Gauhati High Court Digest: 7 to 13 August, 2023

Gauhati High Court Digest: 7 to 13 August, 2023

Nominal Index

Abdul Kayum Barbhuiya  Vs. Eakbal Hussain Choudhury
2023 STPL(Web) 25 Gauhati : Criminal Procedure – Breach of Peace

Avishek Choudhury And 2 Ors. Vs. State Of Assam
2023 STPL(Web) 32 Gauhati : Quashing of FIR – Cheating

Md. Arman Hussain And 2 Ors. Vs. Anowara Sultana @ Rehena And 7 Ors.
2023 STPL(Web) 43 Gauhati : Amendment of pleadings – No exceptional circumstance made out

Sri Bijoy Gowala Vs. State Of Assam
2023 STPL(Web) 33 Gauhati : Murder – No Evidence

Directorate Of Enforcement, Rep. By Sri Jayant Choudhary Vs. Zoramthari, Proprietor Of M/S Thari Enterprises
2023 STPL(Web) 39 Gauhati : Money Laundering – Freezing of Bank Accounts

Md. Dildar Hussain Vs. State Of Assam
2023 STPL(Web) 40 Gauhati : Bail – Granted

Indian Oil Corporation Ltd. Vs. Smt Nibedita Roy
2023 STPL(Web) 21 Gauhati : Termination of Dealership – Indian Oil

Jamila Khatun Vs. Union Of India
2023 STPL(Web) 38 Gauhati : Foreigner Act – Declaration of Petitioner as foreigner

Jiten Gowala Vs. State Of Assam
2023 STPL(Web) 34 Gauhati : Murder – Circumstantial Evidence

Jibon Newar Goalpara, Assam Vs. State Of Assam
2023 Stpl(Web) 41 Gauhati : Attempt To Murder – Conviction Upheld

Md. Kapil Uddin Vs. State Of Assam
2023 STPL(Web) 31 Gauhati : Custody of Seized Material – Objection raised by the Investigating Officer

Kalindra Roy Vs. State Of Assam And Anr.
2023 STPL(Web) 26 Gauhati : Quashing of FIR – Negligent Act

Md. Matibur Rahman Vs. Pintu Ghosh
2023 STPL(Web) 35 Gauhati : Dishonour of Cheque – Presumption

Principal Commissioner Of Income Tax Vs. M/S. Shyama Power India Ltd.
2023 STPL(Web) 22 Gauhati : Income Tax – Deleting of the disallowances

Putul Gogoi Vs. Assam State Transport Corporation And Anr.
2023 STPL(Web) 24 Gauhati : Public Premises – Notice required before Eviction

Prafulla Sarma Vs. Dibakar Nath And 4 Ors.
2023 STPL(Web) 28 Gauhati : Injunction – Non grant of

Raham Ali Vs. State Of Assam And Anr.
2023 STPL(Web) 29 Gauhati : Rape – Consent

Sahed Ali And Anr. Vs. State Of Assam
2023 STPL(Web) 27 Gauhati : Murder – Circumstantial Evidence

Shiva Chautaludalguri, Assam Vs. State Of Assam Rep. By Pp, Assam.
2023 STPL(Web) 30 Gauhati : POCSO – Age of victim

Suman Biswas Vs. State Of Arunachal Pradesh
2023 STPL(Web) 36 Gauhati : Murder – Conviction set aside

Sreeprasad Hazam Vs. State Of Assam
2023 STPL(Web) 42 Gauhati : Attempt to murder – Conviction modified

M/S Techno Steel And Craft Industries And Anr. Vs. Union Of India And 6 Ors.
2023 STPL(Web) 23 Gauhati : Arbitration Clause – Contract Dispute

Subject Index

Arbitration

Arbitration Clause – Contract Dispute – Imposition of liquidated damages upon the Petitioners – Writ against – Contract agreement contains arbitration clause for settlement of disputes – Parties referred for arbitration and leaving the parties to take recourse to their remedies by way of arbitration. (Para 20) M/S Techno Steel And Craft Industries And Anr. Vs. Union Of India And 6 Ors. : 2023 STPL(Web) 23 Gauhati

