Sorojini Devi And Anr. vs Oinam Jugeshwar Singh And Ors. on 28 March, 2008

Gauhati High Court
Sorojini Devi And Anr. vs Oinam Jugeshwar Singh And Ors. on 28 March, 2008
Equivalent citations: 2008 (2) GLT 198
Author: M Singh
Bench: M Singh, A Potsangbam


JUDGMENT

M.B.K. Singh, J.

1 .These two writ appeals being W.A. No. 38 of 2008 and W.A. No. 39 of 2008 have been filed challenging the common judgment and order dated 12.03.2008 passed by a learned Single Judge of this Bench disposing of W.P.(C) No. 136 of 2008 and W.P.(C) No. 127 of 2008 jointly. Since a common question of law and facts are involved in these two appeals, they are proceeded jointly.

2. We have heard Mr. N. Kumarjit Singh, learned Counsel appearing on behalf of the appellants, Mr. H.S. Paonam, learned Counsel appearing on behalf of the principal respondents and Mr. Th. Ibohal Singh, learned Addl. GA appearing on behalf of the Govt, respondents.

3. The principal respondents in these two writ appeals are six of 11 elected members of Bishnupur Zilla Parishad and they filed the above said two writ petitions. The appellant No. 1 and the appellant No. 2 are the Adhyaksha and the Up-Adhyaksha of the said Zilla Parishad and they were the respondents 5 and 6 respectively in both the writ petitions.

4. In W.P.(C) No. 127 of 2008, the present principal respondents, who were the writ petitioners, were praying mainly for directing the Deputy Commissioner, Bishnupur District, Bishnupur and the Chief Executive Officer, Bishnupur Zilla Parishad for holding election of new Adhyaksha and Up-Adhyaksha in place of the respondents 5 and 6 respectively alleging that motion of No-Confidence as against the two respondents had been carried through in a special meeting on 13.02.2008.

5. In the above said writ petition, according to the writ petitioners, on 29.01.2008, they submitted a requisition for consideration of No-Confidence Motion against the Adhyaksha and the Up-Adhyaksha, to the Adhyaksha herself in the Office Chamber of the Deputy Commissioner, Bishnupur in the presence of the Deputy Commissioner (D.C. for short), Bishnupur and the submission of the requisition was duly photographed. Further, according to the writ petitioners, the requisition was also published in a local daily for wide information and it was furnished to the D.C. Bishnupur as well as to the ChiefExecutive Officer (C.E.O. for short), Bishnupur Zilla Parishad for information.

6. On the other hand, the present appellants denied the alleged fact of the said requisition having been submitted to the Adhyaksha on 29.01.2008.

7. Moreover, according to the writ petitioners, on failure of the Adhyaksha to discharge her duties as provided Under Section 57(4) of the Manipur Panchayati Raj Act, 1994, herein referred to as the ‘Act’, in connection with convening of a special meeting of the Zilla Parishad for consideration of the No-Confidence Motion, they made an application dated 05.02.2008 to the D.C, Bishnupur for directing the C.E.O., Bishnupur for convening a special meeting for consideration of the Motion. Thereafter, according to the writ petitioners, the D.C, Bishnupur directed the C.E.O., Bishnupur Zilla Parishad to take appropriate action under the provisions of the Act of 1994 and the C.E.O. issued a notification dated 06.02.2008 notifying that a special meeting for consideration of the said No-Confidence Motion would be held on 13.02.2008 at 11.00 A.M. At the Conference Hall of the Mini Secretariat. As per the allegations of the writ petitioners, the notification was also published in the local daily, the Sangai Express on 07.02.2008. It was also alleged by the writ petitioners that as per the schedule, the special meeting was held on 13.02.2008 wherein only six members were present and that the said Motion of No-Confidence was carried through unanimously. Further, according to the writ petitioners, though on 13.02.2008 itself, copies of the proceedings of the said meeting were forwarded to the C.E.O., Bishnupur Zilla Parishad, the D.C., Bishnupur and RD & PR, Govt, of Manipur with a request for causing necessary action to be taken for the elections of new Adhyaksha and Up-Adhyaksha as per Rules, no action was taken and as per information received from the C.E.O., the request dated 29.01.2008 was rejected.

8. On the other hand, the present appellants denied the above said facts. According to them (respondents 5 and 6), since no requisition was submitted to the Adhyaksha, there was no question of issuing notice for convening any special meeting and the application dated 05.02.2008 submitted to the D.C., Bishnupur was rejected on 13.02.2008 and as such no special meeting was held on 13.02.2008. Further, according to the appellants, the respondents 5 and 6 in the writ petition, the C.E.O., Bishnupur Zilla Parishad never issued any notification on 06.02.2008 for holding any special meeting and she only drafted a notification for such a meeting and before issuing the same, on coming to know about the non-submission of the said requisition to the Adhyaksha and on obtaining advice from the State Govt., the representation made to the D.C., Bishnupur on 05.02.2008 was rejected on 13.02.2008.

9. In the second writ petition, i.e. W-P-(C) No. 136 of 2008, the present principal respondents, who were petitioners in the said case, were praying mainly for quashing the said orders dated 13.02.2008 issued by the C.E.O., Bishnupur Zilla Parishad rejecting the application made by the petitioners on 05.02.2008 for convening a special meeting of the Zilla Parishad for consideration of the said No-Confidence Motion. In the second writ petition, the petitioners alleged the same facts alleged in the first writ petition.

10. The present appellants, who were respondents 5 and 6 in the said second writ petition, contested the second case talcing the same pleas taken in the first case.

After taking into consideration of the relevant provisions of Section 57 of the said Act, the disputed question of facts in between the parties and also the need for allowing Bishnupur Zilla Parishad to function democratically, the learned Single Judge passed the impugned judgment and order disposing of the two writ petitions. The operative portion of the impugned judgment and order is at para-10, which is as follows:

10. For the ends of justice and also in the interest of democracy and also for protecting the democratic institution at the grass root level, this Court direct the Chief Executive Officer, Bishnupur to issue the Notice for convening a special meeting of the Bishnupur Zilla Parishad in pursuance of the said requisition letter dated 29.01.2008 for consideration of no confidence motion against the sitting Adhyaksha and Up-Adhyaksha within a period of seven (7) days from the date of receipt of this order. The time framed mentioned in Section 57 of the Manipur Panchayati Raj Act, 1994 should be strictly followed in convening the special meeting of the Zilla Parishad for consideration of no confidence motion against the sitting Adhyaksha and Up-Adhyaksha. For carrying out of the above directions, the impugned order dated 13.02.2008 issued by the Chief Executive Officer, Bishnupur Zilla Parishad is quashed and set aside. The sitting Adhyaksha and Up-Adhyaksha are restrained from taking any major decision and financial transaction pending consideration of no confidence motion against them.

11. In our opinion, the learned Single Judge was aware of the disputes in between the parties. Apparently, appreciating the vital need for upholding democratic value of majority rule in the institution of Zilla Parishad and thereby for ensuring democratic functioning of the said Zilla Parishad without further delay, the learned Single Judge directed for convening the special meeting for consideration of the No-confidence Motion against the sitting Adhyaksha and Up-Adhyaksha. By doing so, the learned Single Judge was giving more importance to the observance of democratic principle in the functioning of the Zilla Parishad than the technical points raised by the respondents 5 and 6 regarding the need for delivering the said requisition to the Adhyaksha herself as per provisions of Section 57(4) of the said Act.

12. Keeping aside, the disputed question regarding delivery of any requisition in original to the Adhyaksha on 29.01.2008 for consideration of the said motion, it is ascertained from the counter affidavits filed by the D.C., Bishnupur and the C.E.O., Bishnupur Zilla Parishad that a copy of the requisition for consideration of the said No-confidence Motion was furnished to the Office of the D.C., Bishnupur and another copy of it was furnished to the C.E.Q., Bishnupur Zilla Parishad for information.

13. There is no denial from the side of the respondents about the fact alleged by the writ petitioners that a news item about the submission of the said requisition to the Adhyaksha for consideration of the said No-confidence Motion was published in the local daily Matamgi Yakairol on 30.01.2008. As per findings of the learned Single Judge, having regard to the provisions of Section 49 of the said Act and since the State Government had not taken any steps for selection of 1/3 (one-third) of the members under Clause (c) of Section 49, there were 18 members in Bishnupur Zilla Parishad, viz 11 (eleven) directly elected members, one elected M.P. and 6(six) elected M.L. As. in the district at the relevant time. Accordingly, the requisition signed by six members of the Zilla Parishad was one signed by one-third of the total members of the Zilla Parishad as required Under Section 57(4) of the said Act. There is no sufficient basis for interfering with the above said findings of the learned Single Judge.

