Sampatrao R. Arvelli and anr. Etc. Vs. State of Maharashtra and ors. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 8. in the proceedings before division bench of this court as well, there is no stay granted in particular, i. 10. moreover, this question is not finally rule so far, and upon being ruled, will be governed by effect of narco analysis or brain mapping, or all tests of like nature when conducted. 11. here is a tie between silencing constitutionally available individual right and prerogative of state to investigate and use, for that purpose, modern medico-forensic aides for larger good of larger number of persons -the community on the whole whose such individual is a member. 12. in larger interest, it is felt necessary that this modern scientific invention based on anesthetic drugs already in use over decades and electro gram and similar systems already used for over decades and safe enough needs to be allowed, as an aid in the process of investigation and retrieval of data and information stored in the memory of the person concerned.ordera.h. joshi, j.1. rule. rule is made returnable forthwith and heard finally by consent of parties.2. in all these matters, a common question of law is agitated. therefore, though the applicants are involved in various offences, the issue, in question, arising from orders of different courts is one and the same. hence, on hearing together, applications are decided by this common order.3. by impugned orders, the permission for narco analysis, brain mapping and other analogous tests has been granted. the said permission is under challenge.4. reliance is placed on copy of proceedings of record of hon'ble supreme court in the case of k. venkateswara rao v. state of a.p. (coram s.b. sinha & markandey katju, jj.) dated 20th november, 2006, and copy of order dated 29th february, 2008 passed by this court in criminal writ petition no. 2429/07 (r.m. savani v. state of mah.) (coram : bilal nazki & s.a. bodbe, jj.).5. purpose of reliance is that a broader question as to whether in absence of consent/willingness of the accused/witness, who is subjected to the narco analysis, brain mapping or similar tests, the same should be undertaken by order of court.6. the record of proceedings of hon'ble supreme court indicates that in that case learned senior advocate appearing for the prosecution has made a statement of suspending the tests.7. admittedly, there is no stay in the said case or a general-stay order prohibiting undertaking of said tests.8. in the proceedings before division bench of this court as well, there is no stay granted in particular, i.e. the said case, or in general.9. the matters at hand are of general importance and larger interest. article 20 and article 19, which guarantee fundamental right and are resorted to as a shield for seeking protection against alleged tests, which is not a physical invasion, but an intellectual invasion, will prima facie come within the bracket of reasonable restriction on fundamental rights.10. moreover, this question is not finally rule so far, and upon being ruled, will be governed by effect of narco analysis or brain mapping, or all tests of like nature when conducted.11. here is a tie between silencing constitutionally available individual right and prerogative of state to investigate and use, for that purpose, modern medico-forensic aides for larger good of larger number of persons - the community on the whole whose such individual is a member.12. in larger interest, it is felt necessary that this modern scientific invention based on anesthetic drugs already in use over decades and electro gram and similar systems already used for over decades and safe enough needs to be allowed, as an aid in the process of investigation and retrieval of data and information stored in the memory of the person concerned.13. in this background, larger interest should outweigh the individual liberties and fundamental rights and balance can be struck by considering the perspective of reasonable restrictions.14. hence in absence of a direct prohibitory precedent or order, this court find no reason as to why the tests sought to be undertaken through the impugned orders should be prohibited.15. legal consequences of the results flowing therefrom, such as admissibility of evidence procured by such tests etc., would be taken care of by trial court in the course of process of trial.

Judgment:
ORDER

A.H. Joshi, J.

1. Rule. Rule is made returnable forthwith and heard finally by consent of parties.

2. In all these matters, a common Question of Law is agitated. Therefore, though the applicants are involved in various offences, the issue, in question, arising from orders of different Courts is one and the same. Hence, on hearing together, applications are decided by this common order.

3. By impugned orders, the permission for Narco Analysis, Brain Mapping and other analogous tests has been granted. The said permission is under challenge.

4. Reliance is placed on copy of proceedings of record of Hon'ble Supreme Court in the case of K. Venkateswara Rao v. State of A.P. (Coram S.B. Sinha & Markandey Katju, JJ.) dated 20th November, 2006, and copy of order dated 29th February, 2008 passed by this Court in Criminal Writ Petition No. 2429/07 (R.M. Savani v. State of Mah.) (Coram : Bilal Nazki & S.A. Bodbe, JJ.).

5. Purpose of reliance is that a broader question as to whether in absence of consent/willingness of the accused/witness, who is subjected to the Narco Analysis, Brain Mapping or similar tests, the same should be undertaken by order of Court.

6. The record of proceedings of Hon'ble Supreme Court indicates that in that case learned Senior Advocate appearing for the prosecution has made a statement of suspending the tests.

7. Admittedly, there is no stay in the said case or a general-Stay order prohibiting undertaking of said tests.

8. In the proceedings before Division Bench of this Court as well, there is no stay granted in particular, i.e. the said case, or in general.

9. The matters at hand are of general importance and larger interest. Article 20 and Article 19, which guarantee fundamental right and are resorted to as a shield for seeking protection against alleged tests, which is not a physical invasion, but an intellectual invasion, will prima facie come within the bracket of reasonable restriction on fundamental rights.

10. Moreover, this question is not finally rule so far, and upon being ruled, will be governed by effect of Narco Analysis or Brain Mapping, or all tests of like nature when conducted.

11. Here is a tie between silencing constitutionally available individual right and prerogative of State to investigate and use, for that purpose, modern medico-forensic aides for larger good of larger number of persons - the community on the whole whose such individual is a member.

12. In larger interest, it is felt necessary that this modern scientific invention based on anesthetic drugs already in use over decades and electro gram and similar systems already used for over decades and safe enough needs to be allowed, as an aid in the process of investigation and retrieval of data and information stored in the memory of the person concerned.

13. In this background, larger interest should outweigh the individual liberties and fundamental rights and balance can be struck by considering the perspective of reasonable restrictions.

14. Hence in absence of a direct prohibitory precedent or order, this Court find no reason as to why the tests sought to be undertaken through the impugned orders should be prohibited.

15. Legal consequences of the results flowing therefrom, such as admissibility of evidence procured by such tests etc., would be taken care of by trial Court in the course of process of trial.