Civil

Termination of Dealership – Indian Oil – Petition against single Judge order of cancelling termination of dealership – Contradictions in order of appellate authority of Indian oil – However Single Bench delved deep into the disputed factual issues and re-appreciated evidence while passing the impugned order, which is not within the domain of powers of judicial review conferred upon this Court by virtue of Article 226 of the Constitution of India. Indian Oil Corporation Ltd. Vs. Smt Nibedita Roy : 2023 STPL(Web) 21 Gauhati

Code of Civil Procedure, 1908 – Order 39, Rule 1, 2 – Injunction – Non grant of – Revision – Limited power – Certain conditions – The impugned judgment dated 08.05.2023 passed by the learned First Appellate Court has elaborately discussed the facts and circumstances under which the injunction petition was rejected. The said Court has also taken into account the law holding the field and there is discussion of the case laws of the Hon’ble Supreme Court in the case of Wander Ltd. v. Antox India (P) Ltd., reported in 1990 Supp SCC 727 and also a decision of this Court. The appellate Court has also come to a finding that the trial court has exercised such powers by due care and attention and there does not appear to be any arbitrary or capricious exercise of powers. No jurisdictional error or gross illegality is made out – Petition dismissed. (Para 9, 10) Prafulla Sarma Vs. Dibakar Nath And 4 Ors. : 2023 STPL(Web) 28 Gauhati

Foreigners’ Act, 1946 – Foreigner Act – Declaration of Petitioner as foreigner – Writ against – Lacuna in Examination in Chief – Held: State authorities are cross examining the witness of the proceedee in such manner so that the lacuna that may have been in the evidence rendered in the examination-in-chief is sought to be filled up by the State authorities by putting appropriate questions in the cross examination so that the lacuna of the proceedee itself can be filled up. Matter stands remanded back to the Tribunal to enable the State authorities to cross examine – Till the reasoned order is passed, no coercive action be taken against the petitioner. (Para 9, 12, 15) Jamila Khatun Vs. Union Of India : 2023 STPL(Web) 38 Gauhati

Evidence Act, 1872 – Section 50 – Evidence – To establish a relationship – The relevant provisions to establish a relationship is provided under Section 50 of the Evidence Act wherein it is provided that a relationship can be established by recording evidence of a member of the family or any other person who has a special means of knowledge of the existence of the relationship. (Para 6) Jamila Khatun Vs. Union Of India : 2023 STPL(Web) 38 Gauhati

Evidence – Section 137 – Evidence – Cross Examination – Section 137 of the Evidence Act provides for examination-in-chief and cross examination i.e. the examination of a witness of a party who calls him shall be called his examination-in-chief and the examination of a witness by the adverse party shall be called his cross examination. The purpose of cross examination under the law is to enable the other party to rebut or bring down the veracity of the evidence that may have been rendered by one of the parties in their examination-in-chief. Cross examination cannot be understood to be a requirement of the other party to come in an aid of a party deposing in their examination-in-chief so that whatever shortcoming or lacuna is there in the examination-in-chief would be filled up. (Para 9) Jamila Khatun Vs. Union Of India : 2023 STPL(Web) 38 Gauhati

Code of Civil Procedure, 1908 – Order 6, Rule 17- Amendment of pleadings – No exceptional circumstance made out – Appeal against dismissal of application for amendment of pleadings – Held: It is not in dispute that not only the trial had begun, the Suit itself was finally adjudicated and dismissed, it is only at the appellate stage that the application was filed for amendment. The proviso makes it clear that amendment are not to be allowed after the trial has commenced and such amendment can be allowed only under exceptional circumstances where, in spite of due diligence the party could not have been raised the matter before the commencement of trial.

