VERSUS

BABY RADHIKA GUPTA AND ANR RESPONDENT(S)

J U D G M E N T

KURIAN, J.

Leave granted.
2. This is an appeal filed by the appellant/insurance company aggrieved
by the order passed by the High Court declining to interfere with the order
passed in execution by the Motor Accident Claims Tribunal.
3. The respondents filed an application for compensation before the
Motor Accident Claims Tribunal, Delhi. The Tribunal awarded a total
compensation in the sum of Rs.44,50,000/- along with interest @ 9% from the
date of filing of the petition till its realization. The
appellant/insurance company went in appeal before the High Court and the
same was reduced to Rs.5,82,132/-.
4. During the pendency of the appeal before the High Court, the
respondents were permitted to withdraw 80% of the amount deposited in
Tribunal and the remaining 20%, with accrued interest, was withdrawn by the
appellant/insurance company. While disposing of the Appeal No.239 of 2004,
the High Court, in paragraph 25, held as under:-

“25. Vide interim order dated 13.7.2004, appellant insurance was
directed to deposit entire compensation amount in the Tribunal. 80% of the
deposited amount was directed to be released to the respondent/claimants.
It is hereby directed that balance 20% of deposited amount together with
accrued interest thereon be returned to the appellant insurance company.
It is further held that insurance company is held entitled to recover the
excess sum from the respondents which has been released in the favour of
the respondents.”

5. Thereafter, the respondents moved this Court in Civil Appeal No.7736
of 2009, which was disposed of by judgment dated 24.11.2009 enhancing the
total compensation to Rs.15,70,892/-. With the above modification on the
amount, the appeal was disposed of with a direction to the
appellant/insurance company to pay the balance amount to the respondents
within four weeks with interest @ 9% per annum.
6. Finding that the respondents have withdrawn much more than what they
would have been entitled to, going by the order passed by this Court, the
appellant insurance company filed an appeal seeking recovery of the
interest portion on the principal amount drawn in excess of what they have
been actually entitled to.
7. No doubt, the appellant has made out a case, since there was liberty
given to the appellant/insurance company to recover the excess sum payable
to the respondents. However, having regard o the peculiar facts of this
case, we are of the view that this is an eminently fit case to invoke our
jurisdiction under Article 142 of the Constitution of India for the reason
that the deceased employee died at the age of 32 years and the claimants
having not been granted 50% of enhancement in the salary, no amount was
given to the minor towards loss of love, care and protection and further
that for consortium only an amount of Rs.25,000/- was paid.
8. Hence, having regard to the peculiar facts of this case, we dismiss
this appeal, leaving the question of law open.
9. Pending application(s), if any, shall stand disposed of.
10. There shall be no orders as to costs.

.......................J.
[KURIAN JOSEPH]

.......................J.
[R. BANUMATHI]
NEW DELHI;
MARCH 09, 2017.

It is not disputed that more than a month after the death of Dr. Rashmi, wife of the deceased the respondent has registered a case on the basis of an anonymous letter. Immediately after the death of Dr. Rashmi, her parents were informed by the appellant about her death and they had come to Solapur. The parents of the deceased have not lodged any complaint against the accused. Father-in-law of the appellant has sworn to an affidavit that she was living a happy married life with the appellant and that she had died a natural death. Therefore, he has no objection for her funeral without post mortem. It is also necessary to state here that the appellant has no criminal antecedents. 7 In the circumstances, the High Court was not justified in rejecting the application of the appellant. We are of the view that it is just and proper to grant an order of anticipatory bail to the appellant. Therefore, the order of the High Court in Anticipatory Bail Application No. 841 of 2016 is set aside. 8 In view of the above, we direct that in the event of arrest, the appellant shall be released on bail on execution of personal bond for Rupees one lakh with sureties of the like amount to the satisfaction of the investigating officer. The appellant shall not tamper the witnesses of the prosecution and shall appear before the investigating officer/court as and when required.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURSIDCITON

CRIMINAL APPEAL NO.505_OF 2017
(Arising out of S.L.P. (CRL) No.4831 of 2016

PRASSANNA VENKARDARI AGRAHAR … APPELLANT

VERSUS

STATE OF MAHARASHTRA …RESPONDENT

O R D E R

S.ABDUL NAZEER, J.

1 Leave granted.

2 This appeal is directed against the order dated 15th June, 2016
passed by the High Court of Judicature at Bombay in Anticipatory Bail
Application No. 841 of 2016, whereby the High Court rejected the
application filed by the appellant for grant of anticipatory bail. The
appellant is a doctor by profession and specialized in neuro surgery. He
was practicing at Ahmed Nagar but shifted to Solapur in the year 2012 and
is practicing as Neuro Surgeon in Solapur. He married to Ms. Rashmi, who
was also a doctor. It is the case of the appellant that his wife was
suffering from chronic diabetes and was under treatment. She died on 9th
July, 2015 at about 1.00 a.m. The appellant informed this fact to her
parents who had come to Solapur on the next day and after due consideration
and affirmation that the death of Rashmi was natural due to heart failure,
they all decided to cremate her. After a passage of about one month, an
anonymous letter addressed to the Commissioner of Police, Solapur stating
that the appellant had extra-marital affairs with one Megh Roy Chodhuri and
in order to obtain benefit of insurance policy which was in the name of the
deceased Rashmi, the appellant committed her murder. It is further
contended that on the basis of the said letter an inquiry had been
initiated and the appellant had been summoned for inquiry. The police has
been repeatedly visiting his house for interrogation and he is having
apprehension that the police will register offence against him and he would
be arrested. Therefore, he filed Criminal Bail Application 472/16 before
the Principal District and Sessions Judge, Solapur. The District &
Sessions Judge by order dated 3.5.2016 rejected the application.

3 The appellant moved the High Court by filing an application for grant
of anticipatory bail in Criminal Application No.841 of 2016. The High
Court dismissed the application by order dated 15.6.2016.

