Service Law: The plea of guilty did not bear the signature of accused

The punishment of dismissal imposed upon the original petitioner was set aside and a direction was issued that the original petitioner would be entitled to full consequential benefits except salary to the extent of 50%. (Para 1)

The original petitioner/accused (the respondent herein) was a Constable (General Duty) in the Border Security Force (in short “BSF”). The case against him was that while he was posted as a security aide to a lady doctor, on 17.06.2005, at about 7.45 pm, he clicked pictures of that lady doctor while she was taking her bath. (Para 2)

The Commandant remanded the original petitioner for trial by a Summary Security Force Court (in short, “SSFC”). The SSFC held its proceedings on 23rd July, 2005 wherein the original petitioner is stated to have pleaded guilty. Based on that, the SSFC dismissed the original petitioner from service. (Para 2)

In the alternative, the original petitioner pleaded that he was a young man, aged 31 years, who had diligently discharged his duties for over 11 years without a complaint, therefore, even if the original petitioner is found guilty, a lenient view be taken by taking into account that he has old parents and a family dependent on him. (Para 3)

Before the High Court, the orders impugned in the writ petition were questioned on two grounds: (a) that there were procedural infirmities in conducting the proceedings and recording of evidence; and (b) that the evidence recorded did not inculpate him. (Para 6)

High Court in paragraph 23 of its judgment observed:

“23. A close analysis of the evidence would highlight the following circumstances:

(1) PW-1 noticed two camera flashes, whilst she was bathing, around 7-45 PM on 17th June, 2005, after she asked the petitioner to leave the premises. Despite her alert, no one was caught. PW-2 corroborated this. PW-3 who reached the spot, also could not see anyone.

(2) The petitioner was asked to report back immediately; he did so. During the intervening period, he went to Const. Kunnu’s house, and borrowed boots. This was verified from the latter’s wife and sister-in-law (PW 9) the same day. PW-9 did not mention anything about any camera or the petitioner having asked her to hide it, when officials enquired from her.

(3) No incriminating object or article including the camera was seized from the petitioner’s possession. It is unclear as to who owned the camera seized by the respondents.

(4) The petitioner was placed under open arrest the next day. He – according to PW-7, PW-8 and another witness, confessed to having clicked with the camera and having hidden it with PW- 9. The next day, PW-9 made another statement, leading to recovery of the camera. This internal contradiction between the version of PW-9 assumes importance because in her first statement, she never said anything about the camera. Her deposition in the Record of Evidence proceeding was over a week later, i.e. 25.06.2005.

(5) No written record of the confession said to have been made on 18th June, 2005 exists;

(6) Most importantly, the camera reel (though recovered on 18th June, 2005) was never developed. It was the best evidence of the petitioner’s culpability.” (Para 6)

In a nutshell, the submissions on behalf of the appellants were that there was no infraction of the procedure prescribed; the principles of natural justice were duly observed; the decision was based on acceptance of guilt; and since the original petitioner is part of a disciplined force and was found guilty of clicking photographs of a lady doctor while she was taking a bath, and whom he was required to protect, the punishment of dismissal cannot be faulted. Consequently, the order of the High Court deserves to be set aside. (Para 14)

In the instant case, from the materials brought on record we find that the original petitioner was placed under open arrest on 20.06.2005. On 21.06.2005, the Commandant of 128 Battalion BSF, wherein the original petitioner was posted, issued an order for recording of evidence. During the course of recording of evidence, the last witness statement, that is of PW-10, was recorded on 29.06.2005. On 29.06.2005 itself, the original petitioner was asked to give his statement. According to the original petitioner, the abstract of evidence was not provided to him and twenty-four hours’ time was not given to him for reflection therefore, there was a clear infraction of the proviso to sub rule (3) of Rule 49 of the BSF Rules, 1969. Hence, according to the original petitioner, confession, if any, made during the course of preparation of the record of evidence, is liable to be ignored. (Para 27)

