Exclusive jurisdiction of courts in arbitral matter: circumstances analyzed

 

Exclusive Territorial jurisdiction of court in Arbitration Matters: Distinction of “seat” and “venue” of Arbitration

Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc. 2012(8) SCALE 333 and beyond;

                                                                                                Anil K Khaware

                                                                                                           Advocate

The issue of jurisdiction of courts in a matter arising out of arbitral dispute, particularly, with reference to the territorial jurisdiction of case continued tobe a vexed issue, until recently, and now the dust has settled as the issue appears to have attained finality by virtue of the recitations of hon’ble Supreme Court, while analyzing the finer details and intricacies involved in such matters.

Recently, hon’ble Delhi High Court has succinctly reinforced the dicta after closer analysis of the judicial precedents in this regard. The hon’ble Delhi High Court in a matter of VIRGO SOFTECH LTD v. NATIONAL INSTITUTE OF ELECTRONICS AND INFORMATION TECHNOLOGY (Arbitration Petition No. 753/2018), while applying the judicial precedents, with particular reference to the relevant clause of General Conditions of Contract (GCC) which specifies that seat for arbitration to be at New Delhi. It is no res integra that issues arising out of the decisions of Arbitral Tribunal shall have to be raised within the territorial limit of the court where seat of arbitration is located. In this context the judgment of the Supreme Court in Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc (BALCO[1]); Indus Mobile Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd. and Anr., AIR 2017 SC 2105, Mr.Raman Deep Singh Taneja v. Crown Realtech Pvt. Ltd., 2017 SCC OnLine Del 11966; [2]and Rohit Bhasin and Anr. v. Nandini Hotels, 2013 SCC OnLine Del 2300 deals[3] with the issue and it is held that the seat of the arbitration being at New Delhi, the Court at New Delhi would have exclusive jurisdiction to entertain such petitions.

The hon’ble Delhi High court in Virgo Softech Ltd [4](Supra) has further held:

“I have considered the submissions made by the counsel for the petitioner, however, find no merit in the same. Clause 8.2(b) of the GCC which has been reproduced hereinabove, clearly provides that though the arbitration proceedings shall be conducted at New Delhi, the "courts in Aurangabad (MS) only shall have exclusive jurisdiction to try and entertain any disputes arising there from". The Agreement(s) therefore, clearly provides that all disputes, including those arising out of the arbitration proceedings; have to be necessarily tried by the Courts at Aurangabad alone. In view of the above specific Clause, the stipulation that the arbitration proceedings shall be held at New Delhi would make New Delhi only a “venue‟ of the arbitration and not the “seat‟ of the arbitration”.

The said test clearly means that the expression of determination signifies an expressive opinion. In the instant case, there has been no adjudication and expression of an opinion. Thus, the word 'place' cannot be used as seat. To elaborate, a venue can become a seat if something else is added to it as a concomitant. But a place unlike seat, at least as is seen in the contract, can become a seat if one of the conditions precedents is satisfied. It does not ipso facto assume the status of seat.

That in the aforesaid context it may be worthwhile to refer to a matter captioned as Union of India v. Hardy Exploration and Production (India) INC, 2018 SCC Online SC 1640. The Hon’ble Supreme Court while considering the law in relation to the distinction between the 'seat' and the 'venue' of arbitration has held as under:

"27. In view of the aforesaid development of law, there is no confusion with regard to what the seat of arbitration and venue of arbitration mean. There is no shadow of doubt that the arbitration clause has to be read in a holistic manner so as to determine the jurisdiction of the Court. That apart, if there is mention of venue and something else is appended thereto, depending on the nature of the prescription, the Court can come to a conclusion that there is implied exclusion of Part I of the Act. The principle laid down in Sumitomo Heavy Industries Ltd. (supra) has been referred to in Reliance Industries Limited (II) and distinguished. In any case, it has no applicability to a controversy under the Act. The said controversy has to be governed by the BALCO principle or by the agreement or by the principle of implied exclusion as has been held in Bhatia International”.

The Hon’ble Supreme Court has further held that:

“34. On a perusal of Articles 20 and 31(3) of the UNCITRAL Model Laws, we find that the parties are free to agree on the place of arbitration. Once the said consent is given in the arbitration clause or it is interpretably deduced from the clause and the other concomitant factors like the case of Harmony Innovation Shipping Ltd. which states about the venue and something in addition by which the seat of arbitration is determinable. The other mode, as Article 20 of the UNCITRAL Model Law provides, is that where the parties do not agree on the place of arbitration, the same shall be determined by the Arbitral Tribunal. Such a power of adjudication has been conferred on the Arbitral Tribunal. Article 31(3) clearly stipulates that the Award shall state the date and the place of arbitration as determined in accordance with Article 20(1)”.