14. It is also hard to believe that when the six members of the Zilla Parishad submitted a copy of the said requisition addressed to the Adhyaksha to the D.C., Bishnupur and another copy of it to the C.E.O., Bishnupur Zilla Parishad and also caused a news item to be published regarding the said requisition, they would not have submitted the original of the requisition to the Adhyaksha. Merely on the basis of the pleadings of the writ petitioners at para-5 of their petition to the effect that when a copy of the requisition was received by the C.E.O., who was the head of the Office and Ex-Officio Secretary of the Zilla Parishad, it would be deemed that the same was received by the Adhyaksha, one cannot say that the writ petitioners admitted the fact of non-submission of the said requisition to the Adhyaksha in the said para.

15. On the basis of the pleadings of the parties and. materials before the Court, it is also ascertained that in pursuance of a request made by the said six members of the Zilla Parishad for directing the C.E.O., Bishnupur Zilla Parishad, vide letter dated 05.02.2008, a copy of which is at Annexure-A/5 of W.P.(C) No. 127 of 2008, for convening a special meeting of the Zilla Parishad by invoking the provision of Section 57(4) of the said Act for consideration of the said No-confidence Motion, the D.C., Bishnupur directed the C.E.O., Bishnupur Zilla Parishad, vide letter dated 06.02.2008 a copy of which is at Annexure-A/6 of the said writ petition for taking appropriate necessary action within the stipulated time under the said Act and Rules. The C.E.O., Bishnupur Zilla Parishad admittedly drafted a notice dated 06.02.2008.

16. The said notice dated 06.02.2008, a copy of which is at Annexure-A/7 of the said writ petition, was for holding a special meeting of Bishnupur Zilla Parishad on 13.02.2008 at 11.00 A.M. for consideration of the said No confidence Motion against both the Adhyaksha and the Up-Adhyaksha. The said notice was published in the local daily Sangai Express on 07.02.2008, the copies of the said notice were purportedly to be furnished to all the concerned including the Adhyaksha and the Up-Adhyaksha of the Zilla Parishad and as such in the ordinary course copies were furnished to all the concerned. In this connection, the pleadings of the C.E.O., Bishnupur Zilla Parishad are to the effect that a copy of the said notice was snatched away before its finalization and that the said publication of the notice was made by the said six members without authority. The above said pleadings are not in our opinion acceptable.

17. There is nothing to show that the C.E.O., Bishnupur Zilla Parishad lodged any report either about the alleged snatching of the documents from his office or about the said unauthorized publication of the notice. It is hard to believe that the C.E.O., Bishnupur Zilla Parishad put his signature on a draft notice. There is a possibility that after the issuance of the said notice and its publication, the C.E.O., was subsequently influenced or compelled not to attend the special meeting at the behest of some interested persons or due to strong obj ection made by the concerned Adhyaksha or Up-Adhyaksha stating that no requisition had been delivered to the Adhyaksha as per requirement Under Section 57(4) of the said Act.

18. The C.E.O., Bishnupur Zilla Parishad stated in his counter affidavit to the effect that complicacy having arisen in the matter, he sought a comment from the Adhyaksha by writing a letter No. 2/ZP/NCM.05(Pt) dated 06.02.2008 regarding the instruction of the D.C., Bishnupur for convening the special meeting for consideration of the said No-confidence Motion. The C.E.O., Bishnupur Zilla Parishad, further stated that he sought comment on the same matter from the Commissioner (RD & PR), Govt. of Manipur vide letter No. 2/ZP/NCM. 05(Pt) dated 07.02.2008. In fact, there was no necessity of calling for the said comments under any provision of the said Act. At the time of calling for the said comments, the C.E.O., Bishnupur Zilla Parishad expressed his opinion to the effect that it was mandatory to deliver the requisition for the special meeting for consideration of the said No-confidence Motion to the Adhyaksha under the provision of Section 57(4) of the Act.

19. The concerned Adhyaksha commented vide her letter dated 07.02.2008 addressed to the C.E.O., Bishnupur Zilla Parishad to the effect that since no requisition was submitted to the Adhyaksha, there was no question of any process being taken for convening any special meeting for consideration of the said No-confidence Motion. The Commissioner (RD & PR), Govt., of Manipur also gave his comment to the same effect vide his letter dated 12.02.2008. Thereafter, the C.E.O., Bishnupur Zilla Parishad, issued the said order dated 13.02.2008 purportedly on the advice of the State Government rejecting the application of the six members for convening the special meeting mainly on the ground that no requisition had been submitted to the Adhyaksha. The C.E.O., Bishnupur Zilla Parishad was not supposed to act on the advice of the State Government on the matter. The learned Single Judge quashed the said order dated 13.02.2008 on the ground that the Zilla Parishad should be made to function observing democratic principles.

20. The Appellant’s case is that it was illegal on the part of the learned Single Judge to interfere with the said order dated 13.02.2008. According to the learned Counsel appearing on behalf of the appellants, since no requisition was submitted to the Adhyaksha under the provision of Section 57(4) of the Act, no action was required to be taken for convening any special meeting for consideration of the said No-confidence Motion, and in fact, there was no No-confidence Motion in law. The basis of the appellants’ case is that the provisions in Section 57(4) of the Act for delivering of the requisition for such a special meeting to the Adhyaksha is mandatory in the sense that the requisition should be delivered personally to the Adhyaksha and so long as no such requisition is delivered to the Adhyaksha personally, no special meeting can be called at the instance or on direction of the D.C., Bishnupur.

21. Merely from the use of the word “shall”, we cannot conclude that the said provision is to be interpreted in the manner submitted by the appellants. The Apex Court in State of U.P. v. Manmohan Lal Srivastava approved and quoted the following passage from Crawford: “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other.”

22. Keeping in view the above said principle of law, we have to consider if the said provision regarding the delivery of the requisition to the Adhyaksha is to be interpreted in the sense and manner submitted by the appellants. Section 57 of the Act deals with resignation or removal of the Adhyaksha and Up-Adhyaksha. The relevant Clause 4 of Section 57 of the Act is as follows:

57. (4) Every Adhyaksha or Up-Adhyaksha shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence in him is passed by a majority of the total number of elected members of the territorial constituencies of the Zilla Parishad at a meeting specially convened for the purpose. The requisition for such a special meeting shall be signed by not less than one third of the total membership of the Zilla Parishad and shall be delivered to the Adhyaksha. The Adhyaksha shall, within seven days from the date of receipt of the requisition, convene a special meeting of the Zilla Parishad. The meeting shall be held on a day not later than fifteen days from the date of issue of the notice of the meeting. The meeting shall be presided over by the Adhyaksha, if the motion is against the Up-Adhyaksha and in the case of Adhyaksha, the Up-Adhyaksha shall preside over the meeting, if it is against both, a member nominated from amongst themselves by the members present -in such meeting shall preside over such meeting.

Provided that if the Adhyaksha fails to convene the said meeting within the stipulated time, the members shall request the D.C. for the purpose, who shall, within five days from the date on which he receives the request, direct the Chief Executive Officer of the Zilla Parishad to convene the meeting within seven days;

Provided further that withdrawal of no-confidence motion against the Adhyaksha or Up-Adhyaksha or both, as the case may be, shall not be allowed.

23. The above said provisions of Section 57(4) are procedures regarding removal of Adhyaksha and Up-Adhyaksha of a Zilla Parishad. Both the Adhyaksha and the Up-Adhyaksha are elected by a majority of the members of the Zilla Parishad. No Adhyaksha or Up-Adhyaksha, who has lost confidence of the majority of the members of the Zilla Parishad is to function as Adhyaksha or Up-Adhyaksha.

24. The provision for delivery of the said requisition to the Adhyaksha is obviously for giving notice to the Adhyaksha about the motion of no-confidence as against him/her or Up-Adhyaksha so that he/she may take proper steps for convening a special meeting without delay, and as far as possible within the time stipulated by Section 57(4). In our considered opinion, what is actually required is that the requisition must be brought to the notice of the Adhyaksha. Once the requisition made by the required number of members is brought to the notice of the Adhyaksha either directly by delivering it to him/her or indirectly through some reliable means, it has to be taken that there has been substantial compliance with the provisions of Section 57 of the Act.

25. On the other hand, if it is to be held that unless the requisition is delivered to the Adhyaksha directly or personally, the said requisition is to be treated as invalid, there would be many practical difficulties leading to jeopardy in democratic functioning of the Zilla Parishad.

In a given case, the concerned Adhyaksha despite having received a requisition signed by the required number of members for convening a special meeting for consideration of No-confidence Motion as against him/her, may flatly deny the fact of having received the requisition and he/she may insist that the requisition should be treated as invalid and non-existent in law. In that situation, democratic process for dislodging the concerned Adhyaksha, who has lost the confidence of the majority is not allowed to take place.

