ARTICLES

Justice S.C. Dharmadhikari of Bombay HC Resigns

Justice S.C. Dharmadhikari of Bombay HC Resigns

The second senior-most judge of the Bombay High Court Justice Satyaranjan Dharmadhikari has resigned from his post. The news came as a surprise to everyone as Justice Dharmadhikari himself broke the news in an open court to Advocate Mathews Nedumpara who was appearing before him.

Advocate Mathews Nedumpara told The Hindu that when he was mentioning a matter before Justice Dharmadhikari in the morning, the latter said, “I cannot grant you any relief as today is my last day”. Mr Nedumpara asked, “Is your lordship being elevated?” Justice Dharmadhikari then said, “I am demitting my office”.

He said that his reason for resignation is purely personal. He did not want to leave Bombay as he was elevated as the Chief Justice of a different High Court in another state. “My hope is that the Bombay High Court remains the same. It stands for persons who have suffered injustice. It should continue to serve their cause. Hope this institution does not bend before the mighty state, the biggest litigant before it.” said Justice Dharmadhikari

Who Is Justice Satyaranjan Dharmadhikari?

Justice Satyaranjan C. Dharmadhikari born on 26-1-1960 in the family of lawyers. He completed his B. Com. and LLB from Bombay University.  He was enrolled as an Advocate on 28-6-1983. He litigated almost all types of Civil and Constitutional cases including Service matters and Election petitions. Represented leading Banks, Financial Institutions, Corporate Houses and Multinational Firms as well. In his Personal Life, he is keenly interested in Table Tennis, Cricket, Reading and Writing. He was elevated as Additional Judge, Bombay High Court on 14-11-2003.

Justice Dharmadhikari would have been the acting Chief Justice after current Chief Justice Pradeep Nandrajog retires on February 24, 2020.

Statement Recorded under 161 CrPC has no Evidentiary Value

Statement Recorded under 161 CrPC has no Evidentiary Value

Title of the Case – Statement Recorded under 161 CrPC has no Evidentiary Value

Name of the case – Rajeev Kourav vs. Baisahab & ors., Crl.A. No. 232 of 2020 (Supreme Court)

Date of Judgment – February 11, 2020

Judges: Justice L. Nageswara Rao and Justice Deepak Gupta

Subject and sections involved – Section 161 in The Code Of Criminal Procedure, 1973

161. Examination of witnesses by police.

(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

Issue:

  1. Whether the High Court was right in quashing criminal proceeding under Section 482 based on statement recorded under Section 161 of CrPC?

Fact of the Case:

In this case, an FIR was filed wherein it was stated that the wife of the complainant committed suicide because of harassment from her elder brother and their wives. A final report was filed after the completion of the investigation and thereafter a petition under section 482 of CrPC was filed by the respondent to quash the FIR on the ground that there is nothing on record to show that they have incited the deceased to take the extreme step of committing suicide.

The High Court summoned the record of the investigation and perused the statements recorded by the Appellant and his family members under Section 161 of CrPC. The High Court held that none of the persons whose statements under Section 161 CrPC were recorded has mentioned about the complaint of the deceased and that she was thinking of committing suicide due to the harassment of respondents.

Click Here to Read Magazine on Landmark Judgment of Supreme Court for Advocates

Ratio of the Case:           

The division bench of Supreme Court while quashing the order passed by High Court held that High Court cannot quash the criminal proceedings on the basis of its assessment of the statements recorded under Section 161 of Crpc. The statement recorded under Section 161 CrPC is wholly inadmissible in the evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 of CrPC.

 

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An Arbitration Clause in a Lease Deed Not Enforceable Unless Instrument Is Duly Stamped
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Date - Mon, 17 Feb 2020 05:49 PM


In view to assure school children’s safety Allahabad HC asked DMs to submit school bus fitness report
The Lucknow bench of Allahabad High Court bench consisting Chief Justice Govind Mathur and Justice Chandra Dhari Singh ordered all the District Magistrates of the state to conduct a fitness test of school buses as per Supreme Court orders and to submit a compliance report thereto. The District Magistrates will have to submit their reports to the Principal Secretary Transport by 2 March and the Principal Secretary will file a complete compliance report in the court by March 21. A PIL was filed by social organization, 'We the People' submitted in court that schools in the state were not adhering with the instructions laid down MC Mehta v. Union of India & Ors., 1997 (8) SCC 770. | We the People v. Union of India & Ors.| 13/01/2020
Date - Mon, 17 Feb 2020 05:49 PM


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Date - Mon, 17 Feb 2020 05:49 PM


Fresh Death Warrant issued in Nirbhaya Rape Case
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Date - Mon, 17 Feb 2020 05:49 PM


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Date - Mon, 17 Feb 2020 05:49 PM


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Date - Mon, 17 Feb 2020 05:49 PM


Payment Delay: RBI has been ordered by Culcutta HC to take appropriate action against the Bank of Baroda, including revocation of its License
Giving a mazor jerk to the Bank of Baroda, the division bench comprising Justices Sanjib Banerjee & Kausik Chanda of Culcutta HC directed Reserve Bank of India to take necessary action including to cancellation of license, or to authority to carry out the business in the market, against Bank of Baroda, While dealing case filed by Indian Oil Corporation arises out of failure on the part of BOB, in release of payment of unconditional bank guarantee amounting 6.97 crore, given to IOCL on behalf of Simplex infrastructures Ltd which was invoked by breach of the contract on part of Simplex. The claim was cemented with Delhi HC observation that bank guarantees are unconditional & payment there under can't be avoided. Considering submission bench asked RBI to take appropriate action against BOB. (CASE: BANK OF BARODA V. INDIAN OIL CORPORATION LTD.)
Date - Mon, 17 Feb 2020 05:49 PM


LEGAL NOTES

DEFINITIONS UNDER ARBITRATION ACT

DEFINITIONS UNDER ARBITRATION ACT

Sec 2 (1), in this part unless the context otherwise requires:

 

  1. ‘arbitration’- means any arbitration whether or not administered by a permanent arbitral institution.