In Bharat Aluminium Company Case (supra), the Supreme Court has held that the 'seat' of the arbitration shall determine the jurisdiction of the Court. In the present case, as the Agreement(s) only provide for 'venue' of arbitration at New Delhi, the said judgment is not applicable. Similar is the position with respect to the judgments of Supreme Court in Indus Mobile Distribution [5](supra).

The Supreme Court has held that when a place is agreed upon, it gets the status of seat. It was also held that the terms, "place" and seat are used interchangeably and when only the term, "place" is stated or mentioned and no other condition is postulated it is equivalent to a seat and that finalizes the facet of jurisdiction.  It is further held that t he word 'determination' has to be contextually determined. When a 'place' is agreed upon, it gets the status of seat which means the juridical seat. We have already noted that the terms 'place' and 'seat' are used interchangeably. When only the term 'place' is stated or mentioned and no other condition is postulated, it is equivalent to 'seat' and that finalises the facet of jurisdiction. But if a condition precedent is attached to the term "place", the said condition has to be satisfied so that the place can become equivalent to seat. In the instant case, as there are two distinct and disjunct riders, either of them have to be satisfied to become a place.

The Bombay High Court in a matter captioned as Aniket SA Investments LLC Vs Janapriya Engineers Syndicate Pvt. Ltd. & Ors COMMERCIAL ARBITRATION PETITION (L) NO.1244 OF 2019[6] have dealt with the issue while adjudicating upon a petition u/s 9 of The Arbitration & Conciliation Act. The clause 20.3 dealt with the arbitration clause and was couched in following manner: 

(a) The parties shall mutually appoint a sole arbitrator to resolve the aforesaid disputes or differences. In the event that the parties fail to mutually appoint a sole arbitrator within 15 days, the Promoter and the Investor shall appoint one arbitrator each and the two arbitrators so appointed shall appoint the presiding arbitrator.

(b). All proceedings in any such arbitration shall be conducted in English.

(c). the seat of the arbitration proceedings shall be Mumbai.

(d) The arbitration award shall be final and binding on the parties, and the parties agree to be bound thereby and to act accordingly."

The clause 20.3 in the above case by use of the words "subject to the provisions of Article 20.4 4 of Courts of Hyderabad shall have exclusive jurisdiction to try and entertain disputes arising out of the agreement",

Thus, an exception was carved out the parties mean that they have made an exception to clause 20.3 which would be secondary to clause 20.4

The hon’ble Bombay High court while relying upon the judgment reported as Union of India v. Hardy [7](supra) has held that based on the aforesaid clause the Bombay High Court had no exclusive jurisdiction and the only courts of Hyderabad alone had jurisdiction.

It needs to be observed that by now the law is well settled that party autonomy in arbitral agreements is required to be recognized and would be paramount. It is well settled that where two or more courts have jurisdiction to entertain a suit, parties may by agreement submit to the jurisdiction of one Court to the exclusion of the other Court or Courts. Such agreement is not hit by Section 28 of the Contract Act and such a contract would not be against public policy and becomes legal and enforceable... This is the position which was initially recognized in Hakam Singh Vs. Gammon India Ltd[8]. This legal position is also recognized even in the context of the arbitration law as can be seen from the decision of the Constitution Bench of the Supreme Court in BALCO (supra).

The legislative recognition of party autonomy which enables the party to agree to a place of arbitration or for the arbitral tribunal to decide the place of arbitration can be seen from the provisions of Section 20  of the Act read thus:

Section 2(1) (e) of the Arbitration Act, 1996 reads as under:

"2. Definitions (1) in this Part, unless the context otherwise requires - .........................

(e) "Court" means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil 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 any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes."

We are of the opinion; the term "subject matter of the arbitration" cannot be confused with "subject matter of the suit". The term "subject matter" in Section 2(1) (e)  is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process. In our opinion, the provision in Section 2(1)(e) has to be construed keeping in view the provisions in Section 20,  which give recognition to party autonomy. Accepting the narrow construction as projected by the learned counsel for the appellants would, in fact, render Section 20  nugatory. In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, (Delhi having been chosen as a neutral place as between a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an interim order under Section 17 of the Arbitration & Conciliation Act, 1996, the appeal against such an interim order under Section 37 must lie to the Courts of Delhi, being the Courts having supervisory jurisdiction over the arbitration proceedings and the Tribunal. This would be irrespective of the fact that the obligations to be performed under the contract were to be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such circumstances, both the Courts would have jurisdiction, i.e., the Court within whose jurisdiction the subject matter of the suit is situated and the courts within the jurisdiction of which the dispute resolution, i.e., arbitration is located.

