Holding

An arbitrator is not a court within the meaning of Section 195(3) Cr.P.C.; consequently Section 340 Cr.P.C. does not apply to arbitral proceedings.

Summary

The appeal concerned whether an arbitrator appointed under the Arbitration and Conciliation Act, 1996 could be deemed a "Court" for the purposes of Section 195(3) of the Code of Criminal Procedure, 1974, and consequently whether Section 340 Cr.P.C. could be invoked against an arbitrator. The appellant argued that the arbitrator exercised judicial functions and therefore fell within the definition of a court, while the respondent contended that the statute expressly limits the term to courts declared as such by the enactment. The Court examined the language of Section 195(3), emphasizing the phrase "if declared by that Act to be a Court" and held that the Arbitration Act does not confer such a declaration. Relying on earlier decisions interpreting the same provision, the Court concluded that an arbitrator is not a court within the meaning of Section 195(3) and thus Section 340 Cr.P.C. does not apply to arbitral proceedings. The appeal was dismissed.

Issues considered

Whether an arbitrator appointed under the Arbitration and Conciliation Act, 1996 is a "Court" within the meaning of Section 195(3) Cr.P.C.
Whether Section 340 Cr.P.C. is applicable to proceedings before an arbitrator.

Legislation cited

Arbitration and Conciliation Act, 1996s. 27
Code of Criminal Procedure, 1974s. 195(1)(b), s. 195(3), s. 340

Subjects

ArbitrationArbitratorCourt definitionSection 195 Cr.P.C.Section 340 Cr.P.C.Arbitration and Conciliation Act 1996Criminal ProcedureParty autonomyJudicial jurisdiction

Judgment

A MANOHARLAL

VINESH ANAND AND ORS.

APRIL 9, 2001

B [A.P. MISRA AND UMESH C. BANERJEE, JJ.]

Code of Criminal Procedure, 1974-Sections 195(l)(b), 195(3)
and 340-Arbitrator-Whether a Court-Applicability of provisions of
Section 340 Cr.P.C.-Held, Arbitrator cannot be tenned to be a Court-
C Pmvisions of Section 340 Cr.P.C. not applicable-Arbirration and Concilia-
tion Act, 1996.

Whether an Arhitrato_r, appointed in an arbitration proceeding un-
der the provisions of the Arbitration and Conciliation Act, 1996, can be
termed to be a Court under Section 195(3) Cr.P.C. and the applicability of ~
D Section 340 Cr.P.C. in a proceeding before the Arbitrator were the main
issues involved in the case.

Appellant contended that Court means and implies an authority to
decide controversy between the parties authoritatively and the decision
binding amongst the parties; that an arbitrator can be termed to be a
E Court under Section 195(3) Cr.P.C.; that new Arbitration enactment i.e.,
the Arbitration and Conciliation Act, 1996 totally excludes the jurisdiction
of Courts in the matter of interference with the arbitral awards; that the
arbitral award under the Act has the status of a decree of a Court; and
that the new enactment should be considered to assess the intent of the
F Legislature.

Respondent contended that an arbitrator appointed under the Act
cannot be termed to be a Court; that though the general trend of legisla-
tion is party autonomy, it does not mean and imply total exclusion of
jurisdiction of Courts or conferment of such a power of Court to Arbitra-
G tor.

Dismissing the appeal, the Court

HELD : 1.1. To pursue an offender in the event of commission of an
offence is to sub-serve a social need. Society cannot afford to have a
H criminal escape his liability, since that would bring about a state of social
1036
MANOHAR LAL v. VINESH ANAND 1037
pollution, which is neither desired nor warranted and this is irrespective of A
'-.(C the concept of locus - the doctrine of locus-standi is totally foreign to
criminal jurisprudence. (1041-D-E]

