Confidentiality is taken into account collectively of the key reasons why parties opt to opt for arbitration for settlement of their disputes as they are doing not need their disputes to be a subject of give-and-take. Considering the careful documents and the knowledge that parties exchange in Associate in Nursing arbitration, the thought is to shield the sensitive data, trade secrets, holding might which can be the subject matter of Associate in Nursing arbitration as its revelation may lead to irreparable loss. For the preceding reason, arbitration proceedings area unit unbroken confidential. However, is confidentiality much possible? what’s the legal basis of confidentiality? what’s its scope and what area unit the implications if it’s broken by a party? One of the major expectations of arbitration, namely, confidentiality, inflicts on arbitrators and the parties, the obligation to respect the confidentiality of arbitration. Section 42-A errs to deal with this interest as it lags the commitment of third parties to keep the arbitral record confidential.
UNICTRAL Model Law (Model Law) in 2006 entrusted arbitral tribunals to grant interim recourse to parties, a digit of arbitration institutions such as the International Centre for Dispute Resolution (ICDR), Stockholm Chamber of Commerce (SCC), International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC) and Hong Kong International Arbitration Centre (HKIAC) have altered their rules to provide parties with the antidote of emergency arbitration. The substantial upgrade in the position of international trade in the economic development of nations over the last few decades has been accompanied by a considerable increase in the number of commercial disputes as well. In India too, the abrupt economic globalization & the transpiring accumulation in competition has headed to an expansion in commercial disputes. Identically, however, the proportion of industrial growth, modernization, and restoration of socio-economic circumstances has, in many instances, outpaced the rate of transition of dispute resolution mechanisms. In many parts of India, brisk development has intensified caseloads for already overburdened courts, further leading to notoriously listless adjudication of commercial disputes. As a consequence, alternative dispute resolution mechanisms, enclosing arbitration, have become more indispensable for businesses operating in India as well as those doing businesses with Indian firms. There has been only a modicum of cases in India which review the enforceability of the award ratified by an emergency arbitrator. The Bench of the Ld. Single Judge of the Delhi High Court, in its acting order dated 21 December 2020, examined & attributed how the award passed by the emergency arbitrator is enforceable in India.
Section 75 of the Arbitration and Conciliation Act, 1996 lets out that the parties shall keep confidential all issues about the conciliation. However, the provision does not apply to arbitration proceedings and applies only to conciliation proceedings. Even though there was no statutory referendum in the 1996 Act, there was an implied duty of confidentiality for various reasons including protection of sensitive evidence or intellectual property, etc., the reputation of parties in public, protection from potential declarations in similar matters, no intervention of independent parties, etc. Apart from the parties to the arbitration proceedings, some outsiders are strangers to the agreement but still sit in the arbitration proceedings They are not ruled by the arbitration agreement & have backing to confidential information delivered in the arbitration. Section 42-A wanes to honor this skepticism as it lasts to be voiceless on the obligation of these third parties to conserve the arbitral document confidentiality. The language of the section only imposes confidentiality on the parties, arbitrator and the arbitral establishment. The terminology of the domain only exacts hideaway on the parties, arbitrator and the arbitral institution in compliance with Section 14,15 & 37.
CONCEPT OF EMERGENCY ARBITRATION
Emergency arbitration is like a mode of interim relief, it’s a very forthcoming concept in the realm of arbitration, it’s mostly applicable for the parties that expect to insulate the investments and testimony that might otherwise be lost or diversified so it’s, an emergency arbitration is a game of time. It’s a very temporary and emergency arbitration like any other ADR mechanism that derives its power from the arbitration agreement itself. So, the main role of emergency arbitration comes up when there is no arbitral tribunal in place, or, there is a situation when setting up an arbitral tribunal will take a lot of time and there is no such time. emergency arbitration is the emergency arbitral tribunal is constituted only mostly two situations one, when there is no tribunal in place, and second when the situation is such that there is no time to appoint and go through the entire appointment procedure of the tribunal.
Instead of approaching the national courts, the parties can opt for an arbitrator game to save a lot of time. So, it’s the Tribunal is constituted for a limited period, or for a very limited purpose so as soon as the purpose is served or the timeframe in which the issues had to be decided. They lapse, the arbitration ends the emergency arbitration ends there itself. Emergency Arbitration is based on the concept of “urgent pro tem or conservatory measures.” In other words, it is for the parties who cannot await the long-drawn formation and composition of an Arbitral Tribunal. The reason behind the same is their need for interim relief at the earliest time frame possible, to either protect their position or to prevent the other party from the continuation of the breach they committed until the issue is finally adjudicated. It is agreeable that the Courts are capable of granting interim reliefs as well, but the same comes at the cost of compromise in efficiency and confidentiality, which neither of the parties may appreciate. Two legitimate mottoes that form its genesis are: firstly, the reasonable possibility that the claimant would succeed on merits fumus boni suggested amendments, such as the amendment to Section 9 of the Principal Act and so on, the initial concern of EA was not addressed.
