Gauhati High Court Digest 1 to 6 August, 2023
Nominal Index
Md. Abdul Hekim And Anr Vs. State Of Assam And Anr.
2023 STPL(Web) 15 Gauhati : Murder – Conviction set aside
Ajit Kumar Khatoniar Vs Oil India Limited And Ors.
2023 STPL(Web) 9 Gauhati : Service Law – Stoppage of Promotion
Anita Haldar Vs. State Of Assam
2023 STPL(Web) 3 Gauhati : Service Law – Promotion
Arjun Gowala Versus State Of Assam
2023 STPL(Web) 10 Gauhati : Murder – Conviction upheld
Bikash Dey And 5 Ors. Vs. Fatima Khatun Vs. State Of Assam Rep. By Pp, Assam
2023 STPL(Web) 12 Gauhati : Pollution – Brick Kiln
Sri Biki Mandal Vs. State Of Assam
2023 Stpl(Web) 16 Gauhati : Attempt To Murder – Conviction Upheld
Fatima Khatun Vs. State of Assam
2023 STPL(Web) 6 Gauhati : Murder – Circumstantial Evidence
Girish Nath Vs. State Of Assam And 4 Ors.
2023 STPL(Web) 5 Gauhati : Settlement of the land – Not granting of
Dr. Hemendra Ram Phookuns Vs. State Of Assam And Anr.
2023 STPL(Web) 20 Gauhati : Quashing of Criminal Proceedings – To Wreck Vengeance
Kalyan Barman, Bongaigaon, Assam Vs. State Of Assam, Represented By The Public Prosecutor, Assam
2023 STPL(Web) 2 Gauhati : Murder – Fabricated Case
Lalit Ch. Borah Vs. Sarfaraz Alam
2023 STPL(Web) 13 Gauhati : Extortion – No prima facie case
Lena Basumatary @ Lena Gayari Vs. State of Assam And Anr.
2023 STPL(Web) 1 Gauhati : Murder – Convection set aside
Miya Hussains Vs. State Of Assam
2023 STPL(Web) 17 Gauhati : Murder – Conviction set aside
National Council Of Ymcas Of India (Ncyi) Vs. Birol Basumatary And Anr.
2023 STPL(Web) 18 Gauhati : Civil Procedure – Amendment of Pleadings
Prafulla Kumar Nath Vs. State Of Assam And 6 Ors.
2023 STPL(Web) 4 Gauhati : Service Law – Provincialization
Sri Dhena Tudu Vs State Of Assam
2023 STPL(Web) 7 Gauhati : Murder – Remand back
Sree Prakash Singh Vs Trishit Dhar
2023 STPL(Web) 8 Guhati : Civil Procedure – Ex party order
State Of Assam And Anr. Vs Abdul Khaleque
2023 STPL(Web) 11 Gauhati : Quashing of order to investigate – Promoting enmity
State Of Assam And 6 Ors. Vs. Nur Hussain Mollah B
2023 STPL(Web) 14 Gauhati : Service Law – Application of Pension Scheme
Subject Index
Civil
Settlement of the land – Not granting of – Application continued to be pending in spite of recommendation given by the Land Advisory Committee – Held: This Court is of the firm view that the petitioner has a legitimate expectation for consideration of his application for settlement and the non-consideration of the petitioner’s application by the concerned respondent authorities violates the mandate of Article 14 of the Constitution. specific direction by this Court to the concerned respondent authorities to consider and decide the settlement application of the petitioner, this Court directs the respondent authorities not to take any coercive action against the petitioner till the outcome of the settlement application is duly intimated to the petitioner. (Para 11, 14) : Girish Nath Vs. State Of Assam And 4 Ors. : 2023 STPL(Web) 5 Gauhati
Code of Civil Procedure, 1908 – Order 9 Rule 13 – Limitation Act, 1963 – Section 5 – Civil Procedure – Ex party order – Petition filed under Section 5 of the Limitation Act has been dismissed resulting in consequential dismissal of the petition in Order 9 Rule 13. Held: Dismissal of an application under Section 5 of the Limitation Act would also mean a dismissal of the entire case and therefore an appeal would lie. – Petition not maintainable. Liberty is however granted to the petitioner to prefer an appeal, if so advised. (Para 3, 5) : Sree Prakash Singh Vs Trishit Dhar : 2023 STPL(Web) 8 Guhati
Code of Civil Procedure, 1908 – Order VI, Rule 17 – Civil Procedure – Amendment of Pleadings – Rejection of application by Trial Court – Approach to High Court – Held: Whenever a petition under Order VI Rule 17 of the Code of Civil Procedure is filed, the court is not required to embark upon a mini trial of the case. The only aspect that is to be considered is whether the proposed amendments would change the nature and character of the suit. I find that the proposed amendments would not change nature and character of the entire suit.