AR. Antulay v. Ram~ Srinivas Nayak & Anr., (1984] 2 SCC 500,
relied on.
B
I 1.2. Section 195(3) Cr.P.C. cannot be taken to an explanatory provi·
..I.. sion. The body of Sdtion 195(1)(h) refers to the expression 'Court' and the
same is explained 'in' sub-section (3). The restriction imposed is easily
ascertainable by reason of the inclusion of the words 'if declared by that
Act to be a Court for the purposes of this Section'. One of the golden C
cannons of interpretation is that the Legislature always avoid surplusage
and attributes a definite meaning to each of the words mentioned in the
Statute. By inclusion of sub-section (3) in Section 195 Cr.P.C., the intent of
the Legislature cannot thus be far to seek • it is connotative of a definite
meaning. [1041-G-H; 1045-A·B]
D
1.3. The clear language of Section 195(3) Cr.P.C. depict the restric·
tive intent of the Legislature and if the intent was otherwise to include
Arbitral Tribunal within the fold of Section 195(3) of the Code, i.e.; ifthe
Legislature wanted to confe; such a status, there was no difficulty as such
in incorporating thereunde~ a provision as is contained in different E
Central statutes, since these statutes have definitely included and declared
the Tribunal being ascribed tp be a Court within the meaning of Section
195 Cr.P.C. The inclusion of explanatory provision by way of sub-section
(3) in Section 195 makes the situation abundantly clear. Arbitrator cannot
be termed to be a Court within the meaning of Section 195 Cr.P.C., as such
the question of applicability of Section 340 Cr.P.C. in a proceeding before F
the Arbitrator does not arise. [1047-F-H; 1051-B]

Baliram Waman Hirav v. Justice B. Lentin & Ors., (1998] 4 SCC 419,
relied on.
G
Sailaja Kanta Mitra & Ors. v. State of West Benga4 AIR (1971)
Calcutta 137, overruled.

-< Brajnandan Sinha v. Jyoti Narain, AIR (1956) SC 66; Virinder Kumar
v. Stale of Punjab, AIR (1956) SC 153; H. C. Ganti v. F.L Harcourt, AIR
(1931) Calcutta 436 and Puhupram v. State of Madhya Pradesh, (1968) H
1038 SUPREME COURT REPORTS [2001] 2 S.C.R.
A MPLJ 629, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 466
of 2001.

From the Judgment and Order dated 18.10.2000 of the Allahabad High
B Court in Cr!. R. No. 2210 of 2000.

Yogeshwar Prasad, Virendra Singh, Ashish Kr. Srivastava, Dr. l.P.
Singh, Anuvrat Sharma, Mrs. Rachna Gupta, Alok Singh, Dr. Vipin Gupta,
V.B. Joshi, Sandeep Singh Tiwari, Ms. Leela Pujarin, Prakash Kumar Singh
and A.S. Pundir for the appearing parties
c
The Judgment of the Court was delivered by

BANERJEE, J. Leave granted.

Since the decision in Thawardas's case Thawardas Pherumal & Anr.
D v. Union of India, AIR (1955) SC 468, the issue of identifying the Arbitrator,
as a court, did come up for consideration before this Court on more occasions
than one. Thwaradas (supra) negatived it with a positive fmding that the
Arbitrator is not a 'Court' within the meaning of the Code of Civil Procedure.
Since then there has however, been sea change of events: the repeal of the
E earlier statute of Arbitration (Arbitration Act, 1940) and introduction of the -!
new Arbitration Act, 1996 (Arbitration and Conciliation Act, 1996) in the
statute book has brought about a major change in the sphere of Arbitration.
Based on uncitral model of law on International Commercial Arbitration and
Conciliation Rules, the Act is stated to be best suited and to sub-serve the
Indian conditions having regard to the economic conditions and the effect of
F
globalisation of trade. Incidentally, the Statements of Objects and Reasons of
the Arbitration and Conciliation Act records it to be an act to consolidate and
amend the law relating to domestic arbitration, international commercial
arbitration and enforcement of foreign arbitral awards as also to defme the
law relating to conciliation and for matters connected therewith or incidental
G thereto. While the earlier enactment of 1940 was to be the most expeditious
methodology of adjudication and disposal of disputes through arbitration but
practicability of the situation lately produced a rather dismal picture and
proved contrary to the normal belief and expectation tha(arbitration would
be an otherwise expeditious method to do so. The uncitral model on the basis
H of which this Act of 1996 was engrafted in the statute book, in no uncertain
MANOHAR LAL v. VINESH ANAND [BANERJEE, J.] 1039
tenns recognises "party autonomy" philosophy and minimum interference A
from the Courts. In England also, similar such sitnation was the felt-need and
resultantly in 1996, a similar enactment came into force bnt neither of the
legislations however can be attributed to be an exact copy of the uncitral
model though undoubtedly based thereon.