DISCERNIBLE FAILURE OF STATUTORY IMPLEMENTATION OF EA IN INDIA
Future Retail Limited (“FRL”) is a listed corporation amassing retail chains in more than 400 cities across India. In spite of having such a flourishing business, the Covid-19 pandemic has had an overwhelming concussion on it. This had ensued in a rapid attrition of FRL’s assets. Subsequently, pertaining to this circumstance, FRL had agreed with Reliance Industries. Subsidiary this pact, the latter had rented out to compile the retail, wholesale, logistic and warehousing business of FRL. Besides, Reliance had agreed to discharge the liabilities, as well as invest in the concerned company. This transaction, as foreseen by the FRL, would deflect the company from getting on into liquidation. Moreover, the agreement would also sustain Amazon that has stakes in Future Coupons Pvt. Ltd (“FCPL”). In spite of these reasons, Amazon had lifted up an objection before the SEBI. In the fuss letter, Amazon voiced that the aforementioned transaction violated its contractual liberties, that is, its shareholder agreement (“SHA”), that had been entered into with the FCPL. Henceforth, to plop a clasp on the transaction, Amazon instituted emergency arbitration proceedings, as furnished in the SHA, under the SIAC Rules. This had transpired in an interim award being rendered, which purported to injunct FRL from progressing with the transaction entered into with Reliance Industries. India does not have any provisions distressing EA. Although the Arbitration and Conciliation (Amendment) Act of 2015 suggested amendments, such as Section 9 of the Principal Act and so on, the primary concern of EA was not addressed. Before this, the Law Commission of India, in its 246th Report, lucidly suggested the need for a concept of “Emergency Arbitrator”. The Commission intended to bring this under the ambit of Section 2, which defines an Arbitral Tribunal, by broadening the definition and including the concept of EA. However, as already witnessed from the Amendment Act of 2015, the same was not incorporated.
THE ELEMENT OF THE DISPUTATION
As per the outlay of the SHA between Amazon and Future Coupons, Amazon is to acquire 49% of its share capital. The indicated agreement also retains a roster of “restricted persons”, reeling off certain commodities with whom Future Group was not allowed off to come into any agreement. Despite these underlying provisions, Future Group entered into a transaction selling certain assets to Reliance, which is a part of Mukesh Dhirubhai Ambani Group, to save itself from becoming insolvent. It is also vital to recount through this acquisition, Reliance strives to acquire not only Future Group’s Retail assets but also its liabilities amounting to closely Rs 12,801 crores. In addition to this, Reliance has also conceded to fund a sum of Rs 2800 crores into the merged entity which, besides others, will be utilized to pay Future Group’s residual liabilities. Therefore, it is striking that this transaction will avert Future Group’s insolvency and, in the event, the transaction flunks, Future Group will indisputably go into liquidation. Amazon contends that Future Group oversteps the overheads of the SHA by entering into a sale the transaction with Reliance, as Reliance falls under the category of restricted persons enumerated in the agreement. Future Group contends that it is Amazon that stands in violation of the ForeignExchange Management Act (FEMA)-Foreign Direct Investment (FDI) Rules. Reading the conflation of agreements between Amazon and Future Group, Future Group contended that besides, Amazon, creating protective rights it is transgressing into controlling Future Retail, which requires prior approvals of the Government. Bereft such endorsements Amazon would be in violation of FEMA-FDI Rules. Relying on Hira Lal Patni v. Sri Kali Nath and Sushil Kumar Mehta the Court said that prima facie the present suit cannot be held to be not maintainable on two grounds: the EA order cannot be challenged in the present proceedings and secondly, that the grounds urged by FRL before have already been urged and considered by the Emergency Arbitrator. The arbitration between FCPL and Amazon is an International Commercial Arbitration placed in New Delhi, India and overseen by Part I of the A&C Act, however, conducted in conformity with SIAC Rules. Relying on NTPC v. Singer, the Court declared that while it is perfectly legal for the parties to choose a different procedural law, the issue which is required to be considered is whether the provisions of Emergency Arbitration of such procedural law, are in any manner contrary cannot be restricted to mean that the parties agreed to arbitrate before an arbitral tribunal only and not an Emergency Arbitrator.
