List of Current Affairs

Source: Delhi High Court

Why in News?

Recently, the Delhi High Court has held that the convict is not entitled to grant of parole, on grounds of procreation or maintaining conjugal relationships with his live-in partner, when he already has a legally wedded wife and children born out of that wedlock.

• The aforesaid observation was made in the matter of Sonu Sonkar v. The Lt Governor, Delhi & Ors.

What was the Background of Sonu Sonkar v. The Lt Governor, Delhi & Ors. Case?

• In this case, the petitioner, who is presently confined in Tihar Jail, Delhi, was convicted under Sections 302/34 of the Indian Penal Code, 1860 (IPC) vide judgment dated 15^th November 2011 passed by the learned Trial Court and was sentenced to undergo rigorous imprisonment for life and payment of fine of Rs. 5,000/-.
• The petitioner has remained in judicial custody for about 16 years 10 months, excluding remission of about 02 years and 09 months.
• He was married to Ms. T on 10^th January 2021, and has completed three years of marriage.
• The petitioner has not been able to consummate his marriage to his wife Ms. T, since the petitioner herein was in judicial custody.
• Ms. T had applied for the release of the present petitioner on parole on this ground itself before the jail authorities on 02^nd January 2024.
• The order dated 05^th March 2024 passed by the respondent, by virtue of which the application filed on behalf of the petitioner seeking parole was rejected.
• Thereafter, a writ petition was filed by the petitioner before the Delhi High Court for setting aside the order dated 05^th March 2024.
• It was argued on behalf of the respondent that the present petition has been filed on false and frivolous grounds as Ms. T is not the wife of the petitioner. It is further stated that as per the Status Report, the petitioner is already married to one Ms. A and had three children with her.
• Dismissing the petition, the High Court does not find it a fit case for grant of parole to the present petitioner.

What were the Court’s Observations?

• Justice Swarana Kanta Sharma observed that the convict is not entitled to grant of parole, on grounds of procreation or maintaining conjugal relationships with his live-in partner, when he already has a legally wedded wife and children born out of that wedlock.
• It was also observed that granting parole on the grounds to have a child or to maintain conjugal relationships with a live-in partner, where the convict already has a legally wedded wife and children born out of that wedlock, would set a harmful precedent.
• It was further stated that the law in India as well as the Delhi Prison Rules, 2018 do not permit grant of parole on the ground of maintaining conjugal relationships, that too with live-in partners.

What are the Legal Provisions in Relation to Parole?

Parole System in India:

Case Laws:

• In the case of the State of Haryana and Ors. v. Mohinder Singh (2000), the Supreme Court clarified the difference between parole and furlough which are as follows:
  • Parole and furlough are both forms of conditional release.
  • Parole can be awarded in short-term detention, whereas furlough is allowed in long-term detention.
  • Parole lasts for one month, whereas furlough lasts for a maximum of 14 days.
  • Parole can be given multiple times, whereas furlough has a limit.
• In the case of Election Commission of India v. Mukhtar Ansari (2017), the Delhi High Court declared that custody parole cannot be used as a substitute for bail and cannot be extended for long periods of time or for daily visits.

Source: Supreme Court

Why in News?

• The Supreme Court recently in case of Sukhpal Singh v. NCT of Delhi ruled that if prosecution witnesses cannot be located and brought to the witness box to testify during trial after the accused has been arrested, their statements recorded in the absence of the accused can be regarded as substantive evidence if it is according to Section 299 of the Criminal Procedure Code, 1973 (CrPC).

What was the Background of Sukhpal Singh v. NCT of Delhi Case?

• The appellant, married to Usha with three children, left her due to marital issues, residing in his village.
• Usha was found dead with visible injuries, and a note allegedly written by Sukhpal was discovered at the crime scene.
• A key witness, Ashok Kumar Pathak, (their neighbor) couldn't be located for trial, but his earlier deposition was considered as evidence.
• The confession notes and handwriting analysis formed the crux of the prosecution's case, leading to Sukhpal's conviction.
• The court found Sukhpal guilty based on the established presence of Sukhpal at the scene of the crime and his subsequent absconding, indicating a guilty conscience.
• The appellant's filled appeal, the High Court upheld the conviction, affirming the significance of the confession note as proof of Sukhpal's involvement.
• The prosecution successfully demonstrated Sukhpal's presence at the crime scene and his subsequent attempt to evade justice, leading to his conviction.
• The case highlights the reliance on circumstantial evidence and expert analysis in establishing guilt in the absence of direct witnesses.
• The appeal was filed in the Supreme Court, the Court affirmed the decision of the High Court and Trial Court and the appeal was accordingly dismissed.

What were the Court’s Observations?