26. After all, democratic process includes not only choosing one’s own representative but also dislodging such elected representatives from their office in accordance with law. When Section 57(4) of the Act states for making delivery of the requisition to the Adhyaksha, it only means that the requisition must be brought to the notice of the concerned Adhyaksha and on knowing about the said requisition he is bound to proceed for convening special meting within the stipulated time as far as possible. In case the concerned Adhyaksha fails to convene the meeting, there are provisions of convening it on direction of the D.C. without delay. It is also provided in Section 57 of the Act that withdrawal of No-confidence Motion against the Adhyaksha or Up-Adhyaksha or both, as the case may be, shall not be allowed. In our opinion, the intention of the legislature is that whenever there is a requisition signed by the requisite number of members for consideration of No-confidence Motion as against the Adhyaksha or Up-Adhyaksha, the said motion should be considered without delay to preserve democratic value of majority rule in the functioning of the Zilla Parishad. The legislature would not have intended to give any room to the concerned Adhyaksha to manipulate and defeat the democratic process of dislodging him.

27. Having regard to all the relevant considerations, we are of the opinion that the said provisions in Section 57(4) of the Act requiring delivery of the requisition to the Adhyaksha is to be taken in the sense stated above and as such whenever it is ascertained that the requisition has been brought to the notice of the Adhyaksha not necessarily by actual delivery of it personally to him, it is to be taken that there has been substantial compliance of the provisions.

28. In our present case, as per finding already made, the said requisition was signed by the requisite number of members prescribed by Section 57(4) of the Act. Even though the Adhyaksha denies the fact of having received of the requisition on delivery, in the facts and circumstances of the case, we have no hesitation in holding that she has knowledge of the said requisition. In our opinion, there has been substantial compliance of the provisions of Section 57(4) of the Act. Further, in the fact and circumstances, there cannot also be any question of causing prejudice to the appellants in case of allowing to consider the said No-confidence Motion in a special meeting convening for the purpose.

We do not find any appreciable reason as to why the said Motion of No-confidence should not be allowed to be considered. We do not find any illegality having been committed by the learned Single Judge in passing the impugned direction for convening the special meeting for the said purpose.

30. The said direction was made for upholding the democratic value of majority rule in the functioning of the said Zilla Parishad in the public interest. No interference is called for in respect of the impugned order. Accordingly these two writ appeals, i.e. W.A. No. 38 of 2008 and W.A. No. 39 of 2008, are rejected. The C.E.O., Bishnupur Zilla Parishad shall issue the notice for convening specialmeetingofthe Bishnupur ZillaParishad as directed in the impugned order within a period of 7(seven) days from the date of receipt of this judgment and order. The other portion of the impugned judgment and order are to be complied with. No order as to costs.

Abdul Kakim vs State Of Mizoram And Ors. on 10 March, 2008

Gauhati High Court
Abdul Kakim vs State Of Mizoram And Ors. on 10 March, 2008
Equivalent citations: 2008 (2) GLT 90
Author: H Barua
Bench: H Barua


JUDGMENT

H. Barua, J.

1. Heard Mr. M.M. Ali, learned Counsel for the petitioner and also heard Mr. N. Sailo, learned PP for the State of Mizoram.

2. Revision petitioner Sh. Abdul Karim was arrested by Mamit Police in connection with Mamit Police Station Case No 1389/07 and 1512/07 registered under Sections 489(B) & 489(C) of the IPC and put him behind the bar. Revision petitioner was, subsequently released on bail after completion of statutory period of 90 days as provided under Section 167 Cr.P.C since the investigating agency failed to return both the cases in final form within the statutory period. Bail was granted by the learned ADM(J), Aizawl for Rs. 1,00,000/- in both the cases with a surety of like amount. But the revision petitioner being unable to arrange surety/sureties as directed by the court, preferred an application again before the ADM (J), Aizawl for reduction of the bail amount. The learned court, after taking into consideration of the matter in its entirety reduced the bail amount to Rs. 50,000/-. But despite such reduction, the revision petitioner still is unable to procure surety/sureties since none agrees to stand as such in view of amount of bail ordered.

3. Revision petitioner is still languishing in Jail. Hence, this present revision petition has been filed seeking further reduction in the bail amount.

4. Mr. M.M. Ali, learned Counsel for the revision petitioner in support of the application submitted that the revision petitioner, being a man hailing from Tripura is unable to procure a surety for Rs. 50,000/- as per order of the court and for that reason, he has filed this application under Sections 482/327/401 of Cr. P.C. It is further submitted by him that the intention behind the grant of bail with surety/sureties is to secure the presence of the accused in a subsequent proceeding that may be proceeded against him before a court and to avoid abscondence. Therefore, the court while dealing with a bail application must take all matters into consideration including the gravity of the offence(s) alleged and the imprisonment provided therefore.

5. Intention of the court should not be reflected otherwise by ordering a bail for an excessive amount which would not be a reach of the common people. According to Mr. MM. Ali, with that intention, legislature has incorporated Section 440 in the Code itself. Mr. M.M. Ali, therefore urges this Court to reduce the amount enabling the accused to procure surety for his release from Jail. It is also submitted by him that there is no chance of absconding or jumping from bail, since accused has a root in the society.

6. Mr. N. Sailo, learned PP for the State of Mizoram citing the provisions of Section 489(B) & 489(C) IPC and the punishment provided thereunder submitted that there is no reason for further reduction in the bail amount since the alleged commission of the offence are of serious in nature. Under the provisions of Section 489 (B) IPC, life imprisonment is provided while punishment of 7 years is provided under Section 489(C) of the IPC. Mr. N. Sailo, therefore, in view of the punishment provided in the Code itself prayes this Court not to allow further reduction in the bail amount.

7. It is true that granting of bail is a judicial act which cannot be delegated. In the absence of any law or rule, the Judge or the Magistrate must personally satisfy himself as to the reliability and solvency of the sureties. In the light of Section 446 of the Code, Magistrate may, insist that security alone can be termed sufficient when backed by valuable property of the value of the amount which can be secured in case of abscondance of the accused. But for the purpose of securing the attendance of the accused, it is not always necessary that excessive amount is to be ordered. Granting of bail is always dependant upon the facts and circumstances of the each case and the nature of the offence alleged.

8. Having considered the submissions of either party and the allegations so made against this accused/revision petitioner, this Court is of the opinion that the bail amount as provided in the order dated 15.2.08 appears to be in the higher side which needs reduction.

9. Accordingly, the bail amount is reduced to Rs. 20,000/- in each case. The conditions provided in the order shall be maintained in both the cases except condition No. 4.

10. This petition is accordingly allowed.

New India Assurance Co. Ltd. vs Sh. K. Vanlal Chhuanga And Anr. on 4 March, 2008

Gauhati High Court
New India Assurance Co. Ltd. vs Sh. K. Vanlal Chhuanga And Anr. on 4 March, 2008
Equivalent citations: 2008 (2) GLT 56
Author: H Barua
Bench: H Barua


JUDGMENT

H. Barua, J.

1. Heard Mr. Ricky Gurung, learned Counsel for the appellant and also heard Mr. S.N. Meitei, learned Counsel for the respondent No. 1.

2. This appeal has been filed under the provisions of Section 173 of the M.V. Act, 1988 for setting aside the judgment and award dated 2.9.04 passed by the learned Member, MACT Aizawl in MAC Case No. 49/2003.

3. Shri K. Vanlalchhuanga respondent No. 1 herein, on account of death of his son in a vehicular accident filed a claim petition before the learned Member, MACT Aizawl, claiming compensation to the tune of Rs. 15,00,000/-.

4. The learned Member, MACT, after due enquiry of the claim awarded Rs. 7,08,752/- as compensation together with interest at the rate of 9% p.a. from the date of filing of the claim petition to the claimant until realization. While awarding as such it was directed that the award along with interest shall be paid within one month from the date of passing of the impugned judgment and award.

5. Being highly aggrieved by and satisfied with the award, this present appeal has been preferred. Mr. Ricky Gurung, learned Counsel for the appellant at the very outset of his argument raised the following issues for decision:

(i) that the learned member committed error in applying the multiplier.

(ii) that the learned member also committed error in computing the compensation by taking the gross income of the deceased.

6. Mr. Ricky Gurung, the learned Counsel for the appellant in support of the contention in the context of the first issue argues that the learned Member had taken the multiplier at 17 taking the age of the deceased. But the learned Member ought to have taken the multiplier on the basis of the age of the father, the claimant. Here in our case, we have found that the father of the deceased filed the claim petition whose age is evidently at 49. Mr. Ricky Gurung argues that appropriate multiplier would have been 13 in view of the age of the claimant father. In the context of the second issue, the learned Counsel for the appellant also submits that the Last Pay Certificate of the deceased (Exhibit C/4) speaks for the gross salary at Rs. 5182/- and after all deductions the salary stands at Rs. 4508/- RM. But the learned member failed to consider the ratio laid in the case in between Asha and Ors. v. United India Insurance Co. Ltd. Anr. . Compensation was made by taking the gross income of the deceased which is not legal on the part of the learned member. In para 8 of the judgment, the Apex Court held as under:

8. Lastly, it was submitted that the salary certificate shows that the salary of the deceased was Rs. 8,632/-. It was submitted that the High Court was wrong in taking the salary to be Rs. 6,642/- It was submitted that the High Court was wrong in deducting the allowances and amounts paid towards LIC, society charges and HBA, etc. We are unable to accept this submission also. The claimants are entitled to be compensated for the loss suffered by them. The loss suffered by them is the amount which they would have been receiving at the time when the deceased was alive. There can be no doubt that the dependents would only be receiving the net amount less 1/3rd for his personal expenses. The High Court was therefore, right in so holding.

