judgement:
N: Criminal Appeal No. 379 of 1986.
From the Judgment and Order dated 13.7.1984 of the Punjab and Haryana High Court in Crl.
Appeal No. 82 D.B. of 1984.
R.L. Kohli and R.C. Kohli for the Appellant.
412 R.S. Suri for the Respondent.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
One may ask the question whether murder by poisoning is not run like any other murder? The learned counsel for the appellant purports to state that it is not.
He relies upon the judicial prescriptions as to the burden of proof in "poison murder" cases.
He contends that the prosecution must prove "that the accused had the poison in his possession".
He asserts that failure to establish that factor should entail the acquittal of the accused.
This is a vital question which goes far beyond the case and it, therefore, requires careful consideration.
Bhupinder Singh Appellant was prosecuted for the murder of his wife by poisoning.
He was sentenced for life imprisonment by the Additional Sessions Judge, Faridkot in Session Case No. 86 of 1983.
His conviction and sentence have been affirmed by the Punjab and Haryana High Court in criminal appeal No. 82 DB of 1984.
He has preferred this appeal by special leave challenging the conviction and sentence.
We may first advert to the prosecution case.
It reveals a sad story.
It runs like this: Gian Kaur, the victim in this case is the only daughter of Baltej Singh.
Baltej Singh like many other parents thought that his problems would be solved by the marriage of his daughter.
He got her married to Bhupinder Singh by spending all his savings.
His relatives also contributed for the marriage.
But ill luck would have it, his problems started immediately after the marriage.
Bhupinder Singh and his parents wanted Gian Kaur to bring Rs. 10,000 from her father.
It was nothing but a demand for dowry.
They stopped up their demand with harassment to Gian Kaur.
Gian Kaur informed her father.
The father could not arrange that much of amount.
He had already spent all that he had in connection with her marriage.
He had also then given presents in cash and kind to Bhupinder Singh.
So he felt helpless.
Unmerciful, Bhupinder Singh asked his wife to go back to her parents ' house.
So she left to seek shelter with her parents.
She remained with them for about eight months.
But how long the father could keep his married daughter away from her husband.
Some parents think that it is a reflection upon them.
Baltej Singh also must have thought like that.
He somehow arranged Rs.6,000 and sent Gian Kaur to her husband 's house.
Gian Kaur rejoined her husband upon making the payment of Rs.6,000.
That appears to have satisfied Bhupinder Singh for about 413 one year.
In the meantime, Gian Kaur had a male child.
Naturally there was jubilation for Baltej Singh.
He performed the customary Chuchhak ceremony and again gave Rs.4,000 and a buffalo as presents to Bhupinder Singh.
Bhupinder Singh ought to have been happy and satisfied.
But he was not.
It was alleged by the prosecution that this time he demanded a motorcycle.
Baltej Singh could not give it.
Gian Kaur, as usual, was again the target.
It was further alleged by the prosecution that Bhupinder Singh threatened to kill his wife if motorcycle was not given to him.
Gian Kaur had kept her father informed about the said demand and the threat.
On July 13, 1983, Gian Kaur died under mysterious circumstances.
Upon receiving that information, Baltej Singh with his brother Baldev Singh reached the place in the evening of that day.
They saw Gian Kaur, lying dead on a charpai.
They suspected foul play.
Baltej Singh gave the information to the police narrating all the above events.
He informed the police that his daughter was killed by Bhupinder Singh and his parents by administering something to her.
On the basis of that information, the F.I.R. was issued.
The investigation of the case was taken by A.S.I. (PW 4).
The body of Gian Kaur was sent to Dr. Sant Prakash Singh (PW 6) for post mortem.
The Doctor Prakash Singh noticed five minor injuries on the body of the deceased.
The brain and other vital organs were also found to be congested.
The Doctor sent stomach contents, portions of small intestine, liver, spleen and kidney to the chemical examiner for the purpose of analysis.
The chemical examiner in his report dated September 14, 1983 has stated that an Organo phosphorus compound was found in the substance sent to him for analysis.
The investigating officer sent that report for opinion of the Doctor Prakash Singh as to the cause of death of Gian Kaur.
The Doctor gave his opinion that the death of Gian Kaur was due to organo phosphorus compound poisoning.
Bhupinder Singh, his father Sher Singh and his mother Mukhtiar Kaur were tried for committing the murder of Gian kaur by administering poison.
The prosecution examined six witnesses and the accused in turn examined one.
The trial court after considering the evidence and other material on record held as follows: The accused had strong motive to get rid of Gian Kaur.
Apparently motive for the murder was the inability of Gian Kaur 414 to satisfy the demand for dowry.
The death of Gian Kaur was not accidental or suicidal.
There was no reason for her to commit suicide.
It was also not a death by food poisoning since the accused and deceased shared common food on the fateful night.
There was none else in the house on that night except Gian Kaur and the accused.
The accused had an opportunity to accomplish their design.
The accused must have administered the poison to the victim.
The injuries found on the body of the deceased indicated the resistence she must have offered when the poison was administered to her.
With these and other conclusions, the trial court finally said: "In the background of the circumstances and evidence discussed above, the only conclusion possible is that Bhupinder Singh and Mukhtiar Kaur did administer poison organo phosphorus compound to Gian Kaur and did cause her death with common intention, which was to get rid of her as she had not been able to persuade his father to meet their demand for motorcycle so as to clear way for another marriage of Bhupinder Singh in his youthful years in order to get more and more of dowry." Accordingly, the trial court found all the three accused guilty of the offence under Section 302 read with Section 34 I.P.C. They were sentenced to imprisonment for life.
Challenging the legality of the conviction and sentence the accused appealed to the High Court.
It was urged before the High Court that the death of Gian Kaur was not homicidal.
She must have in all probability committed suicide since she was suffering from tuberculosis.
It was also urged that the prosecution has failed to establish by evidence the necessary conditions for the proof of murder by poisoning.
The High Court did not agree with those contentions.
The High Court ruled out the theory of suicide.
It was observed that there was no evidence to show that Gian Kaur was suffering from tuberculosis or ever treated for that disease.
The High Court observed: "Case of murder by poisoning is always one of secrecy.
Almost in every such case one has to depend on circumstances.
Doubtless, before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established 415 and the proved circumstances must bring home the offence to the accused beyond reasonable doubt.
If those circumstances or some of them can be explained by any reasonable hypothesis then the accused must have the benefit of that hypothesis.
But in assessing the evidence imaginary possibility has no place.
What has to be considered are ordinary human probabilities.
We have already referred to some important circumstances which in our opinion point out to the guilt of Bhupinder Singh and Sher Singh appellants.
In the well known case of Anant Chantman Lagu vs The State of Bombay, ; their Lordships held that in a cause of poisoning, the prosecution must establish: (a) that the death took place by poisoning; (b) that the accused had the poison in his possession; and (c) that the accused had an opportunity to administer the poison to the deceased.
All the three requirements are satisfied in this case.
There is no dispute that the death of the deceased was caused by poisoning.
It has been established by the chemical examiner 's report, that the viscera contained organo phosphorus compound poison.
The evidence of the prosecution witnesses has established that the aforesaid two appellants had the opportunity to administer poison to the deceased and that they had the motive to commit the crime.
Their running away from the house at the time when the Investigating Officer visited their house is also consistent with their guilt and not with their innocence.
" With these observations, the High Court confirmed the conviction and sentence on Sher Singh and Bhupinder Singh while acquitting Mukhtiar Kaur.
The present appeal is only by Bhupinder Singh.
Before embarking on the validity of the main submission made in this appeal, we may first dispose of one other contention urged for the appellant.
Mr. R.N. Kohli, learned counsel for the appellant submitted that it is not enough for the chemical examiner merely to state in his report that the organo phosphorus compound was present in the substance sent to him for examination.
He should have also stated that a lethal dose of the organo phosphorus compound was detected in the substance sent to him.
His report should be full and complete to take the place of evidence which he would have given if he were called to Court as witness.
In the absence of such particulars, the death by 416 poisoning cannot be inferred.
In support of this contention, learned counsel relied upon two decisions of the Allahabad High Court viz. (i) Mt. Gajrani and Anr.
vs Emperor, [A.I.R. 1933 Allahabad 394] and (ii) State vs Fateh Bahadur & Ors., [A.I.R. 1958, Allahabad 1].
In the first case, it was observed that it was not enough for the chemical examiner merely to state his opinion.
He must also state the grounds which formed the basis of his opinion.
The second case was a case of death by arsenic poisoning.
The chemical examiner did not state the quantity of arsenic poison found in the viscera of the deceased.
He did not state whether it was a fatal dose or not.
The High Court pointed out that it would be of the utmost importance before a Court could find any individual guilty of murder by arsenic poison that its complete analysis should be made.
It is not enough to state that arsenic was detected in the body of the deceased.
In our opinion, these observations cannot be taken as a rigid statement of law.
(No hard and fast rule can be laid down as regards the value to be attached to the report of the chemical examiner.
Section 293 of the Code of Criminal Procedure provides that the report ofscientific experts may be used as evidence in any inquiry, trial or other proceedings of the court.
The chemical examiner does not, as a rule, give an opinion as to the cause of death but merely gives report of the chemical examination of the substance sent to him.
The report by itself is not crucial.
It is a piece of evidence.
The only protection to it is that it does not require any formal proof.
It is, however, open to the Court if it thinks fit to call the chemical examiner and examine him as to the subject matter of the report.
