CRIMINAL PROCEDURE – Alternative remedy – Availability – Effect on writ jurisdiction Paras 5, 6 Where alternative efficacious remedy is available before jurisdictional Magistrate – Petitioner can file private complaint under Section 190 r/w Section 200 Cr.P.C. or corresponding provisions under BNSS – Held, writ petition not maintainable – Liberty granted to approach Magistrate.

 

CONSTITUTION OF INDIA – Article 226 – Writ of Mandamus – Non-registration of FIR

Paras 1, 3, 4

Writ petition filed seeking direction to police to register case based on complaint – Police conducted preliminary enquiry and found dispute to be civil in nature – Held, writ of mandamus for registration of FIR not warranted in such circumstances.

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CRIMINAL PROCEDURE – Alternative remedy – Availability – Effect on writ jurisdiction

Paras 5, 6

Where alternative efficacious remedy is available before jurisdictional Magistrate – Petitioner can file private complaint under Section 190 r/w Section 200 Cr.P.C. or corresponding provisions under BNSS – Held, writ petition not maintainable – Liberty granted to approach Magistrate.

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CRIMINAL PROCEDURE – Private complaint – Remedy for non-registration of FIR

Para 5

In case of non-registration of FIR – Remedy lies in filing private complaint before Magistrate – Magistrate may refer matter for investigation or take cognizance by recording sworn statements – Held, proper statutory remedy available.

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CRIMINAL PROCEDURE – Preliminary enquiry – Police powers (BNSS)

Para 4

Complaint received through PGRS – Preliminary enquiry conducted under Section 173(3) BNSS – Police concluded dispute is civil in nature – Held, such enquiry permissible before registration in appropriate cases.

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CONSTITUTION – Article 14, 19, 21 – Alleged violation

Para 1

Allegation of violation of fundamental rights due to non-registration of case – In view of availability of statutory remedy, no adjudication required – Held, writ disposed without examining merits.

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WRIT JURISDICTION – Exercise of discretion – Refusal to entertain

Paras 5, 6

High Court declined to entertain writ petition in view of effective alternate remedy – Liberty granted to petitioner to pursue remedy before Magistrate – Held, writ disposed. 

ARBITRATION – Appointment of Arbitrator – Unilateral appointment by interested party – Invalidity Paras 30, 31, 32, 33, 43 Sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager – Said authority falls within categories of Seventh Schedule – Person ineligible to act as arbitrator cannot nominate another arbitrator – Held, unilateral appointment invalid – Arbitrator lacked inherent jurisdiction – Award void and non est.

 

ARBITRATION – Appointment of Arbitrator – Unilateral appointment by interested party – Invalidity

Paras 30, 31, 32, 33, 43

Sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager – Said authority falls within categories of Seventh Schedule – Person ineligible to act as arbitrator cannot nominate another arbitrator – Held, unilateral appointment invalid – Arbitrator lacked inherent jurisdiction – Award void and non est.

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ARBITRATION – Section 12(5) r/w Seventh Schedule – Ineligibility – Scope

Paras 25, 26, 33, 40, 41

Ineligibility under Section 12(5) arises by operation of law – Covers persons having direct/indirect relationship with parties – Such ineligibility extends to power of nomination – Mandate of arbitrator automatically terminates – Held, arbitrator becomes de jure incapable of acting.

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ARBITRATION – Equal treatment of parties – Article 14 – Effect on arbitration clause

Paras 21, 23, 43

Clause enabling one party to unilaterally appoint sole arbitrator gives rise to justifiable doubts as to independence and impartiality – Violates principle of equal treatment – Such clauses held violative of Article 14 – Held, arbitration clause unenforceable to that extent.

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ARBITRATION – Waiver – Section 4 vs Section 12(5) – Distinction

Paras 36, 37, 41, 42

Waiver under Section 4 relates to procedural non-compliance – Ineligibility under Section 12(5) can be waived only by express agreement in writing after disputes arise – Absence of such agreement – Held, no waiver – Section 4 not applicable to cure statutory ineligibility.

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ARBITRATION – Express waiver – Requirement of written agreement

Paras 25, 36, 42

Right to object to appointment of ineligible arbitrator cannot be waived by implication – Requires clear and unequivocal express agreement in writing – Held, proviso to Section 12(5) not satisfied – Appointment remains invalid.

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ARBITRATION – Jurisdiction – Inherent lack – Stage of objection

Paras 27, 28, 12

Objection to inherent lack of jurisdiction can be raised at any stage – Even in collateral proceedings such as execution or revision – Arbitrator lacking jurisdiction cannot render valid award – Held, objection maintainable.

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ARBITRATION – Execution proceedings – Validity of award

Paras 2, 4, 7, 43

Execution initiated based on arbitral award – Where award itself is void due to lack of jurisdiction – Execution proceedings including attachment orders unsustainable – Held, liable to be set aside.