4 Learned counsel for the appellant submits that the appellant is a
doctor by profession and is a renowned neuro surgeon attached to Gangamai
Hospital, Solapur and his wife was also a doctor. He was married to Rashmi
in the year 2010 and they have a son by name Neerav, who was born in April,
2012 and who is mentally challenged. Ms. Rashmi was diabetic and she was
being treated by consulting Dr. Mule. She suffered a heart attack in the
intervening night of 8-9.7.2015 and hence was examined by one doctor
Prabhakaran. Since she was found dead, Dr. Prabhakaran issued a medical
certificate to that effect. The parents of the deceased wife of the
appellant were immediately informed and they came to Solapur on 9.7.2015,
after having satisfied that her death was natural, took a collective
decision along with the appellant not to perform post-mortem. In-laws of
the appellant had sworn an affidavit on 14.7.2015 and 6.4.2016 about the
natural death of the wife of the appellant. This affidavit was required
for cancellation of their tickets from Bangalore to Frankfurt and for
refund. After more than a month in August, 2015, on the basis of an
anonymous letter sent to the Commissioner of Police, Solapur raising
suspicion about the death of the wife of the appellant and that the
appellant had extra-marital affairs, therefore he committed murder of his
wife, appellant was interrogated by the police. He has cooperated with the
police during investigation. The appellant has not committed any offence
as alleged. Therefore, the High Court is not justified in rejecting the
application of the appellant for grant of anticipatory bail.

5 On the other hand, learned counsel appearing for the State submits
that the wife of the appellant had died in suspicious circumstances. The
appellant took disadvantage of his position as doctor and himself issued
medical certificate about death of his wife and showed that his wife died
natural death. It is further submitted that the police received an
anonymous letter on 28.8.2015 stating that the appellant gave an injection
to his wife and killed her. Without conducting post mortem, the body of
the deceased was cremated in an electric crematorium. Thereafter,
appellant obtained death certificate and took the insurance claim of the
deceased. Considering the facts and circumstances of the case, the High
Court has rightly rejected the application.

6 It is not disputed that more than a month after the death of Dr.
Rashmi, wife of the deceased the respondent has registered a case on the
basis of an anonymous letter. Immediately after the death of Dr. Rashmi,
her parents were informed by the appellant about her death and they had
come to Solapur. The parents of the deceased have not lodged any complaint
against the accused. Father-in-law of the appellant has sworn to an
affidavit that she was living a happy married life with the appellant and
that she had died a natural death. Therefore, he has no objection for her
funeral without post mortem. It is also necessary to state here that the
appellant has no criminal antecedents.

7 In the circumstances, the High Court was not justified in rejecting
the application of the appellant. We are of the view that it is just and
proper to grant an order of anticipatory bail to the appellant. Therefore,
the order of the High Court in Anticipatory Bail Application No. 841 of
2016 is set aside.

8 In view of the above, we direct that in the event of arrest, the
appellant shall be released on bail on execution of personal bond for
Rupees one lakh with sureties of the like amount to the satisfaction of the
investigating officer. The appellant shall not tamper the witnesses of the
prosecution and shall appear before the investigating officer/court as and
when required.

9 It is needless to clarify that the observations made herein are only
for the purpose of disposing of this appeal and will not influence the
investigation or trial.

10 The appeal is allowed in the above terms.

…………………………………………J.
(J. CHELAMESWAR)

…………………………………………J.
(S. ABDUL NAZEER)
New Delhi
March 09, 2017

To sum up: (i) The High Courts may issue directions to subordinate courts that – (a) Bail applications be disposed of normally within one week; (b) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years; (c) Efforts be made to dispose of all cases which are five years old by the end of the year; (d) As a supplement to Section 436A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time; (e) The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports. (emphasis added) (ii) The High Courts are requested to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where accused are in custody for more than five years are concluded at the earliest; (iii) The High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts; (iv) The High Courts may monitor steps for speedy investigation and trials on administrative and judicial side from time to time; (v) The High Courts may take such stringent measures as may be found necessary in the light of judgment of this Court in Ex. Captain Harish Uppal (supra) .

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.509 OF 2017
(Arising out of Special Leave Petition (Crl.)No. 4437 of 2016)

Hussain and Anr. …Appellants

Versus

Union of India …Respondent

WITH

CRIMINAL APPEAL NO.511 OF 2017
(Arising out of Special Leave Petition (Crl.)No. 348 of 2017)

Aasu …Appellant

Versus

State of Rajasthan …Respondent

J U D G M E N T

ADARSH KUMAR GOEL, J.

I
1. Leave granted. Grievance in these appeals is against denial of bail
pending trial/appeal where appellants have been in custody for a long
period.
2. In the first case, the appellants have been in the custody since 4th
August, 2013 on the allegation of having committed offence under Section
21(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (the
NDPS Act). Their bail application, pending trial, has been dismissed. In
the second case, the appellant is in custody since 11th January, 2009. He
has been convicted by the trial court under Section 302 IPC and sentenced
to undergo life imprisonment. His bail application has been dismissed by
the High Court pending appeal. The appellants contend that, having regard
to the long period of custody, they are entitled to bail as speedy trial is
their fundamental right under Article 21 of the Constitution.

3. To consider the question as to the circumstances in which bail can be
granted on the ground of delayed proceedings when a person is in custody,
notice was also issued to learned Attorney General and Mr. Siddharth
Luthra, Senior Advocate was appointed Amicus Curiae.

4. We have heard learned counsel for the parties, the learned amicus and
the learned Additional Solicitor General.

5. During the hearing reference has been made to the decisions of this
Court dealing with the issue and reference has also been made to Section
436A Cr.P.C. which provides for grant of bail when a person has undergone
detention upto one half of maximum prescribed imprisonment. It was
submitted that the said provision applies only during trial and the first
case is not covered by the said provision as the appellant therein has not
undergone the requisite detention period to claim bail under the said
provision.

6. With regard to grant of bail, pending appeal, reference has been made
to decisions of this Court in Akhtari Bi (Smt.) v. State of M.P.[1] and
Surinder Singh alias Shingara Singh v. State of Punjab[2] which
provides that if the appeal is not heard for 5 years, excluding the delay
for which the accused himself is responsible, bail should normally be
granted. The second case is not covered by the said judgment as the
pending appeal in the High Court is of the year 2013.