The report should normally be forwarded to the Doctor who conducted the autopsy.
In the instant case, that was done.
The Doctor who conducted the autopsy was given a copy of the report of the chemical examiner.
The Doctor in the light of the report gave his opinion that the death of Gian Kaur was by poisoning i.e. organo phosphorus compound.
The report of the chemical examiner coupled with the opinion of the Doctor is, therefore, sufficient to hold that it was a death by poisoning.
This takes us to the main contention urged for the appellant.
It was urged that in a case of murder by poison there are three main points to be proved, firstly did the deceased die of the poison in question; secondly, had the accused got the poison in question in his or her possession; and thirdly, had the accused an opportunity to administer the poison in question to the deceased.
It was also urged that if the prosecution fails to prove these factors, then the accused cannot be convicted.
The evidence in the case, according to learned counsel falls 417 short of these requirements and, in particular, as to the question of proof of possession of the poison with the accused and therefore the accused is entitled to acquittal.
We have been referred to some decisions of this Court in support of the contention urged.
We have also examined some other cases bearing on the question raised.
A brief survey of these cases would be useful to appreciate the contention urged for the appellant.
There are two unreported decisions of this Court of the year 1958.
The first one is in Chandra Kant Myalchand Seth 's case [Criminal Appeal No. 120 of 1957 decided on 19.2.1958].
There a woman died of alkali cyanide.
The husband of the deceased was tried and convicted by the trial court for the offence of murder.
The conviction was set aside by this Court.
In the course of the judgment, it was observed: "Before a person can be convicted of murder by poisoning, it is necessary to prove that the death of the deceased was caused by poison, that the poison in question was in possession of the accused and that poison was administered by the accused to the deceased." The acquittal, however, was based on the consideration of the entire facts and circumstances of the case.
It was found that there was a greater motive to the deceased to commit suicide than to the accused to commit murder.
This Court also took note of the concern and conduct of the accused when he found his wife lying unconscious.
The accused ran to the house of his friend and returned with a Doctor to render assistance to the victim.
The accused called another Doctor for the same purpose.
He was also found weeping all the while.
Taking into consideration of all these factors, this Court found no justification to sustain the conviction of the accused.
Dharambir Singh vs State of Punjab, (Criminal Appeal No. 98 of 1958 decided on 4.11.1958) is another case of homicidal action by cyanide poisoning.
It was perhaps in this case, the guidelines as to the proof of certain facts in "poison murder cases" were laid down by this Court.
It was observed: "Where the evidence is circumstantial the fact that the accused had motive to cause death of the deceased, though relevant, is not enough to dispense with the proof of certain facts which are essential to be proved in such cases, namely (firstly) did the deceased die of poison in 418 question? (secondly) had the accused the poison in his possession? and (thirdly) had the accused an opportunity to administer the poison in question to the deceased? It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death.
" After laying down these principles, the court considered the entire evidence on record which indicated the likelihood of the deceased committing suicide or another person to have administered the poison to the deceased.
This Court accordingly acquitted the accused by extending the benefit of doubt.
If one prefers to go yet further back we find a decision of the Allahabad High Court which is exactly on the principles laid down in Dharambir Singh case.
In Mt. Gajrani vs Emperor, A.I.R. 1933 All.
394 Benett, J. speaking for the Court observed (at p. 394): "In a case of murder by poison there are three main points to be proved: firstly, did the deceased die of the poison in question; secondly, had the accused got the poison in question in his or her possession; and thirdly, had the accused an opportunity to administer the poison in question to the deceased.
If these three points are proved, a presumption may under certain circumstances be drawn by the Court that the accused did administer poison to the deceased and did cause the death of the deceased.
It is not usual that reliable direct evidence is available to prove that the accused did actually administer poison to the deceased.
The evidence of motive which is frequently given in these cases is of subsidiary importance, and the mere fact that the accused had a motive to cause the death of the deceased is not a fact which will dispense with the proof of the second and third points that the accused had the poison in his or her possession, and that the accused had an opportunity to administer the poison.
" The above proposition found its way into Mohan vs State of Uttar Pradesh, ; and Ram Gopal vs State of Maharashtra, A.I.R. 1972 S.C. 656.
In Mohan 's case, the death in question was by arsenic poisoning.
In that case, the prosecution was able to prove that the accused gave 'peras ' to the victim as 'pershad ' and the victim 419 died after eating the 'pershad '. 'Pershad ' contained arsenic.
There was thus direct evidence as to the possession of the poison with the accused.
This Court, therefore, had no difficulty to sustain the conviction and sentence awarded to the accused.
Ram Gopal 's case was concerned with homicidal action by administering a compound called "kerosene and orango choloro compound".
The High Court, relying upon the motive and other circumstantial evidence convicted the accused for the offence of murder although there was no evidence that the accused was in possession of poison.
This Court could not agree with the view taken by the High Court.
The analysis of the evidence produced by the prosecution revealed that the motive alleged against the accused was not fully established.
The incriminating circumstantial evidence against the accused was also found to be insufficient.
So the conviction of the accused was set aside and the acquittal was recorded.
Sharda E. Chand Sarda vs State of Maharashtra, ; is yet another case of death by cyanide poisoning for which the husband of the deceased was tried for murder.
There was no direct evidence to establish that the accused was in possession of that poison.
The High Court, however, relied upon the circumstantial evidence and convicted the accused.
In the appeal preferred by the accused, this Court did not agree with the reasoning of the High Court.
After referring to Ram Gopal 's case.
Fazal Ali, J., focussed the attention on the following four factors: The learned Judge observed (at p.167): "So far as this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction: (1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased.
" 420 The learned Judge went on to state: "In the instant case, while two ingredients have been proved but two have not.
In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison.
It has, however, not been proved by any evidence that the appellant had the poison in his possession.
On the other hand, as indicated above, there is clear evidence of PW 2 that potassium cyanide could have been available to Manju from the plastic factory of her mother, but there is no evidence to show that the accused could have procured potassium cyanide from any available source.
We might here extract a most unintelligible and extra ordinary finding of the High Court: "It is true that there is no direct evidence on these two points, because the prosecution is not able to lead evidence that the accused had secured potassium cyanide poison from a particular source.
Similarly there is no direct evidence to prove that he had administered poison to Manju.
However, it is not necessary to prove each and every fact by a direct evidence.
Circumstantial evidence can be a basis for proving this fact.
" The comment by the high Court appears to be frightfully vague and absolutely unintelligible.
While holding in the clearest possible terms that there is no evidence in this case to show that the appellant was in possession of poison, the High Court observes that this fact may prove either by direct or indirect (circumstantial) evidence.
But it fails to indicate the nature of the circumstantial or indirect evidence to show that the appellant was in possession of poison.
If the Court seems to suggest that merely because the appellant had the opportunity to administer poison had the same was found in the body of the deceased, it should be presumed that the appellant was in possession of poison, then it has committed a serious and gross error of law and has blatantly violated the principles laid down by this Court.
The High Court has not indicated as to what was the basis for coming to a finding that the accused could have procured the cyanide.
On the other hand, in view of the 421 decision in Ram Gopal 's case failure to prove possession of the cyanide poison with the accused by itself would result in failure of the prosecution to prove its case." This Court then went into the merits of the prosecution case.
It was observed that the deceased was of sensitive mind.
She had occasionally suffered mental depression due to her inability to adjust herself to her husband 's family.
It was also observed that the deceased had access to the poison in question.
She could have secured the poison from the factory of her mother.
Considering these and other circumstances, it was held "that it might be a case of suicide or murder and both were equally probable".
So the accused was given the benefit of doubt and he was acquitted.
From the foregoing cases, it will be seen that in poison murder cases, the accused was not acquitted solely on the failure of the prosecution to establish one or the other requirement which this Court has laid down in Dharambir Singh case.
We do not also find any case where the accused was acquitted solely on the ground that the prosecution has failed to prove that the accused had the poison in his possession.
The accused in all the said cases came to be acquitted by taking into consideration the totality of the circumstances including insufficient motive, weakness in the chain of circumstantial evidence and likelihood of the deceased committing suicide.
We do not consider that there should be acquittal on the failure of the prosecution to prove the possession of poison with the accused.
Murder by poison is invariably committed under the cover and cloak of secrecy.
Nobody will administer poison to another in the presence of others.
The person who administers poison to another in secrecy will not keep a portion of it for the investigating officer to come and collect it.
The person who commits such murder would naturally take care to eliminate and destroy the evidence against him.
In such cases, it would be impossible for the prosecution to prove possession of poison with the accused.
The prosecution may, however, establish other circumstances consistent only with the hypothesis of the guilt of the accused.
The court then would not be justified in acquitting the accused on the ground that the prosecution has failed to prove possession of the poison with the accused.
The poison murder cases are not to be put outside the rule of circumstantial evidence.
There may be obvious very many facts and circumstances out of which the Court may be justified in drawing 422 permissible inference that the accused was in possession of the poison in question.
There may be very many facts and circumstances proved against the accused which may call for tacit assumption of the factum of possession of poison with the accused.
The insistence on proof of possession of poison with the accused invariably in every case is neither desirable nor practicable.
It would mean to introduce an extraneous ingredient to the offence of murder by poisoning.
We cannot, therefore, accept the contention urged by the learned counsel for the appellant.
The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murders.
Murder by poisoning is run like any other murder.
In cases where dependence is wholly on circumstantial evidence, and direct evidence not being available, the Court can legitimately draw from the circumstances an inference on any matter one way or the other.