The definition of Section 2(1) (e) includes "subject matter of the arbitration" to give jurisdiction to the courts where the arbitration takes place, which otherwise would not exist. On the other hand, Section 47 which is in Part II of the Arbitration Act, 1996 dealing with enforcement of certain foreign awards has defined the term "court" as a court having jurisdiction over the subject-matter of the award. This has a clear reference to a court within whose jurisdiction the asset/person is located, against which/whom the enforcement of the international arbitral award is sought. The provisions contained in Section 2 (1) (e) being purely jurisdictional in nature can have no relevance to the question whether Part I applies to arbitrations which take place outside India.

However, if the place is specified, then, the issue of jurisdiction of court shall arise as regards the location where the jurisdiction of courts could be invoked and in this backdrop, the aforesaid judgments have settled the issue succinctly.

It is well settled that where more than one court has jurisdiction, it is open for parties to exclude all other courts. For an exhaustive analysis of the case law, Ref: Swastik Gases Pvt Ltd Vs Indian Oil Corporation Ltd, (2013) 9 SCC 32. This was followed in a recent judgment in B.E. Simoese Von Staraburg Niedenthal and Another v. Chhattisgarh Investment Limited, (2015) 12 SCC 225.

In a recent decision of the Supreme Court in Bhahmani River River Pellates Ltd. Vs. Kamachi Industries Ltd[9]., following the law as laid down in BALCO as also referring to the decision in Swastik Gases Pvt. Ltd. Vs. Industries Oil Corporation Ltd.16 reiterated 15 2019 SCC Online SC 929 16 2013 (9) SCC recognized party autonomy and the intention of the parties to confer jurisdiction on the courts as agreed. In this case, the parties had agreed that the venue of the arbitration shall be at Bhuwaneshwar. In the facts of the case, the Court in the absence of any other intention of the parties, the Supreme Court recognized the exclusivity of jurisdiction as agreed between the parties namely to confer jurisdiction on the courts at Bhuwaneshwar. The Supreme Court in this context made the following observations:-

“As per Section 20 of the Act, parties are free to agree on the place of arbitration. Party automony has to be construed in the context of parties’ choosing a court which has jurisdiction out of two or more competent courts having jurisdiction. This has been made clear in the three Judges Bench decision in Swastik Gases (P) ltd Case [10](Supra). in the said case, respondent Indian Oil Corporation Ltd. Had appointed M/s. Swastik Gases Pvt. Ltd. Situated at Jaipur, Rajasthan as their consignment agent. The dispute arose between the parties as huge quantity of stock of lubricants could not be sold by the applicant and they could not be resolved amicably. In the said matter, clause 18 of the agreement between the parties provided that the agreement shall be subject to the jurisdiction of the courts at Kolkata. The appellant - Swastick invoked clause 18 i.e  arbitration clause and filed application under Section 11(6) of the Act before the Rajasthan High Court for appointment of arbitrator. The respondent contested the application made by Swastik inter alia by raising the plea of lack of territorial jurisdiction of the Rajasthan High Court in the matter. The plea of Indian Oil Corporation was that the agreement has been made subject to jurisdiction of the courts at Kolkata and Rajasthan High Court lacks the territorial jurisdiction in dealing with the application under Section 11(6) of the Act. The designated judge held that Rajasthan High Court did not have territorial jurisdiction to entertain the application under Section 11(6) of the Act and gave liberty to Swastik to file the arbitration application in Calcutta High Court which order came to be challenged before the Supreme Court. Pointing out that the words like "alone", "only", "exclusive" or "exclusive jurisdiction" have not been used in the agreement and use of such words is not decisive and non-use of such words does not make any material difference as to the intention of the parties by having clause 18 of the agreement that the courts at Kolkata shall have the jurisdiction, the Supreme Court held as under:

"31. In the instant case, the appellant does not dispute that part of the cause of action has arisen in Kolkata. What appellant says is that part of cause of action has also arisen in Jaipur and, therefore, the Chief Justice of the Rajasthan High Court or the designate Judge has jurisdiction to consider the application made by the appellant for the appointment of an arbitrator under Section 11. Having regard to Section 11 (12) (b)  and Section 2 (e) of the 1996 Act read with Section 20(c) of the Code, there remains no doubt that the Chief Justice or the designate Judge of the Rajasthan High Court has jurisdiction in the matter. The question is whether parties by virtue of Clause 18 of the agreement have agreed to exclude the jurisdiction of the courts at Jaipur or, in other words, whether in view of Clause 18 of the agreement, the jurisdiction of the Chief Justice of the Rajasthan High Court has been excluded?

32. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words like "alone", "only", "exclusive" or "exclusive jurisdiction" have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties--by having Clause 18 in the agreement-- is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor is it against the public policy. It does not offend Section 28 of the Contract Act in any manner.

33. The above view finds support from the decisions of this Court in Hakam Singh Vs Gammon India Ltd (1971) 1 SCC 286,  A.B.C Laminart Pvt Ltd Vs ABC Agencies (1989) 2 SCC 163[11], R.S.D.V R.S.D.V. Finance Co. Pvt. Ltd Vs Vallabh Glass Works Ltd (1993) 2 SCC 130[12], Angile Insulations vs Davy Ashmore India Ltd. And Anr on 18 April, 1995, (1995) 4 SCC 153[13], Shriram City Union Finance Corporation Pvt Ltd Vs Rama Mishra  (2002) 9 SCC 613[14], M/S Hanil Era Textiles Ltd vs M/S Puromatic Filters (P) Ltd on 16 April, 2004 (2004) 4 SCC 671 [15]and Balaji Coke Industry Pvt Ltd Vs Maa Bhagwati Coke Gujarat Private Ltd (2009) 9 SCC 403[16].

The common thread which is discernible from these decisions of the Supreme Court, is the recognition of the principle that the law acknowledges that two courts would have jurisdiction, firstly where the cause of action is located and secondly the court where the arbitration takes place. It would be permissible for the parties to confer jurisdiction on one of these courts. Once the parties in the agreement confer jurisdiction upon one of the courts, such agreement conferring jurisdiction on one of the Courts would be required to be recognized in terms of Section 20 of the one of the Act applying the Hakam Singh (supra) and the Swastik Gases Pvt. Ltd. (supra) principle. In my opinion a plain commercial meaning is required to be attributed to the said clauses of the agreement when the parties agree to confer exclusive jurisdiction on the courts at Hyderabad, applying these principles as laid down in the said decisions of the Supreme Court. The principle of party autonomy is well recognized in the successive decisions of the Supreme Court as noted above. It is also well settled that the words "seat" and "venue" are interchangeably used and the true intention of the parties in agreeing to the clauses of the agreement, like the one in question would be required to be derived from the combination of these clauses and the real meaning the parties intend to attribute from a holistic reading of these clauses. It may not be possible to read the clauses of the agreement in a manner which would render nugatory, the plain commercial meaning and intention of the parties to incorporate the specific clauses. Applying these norms, in my opinion when the parties in the present case intended to confer exclusive jurisdiction on the courts at Hyderabad, by clause 20.3, it will have to be given a proper commercial meaning as intended by the parties, without rendering the clause otiose. In this context the observations of the Supreme Court in M/S Swastik Gases P.Ltd vs Indian Oil Corp.Ltd on 3 July, 2013 are required to be noted. Mr.Justice R.M.Lodha (as His Lordship then was) observed thus:-

"37. In my opinion, the very existence of the exclusion of jurisdiction clause in the agreement would be rendered meaningless were it not given its natural and plain meaning. The use of words like "only", "exclusively", "alone" and so on are not necessary to convey the intention of the parties in an exclusion of jurisdiction clause of an agreement. Therefore, I agree with the conclusion that jurisdiction in the subject-matter of the proceedings vested, by agreement, only in the courts in Kolkata."

In the concurring judgment of His Lordship Shri. Justice Madan B.Lokur (as His Lordship then was) while agreeing with the observations of Mr.Justice R.M.Lodha, that the absence of the words 'alone', 'only', 'exclusive jurisdiction' in the jurisdiction clause is neither decisive nor does it make any material difference in deciding the jurisdiction of a court and that the existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement quite clear. His Lordship was pleased to take note of the decision in " A.B.C. Laminart (P) Ltd. Vs. A.P. Agencies, ((1989)2 SCC 163)" to observe that when the parties have agreed to an ouster clause in the agreement, the parties convey their clear intention to exclude jurisdiction of the Court other than those mentioned in the clause concerned. In holding so, after taking into consideration several decisions on the issue.

The aforesaid decisions have clearly settled the dust as regards the “Venue” of arbitration and “seat” of arbitration and consequent territorial jurisdiction and clear distinction is made out as regards the implication of the same and on the touchstone of law, the territorial jurisdictional aspects of courts are ascertained and particular emphasis in this regard may be have to a matter captioned as Union of India v. Hardy Exploration and Production (Supra) as the said judgment has categorically defined the difference between “Venue” and “seat” and the inherent distinction.