7. In Abdul Rehman Antulay and ors. v. R.S. Nayak and anr.[3] while
holding that speedy trial at all stages is part of right under Article 21,
it was held that if there is violation of right of speedy trial, instead of
quashing the proceedings, a higher court can direct conclusion of
proceedings in a fixed time. In the light of these principles, the present
appeals can be disposed of by directing that the pending trial in the first
case and the appeal in the second case may be disposed of within six
months. We order accordingly and dispose of the matters to the extent of
grievance in the two cases.
II
8. However, since the issue is arising frequently, inspite of earlier
directions of this Court, further consideration has become necessary in the
interest of administration of justice and for enforcement of fundamental
right under Article 21.
9. As already noticed, speedy trial is a part of reasonable, fair and
just procedure guaranteed under Article 21. This constitutional right
cannot be denied even on the plea of non-availability of financial
resources. The court is entitled to issue directions to augment and
strengthen investigating machinery, setting-up of new courts, building new
court houses, providing more staff and equipment to the courts, appointment
of additional judges and other measures as are necessary for speedy
trial[4].
10. Directions given by this Court in Hussainara Khatoon (supra) to this
effect were left to be implemented by the High Courts[5] are as follows:
“2. Since this Court has already laid down the guidelines by orders passed
from time to time in this writ petition and in subsequent orders passed in
different cases since then, we do not consider it necessary to restate the
guidelines periodically because the enforcement of the guidelines by the
subordinate courts functioning in different States should now be the
responsibility of the different High Courts to which they are subordinate.
General orders for release of undertrials without reference to specific
fact-situations in different cases may prove to be hazardous. While there
can be no doubt that undertrial prisoners should not languish in jails on
account of refusal to enlarge them on bail for want of their capacity to
furnish bail with monetary obligations, these are matters which have to be
dealt with on case-to-case basis keeping in mind the guidelines laid down
by this Court in the orders passed in this writ petition and in subsequent
cases from time to time. Sympathy for the undertrials who are in jail for
long terms on account of the pendency of cases has to be balanced having
regard to the impact of crime, more particularly, serious crime, on society
and these considerations have to be weighed having regard to the fact-
situations in pending cases. While there can be no doubt that trials of
those accused of crimes should be disposed of as early as possible, general
orders in regard to judge strength of subordinate judiciary in each State
must be attended to, and its functioning overseen, by the High Court of the
State concerned. We share the sympathetic concern of the learned counsel
for the petitioners that undertrials should not languish in jails for long
spells merely on account of their inability to meet monetary obligations.
We are, however, of the view that such monitoring can be done more
effectively by the High Courts since it would be easy for that Court to
collect and collate the statistical information in that behalf, apply the
broad guidelines already issued and deal with the situation as it emerges
from the status reports presented to it. The role of the High Court is to
ensure that the guidelines issued by this Court are implemented in letter
and spirit. We think it would suffice if we request the Chief Justices of
the High Courts to undertake a review of such cases in their States and
give appropriate directions where needed to ensure proper and effective
implementation of the guidelines. Instead of repeating the general
directions already issued, it would be sufficient to remind the High Courts
to ensure expeditious disposal of cases. …”
(emphasis added)

11. Deprivation of personal liberty without ensuring speedy trial is
not consistent with Article 21. While deprivation of personal liberty for
some period may not be avoidable, period of deprivation pending
trial/appeal cannot be unduly long. This Court has held that while a
person in custody for a grave offence may not be released if trial is
delayed, trial has to be expedited or bail has to be granted in such
cases[6].

12. Timely delivery of justice is a part of human rights. Denial of
speedy justice is a threat to public confidence in the administration of
justice. Directions of this Court in Noor Mohammed v. Jethanand and
anr.[7] are as follows:
“ 34. … … …Therefore, we request the learned Chief Justice of the High
Court of Rajasthan as well as the other learned Chief Justices to conceive
and adopt a mechanism, regard being had to the priority of cases, to avoid
such inordinate delays in matters which can really be dealt with in an
expeditious manner. Putting a step forward is a step towards the
destination. A sensible individual inspiration and a committed collective
endeavour would indubitably help in this regard. Neither less, nor more.”

13. In Thana Singh v. Central Bureau of Narcotics[8] this Court directed
that liberal adjournments must be avoided and witnesses once produced must
be examined on consecutive dates. Directions were also issued for setting
up of sufficient laboratories, for disposal of seized narcotics drugs and
for providing charge-sheets and other documents in electronic form in
addition to hard copies of same to avoid delay.

14. In Akhtari Bi (supra) this Court observed as under:
“5. … … …it is incumbent upon the High Courts to find ways and means by
taking steps to ensure the disposal of criminal appeals, particularly such
appeals where the accused are in jails, that the matters are disposed of
within the specified period not exceeding 5 years in any case. Regular
Benches to deal with the criminal cases can be set up where such appeals be
listed for final disposal. We feel that if an appeal is not disposed of
within the aforesaid period of 5 years, for no fault of the convicts, such
convicts may be released on bail on such conditions as may be deemed fit
and proper by the court. In computing the period of 5 years, the delay for
any period, which is requisite in preparation of the record and the delay
attributable to the convict or his counsel can be deducted. There may be
cases where even after the lapse of 5 years the convicts may, under the
special circumstances of the case, be held not entitled to bail pending the
disposal of the appeals filed by them. We request the Chief Justices of the
High Courts, where the criminal cases are pending for more than 5 years to
take immediate effective steps for their disposal by constituting regular
and special Benches for that purpose.”

15. Again in Imtiyaz Ahmad v. State of Uttar Pradesh and Ors.[9] it
was observed that long delay has the effect of blatant violation of rule of
law and adverse impact on access to justice which is a fundamental right.
Denial of this right undermines public confidence in justice delivery.
These observations have been reiterated in recent Constitution Bench
judgment in Anita Kushwaha etc. etc. v. Pushap Sudan etc. etc.[10]. In
the said judgment it was noticed that providing effective adjudicatory
mechanism, reasonably accessible and speedy, was part of access to justice.