The amendment sought for would be hit by the proviso of Order VI Rule 17 of the CPC and no exceptional circumstance has been able to be made out and rather allowing the amendment at this stage would be causing prejudice to the defendants on whose contest, an inter parte order has been passed by the learned Trial Court dismissing the Suit, which is the subject matter of the appeal. (Para 7, 9) Md. Arman Hussain And 2 Ors. Vs. Anowara Sultana @ Rehena And 7 Ors. : 2023 STPL(Web) 43 Gauhati

Criminal

Code of Criminal Procedure, 1973 – Section 145 – Criminal Procedure – Breach of Peace – Petition against Session Court order turning down order of executive magistrate u/s 145 Cr PC related to disputed land. Held: it is apparent that both the parties are claiming right, title and interest over the disputed Land. They have annexed certain sale deeds. The order was passed on the basis of a police report after drawing of a proceeding u/s 145 Cr.PC. was appropriate. The case prima facie appears to be a civil dispute but breach of public peace and tranquility in the locality is apprehended. Without written statements or evidence the Sessions Judge may not be able to decide the case in its proper perspective. Sessions Judge, order set aside upholding the order of the Executive Magistrate and Magistrate is directed to decide this case within 2 (two) months. (Para 16) Abdul Kayum Barbhuiya  Vs. Eakbal Hussain Choudhury : 2023 STPL(Web) 25 Gauhati

Indian Penal Code, 1860 – Section 287, 338 – Quashing of FIR – Negligent Act – Hurt – Quash Petition – Appreciation of evidence – Found no negligent act by petitioner – Held: . The FIR does not prima facie incriminate that petitioner was responsible for the injuries sustained by the informant’s husband. No injury report is also available in the LCR, suggesting that the informant’s husband sustained grievous injuries. It appears that further proceedings will be abuse of the process of the Court. Proceedings against petitioner quashed (Para 6) Kalindra Roy Vs. State Of Assam And Anr. : 2023 STPL(Web) 26 Gauhati

Indian Penal Code, 1860 – Section 302 – Murder – Circumstantial Evidence – Chain Complete – Appeal against conviction – Appreciation of evidence – Held: In the case in hand, the entire chain of circumstances has been proved against the appellants which unerringly led to guilt of the appellants and none else. From a careful examination and scrutiny of the testimony of PW-1, 2, 3, 4, 5, 6, 7, 8, and 9 and in the light of law laid down as referred to above, we are of the view that the evidences of these witnesses which resulted in the death of the deceased are credible, reliable and trustworthy and conviction of the appellant by the Court can be based on the testimony of PW-2 which is corroborated by other evidences which warrants no interference. Conviction Upheld . (Para 89, 93) Sahed Ali And Anr. Vs. State Of Assam: 2023 STPL(Web) 27 Gauhati

Indian Penal Code, 1860 – Section 448, 376 – Rape – Consent – Conviction set aside – Witness who saw this not whisper about any hue and cry by victim – Main eye witness not made witness in charge sheet – Held: In the case in hand, more particularly the deposition and testimony of PW-1 and PW-2, creates a doubt whether this was a rape or a consenting act, inasmuch as, the PW-2 who witnessed the incident has not termed the incident as rape but an illegal act being committed by both the accused and the victim. Further, she has not uttered any word that either the victim was struggling or raising any hue and cry. Held: Inconsistencies in the deposition of the victim created not only serious doubt regarding the nature of the alleged sexual offence but also credibility of the deposition of the victim herself. Conviction set aside. (Para 9 to 17) Raham Ali Vs. State Of Assam And Anr. : 2023 STPL(Web) 29 Gauhati

Protection of Children from Sexual Offences Act, 2012 – Section 6 – POCSO – Age of victim – Conviction set aside – Appeal against conviction – Appreciation of evidence – Held: There is no documents like birth certificate or school certificate to prove the age of the victim. The radiologist has assessed the age of the victim 16 to 17 years. Considering the margin of error in age even as one year, the victim would be 18 years of age and would not be a child within the meaning of Section 2(d) of the POCSO Act. This was relevant as the evidence on record indicates that the physical relationship between the appellant and the victim was consensual. In the absence of evidence to prove that the victim was below 18 years of age, the provisions of the POCSO Act cannot be invoked and consensual relationship would not constitute the offence of rape within the meaning of Section 375 of the IPC. Conviction set aside (Para 30, 33, 34) Shiva Chautaludalguri, Assam Vs. State Of Assam Rep. By Pp, Assam. : 2023 STPL(Web) 30 Gauhati