The learned trial court erroneously embarked upon a mini trial of the case by deciding which amendment would be necessary and which amendment would not be necessary. The impugned order is bad in law and stands set aside accordingly. The trial court shall allow all the amendments as proposed by the petitioner. (Para 6, 7, 8) : National Council Of Ymcas Of India (Ncyi) Vs. Birol Basumatary And Anr. : 2023 STPL(Web) 18 Gauhati
Criminal
Indian Penal Code, 1860 – Section 302 – Murder – Convection set aside – No competent person of medical science examined for postmortem report – No eye witness of murder – Verbal dying declaration before two witnesses, who are not doctor/magistrate – The person who told about murder to dying declaration witness, not examined – Wife of the diseased not supported prosecution – Even the doctor, who conducted post mortem examination was not examined nor any specialist in the medical field to get the postmortem report proved/examined – Held: Though the postmortem report is admissible under Section 32(2) of the Indian Evidence Act, however, prosecution has certainly caused serious prejudice to the defence by not examining any competent person of medical science and the appellant is entitled for benefit of the same.
We find that the learned trial court has not considered the infirmities discussed above and failed to consider that the prosecution has failed to prove the manner, motive of occurrence and cause of death beyond all reasonable doubts. Hence, the accused/appellant is acquitted on benefit of doubt. Conviction set aside. (Para 44, 48, 49) : Lena Basumatary @ Lena Gayari Vs. State of Assam And Anr. : 2023 STPL(Web) 1 Gauhati
Dying Declaration – Conviction – It is not in dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary and reliable. In case, a person recording the dying declaration is satisfied that the declarant is a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. The real test is as to whether the dying declaration is truthful and voluntary. (Para 18) : Lena Basumatary @ Lena Gayari Vs. State of Assam And Anr. : 2023 STPL(Web) 1 Gauhati
Evidence – Hostile Witness – Evidence of a hostile witness remains admissible in evidence and it is open to the court to rely upon the dependable part of that evidence which is found to be acceptable and duly corroborated by some other reliable evidence available on record. (Para 42) : Lena Basumatary @ Lena Gayari Vs. State of Assam And Anr. : 2023 STPL(Web) 1 Gauhati
Indian Penal Code, 1860 – Section 302, 498A – Murder – Fabricated Case – There were discrepancies, not only with regard to date of death of the deceased, but also with regard to the time of death of the deceased. Prosecution has deliberately not exhibited the Inquest Report – Held: The prosecution having failed to produce witnesses (doctors) and failing to exhibit documents to enable the appellant/accused to have all the opportunity available to him to prove his innocence, we are of the view that the advantage in the inherent weakness of the prosecution case should be to the advantage of the appellant.