16. In Bhim Singh V. Union of India[11], it was observed that central
government must take steps in consultation with the state governments in
fast tracking all types of criminal cases so that criminal justice is
delivered timely and expeditiously. In the same case, in a further
order[12] it was noted that more than 50% of the prisoners in various jails
are undertrial prisoners. In spite of incorporation of Section 436A in
Cr.PC. undertrial prisoners continue to remain in prisons in violation of
the mandate of the said section. Accordingly, this court directed
jurisdictional Magistrate/Chief Judicial Magistrate/Session judge to hold
one sitting in a week in each jail/prison for 2 months for effective
implementation of Section 436A. Again in Re: Inhuman Conditions in 1382
Prisons[13] reference was made to the advisory issued by Ministry of Home
Affairs to all States for implementation of Section 436A, Cr.PC.
stipulating constitution of a review committee in every district under the
chairmanship of the District Judge. It was noted that 67% of the prisoners
in the jails were undertrials prisoners.
III

17. In Imtiyaz Ahmad (supra) this Court noted that serious cases
involving murder, rape, kidnapping and dacoiting were pending for long
period. In some cases proceedings are delayed on account of stay orders.
Out of the said cases, in 9 per cent cases stay was operating for more than
20 years, in 21 per cent stay was operating for more than 10 years. Having
regard to the situation noticed in the judgment, this Court directed the
High Courts to dispose of cases in which proceedings were stayed preferably
within six months from the date of stay orders. The Law Commission was
directed to make recommendation for measures to be adopted by way of
creation of additional courts and the like matters. The Law Commission made
its recommendations in its 245th Report which was examined by the National
Court Management Systems Committee (NCMSC) to determine additional number
of courts required. The said report was thereafter considered by this
Court in judgment dated 2nd January, 2017 in Imtiyaz Ahmad v. State of
U.P. & Ors. [Criminal Appeal No. 254-262 of 2012]. After noticing the stand
of the Ministry of Law and Justice on the subject of creation of additional
posts, this Court also noted the recommendations of the 14th Finance
Commission whereby additional fiscal allocation was provided. In that
context, the Prime Minister’s letter to the Chief Ministers calling upon
them to allocate funds in the State Budgets was also referred to. Further
follow up letter of the Law Minister and Resolution of Chief Justices’
Conference held in April, 2016 were also referred to. Thereafter, this
Court issued directions for computing the required judge strength of the
district judiciary and also directed the State Governments to take steps
for enhancing the judge strength accordingly. The directions are as
follows:
“22. Having regard to the above background, we now proceed to formulate our
directions in the following terms :

i) Until NCMSC formulates a scientific method for determining the basis for
computing the required judge strength of the district judiciary, the judge
strength shall be computed for each state, in accordance with the interim
approach indicated in the note submitted by the Chairperson, NCMSC;

ii) NCMSC is requested to endeavour the submission of its final report by
31 December 2017;

iii) A copy of the interim report submitted by the Chairperson, NCMSC shall
be forwarded by the Union Ministry of Law and Justice to the Chief Justices
of all the High Courts and Chief Secretaries of all states within one month
so as to enable them to take follow-up action to determine the required
judge strength of the district judiciary based on the NCMSC interim report,
subject to what has been stated in this judgment;

iv) The state governments shall take up with the High Courts concerned the
task of implementing the interim report of the Chairperson, NCMSC (subject
to what has been observed above) and take necessary decisions within a
period of three months from today for enhancing the required judge strength
of each state judiciary accordingly;
v) The state governments shall cooperate in all respects with the High
Courts in terms of the resolutions passed in the joint conference of Chief
Justices and Chief Ministers in April 2016 with a view to ensuring
expeditious disbursal of funds to the state judiciaries in terms of the
devolution made under the auspices of the Fourteenth Finance Commission;

vi) The High Courts shall take up the issue of creating additional
infrastructure required for meeting the existing sanctioned strength of
their state judiciaries and the enhanced strength in terms of the interim
recommendation of NCMSC;

vii) The final report submitted by NCMSC may be placed for consideration
before the Conference of Chief Justices. The directions in (i) above shall
then be subject to the ultimate decision that is taken on receipt of the
final report; and

viii) A copy of this order shall be made available to the Registrars
General of each High Court and to all Chief Secretaries of the States for
appropriate action.”

The said matter now stands adjourned to July, 2017.
18. During Joint Conference of Chief Ministers of States and Chief
Justices of High Courts held in April, 2015, a decision was taken that all
High Courts will establish Arrears Committees and prepare a plan to clear
backlog of cases pending for more than 5 years. Such Committees have
reportedly been established. In Chief Justices’ Conference held in April,
2016 under Item No. 8 inter alia the following resolution was passed:

“ [8] DELAY AND ARREARS COMMITTEE:

xxx xxx xxx

Resolved that

(i) all High Courts shall assign top most priority for disposal of cases
which are pending for more than five years;

(ii) High Courts where arrears of cases pending for more than five years
are concentrated shall facilitate their disposal in mission mode;

(iii) High Courts shall progressively thereafter set a target of disposing
of cases pending for more than four years;

(iv) while prioritizing the disposal of cases pending in the district
courts for more than five years, additional incentives for the Judges of
the district judiciary be considered where feasible; and

(v) efforts be made for strengthening case-flow management rules.”

19. The position of five year old cases continues to be alarming in many
States. Total number of more than five year old cases in subordinate
courts at the end of the year 2015 is said to be 43,19,693 as noted in para
9 of the judgment of this Court dated 2nd January, 2017 in Imtiyaz Ahmad
v. State of U.P. & Ors. [Criminal Appeal No. 254-262 of 2012]. Number of
undertrials detained for more than five years at the end of the year 2015
is said to be 3599.[14] Number of appeals pending in High Courts where
detention period is beyond five years may be still higher.