Code of Criminal Procedure, 1973 – Section 451, 457 – Custody of Seized Material – Objection raised by the Investigating Officer – Rejection of application for custody – Held: The Investigating Officer did not submit any such specific report about necessity of such articles during investigation, neither the learned Trial Court made any exercise to obtain specific report in this regard at the time of passing of the order – The present petition stands disposed of with a liberty to the petitioner to file a fresh Zimma Petition before the learned Trial Court and the learned Court will dispose of the same in accordance with law after obtaining specific report from the Investigating Officer concerned, in the light of the guidelines above. (Para 16, 19) Md. Kapil Uddin Vs. State Of Assam : 2023 STPL(Web) 31 Gauhati

Indian Penal Code, 1860 – Sections 120B, 420, 406 – Quashing of FIR – Cheating – Quash Petition – Prima facie case – Held: The power to quash proceeding under Section 482 of the CrPC is exercised when there are no materials to proceed against the petitioners even if the allegations in the complaint are prima facie accepted as true. In the present case, the allegations in the FIR constitute a prima facie case against the petitioners. This Court is of the opinion that this is not a fit case for exercising the power under Section 482 of the CrPC. Petition dismissed. (Para 10) Avishek Choudhury And 2 Ors. Vs. State Of Assam: 2023 STPL(Web) 32 Gauhati

Indian Penal Code, 1860 – Section 302 – Murder – No Evidence – Appeal against conviction – Appreciation of Evidence – Held: We are of the firm view that there is no evidence worth the name on the record of the case what to say of a complete chain of incriminating circumstances proved beyond all manner of doubt so as to connect the accused/appellant with the alleged crime. The impugned judgment has been rendered sheerely on conjectures, surmises and by placing reliance on inadmissible pieces of evidence as has been discussed above and hence, the same cannot be sustained. Conviction set aside. (Para 16) Sri Bijoy Gowala Vs. State Of Assam : 2023 STPL(Web) 33 Gauhati

Indian Penal Code, 1860 – Section 302 – Murder – Circumstantial Evidence – Last seen theory – Appeal against conviction – Appreciation of Evidence – Held: The case of the prosecution is based purely on circumstantial evidence in the form of “last seen together”, recoveries and confession. Law is well settled that for proving the guilt of the accused in a case based on purely circumstantial evidence, the chain of circumstances has to be proved by leading unimpeachable evidence; it should be complete in all aspects, unerringly pointing towards the guilt of the accused and should be inconsistent with the guilt of anyone else.

Firstly FIR was lodged four days after the deceased having gone missing from his house, and no explanation is forthcoming for this delay in lodging of the FIR. There is a gap of almost 14 days from the date on which the deceased went missing and the date on which his dead body was found. By no stretch of imagination, the incident as seen by Kokheswar Gogoi (PW-3) can be construed as a circumstance of “last seen together”. Hence, this so called incriminating circumstance of “last seen together” was not proved even by a semblance of evidence, what to say of reliable evidence.

The factum of recovery of iron rod and bicycle can otherwise also not be accepted because neither the Arrest Memos. of the accused were proved by the prosecution nor did the Investigating Officer bother to record any disclosure statement of the accused “under Section 27 of the Evidence Act” which led the alleged discoveries. It seems that the Presiding Officer of the trial Court gave a total go by to the principles of appreciation of evidence and has rendered the impugned judgment like a layman, blindly placing reliance on the evidence of the Investigating Officer and admitting even the confessions made by the accused before the police officer in gross disregard of the salutary principles laid down in the Evidence Act. The entire procedure in conducting the trial and rendering the judgment is gravely flawed, erroneous and suffers from loopholes and blunders for which the public prosecutor as well as the Presiding Officer concerned are equally responsible.