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ARBITRATION – SARFAESI and Arbitration – Concurrent remedies

Paras 6, 8

Proceedings under SARFAESI Act and arbitration can proceed simultaneously – Remedies are cumulative and not mutually exclusive – Issue not pressed in view of settled legal position.

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CIVIL REVISION – Article 227 – Scope of interference

Paras 2, 13, 43

High Court in exercise of supervisory jurisdiction can interfere where subordinate court acts without jurisdiction – Revision maintainable to correct jurisdictional error – Held, interference justified.

CIVIL PROCEDURE – Ministerial act vs judicial function Paras 15, 17, 18, 19 Where office is not satisfied with explanation for defects, matter cannot be indefinitely returned – Proper course is to place matter before Presiding Officer – Judicial determination required by passing speaking order – Held, issue must be decided judicially, not administratively.

 

CIVIL PROCEDURE – Execution – Order XXI Rule 58 CPC – Third party claim

Paras 3, 4, 5, 11

Third party claiming right over E.P. schedule property filed Execution Application under Order XXI Rule 58 CPC – Claim based on registered sale deed and possession – Prayer to exclude property from execution proceedings – Held, such claim requires adjudication by executing Court.

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CIVIL PROCEDURE – Numbering of applications – Delay – Legality

Paras 12, 13, 14

Execution Application returned multiple times and kept unnumbered – Meanwhile execution proceedings continued – Such indefinite delay at numbering stage prejudicial to applicant – Held, improper practice.

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CIVIL PROCEDURE – Ministerial act vs judicial function

Paras 15, 17, 18, 19

Where office is not satisfied with explanation for defects, matter cannot be indefinitely returned – Proper course is to place matter before Presiding Officer – Judicial determination required by passing speaking order – Held, issue must be decided judicially, not administratively.

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CIVIL PROCEDURE – Return of plaint / application – Limitation on number of returns

Paras 16, 24

Guidelines prescribe that objections must be raised at once and return of plaint/application should not exceed three times – After third return, matter to be placed before Court – Piecemeal objections impermissible – Held, procedure mandatory for subordinate courts.

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CIVIL PROCEDURE – Right to remedy – Duty of Court

Paras 18, 19

Claim of citizen must be adjudicated – Delay or inaction may render proceedings infructuous – Judicial order enables parties to avail further remedies – Held, Courts must ensure adjudication of claims.

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EXECUTION – Auction proceedings – Protection of third party rights

Para 13

If execution proceeds without adjudicating third party claim, applicant would suffer irreparable injury – Held, necessary to decide claim before proceeding further with execution.

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CIVIL PROCEDURE – Directions to subordinate courts

Paras 20, 24, 25, 26

Where application returned thrice – Office directed to list matter before Presiding Officer – Court to decide maintainability after notice – Execution proceedings to be suspended till decision – Directions issued to circulate guidelines to all Judicial Officers.

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CIVIL REVISION – Scope – Article 227

Paras 2, 20

Revision maintainable against procedural inaction of subordinate court – High Court can issue directions to ensure proper exercise of jurisdiction – Petition disposed with directions without examining merits.

ARBITRATION – Appointment of Arbitrator – Unilateral appointment – Validity Paras 30, 31, 32, 33, 43 Sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager – Said authority falls within categories of Seventh Schedule – Person ineligible to act as arbitrator cannot nominate another arbitrator – Appointment of sole arbitrator held invalid – Arbitrator lacked inherent jurisdiction to pass award – Held, award without jurisdiction and non est.

 

ARBITRATION – Appointment of Arbitrator – Unilateral appointment – Validity

Paras 30, 31, 32, 33, 43

Sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager – Said authority falls within categories of Seventh Schedule – Person ineligible to act as arbitrator cannot nominate another arbitrator – Appointment of sole arbitrator held invalid – Arbitrator lacked inherent jurisdiction to pass award – Held, award without jurisdiction and non est.

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ARBITRATION – Section 12(5) r/w Seventh Schedule – Ineligibility – Effect

Paras 25, 26, 33, 41, 42

Ineligibility under Section 12(5) is statutory – Person having relationship covered under Seventh Schedule becomes de jure unable to act – Mandate of such arbitrator automatically terminates – Appointment by such ineligible person is ex facie invalid – Held, arbitrator had no jurisdiction.

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ARBITRATION – Unilateral appointment – Article 14 – Equal treatment of parties

Paras 21, 23, 43

Clause permitting unilateral appointment of sole arbitrator gives rise to justifiable doubts as to independence and impartiality – Such unilateral power violates principle of equal treatment of parties – Held, violative of Article 14 of Constitution of India.

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ARBITRATION – Waiver – Section 4 vs Section 12(5) – Distinction

Paras 36, 37, 41

Waiver under Section 4 relates to procedural non-compliance – Waiver of ineligibility under Section 12(5) requires express agreement in writing after dispute – In absence of such express written waiver, plea of waiver not sustainable – Held, no waiver in present case.