20. It appears that annual action plans have been prepared by some High
Courts with reference to the subject of discussion in the Chief Justices’
Conference. Reference to action plan of the Punjab and Haryana High Court
for the year 2011-2012[15] shows that undertrials who were in custody for
more than two years as on 1st April, 2011 in Session Trial cases and those
in custody for more than six months in Magisterial Trial cases were
targeted for disposal, apart from five year old cases and other priority
cases. Similar targets were fixed for subsequent years and result
reflected in the pendency figures shows improvement in disposal of five
year old cases and cases of undertrials in custody beyond two years in
Session Trial cases and six months in Magisterial Trial cases in
subordinate courts in the jurisdiction of Punjab & Haryana High Court.[16]
Reportedly, success is on account of monitoring inter alia by holding
quarterly meetings of District Judges with Senior High Court Judges as well
as constant monitoring by concerned Administrative Judges[17]. Presumably,
there is similar improvement as a result of planned efforts elsewhere. In
view of successful implementation of plan to dispose of cases of
undertrials in custody in two years in Session Trial cases and six months
in Magisterial trials, we do not see any reason why this target should not
be set uniformly. The same need to be regularly monitored and reflected
in performance appraisals of concerned judicial officers. Handicaps
pointed out can be tackled at appropriate level. Accordingly, we are of
the view that plan of each High Court should include achieving the said
target and not the target of five years for undertrials in custody. Of
course, if such cases can be disposed of earlier, it may be still better.
Plans can be revised as per local conditions. We also feel delay in
disposal of bail applications and cases where trials are stayed are
priority areas for monitoring. Timeline for disposal of bail applications
ought to be fixed by the High Court. As far as possible, bail applications
in subordinate courts should ordinarily be decided within one week and in
High Courts within two-three weeks. Posting of suitable officers in key
leadership positions of Session Judges and Chief Judicial Magistrates may
perhaps go a long way in dealing with the situation. Non performers/dead
word must be weeded out as per rules, as public interest is above
individual interest.
21. Another suggestion which cropped up during the hearing of the present
case relates to remedying the situation of delay in trials on account of
absconding of one or the other accused during the trial. In this regard
our attention has been drawn to an amendment in the Code of Criminal
Procedure, 1898 of Bangladesh by way of adding Section 339B to the
following effect:
“Trial in absentia
[339B. (1) Where after the compliance with the requirements of section 87
and section 88, the Court has reason to believe that an accused person has
absconded or concealing himself so that he cannot be arrested and produced
for trial and there is no immediate prospect of arresting him, the Court
taking cognizance of the offence complained of shall, by order published in
at least two national daily Bengali Newspapers having wide circulation],

direct such person to appear before it within such period as may be
specified in the order, and if such person fails to comply with such
direction, he shall be tried in his absence.

(2) Where in a case after the production or appearance of an accused before
the Court or his release on bail, the accused person absconds or fails to
appear, the procedure as laid down in sub-section (1) shall not apply and
the Court competent to try such person for the offence complained of shall,
recording its decision so to do, try such person in his absence.”
(emphasis added)
22. It is for the concerned authority to take cognizance of the above
amendment which may considerably reduce delay in cases where one or the
other accused absconds during the trial.

23. Learned Amicus Curiae as well as learned Additional Solicitor General
have suggested that monitoring by all High Courts is necessary to ensure
minimizing adjournments at all levels, taking steps to remove obstacles in
speedy trials including setting up of adequate number of laboratories, use
of Video Conferencing to examine scientific experts or otherwise,
appointment of public prosecutors, compliance of Section 207/208 Cr.P.C. by
scanning/digitizing police reports, introduce system for electronic service
of summons (wherever necessary), issuing timelines for disposal of bail
matters at all levels. It has also been suggested that suitable amendments
ought to be made in the Code of Criminal Procedure for permitting tendering
evidence of medical witnesses on the pattern of Section 293 Cr.P.C. While
we have discussed some of the issues germane to the subject of speedy
trials, in view of directions already issued by this Court, issuance of
further directions and monitoring of directions already issued is left to
the concerned High Courts.

24. In view of the above, we do consider it necessary to direct that
steps be taken forthwith by all concerned to effectuate the mandate of the
fundamental right under Article 21 especially with regard to persons in
custody in view of the directions already issued by this Court. It is
desirable that each High Court frames its annual action plan fixing a
tentative time limit for subordinate courts for deciding criminal trials of
persons in custody and other long pending cases and monitors implementation
of such timelines periodically. This may perhaps obviate the need for
seeking directions in individual cases from this Court. We also feel that
it is desirable for Chief Justices of all the High Courts to take other
steps consistent with the directions already issued by this Court for
expeditious disposal of criminal appeals pending in High Courts where
persons are in custody by fixing priority having regard to the time period
of detention. We also reiterate the directions for setting up of adequate
number of forensic laboratories at all levels. Specification of some of
these issues is in addition to implementation of other steps including
timely investigation, timely serving of summons on witnesses and accused,
timely filing of charge-sheets and furnishing of copies of charge-sheets to
the accused. These aspects need constant monitoring by High Courts.
25. One other aspect pointed out is the obstruction of Court proceedings
by uncalled for strikes/abstaining of work by lawyers or frequent
suspension of court work after condolence references. In view of judgment
of this Court in Ex. Captain Harish Uppal versus Union of India[18], such
suspension of work or strikes are clearly illegal and it is high time that
the legal fraternity realizes its duty to the society which is the
foremost. Condolence references can be once in while periodically say once
in two/three months and not frequently. Hardship faced by witnesses if
their evidence is not recorded on the day they are summoned or impact of
delay on undertrials in custody on account of such avoidable interruptions
of court proceedings is a matter of concern for any responsible body of
professionals and they must take appropriate steps. In any case, this
needs attention of all concerned authorities – the Central Government/State
Governments/Bar Councils/Bar Associations as well as the High Courts and
ways and means ought to be found out to tackle this menace. Consistent
with the above judgment, the High Courts must monitor this aspect strictly
and take stringent measures as may be required in the interests of
administration of justice.
26. Judicial service as well as legal service are not like any other
services. They are missions for serving the society. The mission is not
achieved if the litigant who is waiting in the queue does not get his turn
for a long time. Chief Justices and Chief Ministers have resolved that all
cases must be disposed of within five years which by any standard is quite
a long time for a case to be decided in the first court. Decision of cases
of undertrials in custody is one of the priority areas. There are
obstructions at every level in enforcement of right of speedy trial –
vested interests or unscrupulous elements try to delay the proceedings.
Lack of infrastructure is another handicap. Inspite of all odds,
determined efforts are required at every level for success of the mission.
Ways and means have to be found out by constant thinking and monitoring.
Presiding Officer of a court cannot rest in the state of helplessness. This
is the constitutional responsibility of the State to provide necessary
infrastructure and of the High Courts to monitor the functioning of
subordinate courts to ensure timely disposal of cases. The first step in
this direction is preparation of an appropriate action plan at the level of
the High Court and thereafter at the level of each and every individual
judicial officer. Implementation of the action plan will require serious
efforts and constant monitoring.
27. To sum up:
(i) The High Courts may issue directions to subordinate courts that –
(a) Bail applications be disposed of normally within one week;
(b) Magisterial trials, where accused are in custody, be normally
concluded within six months and sessions trials where accused are in
custody be normally concluded within two years;
(c) Efforts be made to dispose of all cases which are five years old by
the end of the year;
(d) As a supplement to Section 436A, but consistent with the spirit
thereof, if an undertrial has completed period of custody in excess of the
sentence likely to be awarded if conviction is recorded such undertrial
must be released on personal bond. Such an assessment must be made by the
concerned trial courts from time to time;
(e) The above timelines may be the touchstone for assessment of judicial
performance in annual confidential reports.
(emphasis added)
(ii) The High Courts are requested to ensure that bail applications filed
before them are decided as far as possible within one month and criminal
appeals where accused are in custody for more than five years are concluded
at the earliest;
(iii) The High Courts may prepare, issue and monitor appropriate
action plans for the subordinate courts;
(iv) The High Courts may monitor steps for speedy investigation and trials
on administrative and judicial side from time to time;
(v) The High Courts may take such stringent measures as may be found
necessary in the light of judgment of this Court in Ex. Captain Harish
Uppal (supra) .
28. Accordingly, we request the Chief Justices of all High Courts to
forthwith take appropriate steps consistent with the directions of this
Court in Hussain Ara Khatoon (1995) 5 SCC 326) (supra), Akhtari Bi (Smt.)
(supra), Noor Mohammed (supra), Thana Singh (supra), S.C. Legal Aid
Committee (supra), Imtiaz Ahmad (supra), Ex. Captain Harish Uppal (supra)
and Resolution of Chief Justices’ Conference and observations hereinabove
and to have appropriate monitoring mechanism in place on the administrative
side as well as on the judicial side for speeding up disposal of cases of
undertrials pending in subordinate courts and appeals pending in the High
Courts.
We place on record our appreciation for the valuable assistance
rendered by Mr. Atmaram N.S. Nadkarni, learned Additional Solicitor General
and Mr. Siddharth Luthra, learned Senior Advocate.
A copy of this order be sent to all the courts.