According to the learned Counsel for the appellant, had the multiplier 13 and net income of the deceased been taken, the compensation would have stand at Rs. 4,68,832/-. The compensation so computed by the learned member according to the learned Counsel for the appellant is erroneous and illegal and the same cannot sustain.

7. Mr. S.N. Meitei, learned Counsel for the respondent No. 1, however, raises a strong objection in the context of the application of the multiplier at 13 and also in the context of applying the net income in computing the award. It is submitted by him that life expectancy being 63.27, the appropriate multiplier would have been 16.12. This submission of Mr. S.N. Meitei does not hold good in view of the law laid down by the Hon’ble Supreme Court in the case between Gyan Chand Jain and Anr. v. Permanand and Ors. reported in 2003(1) TAC 490 (SC). In para 4 and 5 of the judgment the Hon’ble Supreme Court laid down as under:

4. Claimants, being aggrieved; filed the special leave petition in which leave was granted. learned Counsel appearing for the appellants argued that in the present case, keeping in view the age of the deceased, multiplier of 18 ought to have been applied. We do not find any merit in this submission. It is not disputed that maximum multiplier that could be applied is 18. Since the deceased was unmarried and the age of the mother was 49 years and that of the father was 55 years, the total loss of dependency has to be determined keeping in view the age of the parents. It is well established that age of claimants when they happen to be parents in the case of deceased unmarried child is a relevant factor for determining the multiplier to be adopted. Under such circumstances, the multiplier applied by the Tribunal which was upheld by the High Court is appropriate.

5. We do find a small infirmity in the order of the Tribunal. The income of the deceased was determined at Rs. 1,638/- p.m. The Tribunal erred in determining the total loss of dependency at Rs. 1,000/- p.m. The same should have been Rs. 1,100/- per month and as only 1/3rd was to be deducted towards the personal expenses of the deceased. In that view of the matter, the loss of dependency is determined at Rs. 1,100/- p.m. which comes to Rs. 13,200/- per annum. By adopting multiplier of 12 the total loss towards the loss of dependency comes to Rs. 1,58,400/-. By adding Rs. 3,000/- towards loss of love and affection and Rs. 3,000/- towards funeral expenses the total compensation comes to Rs. 1,64,400/- which is rounded of Rs. 1,65,000/- .The Insurance Company is directed to deposit the balance amount before the Tribunal, Kota within a period of six weeks from today alongwith interest at the rate determined by the Tribunal. On deposit of the amount, the claimants would be at liberty to withdraw the same.

In the case between Gyan Chand Jain and Anr. v. Permanand and Ors. (supra), the Hon’ble Apex Court was of the view that multiplier depending on the age of the parents would have been appropriate in computation of the award if the deceased was unmarried at the time of accident. Here in our case also the deceased was an unmarried Excise Constable and was receiving gross salary of Rs. 5182/- p.m. It is evident from the record that the age of the father who is the claimant is 49 years of age. Of course, there is no evidence on record to show that the age of mother of the deceased is 45. That apart, the mother is not the claimant. In that view of the matter the tribunal ought to have considered and taken into consideration the age of the father, the claimant himself. If the age of the father is taken at 49 and the net income of the deceased the award could have been calculated at Rs. 4,68,832/-

8. It is submitted by Mr. S.N. Meitei that though the claim application does not speak specifically about the Section under which it is made, the claimant has proved through evidence that the accident occurred due to rash and negligent driving of the driver and the deceased died as a result of ran over by the said truck. When the claimant has proved that the accident had taken place due to rash and negligent driving of the driver of the offending vehicle concerned, non-quoting of the appropriate Section of the law will not vitiate the award. It can be inferred from the facts and evidence led that the application is made under Section 166 of the Act. Negligence has also been proved by the claimant by proving exhibit C/5, C/6 & C/8. Exhibit C/5 is the FIR lodged by the Police while Exhibit C/6 is a Certificate issued by the doctor. Exhibit C/8 is a police report submitted by SIB. Lalbiakmawia Officer in-charge Vairengte Police Station, Kolasib District, dated 22.2.03, certifying that on 2.2.03 at around 7:30 PM one Tipper No. AS-10/3415 driven by Mr. John Alfred S/o. Lalruatsanga of Sakawrdai Village had run-over one K. Lalrinliana, an Excise Constable while the vehicle was moving back at Zalen Veng, Vairengte, which caused the death of the said K. Lalrinliana for which an inquiry was conducted and Vairengte P.S. Case No. 9/02 dated 2.2.03 under Sections 279/304(A) IPC was registered against the driver. These three exhibits go to show that there was negligence on the part of the driver while driving the vehicle which caused death of the Excise Constable on the relevant date. It is submitted by the learned Counsel for the appellant that computation cannot be made taking aid of the second scheduled of the M.V. Act since the income of the deceased was far beyond the limit of Rs. 40,000/- annually. This submission also will not hold good in view of the facts and evidence on record.

9. Having considered the facts and circumstances of the case and evidence on record, it would not be appropriate to say that the present application cannot be treated as an application made under Section 166 of the M.V. Act. These facts and circumstances and the evidence make it clear that it was made under Section 166 of the M.V. Act. It should be borne in mind that neither of the section finds place in the claim petition.

10. The calculation so made by the learned Member taking aid of the gross income and the multiplier at 17 is not acceptable in view of the law laid down by the Hon’ble Supreme Court in the case between Asha and Ors. v. United India Insurance Co. Ltd and Anr. and Gyan Chand Jain and Anr. v. Permanand and Ors. Accordingly, the award so computed is modified to the extent of Rs. 4,68,832/- plus funeral expenses of Rs. 2000/-, conventional amount of Rs. 10,000/- and loss of estate at Rs. 2500/- the total of which would carry 9% interest p.a.

11. The amount already received by the claimant shall be deducted from the total amount so computed and awarded.

12. Appeal is partly allowed.

State Of Mizoram And Ors. vs H. Lalrinmawia on 4 March, 2008

Gauhati High Court
State Of Mizoram And Ors. vs H. Lalrinmawia on 4 March, 2008
Equivalent citations: 2008 (2) GLT 32
Author: H Barua
Bench: H Barua


JUDGMENT

H. Barua, J.

1. This present appeal is preferred under Rule 18 of the Administration of Justice Rules, 1937 read with Section 100 of the Code of Civil Procedure against the Judgment and Order dated 7.9.05 passed by the learned ADC, Aizawl District, Aizawl in C.S. No 6/02 and also the Appellant judgment and order dated 4.8.06 passed by the ld. ADM(J) in RFA No. 14/05.

2. Heard Mr. N. Sailo, learned Addli A.G for the State of Mizoram for the appellants and also heard Mr. S.N. Meitei, learned Counsel for the respondent.

3. A Cross Objection is also filed by Shri H. Lalrinmawia, father of the deceased, seeking enhancement of the award made by the First Appellate Court.

4. On filing of this appeal, the following substantial question of law was formulated after hearing both the parties which reads as under:- “whether the appellants can be held negligent for payment of compensation of electrocution of the plaintiff’s son due to fluctuation of electric current”.

5. Before entering into the merit of this appeal and answering the question so involved, it would be appropriate for this Court to make a survey of the case of the plaintiff, respondent herein. Deceased Lalfakawma was the son of the sole respondent namely H. Lalrinmawia. On 19.1.02, the deceased Lalfakawma had been to the house of his maternal grand parent. At about 3 PM he got electrocuted while learning against the window. He was immediately taken to Hospital but he succumbed to his injuries so received. The respondent therefore, on the death of his son filed a suit before the Assistant to the Deputy Commissioner, Aizawl, claiming compensation for Rs. 7,27,000/- from the defendants, appellants herein on the ground that his son died due to negligence on the part of the defendants/appellants in maintaining the Transformer. Learned Assistant to the Deputy Commissioner on the pleadings of both the parties framed issues and received evidence from the plaintiff and defendants as well and at the conclusion of the trial awarded compensation for Rs. 3,50.000/- to the plaintiff-respondent.

6. Being aggrieved by the judgment and decree, the State appellants herein filed an appeal before the learned. ADM (J). The learned ADM(J), after hearing the learned Counsel of both parties had partly allowed the appeal and awarded compensation of Rs. 1,50,000/- Being aggrieved thereby, this present appeal has been preferred.

7. There is no dispute as to the death of the son of the respondent on 19.1.02 at about 3 PM in the house of his maternal grand father due to electrocution. The sole question to be decided in this appeal is whether the appellant authorities can be saddled with the burden of paying compensation on account of the death of the son of the respondent due to electrocution. Mr. N. Sailo, learned Addl. A.G for the appellants strenuously argued that there is no evidence on record to show that electrocution was due to negligence and fault on the part of the Power & Electricity Department. The accident occurred in the house of the maternal grand father of the deceased while the deceased was standing near the window.