Having given a brief introduction to the recent legislation and adverting B
to the matter in issue presently, it would be worth noting tl1at the issue
involved though short but interesting enough to involve a useful debate on
the same - Debate, of course, we will avoid, but discussions we will indulge
so that the law remains settled once for all on this issue as involved in the
matter. The issue being applicability of the provisions of Section 340 Cr. P. c
Code in a proceeding before the arbitrator - undoubtedly an ingenious effort
but let us see as to how far the same succeeds.

Before however, embarking ou a discussion on the subject issue, a look
at the provisions would be best suited at this junctnre: The relevant provisions
being Sections 340 and 195 sub-section (1) (b) and sub-Section (3) of the D
Code of Criminal Procedure. The provisions read thus:

"340: Procedure in cases mentioned in Section 195 - (1) When,
upon an application made to it in this behalf or otherwise, any Court
is of opinion that it is expedient in the interests of justice that an E
inquiry should be made into any offence referred to in clause (b) of
sub-section(!) of Section 195, which appears to have been commiued
in or in relation to a proceeding in that Court or, as the case may be,
in respect of a document produced or given in evidence in a
proceeding in that Court, such Court may, after such prelinlinary
inquiry, if any, as it thinks necessary :
F

(a) record a finding to that effect;

(b) make a complaint thereof in writing;
G
(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before
such Magistrate, or if the alleged offence is non-bailable and the
Court thinks it necessary so to do, send the accused in custody
to such Magistrate; and H
1040 SUPREME COURT REPORTS [2001] 2 S.C.R.
A (e) bind over any person to appear and give evidence before such
Magistrate.

(Corresponding Law: S. 476 (I) of Act V of 1898)

(2) The power conferred on a Court by sub-section
B (1) in respect of an offence may, in any case where that Court
has neither made a complaint under sub-section (1) in respect
of that offence nor rejected an application for the making of
such complaint, be exercised by the Court to which such former
Court is subordinate within the meaning of sub-section (4) of
Section 195.
c
(Corresponding Law : S. 476A of Act V of 1898)

(3) A complaint made under this section shall be signed,-

(a) where the Court making the complaint is a High Cour~ by such
D officer of the Court as the Court may appoint;

(b) in any other case, by the presiding Officer of the Court,

(Corresponding Law: S.476 (!)Proviso of Act V of 1898)

(4) In this section, "Court'' has the same meaning as in Section
E 195."

Section 195: "Prosecution for contempt of lawful authority of
public servants, for offences against public justice and for of-
fences relating to documents given in evidence - (!) No court
shall take cognisance-
F
(b) (i) of any offence punishable under any of the following sec-
tions of the Indian Penal Code (45 of 1860), namely, Sections
193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive)
and 228, when such offence is alleged to have been committed
G in, or in relation to, any proceeding in any Cour~ or

(ii) of any offence described in Section 463, or punishable under
Section 471, Section 475 or Section476 of the said Code, when
such offence is alleged to have been committed in respect of a
document produced or given in evidence in a proceeding in any
H co~or
MANOHAR LAL v. VINESH ANAND [BANERJEE, J.] 1041
(iii) of any criminal conspiracy to commit, or attempt to commit, or A
the abetment of, any offence specified in sub-clause (i) or sub-
clause (ii),

except on the complaint in writing of that Court, or of some
other Court to which that Court is subordinate.
B
(2) .................. "

Section 195 (3) :

"In clause (b) of sub-section (1), the term "Court" means a
Civil, Revenue or Criminal Court, and includes a tribunal
c
constituted by or under a Central, Provincial or State Ac~ if
declared by that Act to be a Court for the purposes of this
section."