In our view, there appears substance in the aforesaid submission of the learned counsel for the original petitioner. Moreover, in the instant case after preparing the record of evidence, the Commandant in exercise of his power under Rule 45(2)(iv) of the BSF Rules, 1969, vide order dated 05.07.2005, remanded the original petitioner for trial by an SSFC. In these circumstances, the trial had to proceed as per Chapter XI of the BSF Rules, 1969 and, therefore, the statement, if any, recorded during investigation or preparation of the record of evidence could have been used as a previous statement of the witness for the purposes of cross-examining the witness as and when the witness was examined before the Security Force Court. This we say so, because by virtue of Section 87 of the BSF Act, 1968 the general rules of evidence as laid in the Evidence Act, 1872, subject to the provisions of the BSF Act, 1968, are applicable to all proceedings before a Security Force Court. Therefore, by virtue of Section 145 of the Evidence Act, 1872, a witness may be cross examined as to previous statements made by him. (Para 28)

In light of the discussion above and also taking into account that the minutes of the proceedings recording the plea of guilty did not bear the signature of the original petitioner, in our considered view, the High Court was justified in finding the dismissal of the original petitioner on the basis of the plea of guilty unwarranted and liable to be set aside in exercise of powers under Article 226 of the Constitution of India. The High Court was also justified in not re-opening the proceeding from the stage where the error crept in by noticing that it would serve no useful purpose as there was hardly any evidence on record and nearly a decade had passed since the date of the incident. (Para 39)

SUPREME COURT OF INDIA

2023 STPL(Web) 242 SC

[2023 INSC 802]

Union Of India & Others Vs. Jogeshwar Swain

Civil Appeal Nos.8629-8630 of 2014-Decided on 5-9-2023

https://stpllaw.in/wp-content/uploads/2023/09/2023-STPLWeb-242-SC.pdf

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Breach of peace: It must disturb public order, not just personal peace

Code of Criminal Procedure, 1973 – Sections 145, 146- Breach of peace – Emergency situation – Possession dispute – Civil litigation – Non-application of mind – Proceeding under Section 145 – Attachment under Section 146 – The application under Section 482 of the Code of Criminal Procedure, 1973 challenges the orders by the Executive Magistrate, concerning a dispute under Section 145 of the Code of Criminal Procedure, 1973 and subsequent attachment under Section 146(1) of the same.

The petitioner contests the legality of both orders, asserting that the initiation of the proceeding and the attachment were illegal and an abuse of process. It’s argued that the jurisdiction under Section 145 can only be invoked if there’s a likelihood of a breach of peace, which wasn’t sufficiently demonstrated in this case.

The petitioner highlights that the attachment order was passed ex-parte without affording them an opportunity to respond, which is contrary to the exceptional circumstances required for such an order. Reference is made to legal precedent discouraging parallel criminal proceedings when a civil litigation is pending regarding property possession, emphasizing the binding nature of civil court decrees.

The respondents counter by claiming entitlement to the land based on a partition deed and subsequent court judgments. They argue that emergency circumstances justified the attachment due to the petitioner’s attempt to construct on disputed land.

Legal precedents are cited to emphasize that the existence of an emergency, not just the use of the term “emergency,” warrants attachment under Section 146.

The judgment critically examines the orders and the circumstances leading to them. It observes discrepancies between the assertions made in the complaint and police report, highlighting the absence of clear grounds for apprehension of breach of peace.The judgment reiterates the requirement for a dispute likely to cause a breach of peace under Section 145, emphasizing that it must disturb public order, not just personal peace.

It concludes that the impugned orders suffer from non-application of mind and jurisdictional error, resulting in injustice to the petitioner. Consequently, both orders are quashed, and the petition is allowed. Important Paragraph Numbers of Judgment: (Para 13, 19, 30, 31)

GAUHATI HIGH COURT

2023 STPL(Web) 183 Gauhati

[2024 STPL 1651 Gauhati]

Md. Osman Ali Saikia And Anr. Vs. Chand Mahamod Saikia And 2 Ors.