 

References:-

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[1]Bharat Aluminium Company Vs Kaiser Aluminium Technical Services Inc.,2012(8) SCALE 333;

[2] Mr.Raman Deep Singh Taneja Vs Crown Realtech Pvt. Ltd., 2017 SCC OnLine Del 11966;

[3] Rohit Bhasin and Anr. Vs Nandini Hotels, 2013 SCC OnLine Del 2300

[4]  Virgo Softech Ltd Vs National Institute Of Electronics And Information Technology , Arb. Petn. No. 749 of 2018 (Delhi High Court, 2019);

[5] Indus Mobile Distribution Pvt. Ltd. Vs. Datawind Innovations Pvt. Ltd. and Anr., AIR 2017 SC 2105

[6] Aniket SA Investments LLC Vs Janapriya Engineers Syndicate Pvt. Ltd. & Ors COMMERCIAL ARBITRATION PETITION (L) NO.1244 OF 2019 2020 (1) , ABR 398 (Bombay High Court, 2019).

[7] Union of India Vs Hardy Exploration and Production (India) INC, 2018 SCC Online SC 1640

[8] Hakam Singh Vs. Gammon India Ltd (1971) 1 SCC 286

[9] Brahmani River River Pellates Ltd. Vs. Kamachi Industries Ltd,  2019 SCC Online SC 929

[10] Swastik Gases Pvt. Ltd. Vs. Industries Oil Corporation Ltd.16 reiterated 15 2019 SCC Online SC 929 16 2013 (9) SCC

[11] A.B.C Laminart Pvt Ltd Vs ABC Agencies (1989) 2 SCC 163

[12] R.S.D.V. Finance Co. Pvt. Ltd Vs Vallabh Glass Works Ltd (1993) 2 SCC 130, 

[13] Angile Insulations Vs Davy Ashmore India Ltd. And Anr on 18 April, 1995,  (1995) 4 SCC 153

[14] Shriram City Union Finance Corporation Pvt Ltd Vs Rama Mishra  (2002) 9 SCC 613

[15] M/S Hanil Era Textiles Ltd Vs M/S Puromatic Filters (P) Ltd on 16 April, 2004 (2004) 4 SCC 671

[16] Balaji Coke Industry Pvt Ltd Vs Maa Bhagwati Coke Gujarat Private Ltd (2009) 9 SCC 403.

PARAMETER OF BAIL IN MATRIMONIAL CASES Anil K Khaware Advocate

 

PARAMETER OF BAIL IN MATRIMONIAL CASES

                                                Anil K Khaware

                                                Advocate

A PRELUDE:

Crime in society is as old as civilization itself. The law is codified in due course and Do’s and Don’ts are prescribed. The departure or deviation from the code of conduct is perceived as crime, if the effect of the deviation leads to causing harm to any other’s body, property or materials. The law may act as a deterrent, but cannot possibly wipe out crime altogether.  Therefore, system of punishment is in place, should there be departure from code of conduct. The society and governing system is dynamic and hence, to meet the situation and exigencies laws are framed. The constitution itself contains the governing principles and sets out object of the nation. However, to amalgamate change in a system and society, amendment in law 8is also felt necessary.  The Constitution of India for instance, has been amended for more than 100 times, ever since constitution was adopted on 26^th November 1949. The law & various Acts accordingly have undergone periodic changes as dynamism is a quintessential principle of life. The family system, kinship and relationship have undergone metamorphosis, over the years and changes has occurred, whether positive or negative. The most relevant definition of law as on today is propounded by Austin, who defined law as a command of sovereign backed by sanction. Clearly, law has to emanate from sovereign, else, the law shall be meaningless and shall lead to turmoil. In ancient or medieval India Sovereign was headman, Panch, Pradhan or king. The Aristocracy, dictatorship, monarchy and democracy are the system of governance that has developed in due course. Many feel, though, that despite some pitfalls, democracy is the best system of governance. However, in democracy also power of people vested in a sovereign, who may have council of ministers to run the system. The command may come only from sovereign. The command presupposes power and unless there is a sovereign command, there cannot be any command. It is so, as it is the command which compel or propel people to follow the command, else, people shall be indifferent to command. Assuming there is violation or negation of command by anyone, there comes sanction i.e fear of punishment which implies people to obey law.

The crime is an offshoot to the system itself. The crime is a wrong committed against state and therefore the onerous duty of trial and seeking punishment against the crime and criminals falls on the prosecution represented by state. The prosecutor is the legal counsel representing the state and the police has the duty to investigate and file charge sheet if case against an accused is made out. The case was thereafter sent for trial and charges are framed by the court before proceeding with trial.

