Top News Headlines 18th Apr 2022: Report After Investigation u/s 173(8) CrPC Must Be Placed Before Magistrate

Report After Investigation u/s 173(8) CrPC Must Be Placed Before Magistrate: Chhattisgarh HC

• In the case of Mirza Dawood Baig vs State of Chattisgarh and ors, the Chhattisgarh HC has held that in cases where any further investigation has been carried out under Section 173(8), then irrespective of its outcome, the report of such further investigation must be mandatorily submitted before the Magistrate. 
• In the instant case, the charge sheet was filed against the accused under sections 498A, 323, 377/34, 406  and 506B of the IPC on a complaint which was filed by the complainant. During the pendency of the proceedings before the trial Court, the Public Prosecutor had filed an application under section 173(8) CrPC praying for a further investigation into the charge under section 406 IPC.
• The grievance of the petitioner was that the report of the investigation that was carried out was not produced before the Court. It was argued that the outcome of the investigation that was carried out was necessary in order for him to defend himself in the case. The State however, argued that it was its prerogative to file the report or not. 
• The HC relied upon the latest judgement of the Apex Court in Luckose Zacharia vs Joseph Joseph and ors (decided on 18-2-2022) wherein it was held that in the event of a further investigation, the report has to be forwarded to the Magistrate, upon which the provisions of sub-sections 2 to 6 of section 173 CrPC would apply, as they apply to the report forwarded under section 173(2) CrPC. 
• The Court also relied upon the decision of the Apex Court in Vinay Tyagi vs Irshad Ali @ Deepak and ors (2013) SCC where the Court had held that since the supplementary report under section 173(8) CrPC was presented before the Magistrate after further investigation, the Magistrate is required to take into account both the reports under section 173(2) as well as under section 173(8) and then determine whether there is any ground for proceeding with the case. 
• In the case of Joginder Yadav vs State of Bihar (2014) SCC the Apex Court had held that it is the duty of the Court to ensure that a fair investigation is carried out, and to prevent any foul play in the same. If certain further investigation is carried out, then irrespective of the fact whether it supports the case of the prosecution or the accused, to demonstrate the fact of a fair trial the police is required to place the same before the Magistrate. 
• Thus, keeping in mind the observations of the Apex Court, the Police in the instant case was directed to submit the supplementary report of the further investigation to the  Magistrate within a period of 30 days. 

Witness Examined Under 165 Evidence Act Have To Be Cross Examined To Elicit Further Truth: Chhattisgarh HC 

• In the case of Besahu Lal Yadav vs State of Chhattisgarh the Chhattisgarh HC has held that when a witness is examined by the Court under section 165 of the Indian Evidence Act, he/she is required to be cross-examined to elicit further truth or other relevant facts. 
• It is important to note that section 165 of the Evidence Act empowers the Court, in order to obtain proper proof of relevant facts, to ask any question he pleases, in any form, at any time to any witness or to any of the parties, and to also order the production of any document. 
• In the instant case, where a charge of rape was being prosecuted, the Counsel for the accused had argued that initially the prosecutrix had supported the case of the prosecution, but in her cross examination she had disowned the occurrence of the event. And then later when the Court had examined her under section 165 of the Evidence Act, she had again supported the prosecution’s version of events.
• Thus, in order to clarify the same, the Counsel for the accused had argued that an application under section 311 of CrPC should have been allowed by the trial Court so that the prosecutrix could have been cross examined and a fair trial could be had. 
• On the other hand, the Counsel for the prosecution had argued that it is the prerogative of the Court whether to allow or disallow the application under section 311 CrPC for the recalling of any witness, and the order sheet would itself reveal that a fair opportunity was given to the accused. 
• The HC relied upon the decision of the Apex Court in the case of Himanshu Singh Sabharwal vs State of MP and ors. (AIR 2008 SC) wherein the Apex Court had examined the necessity of a fair trial. The Court had also examined the scope and ambit of section 311 CrPC read with section 165 of the Evidence Act, and it was observed that the combined reading of these two provisions would show that the Courts have been conferred very vast powers to elicit all necessary materials by playing an active role in the evidence collecting process. 
• It was also observed in this case that if the prosecutor remisses in some ways, the Court can control the proceedings effectively so that the ultimate objective, i.e. truth, can be arrived at. 
• Thus, after pursuing the statements on record and relying on the aforementioned judgement, the Court was of the opinion that when the Courts exercise the power under section 165 Evidence Act and when the leave of the Court is asked to cross-examine to eliminate further truth, having denied, would result into trial not eclipsed by any ambiguity. The question put forth by the trial Judge would only mutate in favour of the prosecution and thus, giving an opportunity to the petitioner to cross examine will wipe out any further criticism and will restore the opportunity of a fair trial. 
• Thus, the application to cross-examine the prosecutrix was allowed. 

Death Of The Party Does Not Discharge Liability In Arbitration Agreement; Enforceable Against LRs: Calcutta HC

• In Dr. Papia Mukherjee v. Aruna Banerjee and Others, Chief Justice Prakash Srivastava (in a single-judge bench) held that the death of a party does not discharge an arbitration agreement. The agreement remains enforceable by/against the legal representatives of the deceased party until the right to sue in respect of the cause of action survives. Furthermore, it was observed that even if the legal representatives are not signatories to the arbitration agreement, as the legal representatives of the original signatory, they are obligated by the contract to the degree required by law.
• In this instance, the applicant had signed a partnership agreement to operate a pathological laboratory, and a power of attorney had been perpetrated by the deed's co-partner in favour of his wife, Aruna Banerjea (respondent). The applicant invoked the arbitration clause, asserting illegalities on the part of the dead co-legal partner's representative following the co-partners demise. Furthermore, an application under Section 11 of the Arbitration and Conciliation Act of 1996 (Arbitration Act) was filed by the applicant to appoint an arbitrator to decide the parties' dispute as the respondent refused to accept the applicant's advice to appoint an arbitrator while claiming that there was no genuine arbitration agreement between the parties. 
• Section 11 of the Arbitration and Conciliation Act of 1996 (Arbitration Act) specifies the appointment of arbitrators.
• Section 40 in The Arbitration Act, 1940 states that a Small Cause Court has no jurisdiction over arbitrations or any application from them, except for applications submitted under Section 21.
• In a relevant case, Ravi Prakash Goel v. Chandra Prakash Goel and Another (2007), the Hon'ble SC held that Section 40 of the Arbitration Act clarifies that an arbitration agreement is not discharged by the death of any party. Similarly, the arbitrator's power is not withdrawn by the death of the party appointing him, nor is it repealed by the demise of the party appointing him. Additionally, the personal representatives of the deceased party have the power to enforce and are obligated by the award. If the right to litigate in respect of the cause of action exists, the arbitration agreement is enforceable by or against the legal representative of a deceased party.
• In Aurohill Global Commodities Ltd. vs. Maharashtra STC Ltd. (2007) 7 SCC 120, the broad powers of arbitral tribunals were acknowledged.
• In another notable case, Branch Manager, Magma Leasing and Finance Limited and Others vs. Potluri Madhavilata and Others (2009) 10 SCC 103, it was ruled that the arbitration clause does not expire or become inoperative when the contract is terminated.
• After hearing both the parties and referring to the aforementioned cases, the Hon'ble HC observed that the current application was approved under Section 11 of the Act and that the arbitration agreement in the form of a partnership deed existed. Furthermore, as Dr. Dhrubajyoti Banerjea's legal representatives, the respondents were obligated by the contract to the degree permitted by law after his death.
• Therefore, the Hon'ble HC allowed the application.