Gauhati High Court Digest, 01 to 15, September 2023
Nominal Index
Sri Biru Chetry, Karbi Anglong, Diphu, Assam. Vs. State Of Assam
2023 STPL(Web) 89 Gauhati: Rape – Consent
Bolai Roy Vs. State Of Assam
2023 STPL(Web) 76 Gauhati: Stone Crusher – Suspension of Permit
Smt Bondita Dutta Bordoloi And 2 Ors. Vs. United India Insurance Co. Ltd And Anr.
2023 STPL(Web) 80 Gauhati: MACT – Income Tax Returns – Compensation enhanced
Shri Chandan Rai Vs. Union Of India
2023 STPL(Web) 87 Gauhati: Service Law – Fake certificate for securing appointment
Daibaki Baruah And 2 Ors. Vs. Nisha Kumari And 2 Ors.
2023 STPL(Web) 81 Gauhati: MACT – Compensation Enhanced
Dhan Sharmah Vs. State Of Assam And Ors.
2023 STPL(Web) 91 Gauhati: Service Law – Disputed questions of facts regarding appointment
Gautam Biswas Vs. State Of Assam And Anr.
2023 STPL(Web) 75 Gauhati: Kidnaping – POSCO
Sri Horen Rajkonwar And Anr. Vs. United India Insurance Co. Ltd.
2023 STPL(Web) 78 Gauhati: MACT – Transport endorsement
Jld Construction Private Ltd. Vs. Union Of India And 5 Ors.
2023 STPL(Web) 83 Gauhati: Tender – opportunity to produce document
Kamdev Sarma Vs. State Of Assam And 7 Ors.
2023 STPL(Web) 90 Gauhati: Service Law – Entitlement for Headmaster
Khagendra Haloi Vs. On The Death Of Binapani Talukdar Her Legal Heirs Prakashtalukdar And Anr.
2023 STPL(Web) 79 Gauhati: Second Appeal – Non framing of point of determination
Kakumoni Barman Vs. Punjab National Bank And 3 Ors.
2023 STPL(Web) 85 Gauhati: Service Law – Disqualification due to higher education
Loknath Sonowal Vs. Ajoy Poddar
2023 STPL(Web) 77 Gauhati: Criminal Procedure – Summoning of defence witness
Dr. Mithun Paul Vs. State Of Assam And 6 Ors.
2023 STPL(Web) 86 Gauhati : Service Law – Two Caste Certificate
Rehena Khatun Vs. State Of Assam And 12 Ors.
2023 STPL(Web) 88 Gauhati: Panchayat President – No confidence motion
Sri Sri Jakub Bhengra Vs. State Of Assam And Another
2023 STPL(Web) 92 Gauhati: Abetment for Suicide – Conviction set aside
Staff Selection Commission Vs. Md Gajijur Rahman
2023 STPL(Web) 93 Gauhati: Service Law – Selection
Swati Bidhan Baruah Vs. The State Of Assam And 2 Ors.
2023 STPL(Web) 95 Gauhati: Writ Petition – Action against Police officer
Syed Muslimuddin Ahmed Vs. The State Of Assam And Ors.
2023 STPL(Web) 94 Gauhati: Service Law – Seniority
Seiminthang Haokip Vs. Union Of India And 2 Ors.
2023 STPL(Web) 84 Gauhati: Service Law – Dismissal
Vinod Kumar Kedia Vs. M/S. J N Agency And 15 Ors.
