Unilateral appointment of sole Arbitrator — Ineligibility — Jurisdiction — Arbitration award passed by sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager — Such appointing authority having direct interest in dispute falls within ineligibility under Seventh Schedule — Held, a person who is ineligible to act as Arbitrator is equally ineligible to nominate another Arbitrator — Unilateral appointment of sole Arbitrator is invalid and violative of Article 14 — Arbitrator lacked inherent jurisdiction to adjudicate dispute — Award is non est and without jurisdiction. (Paras 31–34, 43)

 

Arbitration and Conciliation Act, 1996 — Section 12(5) r/w Seventh Schedule — Unilateral appointment of sole Arbitrator — Ineligibility — Jurisdiction —

Arbitration award passed by sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager — Such appointing authority having direct interest in dispute falls within ineligibility under Seventh Schedule — Held, a person who is ineligible to act as Arbitrator is equally ineligible to nominate another Arbitrator — Unilateral appointment of sole Arbitrator is invalid and violative of Article 14 — Arbitrator lacked inherent jurisdiction to adjudicate dispute — Award is non est and without jurisdiction.

(Paras 31–34, 43)

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Arbitration — Award — Executability — Lack of inherent jurisdiction —

Held, where Arbitrator lacks inherent jurisdiction due to statutory ineligibility under Section 12(5), the award itself is void and incapable of execution — Execution proceedings based on such award are unsustainable.

(Paras 32–34, 43)

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Arbitration — Section 4 — Waiver — Scope — Distinguished from Section 12(5) —

Plea that petitioner waived objection by not participating in arbitration — Held, waiver under Section 4 applies only to procedural irregularities — Ineligibility under Section 12(5) is a matter of law and cannot be waived except by express agreement in writing after disputes arise — Absence of such express agreement → no waiver — Section 4 has no application.

(Paras 36–42)

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Arbitration — Section 12(5) Proviso — Express waiver — Requirement —

Held, waiver of ineligibility must be by clear, unequivocal written agreement after disputes arise — Mere silence or non-objection does not amount to waiver — Statutory ineligibility cannot be cured by implication.

(Paras 36, 42)

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Arbitration — Jurisdictional objection — Stage —

Held, objection relating to inherent lack of jurisdiction of Arbitrator can be raised at any stage, including in collateral proceedings and execution — Such defect strikes at root and is not curable.

(Paras 27, 12, 43)

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Arbitration — SARFAESI proceedings — Co-existence —

Held, arbitration proceedings and SARFAESI proceedings are cumulative remedies and can proceed simultaneously — However, said issue not pressed in present case.

(Para 8)

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Result / Directions —

Held, unilateral appointment of Arbitrator invalid — Award suffers from lack of jurisdiction — Consequential execution proceedings including attachment order liable to be set aside — Parties at liberty to proceed in accordance with law.

(Para 43)

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RATIO DECIDENDI

A unilateral appointment of a sole arbitrator by an interested party or its official, who is statutorily ineligible under Section 12(5) read with the Seventh Schedule, renders the arbitrator devoid of inherent jurisdiction, and consequently the arbitral award is void, non est and incapable of execution, such defect not being curable by implied waiver under Section 4 and capable of being raised at any stage.

Outraging modesty of minor girl — Appreciation of evidence — Conviction — Criminal Revision Case filed challenging concurrent findings of conviction under Section 354 IPC by trial Court and appellate Court — Prosecution case based primarily on testimony of victim girl supported by evidence of her parents — Held, testimony of victim, if found reliable and corroborated by surrounding circumstances, is sufficient to sustain conviction even in absence of independent witnesses — Non-examination of other witnesses not fatal when evidence of victim is cogent and trustworthy. (Paras 14–15)

 

Indian Penal Code, 1860 — Section 354 — Outraging modesty of minor girl — Appreciation of evidence — Conviction —

Criminal Revision Case filed challenging concurrent findings of conviction under Section 354 IPC by trial Court and appellate Court — Prosecution case based primarily on testimony of victim girl supported by evidence of her parents — Held, testimony of victim, if found reliable and corroborated by surrounding circumstances, is sufficient to sustain conviction even in absence of independent witnesses — Non-examination of other witnesses not fatal when evidence of victim is cogent and trustworthy.