By virtue of Section 165 of the Evidence Act, it was obligatory for the trial Judge to ensure that relevant evidence is not left out from being brought on record and irrelevant evidence is not allowed to be brought on record. However, no attention was paid on these important aspects of the case. Prosecution failed – Conviction set aside (Para 5, 6, 7, 8, 11, 12) Jiten Gowala Vs. State Of Assam : 2023 STPL(Web) 34 Gauhati

Indian Penal Code, 1860 – Section 302 – Murder – Conviction set aside – Appeal against conviction – Appreciation of Evidence – Confession not Voluntary – No forensic evidence to connect accused – Held: The prosecution case is based wholly on the confessional statement made by the present appellant and on the circumstantial evidence as there is no eye-witness to the alleged incident. The confession made by the present appellant cannot be regarded as voluntary confession and hence same has been discarded by us. – The dao, which was recovered, was not produced during trial and exhibited by any of the witness and no evidence was produced to connect the recovered dao with the crime alleged to have been committed by the present appellant, no adverse inference can be drawn merely because of the fact of recovery of a dao from the Jungle near the place of incident.

Moreover, the prosecution side has also failed to adduce any forensic or any other evidence which connects the forensic materials collected from the place of occurrence with the present appellant to show that he was present at the place of the alleged offence. The prosecution side, in a criminal trial, based on circumstantial evidence, has to fully establish the circumstances on which it relies. However, for the reasons stated in the foregoing paragraphs, we are of the considered opinion that the prosecution side has failed to fully establish the circumstance which only leads to the conclusion of the guilt of the present appellant. We are also of the considered opinion that learned Trial Court erred in arriving at a finding of guilt on the basis of tainted confessional statement of the present appellant and on the circumstances which were not fully establish by the prosecution side in the trial. Conviction set aside. (Para 44, 45) Suman Biswas Vs. State Of Arunachal Pradesh : 2023 STPL(Web) 36 Gauhati

Prevention of Money Laundering Act, 2002 – Section – 17(1) – Money Laundering – Freezing of Bank Accounts – Single judge allow writ and defreeze account – Writ appeal – The authorities seizing/freezing of the record is required to file an application requesting for retention of the record of property or the order of freezing served under Sub-Section (1A) of Section 17 of the Act of 2002 to the adjudicating authority – The Original Application filed by the ED to the adjudicating authority, did not contain, the numbers of the disputed Bank Accounts of the writ petitioners. – Held: The learned Single Judge was perfectly justified in directing de-freezing of 5(4+1) Bank Accounts, because the continued embargo on the operation thereof by the Banks concerned on purported instruction of the ED clearly amounts to violation of the fundamental rights of the Account holders, i.e. respondents/writ petitioners as enshrined under Article 19(1)(g) of the Constitution of India. (Para 14, 15) Directorate Of Enforcement, Rep. By Sri Jayant Choudhary Vs. Zoramthari, Proprietor Of M/S Thari Enterprises : 2023 STPL(Web) 39 Gauhati

Writ Jurisdiction – Availability of statutory remedy and transgression of the fundamental rights – Held: The availability of statutory remedy cannot act to the detriment of a litigant when the writ jurisdiction of the Court is invoked in the matter wherein there is clear transgression of the fundamental rights of a citizen. (Para 18) Directorate Of Enforcement, Rep. By Sri Jayant Choudhary Vs. Zoramthari, Proprietor Of M/S Thari Enterprises : 2023 STPL(Web) 39 Gauhati

Code of Criminal Procedure, 1973 – Section 439 – Indian Penal Code, 1860 – Section 120(B), 395, 397, 342, 387 – Bail – Granted – Petitioner not named as accused in the FIR and no specific allegations are made against him – As per case dairy – It appears that the role of the present petitioner is only to the extent that he had only shown the house of the complainant to the accused persons only, one of whom was a Lady Police Officer –  Held: Further custodial detention does not appear to be necessary for fair completion of the investigation – Bail granted. (Para 3, 5) Md. Dildar Hussain Vs. State Of Assam : 2023 STPL(Web) 40 Gauhati