The view that we have taken gets support from the decision of this Court in Ananth Chintaman Laguy vs The State of Bombay, ; where Hidayatullah, J., has given an anxious consideration to the three propositions laid down in Dharambir Singh case.
The learned Judge did not consider them as invariable criteria of proof to be established by the prosecution in every case of murder by poisoning.
The learned Judge said (at p. 519 520): "It is now necessary to consider the arguments which have been advanced on behalf of the appellant.
The first contention is that the essential ingredients required to be proved in all cases of murder by poisoning were not proved by the prosecution in this case.
Reference in this connection is made to a decision of the Allahabad High Court in Mt. Gajrani vs Emperor.
AIR 1933 All 394 and to two unreported decisions of this Court in Chandrakant N Nyalchand Seth vs The State of Bombay, Criminal Appeal No. 120 of 1957 decided on February 19, 1958 and Dharambir Singh vs The State of Punjab, Criminal Appeal No. 98 of 1958, decided on 4.11.1958.
In these cases, the Court referred to three propositions which the prosecution must establish in a case of poisoning; (a) that death took place by poisoning; (b) that the accused had the poison in his possession, and (c) that the accused had an opportunity to administer the poison to the deceased.
The case in Cr. A. No. 98 of 1958 D/ 4.11.1958 (SC) turned upon these three propositions.
There, the deceased had died as a result of poisoning by potassium cyanide, which poison was also found in the 423 autopsy.
The High Court had disbelieved the evidence which sought to establish that the accused had obtained potassium cyanide, but held, nevertheless that the circumstantial evidence was sufficient to convict the accused in that case.
This Court, did not, however, accept the circumstantial evidence as complete.
It is to be observed that the three propositions were laid down not as the invariable criteria of proof by direct evidence in a case of murder by poisoning, because evidently if after poisoning the victim.
the accused destroyed all traces of the body, the first proposition would be incapable of being proved except by circumstantial evidence.
Similarly, if the accused gave a victim something to eat and the victim died immediately on the ingestion of that food with symptoms of poisoning and poison, in fact, was found in the viscera, the requirement of proving that the accused was possessed of the poison would follow from the circumstances that the accused gave the victim something to eat and need not be separately proved.
" The learned Judge continued: "The cases of this Court which were decided proceeded upon their own facts, and though the three propositions must be kept in mind always, the sufficiency of the evidence, direct or circumstantial? to establish murder by poisoning will depend on the facts of each case.
If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of the doubt will have to be given to the accused person.
But if circumstantial evidence, in the absence of direct proof of the three elements, is so decisive that the Court can unhesitatingly hold that the death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it." So much for the principles for which the learned counsel for the appellant fought for.
On the facts there is concurrence of opinion between the two courts below.
This Court seldom re examines the findings of fact reached by the High Court.
We may, however, out of 424 deference to the counsel briefly refer to the evidence.
The prosecution has established the motive for the murder.
The proof of motive goes a long way to tilt the scale against the accused which provides a foundational material to connect the chain of circumstances.
The facts which hear on motive are distressing.
After the marriage, Gian Kaur was subjected to repeated harassment for not satisfying the demand for dowry made by Bhupinder Singh.
Baltej Singh (PW2) has stated that Bhupinder Singh asked Gian Kaur to bring Rs. 10,000.
The parents of Bhupinder Singh were also parties to that demand.
Baltej Singh with all difficulties satisfied that demand in part by payment of Rs.6,000.
Bhupinder Singh thereafter demanded a motorcycle.
When that was not immediately given Bhupinder Singh held out a threat to his wife that she would be killed.
This was conveyed to Baltej Singh.
Before he could take a decision in this regard he was shocked to receive the news of death of Gian Kaur.
This has been proved by the testimony of Baltej Singh (PW 2) and Nazir Singh (PW 3).
The demand for dowry followed by harassment to the deceased has been thus satisfactorily proved.
The evidence of the Doctor and the report of the chemical examiner has established beyond doubt that Gian Kaur died of organo phosphorus compound poisoning.
Bhupinder Singh had an opportunity to administer that poison.
There was nobody else in the house.
All the inmates had their common food in the night.
All of them slept in the same place.
Both the Courts have ruled out the theory of suicide by Gian Kaur.
We entirely agree with that finding.
She could not have thrown her child to the mercy of others by committing suicide and indeed no mother would venture to do that.
The postmortem report giving the description of injuries found on the body of the deceased would also defy all doubts about the theory of suicide.
She had contusion on the front of right leg.
Abrasion on the front of the left leg just below the knee joint.
Linear abrasion on the back of the right hand.
Linear abrasion on the antro lateral aspect of left fore arm in its middle.
And contusion on the back of right elbow joint.
These injuries, as the Courts below have observed could have been caused while Gian Kaur resisted the poison being administered to her.
The behaviour of Bhupinder Singh in the early hours of that fateful day by going to his field as if nothing had happened to his wife is apparently inconsistent with the normal human behaviour.
There was no attempt made by him or other inmates of the house to look out for any Doctor to give medical attention to the victim.
The movement and disposition of Bhupinder Singh towards the victim and situations 425 are incompatible with his innocence.
On the contrary, it gives sustenance to his guilt.
The Courts below having considered all these facts and circumstances had no difficulty to convict the accused for murder and we see no good reason to interfere with that conclusion.
In the result, the appeal fails and is dismissed.
R.S.S. Appeal dismissed.

summary/full:
% Bhupinder Singh, appellant, his father Sher Singh and his mother Mukhtiar Kaur, were tried for committing the murder of Bhupinder Singh 's wife, Gian Kaur, by administering poison.
The Trial Court held that the accused had strong motive for the murder as the deceased was unable to satisfy their demand for dowry for which she was being constantly harassed.
The Trial Court further held that the death of Gian Kaur was not accidental or suicidal or by food poisoning.
The Trial Court held that the accused had the opportunity to accomplish their design, and they did administer poison which the deceased must have resisted and thereby suffered injuries on her body.
The Trial Court found all the three accused guilty of the offence under section 302 read with section 34 I.P.C. and sentenced them to imprisonment for life.
It was urged before the High Court that the prosecution has failed to establish by evidence the necessary conditions for the proof of murder by poisoning.
Disagreeing with the contentions and the theory of suicide put forth by the appellant, the High Court confirmed the conviction and sentence on Bhupinder Singh and Sher Singh while acquitting Mukhtiar Kaur.
The present appeal by special leave is only by Bhupinder Singh.
The main contention of the appellant is that in a case of murder by poison there are three main points to be proved; firstly, did the deceased die of the poison in question; secondly, had the accused got the 410 poison in question in his or her possession, and thirdly, had the accused an opportunity to administer the poison in question to the deceased.
It is contended that the evidence falls short of these requirements, and in particular, as to the question of proof of possession of the poison with the accused.
The second contention of the appellant is that it is not enough for the chemical examiner merely to state in his report that the poison Organo phosphorus compound was present in the substance sent for examination; he should have also stated that a lethal dose of the poison was detected.
It is submitted that his report should be full and complete to take the place of evidence which he would have given if he were called to Court as witness.
Dismissing the appeal, this Court, ^ HELD: (1) Section 293 of the Code of Criminal Procedure provides that the report of scientific experts may be used as evidence in any inquiry, trial or other proceedings of the Court.
[416D] (2) No hard and fast rule can be laid down as regards the value to be attached to the report of the chemical examiner.
[416D] (3) The chemical examiner does not, as a rule, give an opinion as to the cause of death but merely gives report of the chemical examination.
The report itself is not crucial.
It is a place of evidece.
The only protection to it is that it does not require any formal proof.
It is, however, open to the Court, if it thinks fit, to call the chemical examiner and examine him as to the subject matter of the report.
The report should normally be forwarded to the doctor who conducted the autopsy.
[416D F] (4) In poison murder cases, the accused are not acquitted solely on the failure of the prosecution to establish one or the other requirement.
They are not to be acquitted solely on the ground that the prosecution has failed to prove that the accused had the poison in his possession, and are to be acquitted by the Court taking into account the totality of the circumstances including insufficient motive, weakness in the chain of circumstantial evidence and likelihood of the deceased committing suicide.
[421C E] (5) Murder by poisoning is run like any other murder and the accused cannot have a better chance of being exempted from sanctions 411 than in other kinds of murders.
[422B C] (6) The poison murder cases are not to be put outside the rule of circumstantial evidence.
There may be obvious very many facts and circumstances out of which the Court may be justified in drawing permissible inference that the accused was in possession of the poison in question.
[421H; 422A] (7) The insistence on proof of possession of poison with the accused invariably in every case is neither desirable nor permissible.
It would mean to introduce an extraneous ingredient to the offence of murder by poisoning.
[422B] (8) Murder by poison is invariably committed under the cover and cloak of secrecy.
Nobody will administer poison to another in the presence of others.
The person who administers poison to another in secrecy will not keep a portion of it for the investigating officer to come and collect it.
The person who commits such murder would naturally take care to eliminate and destroy the evidence against him.
In such case, it would be impossible for the prosecution to prove possession of poison with the accused.
The prosecution may, however, establish other circumstances consistent only with the hypothesis of the guilt of the accused.
The Court then would not be justified in acquitting the accused on the ground that the prosecution has failed to prove possession of the poison with the accused.
