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Best Of 2022- Important Judgments From North East High Courts
AK Neslin
23 Dec 2022 8:18 AM GMT
As the end of year 2022 is nearing, LiveLaw brings to you a bunch of important Cases from the High Courts of Gauhati, Meghalaya, Tripura, Sikkim and Manipur. This roundup includes 180+ important orders and judgments.GAUHATI HIGH COURT "Benefit Of CAA Available": Gauhati HC Asks East-Pakistan Immigrant To Apply For Citizenship, Sets Aside Order Declaring Him 'Foreigner' Case title -...
As the end of year 2022 is nearing, LiveLaw brings to you a bunch of important Cases from the High Courts of Gauhati, Meghalaya, Tripura, Sikkim and Manipur. This roundup includes 180+ important orders and judgments.
GAUHATI HIGH COURT
Case title - Bablu Paul @ Sujit Paul v. Union of India
Case Citation: 2022 LiveLaw (Gau) 1
Setting aside an order of a Foreigner's Tribunal which had declared a Hindu Man, who had migrated from erstwhile East Pakistan (now Bangladesh) as a Foreigner, the Gauhati High Court recently directed him to apply for citizenship by taking benefit of the Citizenship (Amendment) Act, 2019.
Taking into account subsection (1) to clause (b) of Section 2 of the Citizenship Act, 1955 added through the Citizenship (Amendment) Act, 2019, the Court opined that the petitioner can avail the citizenship under CAA as he is a Hindu who entered into India before 31.12.2014 and he was given permission to settle in India.
Case Title: Md. Maynul v. Union of India
Case Citation: 2022 LiveLaw (Gau) 2
The Gauhati High Court on Monday set aside an order passed by a Foreigners' Tribunal declaring a resident of Jorgah village, Sonitpur as a foreigner after noting that the concerned Tribunal had earlier declared him to be an Indian citizen but had subsequently passed an ex-parte order declaring him to be a foreigner.
A Bench comprising Justices Kotiswar Singh and Malashri Nandi observed that the Supreme Court in Abdul Kuddus v. Union of India had held that if there had been an order by the Foreigners Tribunal in favour of a person determining the citizenship, the said decision will be binding on subsequent proceedings against the same person and there cannot be another proceeding to re-determine the citizenship of the person, by applying the principle of res judicata.
Case Name: Mukti Nath Gogoi v. The State of Assam And Ors.
Citation: 2022 LiveLaw (Gau) 3
Gauhati High Court observed that disputes pertaining to the internal affairs of an unaided private Educational Institution are not amenable to the jurisdiction of the High Court under Article 226 of the Constitution. The High Court clarified that a mandamus can be issued against such an institution only if it performs public function and the grievance relates to discharge of such public function.
Justice Michael Zothankhuma dismissed two writ petitions filed challenging termination of services, against an unaided private educational institution as not maintainable.
Case Title: Deochand Sarda (Dead) by LRs. & Ors. v. Surendra Narayan Sukul (Dead) by LRs & Ors
Citation: 2022 LiveLaw (Gau) 4
The Gauhati High Court recently held that non-substitution of some of the legal representatives ("LRs") of the parties under Order XXII, CPC does not amount to abatement of the entire appeal. A Bench comprising of Justice Devashish Baruah held:
"…the provisions contained in Order XXII would lend credit and support the view that they are devised to ensure the continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remains intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order XXII are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice."
Case: M/s Shiva bottles Pvt. Ltd. And Anr. v. State of Assam & four others
Citation: 2022 LiveLaw (Gau) 5
The emergency powers encompassed within Section 41 of the Assam Excise Act 2000 accords on any excise or police officer the power to search premises and seize material and documents found and arrest any person, after having recorded his grounds to believe that an offence has been committed, however, this power does not include sealing/closing the premises, Guwahati High Court has held.
Justice Devashish Baruah while hearing a plea challenging the action of excise authorities in sealing the factory of the petitioner involved in manufacturing of PET bottles, caps etc., held that although Excise Act gives emergency powers to police officers and excise officers to dispense with the need of issuance of warrant pertaining to arrest or searching the premises, and empowers such officers to enter a place where they believe an offence under S. 53, S.54, S.55, S.56, S.57 or S.61 has been committed, and confiscate any material evidence or documentary evidence, however, the power of closure of premises is not encompassed within that Section.
Case Title : Md. Imad Uddin Barbhuiya and others versus The State of Assam and others
Citation : 2022 LiveLaw (Gau) 6
Gauhati High Court has upheld the constitutionality of the law passed by the Assam assembly in 2020 to convert State-funded Madrassas (called "provincialized Madrasas") into general schools.
The High Court upheld the constitutional validity of the Assam Repealing Act 2020 which repealed the Assam Madrassa Education (Provincialization) Act, 1995 and the Assam Madrassa Education (Provincialization of Services of Employees and Re-Organisation of Madrassa Educational Institutions) Act, 2018.
Version Of "Sterling Witness" Should Be Unassailable: Gauhati High Court
Case Title: Sh.N. Beilytu v. State of Mizoram
Citation: 2022 LiveLaw (Gau) 7
The Gauhati High Court held that the version of sterling witness is of very high quality and calibre and therefore, requires it should be unassailable while hearing a criminal appeal against the conviction of the appellant by the Special Court under section 4 of the POCSO Act, 2012.
Sterling witness as defined in Rai Sandeep v. State (NCT of Delhi) (2012) 8 SCC 21 is a witness whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. The court explained that the statement of sterling witness is to be accepted for its face value without hesitation while there should be consistency in the statement from the start till the end.
Case Name : Amir Khan v. State of Assam and Anr.
Citation: 2022 LiveLaw (Gau) 8
The Gauhati High Court has held that its inherent power under section 482 CrPC is not to be exercised in a routine manner and it is only to prevent gross miscarriage of justice or secure the ends of justice.
The Court thus refused to interfere with an order of the Chief Judicial Magistrate, declaring the petitioner to be a foreigner, following admission of guilt.
Case Name: Mr. Jothapuia v. State of Mizoram
Citation: 2022 LiveLaw (Gau) 9
The Gauhati High court, in a criminal appeal, has held that when a Trial Court convicts an accused, it has to give him or her an opportunity of hearing on the sentence as mandated under section 235(2) of CrPC.
The provision stipulates: If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
Case Name: Smt.Vanlalmawaii v. Sh. Laltanpuia
Citation: 2022 LiveLaw (Gau) 10
The Gauhati High Court, while hearing an appeal against a judgment of a Civil Court, has held that agreement of settlement arrived at Lok Adalat is deemed a decree of a civil court and as such it is binding upon the parties.
It further held that no appeal lies against it to any court and if any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution.
Case Name : Union of India v. M/s Tenzing Construction
Citation: 2022 LiveLaw (Gau) 11
The Gauhati High Court has dismissed an appeal filed by the Union of India against an order of the trial Court refusing to condone the delay in filing an arbitration appeal under section 34 of Arbitration and Conciliation Act, 1996.
The government had argued that the delay was due to official communication as its headquarters is situated outside of the State of Assam and Arunachal Pradesh.
The High Court noted that the law of limitation binds everybody, including the Government. Therefore, the Government, its various agencies and instrumentalities are not entitled to privilege in matter of condonation of delay due to procedural red tapism in the process, at least at this age of electronic communication.
Case Name : Bikas Borah & 10 Ors. v. State of Assam and 7 Ors.
Citation: 2022 LiveLaw (Gau) 12
The Gauhati High Court has dismissed a writ petition seeking change in the schedule of the Assam Public Service Commission (Mains) examination, as the same is clashing with the UPSC Indian Forest Service (IFS) examination, to be held on 27.02.2022.
The division Bench of Justice Sudhanshu Dhulia and Justice Soumitra Saikia noted that APSC has bonafide, practical reasons to not change the dates and as such, the Court cannot interfere in the matter.
Case Title: Saidur Rahman v. The State of Assam & Ors.
Citation: 2022 LiveLaw (Gau) 13
Gauhati High Court has held that physically handicapped persons constitute a category in themselves. There can be no further classification amongst the members of that category on the basis of other considerations like caste, creed, religion etc.
While granting relief to the petitioner, who was excluded from the recruitment drive conducted by the Assam Government merely for the fact that he was a general category candidate with physical disability, the Single Judge Bench of Justice Suman Shyam held,
"…this Court is of the unhesitant opinion that having reserved four vacancies to be filled up by PWD candidates and having permitted the General Category candidates to participate in the recruitment process, there was no scope for the authorities to further reserve those four vacancies in PWD category to be filled up only by candidates belonging to OBC/ MOBC or ST(H) category."
Case Name : Basiran Bewa v. State of Assam and 7 Ors.
Citation: 2022 LiveLaw (Gau) 14
Gauhati High Court has dismissed a revision petition challenging an order of the learned trial court which rejected the prayer of the petitioner to invoke section 319 CrPC to summon few persons as additional accused to face the trial.
It held that the power of the trial court to summon any person as an accused to face a trial if it appears from evidence that such person has committed any offence can be exercised at any stage during the trial under section 319 CrPC.
Case Name : M/S Gauhati Roller Flour Mills Ltd. v. Smti Premoda Medhi & Ors
Citation: 2022 LiveLaw (Gau) 15
Gauhati High Court has made it clear that in a civil suit, the plaintiff has to prove his case on his own strength. He cannot draw strength from the documents of the other side.
Justice Parthivjyoti Saikia thus refused to interfere with the findings of the courts below, in a case relating to property title. It observed,
"The appellant (plaintiff before the court below) failed to prove the sale deed, so he failed to prove his title over the suit land. For the reasons as aforesaid, this court finds that the trial court as well as the first appellate court had correctly appreciated the evidence on record and arrived at correct findings. Therefore, this appeal is found to be devoid of merit and stands dismissed accordingly."
Case Name : Sri Mrinal Kanti Debnath and 6 Ors v. M/S United India Insurance Co. Ltd and 2 Ors.
Citation: 2022 LiveLaw (Gau) 16
Gauhati High Court recently held that the role of a housewife is multifarious and to tag her as a mere skilled worker alone does not do complete justice to her role in managing the house. Therefore, compensation with respect to her death in a motor accident must be calculated including loss of dependency.
"In my considered opinion to tag a house wife as a 'skilled worker' alone does not do complete justice to her multifarious role as a home manager. Keeping in view the lapse of 32 years between the accident in the case of Lata Wadhwa (infra) and the present accident, my conclusion that a house wife was more than a mere skilled worker and it would not be unreasonable to estimate the contribution of the deceased in the present case at a higher figure amounting to Rs. 5,000/- without deduction.
Case Name: Tarun Chandra Das v. Bhanjana Kalita
Citation: 2022 LiveLaw (Gau) 17
Gauhati High Court held that a man cannot escape his liability under Section 125, Cr.P.C. to provide maintenance to his second wife when he had suppressed the subsistence of his first marriage to her.
While dismissing the application made by the husband (petitioner herein) to quash the order of maintenance passed by the lower Court, a Single Judge Bench of Justice Robin Phukan observed,
"Section 125 Cr.P.C. is a measure of social justice, enacted to protect the vulnerable section of the society like women, children and infirm parents and it is within the scope of Articles 15(3) and 39 of the Constitution of India. The object of this section is not to punish for the past, but to prevent the vulnerable section of the society, who are unable to maintain themselves, so that they are not left beggared and destitute on the scrap heap of the society, and thereby driven to a life of vagrancy, immorality and crime for their sustenance, by compelling those who are capable to support to perform their moral obligation."
Case Name : Ms Olivia Laldinmawii Khiangte & 2 Ors. v. K. Vanlaltluanga & 3 Ors.
Citation: 2022 LiveLaw (Gau) 18
Gauhati High Court has held that there is no claim on property of a deceased person by his children if the said property was not inherited by the deceased person during his lifetime. Mere living in the property does not imply that the property stood transferred to those who were the occupant of the said property.
Justice Nelson Sailo observed,
"Shri. K. Vanlalmalsawma during his lifetime did not inherit the land and property...If such is the case, there cannot be any basis for the petitioners to make a claim for the said property on the strength of being the daughters of late Shri. K. Vanlalmalsawma."
Case title - Md. Taher Ahmed Barbhuiya v. The State of Assam and another
Case Citation: 2022 LiveLaw (Gau) 19
The Gauhati High Court recently refused to quash an FIR registered against a man booked under the Unlawful Activities(Prevention) Act 1967 and Indian Penal Code for allegedly praising and glorifying 'Tehreek-e-Taliban' through his Facebook Post.
"At this initial stage it cannot be said that the action incorporated in Clause (a), (b), and (c) of Sub-Section (1) of Section 39 of the Unlawful Activities (Prevention) Act is not done with the intention to further the activities of a terrorist organization," remarked the Bench of Justice Robin Phukan as it refused to quash the FIR.
Case Title: Sri Kulendra Nath Kakati & Anr. v. Sri Bhabesh Baruah & Ors.
Citation: 2022 LiveLaw (Gau) 20
The Gauhati High Court has held that the term 'any person' appearing under Order XXI Rule 97(1) denotes 'all persons', even including 'strangers' to the original suit. Notably, the said provision deals with "resistance or obstruction to possession of immovable property".
While interpreting the sub-rule, a Single Judge Bench of Justice Robin Phukan held,
"However, a person, including a stranger, could maintain a petition under Rule 97 of Order XXI and object and get adjudication when he sought to be dispossessed by the decree holder. The expression 'any person' under sub-clause (1) Rule 97 includes 'all person'."
Case Title: Mr. Limhathung v. The State of Nagaland
Citation: 2022 LiveLaw (Gau) 21
The Kohima Bench of the Gauhati High Court has recently held that criminal proceedings in heinous offences like 'attempt to rape of a minor' cannot be quashed on the sole basis of a compromise/settlement entered into by her parents with the accused.
A Single Judge Bench of Justice Arun Dev Choudhury observed,
"It is also settled that offences which involve moral turpitude and grave offences like rape, murder etc. even if compromised cannot be quashed in exercise of High Court's power under Section 482 Cr.P.C. inasmuch as such offences are against the State and cannot be restricted to two individuals or groups."
Case Title: THE AYURVEDIC DOCTORS ASSOCIATION AND 2 ORS v. THE STATE OF ASSAM AND 4 ORS.
Citation: 2022 LiveLaw (Gau) 22
The Gauhati High Court has directed the state government to pay and release the salary to the contractual Ayurvedic doctors at par with the contractual Allopathic Medical Officers of the NHM [National Health Mission], Assam with retrospective effect from December 18, 2018.
The bench of Justice Michael Zothankhuma ordered thus as it took into account the order of the Uttarakhand High Court and the Supreme Court's recent order upholding the same to reach this conclusion that the Ayurvedic doctors would have to be treated at par with the Allopathic Medical Officers and Dental Medical Officers under the NHM.
Gauhati High Court Upholds The Minimum Age For District Judges In Assam
Case Title: Pooja Agarwal V The State Of Assam And Anr
Citation: 2022 LiveLaw (Gau) 23
The Gauhati High Court recently upheld the minimum age limit for appointment of District Judges in Assam.
A division bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia held that the limitation on age has a rational and reasonable nexus with the Rules of Assam Judicial Service Rules of 2003, and said that the Rule 1 of Assam Judicial Service Rules of 2003 providing an age limit to grade-1 judicial officers is not arbitrary.
The petition was filed by a Pooja Agarwal challenged the constitutional validity of the Assam Judicial Service Rules, 2003 more particularly Rule 7, by which a minimum age of 35 years and a maximum age of 45 years has been prescribed as an essential qualification for appointment to Higher Judicial Service in Assam.
Case Title: Century Plyboards (I) Limited Versus UOI
Citation: 2022 LiveLaw (Gau) 24
The Gauhati High Court bench of Justice Achintya Malla Bujor Barua has held that the department has circumstantial discretion to include producers related to exporters or importers of dumped articles in the purview of 'Domestic Industry'.