Before adverting to the matter in issue and the rival contentions D
advanced one redeeming feature ought to be noticed here pertain to Criminal
jurisprudence. To pursue an offender in the event of commission of an
offence, is to sub-serve a social need - Society carmot afford to have a
criminal escape his liability, since that would bring about a state of social
pollution, which is neither desired nor warranted and this is irrespective of
E
the concept of locus - the doctrine of locus-standi is totally foreign to
criminal jurisprudence. This observation of ours however obtains support
from the decision of this Court in A.R. Antulay v. Ramdas Sriniwas Nayak
& Anr., [1984] 2 sec 500.

Another redeeming feature is the inclusion of an explanatory provision F
by way of sub-section (3): The body of sub-section (l)(b) refers to the
expression 'Court' and the same stands explained in sub-section (3) : Without
a reading of sub-section (3) - 'Court' may be interpreted in a narrow
context, but with the inclusion of sub-section (3) -widest possible connotation
is to be made available provided however, the statute declares it to be so!! G
The language "if declared by that Act" seems to be very significant:

A plain look thus at the provisions above depict that inclusion of sub-
section 3 under Section 195 carmot but be taken to be an explanatory
provision. The body of Section 195 (l)(b) refers to the expression 'Court'
and the same stands thus explained in sub-section 3. The restriction imposed H
1042 SUPREME COURT REPORTS [2001] 2 S.C.R.
A is easily ascertainable by reason of the inclusion of the words 'if declared
•
by that Act to be a coun for the purposes of this Section' (Emphasis supplied)
- the user of the words seems to be very significant. One of the golden canons
of interpretation is that the Legislature always avoid surplusage and attributes
a definite meaning to each of the words mentioned in the statute. By the very
B inclusion of sub-section 3 and the language as noticed hereinbefore in this
paragraph, the intent of !he Legislature cannot !hus be far to seek - it is
connotative of a definite meaning.

Mr. Yogeshwar Prasad, the learned Senior Advocate took some pains
to take us tluough different provisions of the Act and contended that the
C whole tenor of legislation will have to be considered in a much broader
perspective so as to assess the intent of the legislature and citations on the
earlier repealed act ought not to be looked into or be considered since the
answer for any inquiry ought to be kept within the parameters of the new
law and when interpreting or analysing !he philosophy of party autonomy
D noticed above should and ought to be the basis and de hors the jurisprndential
effect of the legal decisions under the old Act.

The main thrnst of the submission in support of the Appeal however,
rests on a simple proposition that Court means and implies authority to decide
controversy between the parties authoritatively and the decision being binding
E amongst the parties. Strong reliance was placed on the decision of this Court
in the case of Brajnandan Sinha v. Jyoti Narain, AIR (1956) SC 66. wherein
this Comt observed that the pronouncement of a definitive judgment is thus
considered the essential 'sine qua non' of a court and unless and until a
binding and authoritative judgment can be produced by a person or body of
F persons, it cannot be predicated that he or they constitute a Court. It is on
the basis of the observations as above tliat the learned Senior Advocate in
support of the Appeal contended that mere look at the new enactment would
reveal the total exclusion of courts in the matter of interference with the
arbitral awards - there cannot be any manner of dispute that awards are not
to be interfered and the same, as per the provisions of the stamte has the status
G of a decree of a court and thus executable forthwith - but does that mean and
imply total ouster of jurisdiction of courts or one need not approach the court
at all in a arbitral proceeding, the answer may not be in the affumative by
reason of different statutory provisions with which we presently deal though
not in detail since the issue is little different from the usual discussion on a
H question as to whether Arbitrator is a Court or not? But before so doing
{

MANOHAR LAL v. VINESH ANAND [BANERJEE, J.] 1043
another decision of this Court on which strong reliance was placed ought to A
be noticed. This Court in Virindar Kumar v. Stale of Punjab, AIR (1956) SC
153, in paragraph 5 of the Report observed:

"5. The first question that arises for our decision is whether the order
of the District Magistrate passed on 17.9.1952 as returoing officer is
open to appeal, The statutory provisions bearing on this point aie
B
Sections 195, 476 and 476-B of the Code of Criminal Procedure.
Section 195(1) (a) provides that no court shall take cognisance of any
offence punish~ble under Sections 172 to 188 of the Indian Penal
Code except on the complaint in writing of the public officer
concerned or of his superior. c
Section 195(1)(b) enacts that no Court shall take cognisance of the
offences mentioned therein, where such offence is committed in, or
in relation to, any proceedings in any 'court' except on the complaint
in writing of such Court or a Court to which it is subordinate. The
D
offence under Section 193 is one of those mentioned in Section 195
(l)(b). Section 476 prescribes the procedure to be followed where a
Court is moved to lay a complaint and that applies only to offences
mentioned in Sections 195(l)(b) and 195(l)(c) and not to those
mentioned in Section 195 (l)(a).
E
Section 476-B provides for an appeal from an order passed under
Section 476 to the appropriate Court. The result then is that if the
complaint relates to offences mentioned in Sections 195 (l)(b)and
195 (l)(c), an appeal would be competent, but not if it relates to
offences mentioned in Section 195(1)(a). Now, the order of the· F
Magistrate dated 17.9.1952 directs that the appellant should be
prosecuted for offences under Sections 181, 182 and 193. There is no
dispute that the order in so far as it relates to offences under Sections
181 and 182 is not appealable, as they fall directly under Section
195(l)(a).
G
The controversy is only as regards the charge under Section 193.
Section 193 makes it an offence to give false evidence whether it be
in a judicial proceeding or not, and it likewise makes it an offence
to fabricate false evidence for use in a judicial proceeding or
elsewhere. If the offence is not committed in a judicial proceeding, H
1044 SUPREME COURT REPORTS (2001) 2 S.C.R.
A then it will fall outside section 195 (l)(b), which applies only when
it is committed in or in "relation to a proceeding in Court, and there
is in consequence no bar.to a complaint being made in respect thereof
unaffected by the restrictions contained in Section 195(l)(b).

But if the offence under Section 193 is committed in or in relation
B to a proceeding in Court, then it will fall under Section 195(l)(b), and
the order directing prosecution under Section 476 will be appealable
under Section 476-B. The point for decision therefore is whether the
retnrning officer in deciding on the validity of a nomination paper
under Section 36 of the Act can be held to act as a Court. The question
c thus raised does not appear to be covered by authority, and bas to be
decided on the true character of the functions of the returning officer
and the nature and the extent of his powers."

In our view, however, the ')bservations made in Virindar Kumar's case
(supra) does not, in fact, assist us in any way in the present context. Two
D decisions of Calcutta High Court have also been relied upon. The first being
the case of Sailaja Kanta Mitra and others v. State of West Bengal. AIR
(1971) Calcutta 137 and the second being the case of H.C. Ganti v. F.L
Harcourt, AIR (1931) Calcutta 436.

E Turning attention on to the second case of H.C. Ganti (supra), Buckland,
J. while deciding the matter .observed that where a person is alleged to
have given false evidence before Arbitrator, an application under Section
476, in the Court in which the suit was initiated is necessary. But the question
whether a preliminary inquiry is necessary or not will depend upon the
facts and circumstances of each case. Where the application is supported
F not by oral evidence, but only by documents, no further preliminary
inquiry is necessary beyond that which the Court makes on the materials
before it.

In such cases it is not necessary that a notice should be given to the
G person against whom the order is sought on an application under Section 476.

