Whether magistrate can acquit accused even though service report of witness summons was not produced?

  On   perusal   of  the  judgment   and   order   passed
by the learned Additional Sessions Judge, I find that
the   learned   Additional   Sessions   Judge   has   rightly
directed   the   Magistrate   retrial   of   the
applicants/accused   in   the   said   case.     The   learned
Additional   Sessions   Judge   has   observed   that   the
respondent no.2/original complainant was not at fault.
The   respondent   no.2/original   complainant   has   lodged
complaint in the Police Station against the applicants
for   having   committed   the   offences   punishable   under
section 325, 324, 323, 504, 506 r/w. 34 of the Indian
Penal   Code.     The   prosecution   has   not   examined   any
witness except one witness before the Magistrate.  Even
though the service report of the witness summons was
never   produced   before   the   Court,   the   Magistrate   has
closed   the   prosecution   evidence   and   acquitted   the

applicants/accused for want of evidence.  I do not find
any   fault   in   the   judgment   and   order   passed   by   the
learned Additional Sessions Judge, directing retrial of
the case. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4718 OF 2015 
 Sopan Baburao Wakchaure,

      Vs.
The State of Maharashtra

­­­­
   CORAM : V.K. JADHAV, J.
       DATE  : 18/10/2016
Citation: 2017 ALLMR(CRI) 1438

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What is role of the Court if arbitrator has passed order granting one party to arbitration assistance of court?

 I am thus inclined to accept the submission of Mr.Tulzapurkar, the learned senior counsel for the petitioner that the powers under section 27 of the Arbitration Act are not adjudicatory powers. In my view, the said provision provides a procedure for providing assistance to a party in whose favour the learned arbitrator has opined that the production of documents or witness was warranted in the facts of his case. Under section 19 of the Arbitration Act, it is clearly provided that the learned arbitrator shall not be bound  by the Code of Civil Procedure, 1908 or Evidence Act, 1872. In my view, the arbitral tribunal is thus not empowered to issue any witness summons itself or to compel a party to produce any documents under the provisions of the Arbitration Act. If the learned arbitrator is satisfied on the application made by any of the party that production of witness or documents which is not being produced inspite of the attempts made by a party, the arbitral tribunal can grant permission to such a party to take the assistance of this Court under section 27 of the Arbitration Act. In my view, merely because a party has filed the arbitration proceedings in view of the agreement between the parties, he cannot be put to dis-advantage in view of the powers of summoning a witness not having been provided to the arbitrator under the provisions of the Arbitration Act.

17. If the petitioner before this Court was required to file a suit and if he was required to examine any witness or to produce a document, which was not produced by such a party or such witness or a party would have refused to give evidence, the petitioner in that event could have applied for issuance of witness summons or for production of document under the provisions of the Code of Civil Procedure, 1908. At that stage, the respondent was not required to be heard by this Court. In my view, once the arbitral tribunal was of the opinion that production of such document or witness was  warranted in the facts and circumstances of the case, at this stage, the respondent could not have raised any objection on merits of the order passed by the learned arbitrator. If the learned arbitrator decides on merits against the respondents herein, the respondents would be entitled to challenge the said award along with the order passed by the learned arbitrator granting such permission to the petitioner to apply to this Court for the assistance under section 27 of the Arbitration Act.

18. In view of section 5 of the Arbitration Act, since the respondents could not have challenged the order passed by the learned arbitrator granting such permission to the petitioner to apply to this Court for the assistance or the order of the learned arbitrator holding that examination of additional witnesses or production of documents was warranted, the respondents cannot be indirectly allowed to challenge the validity of that order while opposing this application undersection 27 of the Arbitration Act. In my view, what cannot be done directly, cannot be allowed to be done indirectly.

Under section 5 of the Arbitration Act, there is a clear bar for a Court to intervene in any proceedings except the proceedings specifically provided under the provisions of the Arbitration Act. There is no proceeding provided under the Arbitration Act for challenging an order passed by the arbitral tribunal granting permission to a party toseek assistance of a Court under section 27 of the Arbitration Act during the pendency of the arbitral proceedings.

19. I am not inclined to accept the submission of Mr.Sancheti, the learned senior counsel for the respondents that in the proceedings under section 27 of the Arbitration Act, the Court can decide the merits of the order passed by the learned arbitrator. In my view, Mr.Tulzapurkar, the learned senior counsel for the petitioner is right that under section 27 of the Arbitration Act, a procedure is prescribed for taking assistance of this Court for issuance of witness summons in terms of the order passed by the learned arbitrator and the proceedings are not adjudicatory proceedings.

20. Though the learned senior counsel for the respondents wanted to address this Court on merits of the order passed by the learned arbitrator as to why production of additional witnesses or production of documents was not at all warranted in the facts and circumstances of this case, since the respondents cannot challenge the order passed by the learned arbitrator granting permission to the petitioner for taking assistance of this Court at this stage, this Court cannot hear the respondents on the merits of the order passed by the learned arbitrator at this stage.

Bombay High Court

Montana Developers Pvt. Ltd vs Aditya Developers And 7 Others on 22 June, 2016

Bench: R.D. Dhanuka

Citation:2016(6) MHLJ 660

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