Special Leave Petition Civil No 8094 of 1988
From the Judgment and Order dated 16388 of the Andhra Pradesh High Court in AAO No 115286  CRP No 2728 of 1986
C Sitaramiah and G Prabhakar for the Petitioners
RF Nariman K Prabhakar and RN Kishwani for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI CJ
The respondent RV Rayanim was at all material times a Class I contractor who had entered into an agreement with the Government of Andhra Pradesh for formation of earth dam in gorge portion from chainage 3360 to 3380 M of Raiwada Reservoir Project near Devarapalli village Chodavaram Taluk Distt
Visakhapatnam Andhra Pradesh
Disputes and differences arose between the parties in respect of the aforesaid agreement
A reference was made to the arbitrator as per the arbitrator clause in the agreement between the parties
The respondent made eleven claims claiming various amounts particulars whereof have been set out by the arbitrator as follows
56 IPayment for forming cross Rs in lakhs 1589 bund and refund of the subsequently reduced amount recovered
to Rs1489 lakhs IIRefund of Seigniorage 2071 withdrawn Charges IIIEscalation and damages 1400 IVExtra load for sand 1075 subsequently reduced to Rs0575 lakhs
VPayment for excavation 1030 under water for probing diaphram wall VI
Compensation for loss 1500 suffered due to partial prevention by the department
Compensation for loss 2015 suffered due to non payment for the work done
VIIIRefund of excess hire 0730 charges recovered
Overheads 0960 X Costs O 100 XI
a Interest on II and VIII at 24 from the date of recovery
b On Rs830 lakhs at 24 pa from 301181 to 125
c Interest at 24 on the award amount except II and VIII from the date of petition
 The arbitrator gave a non speaking award dated 27th July 1985 in favour of the respondent amounting to Rs1939 lakhs wherein he stated as follows Claim II has been withdrawn by the petitioner himself on the ground it was subsequently refunded by the respondents
On the balance claims I and III to X according to my assessment I award a consolidated amount of Rs1939 lakhs to the extent of the claims judged admissible
The respond ents shall pay Rs
Nineteen lakhs and thirty nine thousand to the petitioner
 It is therefore apparent the claim No II as mentioned above 57 had been withdrawn
On the balance claims I and III the arbitrator had awarded a consolidated amount of Rs1939 lakhs to the extent of the claims judged admissible 
The respondent filed a proceeding before the Court to make the award rule of the Court
The petitioner preferred an appli cation for setting aside the award
By a common judgment dated 21st April 1985 the Second Additional Judge City Civil Court Hyderabad dismissed the petition of the peti tioner for setting aside the award and allowed the judgment in terms of the award
The petitioner preferred an appeal and a civil review petition before the High Court of Hydera bad
By a judgment dated 16th March 1988 the division bench of the High Court dismissed the appeal and the revision of the petitioner
It held that the non speaking award of the arbitrator was not liable to be set aside by the Court
The petitioner has preferred this special leave petition challenging the said decision of the High Court
The main contention which was sought to be urged on this case was that the award was a nonspeaking award and as such was bad
On this ground on or about 9th December 1988 this Court directed that the matter should be taken up along with civil appeal No 5645 and 5645A of 1986 pending before a larger bench
At that time the question was pending consid eration by the Constitution Bench of this Court
This Court further directed on 9th December 1988 that the entire amount of award if not deposited in the trial court should be deposited in the trial court within two months from that date and upon the deposit being made the respondent will be at liberty to withdraw 50 of the amount which has not been withdrawn on furnishing security to the satisfaction of the trial court
It was further recorded that 50 had already been withdrawn
As mentioned hereinbefore the main contention sought to be urged was that the award being a non speaking award was bad in law
In view of the decision of this Court in Raipur Development Authority etc
vs Ms Chokhamal Contractors etc
 Jmt
Today 2 SC 285 this contention is no longer sustainable
It was then contended that the award has pur ported to grant damages on the basis of escalation of cost and prices and such escalation was not a matter within the doman of the bargain between the parties and having taken that factor into consideration the award was bad
We have set out the relevant portion of the award
From reading the award as set out hereinbefore it is clear that the arbi trator has considered the claim made on the basis of esca lation and damages  but he has awarded a total sum of Rs1939 lakhs insofar as he finds admissible in respect of the claims which the arbitrator has adjudged
It speaks no further
In such a situation it is 58 not possible to contend that there was any exercise of jurisdiction by the arbitrator beyond his competence
It is well settled that in matter of challenging the award there are often two distinct and different grounds
One is an error apparent on the face of the record and the other is that the arbitrator has exceeded his jurisdiction
In the latter s case the Court can look into the arbitration agree ment but under the former it cannot unless the agreement was incorporated or recited in the award
An award may be remitted or set aside on the ground that the arbitrator in making it had exceeded his jurisdiction and evidence of matters not appearing on the face of it will be admitted in order to establish whether the jurisdiction had been exceed ed or not because the nature of the dispute is something which has to be determined outside the award whatever might be said about it in the award or by the arbitrator
See the observations of this Court in Ms Sudarshan Trading Co vs Government of Kerala  Anr  Only in a speaking award the court can look into the reasoning of the award
It is not open to the court to probe the mental process of the arbitrator and speculate where no reasons are given by the arbitrator as to what impelled the arbitrator to arrive at his conclusion
In the instant case the arbitrator has not awarded any amount on account of escalation of costs and expenses
At last the arbitrator has not expressly awarded any amount on the ground of such escalation and if so what amount is not apparent on the face of the record