The decision in our view, however, does not render much of an
assistance in regard to the issue. The other decision of the Calcutta High
Court in Sailaja Kanta (supra), a Division Bench of the High Court in
paragraph 17 of the judgment observed as below:
H
MANOHAR LAL v. VINESH ANAND [BANERJEE, J.] 1045
" ......Thus the Arbitrator decides the "!is" before it, having the powers A
like a Court, following the procedure as a Court has to follow in the
exercise of its ordinary original civil jurisdiction under the Code of
Civil Procedure, 1908. The award of the Arbitrator, so far as the
parties to the award are concerned, if not appealed against, shall be
final. Jn the appeal by either party to the award against the Arbitra- B
tor's award direct to the High Court a time limit has been prescribed
for preferring such appeal which may also be admitted beyond the
prescribed period if the High Court is satisfied about the grounds of
the delay. An appeal to the High Court against the award shall not
lie only where the amount of compensation awarded does not exceed
Rs. 5,000 in lump sum or 250 per mensem. The dispute between the c
claimant claiming the compensation and the State resisting such claim
is certainly a civil dispute and the "!is" between the parties is of a civil
nature. The arbitration proceedings before the Arbitrator, originating
on a reference at the instance of the claimant by the Collector before
the Arbitrator under the D.l Act and the Rules mentioned above in D
relation to such a civil dispute are proceedings which refer to an
original matter in the nature of a suit. The Arbitrator in such
arbitration proceedings which refer to an original matter in the natnre
of a suit shall have the like powers and follow the like procedure as
the Court has and follows in the exercise of its ordinary original civil E
jurisdiction under the Code of Civil Procedure, 1908. So, the Arbi-
trator under the Defence of India Act and the Rules discussed above
in the proceedings of an arbitration before it, is a ·Court of civil
jurisdiction and it follows the procedure that a Court of civil
jurisdiction follows in the exercise of its ordinary original civil
jurisdiction under the Code of Civil Procedure, 1908. The Arbitrator,
F
under the Defence of India Act, 1939 and the Rules regarding
arbitration for settlement of compensation payable under Section 19
of the Defence oflndia Act, 1939 so far as Bengal, now West Bengal,
is concerned, is, therefore, a Court of civil jurisdiction, and follows
the procedure in arbitration proceedings before it, as provided for by G
the Code of Civil Procedure, 1908 in regard to suits since the
Arbitrator under Rule 6 quoted above shall have the powers like the
Court and shall follow the like procedure as the Court follows in the
exercise of its ordinary original civil jurisdiction under the Code of
Civil Procedure, 1908. So, the combined effect of Section 141 of the H
1046 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Code of Civil Procedure read with section 19, sub-section (1), clauses
(b),(e),(f),(g), sub-sections (2) and (3) of the Defence of India Act,
1939 and the Rules regarding Arbitration for settlement of compen-
sation payable under Section 19 of the Defence of India Act, 1939
framed by the Governor of Bengal as already discussed, is to make
an Arbitrator under the D.l. Act, 1939 so far as Bengal now West
B
Bengal is concerned,. a Comt of civil jurisdiction that shall have the
like powers and shall follow the like procedure as the Court has and
follows in the exercise of its ordinary original civil jmisdiction under
the Code of Civil Procedure, 1908."

C The decision apparently lend some credence to the submission of tl1e
appellant but by reason of the factual situation is clearly distinguishable of
facts but as regards the provisions of law, we will deal with little later in this
judgment.

Mr. Alok Singh however appearing for the Respondent drew our
D attention to Section 27 of the Act of 1996 which provides as follows:

"(27) Court assistance in taking evidence -

(1) The arbitral ttibunal, or a party witl1 the approval of the arbitral
ttibunal may apply to the Conrt for assistance in taking evidence.
E -1'
(2) The application shall specify-

(a) The names and addresses of the parties and the arbitrators;

(b) the general nature of the claim and the relief sought;
F (c) the evidence to be obtained, in particular, -

(i) the name and address of any person to be heard as wituess or
expert wituess and a statement of the subject matter of the
testimony required;
G (ii) the description of any document to be produced or property to
be inspected.

(3) The Court may, within its competence and according to its rules
on taking evidence, execute the request by ordering that the
H evidence be provided directly to the arbitral ttibunal.
MANOHAR LAL v. VINESH ANAND [BANERJEE, J.] 1047
(4) The court may, while making an order under snb-section (3), A
issue the same processes to witnesses as it may issue in suits
l!:ied before it.

(5) Persons failing to attend in accordance with such process, or
making any other default, or refusing to give their evidence, or
guilty of any contempt to the arbitral l!:ibunal during the conduct B
of arbitral proceedings, shall be subject to the like disadvan-
tages, penalties and punishments by order of the court on the
representation of the arbitral l!:ibunal as they would incur for the
like offences in suits l!:ied before the Court.
c
(6) In this section the expression "Processes" includes summonses
and commissions for the examination of witnesses and sum-
monses to produce docwnents."