8. It is argued by Mr. N. Sailo that the deceased negligently touched the naked wire over the window frame and accordingly electrocuted. It is argued by him that the appellant authorities therefore cannot be held liable for the wrong caused by the deceased himself. It is also argued by him that the evidence do not reveal that prior to the accident there was some complaint regarding malfunctioning of the transformer.

9. Per contra to the submission Mr. S.N. Meitei, learned Counsel for the respondent and the Cross Objector submits that it is the duty of the State appellants to maintain all Transformers and other electrical goods in proper way used for the purpose of providing electricity to the consumers and any negligence on the part of the department concerned, the department will be liable for any accident. Mr. S.N. Meitei leading this Court through the evidence on record and the judgments rendered by the trial court and the first appellate court submitted that in regard to the fact of malfunctioning of the Transformer which is situated nearby the house of the maternal grand father where the accident occurred and negligence on the part of the appellants, both the courts below arrived at a concurrent finding that the accident occurred due to negligence on the part of the department concerned in maintaning the transforme.

10. From the evidence on record, it is found that at about 3 PM there was heavy fluctuation of electric current at Sihphir Vengthar and there was a sound of explosion and electric supply line were shaking and the Transformer got fired. The said incident had resulted damages of Televisions, Refrigerators etc. There is also evidence on record to show that Young Mizo Association, in short YMA also lodged complaints to the appropriate authority regarding malfunctioning of the said Transformer. This aspect together with the evidence on record makes it clear that despite complaints made, the appropriate authority did not take any action for correction of the defects in the said Transformer. This aspect of the matter clearly shows that the Transformer which exploded on the relevant date was catering some defects from long before and the defects were not rectified and allowed to subsist by the department.

11 Mr. S.N. Meitei, learned Counsel for the respondent herein and the Cross Objector as well in support of his contention relied on a decision in the case of H.S.E.B and Ors. v. Ram Nath and Ors. Here in this appeal, we have also found that the fluctuation of current occurred due to fault in the Transformer or in other words for malfunctioning of the same for which the accident occurred inside the house of the maternal grand father which resulted damages of Televisions, Refrigerators etc and death of the deceased.

12. This court, therefore, having considered the facts and circumstances of the case and the evidence on record is of the view that compensation can be awarded to the respondent for death of the deceased by electrocution which happened as a result of negligence on the part of the concerned department even if the same was caused inside the residence. The claim of the respondent is that death occurred to his son due to negligence on the part of the appellant authorities for not maintaining the Transformer in a proper way. The objection raised by Mr. N. Sailo, learned Addl. A.G. for the appellants, in view of the findings of the learned courts below is not sustainable. The learned Trial court awarded compensation of Rs. 3,50,000/- and the same was reduced to Rs. 1,50,000/- by the First Appellant Court. The amount of compensation so awarded by the First appellate court appears to be reasonable. This court further does not see any ground to accept the contention of the respondent for enhancement of the award.

13. Mr. N. Sailo also informs that at the time of admission, the appellants deposited 50% of the award with the Registry as a condition for stay of the impugned judgment and award. The respondent will be at liberty to withdraw the same from the Registry. Registry will release the amount on proper identification.

14. The remaining 50% of the award shall be paid by the appellant authorities within two months from the date of receipt of this order along with interest at the rate of 6% per annum on the whole award. The interest shall be calculated from the date of judgment of the first appellate court.

15. In the result, this second appeal as well as the Cross Objection filed by the respondent are dismissed. No cost.

In Re: Lalit Kalita And Ors. vs Unknown on 4 March, 2008

Gauhati High Court
In Re: Lalit Kalita And Ors. vs Unknown on 4 March, 2008
Equivalent citations: 2008 (1) GLT 800
Author: R Gogoi
Bench: R Gogoi, A Roy


JUDGMENT

Ranjan Gogoi, J.

1. In a vernacular daily “Ajir Dainik Batori” published from Guwahati dated 10.8.2005, the following news item (translated version) was published:

Even Hon’ble Judge is in Himanta Biswa’s grip.

Sensational appeal in Gauhati High Court Staff Reporter

Guwahati, August 9,-AP.I.L filed in the Gauhati High Court which is a testimony (testify) how Himanta Biswa Sarma, Minister of the State for Finance, Planning and Agriculture, Assam, who has gradually become impudent because of blind support from Chief Minister Tarun Gogoi, is trying to corrupt (desecrate)even the interior of Hon’ble Court, has vigorously shaken the conscious section of the people in the State. According to a copy of this petition that has reached us this tainted young minister not only caused disappearance of the records of two serious cases registered at Chandmari PS but was also been able to misguide a judge by his political influence. As per information that have reached us, a case was registered against Himanta Biswa Sarma, then a student, at Panbazar P.S. on 12.1.91 for offences punishable under section (i)(A) of Arms Act, and under sections 3 and 4 of TADA 1987, for having collected a huge amount of money in the name of ULFA.

The number of this case was 15 on the other hand, on March 28 of the same year a case was registered against him at Chandmari P.S. for offences punishable under Sections 10, 11, 12 and 13 of Unlawful Activities (Prevention) Act, 1987 and under TADA on the basis of an ejahar alleging collection of money from a few senior Govt. officers and some selected businessmen in Greater Guwahati in the name of ULFA by threat and even by physical assault. The number of this case was 17. As per information gathered during preliminary investigation at that time, the amount of money illegally collected by Himanta Biswas Sarma was more than 90 lakhs. Only for the Chandmari P.S. case the police not only arrested him, but also sent him to jail. Immediately after his release from jai1 on bai1 a cunning Himanta Biswa upturned all equations. Leaving aside the Chatra Santha, he overnight took shelter with then powerful Chief Minister Hiteswar Saikia. Adept in the politics of sycophancy, Himanta Biswa Sarma became the most trusted lieutenant of Chief Minister Hiteswar Saikia in a very short time. About that time the records of the cases involving Himanta Biswa Sarma got mysteriously missing from both Chandmari and Panbazar Police Stations. Even the most vital case diaries also could not be traced (?). This resulted in complete stagnation of the entire investigation procedure. Subsequently, the C.J.M., vide his Order dtd. 8.1.99 instructed the investigating officer, A.S.I. T.K. Das to prepare the case records fresh including the case diaries. But the later refrained from doing so, saying that the records had not been returned by Sri Asim Roy, the then DIG of Police, Assam. Whereas departmental proceeding should have been initiated into the allegations of mysterious disappearance of records of a number of cases registered against him with several police stations, it was Himanta Biswa Sarma who filed a Writ Petition in the Gauhati High Court praying for acquittal of the charges the records which were not available with the registering authority- the Police Stations. The High Court allowed eight weeks’ time for re-examination of the records but that Order remained unpursued. No documents relating to the cases have reached the High Court even after so many years have elapsed. Even the High Court also did not show any interest (urgency) in the matter.

Even as these incidents were going on, Himanta Biswa Sarma got elected to the Assembly from Jalukbari constituency, soon after becoming the Finance Minister, he became the most powerful minister in the State. On 22.03.04 Bhuban Gogoi, President, Daksin Nanoi Gaon Panchayat, Nagaon filed a P.I.L in the High Court to stop Himanta Biswa Sarma from influencing the Court in giving a judgment in his favour. The case came up for hearing in the Division Bench of Chief Justice Naolekar and Justice Ranjan Gogoi on 08.06.04. Surprisingly, the Chief Justice kept himself off from hearing the case, saying that since Himanta Biswa Sarma, as member of the Gauhati High Court Construction Committee, was frequently meeting him, he should not take up for hearing the case involving him. Consequently, the case (P.I.L No. 16) was listed in the Division Bench of Justice P.G. Agarwal and Justice D. Biswas for hearing on 18.6.04. Although Justice Biswas laid great importance to the contents of the P.I.L, Justice Agarwal summarily rejected the same, saying that it was absolutely baseless. Significantly, though there was difference of opinion between the two justices on the acceptability of the P.I.L., Justice Agarwal (played a major (noticeable) role in negating the issue).

Be that as maybe, the judgment in the said P.I.L was delivered after ninety days. Aday after that Justice Agarwal started for Singapore on a pleasure trip. Who bore the expenditure of that trip is still a mystery. What is more interesting is that during the pendency of the said P.I.L, a plot of 20 bighas of govt. land at Village Numalijoha under Mauza Shila Sendurighopa in Himanta Biswa Sarma’s Jalukbari constituency was allotted in favour of M/s Jerico Detergent Private Limited, an organization owned by Justice Agarwal’s daughter. Deputy Commissioner (Rural), Kamrup, vide his letter No. KRS164/04/13 dtd. 29.9.04, allotted this land to Justice Agarwal’s daughter and son-in-law for a paltry sum of Rs. 50,000.00 per bigha although the prevalent market value of the said land the was at least rupees two crores. That was not all, a son of Justice Agarwal also developed intimacy with Minister Sharma and was rewarded (obtained) with the licence for a wine shop.

