Amar Singh S/O Narendra Singh Bais Vs. State of Maharashtra - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 90/2003. the applicant failed to secure bail on merits. but again the power given under sub-section (2) of section 439 is restricted to the bail granted under chapter xxxiii only which clearly shows that the power of sub-section (2) of section 439 cannot be used for cancelling the bail granted under chapter xxv.k.j. rohee, j.1. heard finally by consent of parties.the applicant is one of the accused persons facing trial for the offence punishable under sections 302, 201, 304b read with section 34 of the indian penal code and sections 3 and 4 of the dowry prohibition act in session trial no. 90/2003. the applicant failed to secure bail on merits. thereafter, by order dated 10th may, 2004 the applicant was released by the trial court as it was found that the applicant was of unsound mind and was incapable of making his defence. it seems that after the release of the applicant he ceased to be of unsound mind and the trial not only resumed but had proceeded inasmuch as on 5th november, 2004 pw nos. 1 and 2 were examined by the prosecution. it seems that thereafter, no prosecution witness turned up and the trial was adjourned from time to time.2. on 30th march, 2005 the learned a.p.p., in-charge of the trial, moved an application for cancellation of the bail of the applicant on the ground that the applicant became of sound mind and was capable of making his defence. by order dated 18th july, 2005 the learned trial judge allowed the application, cancelled the bail of the applicant and took him in custody. the applicant has challenged the said order by this application under section 397 read with section 482 of the code of criminal procedure.3. dr. anjan de, the learned counsel for the applicant vehemently urged that the order cancelling the bail of the applicant is without jurisdiction insofar as there is no provision in the code of criminal procedure authorising the trial court to cancel the bail to an accused who was released under section 330 of the code of criminal procedure. in this respect dr. de pointed out that chapter xxv which contains the provisions as to the accused persons of unsound mind, does not provide for cancellation of the order of release. it indicates the intention of the legislature to treat the accused of unsound mind on a footing different from other accused persons who are of sound mind. dr. de submitted that there is only one provision in the code of criminal procedure in the form of sub-section (2) of section 439 which authorises the high court or the court of session to direct arrest of an accused person who has been released on bail. dr. de pointed out that sub-section (2) of section 439 of the code of criminal procedure specifically lays down that 'a high court or court of session may direct that any person who has been released on bail under this chapter be arrested and commit him to custody.' dr. de urged that the power given under sub-section (2) of section 439 is apparently restricted to the release of the accused under chapter xxxiii and that power cannot be imported in chapter xxv. he, therefore, submitted that the order dated 18th july, 2005 is without jurisdiction and cannot be sustained. dr. de pointed out that no allegations have been made that the applicant misused his liberty in any way.4. shri a.s. fulzele, the learned a.p.p., on the other hand, submitted that though there is no specific provision for cancellation of bail of an accused who was released under section 330 of code of criminal procedure, the release under chapter xxv is merely a temporary phase. the benefit of release is extended for limited purpose i.e. during the unsoundness of the accused and that cannot be extended after he ceases to be of unsound mind. according to shri fulzele, after the accused ceases to be of unsound mind and trial resumes, the bail granted to the said accused automatically stands cancelled. shri fulzele, therefore, justified the impugned order.5. i have carefully considered the rival submissions. it may be seen that chapter xxv deals with the accused persons who are of unsound mind and who are incapable of making their defence. section 330 in the said chapter provides for their release on sufficient security being given, irrespective of the nature of the offence. in chapter xxv of the code of criminal procedure, power of cancellation of bail is not specifically given to any court. unlike chapter xxxiii wherein sub-section (2) of section 439 empowers the courts to cancel the bail. but again the power given under sub-section (2) of section 439 is restricted to the bail granted under chapter xxxiii only which clearly shows that the power of sub-section (2) of section 439 cannot be used for cancelling the bail granted under chapter xxv.6. in view of this position, the learned trial court had no jurisdiction to cancel the bail and to take the applicant in custody. the impugned order is thus illegal and it cannot be sustained. hence, i pass the following order.order(i) the application is allowed.(ii) the applicant be released forthwith on the same terms and conditions on which he was released by order dated 10th may, 2004.