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Murder: Circumstantial Evidence – Last seen theory Doubtful – Improvements/Contradictions – Conviction set aside.

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The prosecution mainly relies on the testimony of Jai Singh (PW-20) and Naresh Kumar (PW-21). (Para 6)

In the examination-in-chief, PW-21 states that on 16th September 2009, he was called by the police at the house of the deceased Hoshiyar Singh and he went there and saw that two persons, namely Manoj and Kamal Kishore, were in the custody of the police. PW-21 further states that the police had told him that they had committed the murder of Hoshiyar Singh. This witness has been declared hostile, However, further in the cross-examination by the APP, he has again admitted that he has seen the accused persons in the Police Station on 12th September 2009 for the first time. He further admitted that the police officials told him that there was a person namely Kamal Kishore and also told him about the accused Manoj. Another witness for the last seen theory is Jai Singh (PW-20), (Para 9)

The very presence of Jai Singh (PW-20) has been sought to be demolished in the cross-examination. Though, in the examination-in-chief, he states that he and Surat Singh had carried the deceased to the hospital, he states that the clothes of Surat Singh were soiled with blood but his clothes were not soiled because it was Surat Singh who was actually lifting Hoshiyar Singh and he was only helping him with his hands. (Para 10)

Though Jai Singh (PW-20) states that he had informed the police about the description of the accused, i.e., he told the police that one boy was fair and the other was having a wheatish complexion, there is substantial improvement inasmuch as his statement recorded under Section 161 of the Criminal Procedure Code, 1973 does not contain such description. He further states that his house is 40 feet away from the room where the incident had taken place. He has further admitted that there is one house situated between his house and the house of Hoshiyar Singh. As such, the very presence of this accused appears to be doubtful. (Para 11)

If the accused are already shown to the witnesses in the Police Station, then the sanctity of TIP before the court is doubtful. (Para 13)

The prosecution has utterly failed to prove the case as they need to prove the incriminating circumstances beyond reasonable doubt. The evidence with regard to last seen theory is totally unreliable. The evidence regarding the CDRs also is one which does not inspire any confidence. As such, we find that the appeals deserve to be allowed. (Para 20)

SUPREME COURT OF INDIA

2023 STPL(Web) 144 SC = 2023 INSC 678

KAMAL Vs. STATE (NCT OF DELHI)

Decided on 7-8-2023

https://stpllaw.in/wp-content/uploads/2023/08/2023-STPLWeb-144-SC.pdf

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Consumer

September 7, 2025 No Comments
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Contract: Demurrage not allowed

May 20, 2024 No Comments

Indian Contract Act, 1872 – Demurrage – Contractual Liability – Liquidated Damages – Breach of Contract – Adjudication of Claims – The petitioner, engaged in transportation business, participated in a competitive bidding process and was awarded a transportation contract by the Food Corporation of India (FCI). Dispute arose when FCI began deducting demurrage charges from petitioner’s bills for alleged delay in unloading wagons, despite petitioner not being responsible for wagon unloading.

The petitioner contested the deduction, arguing that as per the contract, demurrage cannot be unilaterally imposed by FCI unless liability is determined through due process of law.

The Court examined the relevant contract clause, which allowed FCI to recover costs, damages, etc., due to contractor’s negligence, but found it did not specifically authorize demurrage deduction.

Relying on the Supreme Court precedent in Food Corporation of India vs. Abhijit Paul, the Court held that demurrage could not be levied on the petitioner as the contract did not assign the task of wagon unloading to them.

The absence of a liquidated damages clause in the contract further supported the Court’s decision. The Court directed FCI to refund the deducted demurrage amount and refrain from further deductions, unless liability is determined through lawful adjudication.The order did not prevent FCI from seeking damages through proper legal channels. (Para 12, 15, 18, 22)

GAUHATI HIGH COURT

2023 STPL(Web) 184 Gauhati

[2024 STPL 1652 Gauhati]

Hi Speed Logistics Pvt Ltd. Vs. Food Corporation Of India And 5 Ors.

WP(C) 6317 of 2022-Decided on 8-11-2023

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

May 20, 2024 No Comments

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

May 20, 2024 No Comments

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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