…………………..…………J.
[Adarsh Kumar Goel]

…....……………………..J.
[ Uday Umesh Lalit ]
NEW DELHI;
MARCH 9, 2017.
-----------------------
[1] [2] (2001) 4 SCC 355
[3] [4] (2005) 7 SCC 387
[5] [6] (1992) 1 SCC 225 – Para 86
[7] [8] Hussainara Khatoon and ors (IV) v. Home Secreta?

We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:- i) Availability of video conferencing facility. ii) Availability of legal aid service. iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC. iv) E-mail address/phone number, if any, at which litigant from out station may communicate. 19. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9th January, 2017. However, in the present case since the matter is pending in this Court for about three years, we are satisfied that the prayer for transfer may be allowed. Accordingly, we direct that proceedings in Case No.179A/2013 under Section 13 of the Act titled “Harish Nagam vs. Krishna Veni Nagam” pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation. It will be open to the transferee court to conduct the proceedings or record evidence of the witnesses who are unable to appear in court by way of video conferencing. Records shall be sent by court where proceedings are pending to the transferee court forthwith.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL original JURISDICTION

Transfer petition (CIVIL) NO. 1912 OF 2014

Krishna Veni Nagam …PETITIONER

VERSUS

Harish nagam ...RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J

1. This transfer petition has been filed for transfer of Case
No.179A/2013 u/s 13 of the Hindu Marriage Act, 1955 (the Act) titled
“Harish Nagam vs. Krishna Veni Nagam” pending on the file of II Presiding
Judge, Family Court, Jabalpur, Madhya Pradesh to the Family Court
Hyderabad, Andhra Pradesh.
2. Case of the petitioner-wife is that she was married to the respondent-
husband in the year 2008 at Kukatpally, Hyderabad. She was blessed with a
girl child in 2009. While living in her in-law’s house at Jabalpur, she
was ill-treated. She was subjected to mental and physical torture. She
suffered injury on her spinal cord. She left the matrimonial home in 2012.

3. The respondent-husband filed application for restitution of conjugal
rights which was later on got dismissed as withdrawn. Thereafter, a
divorce petition has been filed at Jabalpur while the petitioner has filed
a domestic violence case at Hyderabad. Since the petitioner-wife, along
with her minor daughter, is living with her parents, she cannot undertake
long journey and contest the proceedings at Jabalpur by neglecting her
minor child. She also apprehends threat to her security in attending
proceedings at Jabalpur.
4. On 7th January, 2015, notice was issued and stay of proceedings was
granted. The matter has been pending in this Court for more than two years.

5. On 9th January, 2017 when the matter came-up for hearing, the
following order was passed:
“This petition is filed under Section 25 of the Code of Civil Procedure
seeking transfer of proceedings initiated by the respondent under Section
13 of the Hindu Marriage Act at Jabalpur. According to the petitioner, who
is the wife of the respondent, she will face acute hardship in contesting
the proceedings at Jabalpur as she is living at Hyderabad. The marriage
took place at Hyderabad. The petitioner has to look after her minor
daughter who is living with her.
Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of the
present nature could be filed at the place where the marriage is
solemnized or the respondent, at the time of the presentation of the
petition, resides or where the parties to the marriage last resided
together or where the wife is residing on the date of the presentation of
the petition, in case she is the petitioner or in certain situations (as
stipulated in clause iv) where the petitioner resides.
This Court is flooded with petitions of this nature and having regard to
the convenience of the wife transfer is normally allowed. However, in the
process the litigants have to travel to this Court and spend on litigation.
Question is whether this can be avoided?
We are of the view that if orders are to be passed in every individual
petition, this causes great hardship to the litigants who have to come to
this Court. Moreover in this process, the matrimonial matters which are
required to be dealt with expeditiously are delayed.
In these circumstances, we are prima facie of the view that we need to
consider whether we could pass a general order to the effect that in case
where husband files matrimonial proceedings at place where wife does not
reside, the court concerned should entertain such petition only on the
condition that the husband makes appropriate deposit to bear the expenses
of the wife as may be determined by the Court. The Court may also pass
orders from time to time for further deposit to ensure that the wife is not
handicapped to defend the proceedings. In other cases, the husband may take
proceedings before the Court in whose jurisdiction the wife resides which
may lessen inconvenience to the parties and avoid delay. Any other option
to remedy the situation can also be considered.
However, before passing a final order, we consider it necessary to hear
learned Attorney General who may depute some law officer to assist this
Court.
List the matter on 31st January, 2017.
We also request Mr. C.A. Sundaram, Senior Advocate to assist this Court as
amicus curiae. A set of papers may be furnished to the amicus.”
(Emphasis added)

6. Thus, the question is whether an order can be passed so as to provide
a better alternative to each individual being required to move this Court.