Relying on the aforesaid provision Mr. Singh very strongly contended
that it is not otherwise right to contend that the Arbitral Tribunal is supreme D
in its own field. The Section itself provides for assistance in taking evidence.
The sub-sections 3, 4 and 5 have been strongly relied upon so as to conclude
that even though the general trend of legislation is party autonomy but
that does not mean and imply total exclusion of jurisdiction of the court
or the conferment of such a power of court to the Arbitrator. In any event E
Mr. Singh contended that the issue in the instant Appeal is rather resl!:ictive
and the general principles of Arbitrator being identified as a Court need not
be gone into by reason of this issue under consideration. The clear language
of Section 195 (3) of the Code of Cr. Procedure unmistakably depict the
resl!:ictive intent of the Legislature and if the intent was otherwise to include F
Arbitral Tribunal within the fold of Section 195 (3) of the Code, that is to
say, if the Legislature wanted to confer such a status there was no difficulty
as such in incorporating thereunder a provision as is contained in a Debt
Recovery Act (vide Section 22): Income Tax Act (vide Section 136) : Motor
Vehicles Act (vide Section 169 (2): Administrative Tribunal Act (vide Section
22 (3): Consumer Protection Act: M.R.T.P. Act: and Companies Act etc. etc., G
since these statutes have definitely included and declared the Tribunal being
ascribed to be a court within the meaning of Section 195 of the Criminal
Procedure Code. The inclusion of explanatory provision by way of
sub-section (3) makes the situation abundantly clear and we need not dilate
thereon. H
1048 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Mr. Singh while relying strongly on the decision of this Court in Dr.
Baliram Waman Hiray v. Justice B. Lentin and Others, [1988] 4 SCC 419,
contended that the decision in Baliram's case has been holding the
field without any contra note being sounded subsequently. But before
embarking to assess the situation, let us have a look at the decision for its
B proper appreciatfon. This Court in paragraph 24-25 of the Report, observed
as below:

"24. The crucial question that falls to be determined in this appeal is
whether sub-section (3) of Section 195 has brought about a change
in the law and therefore the majority decision in Lalji Haridas case
C (1964) 6 SCR 700 no longer holds the field as submitted by Dr.
Chitale, appearing on behalf of the appellant, or was merely declara-
tory of the law as declared by the court in Lalji Haridas case, as
argued by the learned Advocate-General, and therefore the decision
in Lalji Haridas case is still good law. It cannot be doubted that sub-
D sectious (3) of Section 195 of the Code has been enacted by
Parliament to implement the recommendations of the 4lst report of
the Law Commission which brought about the unsatisfactory state of
law due to conflict of opinion between different High Courts as to the
meaning of the word 'Court' in Section 195 (l)(b) read in the context
of Section 195 (2) of the earlier Code. The interpretative exercise
E undertaken by the courts over the years as to the precise meaning of
the term 'Court' as defined in Section 195(1)(b) of the old Code prior
to the introduction of sub- section (3) of section 195 of the present
Code, reveals an endless oscillation between two views - each verging
on a .fringe of obscurity and vagueness. As echoed by Lord Macmillan
F in his Law and Other Things at p. 48:

In almost every case except the very plainest, it would be
possible to decide the issue either way with reasonable legal justifi-
cation and that in such cases, ethical considerations operate and ought
to operate.
G
25. In that uncertain state of law, the Law Commission observed in
paragraph 15.99 of its Report that it felt that in any concrete case this
question is bound to create problem of interpretation and accordingly
suggested a change in law for the purposes of Section 195 of the
H Code. It felt that the term 'Court' for the purposes of clauses (b) and
"'(