The review petition was filed by the Century Plyboards Limited against the judgement as regards the concept of domestic industry as defined in Rule 2(b) of the Anti Dumping Rules 1995 (ADR).
S.313 CrPC | Trial Court Should Avoid Posing Long & Arduous Queries To Accused: Gauhati High Court
Case Title: Gobind Singhal v. State of Assam and other connected matters
Citation: 2022 LiveLaw (Gau) 25
The Gauhati High Court observed that under Section 313 CrPC, the trial court should avoid posing long and arduous queries to the accused and instead bring to his notice, in a concise form, only the incriminating evidence available on record against him. A Division Bench of Justices Suman Shyam and Malasari Nandi remarked that section 313 CrPC is to afford a fair opportunity to the accused to explain each incriminating evidence available against him.
The challenge arises out of a judgment of the Sessions Judge, Kamrup (M), who convicted three accused under Sections 120(B)/201/302 of the Indian Penal Code for murdering the deceased based on a conspiracy. While two convicts were awarded imprisonment for life and a fine, one accused was awarded the death sentence.
Case Title: M/s Vridhi Iron Steels v. Assam Power Distribution Company Ltd.
Citation: 2022 LiveLaw (Gau) 26
The Gauhati High Court bench of Justice Devashis Baruah has held that Section 126 of the Electricity Act, 2003 empowers the Assessing Officer as designated to carry out the provisional assessment and pass the order of provisional assessment.
The court held that the assessing officer, in order to make the provisional assessment to the best of his judgement, shall take into consideration the materials which have come into light on the basis of an inspection of any place or premises, or after an inspection of the equipment, gadgets, machines, or devices found connected or used, or after an inspection of records maintained by any person. The materials can be on the basis of such an inspection, search, seizure, etc. carried out by officers duly authorised under Section 135(2) of the Electricity Act, 2003.
Gauhati High Court Refuses Relief To Student Who Was Denied LLB Degree For Failing In 'Taxation Law'
Case Title: Shri Kipa Kaman v. Rajiv Gandhi University, Doimukh & Ors.
Citation: 2022 LiveLaw (Gau) 27
The Itanagar Bench of Gauhati High Court has declined to provide relief to a person who was denied 'LL.B. degree' because of his failure to secure passing marks in one (Taxation Law) out of 37 papers prescribed under the prospectus of his institution.
While dismissing the petition, a Single Judge Bench of Justice Robin Phukan observed,
"Since the petitioner had admittedly failed in a compulsory paper i.e. Paper XXXV (Taxation Law) and since he has not challenged the Academic Council Resolution and the Notification issued subsequently, he cannot file the present writ petition, for issuing direction to the respondent authorities to grant LL.B. Degree to him. Having appeared in all the 37 papers and having been failed in one compulsory paper he cannot challenge the process."
Case Title : NILAKANTA MALAKAR @ SANTO AND 4 ORS. V THE STATE OF ASSAM AND ANR.
Citation: 2022 LiveLaw (Gau) 28
Gauhati High Court has recently observed that Domestic Inquiry Report is not compulsory for initiating proceeding under Section 12 of Protection of Women from Domestic Violence Act 2005.
Justice Rumi Kumari Phukan observed that whether such domestic violence was inflicted upon the respondent no.2/wife, is not a subject matter of trial and such matter cannot be decided in such petition:
"DIR is not compulsory and the court has the ample power to pass an ex parte order to provide such monetary relief and the present case is squarely covered by the observation/ conclusion that has been reached by this Court."
Case Title: UTIMRAJ COMMERCIAL PVT LTD v. THE GENERAL MANAGER AND 2 ORS NORTH EASTERN FRONTIER RAILWAYS, MALIGAON, GUWAHATI (ASSAM).
Citation: 2022 LiveLaw (Gau) 29
The Gauhati High Court has prima facie observed that the Assam Mineral Development Corporation can't stop the Railways from transporting goods, in this case coal, in course of inter-state trade, in absence of a joint NOC being issued by the Corporation.
Justice Arun Dev Chaudhry opined that the Corporation may not have the jurisdiction for issuance of such joint NOC.
Accordingly, it stayed a communication issued by the Corporation requiring the Chief Freight Transportation Manager of the NF Railways that the transit passes, supporting documents/papers etc. submitted by the intending coal transporters be sent to the office of the Managing Director, Assam Mineral Development Corporation Limited for verification and for issuance of joint NOC by the Assam Mineral Development Corporation Limited and the Directorate of Geology & Mining, Assam.
Case Title: Sri Bhairab Das v. The State of Assam
Citation: 2022 LiveLaw (Gau) 30
The Gauhati High Court recently while dealing with a case of rape of a minor girl observed that if the victim was kept under threat and compulsion to stay with the accused petitioner, such consent cannot be termed as a consent within the purview of Section 90 IPC.
The observation came from Justice Rumi Kumar Phukan who said that even if she was a major, in the given circumstances the consent is immaterial:
"In the given case, the victim was kept under threat and compulsion to stay with the accused petitioner, which cannot be termed as a consent within the purview of Section 90 IPC. Even if she is held to be major also, such a consent itself immaterial."
Case title - Sital Mandal v. The Union of India and others along with connected petitions
Case Citation: 2022 LiveLaw (Gau) 31
Relying upon the Apex Court's Judgment in the case of Abdul Kuddus V. Union of India [(2019) 6 SCC 604], the Gauhati High Court has observed that the opinion of the Foreigners Tribunal regarding the citizenship of a person would operate as res judicata.
Here it may be noted that Res judicata is a principle of law that states that once a final decision has been given by a competent court on a matter between the same parties, the same shall be binding, and same parties and the same issues, cannot be put to litigation again. Section 11 of the Code of Civil Procedure explains this principle.
With this, the Bench of Justice N. Kotiswar Singh and Justice Nani Tagia has asserted that if a person has been declared to be an Indian citizen in earlier proceedings, then, the in any subsequent proceedings he/she cannot be declared to be a foreigner, as the principle of res judicata applies in such cases.
The Court also went on to hold that the High Court's decision in the case of Amina Khatoon Vs. Union of India, (2018) 4 Gau LR 643, that had held that res judicata is not applicable in the proceeding before the Foreigners Tribunal, is not good law in view of the Supreme Court's decision in the case of Abdul Kuddus.
Case Title: SYED MOHBUBUL MAJID v THE STATE OF ASSAM AND 5 ORS
Citation: 2022 LiveLaw (Gau) 32
The Gauhati High Court recently directed a Secondary Education Department to process the pensionary benefits of a person who was denied the same on the ground that he did not have the necessary qualification at the time of appointment.
Justice Achintya Malla Bujor Barua observed that there was no departmental enquiry into the same during his tenure and that the cause of action of the misconduct occurred in 1988.
"In the instant case, records reveal that neither there was any departmental proceeding nor the cause of action of the misconduct is within the period of four years from which a departmental proceeding can be initiated. Admittedly, the cause of action took place in the year 1988 itself when the petitioner entered service without having the necessary qualification. From such point of view, we are of the view that the pensionary benefits of the petitioner cannot be now withheld by invoking the proviso to Rule 21 of the Assam Services (Pension) Rules, 1969."
Case Title: Smti. Protiva Devi v State of Assam & Ors.
Citation: 2022 LiveLaw (Gau) 33
While reiterating that the right to promotion is not a Fundamental Right, the Gauhati High Court has recently dismissed a petition filed by a Graduate Teacher challenging the vires of Rule 14(2) of the Assam Secondary Education (Provincialisation) Service Rules, 2003 on grounds that she was not promoted to the position of the headmistress.
A division bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia relied on a judgement passed by the co-ordinate bench in Kripa Sindhu Das Vs. State of Assam & Ors it was held :
"The right to be considered for promotion is a fundamental right, while the right to promotion is (not) fundamental right. It was held that the right of the Assistant Head Master to be promoted to the post of Head Master is not denied or diminished as he still can be promoted to the post of Head Master by taking into account his seniority in the cadre of Graduate Teacher and therefore his chance of getting promoted to the post of Head Master is not lost."
The Bench after carefully perusing the said decision noted that the issue raised in this case had already been specifically dealt with and declared that it was in complete agreement with the views arrived at by the Co-ordinate Bench.
It was also noted that no averments or submissions were made by the parties herein that the cited decision required reconsideration either. Accordingly, finding no reasons to take a different view in the present proceedings, the plea was dismissed.
Case Title: AMAL DAS v THE STATE OF ASSAM
Citation: 2022 LiveLaw (Gau) 34
The Gauhati High Court recently denied anticipatory bail to a person in connection with a case registered under Section 21(c) / 29 of NDPS Act, 1985 holding that recovery or seizure of the contraband is not mandatory for their arrest, detention or even their conviction.
Justice Sanjay Kumar Medhi observed that this was so because the offences under the Act were part of an organised crime and any convincing and corroborating material in favour of the prosecution would be sufficient to establish their guilt.
"This Court finds force in the submission of the learned APP, Assam that offences under the NDPS Act are part of an organized crime wherein different roles are played by different accused persons. Therefore, recovery or seizure cannot be held to be a sine qua non for the arrest/detention or even for conviction if there are other convincing and corroborating materials which in the present case are abundantly available."
Case Title: Bistirna Hazarika and Ors. v The State of Assam & Anr., with connected matters
Citation: 2022 LiveLaw (Gau) 35
The Gauhati High Court recently dismissed a petition filed by a student challenging his college policy for allotment of marks to students who were scheduled to appear in the Higher Secondary Final examination, 2021 finding that unless found to be contrary to law, academic experts have the liberty to frame policies in the best interest of students.
A Bench comprising Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia observed that :
"It is a well settled in law that unless it is shown to be contrary to a statute or the Rules, the academic authorities should be given their liberty to frame the policies which are based suited for conducting their functions and in the interest of the student community."
Case Title : Shri Jibon Kalita and Ors. v State of Assam and Ors.
Citation: 2022 LiveLaw (Gau) 36
The High Court of Gauhati recently directed the State government to issue appointment orders to all persons selected pursuant to their last employment advertisement, even though the government had recently issued new advertisement for the same vacancies.
Justice Michael Zothankhuma observed that :
"The amendment made to the Executive Instructions vide Notification dated 10.04.2018 has not been given any retrospective effect and as such, the doing away with the selection process that has been completed prior to the Notification dated 10.04.2018 is patently unfair and unreasonable."
Case Title: APURBA KR CHOUDHURY AND 13 ORS versus THE STATE OF ASSAM AND ANR
Citation: 2022 LiveLaw (Gau) 37
The Gauhati High Court recently observed that the powers of the High Court under Section 482 of CrPC need to be used sparingly and in rarest of rare cases while dealing with a petition seeking quashing of FIR.
The observation came from Justice Sanjay Kumar Medhi:
"The overall reading of the aforesaid case of Bhajan Lal (Supra), would lead to the conclusion that the power to quash is to be exercised very sparingly and in rarest of the rare cases. The remedies available in law for false and vexatious charges have also been highlighted in the said judgment to dissuade the High Courts from exercising powers under Section 482 CrPC."
Case Title: Banwarilal Sharma v. Kamala Devi Ajitsaria & Ors
Citation: 2022 LiveLaw (Gau) 38
The Gauhati High Court recently held that a Second Appeal would lie in cases that involve a substantial question of law and explained that the word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor is it intended to refer only to questions of law of general importance, but refers to the impact or effect of the question of law on the decision in the lis between the parties.
Justice Devashish Baruah noted that,
'"Substantial question of law' means not only 'substantial question of law' of general importance but also a substantial question of law arising in a case as between the parties. In the context of Section 100 of the CPC, any question of law, which affects the final decision in a case is a 'substantial question of law' as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law."
Case Title: Century Plyboards (India) Ltd. & Anr. v. The Union of India & Ors.
Citation: 2022 LiveLaw (Gau) 39
The Gauhati High Court has held that the Managing Director(s) of a company should not be directly summoned by authorities under Section 108 of the Customs Act. It clarified that ordinarily, authorized representatives of a company are to be summoned and Managing Directors can only be summoned if the former are not cooperating or if investigation is to be completed expeditiously, as the case may be.
A Single Judge Bench of Justice Achintya Malla Bujor Barua observed,
"…it is the practice of the Department not to issue the summons to the Managing Director or the other Directors without any justification and secondly, the summoning of the Managing Director or Director should be undertaken only as a last resort in cases where assesses are not cooperating or the investigations are to be completed expeditiously."
Clarificatory Circular Operates Retrospectively And Does Not Bring Anything New: Gauhati High Court
Case Title: Sanjib Das versus Union of India and Ors.
Citation: 2022 LiveLaw (Gau) 40
The Gauhati High Court has reiterated that a circular issued by the Central Board of Indirect Taxes and Customs (CBIC) which only clarifies the CBIC's original instructions and does not bring anything new is clarificatory in nature and operates retrospectively.
The Single Bench of Justice Devashis Baruah held that the exceptions enumerated in the clarificatory circular issued by CBIC, that enumerated exceptions with respect to holding pre-show cause notice consultation, would operate retrospectively from the date of issuance of CBIC's original instructions relating to pre-show cause notice consultation.
Case title - Pratima Deka vs The State Of Assam And 5 Ors
Citation: 2022 LiveLaw (Gau) 41
The Gauhati High Court has observed that in the Hindu religion, there is no concept of Bigamy and therefore, a second wife is not entitled to a family pension in the existence of the first wife.
The bench of Justice Sanjay Kumar Medhi observed thus in a case wherein Petitioner had moved the Court seeking family pension claiming herself to be the wife of one Biren Deka.
Case Title : DHARAMPAL SATYAPAL LTD. V THE STATE OF MAHARASHTRA AND 3 ORS.
Citation: 2022 LiveLaw (Gau) 42
A single-judge bench of the Gauhati High Court, comprising Justice Rumi Kumari Phookan held that only a Food Inspector can investigate a commission of offence related to food items as per the Food Safety Standards Act, 2006 (FSS Act).
The petitioner in this case was a company which has been granted license by the competent authority under the FSS Act to manufacture pan-masala, which is classified as a food product under Food Safety and Standard Regulation. An FIR was registered against one Md. Imran Mohammed Hanif under Section 188/272/273/328 IPC, read with Section 26(2)(i)—(iv)(e) and Section 59 of the FSS Act, for possession of Rajanigandha pan-masala and Scented Tobacco and Baba Nabaratan pan-masala, etc. which are prohibited items of food, in view of the notification issued by the Commissioner of FSS and Drug Administration, Maharashtra.
Case Title : BIJU KATHAR v THE STATE OF ASSAM
Citation: 2022 LiveLaw (Gau) 43
The Gauhati High Court, directed the Commissioner of Police to change the investigating officer of a theft case, after the accused alleged that the present IO was acting out of personal vendetta against him due to a dispute between them over a tribal land.
Justice Parthivjyoti Saikia noted the seriousness of the allegation brought by the petitioner and granted pre arrest bail to the petitioner-accused, subject to bond of Rs. Rs.25,000/-. It directed that, in the event of arrest in connection with the case in question, the petitioner be released on bail. As per the Court's direction, the petitioner is not to appear before the current investigation officer, and will only appear before a new investigation officer, whenever he is appointed.
Case title - DR. HIMANTA BISWA SARMA v. THE ELECTION COMMISSION OF INDIA AND 5 ORS
Citation: 2022 LiveLaw (Gau) 44
In a significant observation, the Gauhati High Court has said that it is high time to re-visit the provision enunciated in Section 126 of the Representation of People Act which deals with the prohibition of public meetings/election campaigning during a period of forty-eight hours ending with hour fixed for conclusion of poll.
The Bench of Justice Rumi Kumari Phookan observed thus as it quashed a criminal case registered against the present Chief Minister of Assam, Himanta Biswa Sarma for the alleged violation of the model code of conduct by him during the 2019 Lok Sabha polls.