The case within a family is quite different and modern day life style have caused bickering, probably, because of high paced life resulting into turning to short fuse. Rationality being casualty in such a situation. The need and greed has substantive mismatch. The desire and passion of having more leads the one to a different territory of anguish and depression sets in. How much is too much cannot be ascertained and rat race in life continues. The failure of meeting aspiration finds outlet of seeking that from the other quarter and the expectation from the parents of the wife gets its genesis from here. The discussion in this regard goes to another level and quipping, blaming and castigating each other’s family becomes norm. The quarrel thus ensue and this leads to violence and cruelty. The role of state therefore starts right from here. In earlier days the quarrel of family did not find place in courts, for, it was considered as taboo and disparaging. The time has changed and so did the attitude and the courts of law is flooded with matrimonial litigation.

The cases/complaints that reaches police station may not contain gospel truth. Some time it is half truth and further it may contain lies and subterfuges. The complaint lodged by a woman may lead to mediation, conciliation or ends up in registering F.I.R. The complaint, if motivated contains innuendo and frames in-laws for no rhyme and reason and merely with a view to wreak vengeance. The Sections 498-A/406/120 B of Indian Penal Code is non-bailable. The wife and husband and his family contest the cases and the fence is drawn and case is set out or vendetta is unleashed.

It is at this stage that the need of obtaining bail is felt. The husband and family of husband may find their abode in jail, if bail is not granted to them. Dowry demand and cruelty on women finds its place under section 498-A of Indian Penal Code, whereas section 406 of Indian Penal Code relates to retaining the articles, jewelleries of a women in in-laws house and if the husband and in-laws allegedly conspired against the wife then all such people are named as accused and trap of section 120 B of Indian Penal Code is invoked.

BAIL: DEFINED

Bail commonly means release on one’s own bond, with or without sureties. The basic doctrine of criminal law is that accused person shall be presumed to be innocent until proved guilty beyond reasonable doubt. The granting of bail does not tantamount to set the accused free, but it is akin to release him from custody and to entrust him to his own bond and to the custody of his sureties who shall be mandated to produce him to appear at his trial if and when directed by the courts. Therefore, Bail is a mere security obtained from a person arrested relating to an offence with a view to securing his presence during the trial process.

The bail in matrimonial cases is one of the most vexed topic, in as much as the F.I.R if registered u/s 498-A by a woman is non-bailable and more oftenly, in-laws are also roped in the F.I.R. The provisions are also misused oftenly as the trend over the years suggests. The fear psychosis meted out to in-laws of wife in particular has prompted the hon’ble Supreme Court to issue directions/guidelines so as to law of the land should be used properly and no segment should remain on perpetual danger of going behind bars. ‘Bail is a rule, jail is an exception’ is a legal doctrine that was laid down by the Supreme Court of India in a landmark judgment of State of Rajasthan vs. Balchand alias Baliya AIR (1977) 2447. The legal doctrine, in this case, was laid down by Justice V. Krishna Aiyer, who based it on fundamental Rights guaranteed by the constitution of India.

Still, there is no denying that in mechanical manner bails are rejected by the courts in matrimonial cases. In heinous crimes and when culpability of the accused is palpable, of course, bail cannot be granted. However, the misuse of provisions in matrimonial cases needed censure and therefore in a matter captioned as 2017 (II) ILR - CUT- 497 (S.C.), the hon’ble Supreme Court ( CORAM: Hon’ble Justice ADARSH KUMAR GOEL, & hon’ble Justice UDAY UMESH LALIT, captioned as RAJESH SHARMA & ORS .Vs STATE OF U.P. & ANR has passed certain directions in extension to earlier direction passed in Arnesh Kumar vs State of Bihar 2014 CrlLJ SC.  

The husband, along with other relatives were accused of causing cruelty to the wife and there were dowry demands. The hon’ble Supreme Court had to lay down parameter in extension to Arnesh Kumar case with a view to prevent over-implication. It was felt that in most of the cases the relatives of the husband are also being dragged into Courts in cases of Section 498A, whereas it cannot be implied that that they have been party to the offence. The bench also referred 243rd Law Commission Report and 140^th  report of the Rajya Sabha Committee.

KINDS OF BAIL

The provision of bail is encapsulated in the Criminal Procedure Code. Broadly, the bail could be of following types: -

Regular Bail: - Section 439 of Cr.P.C contains the provision. Under this section bail could be granted to a person who has been arrested and/or was either in police custody or judicial custody. Section 437 of Cr.P.C contains the principles of regular bail that may be preferred before a Judicial Magistrate or Metropolitan Magistrate as the case may be.