MANOHAR LAL v. VINESH ANAND [BANERJEE, J.] 1049
(c) should mean a Civil, Revenue or a Criminal Court, properly so A
.,.. called, but where a tribunal created by an Act has all or practically
all the attributes of a court, it might be regarded as a court only if
declared by the Act to be a court for the purposes of Section 195.
Jndibutably, the introduction of the inclusive clause in the definition
of 'Court' in sub-section (3) of Section 195 has brought about a
B
change in the law. No rule is more firmly established than the
principles enunciated in Heydon case [(1584) 3 Co Rep 7a: 76 ER
637] which have been continually cited with approval not only by the
English courts but also by the Privy Council as well as this Court. The
principles laid down in Heydon case have been enunciated in Craies
on Statute Law, 6th edn. at p.96 as follows: c
That for the sure and true interpretation of all statutes in general (be
they penal or beneficial, restrictive or enlarging of the common law),
J four things are to be discerned and considered: (I) What was the
common law before the making of the Act (2) What was the mischief
D
and defect for which the common law did not provide (3) what
remedy the Parliament hath resolved and appointed to cure the disease
of the commonwealth (4). The true reason of the remedy. And then
the office of all the judges is always to make such construction
as shall suppress the mischief and advance the remedy, and to
suppress subtle inventions and evasions for the continuance of the E
mischief and pro privato commodo, and to add force and life to the
cure and remedy according to the true intent of the makers of the Act
pro bona publico.

These rules are still in full force and effect, with the addition tliat F
regard must now be had not only to the existing law but also to prior
legislation and to the judicial interpretation thereof. The court applied
the rule in Heydon case in Bengal Immunity Company Limited v. State
of Bihar, AIR (1955) SC 661, in the construction of Article 286 of
the Constitution. After referring to the state of law prevailing in the
then Provinces prior to the Constitution as also to the chaos and
G
confusion that was brought about in interstate trade and commerce by
indiscriminate exercising of taxing powers by the different provincial
~
legislatures founded on the theory of territorial nexus, SR Das, Actg.
C.J. speaking for himself and Vivian Bose and Jafer Imam, JJ.
proceeded to say: (SCR p.635) H
1050 SUPREME COURT REPORTS [2001] 2 S.C.R.
A It was to cure this mischief of multiple taxation and to preserve the
free tlow of interstate trade or commerce in the Union of India
regarded as one economic unit without auy provincial banier that the
Constitution-makers adopted Article 286 of the Constitution ....

An illustration of the application of the rule is also furnished in the
B
construction of Section 2(d) of the Prize Competitions Act, 1955. In
RMD Chamarbaugwalla v. Union of India, [1957] SCR 930,
Venkatarama Ayyar, J. speaking for the court after referring to the
previous state of the law, to the mischief that continued under that law
and to the resolntions passed by different state legislatures under
c Article 252 (1) of the Constitution authorising Parliament to pass the
Act, stated: (SCR p. 939)

Having regard to the history of the legislation, the declared object
thereof and. the wording of the statute, we are of opinion that the
competitions which are sought to be controlled and regulated by the
D
Act are only those competitions in which success does not depend to
any substantial degree on skill."

Baliram's decision (supra) has taken into consideration the entire
judicial precedent available till the date of the judgment and came to a
E conclusion upon reliance of the Madhya Pradesh High Court judgment in
Puhupram v. State of Madhya Pradesh, (1968) MPLJ 629 that the same lays
down the correct law. This Court observed:

"36 .......... The least that is required of a court is the capacity to deliver
Ip a 'definitive judgment', and merely because the procedure adopted by
it is of a legal character and it has power to administer an oath will
not impait to it the status of a court. That being so, it must be held
a
that Commission of Inquiry appointed by the appropriate govern-
ment under Section 3(1) of the Commissions of Inquiry Act is not a
court for the purposes of Section 195 of the Code."
G
Needless to record here that on a proper appreciation of judgment in
Baliram (supra), there cannot be two opinions as the scope and effect of
Section 195 (3) of Code and we thus record our concurrence with the view
expressed by this Court in Baliram: The law thus laid down by the Bench
H decision of the Calcutta High Court in Sailaja Kanta (supra) cannot be said
MANOHAR LAL v. VINESH ANAND [BANERJEE, J.] 1051
to be good law and thus stands over-ruled even on the basis of the state of A
law under the 1940 Act (being a repealed statute presently).

On tl1e wake qf the aforesaid, we are unable to record our concurrence
with the submissions made in support of the appeal that the Arbitrator can
be termed to be a Court within the meaning of Section 195 of the Cr.
Procedure Code, as such question of applicability of Section 340 Cr. P. Code
B
in a proceeding before the Arbitrator does not and cannot arise. The issue
thus is answered in the negative. The Appeal therefore, fails and is dismissed.
No order as to costs.

B.S. Appeal dismissed.