Case Title : RAJIB RABHA v THE STATE OF ASSAM AND 3 ORS
Citation: 2022 LiveLaw (Gau) 45
The Gauhati High Court has directed the Excise Department to dispose the representation filed by a large number of public organisations of a locality in Damara against opening of a liquor shop in their locality, as per Rule 289, Rule 294 and Rule 295 of the Assam Excise Rules, 2016 and after affording opportunities of hearing to the local public, as Rules envisage.
The Court disposed of the writ petition with a direction to the Excise Department to dispose of the representation within 2 months to take Rules 289, 294 and 295 into account and their envisaged goal to afford opportunity of being heard to the local residents.
Case Title : Jugitawali Pawe v State of Assam and 15 ors.
Citation: 2022 LiveLaw (Gau) 46
The Gauhati High Court has quashed a resolution expressing no-confidence in the petitioner - the President of a Gram Panchayat, as a result of which she as removed from office, citing non-compliance with Assam Panchayat Act, 1994 read with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.
Justice Suman Shyam noted that the member had voted against the petitioner and without her vote, the petitioner would not have been ousted from office. He also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. He found it unnecessary to delve into other aspects of the matter, including the procedural formalities for declaring the member a disqualified candidate.
Case title - ZAKIR HUSSAIN v. THE STATE OF ASSAM AND ANR
Citation: 2022 LiveLaw (Gau) 47
The Gauhati High Court has set aside the life sentence awarded to a man who had killed his own wife after the Court found that at the time of the occurrence, he was suffering from 'mental unsoundness', which was of such a degree that he was unable to understand the consequences of his actions.
With this, the Bench of Justice Suman Shyam and Justice Malasri Nandi acquitted one Zakir Hussain, as it concluded that in all probability, he was suffering from "mental un-soundness" while he killed his wife, and thus, his case would come within the ambit of section 84 of IPC.
Animal Sacrifice During Bakrid Permissible Subject To Statutory Prohibitions: Gauhati High Court
Case Title: HIFZUR RAHMAN CHOUDHURY VERSUS THE UNION OF INDIA AND 5 ORS
Citation: 2022 LiveLaw (Gau) 48
The Gauhati High Court has made it clear that slaughter of animals on the occasion of Bakrid is permissible, subject to the prohibitions contained in various statutes including the Prevention of Cruelty Animal Act, 1960, the Food Safety and Standards Act, 2006 and the Assam Cattle Preservation Act, 2021.
A bench comprising Justices Manash Ranjan Pathak and Manish Choudhury upheld two communications dated June 7 and July 4 issued by the Animal Welfare Board of India and the Assam government respectively, specifying that camels cannot be slaughtered for food at all and wherever the Cow Slaughter Prohibition Act is in force, then slaughtering of cows should not be allowed at all.
Case Title: GOLAP BISWAKARMA VERSUS THE UNION OF INDIA AND ORS.
Citation: 2022 LiveLaw (Gau) 49
The Gauhati High Court has held that the State cannot prematurely retire members of the Assam Rifles Battalion citing 'low medical categorisation' without following the procedure laid down by the statute applicable to the organization.
A single judge bench of Justice Michael Zothankhuma observed referred to the High Court's decision in Prodip Kumar Haloi vs. Union of India and others, where it was held that Rule 26 of the Assam Rifles Rules, 2010 would have to be followed prior to applying Rule 48 (1) (b) of the pension Rules/FR 56 (j), for prematurely retiring a Government Servant due to his low medical category.
Case title - BORSHAHSRI BURAGOHAIN v. THE STATE OF ASSAM
Citation: 2022 LiveLaw (Gau) 50
The Gauhati High Court on Thursday granted bail to a college student (Borshahsri Buragohain/Borshahari Buragohain) who has been accused of writing a Facebook post allegedly supporting a banned terrorist organization United Liberation Front of Asom-Independent (ULFA-I).
The bench of Justice Ajit Borthakur granted her bail by observing that further continuation of her detention may not be required in the interest of the ongoing investigation. She was in judicial custody since May 18, 2022, i.e., for 64 days and was booked u/s 10(a)(iv)/13(1)(b) of the Unlawful Activities (Prevention) Act, 1967.
CASE TITLE: NADRESS TU v. THE STATE OF ASSAM AND ANR
Citation: 2022 LiveLaw (Gau) 51
The Gauhati High Court has made it clear that in offences made out under Section 138 of the Negotiable Instruments Act, the territorial jurisdiction of the Court will be where the cheque is delivered for collection.
Justice Robin Phukan further added that no classification of cheque, as bearer or cross cheque/account payee cheque is made in the NI Act, for the purpose of jurisdiction.
"From the word 'any cheque', used in section 138, it can be well inferred that it may be an account payee cheque or a bearer cheque, dishonor of which on account of insufficiency of fund or exceed the amount would amount to an offence and would attract the penalty," it said.
Case title - Abhijit Gogoi vs The State Of Assam [Bail Appln./1605/2022]
Citation: 2022 LiveLaw (Gau) 52
The Gauhati High Court on Monday denied bail to a 24-year-old man booked under the stringent UAP Act for allegedly making objectionable posts propagating the ideology of the banned organization (ULFA).
Perusing the case diary, the bench of Justice Kalyan Rai Surana noted that the investigation carried out so far implicates the petitioner of making objectionable posts propagating the ideology of the banned organization, which were uploaded by the petitioner on his Facebook Account.
Case Title: KAMAKHYA DAS AND 4 ORS VERSUS THE STATE OF ASSAM AND 7 ORS
Citation: 2022 LiveLaw (Gau) 53
The Gauhati High Court has directed the government of Assam to pay the Home Guards duty allowance in accordance with the Supreme Court's directions in the case of Grah Rakshak, Home Guards Welfare Association vs. State of Himachal Pradesh and Others.
In the said judgement, the Top Court had considered the working conditions of the Home Guards in different States of the Country, especially, the State of Himachal Pradesh, Bombay, and NCT of Delhi.
Taking into consideration the fact that Home Guards were used during the emergency and for other purposes and at the time of their duty they were empowered with the power of police personnel, the Top Court had opined that the State Government should pay them the duty allowance at such rates, total of which 30 days (a month) came to minimum of the pay to which the police personnel of State were entitled.
Gauhati High Court Upholds IOCL Law Officer Appointment Through CLAT-PG Rankings
Case Title : ARIF AHMED v THE UNION OF INDIA AND 3 ORS
Citation: 2022 LiveLaw (Gau) 54
The Gauhati High Court has upheld an advertisement issued by the Indian Oil Corporation last month for filling up posts of Senior Law Officer through CLAT-PG rankings.
A single judge bench of Justice Michael Zothankhuma stated that an employer would know best the type of candidate they require and there is no discrimination or arbitrariness in the employer prescribing the essential qualifications required of a candidate.
Case Title: HINDI TEACHERS TRAINING COLLEGE, NORTH GUWAHATI v. THE UNION OF INDIA AND ORS
Citation: 2022 LiveLaw (Gau) 55
A single judge bench of Justice Achintya Malla Bujor Barua of the Gauhati High Court held that under the National Council for Teacher Education Act, 1993, 'deemed recognition' is given to institutes if they satisfy three conditions, namely:
(i) the institutes are funded by the Central Government or the State Government or the Union Territory;
(ii) have offered a course of training in teacher education on or after the appointed day i.e. when NCTE was established up to the academic year 2017-18;
(iii) fulfils the conditions of Section 14 (3)(a) (adequate financial resources, accommodation, library, qualified staff, laboratory, etc.) and specified by the Central Government by a notification in the Official Gazette.
It further held that such deemed recognition is unconditional and not circumscribed to a limited period of time.
Case Title: S.R. Engineering Construction v. The Commander Works Engineer, Arb. A. No. 7 of 2018
Citation: 2022 LiveLaw (Gau) 56
The Gauhati High Court has held that dismissal of the claim on the ground of locus standi without the opportunity to bring necessary documents on merit and hearing the claims on merit is violation of Section 18 of the A&C Act that provides for equal treatment for parties.
The Bench of Justice Devashis Baruah was hearing an appeal against the order of the lower court passed under Section 34 of the A&C Act whereby the Court rejected the challenge petition of the appellant.
Case title - ANITA VERMA v. THE STATE OF ASSAM AND 4 ORS
Citation: 2022 LiveLaw (Gau) 57
The Gauhati High Court has closed the Public Interest Litigation (PIL) plea raising the issue that Assam Real Estate Regulatory Authority (Assam RERA) is not functioning in accordance with law.
The bench of Chief Justice Rashmin Manharbhai Chhaya and Justice Soumitra Saikia closed the PIL plea as it noted that the Assam State Government has made all endeavors to implement the provisions of the Real Estate (Regulation and Development) Act, 2016 and the Real Estate (Regulation and Development) Rules, 2017 in its true letter and spirit.
The PIL plea was filed last year for the purpose of ensuring that the provisions of the Real Estate (Regulation and Development) Rules, 2017 and the Assam Real Estate (Regulation and Development) Act, 2016 are implemented in its true letter and spirit.
Case Title: JAMIR AHMED CHOUDHURY VERSUS THE STATE OF ASSAM
Citation: 2022 LiveLaw (Gau) 58
The Gauhati High Court recently granted anticipatory bail to an Assam based professor, accused of promoting Islamic system of education and making derogatory remarks against State's Education Minister as well as the Chief Minister.
Jamir Ahmed Choudhary, working as an Associate Professor with SS College booked under Sections 166 (Public servant disobeying law), 153(A) (Promoting enmity between different groups on grounds of religion, etc.), 153(B) (Imputations, assertions prejudicial to national-integration), 120(B) (Criminal conspiracy) and 505 (Statements conducing to public mischief) of IPC.
Gauhati High Court Refuses To Stay Mobile Internet Restrictions During State Recruitment Exams
Case Title : RAJU PROSAD SARMA Vs. STATE OF ASSAM
Citation :2022 LiveLaw (Gau) 59
The Gauhati High Court rejected the prayer for interim orders in a plea challenging notification dated 18.08.2022 temporarily suspending mobile internet connectivity during State recruitment examination.
The impugned order was issued by the Principal Secretary to the Government of Assam, Home and Political Department, invoking the power conferred under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 read with Section 5(2) of the Indian Telegraph Act, 1885. It had mandated that, on 21.08.2022 and 28.08.2022, mobile internet services will remain suspended for 4 hours in 24 districts which had centres of written examination for filling up approximately 30,000 posts for Grade-III and Grade-IV services in different departments in the State. The measure was claimed to have been adopted to facilitate a free, fair and transparent conduct of the examination by curbing mobile phone-enabled cheating.
Case Title: ANIL SINGH and ANR VERSUS THE STATE OF ASSAM AND 4 ORS
Citation :2022 LiveLaw (Gau) 60
The Gauhati High Court was recently called upon to decide the issue with respect to distribution of gratuity amount among legal heirs of a deceased employee of Assam Power Distribution Company Limited, including his illegitimate children.
A single judge bench constituting of Justice Manish Choudhary directed the employer to decide the claims by adhering to the provisions contained in Section 4 of the Payment of Gratuity Act, 1972, Section 16 of the Hindu Marriage Act, 1955 and Section 8, Section 9 and Section 10 r/w Section 3 [1][f] of the Hindu Succession Act, 1956.
Case Title: XXX v. The State of Assam & Ors.
Citation :2022 LiveLaw (Gau) 61
The Gauhati High Court has expressed its serious displeasure over an incident involving alleged misuse of authority and force by traffic personnel against a 'trivially errant' commuter. A Division Bench of Chief Justice R.M. Chhaya and Justice Soumitra Saikia observed,
"It is no doubt true that the authorities have initiated Departmental Proceedings against the erring police personnel and are also investigating the FIR lodged by the wife of the victim. However, as expressed in the body of the petition, for a trivial traffic offence, the police personnel should not and cannot be permitted to take law in their hands. As rightly expressed by the learned Advocate, who has drawn attention of this Court, we stay in a society where rule of law prevails and, therefore, it is eminently necessary for the respondent authorities to impart appropriate training to their police personnel and make them citizen centric while discharging their duties."
Case Title: Md. Rajibul Islam Versus State of Assam
Citation: 2022 LiveLaw (Gau) 62
The Gauhati High Court has directed the release of seized betel nuts as the betel nuts are subject to speedy natural decay and their retention was not required for the purpose of investigation.
The single bench of Justice Robin Phukan has observed that from the date of seizure till date, more than 128 days have already elapsed. There was no allegation of theft in respect of the seized betel nuts. The petitioner has also produced a certificate issued by Gaon Burah and the Chairman of Zutovi Village in respect of purchasing betel nuts from their village.
Case Title: Gaurav Upadhyay v State of Assam and Ors.
Citation: 2022 LiveLaw (Gau) 63
The Gauhati High Court has made it clear that it cannot exercise powers under writ jurisdiction to enforce legal statutory duties of the State, which do not have any corresponding enforceable legal right qua the citizens.
Justice Michael Zothankhuma remarked that if the scope of writ jurisdiction under Article 226 is expanded to such an extent, the Courts will be flooded and become "chock-a-block" with cases.
"It should also be noted that this is not a perfect world. Many things which the State and its instrumentalities are expected to perform as a legal duty and have to in terms of statutes are not being done. If persons are allowed to file writ petitions, praying for a writ of mandamus in respect of alleged breach of legal statutory duties, without having any corresponding enforceable legal right on the part of the applicant, the Courts would be a chock-a-block with cases, having nothing to do with the applicants. The same could/would lead to busybodies filing a deluge of writ petitions, which would not be in consonance with the judgments of the Apex Court..."
Case title - Victor Das v. The State of Assam
Case Citation: 2022 LiveLaw (Gau) 64
The Gauhati High Court granted absolute bail to Victor Das who has been accused of spreading fake news regarding Assam Direct Recruitment Examination 'Scam' so as to derail the entire examination procedure.
Here it may be noted that Das was arrested on September 9, 2022, forwarded to judicial custody on September 10, 2022, and was granted interim bail on September 16, 2022 by the High Court, now on September 29, 2022, the interim bail was made absolute by the bench of Justice Robin Phukan.
Case Title: The NIA vs. Akhil Gogoi
Citation: 2022 LiveLaw (Gau) 65
In a significant order, the Gauhati High Court's full bench has held that an order refusing to extend the period of detention of an accused beyond the period of 90 days up to 180 days under Section 43 D of the UAPA-1967 would be in the nature of a final order thus, the same is appealable under Section 21 of the NIA Act, 2008.
The Full bench of Justice Achintya Malla Bujor Barua, Justice Manish Choudhury, and Justice Soumitra Saikia concluded that an order refusing to extend the period of detention of an accused beyond the period of 90 days up to 180 days in terms of Section 43 D of the UAPA-1967 is a 'final order' as when such an order is passed, the proceedings come to an end and the rights of one of the parties [accused persons] are finally determined [to remain not in custody]
The Court further held that in such an order, the requirement of the other party [NIA] is also finally determined vis-a-vis its right to have the detention of the accused persons extended beyond 90 days up to 180 days.
Case Title: Dhyan Foundation v. State of Assam and 7 Others
Citation: 2022 LiveLaw (Gau) 66
The Gauhati High Court has reiterated that an accused person can be handed over the interim custody of cattle seized consequent to an alleged offence under the Prevention of Cruelty to Animals Act, 1960 ('PCA Act').
