In all these cases at hand the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs to reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making appointment the twin requirements of Sub-section 8 of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments keeping in view the parameters indicated above. In the aforesaid decision of the case of Northern Railway Administration held that the High Court in the said case did not appear to have focused on the requirement to have due regard to the qualification required by the agreement or other conditions necessary to secure the appointment of an independent and impartial arbitrator. In the aforesaid decision, this Court also concluded that since the requirement of sub-section 8 of Section 11 was not at all dealt with by the High Court in its order, the appointment of an arbitrator without dealing with Sub-section 8 of Section 11 of the Act became vulnerable and accordingly, such appointment must be set aside. Similar is the position in this case. In this case also, before appointing an arbitrator u/s 11(6) of the Act, the High Court had failed to take into consideration the effect of Section 11(8) of the Act as was done in Northern Railway Administration. In view of the discussion made here-in-above and particularly, in view of the principles laid down by this Court in Northern Railway Administration, we set aside the impugned order and remand the case back to the High Court for fresh decision of the application u/s 11(6) of the Act and while considering the application afresh, the High Court is directed to take into consideration the aforesaid decision of this Court. It is clear from the perusal of the judgment of the High Court and the records before us that the High Court had not terminated the mandate on the ground that the arbitrator could not pass the award within time. The appellant along with six others was prosecuted for commission of offences punishable u/s 148, 1.P.C. The appellant and other accused attacked ‘D’; two of the accused gave lathi blows on his back and as he fell down, the appellant gave a knife blow on left side of his chest; that accused ‘R’ also gave knife blows to him. PW2 further stated that when he and his uncle tried to save ‘D’, accused ‘R’ gave a knife blow on his left hand thumb and two other accused gave him 5 lathi blows. His uncle was also stated to have received a lathi blow on his head. As to the cause of the incident, PW2 stated that as his other brother, PW6, who had been elected as Village Sarpanch, did not pay heed to unreasonable demands of accused persons, an alteration took place between both the sides the previous evening, but the matter was then patched up. The post-mortem examination of the body of ‘D’ was conducted and it indicates that one stab wound on the left side of the chest as the cause of death, and the 3 other injuries as post-mortem in nature. The trial Court convicted and sentenced the appellant u/s 302 and 324 I.P.C. Three other accused were convicted and sentenced u/s 323(3) I.P.C. The remaining three were acquitted of all the charges. By a separate judgment, the appellant was also convicted u/s 25 of the Arms Act and was sentenced to the period already undergone. The High Court upheld the judgments of the trial court. Aggrieved, the appellant filed Criminal Appeal challenging his conviction and sentence u/s 302 and 324 I.P.C. and Criminal Appeal No. 132 of 2007 challenging his conviction u/s 25 Arms Act. The trial court doubted the presence of PW4 and PW-6 at the place of occurrence and did not accept their testimonies as eye witnesses. According to the prosecution, the occurrence in which the deceased was killed took place shortly in the morning of June 24 1995, when PW2 was medically examined with his companion, that is to say, within an hour. (800 words)
