1. Pratap Singh @ Pikki v. The State of Uttarakhand
The Indian Penal Code, 1860 - Sections 147, 148, 302 / 149 and 323 / 149 - The Juvenile Justice (Care and Protection of Children) Act, 2000 - Section 2 (k) - The Juvenile Justice(Care and Protection of Children) Rules, 2007 - Rule 12 - Procedure to be followed in determination of age - the committee constituted has been entrusted to hold inquiry by seeking evidence in support of the respective claim has to first consider if there is a matriculation certificate available, in the first instance. In absence thereof, the date of birth certificate from the school (other than the play school) first attended; and in absence, the birth certificate given by the Corporation or a Municipal Corporation or a Panchayat in the descending form has to be considered as the basis for the purpose of determination of age of the juvenile.
In the instant case, admittedly, the secondary school certificate was issued to the appellant in the year 1993 on 5th June, 1993 in which his recorded date of birth is 13th June, 1977. In the given circumstances, when the appellant has failed to place any supporting material on record while obtaining the date of birth certificate at the later stage on 14th September, 2010, the reliable evidence on record can be discerned from his own certificate issued by the statutory board (CBSE) from where he passed out Secondary and Senior School Examination in the year 1993 and 1995 where his recorded date of birth is 13th June, 1977. In the given circumstances this Court is clear in its view that the appellant was not a juvenile and has crossed the age of 18 years by few days on the date of incident, i.e. 18th June, 1995 and the protection of the Juvenile Justice Act was not available to him.
Penal Law - Question of Sentencing - Principles of Proportionality of Sentencing Policy.
The sentence awarded to the appellant is excessive and the incident is of June, 1995 with no previous criminal record and the appellant was also just at his tender age and undoubtedly, the incident took place on the spur of moment without any premeditation and by passage of time, he has settled with his family who are dependent on him and at least the sentence awarded to him needs interference by this Court which has neither been looked into by the trial Court nor considered by the High Court while dismissing the appeal in the instant proceedings. They were young boys having no previous enmity and were collectively sitting and watching Jagjit Singh night. On some comments made to the girls sitting in front of the deceased, some altercation took place and they entered into a scuffle and without any premeditation, the alleged unfortunate incident took place between two group of young boys and it is informed to this Court that the appellant has served the sentence of more than three years and five months. Taking into consideration in totality that the incident is of June 1995 and no other criminal antecedents has been brought to our notice, and taking overall view of the matter, we find force in the submission of the appellant that the quantum of sentence is excessive and deserves to be interfered by this Court. Considering the overall facts of the case in totality with the nature of crime, the tender age of the appellant at the time of offence, subsequent conduct and other ancillary circumstances, including that no untoward incident has been reported against him and the mitigating circumstances, it is appropriate that in the obtaining factual score, the sentence of rigorous imprisonment be altered to the period already undergone for offence under Section 304 Part II/34 IPC, to meet the ends of justice.
Case Number : Crl.A. No. 1890 of 2011 12-07-2019
Petitioner's Advocate : Vineet Bhagat
Bench : Hon'ble Mr. Justice A.M. Khanwilkar, Hon'ble Mr. Justice Ajay Rastogi
Judgment By : Hon'ble Mr. Justice Ajay Rastogi
2. Pam Developments Private Ltd. v. The State of West Bengal
The Arbitration and Conciliation Act, 1996 - Section 36 - Mere reference to CPC in Section 36 cannot be construed in such a manner that it takes away the power conferred in the main statute (i.e. Arbitration Act) itself.
The phrase used is ‘having regard to’ the provisions of CPC and not ‘in accordance with” the provisions of CPC. In the latter case, it would have been mandatory, but in the form as mentioned in Rule 36(3) of the Arbitration Act, it would only be directory or as a guiding factor. Mere reference to CPC in the said Section 36 cannot be construed in such a manner that it takes away the power conferred in the main statute (i.e. Arbitration Act) itself. It is to be taken as a general guideline, which will not make the main provision of the Arbitration Act inapplicable. The provisions of CPC are to be followed as a guidance, whereas the provisions of the Arbitration Act are essentially to be first applied. Since, the Arbitration Act is a selfcontained Act, the provisions of the CPC will apply only insofar as the same are not inconsistent with the spirit and provisions of the Arbitration Act. [Para 18]
The Code of Civil Procedure, 1908 - Order XXVII Rule 8A - No security to be required from Government or a public officer in certain cases - the provision which was incorporated in the year 1937 during the British Raj, giving certain safeguards to the Government (which was then the British Crown) would not be applicable in today’s time, when we have a democratic Government.