[421E G] Mt. Gajrani and another vs Emperor, A.I.R. 1933 All 394; State vs Fateh Bahadur, A.I.R. 1958 All 1; Chandra Kant Myalchand Seth 's case, (Criminal Appeal No. 120 of 1957 decided on 19.2.1958): Dharambir Singh vs The State of Punjab, Criminal Appeal No. 98 of 1958 decided on 4.11.1958; Mohan vs State of Uttar Pradesh, ; ; Ram Gopal vs State of Maharashtra, A.I.R. 1972 S.C. 656; Sharda B. Chand Sarda vs State of Maharashtra, ; and Ananth Chintaman Lagu vs The State of Bombay, ; , referred to.


judgement:
N: Criminal Appeal No. 169 of 1978.
From the Judgment and order dated 10.11.1975 of the Gujarat High Court in Criminal Revision Application No. 273 of 1975.
V.C. Mahajan, Mrs. Indira Sawhney and Miss. A. Subhashini for the Appellants.
453 G.A. Shah, Anil K. Naurya, K.L. Hathi Miss Madhu Moolchandani, Vimal Dave and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by THAKKAR, J.
Does the acquittal of an accused charged with having committed an offence punishable under Section 111 read with Section 135 of the Customs Act, 1969 create a legal bar to the said accused subsequently being prosecuted under Section 85 of the Gold (Control) Act, 1968? The High Court having answered this question (in the affirmative) against the prosecution and having directed the dropping of the subsequent proceedings on the premises that the acquittal in the former proceedings operated as a legal bar to the prosecution of the accused in the latter proceedings, the State has approached this Court by way of the present appeal.
By certificate under Article 134(i)(c) of the Constitution of India.
Respondents 1 to 3 came to be prosecuted as a result of a raid at their house in which primary gold valued at Rs.84,770 at the material time was found along with some other articles.
They were prosecuted for an offence punishable under section 111 read with Section 135 of the Customs Act, 1969.
In that case present respondent No. 3 was convicted whereas present respondent Nos. 1 and 2 were acquitted.
The same alleged offenders were later on sought to be prosecuted under Section 85 of the Gold (Control) Act, 1968 relying on the find of primary gold from the very same premises at the time and on the occasion of the very same raid which gave rise to the prosecution under the Customs Act which had culminated in the conviction of respondent No. 3 and the acquittal of respondents 1 and 2.
A contention was thereupon raised on behalf of respondents 1 to 3 that the new trial was barred.
The Chief Judicial Magistrate accepted this plea and ordered that the prosecution be dropped.
The learned Sessions Judge confirmed the said order.
The appellant challenged the order passed by the learned trial Magistrate as confirmed by the learned Sessions Judge by way of a Revision Application Criminal Revision Application No. 273 of 1975 to the High Court.
The High Court affirmed the decision of the Courts below holding that the present trial was barred by virtue of Section 403(1) of the Code of Criminal Procedure, 1898 (Cr. P.C.).
Hence this appeal.
In order to determine this question it is necessary to identify the ingredients which will have to be established by the prosecution in order to bring home the guilt under the different provisions.
These ingredients may be catalogued as under: 454 Ingredients of the charge Ingredients of the charge for the offence under for the offence under Sec.
Section 111 read with Sec. 85 of the Gold (Control) 135 of the Customs Act, for which the in respect of which the respondents are sought respondents were acquitted.
to be prosecuted.
i) Inter alia being in posses The offender owns or has in sion of or being concerned his possession, custody, or in keeping or concealing of control any primary gold of goods which the offender not less than 9 carats in knows or has reason to purity in unfinished or believe are liable to semi finished from or in confiscation under blocks, bars etc.
Section 111.
ii) The goods in question, gold, was imported within the Indian Customs waters contrary to a prohibition contained under the Customs Act.
iii)There was a prohibition in respect of the import of gold at the material time as contemplated by Sec.
111 D of the Customs Act It is therefore evident that the ingredients required to be established in respect of the offence under the Customs Act are altogether different from the ones required to be established for an offence under the Gold (Control) Act.
In respect of the former, the prosecution has to establish that there was a prohibition against the import into Indian sea waters of goods which were found to be in the possession of the offender.
On the other hand in respect of the offence under the Gold (Control) Act, it is required to be established that the offender was in possession of primary gold meaning thereby gold of a purity of not less than 9 carats in any unfinished or semi finished form.
In regard to the latter offence it is not necessary to establish that there is any prohibition against the import of gold into Indian sea waters.
Mere possession of gold of purity not less than 9 carats in any 455 unfinished or semi finished form would be an offence under the Gold Control Act.
It is therefore stating the obvious to say that the ingredients of the two offences are altogether different.
Such being the case the question arises whether the acquittal for the offences under the Customs Act which requires the prosecution to establish altogether different ingredients operates as a bar to the prosecution of the same person in connection with the charge of having committed the offence under the Gold (Control) Act.
Reliance has been placed on Section 403(1) of the Code of Criminal Procedure, 1898 (Cr P.C.) in support of the plea that the prosecution under the Gold (Control) Act would be barred on the basis of the undermentioned facts: i) that the respondents had been tried by a competent Court for the offence of being in possession of gold under the Customs Act and had been acquitted; ii) they are sought to be prosecuted on the same facts for an offence under the Gold (Control) Act.
It is not in dispute that the respondents were tried and acquitted for the offence under the Customs Act in connection with the possession of a quantity of gold.
Their trial would be barred by Section 403(1) provided they are sought to be prosecuted on "same facts" for any offence for which a different charge from the one made against them might have been made under Section 236 ' and for which they might have been convicted under Section 2372 1.
"Section 403(1): A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under section 237".
If a single act or series of acts is of such a nature that it is doubtful which of several offences of the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
Illustrations (a) xxxx (b) xxxx".
( 1) If in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
" 456 In order to successfully establish their plea of bar under Section 403(1) the concerned respondents will therefore have to establish that: i) It was doubtful as to which of the several offences the facts which could be proved by the prosecution would constitute.
ii) And they could have been charged in the alternative with having committed one or other of the said offences.
In other words what they would be required to establish would be that (1) there must have been a 'doubt ' as to whether the offence under the 'Customs Act ' could be proved or whether the offence under the 'Gold (Control) Act ' would be proved and (2) that in the context of this doubt an alternative charge could have been framed under Section 236.
Now, on a. true interpretation of Section 236 it would appear that the Section would be attracted where the offence would fall either under one or the other of the two alternative charges.
It would not be attracted if an offence could fall under both of the alternative charges.
What is contemplated by Section 236 is framing of an alternative charge where on the facts of the case an offence would fall under one of the two alternative charges, but the act would not constitute an offence under both the charges.
This point is made clear by the illustrations to Section 236 viz: "(a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust of cheating.
He may be charged with theft, receiving stolen property, criminal breach of trust and cheating or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating.
(b) A states on oath before the Magistrate that he saw hit with a club.
Before the Sessions Court A states on oath that never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of these contradictory statements was false.
" Illustration (a) refers to framing of an alternative charge in respect of theft or receiving of stolen property or criminal breach of trust or cheating.
It will be seen that a person cannot be said to have committed the offence both of theft as also of 'receiving of stolen 457 property '.
A person who himself commits the theft, cannot be guilty of the charge of 'receiving stolen property ' whereas a person who may have nothing to do with commission of theft, but who may be found in possession of the stolen property, would be guilty of the offence of 'receiving stolen property '.
Now the prosecution cannot foresee whether the person from whose possession the stolen article was found was himself the thief or as merely a person who had received stolen property from the thief.
A person cannot be found guilty of both 'theft ' as also for 'receiving stolen property '.
And it is in such a case that an alternative charge under Section 236 could be framed.
In the present case the concerned respondents could be found guilty of both the offences in the context of the possession of gold.
If it was established that there was a prohibition against the import of gold and that he was found in possession of gold which he knew or had reason to believe was liable to confiscation he would be guilty of that offence.
He would also be guilty of an offence under the Gold (Control) Act provided the gold is of a purity of atleast 9 carats.
He would have violated the provisions of 'both ' the Customs Act and the Gold (Control) Act if the aforesaid ingredients were established.
It is not as if in case he was found guilty of an offence under the Customs Act, he could not have been found guilty under the Gold (Control) Act or vice versa.
Upon being found guilty of both the offences the Court may perhaps impose a concurrent sentence in respect of both the offences but the Court has also the power to direct that the sentence shall run consecutively.
There is therefore no question of framing of an alternative charge one, under the Customs Act, and the other, under the Gold (Control) Act.
If the ingredients of both the offences are satisfied the same act of possession of the gold would constitute an offence both under the Customs Act as also under the Gold (Control) Act.
Such being the position it cannot be said that they could have been tried on the same facts for an alternative charge in the context of Section 236 Cr.
P.C. at the time of the former proceedings.
The submission urged in the context of Section 403(1) cannot therefore succeed for it cannot be said that the persons who are sought to be tried in the subsequent proceedings could have been tried on the same facts at the former trial under Section 236.
Strong reliance has been placed on behalf of the respondents on Maqbool Hussain vs The State of Bombay & ors.
etc., [1953] S.C.R. Vol.
IV p. 730 in support of the submission that the second prosecution is barred.
In Maqbool 's case the central issue arose in the context of the fact that a person who had arrived at an Indian Airport from abroad on being searched was found in possession of gold in 458 contravention of the relevant notification, prohibiting the import of gold.
Action was taken against him by the Customs authorities and the gold seized from his possession was confiscated.