Anticipatory Bail: - Section 438 of Cr.PC contains the principles. The anticipatory bail relates to pre-arrest bail and may only be granted by Sessions Court or High Court. It is granted when someone apprehends arrest in some crime.

Interim Bail: - The interim bail is of shorter duration and before finally arriving at decision, the courts , if satisfied that interim bail could be granted, during the pendency of the bail petition itself, interim bail or protection is granted to the accused.

Default bail: - The principle is there I Section 436A of the code of criminal procedure. The under trial accused is in judicial custody and may have undergone half of the maximum punishment awardable for the offence and the trial still continues, then, default bail is granted..

Transit Bail: This is not a type of bail but is in practice in certain circumstances. It comes in operation if F.I.R against an accused is registered in different town, whereas the accused may be resident of other town. With a view to afford the accused to seek bail and take steps in this regard in a place where F.I.R is registered against him protection for arrest for limited period is granted to him. This is for short duration such as for 10-15 days. The reason being that the court, where the accused is an ordinary resident shall have no jurisdiction, as the F.I.R is registered in another location and finally only the courts of that jurisdiction can decide on the issue of bail. The provision in vogue is therefore, an enabling provision to secure the interest of justice.

The courts while deciding on the plea of baikl on behalf of the accused weighs the facts of the case on the touchstone of law and on the following premise:

 

(a)      nature of accusation and severity of punishment in case of conviction and nature of supporting evidence.

(b)      reasonable apprehension of tampering with witnesses or apprehension of threat to the complainant

(c)      prima facie satisfaction of the court in support of the charge

Prescription from Supreme Court:

(i)           Cases where a bail application is filed with at least one clear day’s notice to the Public Prosecutor or the complainant, the same may be decided on the same day.

(ii)          Merely because recovery of disputed dowry items is to take place that should not be a ground for denial of bail.

(iii)        The role of individual, prima facie involvement of accused , need of arrest for custodial interrogation are the aspect needed appropriate weighing

(iv)        In respect of the person living abroad impounding of passports or issuance of Red Corner Notice should not be adopted as a routine exercise.

(v)          The District Judge or a designated senior judicial officer nominated by the District Judge may club all connected cases between the parties arising out of matrimonial disputes so as to take a wholesome c view.

(vi)        The necessity of personal appearance of all family members and particularly outstation members should be avoided.

(vii)       Further, the trial court ought to generally grant exemption from the personal appearance or permit appearance by video conferencing without adversely affecting the progress of the trial or appearances may be permitted though counsel.

However, these directions shall not apply to the offences involving tangible physical injuries or death.

 

Whether the accused/prospective accused can seek ANTICIPATORY bail prior to registration of F.I.R

 

The basic rule is that in case F.I.R is registered  against an accused and he is alleged to be involved in a non-bailable offence, then only he may  approach courts of law and not otherwise. However, the vexed point earlier was as to whether only registration of F.I.R against the accused shall lead to apprehension of arrest and qualifies the accused to approach the courts of Sessions or High Court or even prior to the registration of F.I.R,  if there is a reasonable apprehension of arrest, one may approach courts of law. The issue is now settled and it is no longer res integra and it is held that apprehension of arrest shall not be contingent on registration of F.I.R and even prior to registration of F.I.R for interim bail, the accused alleged to be involved in any offence could move courts to seek anticipatory bail. Some of the judgments in this regard are as under:

 