• Justices BR Gavai and Sandeep Mehta, upheld the rulings of the High Court and Trial Court, emphasizing that under Section 299 of the CrPC if an accused person has absconded and there's no immediate prospect of arresting them, the statements of prosecution witnesses recorded in their absence can be utilized against the accused upon their subsequent arrest in case the prosecution witness is unavailable.
• Further the Court observed that viewed in light of the provisions of Section 299 CrPC read with Section 33 of the Indian Evidence Act, 1872 (IEA), trial Court was justified in holding that the statement of Ashok Kumar Pathak (prosecution witness) recorded in these proceedings was fit to be read as a piece of substantive evidence.
• The Supreme Court concurs with the findings recorded by the trial Court and affirmed by the High Court on this vital aspect of the matter.

What are the Relevant Legal Provisions Involved in it?

Section 299 of CrPC

• About:
• Section 299 of CrPC deals with the record of evidence in absence of accused.
• Section 299 of CrPC is now outlined in Section 335 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Legal Provision:

• This Section states that if it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try , or commit for trial such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
• If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.

Case Law

• In the case of Nirmal Singh v. State of Haryana (200), the Supreme Court deliberated on the circumstances under which the statement of a witness recorded under Section 299 of the CrPC would be deemed admissible under Section 33 of IEA. Section 299 of the CrPC is regarded as an exception to Section 33 of the IEA.
  • This exception implies that statements of witnesses recorded under Section 299 of the CrPC are not subject to the restrictions imposed by Section 33 of the IEA.
  • Essentially, evidence obtained through statements recorded under Section 299 of the CrPC can be legally admissible, notwithstanding the absence of an opportunity for cross-examination.

Section 33 of IEA

About:

• Section 33 of IEA pertains to the admissibility of evidence given by a witness in a previous judicial proceeding or before a person authorized by law to take evidence, for the purpose of proving the truth of the facts stated in a subsequent judicial proceeding.
• This provision is typically invoked when the witness is unavailable to testify in the subsequent proceeding due to reasons such as death, inability to be located, incapacity to give evidence, or deliberate efforts by the adverse party to prevent their testimony.

Legal Provision:

• Section 33 of IEA deals with relevancy of certain evidence for proving, in subsequent proceedings, the truth of facts therein stated.
• Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable.
• Provisos to this Section provides that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine.
• That the questions in issue were substantially the same in the first as in the second proceeding.

Source: Allahabad High Court

Why in News?

Recently the Allahabad High Court held that the scope of interference in appellate proceedings under Section 37 of the Arbitration and Conciliation Act, 1996 (A&C Act) stands bracketed to the grounds which are available under Section 34 of A&C Act for challenging the award.

What was the Background of Union of India Through Garrison Engineer vs Ms. Satendra Nath Sanjeev Kumar Architect, Contractors/Builders, Civil Engineers, And Colonisers case?

• A tender was floated by the appellant for executing the work of Provn of Water Borne Sanitation to existing Pan Type Latrines.
• The completion period was 12 months, i.e. 17^th September 1986, but on extension, the work was finished on 30^th April 1998 on which date, the respondent physically handed over the project to the appellant.
• Disputes and differences started, and it was referred to sole arbitration.
• The tribunal pronounced the award in favor of respondent.
• Appellant filed an application under Section 34 of A&C Act to challenge the award pronounced by tribunal before the Commercial Court.
• The commercial court rejected the application and upheld the validity of the award pronounced by sole arbitrator.
• The appeal was presented before the Allahabad High Court to challenge the order of commercial court and the award of sole arbitrator.
• The bone of contention between the parties is whether the escalation of wages etc. was arbitral or not.

What were the Court’s Observations?

• The Court finds that Clause 58 of the General Conditions of Contracts deals with the payment of fair wages which should not be minimum to the wages fixed under the Payment of Wages Act. The High Court stated in our opinion the escalation of wages could not have been said to be non-arbitral.
• The award is not required to be set aside until and unless it is vitiated by "patent illegality" appearing on the face of the record with a caveat that the award should not be set aside merely on the ground of erroneous application of law or by appreciation of evidence.
• Nonetheless, it is also not permissible to interfere, particularly, when the interpretation is a plausible one.
• Viewing the case from all the angles, this Court has no hesitation to hold that the award does not suffer from any patent illegality so as to warrant interference in the present proceedings.
• Therefore, the High Court upheld the decision of the Commercial Court.
• Accordingly, the appeal being devoid of merits and is liable to be dismissed.

What are the Legal Provisions Involved in this Case?

Section 34 of A&C Act:

• This Section deals with the application for setting aside arbitral award. It states that-

(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if—

(a) the party making the application establishes on the basis of the record of the arbitral tribunal that—

(i) a party was under some incapacity, or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or

(b) the Court finds that—

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:

Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.

(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.

Section 37 of A&C Act:

• This Section deals with the appealable orders. It states that-

(1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the following orders (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order, namely: —

(a) refusing to refer the parties to arbitration under section 8;

(b) granting or refusing to grant any measure under section 9;

(c) setting aside or refusing to set aside an arbitral award under section 34.

(2) Appeal shall also lie to a court from an order of the arbitral tribunal—

(a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or

(b) granting or refusing to grant an interim measure under section 17.

(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or takeaway any right to appeal to the Supreme Court.