Later on a prosecution was launched against him in the criminal court at Bombay charging him with having committed the offence under Section 8 of the Foreign Exchange Regulation Act (Act 7 of 1947) read with the relevant notification.
In the background of these facts the plea of 'autrefois acquit ' was raised seeking protection under Article 20(2) of the Constitution of India.
This Court came to the conclusion that the proceedings before the Customs authority did not constitute the 'prosecution ' of the appellant.
The Court also took the view that the penalty imposed on him did not constitute a 'punishment ' by the judicial tribunal.
Under the circumstances the trial was not barred.
The ratio of the decision is altogether different and has no application in so far as the plea raised by the respondents is concerned.
However, reliance is placed on certain observations made in the course of the discussion, at p. 737.
To quote: " The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown, are the same in the two trials.
A plea of 'autrefois acquit ' is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter." (Vide Halsbury 's Laws of England, Hailsham Edition Vol.
9 pages 152 and 153, paragraph 212).
" (Emphasis added) We have already applied the very test indicated in this passage.
But we have reached the conclusion that in the present case this test does not support the respondents ' submission in asmuch as the ingredients of the two offences are different in scope and content.
The facts constituting the offence under Customs Act are different and are not sufficient to justify the conviction under the Gold Control Act.
It must also be realized that what is necessary is to analyze the ingredients of the two offences and not the allegations made in the two complaints as declared by this Court in State of Bombay vs S.L. Apte & Another, [1961] 3 S.C.R. p. 107.
We have also concluded that a separate charge could have been framed in respect of the distinct offence under Gold Control Act 459 Under the circumstances the plea raised by the defence cannot succeed.
The two conclusions reached by us brings the matter squarely within the parametres of the law settled by this Court decades ago in section L. Apte 's case (Supra).
In that case the element of 'dishonesty ' was required to be established under section 409 of Indian Penal Code whereas it was not required to be established under Section 105 of the Indian Insurance Act.
In this backdrop this Court has enunciated the law in the context of the plea based on Article 20(2) of the Constitution, Section 26 of General Clauses Act and section 403(2) of the Criminal Procedure Code in no uncertain terms: "If, therefore, the offences were distinct there is no question of the rule as to double jeopardy as embodied in article 20(2) of the Constitution, being applicable.
The next point to be considered is as regards the scope of section 26 of the General Clauses Act.
Though section 26 in its opening words refers to "the act or omission constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged.
This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence".
If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked.
It therefore follows that in the present case as the respondents are not being sought to be punished for "the same offence" twice but for two distinct offences constituted or made up of different ingredients the bar of the provision is inapplicable.
In passing, it may be pointed out that the construction we have placed on article 20(2) of the Constitution and section 26 of the General Clauses Act is precisely in line with the terms of section 403(2) of the Criminal Procedure Code which runs: 403(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub section ( 1)".
460 There is no manner of doubt that section 403(1) does not come to rescue of the respondents 1 to 3 whereas section 403(2) of the Code clearly concludes the matter against them.
The High Court was therefore in error in holding that subsequent trial was barred.
We accept the appeal on this point and reverse the decision of the Courts below and the High Court.
The appellant was understandably seriously aggrieved by the erroneous enunciation of law by the High Court as it would cause prejudice in other matters involving the same point which may have been pending or might arise in future.
With the position of law being now settled in the appellant 's favour the main objective of the appellant is achieved.
Learned counsel for the appellant indicated at the very commencement that the main purpose of the appeal was to have the true position in law settled.
That 20 years have elapsed since the date of the seizure (November 15, 1968) is, in our opinion, no ground for not proceeding further with the matter inasmuch as the offence in question is a serious economic offence, which undermines the entire economy of the Nation.
The delay occasioned in the working of the judicial system by the ever increasing workload cannot provide an alibi for upholding such a plea.
However in the present case the Sessions Court has quashed the proceedings not only on this ground but also on the basis of certain factual findings as well and the learned Counsel for the appellant himself found it difficult to assail these findings at this juncture.
The operative order passed by the High Court cannot therefore be disturbed in view of the facts and circumstances peculiar to this particular case.
We accordingly allow the appeal to this extent and reverse the finding of the Lower Courts and High Court on the question of maintainability of the subsequent prosecution but find ourselves unable to pass any further orders under the circumstances.
S.L. Appeal allowed.

dataset_name: IN-Abs

summary/full:
% Respondents 1 to 3 were prosecuted for an offence punishable under section 111 read with section 135 of the Customs Act, 1969, on the basis of recovery of primary gold from their house.
Respondent No. 3 was convicted and respondents Nos. 1 & 2 were acquitted.
Later, the same persons were sought to be prosecuted under section 85 of the Gold (Control) Act, 1968 relying on the find of the primary gold from the very same premises at the time and on the occasion of the same raid at the house of the said respondents, which had given rise to the prosecution under the Customs Act, as stated above.
The respondents 1 to 3 contended that the new trial was barred.
The trial Magistrate accepted this plea and ordered the prosecution to be dropped.
The Sessions Judge confirmed the order of the trial court.
The High Court affirmed the decision of the Courts below, holding that the trial was barred by virtue of section 403 (1) of the Code of Criminal Procedure, 1898 (Cr. P.C.).
The State then approached this Court by this appeal.
Allowing the appeal in part, the Court, ^ HELD: The ingredients required to be established in respect of an offence under the Customs Act are altogether different from the ones required to be established for an offence under the Gold (Control) Act.
In respect of the former, the prosecution has to establish that there was a prohibition against the import into Indian sea waters of goods which were found to be in the possession of the offender.
In respect of the offence under the Gold (Control) Act, it is required to be established that the offender was in possession of primary gold.
In regard to the latter offence, it is not necessary to establish that there is any prohibition against the import of gold.
Mere possession of gold of purity not less than 9 carats in any unfinished or semi finished form would be an offence under the Gold Control Act.
[454F H; 455A] 451 The respondents were tried and acquitted for the offence under the Customs Act in connection with the possession of gold.
Their trial would be barred by section 403(1) of the Code of Criminal Procedure, provided they are sought to be prosecuted on the "same facts" for any offence for which a different charge from the one made against them might have been made under Section 236 and for which they might have been convicted under Section 237, Criminal Procedure Code.
[455D E] In order to establish their plea of bar under Section 403(1), the respondents have to establish that (1) there must have been a 'doubt ' as to whether the offence under the 'Customs Act ' could be proved or whether the offence under the 'Gold (Control) Act ' would be proved and (2) that in the context of this doubt an alternative charge could have been framed under Section 236.
[456C] On a true interpretation of Section 236, it would appear that the Section would be attracted where the offence would fall either under one or the other of the two alternative charges.
It would not be attracted if an offence could fall under both of the alternative charges.
What is contemplated by section 236 is framing of an alternative charge where on the facts of the case an offence would fall under one of the two alternative charges, but the act would not constitute an offence under both the charges.
This point is made clear by the illustrations to Section 236.
In this case, the respondents could be found guilty of both the offences in the context of the possession of gold.
If it is established that there was a prohibition against the import of gold and that the respondents were found in possession of gold which they knew or had reason to believe was liable to be confiscated, they would be guilty of that offence.
They would also be guilty of an offence under the Gold (Control) Act, provided the gold was of a purity of at least 9 carats.
They would have violated the provisions of 'both ' the Customs Act and the Gold (Control) Act if the aforesaid ingredients were established.
It is not as if in case they were found guilty of an offence under the Customs Act, they could not have been found guilty under the Gold (Control) Act or vice versa.
Upon being found guilty of both the offences, the Court may impose a concurrent sentence in respect of both the offences or the sentences could be ordered to run consecutively.
There was, therefore, no question of the framing of an alternative charge one under the Customs Act and the other, under the Gold (Control) Act.
If the ingredients of both the offences are satisfied, the same act of possession of gold would constitute an offence both under the Customs Act and also under Gold (Control) Act.
It could not, therefore, be said that they 452 could have been tried on the same facts for an alternative charge in the context of section 236 Cr.
P.C. at the time of the former proceedings.
The submission urged in the context of Section 403(1) could not succeed.
[456C H; 457D F] A separate charge could have been framed in respect of the distinct offence under the Gold Control Act.
The conclusions reached by the Court brought the matter squarely within the parameters of the law settled by this Court in the State of Bombay vs section L. Apte & Anr., [1961] 3 S.C.R. 107.
[459A B] Section 403(1) does not come to the rescue of the respondents 1 to 3; section 403(2) of the Code clearly concludes the matter against them.
The High Court was in error in holding that the subsequent trial was barred.
The appeal was accepted on this point and the decision of the Courts below and the High Court was reversed.
That 20 years has elapsed since the date of the seizure was no ground for not proceeding further with the matter as the offence in question was a serious economic offence which undermines the entire economy of the Nation.
But the Sessions Judge had quashed the proceedings not only on this ground but also on the basis of certain factual findings which counsel for the appellant himself found difficult to assail at this juncture.
The operative order of the High Court could not, therefore, be disturbed in the peculiar facts and circumstances of the case.
The finding of the lower courts and the High Court was reversed on the question of maintainability of the subsequent prosecution but no further order could be passed in the circumstances.
[460A F] Maqbool Hussain vs State of Bombay & Ors.
etc., [1953] SCR Vol.
IV P 730; State of Bombay vs S.L. Apte & Anr., [1961] 3 S.C.R. p. 107, referred to.