Single bench of Justice Robin Phukan found it worthwhile to reproduce the following observations of the Supreme Court in Manager, Pinjrapole Deudar & vs. Chakram Moraji Nat & Ors (1998):
"Under Section 35(2) of the [PCA] Act, the Magistrate has discretion to hand over interim custody of the animal to Pinjrapole but he is not bound...In a case where the owner is claiming the custody of the animal, Pinjrapole has no preferential right. In deciding whether the interim custody of the animal be given to the owner who is facing prosecution, or to the Pinjrapole, the following factors will be relevant: (1) the nature and gravity of the offence alleged against the owner; (2) whether it is the first offence alleged or he has been found guilty of offences under the Act earlier; (3) if the owner is facing the first prosecution under the Act, the animal is not liable to be seized, so the owner will have a better claim for the custody of the animal during the prosecution; (4) the condition in which the animal was found at the time of inspection and seizure; (5) the possibility of the animal being again subjected to cruelty."
Case title - MANISH SISODIA v. THE STATE OF ASSAM AND ANR
Case Citation: 2022 LiveLaw (Gau) 67
The Gauhati High Court has refused to quash a Criminal Defamation case filed by Assam's Chief Minister Himanta Biswa Sarma against the Deputy Chief Minister of Delhi, Manish Sisodia.
"...the petitioner has not been able to make out any case for quashing of the proceedings (of case) under sections 499/500 IPC, which is pending for disposal before the Court of the learned Chief Judicial Magistrate, Kamrup (M) at Guwahati. Thus, this petition fails and the same is dismissed," the operative part of the order of the bench of Justice Kalyan Rai Surana reads.
Case Title: Fazluzzaman Mazumder v. Union of India and Others
Citation: 2022 LiveLaw (Gau) 68
The Gauhati High Court on Monday dismissed a lawyer's plea against administration of oath in God's name to everyone, including non-believers, under the Oaths Act, 1969.
Fazluzzaman Mazumder claimed that he has 'no belief in existence of God' and challenged Section 6 of the Act which prescribes Form 1, requiring a witness to swear in the name of God as an affirmation of stating truth and nothing but the truth.
The division bench of Chief Justice R. M. Chhaya and Justice Soumitra Saikia dismissed the petition on ground that there is no cause of action nor is there any factual basis to argue how the petitioner's fundamental rights under Articles 25 and 26 were being violated. "In the whole petition there is not a whisper about the fact as to how the petitioner is affected," Court said.
Case Title: Dr. Anupam Sarma and 2 Others v. State of Assam
Citation: 2022 LiveLaw (Gau) 69
The Gauhati High Court on Monday allowed the bail plea of three doctors who were in custody for the alleged offence of fabrication of post mortem reports in the Dhula rape and murder case, after allegedly having accepted bribe.
The High Court stated that:
"By virtue of Section 120B of the IPC, the present accused cannot be roped with the substantive offences i.e. under section 376 and 302 of the IPC, which were allegedly committed by accused Krishna Kamal Baruah, who has already been charge sheeted after investigation."
Case title - AYUB HUSSAIN @ AYUB ALI v. THE STATE OF ASSAM [Case No. : CRL.A(J)/1/2019]
Case Citation: 2022 LiveLaw (Gau) 70
The Gauhati High Court recently upheld the conviction of a man who 'brutally' killed his 2.5 years old baby girl with a sharp weapon due to a quarrel arising between himself and his wife out of suspicion of an illicit affair maintained by the wife with another person.
The bench of Justice Suman Shyam and Justice Mitali Thakuria relied upon the testimony of the wife of the convict (and mother of the deceased) who, the Court noted, had not only seen the occurrence but had also truthfully deposed about the incident before the Court.
MEGHALAYA HIGH COURT
Case Title: Benedic R. Marak v. State of Meghalaya & Ors.
Citation: 2022 LiveLaw (Meg) 1
The Meghalaya High Court has refused to interfere with a notice issued by the Governor of Meghalaya under Rule 36(5) of the Assam and Meghalaya Autonomous Districts (Constitution of District Councils) Rules, 1951 ("the Rules"), whereby the District Council had been summoned to take up a no-confidence motion against the Executive Committee of the Garo Hills Autonomous District Council ("ADC").
Stressing upon the need to urgently conduct a floor test, Justice H.S. Thangkhiew observed:
"It has to be kept in mind that the District Council as constituted under the Sixth Schedule is a democratic legislative institution apart from other functions, wherein members are elected, and to prove majority or strength in the house in such institutions, the Hon'ble Supreme Court, in a number of decisions has consistently held that in the event of conflicting alliances or claims, a floor test can be directed to avoid uncertainty and to ensure smooth running of a democratic institution which would in turn ensure stability."
Case Title: Megha Technical & Engineers Pvt. Ltd. v. State of Meghalaya & Ors.
Citation: 2022 LiveLaw (Meg) 2
The Meghalaya High Court has nullified the Meghalaya Cement Cess Act, 2010 ("the Act"), holding it to be arbitrary, illegal and unconstitutional.
While rebuking the State for irrationally raising revenue through the legislation, a Division Bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh held,
"The principle is too well established to be questioned. Yet, it will not do for a State in a constitutional republic wedded to the rule of law to suggest that it may indulge in arbitrary or irrational or illegal generation of funds without being liable to return the same upon the Court finding the process to be illegal."
Case title - Sanjeeb Ch. Marak Vs. State of Meghalaya & ors.
Case Citation: 2022 LiveLaw (Meg) 3
The Meghalaya High Court upheld the removal (sans inquiry) of a member of the State Police Force who was found had passed on information pertaining to police operations and movements to a banned and extremist outfit by the name of Garo National Liberation Army.
Finding a justification in the move to remove him from service without giving him an opportunity to defend the charges leveled against him, the Bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh observed thus:
"When a member of the police force was found betraying his own force and supplying information to an extremist outfit that the police organisation was trying to deal with, it was justifiable on the part of the disciplinary authority to consider it to be not reasonably practicable to afford the writ petitioner an opportunity of dealing with the charge against him in the course of any inquiry."
Case Title: Directorate of Revenue Intelligence, Shillong Regional Unit, Shillong v. Shri Ajay Babu Manda
Citation: 2022 LiveLaw (Meg) 4
The Meghalaya High Court has held that Magistrate cannot employ his power under Sections 451/457, Cr.P.C. when trial or inquiry has not been set in motion.
Sections 451 and 457 deal with an order for custody and disposal of property pending trial and procedure by police upon seizure of property respectively.
While setting aside the order of the Magistrate under such Sections, the Single Judge Bench of Justice W. Diengdoh observed,
"…at the time of passing of the original impugned order, the matter was still under investigation by the Customs officials and the stage of prosecution has not yet commenced as evident from the fact that the relevant sanction for prosecution by the Principal Commissioner of Customs or Commissioner of Customs have not yet been issued to enable the Court to take cognizance of the offence. Therefore, the learned Magistrate in the absence of a trial or inquiry could not have passed the said impugned order under Section 451/457 Cr.P.C."
Case Title: Shri Delican Shadap & Anr. v. Smti. Dal Nongtri & Anr.
Citation: 2022 LiveLaw (Meg) 5
The Meghalaya High Court has held that a plaintiff may file application under Section 151 r/w Order XX Rule 6A, where suit filed by him is conclusively decided but no formal decree was drawn to that effect.
A Single Bench of Justice H. S. Thangkhiew observed,
"These being matters of procedure, in the considered view of this Court, as there was no decree drawn up, the petitioner is required to file an application under Section 151 read with Order 20 Rule 6-A CPC, before the lower Court below for drawing the decree in accordance with the order dated 04.07.2016."
Case Title: Cheerfulson Snaitang v. State of Meghalaya
Citation: 2022 LiveLaw (Meg) 6
A Division Bench of the Meghalaya High Court comprising of Chief Justice Sanjib Banerjee and Justice W. Diengdoh held that rubbing male organ on the vagina or urethra of prosecutrix despite she wearing her underpants, would still amount to penetration for the purpose of Section 375(b), IPC.
"Penetration for the purpose of Section 375 of the Penal Code does not have to be complete. Any element of penetration would suffice for the purpose of the relevant provision. Further, Section 375(b) of the Penal Code recognises that insertion, to any extent, of any object into the vagina or urethra would amount to rape. Even if it be accepted that the appellant herein forced his organ into the vagina or urethra of the victim despite the victim wearing her underpants, it would still amount to penetration for the purpose of Section 375(b) of the Penal Code."
Case Title: M/s Saj Food Products Pvt. Ltd. Versus State of Meghalaya & ors
Citation: 2022 LiveLaw (Meg) 7
The Meghalaya High Court bench consisting of Chief Justice Sanjib Banerjee and Justice W. Diengdoh has ruled that rusk is not bread and the Value Added Tax (VAT) exemption available to bread in the state of Meghalaya must be extended to rusk.
The court noted that the petitioner may be using the same raw material as in the manufacture of bread, whereupon the petitioner manufactures a form of bread and refines the same to rusk. Thus, it is plain to see that the petitioner manufactures bread and subjects such bread to a further process, which activity falls within the meaning of "manufacture" as used in the Meghalaya Value Added Tax Act, 2003, for an altogether different product to be produced.
Case Title: Miss Bisakha Geonka v. North Eastern Indira Gandhi Regional Institute of Health & Medical Sciences & Anr.
Citation: 2022 LiveLaw (Meg) 8
In an interesting and peculiar development, the Meghalaya High Court has come to the rescue of a National Eligibility Cum Entrance Test (NEET) candidate who missed her counselling because e-counselling invitation mail was delivered in the spam folder of her e-mail. While allowing the writ petition, a Single Judge Bench of Justice H.S. Thangkhiew observed,
"In this age of technology and in the prevalent COVID situation, a lot of such lapses have occurred especially when it concerns matters like these which involves communication through digital platforms. It is undisputed that the petitioner as per the merit list for the second counselling was placed at No. 4, and as such was assured of a seat for the MBBS Course, had she attended the counselling as scheduled, but however, due to the situation that had prevented her from appearing for the e-counselling, she is at risk of being deprived of a seat to pursue the MBBS Course."
Case Title: Union of India & Ors. v. Dharamvir Singh
Citation: 2022 LiveLaw (Meg) 9
In an interesting judgment, a Division Bench of the Meghalaya High Court comprising of Chief Justice Sanjib Banerjee and Justice W. Diengdoh ruled that 'disciplinary proceedings' should be sparingly quashed in their entirety, only when the 'show-cause notice' leading to such proceedings is bad.
In other words, they should only be quashed in their entirety, when the proceedings were bad ab initio. The Bench held,
"Such a drastic order may be passed, but only upon the forum recording a satisfaction that the very show-cause notice on the basis of which the disciplinary proceedings were initiated was bad. Judicial precedents instruct that it is a tall order for a show-cause notice to be quashed, just like an FIR may be quashed only in the rare case when no ingredients of any offence is made out therein."
Case Title: North Eastern Indira Gandhi Regional Institution of Health and Medical Sciences & Anr. v. Bisakha Goenka
Citation: 2022 LiveLaw (Meg) 10
"In this case, when it was fairly obvious that if the writ petitioner had merely attended the e-counselling, she would have obtained the seat, and there is no reason to believe that the writ petitioner would have deliberately acted to her detriment, the window that opened up fortuitously permitted the exercise of the discretion by the writ court."
Case title - Shri. Skhemborlang Suting & Anr. v. State of Meghalaya & Anr.
Citation: 2022 LiveLaw (Meg) 11
The Meghalaya High Court recently quashed FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife were living with each other as husband and wife and out of the said union, a child was born.
The Bench of Justice W. Diengdoh however stressed that such cases of consensual or voluntary sexual intercourse with an underage girl by an adult man while they are living as husband and where the wife gives birth to a child, are complex.
Case Title: Morningstar Nongsiej v. State of Meghalaya
Citation: 2022 LiveLaw (Meg) 12
The Meghalaya High Court has recently held that the expression "came on top of me" must be construed as a euphemism for commission of 'penetrative sexual assault'. A Division Bench Chief Justice Sanjib Banerjee and Justice W. Diengdoh observed,
"The later statement of the victim recorded in course of her deposition at the trial must be seen in the milieu of how a woman in this country, particularly a girl child, would be intimidated in the foreign and suffocating atmosphere of a court and in the presence of rank strangers to describe how she had been violated. The expression, "came on top of me" must be seen to be a euphemism for the offender having violated her in the sense of having committed penetrative sexual assault."
Case title - Sparding Nongbri Vs. State of Meghalaya
Case Citation: 2022 LiveLaw (Meg) 13
The Meghalaya High Court upheld the conviction of a man for raping his minor stepdaughter as it noted that the confession of the accused as recorded in his statement under Section 164 CrPC had completely corroborated what the victim had to say.
With this, the Bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh also held that if the confessional statement fills up any lacuna in the prosecution case, the court can find the basis of conviction in such statement while relying on the overall evidence to satisfy itself that the confessional statement was relevant.
Case Title: The Chief Engineer (PWD) (National Highways) Government of Meghalaya, Shillong v. M/s. BSC – C&C JV, CRP No. 11 of 2022
Citation: 2022 LiveLaw (Meg) 14
The High Court of Meghalaya has held that a writ petition is maintainable against an order of the arbitral tribunal framing issue in respect of a claim that has finally been decided in the interim award.
The Single Bench of Justice H.S. Thangkhiew has held that an arbitrator would be acting without jurisdiction if it frames an issue qua a claim that has already been decided in the interim award.
The Court observed that the arbitral tribunal becomes functus officio in respect of a claim which is finally decided at the interim stage under Section 31(6) of the A&C Act, therefore, lacks inherent jurisdiction to decide the same issue again.
Case Title: HDFC Bank Ltd. Mawlai Nonglum Branch & Anr v. Sri Baklai Siej & Anr.
Citation: 2022 LiveLaw (Meg) 15
The Meghalaya High Court has reiterated that for an offence under Section 138 of the Negotiable Instruments, Act to be made out, the dishonoured cheque must have been issued by the account holder under his name and signature.
Justice W. Diengdoh noted that only the holder of the account on which the cheque is drawn could be made liable and such culpability cannot be extended to others except as provided under Section 141 NI Act which deals with offences by and on behalf of the company or partnership, where the signatory to the cheque may be a Director of the company or a Partner of a partnership firm.
Case Title: Jasmine Bonny Agitok Sangma v. Union of India & Ors.
Citation: 2022 LiveLaw (Meg) 16
A Division Bench comprising of Chief Justice Sanjib Banerjee and Justice W. Diengdoh of Meghalaya High Court has held that no order can be passed under Section 148A(d) of the Income Tax Act, 1961, without taking into consideration reply filed by an assessee to the initial notice issued under Section 148A(b).
In the instant case, an initial notice under clause (b) of Section 148A of the Act for assessment year 2015-16 was issued to the assessee (petitioner herein) on March 23, 2022. Such notice required the assessee to show cause why a notice under Section 148 of the Act should not be issued. The petitioner responded to the show-cause notice and such reply was duly lodged.
Set Up Adequate Number Of Drug Rehabilitation Centres In State: Meghalaya High Court To State Govt
Case title - M. Kharkongor v. State of Meghalaya [PIL No. 13 of 2018]
Citation : 2022 LiveLaw (Meg) 17
The Meghalaya High Court has asked the state government to set up an adequate number of drug rehabilitation centres in the state with appropriate facilities so that parents, with a child who is afflicted with drug addiction, don't have to look beyond the State for appropriate rehabilitation centres.
The Bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh issued this order while disposing of a Public Interest Litigation (PIL) plea filed by one M. Kharkongor over the need to tackle the drug menace in the state.
Case: Mohammad Saimullah vs . State Of Meghalaya
Citation: 2022 LiveLaw (Meg) 18
The Meghalaya High Court observed that the act of holding the hands of a child and saying that her hands are beautiful cannot be considered an act of sexual assault under POCSO Act.
"It is to be noted that the place of occurrence is located near the residence of the alleged victim girl. Near the place, a group of persons were playing cards and while she was playing the petitioner asked her for a glass of water to which she complied by bringing the said water to him. It is apparent that the place of occurrence is a public place with a number of people present and the alleged incident happened in broad daylight. The fact that the petitioner had held and commented on the hands of the alleged victim girl which contact is probably of a few seconds, the same cannot be read to imply that there is sexual intent on the part of the petitioner. At best, a non-sexual purpose of the contact can be presumed."
