Police Can’t Question Prosecutrix/Victim Regarding Variations In Statements Given U/S 161 & 164 Of CrPC: Allahabad High Court

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Arb App No. 01 2021 CM No. 6039 2021 Serial No. 02 Supplementary 1 List Adil Ashraf Bolaki Dated: 28th of September 2021. … Appellant(s) Mr Aatir Javed Kawoosa Advocate with Mr Musharraff W. Baba Advocate. JK Power Transmission Corporation Limited & Ors. … Respondent(s) Through: Mr Jahangir Iqbal Ganai Senior Advocate with Ms Humaira Shafi Advocate and Mr Hakeem Aman Ali Dy. AG. Per Magrey J: Oral Hon’ble Mr Justice Ali Mohammad Magrey Judge. Hon’ble Mr Justice Sanjeev Kumar Judge. This is an appeal filed by the Appellant under Section 37 of the Arbitration & Conciliation Act 1996against the Judgment dated 1st of September 2021 passed by the learned Single Bench in AA No. 07 2021 filed by the Appellant in terms whereof the Application filed by the Appellant stands dismissed. The brief facts leading to the filing of this Appeal as come to limelight from the perusal of the pleadings on record are that the Appellant Arb App No. 01 2021 CM No. 6039 2021 claims to have been accorded contract for installation of 132 KV Cable laying job for the Jammu and Kashmir Power Transmission Corporation LimitedSrinagar at Tengpora GIS Substation vide letter No. EHV 373 JKPTCL 20 21 11 dated 10th of September 2020 whereafter he started execution of work strictly in terms of said letter and terms and conditions of the contract and that the same is being carried out by him without any failure on his part. It is stated that as per serial No.40 to Annexure A to the abovementioned communication contract allotted in favour of the Appellant he was required to supply and install 400 Mts of Copper Cable for Road Crossing through HDPE pipes including supply of HDPE pipes in trenchless digging and restoration as per specifications. It is also stated that during execution of work contract it came to surface that road crossing through HDPE pipes could not be completed within prescribed quantity i.e. 400 Mts. and that the Appellant informed the Respondents about the same and accordingly the Respondents visited the work site and after inspection that work could not be completed within the given measurements quantity i.e. 400 Mts and thus they orally directed the Appellant to install extra cables and HDPE pipes required for completion of job. It is claimed by the Appellant that the Respondents assured the Appellant that work contract would be amended and he would be paid for extra work and expenses incurred and increase would be added in final bill strictly in lieu of rate fixed. It is also stated that he undertook the work of installation of extra cables and HDPE pipes and in this regard made certain communications as Arb App No. 01 2021 CM No. 6039 2021 well but Respondents failed to reply. It is further contended that the General Conditions of Contract annexed as Annexure I to the Work Contract contain an Arbitration Clause i.e. Clause 11 and therefore the Appellant served a notice invoking arbitration which is said to have been replied by the Respondents. It is averred that the Respondent No.1 is in the process of releasing further payments in favour of Respondents 2&3. It is maintained by petitioner that he had filed a Petition under Section 9 of the Act of 1996 before the Court of learned 3rd Additional District Judge Srinagar wherein on 17th of June 2021 an Order of status quo was passed. Thereafter as stated the Appellant claims to have observed that General Condition of Contract had not been signed by him as such he thought that the provisions of Section 9 of the Act would not be proper remedy so he filed a civil Suit before the learned Chief Judicial Magistrate Srinagar and accordingly withdrew the arbitration Petition. In the said civil Suit the learned Chief Judicial Magistrate Srinagar vide Order dated 12th of July 2021 is stated to have dismissed the application for grant of ad interim injunction with the observation that the arbitration agreement is valid. Consequently the Appellant claims to have withdrew the said Suit and filed the petition under Section 9 of the Arbitration and Conciliation Act before the learned Single Judge. The learned Single Judge vide the impugned Judgment dated 1st of September 2021 has dismissed the said Petition filed by the Appellant. Arb App No. 01 2021 CM No. 6039 2021 Mr Aatir Javed Kawoosa the learned Counsel representing the Appellant submitted that the Petition of the Appellant filed under Section 9 of the Act of 1996 has been dismissed by the learned Single Judge without appreciating the contentions raised by the Appellant supported by the scheme of law and the judgments passed by the Supreme Court. It is submitted that the Appellant in order to safeguard his rights guaranteed under the Act of 1996 qua protecting the lis had sought the relief of stopping the payment in favour of Respondents 2 and 3 till the dispute between the parties was resolved in arbitration which was not in any manner beyond the scope and mandate of Section 9 of the Act of 1996. It is pleaded that compliance with Section 11 of the Act of 1996 is not a condition precedent for seeking interim relief under Section 9 of the Act which fact has been wrongly considered and finding returned by the learned Single Judge. The next contention raised by the learned Counsel for the Appellant is that the learned Single Judge has wrongly interpreted the arbitration clause as provided under Clause 11(1) by holding that the jurisdiction was at Satna Madhya Pradesh and has not appreciated the fact that the subject matter of the dispute was in Srinagar where the work was executed agreement(s) drawn and cause of action accrued. In support of his contentions the learned Counsel has referred to and relied upon judgment rendered by the Apex Court in case reported as ‘(2012) 9 SCC 552’. Mr Jahangir Iqbal Ganai learned Senior Counsel representing the Respondents 2 and 3 submitted that the Judgment passed by Arb App No. 01 2021 CM No. 6039 2021 the learned Single Judge has been passed in tune with the mandate of law and does not call for any interference from this Court. It is submitted that the Petition filed by the Appellant before the learned Single Judge was a gross abuse of process of law besides same was filed on misrepresentation and suppression of