Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Shivakant Prasad, J. dismissed a criminal appeal filed by the appellant against the order of trial court whereby he was convicted under Section 8 of Protection of Children from Sexual Offences Act, 2012.

As per the prosecution case, the appellant took the victim girl with him on the pretext of giving music tuition. On the way, he dragged her to a bush by the side of the main road and committed sexual assault. He was caught by local people and handed over to the police. In her statement, the victim deposed in unequivocal terms that she was taken to the bush; her face was gagged; underpants were removed, and the appellant pushed a finger into her vagina. Consequently, the trial court convicted the appellant under Section 8. The appellant appealed against the order of trial court contending that the statement of the victim was not reliable, as, in case of pushing a finger into the vagina, there would have been a vaginal injury, and no such fact was brought out by the medical evidence.

The High Court repelled the contention of the appellant. It was observed that the medical evidence does not itself prove the prosecution case, it is only used for corroborating the charge. The victim girl was the first eye-witness who had clearly stated about pushing of a finger into her vagina, but not about penetration. Statement of the victim was in consonance with probabilities and consistent with other witnesses. Pushing of the finger may not cause vaginal injury. Further, the guilt of the appellant was proved as penetration was not necessary, and mere touching of the vagina would constitute sexual assault, sufficient to prove the appellant guilty under Section 8 of the Act. Accordingly, the impugned order of the trial court was upheld and the appeal was dismissed. [Niranjan Pramanik v. State of W.B.,2018 SCC OnLine Cal 4377, decided on 03-07-2018]

Case BriefsSupreme Court

Supreme Court: Explaining the scope of Section 8 of the Arbitration and Conciliation Act, 1996, the Bench of Dr. A.K. Sikri and D.Y. Chandrachud, JJ held that mere allegation of fraud simplicitor may not be a ground to nullify the effect of arbitration agreement between the parties. Where there are simple allegations of fraud touching upon the internal affairs of the party inter se and it has no implication in the public domain, the arbitration clause need not be avoided and the parties can be relegated to arbitration.

The Court further explained that it is only in those cases where the Court finds that there are very serious allegations of fraud which make a virtual case of criminal offence or where allegations of fraud are so complicated that it becomes absolutely essential that such complex issues can be decided only by civil court on the appreciation of the voluminous evidence that needs to be produced, the Court can sidetrack the agreement by dismissing application under Section 8 and proceed with the suit on merits. It can be so done also in those cases where there are serious allegations of forgery/fabrication of documents in support of the plea of fraud or where fraud is alleged against the arbitration provision itself or is of such a nature that permeates the entire contract, including the agreement to arbitrate, meaning thereby in those cases where fraud goes to the validity of the contract itself of the entire contract which contains the arbitration clause or the validity of the arbitration clause itself.

It was, hence, said that while dealing with an application under Section 8 of the Act, the focus of the Court has to be on the question as to whether jurisdiction of the Court has been ousted instead of focusing on the issue as to whether the Court has jurisdiction or not. It has to be kept in mind that insofar as the statutory scheme of the Act is concerned, it does not specifically exclude any category of cases as non-arbitrable. Such categories of non-arbitrable subjects such as disputes relating to rights and liabilities which give rise to or arise out of criminal offences; matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights and child custody; Insolvency and winding up; etc., are carved out by the Courts, keeping in mind the principle of common law that certain disputes which are of public nature, etc. are not capable of adjudication and settlement by arbitration and for resolution of such disputes, Courts are better suited than a private forum of arbitration.

D.Y. Chandrachud, J added that the Arbitration and Conciliation Act, 1996, should be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle. [A. Ayyasamy v. A. Paramasivam, 2016 SCC OnLine SC 1110, decided on 04.10.2016]