judgement:
Special Leave Petition (Civil) No. 2545 of 1988.
From the Judgment and Order dated 2.2.1988 of the Bombay High Court in Arbitration Petition No. 234 of 1987.
G. Ramaswamy, Additional Solicitor General, K.V. Kini, section Bharthari and P.H. Parekh for the Petitioner.
K.S. Cooper, D. Karkali, R. Karanjawala and Mrs. M. Karanjawala for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
After hearing the parties fully we had by our order dated 10th March, 1988 dismissed the special leave petition under Article 136 of the Constitution.
We stated therein that we would indicate the reasons by a separate judgment later.
We do so by this judgment.
This is a petition for leave to appeal under Article 136 of the Constitution from the judgment and order of the learned Judge of the High Court of Bombay dated 2nd February, 1988.
By the impugned judgment the learned Judge has rejected the application for revocation of the authority of respondent No. 1, Shri K.D. Bali, sole arbitrator under sections 5 and 11 of the (hereinafter called 'the Act ').
In order to appreciate the contentions raised, it may be stated that the International Airport Authority of India which was the petitioner in the High Court and is the petitioner herein had invited tenders for the work of construction of terminal building of new international passenger complex (Phase II) at the Bombay Airport at 375 Sahar, Bombay.
Respondent No. 2, M/s. Mohinder Singh and Company, a partnership firm having registered office at Delhi and carrying on business in Bombay submitted a tender and it was accepted for the value of Rs.7,26,31,325.
A formal agreement followed on 22nd January, 1982.
It is not necessary to refer to the clauses of the agreement for the present purposes.
It may be reiterated, however, that there was provision in the agreement for settlement of disputes through appointment of sole arbitrator under clause 25 of the Conditions of Contract by the competent authority.
Certain disputes arose in which the petitioner sought claims amounting to Rs.85 lakhs.
Respondent No. 2 contractor approached the petitioner by letter dated 22nd February, 1985 to refer the disputes with regard to claims amounting to Rs.85 lakhs to the arbitration.
One Shri K.K. Sud, the Chief Engineer of the petitioner by his letter appointed respondent No. 1 as the arbitrator and made the reference with regard to the claim of Rs. 85 lakhs on 23rd February, 1985.
On 8th March, 1985, it appears from the narration of the events in the judgment impugned that the arbitrator gave directions to the parties regarding submission of pleadings.
Respondent No. 2 filed pleadings within time, but the petitioner filed its pleadings after a delay of two and a half months.
On 17th March, 1986 respondent No. 2 addressed a letter to the Chief Engineer asking for reference of further disputes to the arbitration and accordingly on 16th May, 1986 a second reference was made referring 11 further points of dispute.
A third reference was sought by respondent No. 2 on 22nd May, 1986 in respect of seven more claims but the petitioner informed on June 12, 1986 that the third reference was premature.
It appears that in respect of the second and third references the assertion of the petitioner was that these disputes were not referable to the arbitrator.
The arbitrator had directed the parties to submit their statements in respect of second reference and though respondent No. 2 submitted its claim within the stipulated period, the petitioner had again delayed doing so according to the learned Judge and according to the assertions of respondent No. 2 for a period of three months.
On 16th May, 1986 the Chief Engineer made reference No. 2 with regard to claims amounting to Rs.1.17 crores to the arbitrator.
On 23rd December, 1986 the Chief Engineer of the petitioner made another reference being reference No. 3 to the arbitrator with regard to claims amounting to Rs.5.81 crore.
The petitioner by its applications of 8th and 9th June, 1987 expressed its objections to the references Nos. 2 and 3 made by the Chief Engineer as according to the petitioner the said references were null and void as these were irregularly made.
On 26th June, 1987 the petitioner by its written submissions took preliminary objection before the arbitrator 376 to the said arbitration proceedings, being lack of jurisdiction of the arbitrator on account of the fact that he was not validly appointed as far as references Nos. 2 and 3 were concerned.
The petitioner by its application dated 3rd August, 1985 noted that respondent No. 1 had not noted the minutes of the meeting dated 10th of June, 1985 correctly.
The petitioner by its application on 15th of June, 1987 requested respondent No. 1 not to proceed with the arbitration proceedings till its preliminary objections regarding jurisdictional aspects were decided and also made it clear that it was appearing under protest in the proceedings before him.
The petitioner on 17th June, 1987 made oral submissions before respondent No. 1 with regard to its preliminary objections.
Respondent No. 1 directed the petitioner to submit the rest of its submission by way of written submissions.
The petitioner by its applications dated 22nd and 25th June, 1987, respectively objected to respondent No. 1 directing it to make submissions by way of written submissions and thus hurrying up the proceedings.
On 26th June, 1987 the petitioner submitted written submissions to respondent No. 1.
Respondent No. 1 by his order dated 27th June, 1987 directed that further proceedings would be undertaken only after the extension of time.
Respondent No. 2 applied for enlargement of time and the same was granted by the High Court.
On 7th August, 1987 application under section 13(b) of the Act was made before the arbitrator with a request to state the matter before it as Special Case for the opinion of the Court.
The arbitrator by his order dated 3rd October, 1987 rejected the said application of the petitioner and also rejected the preliminary objections of the petitioner at the same time.
On 14th October, 1987 the petitioner by its letter noted the fact that it has sent the minutes of the meeting with regard to the proceedings held on 28th and 29th September, 1987 to the arbitrator as directed by him.
In the said letter the petitioner also protested against the arbitrator 's decision of changing the venue of the proceedings and also the inconvenient dates being fixed by him.
The petitioner by its letter dated 11th October, 1987 conveyed its concern to the arbitrator that he has been rushing through the proceedings.
On 16th December, 1987 the petitioner alleging apprehension that respondent No. 1 had formed his own opinion regarding the matters in issue.
The petitioner approached the High Court with the instant application.
This application was rejected by the High Court.
The learned Judge changed the date fixed for hearing of the application for extension of time by enlarging the time to make the award by 15th February, 1988.
377 The main contention for the revocation of the authority of the arbitrator was about the alleged apprehension in the mind of the petitioner about bias of the sole arbitrator.
The learned Judge of the High Court was unable to accept any ground for alleged apprehension.
It is apparent as the learned Judge noted that respondent No. 2 had complied with the directions of the arbitrator about the conduct of the proceedings but the petitioner went on seeking adjournments after adjournments.
Respondent No. 2 complained to the arbitrator on 4th May, 1987 about the delaying tactics adopted by the petitioner and thereupon the arbitrator directed that the hearing would take place on 8th and 9th June, 1987 and no further adjournment would be granted.
After this direction was given by the arbitrator, the petitioner addressed a letter dated 25th May, 1987 to the arbitrator objecting to the jurisdiction in respect of the second and third references.
The objections to the jurisdiction raised by the petitioner were, that the claim made in the second and third references were barred by principles analogous to Order II Rule 2 of the Code of Civil Procedure, the Chief Engineer had no authority to refer the disputes to the arbitration, the claims made by respondent No. 2 were beyond the stipulated period of 90 days and therefore were not arbitrable and the time for declaring the award having expired, the Arbitrator could not continue with the arbitration proceedings.
On 8th June, 1987 as mentioned hereinbefore the learned advocate for the petitioner orally made submissions on the issue of jurisdiction and thereafter sought adjournment till June 9, 1987 for filing written submissions.
On 9th June, 1987 apart from filing written submissions further oral arguments were advanced and thereafter an adjournment was sought beyond June 1987.
This adjournment was sought because the time to declare the award was expiring by June, 1987.
The hearing was adjourned till June 17, 1987 and again the petitioner 's advocate argued on preliminary objections about jurisdiction.
The arguments were advanced on the next adjourned dates, that is, June 26 and June 27, 1987.
It further appeared that as the time for making the award had expired and the petitioner did not consent to the extension of time, respondent No. 2 filed petition to the High Court of Bombay for extension of time on June 21, 1987.
Thereafter the petitioner made an application before the arbitrator under section 13(b) of the Act calling upon the arbitrator to state special case for the opinion of the High Court on certain alleged legal objections.
In the meanwhile the petition for extension of time filed in the Bombay High Court was granted and the time for declaring the award was extended till January 15, 1988.
Thereafter the arbitrator fixed the hearing on September 28, 1987 and the advocate for the petitioner again reiterated the preliminary objections to the jurisdiction of the arbitrator and 378 insisted upon the arbitrator, passing an order on the application under section 13(b) of the Act.
The arbitrator rejected the preliminary objections by his order dated 3rd October, 1987 and also the application for stating special case to the High Court under section 13(b) of the Act.
The Petitioner 's advocate thereupon sought adjournment of the hearing and accordingly hearing was adjourned on several dates.
Ultimately, the arbitrator fixed the hearings on 30th October, 1987 and 31st October, 1987.
The hearing was postponed to 2nd November, 1987 and on that day the petitioner 's advocate remained absent.
Thereafter the hearing proceeded on 6th November and 11th November, 1987 as well as on 13th, 18th and 19th November, 1987.
Respondent No. 2 concluded arguments, while the arguments on behalf of the petitioner were advanced on December 3, 1987.
The arguments further proceeded on December 8 and 9, 1987.
Thereafter on December 17, 1987 the present petition was filed for revocation of the appointment of respondent No. 1 as the sole arbitrator.
In our opinion, the above narration gives a glimpse how a party can try to prolong a proceeding.
Several points were taken in support of the application for revocation.
