Tuesday, 20 November 2018

When court can condone delay in filing application U/S 34 of Arbitration Act?

 Considering the object of provisions of Section 34 of the Arbitration Act and in view of absence of conclusive material on record in respect of delivery of service of arbitral award on the appellants, a case is made out by the appellants that they were prevented by sufficient cause from making an application.
21. In view of the above stated facts and circumstances, we find that as the copy of the award was not served on the appellants, the explanation tendered for condoning delay in preparing petition under Section 34 deserves consideration. A party cannot be prevented to resort to statutory remedy if it is established that there was no fault on their part in approaching the Court beyond the prescribed period of limitation or in view of non-compliance of provisions of Section 34 of the Arbitration Act.

In the High Court of Bombay
Ordinary Original Civil Jurisdiction
(Before Naresh H. Patil and G.S. Kulkarni, JJ.)

JSC Ispat Pvt. Ltd. v. M/s. HDB Financial Services Ltd. .
Appeal (L) No. 80 of 2018
In
Notice of Motion (L) No. 2556 of 2015 (for condonation of delay)
In
Arbitration Petition No. 40 of 2018
(Arbitration Petition (L) No. 1814/2015)
With
Notice of Motion (L) No. 130 of 2018 (for stay)
Decided on March 6, 2018
Citation: 2018 SCC OnLine Bom 538
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Whether it is necessary for Court to decide admissibility of documents before they are exhibited in evidence?

Answer to Question-A:

As already noticed, (i) objection to the document sought to be produced relating to the deficiency of stamp duty must be taken when the document is tendered in evidence and such objection must be judicially determined before it is marked as exhibit;

(ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit;

(iii) Objection to the document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case.

The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. As we have already added a word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent miscarriage of justice and expedite trial, which is the dire need of the time.

IN THE HIGH COURT OF BOMBAY

W.P. Nos. 623 and 1092 of 2005, Admiralty Suit No. 31 of 1995, Suit No. 3681 of 1996 and Testamentary Suit No. 19 of 1999

Decided On: 16.10.2008

 Hemendra Rasiklal Ghia Vs.  Subodh Mody

Hon'ble Judges/Coram:
Swatanter Kumar, C.J., V.C. Daga and V.M. Kanade, JJ.

Citation: 2008(6) ALLMR 352
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Precaution to be taken by court while summoning additional accused U/S 319 of CRPC

 Section 319 Cr.P.C. provides that where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. The Court, thus, during the trial on the basis of any evidence is fully empowered to proceed against any person, whose name was not even included in the F.I.R. or the Charge Sheet. The parameters of exercise of power under Section 319 Cr.P.C has been explained by this Court time and again. It is sufficient to refer to Constitution Bench judgment in Hardeep Singh (supra), where this Court had considered the following issue amongst others:-
“6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?”
7. The Constitution Bench judgment in the above judgment has held that under Section 319 Cr.P.C. Court can proceed against any person, who is not an accused in a case before it. The Constitution Bench, however, has held that the person against whom the Court decides to proceed, “has to be a person whose complicity may be indicated and connected with the commission of the offence”.
8. Answering the Issue No.(iv) as noticed above, in Paragraph Nos. 105 and 106 of the judgment, following was laid down by the Constitution Bench:-
“105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried together with the accused”. The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.”
9. The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is “the test that has to be applied is one which is more than prima facie case as exercised at the time of framing

of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.”

 The High Court does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that Court has power under Section 319 Cr.P.C. to proceed against any person who is not named in the F.I.R. or in the Charge Sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh (supra) has to apply the test, i.e., “more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.” 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1349 of 2018
(arising out of SLP (Crl.) No.6392 /2018)

LABHUJI AMRATJI THAKOR Vs THE STATE OF GUJARAT

ASHOK BHUSHAN,J.
Dated:November 13, 2018.
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Leading judgment of Supreme Court on summoning of additional accused as per S 319 of CRPC

110. We accordingly sum up our conclusions as follows:

Question Nos. 1 & III

Q.1 What is the stage at which power under Section 319 Code of Criminal Procedure can be exercised?

AND

Q. III Whether the word "evidence" used in Section 319(1) Code of Criminal Procedure has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Code of Criminal Procedure and the Sessions Judge need not wait till 'evidence' under Section 319 Code of Criminal Procedure becomes available for summoning an additional accused.

Section 319 Code of Criminal Procedure, significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Code of Criminal Procedure; and under Section 398 Code of Criminal Procedure are species of the inquiry contemplated by Section 319 Code of Criminal Procedure Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Code of Criminal Procedure, and also to add an accused whose name has been shown in Column 2 of the chargesheet.

In view of the above position the word 'evidence' in Section 319 Code of Criminal Procedure has to be broadly understood and not literally i.e. as evidence brought during a trial.

Question No. II

Q. II Whether the word "evidence" used in Section 319(1) Code of Criminal Procedure could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

A. Considering the fact that under Section 319 Code of Criminal Procedure a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Code of Criminal Procedure the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Question No. IV

Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Code of Criminal Procedure to arraign an accused? Whether the power under Section 319(1) Code of Criminal Procedure can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

A. Though under Section 319(4)(b) Code of Criminal Procedure the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Code of Criminal Procedure would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial-therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question No. V

Q. V Does the power under Section 319 Code of Criminal Procedure extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?

A. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Code of Criminal Procedure provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Code of Criminal Procedure has to be complied with before he can be summoned afresh.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1750, 1751 of 2008.

Decided On: 10.01.2014


 Hardeep Singh Vs. State of Punjab 

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