We are of the view that it would not be proper to remand the matter after such a long period of time. There is every possibility of the doctors and the documents not being available any longer. In that view of the matter, we are of the view that it should be decided on the basis of the materials on record. Prosecution has not been able to prove the guilt of the appellant beyond all reasonable doubt. Conviction set aside. (Para 6, 35, 36) : Kalyan Barman, Bongaigaon, Assam Vs. State Of Assam, Represented By The Public Prosecutor, Assam : 2023 STPL(Web) 2 Gauhati
Indian Penal Code, 1860 – Section 302 – Murder – Circumstantial Evidence – Last Seen – Chain not complete – Conviction set aside – Held: We find that the prosecution has failed to prove the offence against the accused/appellant beyond reasonable doubt. Only on the basis of last seen evidence, the accused cannot be convicted for the offence of murder, keeping in view the facts of this case. (Para 42) : Fatima Khatun Vs. State Of Assam Rep. By PP, Assam : 2023 STPL(Web) 6 Gauhati
Indian Penal Code, 1860 – Section 302 – Murder – Remand back – Appeal against conviction – Plea that no document was exhibited by the prosecution during trial. Further, the Investigating Officer of the case was not examined, thereby denying an opportunity to the appellant to contradict the evidence given by the prosecution witnesses. Plea accepted – Conviction set aside – Remand back – Held: We are of the view that the present case should be remanded back to the learned Trial Court, for exhibiting the FIR, charge sheet, Post-Mortem Report etc. and to also examine the Investigating Officer. (Para 6, 36) : Sri Dhena Tudu Vs State Of Assam : 2023 STPL(Web) 7 Gauhati
Indian Penal Code, 1860 – Section 302 – Murder – Conviction upheld – Murder of younger brother – Appeal against conviction – Extra judicial confession fully corroborated – Admission in examination u/s 313 Cr PC – Stabbing of the deceased cannot be said to be proportionate to Provocation – The appellant had also surrendered before the police when he was taken to the police station by his father. Further, the weapon was also recovered from the appellant when he took the same to the police station. – Held: Prosecution has been able to prove the guilt of the appellant beyond all reasonable doubt. In that view of the matter, we do not find any reason to come to a finding that the case of the appellant comes within the First Exception to Section 300 IPC. Conviction upheld. (Para 19 to 24) : Arjun Gowala Versus State Of Assam : 2023 STPL(Web) 10 Gauhati
Indian Penal Code, 1860 – Section 153, 153A – Quashing of order to investigate – Promoting enmity – Investigation order by magistrate against Chief Minister of Assam Sri Himanta Biswa Sarma – Matter related to his public speech which is according to Complainant caused disharmony or feelings of enmity, hatred or ill-will towards the Muslim population of Assam. – Quash petition – Held: On reading of the allegations made in the aforesaid Complaint Petition and in the F.I.R., it is crystal clear that each one contains apparently different narration of facts overlapping each other clouding the multifarious allegations generated therein, which cannot be construed to have disclosed any cognizable offence to the police, requiring to be mandatorily registered. No offence made out – Investigation order Quashed. (Para 28)
A perusal of the above penal provisions, it may be said that to make out a case under Section 153 of the IPC, the ingredients to be established are (i) that the accused did an act, which was illegal; (ii) that he gave provocation to others by such act; (iii) that he did so malignantly or wantonly; and (iv) that he did so with the intention that such provocation will cause the offence of rioting or knowing it to be likely that such provocation will cause the offence of rioting. The essence of the aforesaid offence is malicious intention to incite one community against another community. On the other hand, Section 153A of the IPC presupposes an intention to cause disorder or incite the people to commit violence. Such intention covers a case where a person by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, disharmony or feeling of enmity, hatred or ill will between different religions, racial language or regional groups or castes or communities or acts prejudicial to the maintenance of harmony or is likely to disturb the public tranquillity. Thus, the gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people. (Para 21)