It is to be noticed that Order XXVII Rule 8A of CPC was inserted in 1937 when the British Crown was ruling our country. The same was brought in during the period of British Raj to protect the interest of the then Government (Crown). While considering a case where the State of West Bengal was carrying on trade as owner and occupier of a market in Calcutta (now Kolkata) without obtaining a license as required under Section 218 of Calcutta Municipal Act, 1951, a Constitution Bench of this Court in the case of Superintendent & Legal Remembrancer, State of West Bengal v. Corporation of Calcutta (1967) 2 SCC 170 considered the question as to whether this Court should adopt the rule of construction accepted by the Privy Council in interpreting Statute vis-a-vis the Crown and held that “There are many reasons why the said rule of construction is inconsistent with and incongruous in the present setup we have no Crown, the archaic rule based on the prerogative and perfection of the Crown has no relevance to a democratic republic; it is inconsistent with the rule of law based on the doctrine of equality.” [Para 22]
The Code of Civil Procedure, 1908 - Order XXVII Rule 8A, Order XLI, Rule 1, Order XLI Rule 5 - The Arbitration and Conciliation Act, 1996 - Sections 18, 36 - Equal treatment of Parties - Enforcement - No security to be required from Government or a public officer in certain cases - Form of appeal – What to accompany memorandum - Stay by Appellate Court.
The archaic Rule 8A of Order XXVII CPC has no application or reference in the present times, we may only add that even if it is assumed that the provisions of Order XXVII Rule 8A of CPC are to be applied, the same would only exempt the Government from furnishing security, whereas under Order XLI Rule 5 of CPC, the Court has the power to direct for full or part deposit and/or to furnish security of the decretal amount. Rule 8A only provides exemption from furnishing security, which would not restrict the Court from directing deposit of the awarded amount and part thereof. [Para 27]
The Arbitration and Conciliation Act, 1996 - Sections 18, 34 and 36 - Equal treatment of Parties - Application for setting aside arbitral award - Enforcement - Arbitration Act does not provide for any special treatment to the Government while dealing with grant of stay in an application under proceedings of Section 34 of the Arbitration Act - there is no exceptional treatment to be given to the Government while considering the application for stay under Section 36 filed by the Government in proceedings under Section 34 of the Arbitration Act.
It may be true that the CPC provides for a differential treatment to the Government in certain cases, but the same may not be so applicable while considering a case against the Government under the Arbitration Act. For instance, Section 80 of CPC provides for a notice of two months to be given before any suit is instituted against the Government. Further, it is also provides that no exparte injunction order can be passed against the 27 Government. Whereas on the other hand, under the Arbitration Act no such special provision has been made with regard to arbitration by or against the Government. There is no requirement under the Arbitration Act for a notice of two months to be given to the Government before invoking arbitration proceeding against the Government. Further, Sections 9 and 17 of the Arbitration Act also provide for grant of exparte interim orders against the Government. [Paras 25 & 26]
The Arbitration and Conciliation Act, 1996 - Section 18 - Equal treatment of Parties - Government - The Arbitration Act is a special Act which provides for quick resolution of disputes between the parties and Section 18 of the Act makes it clear that the parties shall be treated with equality. Once the Act mandates so, there cannot be any special treatment given to the Government as a party.
Arbitration proceedings are essentially alternate dispute redressal system meant for early/quick resolution of disputes and in case a money decree award as passed by the Arbitrator against the Government is allowed to be automatically stayed, the very purpose of quick resolution of dispute through arbitration would be defeated as the decree holder would be fully deprived of the fruits of the award on mere filing of objection under Section 34 of the Arbitration Act. The Arbitration Act is a special Act which provides for quick resolution of disputes between the parties and Section 18 of the Act makes it clear that the parties shall be treated with equality. Once the Act mandates so, there cannot be any special treatment given to the Government as a party. As such, under the scheme of the Arbitration Act, no distinction is made nor any differential treatment is to be given to the Government, while considering an application for grant of stay of a money decree in proceedings under Section 34 of the Arbitration Act. As we have already mentioned above, the reference to CPC in Section 36 of the Arbitration Act is only to guide the Court as to what conditions can be imposed, and the same have to be consistent with the provisions of the Arbitration Act. [Para 24]
The Arbitration and Conciliation Act, 1996 - Section 36 - The amended Section 36 of the Arbitration Act provides for: (a) after expiry of making an application to set aside the arbitral award (i.e. 90 days from the award) the award shall be enforced as if it was a decree of the Court; (b) filing of an application under Section 34 shall not by itself render the award unenforceable; (c) upon an application for grant of stay of the award, the Court has the discretion to grant stay, which may be subject to such conditions as it may deem fit; (d) while passing any stay order the Court is to “have due regard” to the provisions of CPC for grant of stay of money decree.
Case Number : C.A. No. 5432 of 2019 12-07-2019
Petitioner's Advocate : Sarad Kumar Singhania
Bench : Hon'ble Mr. Justice R.F. Nariman, Hon'ble Mr. Justice Vineet Saran
Judgment By : Hon'ble Mr. Justice Vineet Saran
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