(Paras 14–15)

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Evidence — Minor contradictions / omissions — Effect —

Held, minor variations in statements of witnesses regarding manner of occurrence do not amount to material contradictions — Such variations are natural and do not discredit prosecution case when core allegation remains consistent — Explanation of appellate Court accepting such variation upheld.

(Para 15)

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Evidence — Sole testimony of victim — Sufficiency —

Held, in offences relating to outraging modesty, conviction can be based on sole testimony of victim if it inspires confidence — Corroboration, though desirable, is not mandatory in every case.

(Paras 14–15)

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Criminal Procedure — Delay in lodging FIR — Effect —

Held, delay in lodging FIR in offences involving sexual misconduct, particularly in rural background, is not fatal — Social stigma, family honour and hesitation are relevant factors — Delay satisfactorily explained.

(Para 17)

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Revisional jurisdiction — Sections 397 & 401 CrPC — Scope — Concurrent findings —

Held, revisional Court will not interfere with concurrent findings of fact unless findings are perverse, illegal or result in miscarriage of justice — Reappreciation of evidence is limited — Where courts below have properly appreciated evidence, no interference warranted.

(Paras 8–9, 18)

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Directions / Result —

Held, revision dismissed — Conviction and sentence affirmed — Petitioner directed to surrender before trial Court to serve remaining sentence, failing which coercive steps to follow.

(Paras 19)

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RATIO DECIDENDI

Conviction for an offence under Section 354 IPC can be sustained on the credible testimony of the victim supported by surrounding circumstances, and in the absence of perversity or illegality, concurrent findings of the courts below cannot be interfered with in revisional jurisdiction, particularly when delay in FIR and minor discrepancies are satisfactorily explained.

Revisional jurisdiction — Order taking cognizance — Scope of interference — Criminal Revision Case filed challenging order of Magistrate taking cognizance against petitioners/accused Nos.3 and 4, though they were deleted from charge sheet by police — Trial Court, on application of de facto complainant, took cognizance against all accused based on material on record including sworn statement — Held, order taking cognizance is not a final adjudication and is based on prima facie satisfaction — Revisional Court cannot interfere at such stage when material discloses prima facie case. (Paras 3–5)

 

Criminal Procedure Code, 1973 — Sections 397 & 401 — Revisional jurisdiction — Order taking cognizance — Scope of interference —

Criminal Revision Case filed challenging order of Magistrate taking cognizance against petitioners/accused Nos.3 and 4, though they were deleted from charge sheet by police — Trial Court, on application of de facto complainant, took cognizance against all accused based on material on record including sworn statement — Held, order taking cognizance is not a final adjudication and is based on prima facie satisfaction — Revisional Court cannot interfere at such stage when material discloses prima facie case.

(Paras 3–5)

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Criminal law — Cognizance — Power of Magistrate —

Held, Magistrate is not bound by opinion of investigating agency and can take cognizance against persons not charge-sheeted if material on record discloses their involvement — Sworn statements and complaint material can be relied upon for such purpose.

(Para 5)

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Revisional jurisdiction — Disputed questions of fact —

Held, issues involving appreciation of evidence or disputed facts cannot be adjudicated at the stage of revision against order taking cognizance — Such matters are to be examined during trial.

(Para 5)

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Criminal proceedings — Stage of cognizance — Scope —

Held, at the stage of taking cognizance, Court is required only to see whether prima facie case is made out — Detailed examination of merits or defence is impermissible.

(Para 5)

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Directions — Expeditious trial —

Held, trial Court directed to dispose of main case expeditiously, preferably within a period of three months, without granting unnecessary adjournments.

(Para 6)

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RATIO DECIDENDI

An order taking cognizance based on prima facie material, including sworn statements, cannot be interfered with in revisional jurisdiction merely because the accused were not charge-sheeted, as the Magistrate is competent to take cognizance independently of the police report and disputed factual issues are to be adjudicated at trial.

Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 528 — Modification of bail conditions — NDPS Act offences — Onerous conditions — Financial incapacity — Scope — Criminal Petition filed seeking relaxation/modification of conditions imposed while granting bail in NDPS case — Petitioners contended that conditions imposed by trial Court were onerous and incapable of compliance due to financial constraints, resulting in continued detention despite grant of bail — Held, where bail conditions are excessively burdensome and defeat the very grant of bail, Court is justified in modifying such conditions to make them workable — Bail conditions must be reasonable and not illusory. (Paras 2–4)

 

Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 528 — Modification of bail conditions — NDPS Act offences — Onerous conditions — Financial incapacity — Scope —

Criminal Petition filed seeking relaxation/modification of conditions imposed while granting bail in NDPS case — Petitioners contended that conditions imposed by trial Court were onerous and incapable of compliance due to financial constraints, resulting in continued detention despite grant of bail — Held, where bail conditions are excessively burdensome and defeat the very grant of bail, Court is justified in modifying such conditions to make them workable — Bail conditions must be reasonable and not illusory.

(Paras 2–4)

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Bail — Conditions — Reasonableness —

Held, conditions imposed while granting bail should not be so onerous as to render the order of bail ineffective — Financial incapacity of accused is a relevant consideration in determining appropriateness of bail conditions.

(Paras 2–4)

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NDPS Act — Bail — Modification —

Held, notwithstanding seriousness of offence under NDPS Act, once bail is granted, conditions imposed must be capable of compliance — Court can relax or modify such conditions without disturbing the order granting bail.

(Para 4)

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Bail — Modification vs grant — Distinction —

Held, modification of bail conditions does not amount to fresh grant of bail but is an adjustment of terms to ensure effective implementation of earlier order.

(Para 4 — implicit)

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Directions —

Held, condition modified by directing petitioners to execute bond of Rs.1,00,000/- each with two sureties — Remaining conditions imposed by trial Court to continue.

(Paras 4–5)

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RATIO DECIDENDI

Bail conditions must be reasonable and capable of compliance, and where conditions imposed are excessively onerous resulting in continued detention despite grant of bail, the Court is empowered to modify such conditions to make the bail effective, without disturbing the original order granting bail.

ADVOCATEMMMOHAN: Bharatiya Nagarik Suraksha Sanhita, 2023 — Section...

ADVOCATEMMMOHAN: Bharatiya Nagarik Suraksha Sanhita, 2023 — Section...: advocatemmmohan Bharatiya Nagarik Suraksha Sanhita, 2023 — Sections 480 & 483 — Bail — NDPS Act offences — Remand — Non-extension — Disc...

Bharatiya Nagarik Suraksha Sanhita, 2023 — Sections 480 & 483 — Bail — NDPS Act offences — Remand — Non-extension — Discrepancy in filing of charge sheet — Effect —

Criminal Petition filed seeking regular bail in respect of offences under Section 20(b)(ii)(C) read with Sections 8(c) and 25 of NDPS Act — Petitioners contended that though prosecution claimed filing of charge sheet within statutory period, no charge sheet was actually filed within time and remand was not validly extended — Prosecution relied on CCTNS record showing earlier filing of charge sheet — Report called for from trial Court revealed discrepancy regarding date of filing of charge sheet and absence of material showing extension of remand beyond a particular date — Held, where statutory period has elapsed and there is no judicial order extending remand for a relevant period, continued custody becomes legally unsustainable — Petitioners entitled to be enlarged on bail.

(Paras 5–6)

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NDPS Act — Bail — Effect of procedural lapses —

Held, notwithstanding seriousness of offence under NDPS Act, failure to comply with mandatory procedural requirements relating to remand and filing of charge sheet entitles accused to bail — Procedural safeguards cannot be diluted.

(Paras 5–6)

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Criminal procedure — Remand — Necessity of judicial order —

Held, remand of accused must be supported by valid judicial orders — In absence of extension of remand for a specific period, detention of accused during such period is without authority of law.

(Para 6)

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Charge sheet — Discrepancy in records — Effect —

Held, where there is inconsistency between official record and prosecution claim regarding date of filing of charge sheet, and matter requires detailed examination, benefit must enure to accused at bail stage.

(Para 5)

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Bail — Conditions —

Held, petitioners enlarged on bail subject to conditions including execution of bond, furnishing sureties, periodic appearance before police, non-tampering with evidence and restriction on leaving jurisdiction.

(Para 7)

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RATIO DECIDENDI

Where there is no valid judicial order extending remand for a relevant period and there exists discrepancy regarding filing of charge sheet, continued detention of the accused becomes unlawful, entitling them to be released on bail notwithstanding the nature of the offence under the NDPS Act.