In these circumstances in our opinion on the basis of well settled principles of law such an award especially in view of the fact that excluding item No III the remaining items would also be well over Rs1933 lakhs it is not discernible on the face of the record that arbitrator has exceeded his jurisdiction in awarding damages on account of escalation of charges and expenses which were beyond the arbitration ambit
The fact that the arbitrator has considered the claim made by the respondent on account of escalation does not make per se the award to be bad
Mr C Sitaramiah learned counsel appearing for the appellant contended that the fact that the arbitrator has taken into consideration the question of escalation would make the award bad because it is not discernible whether he has awarded any amount on account of escalation
We are of the opinion that this argument is not open
In case of an error apparent on the face of the record it has to be established that an item or an amount which the arbitrator had no jurisdiction to 59 take into consideration has been awarded or granted
That is not apparent on the face of the award in this case
All that the award states is that he has considered the claim on the basis of escalation
Such a consideration does not make the award on the face of it bad on the ground of error apparent on the face of the record
Indeed the arbitrator when a claim is made has to take that into consideration either for acceptance or rejection of the claim made
The award states that he has taken the claim made into consid eration
The award does not state that he has awarded any amount on that account
There is neither any error apparent on the face of the record nor any material to satisfy that the arbitrator has exceeded his jurisdiction in awarding the amount as he did
In that view of the matter the special leave petition has no merit made must therefore fail and is accordingly dismissed
The petitioners were allowed to withdraw the awarded sum on furnishing security but in view of the deci sion now rendered they will be entitled to take back the security
We order accordingly
The application is dismissed with aforesaid directions
RSS Petition dismissed


Summary:
Three police personnel were charged with offences aris ing out of the death of one Ram Dhiraj Tiwari in police custody
Rafiuddin Khan accused No 1 was the Sub Inspec tor of Police Station Kure Bhar Shamsher Ali accused No 2 was a Beat Constable and Gauri Shankar Sharma accused No 3 was the Head Moharrir
The prosecution version was that AI directed A2 and two police chowkidars to apprehend Ram Dhiraj deceased who was a suspect in a dacoity case
Pursuant thereto Ram Dhiraj was arrested from his residence on 19101971 at about 1100 am and brought to the police station
The prosecution case against A1 was that he was responsible for having beaten the suspect Ram Dhiraj in the presence of two other constables whose identity was not established which resulted in as many as 28 injuries to which he ultimately succumbed
It was also alleged that A1 had demanded a bribe of Rs2000 to desist from meeting out third degree punish ment to the suspect
The case against A3 was that he delib erately and wilfully posted false entries in the General Diary to help A1
The defence version on the other hand was that the deceased was arrested on 20101971 by A2 and his companions from near a culvert in the village and he was beaten up by them as he resisted arrest
The Trial Court accepted the prosecution version and convicted A1 under section 304 Part II section 330 sec tions 201 and 21834 and 161 IPC and under section 51d read with section 52 of the Prevention of Corruption Act 1947
Accused No 2 was acquitted of all charges
Accused No 3 was convicted under sections 201 and 218 IPC
The High Court however accepted the defence version that A1 was not at the police station on 19101971 till 730 pm
The High Court found that the three prosecution witnesses were not eye witnesses 29 30 to the incident and hence their story about beating in the police station and the demand of bribe could not be accept ed
The High Court accepted the evidence of DW 1 Jaswant Singh Station Officer Machilishahr Police Station who claimed to have come to Kure Bhar Police Station on 19101971 for investigation of another offence
According to DW 1 AI was not at the police station till about 730 pm
While dismissing the appeal filed by accused No 3 and allowing the State appeal against the acquittal of accused No 1 and restoring his conviction recorded by the trial court by setting aside his acquittal by the High Court this Court HELD 1 Both the courts have recorded a concurrent finding of fact that the deceased was arrested on 19101971 at about 1100 am from his village Khajapur
That means that the entry in the general diary that the deceased was arrested on 20101971 and was brought to the police station later can be brushed aside as false
The need to make a false entry speaks for itself
36E F 2 It is true that PW 5 and PW 8 were the brother in law of the deceased and PW 10 his neighbour but that by itself without anything more was not sufficient to doubt their tastimony which receives corroboration from medical evidence
Unless there are sound grounds to reject their evidence it would not be proper to brush aside their evi dence on the specious plea that they are interested witness es
37F G 3 It is difficult to understand how the learned Judge could persuade himself to accept the evidence of DW 1 on the specious plea that if he did not tell the truth he ran the risk of losing his job
The High Court should have realised that cases are not unknown where police officers have given inaccurate accounts to secure a conviction or to help out a colleague from a tight situation of his creation
41B 4 The High Court should have realised that it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for re sorting to third degree methods since they are in charge of police station records which they do not find difficult to manipulate as in this case
It is only in a few cases such as the present one that some direct evidence is available
41F G 5 After carefully considering the reasons given by the High Court for setting aside the conviction of AI this Court is satisfied beyond any manner of doubt that the High Court had completely misdi 31 rected itself and hence interference by this Court under Article 136 of the Constitution was justified
42A B 6 The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authori ty to brutally assault persons in his custody
Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj
It must be curbed with a heavy hand
The punishment should be such as would deter others from indulging in such behaviour
There can be no room for leniency
This Court does not think it would be justified in reducing the punishment imposed by the trial court
42D E