2023 STPL(Web) 82 Gauhati: Civil Procedure – Counter Claim
Subject Index
Civil
Code of Civil Procedure, 1908 – Order 41 Rule 31 – Second Appeal – Non framing of point of determination – Judgment is vitiated – The first appellate court did not frame any point for determination. Held: The provisions of Order 41, Rule 31 of the Code of Civil Procedure are mandatory and if the judgment of the Appellate Court does not follow the provisions of Order 41, Rule 31, the judgment is vitiated. Remanded back to the first appellate court for passing a fresh judgment after compliance of the provisions of Order 41 Rule 31 of the Code of Civil Procedure. (Para 14) Khagendra Haloi Vs. On The Death Of Binapani Talukdar Her Legal Heirs Prakashtalukdar And Anr.: 2023 STPL(Web) 79 Gauhati
Code of Civil Procedure, 1908 – Order 8 Rule 6A – Civil Procedure – Counter Claim – Whether after framing of issues, a counter-claim can be accepted by a civil court – Held: After framing of issues, counter-claim under Order 8 Rule 6A of the Code of Civil Procedure cannot be filed. Trial court has committed error while accepting the written statement filed after framing of issues. (Para 7, 8) Vinod Kumar Kedia Vs. M/S. J N Agency And 15 Ors.: 2023 STPL(Web) 82 Gauhati
Tender – opportunity to produce document – Plea against opportunity to produce document to other bidders – Plea to award tender – Held: The petitioner has utterly failed to demonstrate that by granting opportunity to six out of ten bidders to provide clarification/documents, there was any intention of the tendering authorities of NHPC Ltd. to favour any particular bidder. No relief (Para 18) Jld Construction Private Ltd. Vs. Union Of India And 5 Ors.: 2023 STPL(Web) 83 Gauhati
Assam Panchayat Act, 1994 – Section 15 – Panchayat President – No confidence motion – Whether there has been compliance to Section 15 of the Act of 1994 and secondly, whether the Executive Officer of Panchayat had the authority to convene the special meeting for no-confidence – Held: The notices which were issued by the Executive Officer of Panchayat was done at the behest of the President of the Panchayat which cannot in the opinion of this Court be said to be a notice issued by the Executive Officer of the Panchayat without authority.
Question whether petitioner received notice for no confidence, which requires intricate examination of the evidence – Writ petition disposed with direction to hold meeting for No confidence motion – If no confidence motion adopted it will be deemed from earlier date for such motion. In case of failure to hold meeting than petitioner deemed to be ousted on base of earlier resolution (Para 8, 13) Rehena Khatun Vs. State Of Assam And 12 Ors. : 2023 STPL(Web) 88 Gauhati
Criminal
Indian Penal Code, 1860 – Section 363, 366 – Protection of Children from Sexual Offences Act, 2012 – Section 4 – Kidnaping – POSCO – Has failed to prove the foundational facts – Improvements by Girl – Conviction set aside.
This witness has not stated that the accused forcefully took the victim with him. It is true that the victim is a minor and in a case under the POCSO Act presumption operates against the accused, but, at the same time, the prosecution has to prove the foundational facts.
A vague statement made by a victim cannot be taken as Gospel truth to incarcerate a person for an offence as serious as an offence under the POCSO Act, moreso, when the evidence of the victim is fraught with contradictions. Presumption regarding the offence of rape cannot be made on vague statements. No place of occurrence has been mentioned by the victim. It is discernible that the accused and the victim stayed in two different places. Where was the offence of rape committed?
It is manifest that the victim was not induced to go with the accused but she went with him on her own volition. No evidence of sexual assault could be detected by the Medical Officer. On the contradictory statements of the victim, the accused is not held guilty of offence under the POCSO Act. The Medical Officer has also given her opinion that the victim’s age is around 17 to 18 years.
Statement of the prosecutrix at every stage has improved, changed and has contradicted its earlier statement and the testimony of the prosecutrix suffers from material inconsistency and as per the settled law conviction cannot be based on such testimony of the prosecutrix which is not worthy of credence. (Para 24, 27, 28, 29) Gautam Biswas Vs. State Of Assam And Anr.: 2023 STPL(Web) 75 Gauhati
Code of Criminal Procedure, 1973 – Section 311 – Criminal Procedure – Summoning of defence witness – Complaint of dishonour of cheque – Petition against rejection of application – No satisfaction to court regarding the reasons for calling the witness and as to whether the evidence that may be adduced by the said witness would be necessary for arriving at a just decision of the case – Petition delayed – No summoning can be allowed – Petition dismissed. (Para 19) Loknath Sonowal Vs. Ajoy Poddar: 2023 STPL(Web) 77 Gauhati
Indian Penal Code, 1860 – Section 376 – Rape – Consent – Appeal against conviction – Appreciation of evidence – Held: Even if we believe that the appellant had committed sexual intercourse with the victim on the fateful evening, the question arises as to whether such an act was with or without the consent of the victim and as to whether the testimony of victim to the effect that the sexual intercourse was without her consent is reliable or not.