Crl.Pet. 239 of 2021-Decided on 8-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-183-Gauhati.pdf

 

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Electricity: Outstanding arrears from previous owner

Constitution of India, Article 226 – Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 – Electricity Act, 2003 – Section 43, 49, 50, 56 – Electricity – Outstanding arrears from previous owner – The petitioner, a partnership firm, sought a writ petition under Article 226 challenging a decision by the Assam Power Distribution Company Limited (APDCL) to deny a new electricity connection to their premises due to outstanding arrears from previous electricity bills.

The court directed interim relief for immediate electricity connection, subject to 50% payment of outstanding dues, with the remaining 50% to be paid upon dismissal of the writ petition.

The petitioner participated in an auction sale of a property and purchased a portion of land with a Business Centre cum Market Complex. They subsequently applied for a new electricity connection, which was denied by APDCL citing outstanding dues.

The court referred to the Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 and the Electricity Act, 2003. It cited a Supreme Court decision (K.C. Ninan vs. Kerala State Electricity Board) regarding the liability of auction purchasers for previous dues in properties sold on ‘as is where is’ basis.

The court dismissed the writ petition, holding the petitioner liable for outstanding electricity dues as per the auction sale agreement. It directed the petitioner to pay the outstanding dues as per the interim order, with APDCL waiving the accrued interest on the principal dues. (Para 15, 16)

GAUHATI HIGH COURT

2023 STPL(Web) 182 Gauhati

[2024 STPL 1650 Gauhati]

M/S Borah And Companyjiban Phukan Nagar Vs. Assam Power Distribution Company Ltd. And 3 Ors.

WP(C) 989 of 2014-Decided on 7-11-2023

2023 STPL(Web) 182 Gauhati

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Executive instructions cannot nullify statutory rules

Assam Bonded Warehouse Rules, 1965 – Rule 7 – Refund of Charges – Administrative Order – Statutory Rules – The present writ petition contested an order issued by the Secretary to the Government of Assam, Excise Department, reintroducing establishment charges under Rule 7 of the Assam Bonded Warehouse Rules, 1965, despite their abolition by the Assam Bonded Warehouse (Amendment) Rules, 2005.

The Court held that executive instructions cannot nullify statutory rules. Citing the principle established in K. Kuppusamy case, it ruled that until a rule is amended, it remains applicable. Consequently, the impugned order was set aside as ultra vires. Regarding refund, relying on Mafatlal Industries Ltd. case, the Court directed the petitioner to present evidence to the Excise Commissioner, who would determine entitlement to refund within four months, considering whether the petitioner passed on the burden of charges to retailers. (Para 15)

GAUHATI HIGH COURT

2023 STPL(Web) 181 Gauhati

[2024 STPL 1649 Gauhati]

M/S Centenary Distilleries P Ltd. Vs. State Of Assam And 2 Ors.

WP(C) 2875 of 2014-Decided on 7-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-181-Gauhati-2.pdf

 

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Land Disputes: Binding nature of Civil Court’s decree on Revenue Courts

Land Disputes – Binding nature of Civil Court’s decree on Revenue Courts – The instant writ petition challenged a judgment of the Assam Board of Revenue concerning a land dispute. The dispute pertained to a plot of land associated with the Dargah of Pir Saheb. The Civil Court in Title Suit No.176/1978 had decreed in favor of the Petitioners’ predecessor, declaring their right, title, and possession over the land. The State of Assam was restrained from interference. Subsequently, the Settlement Officer issued a Khatian in favor of the Petitioners’ predecessor, and a new Dag was created. However, the Assam Board of Revenue, in its impugned judgment, disregarded the Civil Court’s decree and cancelled the Khatian issued to the Petitioners’ predecessor.

This action was deemed contrary to established principles, as Civil Court decrees are binding on Revenue Courts. Therefore, the High Court set aside the impugned judgment, restoring the Khatian to the Petitioners’ predecessor. (Para 12)

GAUHATI HIGH COURT

2023 STPL(Web) 180 Gauhati

[2024 STPL 1648 Gauhati]

Sayed Moinuddin Ahmed Vs. State Of Assam And 3 Ors.

WP(C) 4701 of 2013-Decided on 7-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-180-Gauhati.pdf

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