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ARBITRATION – Express waiver – Requirement

Paras 25, 36, 42

Right to object to appointment of ineligible arbitrator cannot be waived by implication – Requires clear and unequivocal express agreement in writing – In absence of such agreement, statutory ineligibility continues – Held, proviso to Section 12(5) not attracted.

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ARBITRATION – Jurisdiction – Inherent lack – Stage of objection

Paras 27, 28, 12

Objection to inherent lack of jurisdiction of arbitrator can be raised at any stage, including collateral proceedings – Even in execution or revision proceedings such plea maintainable – Held, objection permissible.

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ARBITRATION – Execution of award – Validity

Paras 7, 32, 43

Execution proceedings based on award passed by arbitrator lacking jurisdiction – Such award being non est cannot be executed – Order of attachment founded on such award unsustainable.

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ARBITRATION – SARFAESI and Arbitration – Concurrent remedies

Paras 6, 8

Arbitration proceedings and SARFAESI proceedings are cumulative remedies – Both can proceed simultaneously – One does not bar the other – Issue not pressed in view of settled law.

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CIVIL PROCEDURE – Article 227 – Scope of interference

Para 2

Civil Revision Petitions under Article 227 maintainable to examine jurisdictional errors – Where order suffers from lack of jurisdiction, interference warranted.

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Ratio

Unilateral appointment of sole arbitrator held invalid – Award without jurisdiction – No waiver – Execution proceedings unsustainable – Revisions liable to be allowed/set aside (as per final operative portion).

ADVOCATEMMMOHAN: CRIMINAL PROCEDURE – Section 313 Cr.P.C. – Admissi...

ADVOCATEMMMOHAN: CRIMINAL PROCEDURE – Section 313 Cr.P.C. – Admissi...: advocatemmmohan CRIMINAL LAW – Section 354 IPC – Outraging modesty – Conviction confirmed – Revisional jurisdiction – Scope Paras 1, 7, 8, ...

CRIMINAL LAW – Section 354 IPC – Outraging modesty – Conviction confirmed – Revisional jurisdiction – Scope

Paras 1, 7, 8, 9, 18

Conviction of the petitioner under Section 354 IPC by the trial Court and its confirmation by the appellate Court – Challenge in revision – Scope of interference by revisional Court is limited to cases of illegality, impropriety, perversity, or miscarriage of justice – Where both Courts below recorded concurrent findings based on evidence on record and no procedural irregularity or perversity is established, revisional Court would not interfere – Held, no justification to interfere – Revision dismissed.

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EVIDENCE – Testimony of victim – Sufficiency – Corroboration

Paras 10, 11, 14, 15

Prosecution case primarily based on testimony of victim girl (P.W.2) – Statement of victim corroborated by P.Ws.1 and 3 – Minor discrepancies regarding description of act (touching entire body vs pressing particular part) explained and held not to be material contradictions – Evidence of victim found reliable – Held, testimony of victim sufficient to sustain conviction.

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EVIDENCE – Non-examination of witnesses – Effect

Para 14

Non-examination of other students who allegedly accompanied the victim – At the time of incident, other students had already left the place – Held, non-examination not fatal to prosecution case where victim’s evidence is clear and reliable.

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EVIDENCE – Ocular witnesses – Appreciation

Paras 10, 12

Trial Court disbelieved P.Ws.4 and 6 (alleged eye witnesses) – Appellate Court, however, considered their evidence and held that mere non-mention by victim does not render their testimony wholly unreliable – Conviction sustained even otherwise based on victim’s testimony and corroboration – Held, appreciation by appellate Court justified.

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CRIMINAL PROCEDURE – Section 313 Cr.P.C. – Admission of presence

Para 11, 16

Accused admitted presence of victim at his shop at relevant time in statement under Section 313 Cr.P.C. – Such admission supports prosecution case regarding presence and opportunity – Held, strengthens prosecution version.

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CRIMINAL LAW – Delay in FIR – Effect

Para 17

Delay in lodging FIR in case involving outraging modesty of minor girl in village setting – Social stigma, family prestige, and hesitation in reporting considered – Held, delay explained and does not vitiate prosecution case.

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CRIMINAL LAW – Defence plea of false implication / counter blast

Paras 12, 16

Defence plea that case is counter blast to earlier incident – Evidence shows natural conduct of family reacting to incident – No material to disbelieve prosecution case – Held, defence not substantiated.

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REVISION – Interference with concurrent findings

Paras 7, 8, 18, 19

Concurrent findings of trial and appellate Courts – No perversity, illegality, or miscarriage of justice – Revisional Court declined interference – Revision dismissed with direction to petitioner to surrender and undergo remaining sentence.