PERTINENCE OF ARBITRATION
The relevance of arbitration often arises in situations where a party is up, one sits constrained to seek and cut back relief. The principle of seeking an interim relief is a substantial notion in the field of arbitration, and instead of, like, oh, it’s a very settled principle of law that any court of law or any arbitral tribunal can only grant such interim relief that isn’t able to find relief. The arbitrary emergency arbitrator gives interim relief that interim Relief has to be the limited purpose of that interim Relief has to be in the aid of the final release. So, the final release will be given by the normal arbitral tribunal, which could be constituted later, but it is basically in continuation. The wavering in cases where arbitration is being passed by the courts to the tribunal where the arbitration is referred, the courts to the tribunal takes a lot of time because the courts have to examine these, they discuss the validity of the agreement clause. So, all of it takes a lot of time, even when sometimes the Tribunal has appointed the proceedings are very consuming, so they cause delay. Also, the damages to the aggrieved party. In such cases, one party can seek emergency arbitration. So, the functioning of the tribunal is limited when the functioning of the courts, like in the present scenario is limited, a lot of parties have opted for emergency arbitration just to save time and get immediate relief sometimes they have to get the assets frozen or have the other side of the other party, or they need a very important state. So, in that case, they can invoke emergency arbitration.
CONUNDRUMS CONCERNING POTENTIAL IMPLEMENTATION OF EA IN INDIA
Firstly, the conundrum of enforceability of EA Awards remains a grey area. Chapter I and II of the Amendment Act of 2015, the foreign awards passed through the New York Convention and the Geneva Convention respectively are enforceable. However, the fix that emanates is that these two conventions discern the recommendations given under the 246th Law Commission Report and the amendment proposed by it in Section 2(1)(d) of the Act would bring India on to the same pedestal as other countries and help attain the global trend for Emergency Arbitrations. The dilemma can be etched in two ways, one in which the seat is in India and the other when the seat of arbitration is decided as a foreign state. The main problem arises in the case of foreign seated arbitration, as Domestic Arbitration Tribunal, emergency orders can be enforced under Section 17(2) of the Act. There remain many more ambiguities concerning India’s take on Emergency Arbitration. For instance, speculating that Emergency Arbitration is doable only under the ambit of institutional arbitration, what will be the outcome when a party has chosen for ad-hoc instead of institutional arbitration, can the party invoke Emergency Arbitration using such an agreement? In such a scenario, should the Courts be conferred the power to appoint an Emergency Arbitrator? Will the parties have to embark into a separate agreement to choose arbitral institutions for providing an Emergency Arbitrator? In the absence of regulatory legislation governing this aspect and judicial clarification, answering such questions is certainly not easy. With the amendments brought by the 2015 Act and the subsequent Arbitration and Conciliation Amendment Bill of 2018 being silent about the assorted concerns scrutinizing Emergency Arbitration, parties, for now, are without guidance as to how they should proceed with Emergency Arbitration if at all. However, it is germane to note that if enforceability of final adjudicated matters only, not EA-related matters. Therefore, the same mandates an address by the Indian Statute. In such a scenario, International Conventions like ICDR, ICC, SIAC, SCC and LCIA that have introduced the concept of Emergency Arbitrator Procedures can be referred to. The second conundrum that we may observe with respect to EA is the Court’s jurisdiction on the non-concerned parties. In other words, we observe that the Courts have the power and jurisdiction to entertain parties other than the two main parties in a suit before Civil Courts under the Civil Procedure Code. However, the same does not seem possible in EA because of the principle of party autonomy. Only those two parties that have signed the arbitration clause/agreement are bound by their respective Arbitration Agreement. Confidentiality of the matter and prevention of interference by any other party is also important. In such a scenario, either the EA is given special powers regarding the same, or any other provision may be made that specifically speaks out about the mandatory inclusion of an EA clause in an Arbitration Agreement to enforce the same.
CONCLUSION & THE WAY FORWARD
The predicaments employing Emergency Arbitration have been increasing globally in massive numbers, however, most of the jurisdictions have failed to cope up with the same. The interim reliefs given by the Emergency Arbitrators are uncertain and many at times, with no enforceability. That is precisely the reason the parties are bound to approach national courts. The Indian arbitration law does eventually embrace Emergency Arbitration, catch-all phrases in the enumeration of interim measures granted by Tribunals should be substituted with a more illustrative rather than an exhaustive list similar to the English Arbitration Act, 1996. Considering that the concept of Emergency Arbitration is at a nascent stage, it certainly does not come without obstacles. It is definitely hoped that with the various arbitration institutions providing for Emergency Arbitration and the Government’s push towards institutional arbitration as highlighted in the Arbitration Amendment Bill, 2018, the incorporation of provisions dealing with Emergency Arbitration in the Indian legislation will be encouraged in the near future.
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PUNJAB & HARYANA HC GRANTS BAIL TO MAN BOOKED UNDER POSCO ACT ON CHARGES BY WIFE REGARDING INCIDENT THAT TOOK PLACE WHEN SHE WAS A MINOR
The Punjab and Haryana High Court in the case Dinesh Versus State of Haryana observed and has recently granted a regular bail to a man booked under the POCSO Act after the complainant, the petitioner wife, accused him of penetrative sexual assault in an incident that allegedly took place prior to their marriage, when the petitioner wife was still a minor.