Case title - Armishal L. Marshillong v. State of Meghalaya & ors
Citation: 2022 LiveLaw (Meg) 19
The Meghalaya High Court recently reduced the sentence imposed on a 27-year-old man who had been convicted of raping a 3.5-year-old girl as the court noted that he had confessed his crime and that he may not have been cruel in dealing with the minor girl and may have realized his mistake within a short time.
Reducing his sentence from 20 years' R.I. to 15 years' R.I. together with the fine of Rs. 50K, the Bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh observed thus:
"There is no doubt that there is an element of remorse that comes out from the statement. It is also apparent that it was a matter of the moment when the appellant may have been overcome with lust, but the appellant may not have been cruel in dealing with the minor girl and may have realised his mistake within a short time as he did not detain the minor girl for any great length of time."
Case Title: Jaguar Overseas Limited versus Union of India & Anr.
Citation: 2022 LiveLaw (Meg) 20
The High Court of Meghalaya has held that if a contractor/ tenderer does not accept the names of the possible arbitrators that are listed on the panel prepared by the tenderee, the panel cannot be enforced since there would always be justifiable doubts regarding the independence or impartiality of the empanelled arbitrators.
The Single Bench of Chief Justice Sanjib Banerjee held that even if a person is named as an arbitrator in the arbitration agreement entered into before the occurrence of the dispute, and whose appointment would otherwise fall foul of the Seventh Schedule, a party is not barred from objecting to the agreed arbitrator taking up reference. The Court added that the proviso to Section 12(5) of the Arbitration and Conciliation Act, 1996 (A&C Act) specifically refers to a post- dispute waiver of the applicability of the Seventh Schedule and not a pre-dispute waiver.
Case Title: Tengsal D. Sangma v. State of Meghalaya & Ors.
Citation: 2022 LiveLaw (Meg) 21
The Meghalaya High Court has set aside the conviction and the ensuing punishment of a murder accused due to failure of the Trial Court to discharge its duties properly as provided under Section 313 of the Code of Criminal Procedure, 1973 ('Cr.P.C.'). The Court was of the opinion that Trial Courts are required to attract 'specific attention' of accused to those materials which are likely to be considered while recording conviction.
While passing an order for re-trial from the stage of Section 313, a Division Bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh observed,
"In the present case, the records do not reveal that the exercise was appropriately conducted by the trial court. The recording of the statement of the appellant under Section 313 of the Code is without any questions being put to the appellant and without the material evidence that would weigh against the appellant being specifically pointed out to the appellant."
Assessee To Be Given Minimum 7 Days Time To Respond To The Reassessment Notice: Meghalaya High Court
Case Title: Highgrowth Commodities Trade Private Limited Versus The Principal Commissioner of Income Tax & ors
Citation : 2022 LiveLaw (Meg) 22
The Meghalaya High Court bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh has held that the assessee should be given a minimum of 7 days' time to respond to the reassessment notice.
The petitioner/assessee has challenged the notice under Section 148 of the Income Tax Act, 1961 on the grounds that it has been issued without following the mandatory procedure under Section 148A of the Income Tax Act.
Case Title: North Eastern Electric Power Corporation Ltd. (NEEPCO) v. Patel-Unity JV, Arb. A. No. 1/2019
Citation: 2022 LiveLaw (Meg) 23
The Meghalaya High Court has held that a court exercising powers under Section 9 of the A&C Act cannot add conditions to an unconditional bank guarantee.
The Division Bench of Chief Justice Sanjib Banerjee and Justice W.Diengdoh held that mere plea of fraud would not be a ground for the court to stay invocation of an unconditional bank guarantee unless a strong prima facie case is made out on such a ground.
The Court further held that merely because no attempt has been made at the invocation of the bank guarantee since the date of injunction, that would not mean that the matter has attained finality and the aggrieved party has accepted the impugned order.
Case Title: M/s Maya Construction versus Union of India & Ors.
Citation: 2022 LiveLaw (Meg) 24
The Meghalaya High Court has ruled that in a case where the issue of whether the claim raised by a party is barred by limitation or not calls for an inquiry, the Chief Justice or his designate should allow the objection to be decided by the arbitral tribunal in accordance with law.
The Single Bench of Chief Justice Sanjib Banerjee held that though in an open and shut case where it is apparent that the claim can no longer be pursued, or where the request for setting up an arbitral tribunal is hopelessly barred by limitation, the Court may dismiss the petition for reference to arbitration; however, when an arguable case is made out and the issue of limitation calls for an enquiry, the Court should yield to the authority of the arbitral tribunal.
Case title - Olius Mawiong & Anr. Vs. State of Meghalaya & Anr. [Crl.Petn. No. 22 of 2022]
Citation: 2022 LiveLaw (Meg) 25
The Meghalaya High Court recently quashed FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife (a minor) were living with each other as husband and wife.
The Bench of Justice W. Diengdoh stressed that though POCSO Act punishes the act of sexual penetration inflicted upon a minor, yet, if other attending factors such as a case of consensual sex within the bond of marriage will not be taken into consideration then the cause of justice wouldn't be served.
"The POCSO Act speaks of penetrative sexual assault and aggravated penetrative sexual assault to indicate that an act of sexual penetration inflicted upon a minor will attract the punishment for the same under the relevant provisions of the said Act. However, in a case where other attending factors such as a case of consensual sex or sex within the bond of marriage albeit between persons who are still minors or one of whom is a minor, are not taken into account in the correct perspective, the course or cause of justice may not have been served, but only the letter of the law fulfilled," the bench remarked.
Case title - Pyniarlang Kurkalang & Anr. v. State of Meghalaya & Anr. [Crl.Petn. No. 28 of 2022]
Citation: 2022 LiveLaw (Meg) 26
The Meghalaya High Court on Tuesday requested the Meghalaya State Government to conduct an extensive awareness program to highlight the aspects of the danger of underaged marriage or cohabitation to avoid unnecessary conflict with the relevant provisions of law.
The bench of Justice W. Diengdoh ordered this while quashing a POCSO Case before the Court of Special Judge, (POCSO), Shillong as it noted the accused and the victim were living with each other as husband and wife with their baby.
Case Title: Mehun Lamurong v. State of Meghalaya
Citation: 2022 LiveLaw (Meg) 27
The Meghalaya High Court has held that redness and swelling in the vaginal walls by a woman who was sexually assaulted coupled with difficulty in passing urine are sufficient proofs of penetration, even though 'complete insertion' of male organ is not specifically alleged.
While dismissing the appeal filed by a person convicted for committing penetrative sexual assault on a young girl, a Division Bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh made it clear that for the offence of penetrative sexual assault, even the slightest degree of penetration would suffice.
Case Title: Shri. Kwantar Khongsit & Ors. v. State of Meghalaya & Ors.
Citation: 2022 LiveLaw (Meg) 28
The Meghalaya High Court, on Wednesday, quashed and set aside charges levelled against a man under the provisions of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') for allegedly having 'consensual sex' with his minor wife.
A Single Judge Bench of Justice W. Diengdoh took note of the peculiar circumstances of the case and observed,
"…in the event it is apparent that a young couple are in a relationship where love is the deciding factor even to the extent that it has culminated into a marriage relationship, it may be the case that in such a relationship even if the girl involved is legally a minor, if she has the capacity to procreate and her age is perhaps ranging from about 16 to 17 years and more but below 18 years, it would not shock the conscience of this Court if hypothetically speaking such a girl enters into a marriage relationship on her own free will, as oppose to a child of about 12 or 13 years voluntarily entering into a marriage relationship."
Solitary Instance Of Prostitution In A Place Does Not Make It A "Brothel": Meghalaya High Court
Case Title: Shri Sunil Kumar Singha Vs. State of Meghalaya & Ors
Citation :2022 LiveLaw (Meg) 29
The Meghalaya High Court recently observed that the presence of one girl with a man, allegedly indulging in prostitution, will not denote the place to be a "brothel".
The observation came from Justice W. Diengdoh while relying on the case of Suseela v. State, 1982 CRI. L. J. 702:
"When the prosecution proved the presence of only one girl in the premises and a single instance of prostitution, the premises cannot be held to be "used for brothel". Solitary instance of prostitution in a place does not make the place a "brothel"."
Case Title : Shri Anwar Hussain Sheikh Vs. State of Meghalaya & Anr.
Citation :2022 LiveLaw (Meg) 30
The Meghalaya High Court recently observed that it is incumbent upon the Court, hearing a POCSO case, to be certain of the age of the victim before proceeding with the matter.
The observation came from Justice W. Diengdoh:
"An offence against a child has to be tried by the Special Court. However, it is incumbent upon the Court to be certain right from the inception of a case that the case before it involves a child by the definition found in the said POCSO Act. In this context, the age determination is very vital before further proceedings are initiated."
Pension & Other Retiral Benefit Rules Have To Be Interpreted Liberally: Meghalaya High Court
Case Title: Shri. Anwarul Kadir Vs. State of Meghalaya & Ors.
Citation :2022 LiveLaw (Meg) 31
The Meghalaya High Court recently observed that rules with regard to pension and other retiral benefits are beneficial in nature and have to be interpreted liberally.
The observation came from Justice H. S. Thangkhiew:
"In the scheme of things, especially in matters of pension and grant of terminal benefits, it has to be kept in mind that, provisions or rules with regard to pension, which are beneficial in nature have to be interpreted liberally. In the instant case, the petitioner had taken Voluntary Retirement (in 2005), after serving the requisite number of years to entitle him to pension and other terminal benefits. As such, to give a interpretation that he is not entitled to DCRG, as the Notification amending the provision was issued only on 06.04.2015, cannot be taken to be a justifiable ground to deny the DCRG to the petitioner. I find force in the submission of the learned counsel for the petitioner on his contention that, the notification is an amendment which is more clarificatory in nature, and if the legislative intent was to exclude Voluntary Retirement, the same would have been made clear in the rules itself."
Case Title: Shri. Adelbert Marbaniang & Anr. Vs. State of Meghalaya & Ors.
Citation :2022 LiveLaw (Meg) 32
The Meghalaya High Court, while quashing a POCSO FIR against a minor's partner, reiterated that rigors of the Act may not be applied to break down a happy family relationship. Such cases must be decided by taking a sympathetic view towards the accused, who is in a consensual relationship with the minor, in the instant case almost 18 years of age.
The observation came from Justice W. Diengdoh while disposing of the plea preferred by the POCSO accused and his child-bearing minor partner. The couple had been living together like husband and wife.
Case Title: Shri. Jeffrey Diengdoh & Anr. v. State of Meghalaya & Ors.
Citation :2022 LiveLaw (Meg) 33
The Meghalaya High Court has quashed charges under the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') against a husband for having 'consensual' sexual relationship with his minor wife. A Single Bench of Justice W. Diengdoh observed,
"Notwithstanding the fact that a proper criminal proceeding cannot be cut short without very strong and compelling circumstances which strikes at the very root of personal liberty, particularly that of the accused, the peculiar facts and circumstances has to bear testimony to move the hand of the court especially in exercise of its inherent powers."
Case Title: Shri Bremingstar Mylliem Vs. State of Meghalaya
Citation :2022 LiveLaw (Meg) 34
The Meghalaya High Court recently expressed its displeasure over incompetency of District Council Court which have been authorised by the Governor to take up heinous offences involving tribals and attracting harsh punishment.
A bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh remarked that the State would do well to consider the quality and ability of Judges manning District Council Courts before conferring authority on them to deal with serious matters.
It directed the Law Secretary of the State to ensure future steps are taken cautiously before conferring authority on District Council Courts or Judges "ill-equipped to administer justice" in accordance with the basic tenets of law.
Case Title : Smti. Bernadeth Marwein Vs. Smti. Cynthia Khongwet
Citation :2022 LiveLaw (Meg) 35
The Meghalaya High Court recently observed that Article 137 of the Limitation Act applies to applications made under Section 383 of the Indian Succession Act which for revocation of a succession certificate.
Justice H. S. Thangkhiew observed:
"Article 137 of the Limitation Act, provides for 3(three) years as a period of limitation, on an application for which no period of limitation is provided elsewhere in the division. As the Succession Act, does not prescribe a specific period of limitation in such matters, it would thus imply that Article 137 be applied."
Case Title : Smti Dehila D. Sangma Vs. State of Meghalaya & Ors
Citation: 2022 LiveLaw (Meg) 36
The Meghalaya High Court has reiterated that law assists only those who are vigilant with their rights and not those, who sleep thereupon.
The observation came from Justice W. Diengdoh:
"The maxim "Vigilantibus Non Dormientibus Jura Subveniunt" which means that the law assists those who are vigilant with their rights and not those that sleep thereupon is very much applicable to the case of the petitioner as regard the approach to the authority with the representation for re-survey and re-measurement of the land acquired considering the fact that there is a gap of almost 27(twenty-seven) years from the year of acquisition which is 1983 to the year 2010 when the first representation was made."
Case Title: Shri Thwen Marngar & Anr. Vs. The Marwir Village Dorbar & Ors.
Citation: 2022 LiveLaw (Meg) 37
The High Court of Meghalaya recently observed that a resolution prohibiting two senior citizens from using a village road for transportation of their produce violated their fundamental rights and is manifestly illegal, discriminatory and at the same time punitive in nature.
The resolution was passed against the two men by Marwir Village Dorbar after they refused to give No Objection Certificates (NOCs) to part with a portion of their individual lands for proposed construction of a motorable road in the area.
Justice H. S. Thangkhiew said:
"As observed earlier, the resolution dated 24.04.2019, is in violation and in contravention of the petitioners' fundamental rights, as it has imposed restrictions on the movement of the petitioners, as also preventing them from transporting their produce and essential commodities which is manifestly illegal, discriminatory and at the same time punitive which militates against and offends Articles-14, 19 and 21 of the Constitution of India. The resolution dated 24.04.2019 therefore being patently illegal and arbitrary, is accordingly quashed and set aside."
Case Title: The Union of India & ors. Vs. Balbir Singh Yadav
Citation: 2022 LiveLaw (Meg) 38
The High Court of Meghalaya recently ruled that merely because a personnel of Assam Rifles occupied a clerical post for a few months, would not make him entitled to the benefits which people on such positions in the central armed force gained on account of a judgement passed on August 23 in 2012.
The division bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh said:
"Merely because the writ petitioner occupied the clerical post for a few months or even a year before he was assigned to the general cadre would not entitle the writ petitioner to any of the benefits that persons in clerical posts in Assam Rifles gained as a virtue of the said judgment of August 23, 2012. There could have been no other view of the matter."
Interviews Mostly Guided By Nepotism In India: Meghalaya HC Bats For Transparent Selection Processes
Case Title : Pynskhemlang Nongrang Vs. The Directorate of Soil and Water Conservation & ors
Citation: 2022 LiveLaw (Meg) 39
The Meghalaya High Court has voiced its concern over 'favouritism' and 'nepotism' affecting government's recruitment drives. While referring to Articles 14, 15 and 16 of the Constitution that guarantee equality and non-discrimination, Chief Justice Sanjib Banerjee observed,
"Just as religion, race, caste, sex, descent, place of birth, residence are to be kept out of the consideration, favouritism and nepotism would also have no role to play in the process of selection. At the end of the day it has to be a fair process and a reasonable procedure adopted for the selection; or it would fall foul of the constitutional ethos."
Appeal U/S 21 NIA Act Not Maintainable Against Order Framing Charges: Meghalaya High Court
Case Title: Dimchuingam Ruangmei Vs. The National Investigation Agency
Citation: 2022 LiveLaw (Meg) 40
The Meghalaya High Court has held that an order framing charges under stringent provisions of UAPA cannot be challenged in appeal under Section 21 of the National Investigation Agency Act.
A bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh observed that the scheme of the NIA Act envisages speedy process of trial and finality of action. Thus, the appeal provision in Section 21 of the NIA Act must be read exactly as it says and a broader interpretation thereof that would stretch the process would not be permissible.
Case title - Smti. Anjana Wahlang Vs. State of Meghalaya
Case Citation: 2022 LiveLaw (Meg) 41
The Meghalaya High Court on Thursday granted bail to a man booked under UAPA for allegedly posting on Facebook that the Chief Minister of the State, Conrad Kongkal Sangma should be killed by Hynniewtrep National Liberation Council (HNLC).
For the uninitiated, the HNLC is an insurgent group that operates in Meghalaya's Khasi and Jayantia hills region. It aims to develop Meghalaya as a province exclusively for the Khasi tribe and free it from 'domination' by the Garo tribe. The group took responsibility for many violent incidents that have taken place in the state in recent past.
The bench of Justice W. Diengdoh took into account the statement of the accused that he was under the influence of alcohol and was alone at his home when he started browsing his Facebook account but he could not remember whether he had posted anything on his Facebook page.
Case title - Bikonia Sutnga vs Woodland Khongthiem & anr
Case Citation: 2022 LiveLaw (Meg) 42
The Meghalaya High Court recently reproved the state government for its failure to challenge the order and judgment of the trial court acquitting a man/accused who allegedly raped and impregnated his stepdaughter.
The bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh also found fault with the state government's act of not conducting a DNA test to ascertain who may have been the father of the child born to the rape victim.
"It is somewhat surprising that the State did not prefer an appeal or try to get to the bottom of the matter by insisting on a DNA test to be conducted. Sexual abuse of children is a social malaise that is deep-rooted and if the State does not treat the matter seriously and confines its role to the mere prosecutor's job that it hasto discharge in law, the larger menace may not be arrested," the Court observed.
Case title - Swill Lhuid v. State of Meghalaya & ors [Crl.A.No.17/2022]
Case citation: 2022 LiveLaw (Meg) 43
The Meghalaya High Court has observed that for the purpose of the POCSO Act, 'Aggravated Penetrative sexual assault' does not require deep or complete penetration and even the slightest amount of penetration would constitute the offence.
With this, the bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh confirmed the conviction of a man under Section 5(m) of the POCSO Act who was sentenced to 15 years of rigorous imprisonment by the trial court for committing rape upon a 7.5-year-old girl.
Case title - Silvestar Khonglah & Anr. Vs. State of Meghalaya & Anr. [Crl. Petn. No. 45 of 2022]
Case Citation: 2022 LiveLaw (Meg) 44
While quashing POCSO charges against a minor's partner, the Meghalaya High Court has observed that the term 'sexual assault' as per the POCSO Act cannot be attributed to an act where there is mutual love and affection between a young couple (boyfriend and girlfriend).
The observation came from the bench of Justice W. Diengdoh while disposing of the plea preferred by the POCSO accused and the mother of the victim on mutual understanding.
Sexual Activity With Minor Based On "Bedrock Of Love": Meghalaya High Court Quashes POCSO Case
Case Title: Shri Manik Sunar and 2 Others v. State of Meghalaya
Citation: 2022 LiveLaw (Meg) 45
The Meghalaya High Court, while dealing with a petition filed by the petitioner-accused charged with offences under POCSO and IPC, ordered for the quashing of the offences on grounds that the alleged victim was in a consensual relationship with the accused.
The Court took note of the statement of the girl who stated that the sexual relationship was based on the bedrock of love and of the fact that the alleged victim had in fact married the petitioner-accused upon attaining majority. The single bench of Justice W. Diengdoh noted:
"In cases of this nature, since it is evident that the alleged aggrieved person has indicated that she is no longer interested in pursuing with the matter and all those who are involved are also not keen to prosecute the matter, it may perhaps be a futile exercise for the prosecution to ensure conviction of the accused under such circumstances."
Case Title: Riewad Vicharwant Warjri and Another v. State of Meghalaya and Others
Citation: 2022 LiveLaw (Meg) 46
The Meghalaya High Court on Wednesday dropped the contempt proceedings initiated against the Home Secretary for 'deliberately disregarding' its orders, trying to 'obfuscate the issue' and standing as an 'impediment to the fact-finding exercise' in relation to the Police Vehicles Corruption Scam.
The division bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh was hearing a PIL filed by the residents of Shillong alleging illegal procurement of vehicles by some officials of the Police Department without any valid sanction from the competent authority. They alleged that a total of 29 official vehicles were in the personal custody of a certain official – a former Assistant Inspector General (Administration) of the Meghalaya Police.
Case Title: Shri Tingku N. Marak v. State of Meghalaya & 3 Others
Citation: 2022 LiveLaw (Meg) 47
The Meghalaya High Court on Monday granted bail to BJP leader Bernard Marak in connection with the rape of a three year-old girl, who was allegedly rescued from his farmhouse.
The single bench of Justice W. Diengdoh observed,
"A case of sexual assault particularly involving a minor girl is very serious, however, even the medical report suggests that any sexual assault perpetrated against the child was not of recent origin. There is no direct evidence or even indirect evidence linking the accused person to the said sexual assault."
Case Title: Shri Brightstarwell Marbaniang and Others v. State of Meghalaya and Others
Citation: 2022 LiveLaw (Meg) 48
Quashing an amendment in the Aided College Employees Rules, the Meghalaya High Court on Monday ruled that employees of the educational institutes do not hold an Office of Profit, and if they satisfy the requisite conditions, they cannot be debarred from contesting elections or holding political office.
Rejecting the argument that the government exercises deep and pervasive control over the services of the aided institutions and their teachers, Justice H. S. Thangkhiew said:
"The power of appointment and removal of the petitioners' vest in the respective Governing Bodies of these Aided Colleges, and the only function that the government exercises is in the approval of such appointment and removal. There is no direct control of the government over the services of the petitioners."
TRIPURA HIGH COURT
Case title - Pintu Ghosh v. The State of Tripura
Case Citation: 2022 LiveLaw (Tri) 1
In a significant observation, the Tripura High Court has observed that the mother of a sexual assault victim girl would never put her daughter's entire name, fame, and even entire life at stake by giving her a label of a victim of sexual assault.
Observing thus, the Bench of Justice T. Amarnath Goud and Justice Arindam Lodh affirmed the rape conviction of a man under Sections 376(2)(f) of the IPC for sexually assaulting a 4-year-old girl in the year 2012.
Case Title: Nirmal Ghosh v. Partha Ghosh
Case Citation: 2022 LiveLaw (Tri) 2
The Tripura High Court has recently held that unless and until there is an explicit challenge to birth documents and school records of a person, a plea for conducting his/ her DNA test cannot be entertained by the Court.
Justice T. Amarnath Goud was adjudicating upon a plea wherein the case of the petitioner was that the respondent (Partha Ghosh) was not the son of the deceased Kshitish Ghosh and under the garb of certain wills purportedly executed by the latter, the respondent had been selling the properties which were in dispute before the trial court.
Case Title: The State of Tripura & Ors. v. Smt. Debashri Chakraborty and other connected matters
Citation: 2022 LiveLaw (Tri) 3
The Tripura High Court has held that making 'married daughters' ineligible for availing benefits under the die-in-harness scheme of the State Government is discriminatory and violates Articles 14 to 16 of the Constitution.
While granting relief to the respondents (the aggrieved married daughters), the Division Bench of Chief Justice Indrajit Mahanty and Justice S.G. Chattopadhyay held,
"Marriage does not break the bond between a daughter and her parents as it does not do between a son and his parents. A crisis in the family of her parents equally worries a married daughter. As such, there is no rationale behind exclusion of a married daughter from the scheme. Therefore, a die-in-harness policy inasmuch as it operates as a disqualification in the case of a married woman, as against a married man must be held to be discriminatory and such policy, tested on the touchstone of Articles 14 to 16 of the Constitution, cannot be held to be valid."
Tripura High Court Bans Sale Of Meat Products In Public Places/Streets
Case title - Ankan Tilak Paul (Petitioner-in-person) v. The State of Tripura and others
Case citation: 2022 LiveLaw (Tri) 4
The Tripura High Court last week directed the State Government to ban the sale of meat products in public places and/or streets and to consider providing locations where slaughter can be carried out till the slaughterhouse is made operational.
The Bench of Chief Justice Indrajit Mahanty and Justice S. G. Chattopadhyay issued several directions to the state government on a PIL moved by Advocate Ankan Tilak Paul seeking a ban on sale and slaughtering of animals in public/streets throughout Tripura including the capital city, and to stop persons selling and slaughtering without a valid license.
Case title - Court on its own motion
Case citation: 2022 LiveLaw (Tri) 5
The Tripura High Court recently directed the Tripura state to carry out inspection of all State Government schools within the State of Tripura and to take such remedial steps vis-a-vis wherever shortfall of teachers exist to meet that contingency as well as wherever infrastructural needs are required.
The Bench of Chief Justice Indrajit Mahanty and Justice S. G. Chattopadhyay was hearing a PIL registered by the Court based on newspaper reports of students of schools in various parts of the State of Tripura.
Case title - Sri Mrigankar Sekhar Dey v. Union of India and another
Citation: 2022 LiveLaw (Tri) 6
The Tripura High Court last week dismissed a Public Interest Litigation (PIL) plea which challenged the constitutional validity of Section 11 of the Right to Information Act, 2005 on the ground that the same is ultra-vires of Article 14 and 21 of the Constitution of India.
Essentially, the petitioner was concerned with the 'deplorable' condition of the native and smuggled wildlife species, who find their way either in a government or privately owned zoological park/rescue center/rehabilitation center and thereafter kept in private set-ups.
Case title - Bishu Kumar Tripura v. State of Tripura and Others
Case citation: 2022 LiveLaw (Tri) 7
The Tripura High Court recently observed that non-placing and non-consideration of bail orders, wherein bail had been granted to detenu in cases referred to in the detention order, vitiates the subjective decision of the detaining authority, and on this ground, the detention order can be set aside by the Court.
The Bench of Chief Justice Indrajit Mahanty and Justice S. G. Chattopadhyay observed thus as it set aside a detention order passed against the detenu Bishu Kumar Tripura by the Government of Tripura under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 [PITNDPS Act].
Case Title: Sri Nishan Tripura v. The Secretary, Department of Health, Government of Tripura
Citation: 2022 LiveLaw (Tri) 8
A Division Bench of Tripura High Court, comprising of Chief Justice Indrajit Mahanty and Justice S.G. Chattopadhyay, has issued directions in a Public Interest Litigation (PIL) filed against alleged irregularities and misuse of fund allocated for the implementation of different health schemes in the State.
Case title - Arnab Roy Petitioner-in-person(s) v. The Joint Transport Commissioner and others
Case citation: 2022 LiveLaw (Tri) 9
The Tripura High Court has directed the State Government as well as Agartala Municipal Corporation and all other Municipal Councils and bodies to immediately ensure that unregistered rickshaws must be prevented from plying on the streets of the state.
The Bench of Chief Justice Indrajit Mahanty and Justice S. G. Chattopadhyay was dealing with a Public Interest Litigation (PIL) plea concerned with unregulated/ unregistered plying of rickshaws in Agartala in particular and Tripura in general.
Case title - Sanju Tanti v. The State of Tripura
Citation: 2022 LiveLaw (Tri) 10
The Tripura High Court recently acquitted a man booked and convicted under, inter alia, Section 8 of the POCSO Act [Punishment for sexual assault] for allegedly touching a minor's hand as the Court noted that the prosecution and the victim had said nothing about the intention of the accused to molest.
The Bench of Justice Arindam Lodh, which was hearing an appeal filed by the accused against the order of conviction passed by the Special Judge (POCSO), Khowai, Tripura, observed thus:
"After careful perusal of the record it is found that the offence under Section 8 of the POCSO Act has not been established beyond a reasonable doubt. The prosecution witnesses including the victim has not specifically stated anything that there was any intention of the accused to molest her. However, though she stated that the accused had touched her hand, in this situation, in my opinion, the ingredients of Section 8 have not been fulfilled and conviction and sentence under Section 8 of the POCSO Act stand quashed and set aside."
Case Title: Sri Subhash Pal v. The State of Tripura & Ors.
Citation: 2022 LiveLaw (Tri) 11
In a significant development, the Tripura High Court has recently ordered the Secretary, Home Department of the State to hold high level meeting with top police officials and to issue an advisory for strict compliance with guidelines rendered in Lalita Kumari v. Government of Uttar Pradesh. It further mandated all the Officers-in-Charge of police stations to provide free copy of FIR , to the informant, upon registration.
A Single Bench of Justice S. Talapatra expressed grief over the poor state of compliance with the aforesaid guidelines by the police authorities and remarked,
"In a series of cases since 2015, this court has been observing, keeping high hopes that the superior authorities of the police would heed and take a correctional course but unfortunately this has not happened so far."
Case Title: Shri Prasenjit Saha v. The State of Tripura
Citation : 2022 LiveLaw (Tri) 12
The Tripura High Court has denied anticipatory bail to a person, who allegedly was involved in cyber-crimes using the logo of the Director General of Police, Tripura. Expressing shock over the matter, a Single Judge Bench of Justice T. Amarnath Goud observed,
"In view of the serious allegations made by the prosecution, this court feels that the Police Department is not very serious in this matter. Accordingly, this court has no hesitation to consider the request of the petitioner. But at the same time, feeling the responsibility towards the society, the crime of this nature cannot be appreciated. If the DGP himself is taken for a ride by an accused person, this court expresses its concern for the crime."
Case title - Sumit Deb v. Joy Deb and another
Citation: 2022 LiveLaw (Tri) 13
The Tripura High Court has made it clear that a court is required to issue notice to the accused and hear him before condoning the delay in filing a complaint under Section 138 of the Negotiable Instruments (NI) Act.
"...under Section 138 of the NI Act, if the original complaint is filed after the expiry of the statutory period, then, in such cases, before condoning the delay, according to the proviso to Section 142 (b) of the NI Act, the accused shall be given a notice along with a copy of the application for condonation of delay," the Bench of Justice Arindam Lodh held.
Case title - Rasheda Khatun and others v. State of Tripura and others
Citation : 2022 LiveLaw (Tri) 14
The Tripura High Court on Wednesday directed the state government to pay a compensation of Rs 10 lakh to the family members of Jamal Hossain, who allegedly died due to custodial torture in police lockup.
The Bench of Chief Justice Indrajit Mahanty and Justice Satya Gopal Chattopadhyay ordered that the widow, children, and mother of the deceased shall be entitled to an equal share of the amount of compensation.
Case Title: Sri Janardhan Murasingh v. The State of Tripura
Citation: 2022 LiveLaw (Tri) 15
The Tripura High Court has held that it is the prosecution which has to prove the "last seen theory", together with the other connecting circumstances, to show that except the accused, no other person could have committed the alleged offence.
The observation came from a division bench of Justice T. Amarnath Goud and Justice Arindham Lodh:
"It is the prosecution who has to prove the last seen together with the other connecting circumstances that except the accused persons no other person could commit the offence. In the instant case, it cannot be ruled out that PW-9, PW-10 and PW-12 could not disclose that they had seen the deceased with the appellants on the relevant date and time for the last time. The scribe i.e. PW-14 also failed to substantiate that the accused-appellants herein had murdered his father i.e. Sukumar Das. Thus, the prosecution has not been able to connect the said appellants with the commission of offence beyond all reasonable doubt."
Case Title : Sri Subrata Saha and anr v The Municipal Commissioner and ors
Citation: 2022 LiveLaw (Tri) 16
The Tripura High Court recently rejected a writ petition filed by a person without exhausting alternative remedies, and observed that they can't use Article 226 writ jurisdiction to arm twist the respondents.