At a time when, for use of a telephone or for being forced to shelter an ULFA Cadre for a night, the common citizens are constantly being harassed by the Police, the army and even by the Courts, the P.I.L. of Bhuban Gogoi against showering undue favour on Himanta Biswa Sarma by the Police Stations, Police Officers, Courts and the presiding judges has caused a considerable stir in the minds of people.

The words included in brackets as above, according to the respondents, would be a more accurate version of the translation made.

2. The aforesaid translated news item having been placed before the Hon’ble Chief Justice (Acting), by an order dated 3.10.2005 the matter was directed to be posted on the judicial side. Thereafter, by order dated 4.10.2005, the Court directed notice to be issued to the publisher, the editor and the executive editor of the newspaper. Pursuant to the said order of the Court, notices were issued. In response thereto, the respondent Nos. 1,2 and 3 i.e. the publisher, the editor and the executive editor of the newspaper appeared in the Court through their counsel. The Court had appointed Mr. A.K. Goswami, a learned senior counsel as the amicus curiae in the present proceeding.

3. Three sets of affidavits dated 2.1.2006, 3.3.2006 and 4.1.2008 have been filed by each of the respondents. The stand taken by the respondents in each of the affidavits will be necessary to be noticed at this stage.

4. In the affidavit dated 2.1.2006 filed by the respondent No. 1 i.e. the publisher it has been stated that by order dated 4.10.2005 passed by the Court no cognizance of any contempt committed by the respondents has been taken by the Court; no charge under Section 17 of the Contempt of Courts Act, 1971 (hereinafter referred to as ‘the Act), has also been specified or framed. In the affidavit filed, the respondent No. 1 has further stated that the news item in question was published in respect of the proceeding registered and numbered as PIL No. 16/2004 and WP(C) No. 558/99, both of which had been disposed of on 1.10.2004 and 31,3.2004 respectively. It is, therefore, asserted that as the news item was in connection with a proceeding which was not pending at the time of publication of the same, publication of the said news item will not constitute contempt of the Court. That apart, the respondent No. 1, in the affidavit filed, has further stated that the news item in question contains only fair comments based on the facts mentioned therein and that the same does not cause any interference in the administration of justice; neither does the said news item, according to the respondent No. 1, bring the Court or any Hon’ble Judge to disrepute. The respondent No. 1, in the affidavit dated 2.1.2006, has categorically stated that the words “is trying to cormpt (desecrate) even the interior of the Hon’ble Court” and ” has also been able to misguide a judge by his political influence” is an honest opinion expressed and that the imputation contained clearly is directed only against an individual i.e. Himanta Biswa Sarma and not against the Hon’ble Court or any Hon’ble Judge. Similarly, the sentence reading as “even the High Court also did not show any interest (urgency) in the matter” is an expression of a fair comment and a reflection of the opinion formed from the facts based on records. In this regard, the respondent No. 1 has stated that the writ petition filed by Sri Himanta Biswa Sarma on 11.2.99 [WP(C) 558/99] had remained pending in the Court for more than years without any progress. In para 9 of the affidavit dated 2.1.2006, according to the respondent No. 1, the sentence reading as “Although Justice Biswas laid great importance to the contents of the PIL, Justice Agarwal summarily rejected the same, saying that it was absolutely baseless. Significant, though there was difference of opinion between the two Hon’ble Judges on the acceptability of PIL, Justice Agarwal played a major role in negating the issue” contains an impression formed by the editor who was personally present in the Court on the date of hearing and, therefore, publication of the said sentence is an exercise of freedom of the press and freedom of speech and expression enshrined under Article 19(1) (a) of the Constitution. In so far as the third part of the news item in question, i.e. allotment/settlement of land is concerned, according to the respondent No. 1, the said report is based on information derived from the records and the same was published with the intention of drawing the attention of the public to the correct facts. The respondent No. 1 has further asserted that it is the duty and responsibility of a free press to bring matters of public importance to the notice of the general public. In this regard, the respondent further states that 20 bighas of land in Village Numalijallah under Shila Sendurighopa Mouza was settled by the Government of Assam with M/s Jerico Detergents Private Limited on payment of 150% of the land value (Rs. 50,000/- per bigha) as premium by Government letter No. RSS.708/2004/32 dated 20.1.2005 on the recommendation of the Deputy Commissioner, Kamrup (Rural) by letter No. KRS. 169/2004/13.dated 29.9.04. The respondent has asserted that though in the Government letter dated 5.12.2003, the valuation of the land in Greater Guwahati Town area had been fixed, the price of the land in Numalijallah village was not included. However, according to the respondent, on the basis of the information gathered, the market price of the land in an around Numalijallah would be several times higher than Rs. 50,000/- per bigha. In addition to the above, the respondent No. 1, in the affidavit filed, has stated that in another vernacular daily newspaper i.e. Akhomiya Khabar, in the issue published on 3.2.2005, it was reported that another 20 bighas of land was allotted to M/s Jerico Detergent Private Limited at a nominal price. As according to the respondent, large areas of land were being settled with the Company in question at premiums substantially lower than the value fixed by the Government in the neighbouring localities, it was considered necessary to publish the said facts in the news item in question. In so far as the sentence “a son of Justice Agarwal also developed intimacy with Minister and was rewarded with (obtained) a licence for a wine shop” is considered, the respondent No. 1, in the affidavit filed, has stated that the same is a fair comment and would not attract the provisions of the contempt law. In paragraph 16 and 17 of the affidavit filed, the respondent No. 1 has stated that the news item in question merely “contain reasonable and fair comments based on authentic and acceptable materials”. According to the respondent No. 1, the said facts were published to draw public attention to the attempts made by the politicians to pollute even the judicial system by showing undue favour to persons or organizations where a Judge may be interested. The said news item, according to the respondent, was not intended to bring disrepute to the Court or to any Hon’ble Judge. In the concluding part of the affidavit, the respondent No. l has, however, stated that after going through the news item in question “he believes that the language and tone of the news item should have been polite, respectful and dignified and the words chosen should have been more carefully done”. According to the respondent No. 1, this lapse has made him repentant for which he tenders his sincere and unqualified apology to the Court.

5. In the affidavit dated 2.1.2006 filed by the respondent No. 2 i.e. the editor of the newspaper apart from the statements made in the affidavit of the first respondent, as noticed above, there are certain additional statements of fact which must be taken note of by the Court. The respondent No. 2, in the affidavit filed, has asserted that the notice issued by the Registry of the Court pursuant to the order dated 4.10.2005 asks the respondent merely to show cause which is not in conformity with the notice prescribed by Rule 6(3) of the Contempt of Courts (Gauhati High Court) Rules, 1977. According to the respondent, the notice issued requiring him to show cause is also not in conformity with the order of the Court dated 4.10.2005, inasmuch as, there is no direction in the aforesaid order requiring the respondent to show cause. According to the respondent No. 2, the sentence “Although Justice Biswas laid great importance to the contents of the PIL, Justice Agarwal summarily rejected the same, saying that it was absolutely baseless. Significantly, though there was difference of opinion between the two justice on the acceptability of PIL, Justice Agarwal played a major role in negating the issue” appearing in the second paragraph of the news item was based on an impression of the respondent No. 2, which impression was formed after hearing the interaction between the Hon’ble Judges of the Bench and the learned Counsel for the parties. In the affidavit filed, the respondent No. 2 has further stated that when the matter came up for hearing on 1.7.2004, a prayer was made on the behalf of the petitioner for a short adjournment to file a reply affidavit and also to enable the out-station counsel engaged by the petitioner to be present at the hearing. According to the respondent No. 2, while Justice Biswas was inclined to allow the adjournment, Justice Agarwal had expressed his opinion that there was no merit in the PIL and therefore the adjournment prayed for need not be granted. Thereafter, according to the respondent No. 2, the PIL was heard on 1.7.2004 by denying the petitioner the privilege of having his case argued by his senior counsel and to file a reply affidavit. The respondent No. 2, in the affidavit filed, has further stated that the hearing taken up in the above manner though was concluded on the same day i.e. 1.7.2004, the judgment in the case was delivered on 1.10.2004 i.e. 91 days after hearing of the matter. Furthermore, in the affidavit filed the respondent No. 2 has stated that the visit of Justice Agarwal to Singapore is a fact and, therefore, the news item stating the said fact does not in anyway affect the integrity and fairness of the Judge nor does it bring the administration of justice to disrepute. In so far as the allotment of 20 bighas of land in the constituency of Sri Himanta Biswa Sarma to the company owned by Justice Agarwal’s daughter and son-in-law is concerned, according to the respondent No. 2, the said part of the report is based on record and relevant information gathered. Elaborating, the respondent No. 2 on the basis of the records of the Company made available by the Registrar of Companies, North Eastern Region, asserts that Justice Agarwal was a share holder of M/s Jerico Detergent Private Limited, in which company, his son, daughter-in-law and other close family members were the other shareholders. In paragraph No. 22 of the affidavit filed by the respondent No. 2, the said respondent has taken full responsibility for the news item by stating that the respondent Nos. 1 and 3 being the publisher and the executive editor they are in no way responsible for publication of the news item in question. In paragraph 23 of the affidavit, the respondent No. 2 has stated that he is a young journalist who is still learning and gathering experience. The respondent No. 2 has further stated that the news item was published for the benefit of the public and the society at large and was not intended to scandalize or lower the authority of the Court. The said respondent has further stated that as a journalist he has always stood for the independence of the judiciary and that notwithstanding the fact that the news item was edited and published in the interest of a public cause, the language used should have been more polite and dignified, for which he is tendering his sincere and unqualified apology to the Court.