Explanation-  the definition is not comprehensive, it does not assign ant particular meaning to the term arbitration, therefore, its commonly understood meaning shall apply. The terms as defined in this clause connote that although arbitration is supposed to be entrusted to individuals appointed by the parties themselves this Act would recognize arbitration entrusted to permanent arbitral institutions also.

 However, individuals of the party’s choice can still be appointed as arbitrators because it is not obligatory to entrust it to an institution.

 

  1. ‘arbitration agreement’- means an agreement referred to in section 7.

Explanation- according to sec 7, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement or may arise where parties by reference import the arbitration clause contained in an earlier document into a subsequent contact so as to incorporate it.

 

  1. ‘arbitral award’-  includes an interim award.

Explanation-  sec 2(1)(c) merely clarifies that an arbitral award would include an interim award. It does not define the term. It must be read with sec 31. of the Act which deals with the form and contents of an arbitral award.

 

  1. ‘arbitral tribunal’-  means a sole arbitrator or a panel of arbitrators.

Explanation-  the expression arbitral tribunal means a sole arbitrator or a panel of arbitrators. In view of the provisions of sec 10 reference can be made to a sole arbitrator or an uneven number of arbitrators termed as an arbitral tribunal.

  1. ‘court’- means the principal Civil Court of original jurisdiction in a district and includes the High Court in exercise of its original jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include ant Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes.

 

  1. ‘international commercial agreement’-  means an arbitration relating to disputes arising out of legal relationships, whether contractual or mot, considered as commercial under the law in force in India and where at least one of the parties is-

  • an individual who is national of, or habitually resident in, any country other than India or

  • a body corporate which is incorporated in any country other than India or

  • the Government of a foreign country.

 

  1. ‘legal representative’- means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting.

Explanation-  the definition of the term ‘legal representative’ can be divided into three parts. According to the definition the following persons are to be regarded as legal representatives;

  • a person who in law represents the estate of the deceased, for example, an executor of a will or administrator of the estate of the deceased or an heir under the personal law; or in the Court of Wards who administers the estate of the ward;

  • a person who intermeddles with the estate of the deceased, that is, a person who retains possession of the properties belonging to the estate of the deceased with the intention of representing it.

  • in the case of claims of a representative character a person on whom the estate devolves on the death of a party to the arbitration.

         The following persons have been held not to be legal representatives:

  •  an assignee from a deceased zamindar to whom the holding reverts on the death of the tenant.

  • A person who claims adversely to the estate of the deceased.

  • A new trustee appointed or elected on the death of the deceased trustee.

 

  1. ‘party’- means a party to an arbitration agreement.

Explanation-  the meaning of the expression ‘party’ is not restricted to a party who signed the agreement to the extent as provided in secs. 40, 41 and 35 since the context requires otherwise. Therefore, to the extent, as provided in secs. 40 and 41 the term party will include the legal representatives of the party upon the death of the party or a receiver or official assignee in the case of insolvency of the party, further, in sec 35 persons claiming under the parties are equated with parties for the purposes of the binding character of an arbitral award.

 

  1. Sec 2(7) defines ‘domestic award’- as an arbitral award made under Part-I shall be considered as a domestic awards

Explanation- in order to constitute a domestic award it is essential that-

  • The arbitral award should be made in arbitration proceedings conducted in India. It is immaterial whether the arbitration is an international commercial arbitration or non-international commercial arbitration.

  • Such proceeding must be in accordance with Part –I of the Act.

Cross-Examination of Approver by the Accused

Cross-Examination of Approver by the Accused

Category; trial procedure 

The term approver is neither defined nor used under Criminal Procedure Code but is usually applied to a person, supposed to be directly or indirectly concerned in or privy to an offense to whom a pardon is granted under section 306 of CrPC with a view to securing his testimony against other persons guilty of the offense. The examination of the approver under section 306(4) of the code is mainly concerned with the examination of the complainant and witness by the Magistrate while processing the complaint under section 200 of the CrPC before setting up the process. The question of ‘Examination of the witness’ arises only after charges are framed under section 228 of CrPC. As there is no express provision u/s 306(4) CrPC which permits the accused to cross-examine an approver before committing the case to the Court of Session the Magistrate is not empowered to appreciate the evidence in session triable case. Further, the term “Examination’ under section 306(4)(a) cannot be interpreted to mean ‘Examination’ as contemplated under section 138 of Evidence Act, so as to give an accused the right to cross-examine the approver, at the pre committal stage. In Suresh Chandra Bahri v. State of Bihar (2000) the Supreme Court Bench has regarded section 306(4) as mandatory provision and observed that the object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused in as much as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing Court itself at the very threshold. 

In no stretch of circumstances the cross-examination which is contemplated under section 306(4) of the Code can be equated with the ‘examination of witness’ under section 138 of Evidence Act. where u/s 305 CrPC when an approver is being examined by a Magistrate, he is merely recording his statement after grant of pardon and as such he merely acts as a post office by recording a statement u/s 306 CrPC and thereafter forwards it to the court of session which is the court competent to try the case and therefore the term ‘examination’ used in section 306(4) cannot be equated with the term ‘examination of witness’ meant u/s 138 of Evidence Act. 

 

 

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