The observation came from Justice Amarnath Goud:
"When the petitioner can always agitate his legal rights and seek appropriate relief before the Civil Court, adopting this method of arm twisting against the unofficial respondent by way of filing complaints before the Municipal Corporation and invoking Article 226 of the Constitution of India and seeking mandamus to take action, is abuse of the process of the law."
Case Title : Nandan Datta v State of Tripura and ors
Citation: 2022 LiveLaw (Tri) 17
The Tripura High Court recently observed that a person engaged in contractual service cannot be said to have a "legitimate expectation" regarding extension of services beyond the contractual tenure or to continue in service despite expiry of contract period.
The observation came from Justice T. Amarnath Goud:
"In so far as the continuity of service beyond 30.06.2020 is concern, it is not legitimate expectation or the promise made by the respondents (employer) for continuing his service beyond 30.06.2020. In so far as the violation of principle of audi alteram is concern, the question of issuing any notice before putting an end to the tenure of petitioner's service is not indicated in the service condition in the year 2002 when the petitioner got into service to the said post for the first time."
Case Title: Sri Suman Miah and Anr. v. The State of Tripura and Ors.
Citation: 2022 LiveLaw (Tri) 18
The Tripura High Court recently observed that if a person has been employed on co-terminus basis, and it is only an engagement order and it has not been given any legitimate rights for regularization then no right ensues on such person for regularization of their services.
The observation was laid by Justice T. Amarnath Goud:
"In view of above arguments and also on perusal of the records, this Court is of the considered opinion that the appointment of the petitioner itself was on the basis of co-terminus and it is only an engagement order and it has not been given any legitimate rights for regularization, since the said appointments have not been made on regular basis and against the sanctioned posts. The extension of services is also for a limited period specifically, it has been mentioned that the services would come to an end by vacation of the Lokayukta. In view of the same, no rights have been conferred to the petitioners for regularization of their services."
Case Title: Sri Sumanjoy Tripura v. The State of Tripura
Citation: 2022 LiveLaw (Tri) 19
The Tripura High Court recently acquitted a man convicted for charges of murder under section 302 IPC, while observing that there wasn't sufficient evidence on record to prove his guilt and that mere statement of the co accused isn't enough to convict him.
The bench of Justice Amarnath Goud and Justice Arindam Lodh also reiterated that only that much of the statement made by an accused in custody during investigation to the police is admissible as leads to the recovery of some articles or things. Any other part of the statement which is not related with the recovery of articles is not admissible under Section 27 of the Indian Evidence Act. It observed,
"Except the fact which is revealed by the accused in the custody about the discovery, no other fact relating to acceptance of guilt, close to confession, cannot be treated as the legal evidence under Section 27 of the Evidence Act."
Case Title: Bimal Chandra Sarkar Versus The State of Tripura, with connected matter
Citation: 2022 LiveLaw (Tri) 20
The Tripura High Court recently dismissed the plea of a person claiming to belong to scheduled caste, seeking quashing the summons issued by Member-Secretary, State Level Scrutiny Committee (SLSC) calling upon the petitioner to appear before the Committee for verification.
The decision came from Justice T. Amarnath Goud who held that merely because the Petitioner had a favourable report in his favour as contemplated under Rule 7A(5) of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992, there is no absolute bar on SLSC for conducting the enquiry and for issuing and cancelling the certificate in terms of Rule 7A(4) thereof.
Case Title : Sri Chandan Adhikari v The State of Tripura
Citation: 2022 LiveLaw (Tri) 21
The Tripura High Court recently reduced the sentence of a person convicted for the offence of attempt to murder punishable under Section 307 IPC on the ground that the incident happened in the spur of the moment and that the convict had no intention to kill the victim.
Case Title : Sri Ratan Das v The State of Tripura
Citation: 2022 LiveLaw (Tri) 22
The Tripura High Court has observed that medical evidence has its evidentiary value in the case of murder. It thus set aside the conviction of a husband under Section 306 IPC, among other charges, following death of his wife due to burn injuries. It observed that the case relates to "suicide" and hence medical evidence cannot fix the guilt.
Case Title: The State of Tripura and Ors. v. Smt. Sangita Chakraborty
Citation: 2022 LiveLaw (Tri) 23
The Tripura High Court recently allowed an appeal filed by the Controller of Examinations and observed that in the event of doubt over correctness of answer key, the benefit should go to the examination authority rather than to the candidate.
The observation was made by a division bench of Chief Justice Indrajit Mahanty and Justice SG Chattopadhya:
"In the instant case, none of the options given in the multiple choice questions appear to be demonstrably wrong. Situated thus, the ratio decided by the Apex Court in Ran Vijay Singh & Ors. (Supra) must be followed by us where the Apex Court has held that Court should presume the correctness of the key answers and proceed on that assumption and in the event of doubt, the benefit should go to the examination authority rather than to the candidate."
Case Title: Sri Sanjib Paul v. The State of Tripura.
Citation: 2022 LiveLaw (Tri) 24
The High Court of Tripura has recently while dealing with criminal appeal under Section-374 of the Code of Criminal Procedure observed that circumstances not put to an accused under Section-313 Cr. P.C. cannot be used against him.
The observation came from Justice T. Amarnath Goud,
"It stands well settled that circumstances not put to an accused under Section-313 Cr.P.C. cannot be used against him and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt."
Case Title: Sri Pratap Chandra Das v Smt. Hira Bala Das and ors
Citation: 2022 LiveLaw (Tri) 25
The Tripura High Court recently observed that mofussil pleadings, i.e. poorly drafted pleadings, should be considered as a whole, liberally and must be construed reasonably.
The observation came from a division bench of Justices Arindam Lodh and SG Chattopadhyay in a property dispute.
Case Title : Sri Akhil Das v State of Tripura
Citation: 2022 LiveLaw (Tri) 26
The Tripura High Court recently while dealing with an appeal relating to offences under Section 498A /302/109 of the IPC observed that merely because the husband was present along with the child in the hut with the deceased wife in a hanging position cannot mean that the husband killed the wife.
The observation came from a division bench of Justices Amarnath Goud and Justice Arindam Lodh:
"The mere presence of the accused persons and the last seen of offence along with the child in the hut with the deceased woman (wife) in a hanging position cannot draw an inference and the circumstantial evidence cannot be connected that the husband has killed the wife. It is needless to observe that in a family the wife, the husband and the child who stays under one roof, any conjugal relation is obvious amongst the couple. Since it has not been proved who had killed the wife, the prosecution has failed to prove the case beyond reasonable doubt."
Case Title: Suma Chandra Das v. The Union of India. and Ors.
Citation: 2022 LiveLaw (Tri) 27
The Tripura High Court has recently observed that an adverse entry against a government servant in a confidential report cannot be acted upon to his prejudice unless the adverse entry is furnished to him at the earliest possible opportunity, to enable effective representation.
The observation came from Justice T Amarnath Goud:
"It is a trite law that a downgrading and/or adverse entry in the Confidential Report can only be acted upon, to the prejudice of the government servant when such downgraded/adverse entry is furnished to the government servant at the earliest possible opportunity, thereby providing him a scope to submit an effective representation against such entry."
Case Title : Sri Goutam Das v The State of Tripura
Citation: 2022 LiveLaw (Tri) 28
The Tripura High Court recently observed that a Charge framed against an accused person has to be established and proved "beyond any shadow of doubt" and that suspicion, however grave it might be, cannot take place of proof.
The observation came from Justice T. Amarnath Goud:
"The way the prosecution has projected the case and being found serious contradictions and inconsistencies in the statements in course of trial, it would be very difficult for this Court to believe the projected case against the petitioner. It is settled proposition of law that the charge framed against the accused-person has to be established and proved beyond any shadow of doubt. Suspicions, however, grave in nature, should not amount to prove."
Case Title : Shri Bal Krishna Mishra v The State of Tripura
Citation: 2022 LiveLaw (Tri) 29
The Tripura High Court has made it clear that Section 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985 does not bar the owner of a vehicle seized in raid to make an application seeking interim custody/ bail of his vehicle after expiry of thirty days from the date of seizure.
Case Title : Sri Nayan Das V The State Of Tripura And Ors With Connected Matters
Citation: 2022 LiveLaw (Tri) 30
The Tripura High Court has ruled that the right to receive the correct salary & allowances under the relevant statutory rules is a vested right of a government employee.
The observation came from Justice T Amarnath Goud:
"It has been further submitted that the ROP Rules, 2009 and the subsequent amendments thereof, are instances of statutory laws, enacted by the government of Tripura under the Proviso to Article-309 of the Constitution of India, which has ipso jure created a vested right, in favour of the petitioners and hence, by mere issuance of a letter in the style & fashion of the memorandum i.e. the memorandum dated 26.08.2019, the said vested right of the petitioners cannot be impaired. It is the trite law that the right to receive the correct salary & allowances under the relevant statutory rules is a vested right and such vested right cannot be impaired by an administrative instruction/circular letter."
Case Title: Smt. Surabala Reang v. Sri Amal Majumder and Anr.
Citation: 2022 LiveLaw (Tri) 31
The Tripura High Court recently observed that it can't impose exorbitant amount on insurance company for temporary injuries by a claimant under the Motor Vehicle Act.
The observation came from Justice T Amarnath Goud:
"After hearing both the parties and perusing the evidence on record this Court feels that the injuries suffered by the claimant-appellant herein are temporary in nature and it not permanent. The learned Claims Tribunal below has awarded Rs.3,00,000/- towards the effect of injuries on the work capability of the claimant-appellant herein and the same is appropriate in nature. No doubt, it is beneficial legislation and the claimant-appellant herein needs to be considered for fair compensation. But, at the same time it cannot be a bonanza and the respondent insurance company cannot be penalized with an exorbitant amount in favour of the claimant-appellant."
S.20 SRA | Power To Grant Decree Of Specific Performance Is "Discretionary": Tripura High Court
Case Title: Smt. Bandhana Modak (Das) and Anr. Versus Sri Parswanath Saha
Citation: 2022 LiveLaw (Tri) 32
The Tripura High Court recently, while dealing with a matter pertaining to execution of a sale deed, observed that a remedy for specific performance is discretionary in nature and the power may not be exercised by the Court merely because it is lawful to do so. The court can take into account the hardship such direction may cause to a party.
Case Title: Sri Bijoy Kumar Hrangkhawl v. Tripura State Electricity Corporation Limited (TSECL) and Ors.
Citation: 2022 LiveLaw (Tri) 33
The Tripura High Court recently observed that employers must "reasonably accommodate" disable persons into service and that failure to do so violates their rights under Persons with Disabilities Act, 2016.
The observation came from Justice Arindam Loud:
"The conduct of the concerned officer is not in consonance with the object the legislatures wanted to achieve. Keeping in mind the objectives of Rights of Persons with Disabilities Act, 2016, the respondents should realize the challenge the petitioner has been facing and accommodate him with humane approach. Any failure to meet the needs of disabled person will definitely breach the norms of reasonable accommodation."
Case Title: Md. Akbor Ullah v. Md. Rahamat Ullah and Ors.
Citation: 2022 LiveLaw (Tri) 34
The Tripura High Court recently explained the difference between 'burden of proof' and 'onus of proof'. Justice T. Amarnath Goud observed that burden of proof lies upon a persons who has to prove a particular fact and it never shifts.
The bench added that 'Onus of proof' shifts and such a shifting of onus is a continuous process in the evaluation of evidence.
Tripura High Court Grants Judicial Separation To Old Couple On Humanitarian Grounds
Case Title: Smti. Pramila Ghosh (Guha) Versus Sri Anup Kumar Guha
Citation: 2022 LiveLaw (Tri) 35
The Tripura High Court recently granted judicial separation to an old couple on humanitarian grounds, stating that they have mutually agreed to be away from each other and the court would not want to precipitate the litigation.
The observation came from a division bench of Justice T. Amarnath Goud & Justice S.G. Chattopadhyay:
"After elaborate arguments on behalf of both sides, both the parties present in court have mutually consented to be away from each other in view of their domestic issues and prays for judicial separation for some period. As the parties are senior citizens and considering their case on special reasons and having humanitarian grounds not to precipitate the litigation and with a hope in future they will have better days this court is of the view that for granting judicial separation which would be appropriate instead of divorce."
Preliminary Issues Are Determined Purely On Point Of Law In Isolation To Facts: Tripura High Court
Case Title : Sri Nirmalendu Datta v Smt. Poulami Datta And Ors With Connected Matters
Citation: 2022 LiveLaw (Tri) 36
The Tripura High Court recently observed that main controversies in a suit cannot be adjudicated as 'preliminary issues' as they require a full fledged trial and leading of evidence. Justice T. Amarnath Goud added that issues to be determined preliminary would exclusively and purely be on law point in isolation to facts but not mixed question of law and fact.
Case Title :The State of Tripura v Sri Sumit Banik & Ors.
Citation : 2022 LiveLaw (Tri) 37
The Tripura High Court recently observed that the Court can allow an application filed by accused under Section 311 CrPC and exercise its power of re-summoning any witness, in order to meet the ends of justice.
Justice Amarnath Goud observed:
"Lacuna in prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any in-adventure, the Court should be magnanimous in permitting such mistakes to be rectified, more so, when the rights conferred by Constitution of India upon a citizen."
Case Title : All Tripura EPS Pensioners' and Employees' Association v The State of Tripura
Citation: 2022 LiveLaw (Tri) 38
The Tripura High Court recently observed that employees of statutory organizations cannot claim, as a matter of right, the pensionary benefits, as provided to few of the corporations who have been able to generate their own funds with one-time support from the state government.
The observation was given by Justice Arindam Lodh while dealing with a batch of writ petitions filed against several State government undertakings, including Tripura Road Transport Corporation, Tripura Tea Development Corporation, Tripura Rehabilitation and Plantation Corporation, Tripura Handloom and Handicrafts Development Corporation, Tripura Schedule Tribe Co-operative Development Corporation, Tripura Small Industries Corporation, Tripura Jute Mills, Tripura Industrial Development Corporation, Tripura State Co-operative Marketing Federation and Tripura Khadi and Village Industries Board.
Case title - Court on its own motion v. The State of Tripura and others [WP(C) (PIL) No.25 of 2021]
Case Citation: 2022 LiveLaw (Tri) 39
The Tripura High court recently directed the State Government to pay a sum of Rs. 2,50,000/- to a 28-year-old woman who was subjected to custodial torture in October 2021.
The bench of Chief Justice Indrajit Mahanty and Justice S. G. Chattopadhyay was dealing with a suo moto case instituted by the High Court on a news report regarding the custodial torture inflicted on one Priyashi Datta (Debnath).
Case Title: Adwitiya Chakrabarti Versus Union of India
Citation: 2022 LiveLaw (Tri) 40
Dismissing a PIL seeking to declare the possession of undeclared exotic animals and birds as illegal under the Customs Act and the Wild Life (Protection) Act and prosecution of their owners, the Tripura High Court has said it cannot direct or expect the government to take such drastic measure in haste without assessment of the impact and in absence of a detailed study.
The division bench of Chief Justice Indrajit Mahanty and Justice S.G. Chattopadhyay noted that a large number of citizens across India own pets which may be exotic species and might have been purchased or procured from those involved in captive breeding.
Execution Of Arbitration Awards;Section 47 Of CPC Not Applicable :Tripura High Court
Case Title: State of Tripura v. Ashes Deb
Citation: 2022 LiveLaw (Tri) 41
The High Court of Tripura has held that Section 47 of CPC which provides for certain questions to be determined by the executing Court does not apply to execution of an arbitration award under the A&C Act.
The bench of Justice S.G. Chattopadhyay held that the executing court, exercising power under Section 36 of the Act, cannot entertain any objections against the award and a party can only challenge the award in terms of Section 34 of the A&C and no objection can be raised under Section 36 of the Act.