6. The affidavit dated 2.2.2006 filed by the respondent No. 3 is more or less to the same effect and, therefore, the contents thereof need not be specifically recited in the present order.

7. The affidavit dated 3.3.2006 filed by the respondent Nos. 1,2 and 3 contains more of less similar averments. Three sentences in the news item have been identified by the respondents as containing undignified and inappropriate language besides being “wholly irrelevant and unnecessary for bringing to public notice the facts intended to be conveyed by the news item dated 10.8.2005”. In the affidavit filed, all the three respondents have expressed their regrets for using “intemperate language in the aforesaid three sentences” and have expressed their repentance for the words used. In the affidavit filed, the respondents have stated that they had taken a joint decision “to tender unqualified apology for using improper language in the aforesaid three sentences by publishing the same prominently in the same newspaper i.e. Ajir Dainik Baton, if so permitted by the Court.

However, in the same affidavit dated 3.3.2006, the respondents have further stated that even prior to the publication of the news item dated 10.8.2005, there was another news item under the caption “Land scandal in North Guwahati sponsored by young minister” which was published on 10.2.2005 in the same newspaper i.e., Ajir Dainik Batori in the first page. The above news item was also in respect of the same subject matter in connection with which the news item dated 10.8.2005 was published. The respondent Nos. 2 and 3, in the affidavit dated 3.3.2006, have further asserted that Justice Agarwal, at the relevant point of time, was holding 18000 shares valued at Rs. 1.80 lakhs in M/ Jerico Detergent Private Limited.

8. The respondents have however stated, in the affidavit dated 3.3.2006, that the intimacy developed by the son of Justice Agarwal with Sri Himanta Biswa Sarma is an individual relationship and that the same has nothing to do with Justice Agarwal. Moreover, it was during the time when Justice Agarwal was holding the office of the Registrar General of the Gauhati High Court at the Principal Seat that the foreign liquor licence was granted to his son which happened to be during the tenure of the AGP Government. In the affidavit dated 3.3.2006, the respondents have further mentioned the details of other news items appearing in other vernaculars/ newspapers published from Guwahati on different dates with regard to the same subject matter involved. The reaction of the Gauhati High Court Bar Association with regard to the aforesaid news items have also been mentioned in the affidavit dated 3.3.2006 by stating that the attention of the Chief Justice of the High Court and the Chief Justice of India was drawn by the Bar Association to the news items in question.

9. Thereafter, pursuant to the stand taken by the respondents in the affidavit dated 3.3.2006 with regard to the three sentences in question and in terms of the orders passed by the Court, in the issue of the newspaper Ajir Dainik Batori, published on 27.11.2007, a clarification was published in a box item on the first page of the newspaper by the respondents. The translated version of the aforesaid clarification as set out by the respondents in their additional affidavit dated 4.1.2008 is as follows:

AJIR DAINIK BATORI DATED 27.11.2007

During the time when we were working as the Editor, the Executive Editor and the publisher of Ajir-Dainik Batori’, respectively, a news item entitled “Even the hon’ble Judge is in Minister Himanta Biswa’s Grip” was published in its issue dated 10″1 August, 2005. We have realized that in the said news item, the heading along with the below mentioned sentences were published in intemperate language and in a manner which was irrelevant and erroneous.

(a) Even the Hon’ble Judge is in Minister Himanta Biswa’s grip.

(b) A day after that Justice Agarwal started for Singapore on a pleasure trip. Who bore the expenditure of that trip is still a mystery.

(c) That was not all, a son of Justice Agarwal also developed intimacy with Minister Sarma and had obtained a licence for a wine shop.

We are expressing our regret for the unnecessary incorporation of these sentences in the news item and for this we are repentant. We tender our unconditional apology before the Hon’ble Gauhati High Court for this unintentional error.

SHRIADEEP KUMAR PHUKAN
SHRI BHUPENDRA NATH
BHATTACHARYYA
SHRI LALITKALITA

10. It must however be noticed that not-withstanding the publication of the above clarification, in the supporting affidavit dated 4.1.2008 the regret expressed and the apology tendered is for the intemperate, undignified and inappropriate language used. Furthermore, neither in the above publication nor in the affidavit dated 4.1.2008 there is any mention that the sentences in question conveyed facts which were incorrect or even inaccurate.

11. The pleadings having been set out, the oral arguments advanced may now be taken note of. Mr. Bhattacharyya, learned senior counsel apart from urging that cognizance of any contempt committed by the respondents has not yet been taken by the Court has also argued that the notices issued to the respondents by the office/Registry is neither in conformity with the order dated 4.10.2005 nor with the form prescribed under the Rules. Mr. Bhattacharyya has argued that the matter, therefore, should not be proceeded with any further by the Court. That apart, Mr. Bhattacharyya has urged that from the very inception of the present proceeding the respondents have been expressing their regret for the undignified and intemperate language used while publishing the news item and that the respondents have tendered their unconditional apology insofar as the three sentences of the news item is concerned. The respondents have in fact withdrawn the said three sentences from the offending news report by publishing a clarification in the front page of the newspaper dated 27.11.2007. Mr. Bhattacharyya has, therefore, argued that what would be left of the news item in question, if the three sentences are allowed to be deleted by the Court, would be the report of the refusal of adjournment on 1.7.2004 by the Bench and the exchange of words between the two Hon’ble Judges sitting on the Bench. According to Mr. Bhattacharyya, publication of the aforesaid facts will not amount to contempt of Court. The other part of the news item which would remain i.e. matter regarding allotment of land, according to Mr. Bhattacharyya, is based on the official Govt. records showing the process of such allotment which record is before the Court. According to Mr. Bhattacharyya, the date of the allotment order issued by the Deputy Commissioner mentioned in the news item is correct and, therefore, substantiated by the official records. If that be so, the news item, in so far as the allotment of land is concerned, is correct.

12. Hence, according to Mr. Bhattacharyya, the respondents will not be liable for contempt for publishing the facts in question which have been demonstrated to be correct by the official records. Mr. Bhattacharyya has alternatively urged that that even if this Court is to hold that the news item contains scandalous and offensive matters, a reading of the news item, at best, would show that the aspersions cast and insinuations made are directed against a particular Judge and not against the institution or the Judges as a whole. If that be so, on the authority of several decided cases, details of which will be noticed later, Mr. Bhattacharyya has contended that the news report in question at best may amount to slander or defamation of the particular Judge to ventilate which grievances, the concerned Hon’ble Judge has adequate remedies in criminal law which maybe availed of. As the administration of justice has not been brought to disrepute and the institution and other Judges are in no way affected even if slanderous facts are assumed to have been made in the offending news item, it is argued that the respondents cannot be made liable under the contempt law.

13. Mr. A.K. Goswami, learned amicus curiae, in the true spirit and traditions of rendering assistance to the Court, has submitted that it is the tenor of the news item as a whole, the insinuations cast or capable of being understood to be cast, if any, and the inferences that the author/ editor is asking the average reader to draw from the facts stated, which must be determined in the instant case by application of the yardstick of a reasonable man. Thereafter, if on application of such yardstick to the facts stated, a conclusion can be reached that the news item contains slanderous remark against the judicial system or cast insinuations or in any way is capable of conveying an impression that affects the system as a whole, it must be held that by publishing the news item contempt has been committed. It is only thereafter, according to Mr. Goswami, that the question of apology and offer of withdrawal of the three offending sentences that must be considered by the Court and if the respondents are to be allowed the said privilege, such conduct of the respondents should be kept in mind by the Court while deciding the question of the penalty that should be imposed. According to the learned amicus curiae, the above would constitute the correct approach that is required to be adopted to arrive at a just conclusion in the matter.

14. Judiciary is not over-sensitive to criticism; in fact, bona fide criticism is welcome, perhaps, because it opens the doors to self- introspection. Judges are not infallible; they are humans and they often err, though, inadvertently and because of their individual perceptions. In such a situation, fair criticism of the viewpoint expressed in a judicial pronouncement or even of other forms of judicial conduct, is consistent with public interest and public good that Judges are committed to serve and uphold. The system of administration of justice, therefore, would receive due impetus from a realization amongst Judges that they can or have actually erred in their judgments; another perspective, a new dimension or insight must, therefore, always be welcome. Such a realization which would really enhance the majesty of the Rule of Law, will only be possible if the doors of self-assessment, in the light of the opinions of others, are kept open by Judges.

