Sentence: Advance age is one of the mitigating circumstances in favour of the convict

While commuting the sentence of capital punishment to life imprisonment in respect of appellant – Sudesh Pal. (Para 1)

Armed with licensed guns, rifles and country-made pistols came from behind and started firing indiscriminately. As a result of the said firing, Satendra and Sunil fell down on ‘Khadanja’. When Masooq Ali s/o Abdul Gaffur came out of his house upon hearing the sound of gunfire, the accused persons shot fire at him due to which he also fell down. Following which, Ram Kishan and Sukhpal Singh (PW-2) ran away to save their lives. Ram Kishan thereafter entered into the house of the Up-Pradhan Rizwan (Para 2.3)

It is further stated in the FIR that the accused persons thereafter entered the house of Up-Pradhan Rizwan and fired shots at Ram Kishan, Rizwan and Rihan. They also fired shots at Sukhpal Singh (PW-2). Ram Kishan, Sunil and Satendra died on the spot. (Para 2.4)

At the conclusion of trial, the trial court vide judgment dated 31st July 2015 held the accused persons guilty of committing the murder of six persons and accordingly convicted the appellants (Para 2.19)

The High Court further confirmed the Death Reference insofar as appellant Madan is concerned; whereas insofar as appellant Sudesh Pal is concerned, his appeal was partly allowed and the sentence of capital punishment imposed on him was converted to life imprisonment. (Para 2.20)

The testimony of these witnesses is sought to be attacked on the ground that they are interested witnesses and there are inconsistencies in their evidence. (Para 37)

It can thus be seen that merely because some of the witnesses are interested or inimical witnesses, their evidence cannot be totally discarded. The only requirement is that their evidence has to be scrutinized with greater care and circumspection. (Para 39)

The next contention raised on behalf of the appellants is that the motive attributed by the prosecution is a very weak motive. (Para 44)

In totality of the circumstances, we are of the considered view that the prosecution has proved beyond reasonable doubt the case for conviction under Section 302 of IPC and the appeals in that regard are liable to be rejected. (Para 49)

The next questions that we are called upon to consider are, as to whether the present case falls in the category of rarest of rare cases, and as to whether on the facts of the present case, the capital punishment imposed on appellant- Madan deserves to be maintained or not? (Para 50)

No doubt that there is a history of previous conviction insofar as appellant Madan is concerned. However, this Court, in the case of Rajendra Pralhadrao Wasnik (supra), has held that the history of the convict by itself cannot be a ground for awarding him death penalty. (Para 72)

As discussed hereinabove, the appellant is of an advanced age. This Court, in the case of Babasaheb Maruti Kamble v. State of Maharashtra[(2019) 13 SCC 640], has held that advance age is one of the mitigating circumstances in favour of the convict. (Para 73)

This Court, in the case of Irappa Siddappa Murgannavar v. State of Karnataka[(2022) 2 SCC 801], has held that the period of incarceration while sitting in a death row is also one of the mitigating circumstances. In the present case, convict Madan has been incarcerated for a period of 18 years 3 months. (Para 74)

This Court, in the case of Mohinder Singh (supra), has held that the fact that the prisoner has displayed good behaviour in prison, certainly goes on to show that he is not beyond reform. (Para 75)

We find that the interest of justice would be met by converting death penalty into life imprisonment i.e. actual imprisonment for a period of 20 years without remission. (Para 77)

SUPREME COURT OF INDIA

2023 STPL(Web) 413 SC

[2023 INSC 990]

Madan Vs. State Of Uttar Pradesh

Criminal Appeal Nos. 1381-1382 Of 2017 With Criminal Appeal No. 1790 Of 2017 -Decided On 09-11-2023

https://stpllaw.in/wp-content/uploads/2023/11/2023-STPLWeb-413-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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