SIKKIM HIGH COURT
Case Title: In Re: Recent Felling of Trees in Gangtok, WP (PIL) No. 4 of 2020
Citation: 2022 LiveLaw (Sik) 1
On Monday (10th January), the Sikkim High Court issued directions to the Forest, Environment and Wildlife Management Department, Government of Sikkim to prevent indiscriminate felling of trees in order to implement the Gangtok Smart City proposal.
A letter petition from Kailash Pradhan, an Architect from Sikkim concerned about the erratic and rampant felling of trees in Gangtok, especially for widening National Highway under the Smart City Project was taken up by the bench comprising Justices Meenakshi Madan Rai and Bhaskar Raj Pradhan as a Writ petition filed in Public Interest.
Sikkim High Court Issues Directions To Trace Out Missing Children In The State
Case Title: In Re-Missing Children
Citation: 2022 LiveLaw (Sik) 2
The Sikkim High Court has issued certain directions to trace-out missing children in the State. A Division Bench of Chief Justice Biswanath Somadder and Justice Meenakshi Madan Rai had earlier directed the State authorities, through the learned Additional Advocate General, to complete the process of installation of CCTV cameras in the remaining seven (7) Police Stations and report compliance.
The Court recorded that the concerned State authorities have apparently complied with the directions insofar as installation of CCTV cameras, in the Police Stations and also in the Check-Posts within the State of Sikkim, is concerned. However, the Court stressed that the main issue with regard to tracing out the missing children is yet to be accomplished.
Case Title: Henna Subba & Ors. v. State of Sikkim & Anr.
Citation: 2022 LiveLaw (Sik) 3
The Sikkim High Court has refused to interfere with the State Government's 'One Family One Job' scheme. While hearing a challenge to the state policy, a Division Bench of Chief Justice Biswanath Somadder and Justice Meenakshi Madan Rai observed,
"As such, the bona fides of the exercise undertaken under the Scheme cannot be held to be suspect since its object and purpose was to provide one family one job. If we are to forensically analyse the entire recruitment process at this belated stage, that too, based on technicalities, in that event, each and every person who has secured State employment following initiation and execution of the "One Family One Job Scheme", would be required to be made parties in the present writ proceeding. That apart and in any event, the beneficial nature of the Scheme cannot be doubted and examined at this stage purely on the basis of technicalities as provided under the relevant Rules."
Case Title: Chandra Singh Rai & Anr. v. State of Sikkim
Citation: 2022 LiveLaw (Sik) 4
The Sikkim High Court has recently held that the Public Prosecutor, who seeks to withdraw prosecution under Section 321 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') has to show how the public interest will be served by withdrawing prosecution. The Court should be cautious while allowing such applications, if it is only for affecting the proper administration of justice and has no public interest involved.
Case Title: Pema Temphel Bhutia v. State of Sikkim
Citation: 2022 LiveLaw (Sik) 5
The Sikkim High Court recently observed that the power under Section 451 CrPC regarding custody and disposal of property involved in any offence should be exercised expeditiously and judiciously.
Justice Bhaskar Raj Pradhan observed,
"As the seizure of the vehicle by the police amounts to its entrustment to a government servant, the idea is that the vehicle should be restored to the original owner after the necessity to retain it seizes. This would serve dual purpose. The owner of the vehicle would not suffer because of its remaining unused and the court or the police would not be required to keep the vehicle in safe custody."
Case Title: Prahlad Sharma versus Dipika Sharma and Another
Citation: 2022 LiveLaw (Sik) 6
The Sikkim High Court recently discussed Section 4 of the Contract Act which make stipulations regarding completion of a communication qua proposal, acceptance and revocation of a contract.
In the instant case, involving interplay with Section 138 of the Negotiable Instruments Act, the bench of Justice Meenakshi Madan Rai made it clear that the Petitioner could not cover up dishonour of cheques issued by it in favour of the Respondent, merely because the latter had issued a communication for termination of contract. It noted that as on date when the cheques were dishonored, the communication regarding termination was not received by the Petitioner.
Case Title: Tshering Samdup Bhutia and Ors. v. State of Sikkim and Ors.
Citation: 2022 LiveLaw (Sik) 7
The Sikkim High Court recently dismissed a petition challenging the Sikkim State Subordinate Fisheries Service (Amendment) Rules, 2019 which did away with the age relaxation given to the ST, SC, MBC and OBC candidates by the Fisheries Rules, 2008.
Justice Bhaskar Raj Pradhan observed that it is open for the government while framing rules under the proviso to Article 309 of the Constitution of India to prescribe such age limits or to prescribe the extent to which any relaxation can be given.
Case Title: Shri Ashok Tshering Bhutia Versus The Divisional Forest Officer (T) and Ors.
Citation: 2022 LiveLaw (Sik) 8
The Sikkim High Court recently dismissed a petition filed under Article 227 of the Constitution seeking permission to amend plaint and file a written statement to the counter-claim filed by the respondents, pending proceedings before the Civil Court under Order XLI Rule 25 CPC.
Court Can't Travel Beyond Pleadings In A Suit To Frame Issues: Sikkim High Court
Case title : Shri Kharka Singh Chettri, v Shri Mangal Chandra Rai and connected matters
Citation: 2022 LiveLaw (Sik) 9
The Sikkim High Court has held that trial courts can frame issues with regard to only those pleadings which are asserted by one party and denied by other. Justice Bhaskar Raj Pradhan observed that the suit proceedings cannot travel beyond the pleadings placed on record by the parties.
The observation comes in a case where the trail court had framed an issue in a property dispute, to determine whether the suit property was sold to meet legal necessity of the joint family of the plaintiffs.
Case Title: Subhash Chandra Chettri v. State of Sikkim
Citation: 2022 LiveLaw (Sik) 10
The Sikkim High Court recently held that a slight penetration without any visible injury is enough to constitute offence of rape and aggravated penetrative sexual assault under Sections 376 AB of the IPC as well as Section 5 of the POCSO Act. A Division Bench of Justices Bhaskar Raj Pradhan and Meenakshi Madan Rai noted,
"Penetration to any extent is sufficient to constitute rape under IPC and penetrative sexual assault under the POCSO Act. The victim's deposition is specific, consistent and clear that the appellant had inserted his penis into her vagina."
Case Title : Dr. Mool Raj Kotwal v State of Sikkim and ors
Citation: 2022 LiveLaw (Sik) 11
The Sikkim High Court recently observed that retired re-appointed employees cannot be denied the benefit of leave encashment, unless the re-engagement was contractual in nature.
Referring to Rule 36 of the Sikkim Government Service (Leave) Rules, 1982, Justice Bhaskar Raj Pradhan observed:
"The respondents' suggestion that there was financial burden upon the state exchequer by providing the retired reemployed Government Servants leave encashment for earned leave again for the period of re-employment is not justified considering the fact that several others similarly placed had been given the benefit. As such, isolating the petitioner's accrued benefit to save the purported burden on the state exchequer would be arbitrary and discriminatory."
Case Title :The Mathrubhumi Printing and Publishing Company Limited and Others v Santiago Martin and Another
Citation: 2022 LiveLaw (Sik) 12
The Sikkim High Court recently refused to quash the summons issued by a Gangtok magistrate against the managing editor, the managing director and other senior officials of a Malayalam newspaper Mathrubhumi in a defamation complaint case filed by Santiago Martin in 2020.
Case Title: Milan Kumar Rai vs State of Sikkim
Citation: 2022 LiveLaw (Sik) 13
The Sikkim High Court acquitted a man accused in a POCSO case after noticing that the victim suffered catatonic schizophrenia and thus prone to hallucinations and delusions.
"It would be difficult to conclude with absolute certainty that what the victim states in her deposition is not coloured by hallucination as she was certainly suffering from catatonic schizophrenia", the bench of Justices Meenakshi Madan Rai and Bhaskar Raj Pradhan observed in the judgment.
Case Title: Thutop Namgyal Bhutia @ Aku Namgyal v. State of Sikkim
Citation: 2022 LiveLaw (Sik) 14
The Sikkim High Court on Wednesday asked that doctors to desist from two-finger test in rape cases, observing that such medical examination affects the dignity of the individual.
Hearing a criminal appeal in a rape case, the division Bench of Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan expressed concern over the method employed by the doctors in medical examination of the victim.
Case Title: Suman Gurung v. State of Sikkim
Citation: 2022 LiveLaw (Sik) 15
The Sikkim High Court has reiterated that minimum sentence prescribed by the statute has to be imposed on the guilty and it cannot be reduced by the Appellate Court.
It clarified that courts cannot impose less than the 'minimum sentences' prescribed by the statutes while convicting persons for commission of offences. To buttress the position of law, the Division Bench of Justices Meenakshi Madan Rai and Bhaskar Raj Pradhan placed reliance on the decision of the Supreme Court in Mohd. Hasim v. State of Uttar Pradesh & Ors., wherein it was held:
"We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court…Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed."
MANIPUR HIGH COURT
Case Name: Shri Om Dutta Sharma v. Union of India And Ors.
Citation: 2022 LiveLaw (Man) 1
On Friday, the Manipur High Court observed that non-supply of findings and opinion of the Court of Inquiry would vitiate a censure order. The High Court added that it is the bounden duty of the concerned authority to furnish such findings and opinion before awarding punishment.
Justice M.V. Muralidaran allowed a writ petition, which assailed the censure order imposed by the officers of the Assam Rifles for making false allegations against officers and violating the existing channels of correspondence for addressing grievances.
Case Title: Shri Maibam Sarat Singh & Anr. v. Langpoklakpam Jayantakumar Singh & Ors. and other connected matters
Citation: 2022 LiveLaw (Man) 2
The Manipur High Court has held that mere failure to maintain a true and correct account of election expenditure would not per se amount to 'corrupt practice' under Section 123(6) of the Representation of People Act, 1951 ("the Act"), in the absence of allegation as to excess expenditure than the maximum prescribed amount.
Case Title: Longjam Bijoy Singh (Dead) by his L.R.s. v. Shri Keisham Irabot Singh & Anr. and another connected matter
Citation: 2022 LiveLaw (Man) 3
The Manipur High Court has held that Courts should examine conducts of parties "all through" to ascertain whether their non-appearance was a singular stray instance or a chronic phenomenon.
While denying relief to the petitioners, a Single Judge Bench of Chief Justice Sanjay Kumar observed,
"…this Court would be justified in examining the conduct of the party all through to ascertain whether 'the failure to appear' was a chronic phenomenon and not a stray instance. As pointed out by the Supreme Court, the effort of the Court should be to see that justice is done, which would include justice to both the parties to the litigation. That being so, a defendant cannot be penalized and made to suffer the rigours of litigation over decades, despite the plaintiff being lax and careless in prosecuting the case."
Case Title: Md. Yakup Ali v. Md. Abdul Rajak & Ors.
Citation: 2022 LiveLaw (Man) 4
The Manipur High Court came down heavily upon an arbitrary and irrational promotion of a 'Company Commander' to the post of 'Battalion Commander' in the Manipur Home Guards, ignoring the officers who were senior to him.
A Division Bench of Chief Justice Sanjay Kumar and Justice M.V. Muralidaran criticised the lackadaisical manner in which the Commandant General of Home Guards exercised his power.
Case Title: The State of Manipur & Ors. v. Shri Maithem Deben Singh & Ors.
Citation: 2022 LiveLaw (Man) 5
The Manipur High Court has held that Section 21 of the General Clauses Act, 1897 ("the Act of 1897") cannot be employed to review an 'Award' made under the Land Acquisition Act, 1894 ("the Act of 1894").
Case Title: Dr. Salam Robindro Singh v. The Officer-in-Charge, Andro Police Station & Anr.
Citation: 2022 LiveLaw (Man) 6
The Manipur High Court has held that Magistrate cannot take cognizance of a complaint involving an offence punishable under Section 188 IPC, if that is made by a third party and not by the public servant who promulgated the order or by the one to whom he (the public servant) is administratively subordinate.
Case Title: Ksh. Kennedy Singh & Ors. v. The State of Manipur & Anr.
Citation: 2022 LiveLaw (Man) 7
The Manipur High Court has clarified that the operation of Section 428 Cr.P.C. will be 'automatic', unless the benefit is denied by judgment. It further made it clear that even if the pre-conviction period of detention suffered, is in the nature of 'simple imprisonment', it would still be liable to be set-off against a sentence of 'rigorous imprisonment' under the Section.
While allowing the set-off, a Single Judge Bench of Chief Justice Sanjay Kumar observed,
"In the light of the above precedential wisdom and given the statutory scheme of the Code of Criminal Procedure, 1973, there can be no doubt that the pre-conviction period of detention suffered, even if it is in the nature of 'simple imprisonment', would still be liable to be set-off against a sentence of 'rigorous imprisonment'. Further, the operation of Section 428 Cr.P.C. would be automatic unless the benefit thereof is specifically denied in the judgment itself."
Case Title: Michael Zimik v. Ngathinkhui Singhnaisui & Anr.
Citation: 2022 LiveLaw (Man) 8
The Manipur High Court has recently held that Order 14 Rule 2(1) CPC is a general rule which provides that the Court shall pronounce judgment on all issues, notwithstanding the fact that the case may be disposed of on a preliminary issue.
However, it added that an exception to this Rule is provided under Order 14 Rule 2(2), which states that where issues of law and of fact arise in the same suit and the Court finds that the suit, or any part thereof, may be disposed of on an issue of law only, it may try that issue first.
Case title - Sandam Bhogen Meetei v. State of Manipur
Case Citation: 2022 LiveLaw (Man) 9
"...under-trial prisoner's right to life does not diminish even a wee bit when in jail as an accused/convict for an offence and such person's health concerns have to be taken care by the State and if not done so, by the judiciary," the Manipur High Court recently observed as it released a POCSO Accused on bail on medical grounds.
The bench of Justice M. V. Muralidaran further emphasized that the right to dignity of an accused does not dry out with the Judges, rather, it subsists beyond the prison gates and operates until his last breath.
Case Title: Yumnam Surjit Kumar Singh vs Officer-in-Charge, Women Police Station
Citation: 2022 LiveLaw (Man) 10
"An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge", remarked the Manipur High Court while dismissing anticipatory bail applications filed by rape accused.
Justice M V Muralidaran observed that he stigma that attaches to the victim of rape in Indian society ordinarily rules out the levelling of false accusations.
'State' Is An Unnecessary Party To Anticipatory Bail Applications : Manipur High Court
Case Title: Mayanglambam Prabha Devi vs State of Manipur
Citation: 2022 LiveLaw (Man) 11
The Manipur High Court has issued directions to its registry regarding the filing of anticipatory applications.
Justice M V Muralidharan issued these directives after he noticed that the accused failed to enclose a copy of the complaint along with the anticipatory bail petition.
"Filing of FIR though is not a condition precedent for exercising power under Section 438 Cr.P.C., to know the contents in the FIR and the complaint, both the complaint and the FIR are required to be annexed to the petition for anticipatory bail for proper adjudication of the petition. Mere averments set out in the petition are not enough for considering the petition for anticipatory bail. A readable copy of the complaint and the FIR ought to have been annexed to the petition for anticipatory bail so as to enable the Court to deal with the petition based on the allegations set out in the complaint and the FIR", the judge observed.
Case title - Mark Thangmang Haokip v. State of Manipur and another [Bail Appln. No. 11 of 2022]
Case Citation: 2022 LiveLaw (Man) 12
The Manipur High Court on Wednesday denied bail to bail to a man who has been accused of being a part of an organization formed allegedly with the sole objective of seceding from the Indian State to establish their so-called Kukiland comprising of different parts of Bangladesh, Myanmar, and India.
The bench of Justice M. V. Muralidaran denied bail to 39-year-old Mark Thangmang Haokip prima facie noting that he and his associates are working with a serious intention to bring into hatred or contempt against other communities and amplify it as an instrument to mobilize people against the State.
