Seriousness of an offence depends on its harmfulness

Written by Indu Bhan | Updated: Dec 26 2012, 08:07am hrs
Decide arbitration plea in entirety

The Supreme Court, in the case of Hindustan Copper Ltd vs Monarch Gold Mining Ltd, has asked the high courts to consider arbitration petitions in their entirety than in piecemeal. Setting aside the precedent being followed by the Calcutta High Court in such cases, it said that the procedure followed by the HC was legally impermissible. The function of the chief justice or his designate is judicial and they should deal with the arbitration petition in its entirety and not by both making it a two-tier procedure, the apex court added. The HC judge, after holding that disputes have arisen for arbitration, had referred the issues to the chief justice for the appointment of an arbitrator. The chief justice, after following its earlier method adopted in Modi Korea Telecommunication Ltd vs Appcon Consultants Pvt Ltd, designated another judge to nominate the arbitrator. The designate judge appointed the arbitrator on July 8, 2011. This procedure was challenged by Hindustan Copper in the apex court on the grounds that the procedure adopted by the designate judge while hearing petition under Section 11 of the Arbitration and Conciliation Act 1996 was unknown in law. However, senior counsel Jaideep Gupta, appearing for the Registrar General of the HC, submitted that Section 11 did not put any embargo for piecemeal consideration of the matter. It is permissible that the designate judge considers the general power of the court to determine whether the preconditions for the exercise of that power have been fulfilled leaving the power of naming the arbitrator under Section 11 to the exclusive jurisdiction of the Chief Justice, he added. It accepted the stand of Additional Solicitor General Gourab Banerji, appearing for Hindustan Copper Ltd, that the power, which has been conferred exclusively under Section 11 on the Chief Justice, is the power of appointment or the power to name an arbitrator.

Experts should select LPG distributors

The Supreme Court in a matter related to selection of LPG distributors noted that the decision of an expert committee should be respected and followed unless mala fide. While setting aside the Kerala High Courts judgment in the case of Sajeesh Babu vs NK Santhosh, it asserted it would normally be wise and safe for courts to leave the decision of selection to the experts. The HC should not have sat as an appellate court on the recommendations made by the expert panel, it said, adding that in the absence of any allegation of mala fide action on the part of the selectors or disqualification etc, interference by the HC exercising extraordinary jurisdiction under Article 226 of the Constitution is not warranted.

BPCL had invited applications for grant of LPG distributorship for Malappuram, a distributorship reserved for scheduled caste applicants. In total, 41 persons including Babu and Santhosh had applied for the grant of licence. The Corporation had selected Babu for grant of licence of LPG distributorship. This was challenged by Santhosh in the HC, which quashed the distributorship granted to Babu and directed the Corporation to reassess his marks afresh excluding the marks for the experience certificates.BPCL argued that the selection of Babu was in accordance with the guidelines and norms governing the matter and there was no extraneous consideration in selecting him as an empanelled candidate. Besides, the selection committee consisting of three experienced persons had relied on the experience certificates issued by a gas distributor and Bajaj Allianz Life Insurance Company Ltd.

Punishment norms to assist trial courts

Though imposing just punishment was at the heart of criminal justice delivery system, it was the weakest link in the country as there were no legislative or judicial guidelines to help trial courts on this issue, the Supreme Court said in a case related to death of 31 people from consuming spurious liquor in Kerala. In the case of Soman vs State of Kerala, it said that such an important aspect of the criminal justice system had escaped the attention of both legislature and the Supreme Court for a long time. There are no legislative or judicially laid down guidelines to assist the trial court in meting out just punishment to the accused facing trial before it after he is held guilty of the charges, the apex court said, adding in a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness. Laying down guidelines for the trial court to quantify just sentence for those found guilty of offences, the court said that the manufacturer of spurious liquor could be given a higher sentence keeping in mind the fact that he had knowledge of its possible adverse consequences on human health, including death.

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