Indian Penal Code, 1860 – Section 307 – Attempt to Murder – Conviction upheld – Appeal against conviction – Appreciation of evidence – It is thereby held that it is evident who caused the injuries on the back of the victim’s neck and on her right forearm and the other lacerated injuries on her body. Neck is a vital part of a human body and the evidence reveals that the appellant also attacked the victim on the back of her neck and thereafter he almost hacked of her right forearm. The appellant behaved in a very aggressive manner. The evidence of sole testimony of an injured person is sufficient to bring home the charges of grievous hurt. The uncontradicted evidence of the PW’s establishes beyond a reasonable doubt that the appellant is guilty of offence u/s 326/307 IPC. (Para 32) Jibon Newar Goalpara, Assam Vs. State Of Assam : 2023 Stpl(Web) 41 Gauhati

Sentence – Reduced – Conviction in attempt to murder upheld in appeal – Sentence – Held: The appellant has been in custody from the beginning and throughout the trial. The appellant has already undergone a major part of his sentence. The order of sentence u/s 307/326 IPC is reduced to the period of detention already undergone by the appellant. (Para 33, 34) Jibon Newar Goalpara, Assam Vs. State Of Assam : 2023 Stpl(Web) 41 Gauhati

Indian Penal Code, 1860 – Section 307, 326 – Attempt to murder – Conviction modified – Appeal against conviction – Appreciation of evidence – Held: Except the injuries sustained by the victim on his left hand wrist joint, he also received injuries on his face, the nature of injured parts of the body selected for causing injuries clearly suggest that the accused did not have the intention to cause death of the deceased. Conviction under attempt to murder set aside but conviction under section 326 maintained – Sentence modified to already undergone. (Para 26) Sreeprasad Hazam Vs. State Of Assam : 2023 STPL(Web) 42 Gauhati

 Sentence – Reduced – Conviction u/s 326 IPC – Sppellant and he has also remained in custody for last 6 years. – offence is stated to have been committed about 10 years back and therefore, the accused appellant had been suffering from mental trauma and misery since last 10 years and with the efflux of time, he has also become 67 years of age. Therefore, instead of awarding the sentence of further imprisonment, it is just and fair to award the sentence of imprisonment for the term of a period already undergone by the appellant and as such, the impugned judgment of conviction and order of sentence is modified accordingly. (Para 27) Sreeprasad Hazam Vs. State Of Assam : 2023 STPL(Web) 42 Gauhati

Dishonour of Cheque

Negotiable Instrument Act, 1882 – Section 138, 139 – Dishonour of Cheque – Presumption – Complaint of dishonour of cheque resulted in conviction – Appeal against failed – Revision – Held: The evidence given by the complainant stands not discredited during cross-examination made by the petitioner. Under such facts, the complainant is entitled for the benefit of the statutory presumption under Section 139 of the N.I. Act. This presumption stands not in any manner rebutted by the revision petitioner. The offence is well proved – Conviction upheld. (Para 12) Md. Matibur Rahman Vs. Pintu Ghosh : 2023 STPL(Web) 35 Gauhati

Eviction

Assam Public Premises (Eviction of Unauthorized Occupants) Act, 1971 – Section 2(b), 3 – Public Premises – Notice required before Eviction – Plea against eviction order – Held: A show cause notice issued by an Estate Officer is a condition precedent for passing an order and the show cause notice so issued in the instant case is nonest in law as the same was issued by an authority having no authority or jurisdiction, this Court is of the opinion that the order also is without jurisdiction and authority of law. Eviction order set aside. (Para 12) Putul Gogoi Vs. Assam State Transport Corporation And Anr. : 2023 STPL(Web) 24 Gauhati

Taxation

Income Tax Act, 1961 – Section 143(I) – Income Tax – Deleting of the disallowances – By Tribunal – Appeal against – Absence of incriminating material found in the course of search –  Ledger/Books of Accounts and the statements recorded, during the search do not constitute incriminating material – Justified in deleting the disallowance of Rs. 15,46,46,174/-u/s 40(a)(ia) of the I.T. Act, by holding that the proceeding u/s 143(1) is an assessment which is concluded and unabated in the absence of incriminating material found in the course of search. (Para 18) Principal Commissioner Of Income Tax Vs. M/S. Shyama Power India Ltd. : 2023 STPL(Web) 22 Gauhati

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