It was sought to be urged that the petitioner had lost confidence in the sole arbitrator and was apprehensive that the arbitrator was biased against the petitioner.
It is necessary to reiterate before proceeding further what are the parameters by which an appointed arbitrator on the application of a party can be removed.
It is well settled that there must be purity in the administration of justice as well as in administration of quasi justice as are involved in the adjudicatory process before the arbitrators.
It is well said that once the arbitrator enters in an arbitration, the arbitrator must not be guilty of any act which can possibly be construed as indicative of partiality or unfairness.
It is not a question of the effect which misconduct on his part had in fact upon the result of the proceeding, but of what effect it might possibly have produced.
It is not enough to show that, even if there was misconduct on his part, the award was unaffected by it, and was in reality just; arbitrator must not do anything which is not in itself fair and impartial.
See Russell on Arbitration, 18th Edition page 378 and observations of Justice Boyd in Re Brien and Brien, at p. 89.
Lord O 'Brien in The King (De Vesci) vs The Justices of Queen 's Country, observed as follows: "By bias I understand a real likelihood of an operative prejudice, whether conscious or unconscious.
There must in my opinion be reasonable evidence to satisfy us that there was a real likelihood of bias.
I do not think that their 379 vague suspicions of whimsical capricious and unreasonable people should be made a standard to regulate our action here.
It might be a different matter if suspicion rested on reasonable grounds was reasonably generated and but certainly mere flimsy grounds elusively generated and morbid suspicions should not be permitted to form a ground of decision.
" (Emphasis supplied) See The Queen vs Rand and others, ; Ramnath vs Collector, Darbhanga, I.L.R. 34 Pat. 254; The Queen vs Meyer and others, and Eckersley and others vs The Mersey Docks and Harbour Board, In the words of Lord O 'Brien, LCJ there must be a real likelihood of bias.
It is well settled that there must be a real likelihood of bias and not mere suspicion of bias before the proceedings can be quashed on the ground that the person conducting the proceedings is disqualified by interest.
See in this connection Gullapalli Nageswara Rao vs The State of Andhra Pradesh; , and Mineral Development Ltd. vs State of Bihar, Recently this Court in a slightly different context in Ranjit Thakur vs Union of India and others, A.I.R. 1987 S.C. 2386 had occasion to consider the test of bias of the Judge.
But there must be reasonableness of the apprehension of bias in the mind of the party.
The purity of administration requires that the party to the proceedings should not have apprehension that the authority is biased and is likely to decide against the party.
But we agree with the learned Judge of the High Court that it is equally true that it is not every suspicion felt by a party which must lead to the conclusion that the authority hearing the proceedings is biased.
The apprehension must be judged from a healthy, reasonable and average point of view and not on mere apprehension of any whimsical person.
While on this point we reiterate that learned counsel appearing for the petitioner in his submissions made a strong plea that his client was hurt and had apprehension because the arbitrator being the appointee of his client was not acceding to the request of his client which the petitioner considered to be reasonable.
We have heard this submission with certain amount of discomfiture because it cannot be and we hope it should never be in a judicial or a quasi judicial proceeding a party who is a party to the appointment could seek the removal of an appointed authority or arbitrator on the ground that appointee being his nominee had not acceded to his 380 prayer about the conduct of the proceeding.
It will be a sad day in the administration of justice if such be the state of law.
Fortunately, it is not so.
Vague suspicions of whimsical, capricious and unreasonable people are not our standard to regulate our vision.
It is the reasonableness and the apprehension of an average honest man that must be taken note of.
In the aforesaid light, if the alleged grounds of apprehension of bias are examined, we find no substance in them.
It may be mentioned that the arbitrator was appointed by the Chief Engineer of the petitioner, who is in the service of the petitioner.
The learned Judge had examined the five circumstances advanced before him.
The first was that the arbitrator did not record the minutes of the meetings after September 29, 1987.
The learned Judge found that there was no merit in this complaint.
After 29th September, 1987 the petitioner 's advocate orally made submissions that the arbitrator had no jurisdiction to entertain the dispute.
The advocate for the petitioner also desired to file written arguments and the arbitrator did not object to the same.
In spite of it, the petitioner insisted that the arbitrator should record the minutes setting out the entire oral arguments advanced on behalf of the petitioner.
This in our opinion was not a reasonable request to make and the arbitrator had rightly declined to do so.
This is no basis of any reasonable apprehension of bias.
The next circumstance urged was that the preliminary objections raised by the petitioner were rejected without a speaking order.
It was not necessary for the arbitrator to record a long reasoned order on the preliminary objections and indeed the law does not demand writing such a long order.
In any case, it will be open to the petitioner to file any petition in the Court under section 33 of the Act, if the petitioner felt that the arbitrator had no jurisdiction to entertain the reference, but the petitioner did not choose to adopt that course and proceeded to argue for a considerable length of time, the issue of jurisdiction before the arbitrator.
The arbitrator was not bound to give a reasoned order at every stage of the proceedings.
The arbitration proceedings would then never come to an end.
It was not in dispute that the terms of reference required the arbitrator to give reasons for the award to be declared.
It would be, therefore, always open for the petitioner to challenge the award to be declared by the arbitrator including on the ground of jurisdiction.
The learned Single Judge of the High Court has so held and we are in agreement with him on this point.
381 The third circumstances was that the petitioner had filed application under section 13(b) of the Act calling upon the arbitrator to state a special case for the opinion of the Court on the question of law and the failure of the arbitrator to raise this question of law was indicative of the bias.
We are unable to accept this argument.
Section 13(b) confers power on the arbitrator to state special case but it does not make it obligatory on the part of the arbitrator to state a special case as soon as the party desires to do so.
In the instant case the petitioner itself agitated issue of jurisdiction before the arbitrator and by its conduct submitted the question of jurisdiction and other questions of law for determination of the arbitrator.
Once having done so, it was not proper for the petitioner to ask the arbitrator to state a special case.
This, in our opinion, is no ground for bias.
The fourth ground was that the first reference, where the claim involved was Rs.85 lakhs, was heard for a considerable time, while the arguments in respect of second and third references, which covered the claim of Rs.1.17 crores and Rs.5.81 crores were concluded by respondent No. 2 within one and one fourth of a day.
The length of the time taken is no indication either of speeding up or of any abuse of the proceedings.
We agree with the learned Judge that there is no rule which requires that the length of argument should depend upon the magnitude of the claim made.
The other point sought to be urged by the petitioner was that the venue of the arbitration was changed from conference room at Santacruz Airport, Bombay, to the conference room at Indian Merchants Chambers at Churchgate, Bombay.
It is the claim of the petitioner that this change of venue was without the consent of the petitioner.
It appears from the affidavit filed before the High Court that the venue was changed because of disturbance at the conference room at Santacruz and this fact was known to the petitioner all along.
Change of venue in no manner would indicate that the arbitrator was prejudiced against the petitioner and no prayer was made to the arbitrator not to change the venue.
This is solely a fallacious ground to make out a case of alleged bias.
The other ground was that the petitioner and respondent No. 2 used to share the costs of the air ticket of the arbitrator from Delhi to Bombay and back.
It was submitted that since 9th June, 1987 the petitioner has not paid for the ticket and also not provided for residential accommodation at Santacruz Airport.
It was further submitted that respondent No. 2 must be providing the air ticket and also hotel accommodation to the arbitrator and the receipt of these facilities was enough, according to the petitioner, to 382 establish that the arbitration was likely to be biased.
It is said that the petitioner made these allegations because the petitioner declined to contribute for the costs of the air ticket and providing for the accommodation.
The petitioner obstructed at all stages of the proceedings of arbitration, what the arbitrator did he did openly to the knowledge of the respondents.
As the learned Judge has rightly pointed out the petitioner after 9th June, 1987 seems to have decided that the arbitrator should not proceed to hear the reference and in order to frustrate the arbitration proceedings started raising all sorts of frivolous and unsustainable contentions.
Having failed and realised that respondent No. 1 was not willing to submit to the dictates of the petitioner, the petitioner declined to contribute for the air ticket and providing for accommodation.
No party should be allowed to throw out the arbitration proceeding by such tactics and if the arbitrator has not surrendered to pressure in our opinion, the arbitrator cannot be faulted on that score nor the proceedings of the arbitrator be allowed to be defeated by such method.
There was another ground sought to be made before us that there was a loss of confidence.
We find no reasonable ground for such loss of confidence.
Every fancy of a party cannot be a ground for removal of the arbitrator.
It was alleged that there were counter claims made by the respondents.
These counter claims have not yet been dealt with by the arbitrator.
Our attention was drawn to page 188 of Volume II of the paper book where a counter claim had been referred to.
It appears that the petitioner has separately treated these counter claims.
These counter claims have not yet been considered by the arbitrator.
That is no ground for any apprehension of bias.
An affidavit was filed before us that on 6th March, 1988 a letter was served indicating the dates for hearing as 7th to 10th March, 1988.
It appears that the matter was adjourned thereafter but by merely making an application for adjournment and refusing to attend the arbitration proceeding, a party cannot forestall arbitration proceeding.
We are in agreement with the learned Judge of the High Court expressing unhappiness as to the manner in which attempts had been made to delay the proceeding.
There is a great deal of legitimate protest at the delay in judicial and quasi judicial proceeding.
As a matter of fact delay in litigation in courts has reached such proportion that people are losing faith in the adjudicatory process.