If the statement of the victim has inherent infirmities, which cast doubt about its veracity, same may not be acted upon. In the instant case, the appellant has been able to raise such a doubt while cross-examining the victim. Wherein she has stated that she did not raise any hue and cry when the appellant entered into her residence in absence of her husband and though all the five children were with her at that time, they were also not alerted by her. . Further, there is no evidence to suggest that the appellant was carrying any weapon with him which caused the victim to get frightened and surrender herself to the appellant. Thus, from the testimony of the victim, it appears that there are inherent infirmities which creates doubt about its veracity and thus the same is not safe to be relied upon for arriving at a finding of guilt of the present appellant solely on the basis of her uncorroborated testimony. Conviction set aside. (Para 21, 22) Sri Biru Chetry, Karbi Anglong, Diphu, Assam. Vs. State Of Assam: 2023 STPL(Web) 89 Gauhati
Indian Penal Code, 1860 – Section 498A, 306 – Abetment for Suicide – Conviction set aside – Cruelty – Admittedly, the Investigating Officer could not recover any suicide note of the deceased. And admittedly also, there was no demand of dowry and there was no evidence of subjecting the deceased to cruelty in order to fulfil such demand. From the evidence so brought on record it cannot be said that the present one is a case where the accused had by his acts or omission or by a continued course of conduct created a circumstance that the deceased was left with no other option but to commit suicide. Conviction set aside. (Para 9, 29) Sri Sri Jakub Bhengra Vs. State Of Assam And Another : 2023 STPL(Web) 92 Gauhati
Writ Petition – Action against Police officer – Delay in investigation – Lady taken for Medical Examination by Male Police officer – Delay due to Case dairy with Public Prosecutor – Petitioner is advocate – No objection by her on accompanying only male policeman with her for medical examination – Her brother was also with her when she was taken for medical examination – No case made out against police officer – Direction that wherever appraisal arises to examine the petitioner-in-person or any other female witness in this case, it should be ensured that the statement is recorded only by a lady police personnel and not by a male police personnel. (Para 30, 35, 40) Swati Bidhan Baruah Vs. The State Of Assam And 2 Ors. : 2023 STPL(Web) 95 Gauhati
Compensation
Motor Vehicles Act, 1988 – Section 2(21), 173 – MACT – Transport endorsement – Driving Licence – Recovery rights given to insurer on ground that driver did not have driving licence having the “Transport” endorsement and so his driving licence not valid – Held: It is found that the concerned vehicle is below 7500 kilograms and therefore, it is a light motor vehicle within the definition of Section 2(21) of the Motor Vehicles Act and therefore, separate “Transport” endorsement is not required for driving such a vehicle. Recovery right to insurer set aside. (Para 7) Sri Horen Rajkonwar And Anr. Vs. United India Insurance Co. Ltd.: 2023 STPL(Web) 78 Gauhati
Motor Vehicles Act, 1988 – Section 173 – MACT – Income Tax Returns – Compensation enhanced – Income Tax returns are statutory documents and they are to be relied upon when assessing the compensation in a motor vehicles claim case. Claim enhanced according to income shown in Income Tax returns. (Para 5 to 9) Smt Bondita Dutta Bordoloi And 2 Ors. Vs. United India Insurance Co. Ltd And Anr.: 2023 STPL(Web) 80 Gauhati
Motor Vehicles Act, 1988 – Section 173 – MACT – Compensation Enhanced – Death case – Income Taken Rs 8460/- Per month – 40% added for future prospects – 50% deduction mother dependency claim – Multiplier of 16 applied, Under conventional heads allowed Rs. 77,000/-.Deduction of 50% contributory negligence of deceased Compensation enhanced from Rs 1,26,900/- to Rs. 6,07,012/-. (Para 7) Daibaki Baruah And 2 Ors. Vs. Nisha Kumari And 2 Ors.: 2023 STPL(Web) 81 Gauhati
Environment Law
Stone Crusher – Suspension of Permit – Person who suspended the permit has no such authority – Permit already expired – Renewal Pending – Suspension of permit to be taken as non-existent in law (Para 7) Bolai Roy Vs. State Of Assam: 2023 STPL(Web) 76 Gauhati
Service Law
Service Law – Dismissal – Deserter – Held: Apart from the fact that the ailment has been vaguely diagnosed as “Anxiety Disorder”, there is no advice to remain in bed rest and not to attend duties. It is also not the case of the petitioner that he had ever intimated the Office about such ailment. This Court has also noticed that though the petitioner in his rejoinder has denied receipt of any Office Memoranda requiring him to rejoin his duties, the Department had also made paper publication in spite of there was no move of the petitioner to rejoin his duties. The aforesaid conduct of the petitioner makes it clear that he had the intention to desert the Force and therefore, this Court is not in a position to find any fault with the findings arrived at order declaring the petitioner to be a deserter. Petition dismissed.(Para 10, 11) T. Seiminthang Haokip Vs. Union Of India And 2 Ors.: 2023 STPL(Web) 84 Gauhati