facts. It is contended that a party approaching the Court with unclean hands is not entitled to any relief prayed for. The learned Senior Counsel avers that in case the relief sought for by the Appellant in the Petition filed before the leaned Single Judge was is granted then in such eventuality the entire project will get derailed thereby causing great loss to public interest. We have heard the learned Counsel for the parties and have also gone through the pleadings on record. The learned Single Judge has dismissed the Petition filed by the Appellant under Section 9 of the Act of 1996 seeking grant of interim relief by holding that it cannot usurp the jurisdiction of the arbitral Tribunal even at a pre arbitration stage. This finding of the learned Single Judge cannot be said to be erroneous when there is a clear arbitration clause provided in the agreement between the parties. Merely because it is easier to obtain interim relief from a Court rather than from an arbitrator or arbitral tribunal the Court cannot allow the Appellant to invoke the jurisdiction of the Court by filing Petition under Section 9 of the Act of 1996 instead of availing the remedy of arbitration as provided in the agreement between the parties. Besides in terms of Clause 11.1 of the General Conditions of Contract it is clearly provided Arb App No. 01 2021 CM No. 6039 2021 that any dispute or different whatsoever arising between the parties out of or relating to the construction meaning scope operation or effect of the contract or the validity or the breach thereof shall be settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration ICA) and the award made in pursuance thereof shall be binding on the parties. There is no denial of the fact that in case a party clearly shows that it intends to initiate arbitral proceedings but in view of the emergent circumstances rendering the requirement of seeking interim measures as necessity not awaiting proceedings under Section 17 of the Act before the Arbitrator or Arbitral Tribunal he may approach the Court by filing Petition under Section 9 of the Act for seeking the interim relief. However in the case in hand the conduct of the Appellant has been such that no leverage can be granted to him on that count too. This is so because on the one hand the Appellant on 17th of June 2021 filed Petition under Section 9 of the Act whileas on the same day he filed a civil Suit too on the same subject matter seeking the same relief thereby making it clear beyond any shadow of doubt that no emergent necessity existed for grant of interim relief as otherwise he would not have withdrawn the Petition under Section 9 and pursued the same The other important aspect on which the learned Single Judge has dismissed the Petition under Section 9 of the Act filed by the Appellant is with regard to jurisdiction being at Satnaif any subsisting as on date shall stand vacated. (Ali Mohammad Magrey) September 28th 2021 Judge Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking 

Summary: Putting questions to the prosecutrix/victim with regards to the change in version by her in the statements under Section 161 of the CrPC and in the statement under Section 164 of the CrPC, clearly shows disrespect to the courts who have recorded the statements under Section 164 of the Code as held by the Hon’ble High Court of Allahabad through a learned bench of Justice Samit Gopal in Dharmendra Vs State of U.P [CRIMINAL MISC. BAIL APPLICATION No. – 31695 Of 2021] with CRIMINAL MISC. BAIL APPLICATION No. – 20006 Of 2021 and CRIMINAL MISC. BAIL APPLICATION No. – 30288 Of 2021. The brief facts of the case are that the Court was hearing three bail applications, argued on a particular issue common in all of them, however, the Court did not go into the merits of the cases, and rather dealt with a specific question, which is as follows: “Whether the Investigating Officer of a case, can, after recording the statement of a prosecutrix/victim once under Section 161 of CrPC who has supported the prosecution case and then in her statement recorded under Section 164 of the Code recorded before a Magistrate has given a different version and more particularly does not state about any wrongful act being committed on her as has been recorded in her statement under Section 161 of the Code earlier, can again interrogate the prosecutrix/victim under Section 161 of the Code and put specific questions to her pertaining to the two different versions given by her in the said two statements and then record the statements and proceed with the Investigation further?” Essentially, the Court was concerned with the question as to whether a police officer can question/interrogate a rape victim again, who first supported the case of prosecution alleging rape in her statement recorded under 161 CrPC, but later on, gives a different version and more particularly does not state about any wrongful act being committed in her statement recorded under Section 164 of the Code before the Magistrate. In conclusion, while observing that under Section 164 of CrPC, the statement of a victim is recorded by Judicial Magistrates in the discharge of their judicial functions and therefore, the act of the Investigating Officer putting a question to the victim as to why she gave out a different version before the magistrate (in comparison to her statement under 161) is not appreciable. The court stated that “By putting questions to the prosecutrix/victim in her second statement under Section 161 of the Code after recording of the statement under Section 164 of the Code relating to the different versions in the said two statements, the Investigating Officer cannot frustrate the same and also make an attempt to make the purpose of the said exercise look a farce…The act of putting specific questions pertaining to the variations in the said two statements by the Investigating Officer is viewed with an impression of clearly challenging the authority of a judicial act. The Investigating Officers have clearly exceeded their jurisdiction by proceedings to investigate in such a manner. The same appears to be with a sole purpose to frustrate the statements recorded by a Magistrate.” Lastly, the Court directed the DGP to issue necessary guidelines within a period of one month and also asked the state counsels and registry to submit a compliance report within one week thereafter.