List of Current Affairs

Source: Karnataka High Court

Why in News?

Justice M Nagaprasanna has observed that the plea of parity raised by an accused in seeking bail is not binding on the court and individual offences and individual overt acts are to be assessed and not to simply follow orders of other accused who are enlarged on bail and on parity grant the same.

• The Karnataka High Court gave this judgment in the case of Almas Pasha and the State of Karnataka.

What is the Background of Almas Pasha and the State of Karnataka Case?

• The accused, in his second bail application, claimed that the petitioner is entitled to be enlarged on bail on the score of parity.
• Placing reliance upon the judgment rendered by the coordinate bench granting bail to accused no. 3, it was contended that another accused had been denied bail by the court which the said accused had called in question before the Apex Court.
• The Apex Court on the ground of parity granted him bail.
• The present accused too should be released on bail on sheer parity. Since the father of the petitioner is ailing and he has to be with his ailing father, therefore, he be granted bail.
• Opposing the bail plea, the counsel for the prosecution submitted that it was the petitioner who hit the first blow, chopped off the hand of the victim (Son-in-law) and the offence being so grave, he should not be enlarged on bail.
• But the accused have been released on bail in different circumstances and thus, the present accused can't be granted bail merely on the ground of parity.
• The bench went through the court orders passed in the case of another co-accused to note that accused no. 3, who was enlarged on bail, was granted relief on the ground that he required immediate surgery to the left knee and spine.
• The court noted that the another accused, who was enlarged on bail long before rejection of bail of the present petitioner by the HC.
• Therefore, the court added that it would not become a changed circumstance. It also noted that accused no. 5 was released on bail by the apex court.
• The court opined that enlargement of accused nos. 3 and 4 by the coordinate bench of the court and accused no. 5 was granted relief by the apex court and these factors would not form semblance of changed circumstances for entertainment of the petition of the present accused.

What was the Court’s Observation?

• The findings in the charge sheet are that the petitioner was the first person to take out the chopper, cut the hands of the deceased, hit the deceased along with a stick and later cut the hands into pieces. Though the petitioner was not required for custodial interrogation, the findings are grave enough to anticipate any danger.
• Merely because other accused are enlarged on bail, the petitioner would not get a right to get himself enlarged on bail.
• The submission that the petitioner/accused no. 2 and accused no. 5 are similarly placed is unacceptable as individual overt act by the petitioner has a chilling effect on any petition considered for enlargement on bail.
• A persuasive parity would not mean that the petitioner would also be enlarged on bail. The medical condition of his father is projected as a ruse to get himself enlarged on bail, which ground is also unacceptable.

What is ‘Plea of Parity’?

• Meaning:
  • The parity principle means that a sentence should be ‘similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.’
  • Given the subjective nature of the sentencing process it is necessary that all sentences ‘must respect the parity principle’.
  • Offenders being sentenced to the same or similar offence should not have disparate sentences.
  • The sentences should be approximately the same, taking into account the aggravating and mitigating factors unique to the individual.
  • Parity does not mean uniformity and should not reduce the focus on the need for proportionality.
• Purpose of Parity:
  • The purpose of the parity principle is to ensure fairness ‘by avoiding disproportionate sentences among convicted persons where, essentially, the same facts and circumstances indicate equivalent or like sentences.
  • It does not, however, override the individualized approach to sentencing.
  • The purpose is not to match sentences perfectly, but rather should advance fairness.

Source: Punjab and Haryana High Court

Why in News?

Justice Gurvinder Singh Gill and Gurbir Singh have observed that where sufficient evidence is available to corroborate the prosecution version, the statement of the complainant, despite his turning hostile during cross-examination can still be relied upon.

• The Punjab and Haryana High Court gave this judgment in the case of Shokeen v. State of Haryana.

What is the Background of Shokeen v. State of Haryana Case?

• The prosecution, in order to lend corroboration to version of the complainant, relied upon the factum of recovery of the weapon of offence at the instance of the accused and on the report of Forensic Science Laboratory (FSL).
• According to the prosecution, the accused (Shokeen) had fired the gunshots at the victim-girl head following an altercation with her father at a party in 2016.
• In his examination in chief, the deceased girl's father had stated that the accused Shokeen had fired gun shots at his daughter and his friends encouraged him to do so. However, after 7 months in cross- examination the complainant deferred from his statement.
• The FSL report pertaining to the ballistic examination of the allegedly recovered country-made pistol supported the prosecution's case but the counsel for the accused said reports of FSL cannot be looked into as no opportunity whatsoever was ever afforded to the appellant to cross-examine the expert.
• The court noted, on perusal of the testimony of prosecution witness-4 (complainant), it is invincible that in examination-in- chief, he had supported the prosecution story in entirety but in the cross-examination, he had taken the path of prevarication.
• The accused confessed his guilt immediately after the incident when he was arrested. He made a disclosure statement confessing his guilt and as regards having concealed the country-made pistol in fodder room near the house of his uncle.
• The accused, in furtherance of his disclosure statement led the police party to the place where he had kept the pistol concealed and got the same recovered along with one live cartridge and an empty cartridge.
• Perusing the examination-in-chief of the complainant the court noted that he stated consistently with the first version that the accused had fired from a country-made pistol at forehead of his daughter. The said version finds corroboration from medical evidence as well, added the bench.
• Consequently, the plea was dismissed.