Reading and analysing the contents of the F.I.R. meticulously as a whole, thus, it is not decipherable as to how the proforma respondent No. 2 provoked any enmity between two communities in absence of clear identification of the purported such communities so as to result in either the offence of ‘rioting’, which is defined in Section 146 of the IPC or promoting any form of enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and prejudicial to maintenance of harmony. Therefore, does the narrative so made by the informant in the F.I.R., Annexure-1, disclose any culpable mental state of the proforma respondent No. 2 behind his alleged public speech apparently derived from widely circulated/published electronic media reports, is punishable under any cognizable penal provisions of law? If one reads the whole undisputed printed script of the speech vide Annexure-6, the answer is certainly negative. (Para 23)
In the case in hand, a comparative approach to the allegations made in the F.I.R. vide Annexure-1, Complaint Petition vide Annexure-4 and the entire speech in vernacular delivered at a public meeting at Morigaon by the proforma respondent No. 2 vide Annexure-6, which is accepted without objection from the side of the respondent No.1, it transpires that there was no any elements constituting the offences under Sections 153/153-A of the IPC or any other cognizable penal offence. In other words, Annexure-6, the whole text of the speech in question did not bear any word or sentence which can be termed as communally inflammatory speech attracting any penal cognizable offence. So, this Court is of the opinion that while passing the aforesaid impugned order, unfortunately, (Para 31) : State Of Assam And Anr. Vs Abdul Khaleque : 2023 STPL(Web) 11 Gauhati
Indian Penal Code, 1860 – Section 385 – Extortion – No prima facie case – Allegation petitioner maliciously got a case foisted to implicate and arrest the respondent cousin – Held: The statements of the complainant and the witnesses under Section 200 Cr.P.C was taken into consideration and the complaint petition was also taken into consideration along with the report of the Superintendent of Police. As no prima facie case was found against the present petitioner no cognizance was taken against him. Without a prima facie case against the present petitioner, further proceedings may result in an abuse of the process of the Court. – Criminal Proceedings against petitioner quashed. (Para 10) Lalit Ch. Borah Vs. Sarfaraz Alam : 2023 STPL(Web) 13 Gauhati
Murder – Conviction set aside – Case of no evidence – Petitioner named in FIR which is lodged 20 hours of murder, When police had already started investigation – Plea that FIR is after thought – The names of the appellants/accused persons were added in the FIR subsequently purposefully – Not implicate by any witness – Held: On careful examination and scrutiny of the testimony of prosecution witness, we are of the view that the evidence of these witnesses against the appellants Abdul Hekim and Abdul Rahim does not establish any guilt and the prosecution has failed to prove beyond reasonable doubt. Conviction set aside. (Para 8, 77,78) Md. Abdul Hekim And Anr Vs. State Of Assam And Anr. : 2023 STPL(Web) 15 Gauhati
Indian Penal Code, 1860 – Section 307, 326 – Attempt to murder – Conviction Upheld – Appeal against conviction – Appreciation of evidence – Held: The evidence of the victim is supported by the medical evidence as well as the evidence of other independent witnesses. Her evidence inspires confidence. Conviction valid – Appeal dismissed. (Para 28) Sri Biki Mandal Vs. State Of Assam : 2023 Stpl(Web) 16 Gauhati
Indian Penal Code, 1860 – Section 302 – Murder – Conviction set aside – Case of no evidence – Plea that except for the name of the appellant in the chargesheet, the name of the appellant nowhere figures in any of the section 161 Cr.PC statements and/or in any documents. None of the prosecution witnesses nowhere mentions the name of the appellant. Plea accepted – Held: On the scrutiny of the evidences of prosecution witnesses, herein above, we find that there is no evidence against the appellant which point towards the guilt of the appellant except the mentioning of his name in the chargesheet. We are of the opinion that prosecution has failed to establish the guilt of the appellant Miya Hussain. In fact it is a case of conviction based on no evidence. As such, the conviction and sentence of the appellant cannot be maintained and accordingly is hereby set aside and quashed. (Para 10, 63, 64) Miya Hussains Vs. State Of Assam : 2023 STPL(Web) 17 Gauhati
Indian Penal Code, 1860 – Section 34, 120(B) 197,199,420, 307 – Quashing of Criminal Proceedings – To Wreck Vengeance – Petitioner a doctor – The allegation brought by the respondent has two parts. The first part isthat without examining her, the present petitioner had issued a certificate stating her to be a psychiatric patient. The second part of the allegation is that the petitioner had given some strong medicines to her, which could have caused psychological and mental complications. Held: Thus, it goes to show that the respondent had lied when she stated that without examining her, the petitioner had given the certificate. She was taking medicines prescribed by the petitioner.