7. We have already noted that large number of transfer petitions of the
present nature are being filed in this Court and are being mechanically
allowed. Similar observation was made by this Court more than 10 years ago
in Anindita Das v. Srijit Das[1] “…On an average at least 10 to 15
transfer petitions are on board of each court on each admission day.” It
has also been observed in a number of cases that in absence of any male
member being available to accompany the wife who is party to matrimonial
proceedings to a different place, it may render it “expedient for ends of
justice” to transfer proceedings[2].

8. Of course in some cases, it was observed that instead of proceedings
being transferred, the husband should pay travel, lodging and boarding
expenses of the wife and/or person accompanying for each hearing[3]. This
trend has also been followed in other matrimonial disputes, including
guardianship dispute, etc.[4]

9. Spirit behind the orders of this Court in allowing the transfer
petitions filed by wives being almost mechanically allowing is that they
are not denied justice on account of their inability to participate in
proceedings instituted at a different place on account of difficulty either
on account of financial or physical hardship. Our Constitutional scheme
provides for guaranteeing equal access to justice[5], power of the State to
make special provisions for women and children[6] and duty to uphold the
dignity of women[7]. Various steps have been taken in this direction[8].

10. As noted in the Order dated 9th January, 2017 quoted above, Section
19 of the Act permits proceedings to be filed not only at a place where the
wife resides but also at place where marriage is solemnized or the place
where the parties last resided together. It is mostly in the said
situations that the wife has hardship in contesting proceedings. At the
same time, under the law the husband is legally entitled to file
proceedings at such places. Territorial jurisdiction of court is
statutorily laid down in C.P.C. or other concerned statutes.

11. Accordingly, we have heard Shri C.A. Sundaram, learned senior counsel
as amicus curiae. Learned amicus has suggested that Section 19 of the Act
should be interpreted to mean that the jurisdiction at the place other than
where wife resides being available only at the option of the wife or that
such jurisdiction will be available in exceptional cases where the wife is
employed and the husband is unemployed or where the husband suffers from
physical or other handicap or is looking after the minor child. Even
though we are unable to give such interpretation in the face of plain
language of statute to the contrary and it is for the legislature to make
such suitable amendment as may be considered necessary, we are certainly
inclined to issue directions in the interest of justice consistent with the
statute.

12. Mr. Nadkarni, learned Addl. Solicitor General has suggested that it
will be appropriate to give some directions to meet the situation. He
submitted that paramount consideration in dealing with the issue ought to
be the interest of justice and not mere convenience of the parties. Thus,
where husband files a petition at a place away from the residence of the
wife, the husband can be required to bear travel and incidental expenses of
the wife, if it is so considered appropriate in the interest of justice.
At the same time, if the husband has genuine difficulty in making the
deposit, proceedings can be conducted by video conferencing. At least one
court room in every district court ought to be equipped with the video
conferencing facility. The interest of the minor child has also to be kept
in mind along with the interest of the senior citizens whose interest may
be affected by one of the parties being required to undertake trips to
distant places to face the proceedings. Protracted litigation ought to be
avoided by better management and coordination so that number of
adjournments can be reduced.

13. We have considered the above suggestions. In this respect, we may
also refer to the doctrine of forum non conveniens which can be applied in
matrimonial proceedings for advancing interest of justice. Under the said
doctrine, the court exercises its inherent jurisdiction to stay proceedings
at a forum which is considered not to be convenient and there is any other
forum which is considered to be more convenient for the interest of all the
parties at the ends of justice. In Modi Entertainment Network and anr.
v. W.S.G. Cricket Pte. Ltd.[9] this Court observed:
“19. In Spiliada Maritime [10]case the House of Lords laid down the
following principle:
“The fundamental principle applicable to both the stay of English
proceedings on the ground that some other forum was the appropriate forum
and also the grant of leave to serve proceedings out of the jurisdiction
was that the court would choose that forum in which the case could be tried
more suitably for the interest of all the parties and for the ends of
justice.”
The criteria to determine which was a more appropriate forum, for the
purpose of ordering stay of the suit, the court would look for that forum
with which the action had the most real and substantial connection in terms
of convenience or expense, availability of witnesses, the law governing the
relevant transaction and the places where the parties resided or carried on
business. If the court concluded that there was no other available forum
which was more appropriate than the English court, it would normally refuse
a stay. If, however, the court concluded that there was another forum
which was prima facie more appropriate, the court would normally grant a
stay unless there were circumstances militating against a stay. It was
noted that as the dispute concerning the contract in which the proper law
was English law, it meant that England was the appropriate forum in which
the case could be more suitably tried.”

Though these observations have been made in the context of granting
anti suit injunction, the principle can be followed in regulating the
exercise of jurisdiction of the court where proceedings are instituted. In
a civil proceeding, the plaintiff is the dominus litis but if more than one
court has jurisdiction, court can determine which is the convenient forum
and lay down conditions in the interest of justice subject to which its
jurisdiction may be availed[11].

14. One cannot ignore the problem faced by a husband if proceedings are
transferred on account of genuine difficulties faced by the wife. The
husband may find it difficult to contest proceedings at a place which is
convenient to the wife. Thus, transfer is not always a solution acceptable
to both the parties. It may be appropriate that available technology of
video conferencing is used where both the parties have equal difficulty and
there is no place which is convenient to both the parties. We understand
that in every district in the country video conferencing is now available.
In any case, wherever such facility is available, it ought to be fully
utilized and all the High Courts ought to issue appropriate administrative
instructions to regulate the use of video conferencing for certain category
of cases. Matrimonial cases where one of the parties resides outside
court’s jurisdiction is one of such categories. Wherever one or both the
parties make a request for use of video conference, proceedings may be
conducted on video conferencing, obviating the needs of the party to appear
in person. In several cases, this Court has directed recording of evidence
by video conferencing[12].