What was the Court’s Observation?

• Under these circumstances where sufficient evidence is available to corroborate the prosecution version, the statement of the complainant, despite his turning hostile during cross-examination can safely be relied upon.
• It is apparently a case where the accused had been successful in winning over the complainant during the inordinate delay of 7 months in recording cross-examination after the examination-in-chief had been recorded.

What is a ‘Witness’?

• About:
  • A witness is a person who has personally seen an event happen. The event could be a crime or an accident or anything. Section 118-134 of the Indian Evidence Act, 1872 (IEA) talks about who can testify as a witness, how can one testify, what statements will be considered as testimony, and so on.
  • As per Section 118 of IEA, 1882, a competent witness is one who has the capacity and ability to understand the questions put to him by the court. If he has the understanding of questions and the ability to give rational answers, then he is a competent witness.
  • Any person can be a witness. There’s no restriction as to who a witness can be.
  • A person, either male or female, a child or aged, can be a witness. The only restriction is that if a person does not understand the questions and is not able to answer rationally, then he is not a competent witness.

Source: Delhi High Court

Why in News?

Recently, the Delhi High Court in the matter of Smaaash Leisure Ltd V. Ambience Commercial Developers Pvt Ltd., has held that a party cannot be compelled to appoint an arbitrator from a narrow panel consisting merely of three persons.

What was the Background of Smaaash Leisure Ltd V. Ambience Commercial Developers Pvt Ltd. Case?

• In this case, the petitioner is involved in the business of gaming and entertainment centers and the respondent is a Real Estate Group.
• A lease deed was executed between the petitioner and the respondent dated 1st August 2017 for the leasing of premises within Ambience Mall, Vasant Kunj, Phase-II, New Delhi (Leased Premises) for operating and managing an entertainment center.
• The lease period was 20 years.
• Due to financial hardships compounded by the unprecedented challenges posed by the COVID-19 pandemic, the petitioner terminated the lease in 2020.
• The respondent invoked the dispute resolution contained in the lease deed and proposed the names of three former Judges of Delhi High Court, requesting the petitioner to nominate one of them as the sole Arbitrator.
• The petitioner communicated its unequivocal non-acceptance of the three names.
• Despite the petitioner's objections, the respondent proceeded to unilaterally appoint an Arbitrator.
• Despite petitioner's non-participation, the arbitrator proceeded to pass the impugned awards.
• Aggrieved thereby, the petitioner challenged it under the Arbitration & Conciliation Act, 1996 (A&C Act).
• The court set aside the award on grounds of ineligibility of the arbitrator.

What were the Court’s Observations?

• Justice Jyoti Singh observed that a panel of arbitrators consisting of merely three persons is not broad-based, therefore, a party cannot be compelled to appoint the arbitrator from such a narrow panel.
• The Court further restated that mere participation in the arbitral proceedings cannot be constituted as a waiver to application of Section 12(5) of the A&C Act, therefore, a party cannot be precluded from challenging the jurisdiction of the tribunal merely on ground of participation in the arbitral proceedings, if the objection goes to the root of the matter and renders the arbitrator ineligible.

What is Section 12(5) of the A&C Act?

• About:
  • This section states that notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator.
• Case Laws:
  • In Perkins Eastman Architects DPC & Anr v. HSCC Limited, (2020), the Supreme Court crystallized the position in law that unilateral appointment of the Arbitrator will be vitiated under Section 12(5) of the A&C Act as it hits the principle of autonomy.
  • In Saroj Pandey v. Aaryavrat Products India Pvt. Ltd., (2023), the Supreme Court held that once the Arbitrator becomes disabled and ineligible to act under Section 12(5) of the A&C Act, it is not even necessary to examine the question whether the party in disagreement with the appointment had raised an objection to the appointment and even if it is assumed that the said party had participated in the arbitral proceedings, without raising any objection to the appointment, it is not open to hold that it had waived its right under Section 12(5).