S.N	Particulars	Remark
1.	Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1648 : 1980 Cri LJ 1125 : (1980) 2 SCC 565,	a Constitution bench of the Supreme Court has held that the filing of a First Information Report is not a condition precedent to the exercise of the power to grant anticipatory bail under S. 438 Cr.P.C. and that the imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.
2.	K. Rajasekhara Reddy v. State of A.P., 1999 Cri LJ 1933 at p. 1935 (AP)	it has been held that the filing of an F.I.R. and registration of a crime by the police is not a condition precedent to the exercise of the power under S. 438 of Cr.P.C. Jurisdiction of the High Court can be invoked by any person even in the absence of registration of a crime and there is no requirement of furnishing the crime number as such. There is also no requirement that a copy of the F.I.R. should be made available for the purpose of considering the application under S. 438 of Cr.P.C.
3.	(2) Sanjeev Kohli & Ors. vs. State 2005(1) JCC 510.	The direction was that in the event an FIR is registered against the petitioners/accused  in respect of the complaint referred to in the notice bearing No. R13/CAW-CELL/NW Delhi, Pitam Pura issued on 9th March, 2005, the petitioners shall be given seven days notice prior to their arrest”.
4.	Prem Wati vs. State 93(2001) DLT 646.	it is ordered that whenever FIR is registered and petitioner is sought to be arrested, she would be given seven days‟ time in writing. Petitioner shall participate and co-operate in the investigation, as and when required.
5.	In the case of In re Digendra Sarkar, 1982 Cri LJ 2197 at p. 2199 (Cal) : 1982 (2) Cal HN 317	Section 438 of the Code applies even when there is no “First Information Report” and no case for commission of a non-bailable offence has been registered against a person. If a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, although no “First Information Report” was filed against him, he may appear before the Court and apply for an order for his release on bail in the event of his arrest. The filing of a “First Information Report” is not a condition precedent to the application for anticipatory bail and in such a case, the person having reason to believe that he may be arrested on an accusation of non-bailable offence may appear before the High Court or the Court of Session
6.	(v) In Saurabh Ajit Nerukar vs. State through SHO Mandir Marg New Delhi in Bail Appln. 1304/2014 decided on 30.05.2014. (Delhi High Court)	It was directed that Five (5) days advance notice shall be issued to the petitioner’s counsel, in the event of arrest of the petitioner, in case FIR under Sections 406/498A IPC is registered against the petitioner on the complaint of the complainant pending before CAW Cell. The petitioner shall, however, join the investigation as and when required”.

 

 

GRANTING OF BAIL AFTER REGISTRATION OF F.I.R

 

Delhi High Court vide order dated 4th August, 2008 in Chander Bhan versus State5(2008) 151 DLT 691 directed issuance of following guidelines for bail :

Police Authorities: (a) Pursuant to directions given by the Apex Court, the Commissioner of Police, Delhi vide Standing Order No.330/2007 had already  issued guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC and the said guidelines should be followed by the Delhi Police strictly and scrupulously. (i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl.DCP. (ii) Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP. (iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc. should only be made after prior approval of DCP on file. (b) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance. (c) FIR in such cases should not be registered in a routine manner. (d) The endeavour of the Police should be to scrutinize complaints very carefully and then register FIR. (e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust. (f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant.”

The wife alleged physical and mental cruelty at the hands of the husband and accused him under Section 498A, IPC. The husband, however, denied all the charges. In a case reported as Manju Ram Kalita v. State of Assam (2009) 13 SCC 330 The Court held that “Cruelty” for the purpose of Section 498-A IPC is to be established in the context of Section 498-A IPC . The conduct of the man and weighing the gravity or seriousness of his acts shall be relevant. Moreover, it is also to be ascertained if it was likely to drive the woman to take extreme step. It is to be established that the woman has been subjected to cruelty continuously or at least in close proximity of time of lodging the complaint. It is a settled proposition of law that petty quarrels cannot be dubbed as “cruelty”  so as to fall within the confine of of Section 498-A IPC.

The hon’ble Supreme Court referred to the case of S. Hanumantha Rao v. S. Ramani  1999) 3 SCC 620  for the meaning of mental cruelty. as Mohd. Hoshan v. State of A.P(2002) 7 SCC 414  Raj Rani v. State (2000) 10 SCC 662  ], Sushil Kumar Sharma v. Union of India(2005) 6 SCC 281  and the aforesaid cases are relevant in the context.

REMARK

Section 41 of Cr.P.C empowers the police to arrest any accused without warrant and the same provision was being used to the hilt, but section 41 A was added in Cr.P.C w.e.f 1.11.2010 and some fetter is attached to the said  power of Police and prior notice to the accused was made necessary. Still, the power of the police somewhat remained intact, in as much as it was left to the police discretion if section 41 A notice was required to be sent and thus misuse of the power still remained vested in police. Then came the milestone judgment of hon’ble Supreme Court in a matter reported as Arnesh kumar vs State of Bihar 2014 CrlLJ SC  which has laid down guidelines so as to prevent abuse of the power of police  and the tyranny of accused at the behest of powerful people could be mitigated, at least so far as related to arrest at the very onset in matrimonial cases u/s 498-A IPC is concerned. The safeguard laid down in Arnesh Kumar (supra) and Rajesh kumar RAJESH SHARMA & ORS .Vs STATE OF U.P. & ANR (supra) have somewhat alleviated the misery of the persons, accused of offence u/s 498 A /406/120 B of Indian Penal Code. Even the guideline towards bail qua the accused of such offences are quite clear and the fear of sudden surfacing damocle sword does not persist in the mind of accused of such matrimonial cases anymore and the safeguard helped in a way to manage a level playing field.     

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