Service Law – Disqualification due to higher education – Cancelation of appointment – Over qualification after date of application – Petition against – Held: Since on the date of submission of application by the petitioner, the petitioner was admittedly not disqualified, her candidature could not have been cancelled on the ground of over qualification. Petition allowed – Petitioner to join duty (Para 14) Kakumoni Barman Vs. Punjab National Bank And 3 Ors. : 2023 STPL(Web) 85 Gauhati
Service Law – Two Caste Certificate – one from West Bengal other from Assam showing different castes – Appointment – Challenge to – OBC Category – Two Caste Certificate – Held: An individual cannot have two different castes and equity will not permit to have an option to produce any of the Certificates to the convenience to such individual. The records also do not reveal that at any point of time the respondent no. 6 had denied the OBC Certificate of the State of West Bengal and had rather given certain explanation regarding his parents, who are stated to be from Assam and West Bengal. Such explanation apart from being wholly unconvincing also does not inspire any confidence. There is apparently serious inconsistencies on the caste of the respondent no. 6, who admittedly has two OBC Certificates denoting two different castes. – Appointment quashed. (Para 33, 34, 35) Dr. Mithun Paul Vs. State Of Assam And 6 Ors.: 2023 STPL(Web) 86 Gauhati
Central Reserve Police Force Act, 1949 – Section 11, Central Reserve Police Force Rules, 1955 – Rule 27 – Service Law – Fake certificate for securing appointment – Dismissal – Whether submission of false/fake educational certificate for securing appointment in CRPF would constitute a misconduct so as to entitle the respondent authority to impose punishment section 11(1) of CRPF Act, 1949 read with Rule 27 of the CRPF Rules, 1955 and as to whether there is any procedural irregularity in the Department proceedings.
Held: The submission of false/fake educational certificate for securing appointment in CRPF would not constitute a misconduct so as to entitle the respondent authority to impose punishment section 11(1) of CRPF Act, 1949 after holding disciplinary proceedings under Rule 27 of the CRPF Rules, 1955. Moreso, there is a procedural irregularity in conducting the Disciplinary proceedings on the part of the respondent authorities as the document/verification relied on by the disciplinary authority was not put to notice on petitioner.
Undoubtedly submission of false/fake certificate for securing appointment is a grave misconduct. It is made clear that above conclusion of this Court, under any circumstances, is not to be construed that a person who had secured an appointment in service on the basis of false/fake certificate should be allowed to continue in the service at all. It is just that, in the opinion of this Court the respondent authorities have recourse to the provisions of inapplicable Acts and Rules and on procedural irregularity in the Departmental proceedings in the present case.
Dismissal set aside. However, the respondent authorities are at liberty to take recourse to the other applicable provisions of Rules and Act for taking action against the petitioner as he has alleged to have secured appointment by furnishing false/fake certificate which is a grave misconduct as may be permissible under the law. (Para 39, 57, 58, 59) Shri Chandan Rai Vs. Union Of India: 2023 STPL(Web) 87 Gauhati
Service Law – Entitlement for Headmaster – Petitioner was senior but not made headmaster on ground that his B.Ed degree was not recognised at time when he obtained degree – College has applied for recognition as per time prescribed by Law – His degree held to be valid – Order holding him not entitle for Headmaster set aside – Remand back to pass an appropriate order taking note that petitioner degree is valid. (Para 8, 9,10) Kamdev Sarma Vs. State Of Assam And 7 Ors.: 2023 STPL(Web) 90 Gauhati
Service Law – Disputed questions of facts regarding appointment – Denied by respondent – Held: No case at all has been made out for a writ court to embark upon such a dispute which is also factual in nature – No interference. (Para 12, 13) Dhan Sharmah Vs. State Of Assam And Ors.: 2023 STPL(Web) 91 Gauhati
Service Law – Selection – Writ Appeal by respondent against direction to appoint petitioner as constable – Petitioner secured 44 marks in the written examination whereas the last candidates selected in the CRPF and ITBP had secured 43 marks – Held: Admittedly, candidates lower in merit to the respondent were selected and appointed in the very same selection process. Writ appeal dismissed (Para 7, 13) Staff Selection Commission Vs. Md Gajijur Rahman: 2023 STPL(Web) 93 Gauhati
Service Law – Seniority – Plea that persons junior to him was put senior to him seniority list – Petitioner not directly selected but absorbed in department to avoid retrenchment – As per conditions no claim for seniority with regular employees – Earlier writ withdrawn without liberty to make fresh challenge – Writ dismissed. (Para 13, 14) Syed Muslimuddin Ahmed Vs. The State Of Assam And Ors.: 2023 STPL(Web) 94 Gauhati
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