15. The other difficulty faced by the parties living beyond the local
jurisdiction of the court is ignorance about availability of suitable legal
services. Legal Aid Committee of every district ought to make available
selected panel of advocates whose discipline and quality can be suitably
regulated and who are ready to provide legal aid at a specified fee. Such
panels ought to be notified on the websites of the District Legal Services
Authorities/State Legal Services Authorities/National Legal Services
Authority. This may enhance access to justice consistent with Article 39A
of the Constitution.

16. The advancement of technology ought to be utilized also for service
on parties or receiving communication from the parties. Every district
court must have at least one e-mail ID. Administrative instructions for
directions can be issued to permit the litigants to access the court,
especially when litigant is located outside the local jurisdiction of the
Court. A designated officer/manager of a district court may suitably
respond to such e-mail in the manner permitted as per the administrative
instructions. Similarly, a manager/ information officer in every district
court may be accessible on a notified telephone during notified hours as
per the instructions. These steps may, to some extent, take care of the
problems of the litigants. These suggestions may need attention of the
High Courts.

17. We are thus of the view that it is necessary to issue certain
directions which may provide alternative to seeking transfer of proceedings
on account of inability of a party to contest proceedings at a place away
from their ordinary residence on the ground that if proceedings are not
transferred it will result in denial of justice.

18. We, therefore, direct that in matrimonial or custody matters or in
proceedings between parties to a marriage or arising out of disputes
between parties to a marriage, wherever the defendants/respondents are
located outside the jurisdiction of the court, the court where proceedings
are instituted, may examine whether it is in the interest of justice to
incorporate any safeguards for ensuring that summoning of
defendant/respondent does not result in denial of justice. Order
incorporating such safeguards may be sent along with the summons. The
safeguards can be:-
i) Availability of video conferencing facility.
ii) Availability of legal aid service.
iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV
CPC.
iv) E-mail address/phone number, if any, at which litigant from out
station may communicate.

19. We hope the above arrangement may, to an extent, reduce hardship to
the litigants as noted above in the Order of this Court dated 9th January,
2017. However, in the present case since the matter is pending in this
Court for about three years, we are satisfied that the prayer for transfer
may be allowed. Accordingly, we direct that proceedings in Case
No.179A/2013 under Section 13 of the Act titled “Harish Nagam vs. Krishna
Veni Nagam” pending on the file of II Presiding Judge, Family Court,
Jabalpur, Madhya Pradesh shall stand transferred to the Family Court,
Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee
court may explore the possibility of an amicable settlement through
mediation. It will be open to the transferee court to conduct the
proceedings or record evidence of the witnesses who are unable to appear in
court by way of video conferencing. Records shall be sent by court where
proceedings are pending to the transferee court forthwith.

20. The Registry to transmit a copy of this order to the courts
concerned. A copy of this order be sent to all the High Courts for
appropriate action.

21. We place on record our appreciation for the valuable assistance
rendered by Mr. Atmaram N.S. Nadkarni, learned Additional Solicitor General
and Mr. C.A. Sundaram, learned Senior Advocate.
21. The transfer petition is disposed of accordingly.

…………..…………………………….J.
[ADARSH KUMAR GOEL]

.….……………………..……………..J.
[UDAY UMESH LALIT]

NEW DELHI;
MARCH 9, 2017.
-----------------------
[1] [2] (2006)9 SCC 197
[3] Mona Aresh Goel v. Aresh Satya Goel (2000) 9 SCC255; Lalita A.
Ranga v. Ajay Champalal Ranga (2000) 9 SCC 355; Deepa v, Anil Panicker
(2000) 9 SCC 441; Archana Rastogi v. Rakesh Rastogi (2000)10 SCC 350;
Leena Mukherjee v. Rabi Shankar Mukherjee (2002) 10 SCC 480; Neelam
Bhatia v. Satbir Singh Bhatia (2004) 13 SCC 436; Soma Choudhury v.
Gourab Choudhaury (2004) 13 SCC 462; Rajesh Rani v. Tej Pal (2007) 15 SCC
597; Vandana Sharma v. Rakesh Kumar Sharma (2008)11 SCC 768; and Anju
Ohri v. Varinder Ohri (2007) 15 SCC 556.
[4] [5] Premlata Singh v. Rita Singh (2005) 12 SCC 277
[6] Gana Saraswathi v. H. Raghu Prasad (2000)10 SCC 277
[7] [8] Article 39A of the Constitution of India, 1950.
[9] [10] Article 15(3) of the Constitution of India, 1950.
[11] Article 51-A(e) of the Constitution of India, 1950.

[12] [13]. In Articles 243-D and 243-T of the Constitution, provision has
been made for reservation for women in Panchayats and Municipalities by
73rd and 74th Amendments. Need for affirmative action consistent with the
Article 15(3) of the Constitution has led to several measures being adopted
by the legislature, executive as well as the judiciary to advance gender
justice. The Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) underlines the awareness of the international
commitments on the subject which has inspired several judgments of this
Court [Vishaka v. State of Rajasthan (1997) 6 SCC 241; Arun Kumar Agrawal
v. National Insurance Co. Ltd. (2010) 9 SCC 218; Charu Khurana v. Union
of India (2015)1 SCC 192; Prakash v. Phulavati (2016)2 SCC 36; Danial
Latifi v. Union of India (2001) 7 SCC 740; Voluntary Health Assn. of
Punjab v. Union of India (2013) 4 SCC 1 and; Mackinnon Mackenzie & Co.
Ltd. v. Audrey D’Costa (1987) 2 SCC 469. It was observed in Voluntary
Health Assn. as under:

“20. It would not be an exaggeration to say that a society that does
not respect its women cannot be treated to be civilised. In the first part
of the last century Swami Vivekanand had said:

‘Just as a bird could not fly with one wing only, a nation would not
march forward if the women are left behind.’”

[14] [15] (2003)4 SCC 341
[16] [17] Spiliada Maritime Corpn. V. Cansulex Ltd. (1986)3 All ER 843
[18] [19] Kusum Ingots & Alloys Ltd. v. Union of India and anr. (2004)
6 SCC 254 para 30
[20] [21] State of Maharashtra etc. v. Dr. Praful B. Desai etc. (2003) 4
SCC 601; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and
anr. (2005) 3 SCC 284; Budhadev Karmaskar (4) v. State of West Bengal
(2011) 10 SCC 283; Malthesh Gudda Pooja v. State of Karnataka and ors.
(2011) 15 SCC 330

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Sunday, March 19, 2017