Now, it is clear that the complaint lodged by the respondent no.2 is meant to wreck vengeance upon the petitioner. It is clear from the record that the complaint filed by the respondent no.2 against the present petitioner, is full of mala fide intention. Allowing the criminal proceeding to continue against the present petitioner, would be an abuse of the process of the court. Criminal proceedings against petitioner quashed. (Para 11, 12, 13) Dr. Hemendra Ram Phookuns Vs. State Of Assam And Anr. : 2023 STPL(Web) 20 Gauhati
Environment Law
Pollution – Brick Kiln – Valid – Petition against permission to brick kiln by State Pollution Board – Land not agriculture land as there is a certificate issued by the Assistant Settlement Officer certifying that the land over which the brick klin of the private respondent has been established, can no longer be considered as agricultural land. There is a ‘NoC’ obtained from the Secretary of the Gaon Panchayat on 06/08/2018 and the said document has been taken into account by the PCB while issuing the “consent to establish” and/or “consent to operate”. No valid ground for interfere. Petition fails. (Para 11, 12, 18) Bikash Dey And 5 Ors. Vs. Fatima Khatun Vs. State Of Assam Rep. By Pp, Assam : 2023 STPL(Web) 12 Gauhati
Service Law
Service Law – Promotion – Whether the petitioner being a Work Charged Khalashi can be promoted to the post of LDA. Nothing has been brought on record to show that on the basis of the extant applicable Rules, the petitioner can be given a promotion to the post of LDA which is a Grade-III post. On the other hand, it is the specific stand of the respondent authorities that could be seen from the affidavit-in-opposition that only regular Grade-IV employees can apply for being considered for promotion to a Grade-III post of LDA. No merit in petition. Dismissed (Para 9) : Anita Haldar Vs. State Of Assam : 2023 STPL(Web) 3 Gauhati
Service Law – Provincialization – Petitioner post bring under provincialization but latter on appointment of the petitioner was cancelled on the ground that there was no Feasibility Report. Held: it is the requirement of the statute that an order of provincialisation of the institution/subjects is to be preceded by a Feasibility Report. Examination of enrolment pattern/pass percentage which are factually in nature may be factors for considering a Feasibility Report which are within the domain of the Authorities under the Act of 2011 and cannot be the subject matter of a writ petition. Petition dismissed. (Para 24) : Prafulla Kumar Nath Vs. State Of Assam And 6 Ors. : 2023 STPL(Web) 4 Gauhati
Service Law – Stoppage of Promotion – Caused huge financial loss – Held: It is seen that the Inquiring Authority had duly afforded the reasonable opportunities to the Petitioner and there is a clear finding that on account of Petitioner’s negligence and acting beyond his authority without taking the specific permission from the Respondent Company, a Third Party Agent was appointed for which the Respondent Oil Company had to suffer a loss of amount of Rs.1,10,51,204.63p. It is further seen that the Petitioner has been only imposed a minor punishment of withholding two promotions. No unreasonable, arbitrary order which have occasioned manifest injustice – No relief. (Para 7, 8) : Ajit Kumar Khatoniar Vs Oil India Limited And Ors. : 2023 STPL(Web) 9 Gauhati
Service Law – Application of Pension Scheme – Pension and other Retiral benefits – Provision that petitioner post will not receive pension and retiral benefits – Petition allowed by Single judge against State – Appeal against – Petitioners were regular employees from year 2003 before coming into new pension scheme in 2006 – Held: the writ petitioner cannot be treated as a “new entrant” joining State Government services subsequent to introduction of New Pension Scheme. Resultantly, the petitioner cannot be brought under New Defined Contribution Pension Scheme. (Para 5) State Of Assam And 6 Ors. Vs. Nur Hussain Mollah B : 2023 STPL(Web) 14 Gauhati
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