The bench comprising of Justice Vikas Bahl observed that no date of the alleged incident has been mentioned in the FIR and it was registered after the petitioner moved a plea for restitution of conjugal rights, the bench noted that the FIR was registered after much delay.
It was observed that the FIR was registered under Sections 6, 12 and 17 of POCSO Act and Sections 506, 376(2) (N), 323, 328 and 406 of Indian Penal Code, 1860.
The Court noted that no date of incident has been mentioned in the FIR and the said FIR has been registered after filing of the petition by the petitioner under Section 9 of the Hindu Marriage Act, 1955. Prima facie, it also appears that after much delay, the FIR has been registered.
Further, the Court observed that the affidavit suggests that the complainant married the petitioner without coercion or pressure and also the Aadhaar Card that suggests her to have attained the majority age at the time of her marriage.
The bench after considering the fact that the petitioner is not involved in any other matter and prosecution is to take time and also that the co-accused Yogesh has been granted interim protection. It was stated that this court deemed it fit to extent the relief of regular bail to the petitioner. It observed that since 07.12.2021, the petitioner has been in custody and there are 22 prosecution witnesses and none of them have been examined. Therefore, the trial is likely to take time.
Moreover, the court allowed the instant petition and released the petitioner on regular basis subject to its cancellation if he threatens or influences the witness.
The present petition is allowed by the court, while keeping in view the facts and circumstances and the petitioner is ordered to be released on bail on his furnishing bail or surety bonds to the satisfaction of the concerned trial Court or Duty Magistrate and subject to him not being required in any other case. In the present case, it is made clear, the petitioner threatens or influences any witness, it would be open to the State to move an application for cancellation of the present regular bail granted to the petitioner by the court.
Accordingly, the petition is disposed off in above terms.
Allahabad High Court refuses to quash case against government, madrasa teachers allegedly found with cow meat, 16 live cattle stock
The Allahabad High Court in the case Parvez Ahmad And 3 Others v. State of U.P. and Another observed and refused to quash the criminal case against a government teacher and a madrasa teacher from whose alleged possession cow meat (beef) and 16 live cattle were recovered.
The bench comprising of Justice Rohit Ranjan Agarwal observed that the First Information Report (FIR) that prima facie cognizable offence is made out against the applicants and thus, no case was made out against them, to quash the case.
Facts of the Case:
In the present matter, the court was dealing with the 482 CrPC plea filed by 4 applicants booked under Sections 153- A, Section 420, Section 429, Section 188, Section 269, Section 270, Section 273 of the Indian Penal Code, 1860 and section 3/5/8 of Prevention of Cow Slaughter Act, 1955 and section 11 of Prevention of Cruelty to Animals Act, 1979 and section 7/8 of Environment (Protection) Act, 1986, plea seeking to quash the case.
An Assistant teacher, Applicant no. 1 in the education department of the State. As Assistant Teacher, the applicant no. 2 is also working in the Madrasa Darul Ulum Gausia Kasba Salempur. A medical shop is run by the applicant no. 3 and applicant no. 4 is Hafiz Quran.
It was observed that their submission that a report from the Forensic Investigation Laboratory had received did not disclose that the sample sent for analysis was of the cow. Their case was case that no case under the Prevention of Cow Slaughter Act was made out.
It was argued by the State counsel that the FIR is a detailed report, the FIR which categorically mentioned that out of 16 live cattle stock which included 7 buffaloes, 1 cow, 2 female buffalo’s calf, 5 male buffalo’s calf, and one male cow-calf.
It was further argued by the state that it was wrong to say that the FSL report gave a clean chit to the applicants. Moreover, as 16 cattle were found in the possession of the applicants and other co-accused and they were not having any license to run the slaughterhouse.
The argument of the Applicant was discarded by the Court on the ground that no offence was made out from the reading of the First Information Report. It was underscored by the court that even though the FSL report had revealed that the sample which was sent for chemical analysis was not cow meat, but from the custody of the applicants and another co-accused, 16 live cattle were also recovered.
The court observing that defence regarding the FSL report shall be considered by the trial court as such defence set up in the present application cannot be considered at this stage by this Court, at the stage of quashing of the charge sheet
Accordingly, the case was dismissed.
MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?
The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.
The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.
It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?
In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.
It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.
The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-
Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.
Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.
HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956
The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.
The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
FACTS OF THE CASE:
The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.
The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.
the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.
Contentions Raised by the Parties:
It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.
It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.
The submissions of the petitioner were countered by the Respondent on the following grounds:
Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.
It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.
The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.
The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.
Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.
KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?
The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.
The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.
The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.
In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.
Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.
It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.
Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.
It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.
Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.
The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?
In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.
Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.
The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.
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