Having given our anxious consideration to the grounds alleged in this application, 383 we find no ground to conclude that there could be any ground for reasonable apprehension in the mind of the petitioner for revocation of the authority of the arbitrator appointed by the petitioner itself.
While endorsing and fully maintaining the integrity of the principle 'justice should not only be done, but should manifestly be seen to be done ', it is important to remember that the principle should not be led to the erroneous impression that justice should appear to be done that it should in fact be done.
See the observations of Slade, J. in R. vs Cambore Justices Ex parte Pearce, at 855.
We are satisfied from the facts mentioned hereinbefore that there is no reasonable ground of any suspicion in the mind of the reasonable man of bias of the arbitrator.
Instances of cases where bias can be found in Commercial Arbitration by Mustill and Boyd, 1982 Edn.
The conduct of the present arbitrator does not fall within the examples given and the principles enunciated therein.
The petition for leave to appeal, therefore, fails and it is accordingly dismissed.
S.L. Appeal dismissed.

summary/full:
% This petition for special leave was against the judgment and order of the High Court of Bombay, rejecting the application for revocation of the authority of the respondent No. 1, the sole arbitrator under sections 5 and 11 of the ( 'The Act ').
The petitioner invited tenders for the construction of the terminal building of a new international passenger complex (Phase II) at the Bombay Airport.
The respondent No. 2, a partnership firm, submitted a tender which was accepted and a formal agreement followed, with a provision in the agreement for settlement of disputes through a sole arbitrator appointed under clause 25 of the conditions of contract by the competent authority.
Certain disputes arose in which the petitioner sought claims amounting to Rs.85 lakhs.
The respondent No. 2 the contractor approached the petitioner to refer the disputes to arbitration.
The Chief Engineer of the petitioner appointed respondent No. 1 as the arbitrator and made a reference with regard to the claim of Rs.85 lakhs.
The respondent No. 2 asked the Chief Engineer to refer further disputes to the arbitrator and, accordingly, on 16th May, 1986, a second reference was made with regard to 11 further points of dispute with claims amounting to Rs.1.17 crores.
On 23rd December, 1986, the Chief Engineer made reference No. 3 to the Arbitrator with regard to claim amounting to Rs.5.81 crore.
Thereafter, by applications of 8th and 9th June, 1987, the petitioner expressed objections to the references Nos. 2 and 3 made by the Chief Engineer contending that the references were null and void, being irregularly made, and took preliminary objections before the arbitrator to the arbitration proceedings, being lack of jurisdiction of the arbitrator on the ground that he was not validly appointed so far as references Nos. 2 and 3 were concerned.
On 7th 371 August, 1987, the petitioner made an application before the arbitrator under section 13(b) of the Act with the request to state the matter before him for the opinion of the Court as special case.
The arbitrator by his order dt.
3rd October, 1987, rejected the said application and the preliminary objections of the petitioner.
Thereafter, the petitioner alleging that the arbitrator had formed his own opinion regarding the matters in issue, filed an appliction before the High Court for the revocation of the authority of the arbitrator on the ground of apprehension in the petitioner 's mind about bias of the arbitrator.
The High Court by its judgment and order dt.
2nd February, 1988, rejected the application of the petitioner.
The petitioner then moved this Court for relief by special leave.
Dismissing the petition for special leave, the Court, ^ HELD: It was necessary to reiterate first what are the parameters by which an appointed arbitrator can be removed on the appliction of a party.
It is well settled that there must be purity in the administration of justice as well as quasi justice involved in the adjudicatory process before the arbitrator.
Once the arbitrator enters on an arbitration, he must not be guilty of any act which can possibly be construed as indicative of partiality or unfairness.
It is not a question of the effect which a misconduct on his part had in fact upon the result of the proceeding, but of what effect it might possibly have produced.
It is not enough to show that even if there was misconduct on his part, the award was unaffected by it and was in reality just; the arbitrator must not do anything which is not in itself fair and impartial.
In the words of Lord O 'Brien, L.C.J, there must be a real likelihood of bias and not a mere suspicion of bias before proceedings can be quashed on the ground that the person conducting the proceedings is disqualified by interest.
The purity of administration requires that the party to the proceedings should not have apprehension that the authority is biased and is likely to decide against the party, but it is equally true that it is not every suspicion felt by a party which must lead to the conclusion that the authority hearing the proceedings is biased, as held by the High Court.
The apprehension must be judged from a healthy, reasonable and average point of view and not on a mere apprehension of any whimsical person.
It cannot be and should never be in a judicial or quasi judicial proceeding that a party who is a party to the appointment could seek the removal of an appointed authority or an arbitrator on the ground that the appointee being his nominee had not acceded to his prayer about conduct of the proceedings.
It is the reasonableness and apprehension 372 of an average honest man that must be taken note of.
There was no substance found in the alleged grounds of apprehension of bias, examined in this light.
[378D G; 379D H; 380A B] The High Court had examined five circumstances advanced before it.
The first was that the arbitrator did not record the minutes of the meetings after September 29, 1987.
The petitioner insisted that the arbitrator should record the minutes setting out the entire oral arguments advanced on behalf of the petitioner.
This was not a reasonable request and the arbitrator rightly declined to do that.
This was no basis of any reasonable apprehension of bias.
[380C E] The next circumstance urged was that the preliminary objections raised by the petitioner were rejected without a speaking order.
It was not necessary for the arbitrator to record a long reasoned order on the preliminary objections, and indeed the law does not demand writing such a long order.
In any case, it would be open to the petitioner to file a petition under section 33 of the Act if the petitioner felt that the arbitrator had no jurisdiction to entertain the reference.
It would be open to the petitioner to challenge the award to be declared by the arbitrator, including on ground of jurisdiction.
[380E H] The third circumstance was that the petitioner had filed an application under section 13(b) of the Act calling upon the arbitrator to state a special case for the opinion of the Court and the failure of the arbitrator to raise the question of law was indicative of bias.
This argument could not be accepted.
Section 13(b) confers power on the arbitrator to state a special case but it does not make it obligatory on the part of the arbitrator to state a special case as soon as the party desires it.
In this case, the petitioner itself agitated the issue of jurisdiction and other questions of law before the arbitrator.
Once having done so, it was not proper for the petitioner to ask the arbitrator to state a special case.
This was no ground for bias.
[381A C] The fourth ground was that the first reference, involving a claim for Rs.85 lakhs, was heard for a considerable time, while the arguments in respect of the second and third references covering claims of Rs.1.17 crores and Rs.5.81 crores were concluded by the respondent No. 2 within one and one fourth of a day.
The length of the time taken is no indication of either speeding up or any abuse of the proceedings.
The Court agreed with the High Court that there is no rule which requires that the length of the argument should depend upon the magnitude of the claim made.
[381D] 373 The other point urged by the petitioner was that the venue of arbitration was changed and this change was without the consent of the petitioner.
Change of venue would in no manner indicate that the arbitrator was prejudiced against the petitioner.
This was solely a fallacious ground to make out a case of alleged bias.
[381E G] The other ground was that as, since 9th June, 1987, the petitioner had not paid for the air ticket of the arbitrator from Delhi to Bombay and for his residential accommodation, the respondent No. 2 must be providing for the air ticket and the hotel accommodation for the arbitrator, and the arbitration was likely to be biased.
As rightly pointed out by the High Court, the petitioner, after the 9th June, 1987, seemed to have decided that the arbitrator should not proceed with the reference and in order to frustrate the arbitration proceedings, started raising all sorts of frivolous and unsustainable contentions.
Having realised that the arbitrator was not willing to submit to its dictates, the petitioner declined to contribute for the air ticket, etc.
No party should be allowed to throw out the arbitration proceedings by such tactics, and if the arbitrator did not surrender to the pressure, he could not be faulted nor could the proceedings of the arbitrator be allowed to be defeated by such a method.
[381G H; 382B D] Another ground made was that there was a loss of confidence.
There was no reasonable ground for such a loss of confidence.
Every fancy of a party cannot be a ground for removal of the arbitrator.
[382D] The Court was in agreement with the learned Judge of the High Court expressing unhappiness over the manner in which attempts had been made to delay the proceedings.
[382G] The Court found no ground to conclude that there could be any ground for reasonable apprehension in the mind of the petitioner for revocation of the authority of the arbitrator appointed by the petitioner itself.
While endorsing and fully maintaining the integrity of the principle 'justice should not only be done, but should manifestly be seen to be done ', it is important to remember that the principle should not be led to the erroneous impression that justice should appear to be done than it should in fact be done.
There was no reasonable ground of any suspicion of bias of the arbitrator.
The conduct of the arbitrator did not fall within the examples given and principles enunciated in the instances of cases where bias could be found in the Commercial Arbitration by Mustill and Boyd, 1982, Edn.
[383A C] 374 Russell on Arbitration, 18th Edition, page 378, Re Brion and Brien, , 89; The King (De Vesci) vs The Justices of Queen 's Country, ; The Queen vs Rand & Ors., [1986] 1 Q.B. 230; Ramnath vs Collector, Darbhanga, ILR 34 Pat. 254; The Queen vs Meyer and Ors., ; Ekersley and Ors.
vs The Messey Docks and Harbour Board, ; Gallapalli Nageswara Rao vs The State of Andhra Pradesh, ; ; Mineral Development Ltd. vs State of Bihar, ; Ranjit Thakur vs Union of India & Ors., ; and R.V. Camborne Justices Ex parte Pearce, , 855 referred to.