15. Escalating arrears; endless debates even on interlocutory matters and procedural wrangles; decade long trials are some of the instances that demonstrate the increasing in-ability of the judicial system to deliver the goods expected of it. Such instances have far more ominous portents of eroding public confidence in the system than mere publication of a few misguided expressions of opinion either on the substance of a judicial verdict or on the manner in which the verdict has been reached. Public confidence is bound to grow if the system of administration of justice is capable of delivering ‘timely justice’, the deleterious effect of a few misguided publications, notwithstanding. The aim, therefore, should be to gain public confidence by exemplary conduct and performance instead of proceeding in the contempt jurisdiction, an exercise which has often been labeled as a close circuit proceeding where the Judge is the accuser as well as the arbiter. That is why in modern European democracies including the United Kingdom the offence of scandalizing the Court has become near obsolete, as noticed by Michael Addo of the University of Exeter in his Work “Freedom of Expression and the Criticism of Judges”. The approach of the British judiciary in maintaining a story silence in respect of the publication “The fools” appearing in the Times London following a spy catcher case bears ample testimony to the above. The exercise of the contempt jurisdiction must also be viewed from the standpoint of the necessity of not only having a confident judiciary but also a fearless press both of which are indispensable requirements of a healthy democracy. Such a realization must also dawn upon the Fourth Estate and if required by means of a judicial message. The observations of Lord Denning in Regina v. Commr. of Police of the Metropolis, Ex parte Blackbkn (1968) 2 WLR 1204, extracted below would amply sum up the above situation.

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.

It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.

Exposed as we are to be winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter I hand. Silence is not an option when things are ill done.

16. But when should silence cease to remain an option? Where is the line to be drawn? A contemptuous action is punishable on the touchstone of being a wrong to the public as distinguished from the harm caused to the individual Judge. Public confidence in the judicial system is indispensable. Its erosion is fatal. Of course, Judges by their own conduct, action and performance of duties must earn and enjoy the public confidence and not by the application of the rule of contempt. Criticism could be of the underlying principle of a judicial verdict or its rationale or reasoning and even its correctness. Criticism could be of the conduct of an individual Judge or a group of Judges. Whichever manner the criticism is made it must be dignified in language and content because crude expressions or manifestations are more capable of identification of the alleged wrong with the system as a whole. Motives, personal interest, bias, pre-disposition etc. cannot be permitted to be attributed as being responsible for the judicial verdict, unless, of course, the same can be established as an existing fact. It is the above category of acts or publications that would fall within the prohibited degree warranting action in contempt law.

17. A word on the defence of truth in a contempt proceeding. Statutory recognition of truth as a defence brought about by the amendment to Section 13 of the Contempt of Courts Act, 1971 (by Act VI of 2006), though hedged in by the requirement of being bona fide and necessary in public interest, has possibly come as an answer to some over zealous and obstinate judicial responses though by and large the Indian judiciary has always taken note of truth or the correctness of the major premise of a journalistic exercise reflecting opinions and conclusions pertaining to the judicial system. The near consistent view that an expression of journalistic opinion, if made bona fide and fairly and designed for public good must receive due respect and tolerance is amply testimony of the perception of the Courts in the matter. The long discourse laid above would find its roots in several judicial pronouncements including those cited at the Bar in the present case, the core of which will now be required to be noticed.

18. The view expressed by Lord Atkin in Andre Paul Terence Ambard v. The Attorney General of Trinidad and Tobago AIR 1936 Privy Council 141 has been unflinchingly understood till date to be an expression of the correct approach of the Courts exercising contempt jurisdiction. An article published in the Port of Spain Gazette under the title ‘Human Element’ and recording the views of the author with regard to the adequacy of the sentences passed by two learned Judges following convictions in two criminal trials in somewhat similar circumstances was required to be considered in the domain of the contempt law. The observations of Lord Atkin which have been repeatedly quoted in numerous pronouncements, till date, as laying down the correct approach must also be noted in the present case.

But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way : the wrongheaded are permitted to err therein : provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue : she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.

19. The above view of Lord Atkin found manifestation, though in a different form, in Debi Prasad Sharma and Ors. v. Emperor . In the aforesaid case the Privy Council was required to give its views on the question whether the Editor and Publisher of Hindustan Times had committed any contempt by expressing their opinion on the correctness of an administrative circular claimed to have been issued by the Chief Justice of the Allahabad High Court calling upon judicial officers to contribute to the war efforts. The following observations contained in the judgment of Lord Atkin would be relevant for formulating our views in the present matter.

The cases of contempt which consists of “scandalizing the Court itself are fortunately rare, and require to be treated with must discretion. In 1899 this Board pronounced proceedings for this species of contempt to be obsolete in this country, though surviving in other parts of the Empire : but they added it is a weapon to be used sparingly and always with reference to the administration of justice, 1899 AC 549.

If the facts were as alleged they admitted of criticism. No doubt it is galling for any judicial personage to be criticized publicly as having done something outside his judicial proceedings which was ill-advised or indiscreet. But judicial personages can afford not to be too sensitive. A simple denial in public of the alleged request would at once have allayed the trouble. If a Judge is defamed in such a way as not to affect the administration of justice he has the ordinary remedies for defamation if he should feel impelled to use them. Their Lordships cannot accept the view taken by the Court as stated above of the meaning of the comment : the words do not support the innuendo. In the opinion of their Lordships, the proceedings in contempt were misconceived, and the appellants were not guilty of the contempt alleged.

20. The next case which must receive our attention is Bathina Ramakrishna Reddy v. State of Madras . In the said case the publisher and managing editor of a Telegu Weekly i.e. ‘Praja Rajyam’ published an article under the caption “Is the Sub-Magistrate, Kowur corrupt?” In the said article it was stated that one Surya Narayan Murthi, Sub-Magistrate of Kowur, was a known bribe taker who was also in the habit of harassing the litigants in different ways. In the article in question it was also mentioned that there was a broker through whom negotiations were carried out. Several specific instances of cases tried by the officer were cited in which, according to the article, the judicial officer had taken bribes.

One of the contentions advanced in support of the defence was that even assuming the views expressed to be correct, at best, a penal offence covered by the specific provisions of the Indian Penal Code was made out and therefore no action in contempt would lie.

The Apex Court in paragraph 11 of the judgment did not accept the contention advanced and took the view that:

A libellous reflection upon the conduct of a Judge in respect of his judicial duties may certainly come under Section 499, Penal Code, and it may be open to the Judge to take steps against the libeler in the ordinary way for vindication of his character and personal dignity as a Judge; but such libel may or may not amount to contempt of Court.

Continuing the Apex Court took the further view that when the act of defaming a Judge has the effect of obstructing or interfering with the due course of justice or proper administration of law it would certainly amount to contempt. The offence of contempt is really a wrong done to the public by attempting to undermine the authority of the Courts which exists for public good. On the facts of the case the Apex Court came to the conclusion that the article in question was an attack on the integrity and honesty of the judicial officer without there being any basis for the same and therefore the appellant cannot be said to have acted bonafide and with reasonable care and caution. The charge of contempt as well as the punishment imposed was, therefore, upheld.

21. The next case that we consider it necessary to refer to is the decision rendered by the Apex Court in Brahmaprakash Sharma and Ors. v. State of Uttar Pradesh . The facts of the said case must be noted in brief. On 20th April 1949 the Executive Committee of the District Bar Association at Muzaffarnagar (U.P.) adopted certain resolutions regarding the conduct of two judicial officers functioning at Muzaffarnagar at the relevant point of time. The said resolutions were to the effect that the officers in question were thoroughly incompetent in law; they do not inspire confidence in the judicial work; the judicial orders passed by them are based on wrong facts and the officers have an overbearing and discourteous attitude to the members of the Bar as well as the litigant public. By another resolution of the Executive Committee it was resolved that copies of the said resolution be sent to the Premier of the State, the Chief Secretary as well as the District Magistrate. The reasons for the eventual conclusion reached by the Apex Court to drop the contempt proceedings against the alleged wrong doers need not detain the Court. What would be significant is the view expressed with regard to the correct judicial approach in such matters. The said views being contained in paragraphs 11 and 12 of the judgment, the relevant extracts therefrom are quoted herein below:

(11) It seems, therefore, that there are two primary considerations which should weigh with the court when it is called upon to exercise the summary powers in cases of contempt committed by ‘scandalising’ the court itself. In the first place, the reflection on the conduct or character of a judge in reference to the discharge of his judicial duties, would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice. It is not by stifling criticism that confidence in courts can be created….

(12) In the second place, when attacks or comments are made on a Judge or Judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is a libel on the Judge and what amounts really to contempt of court. The fact that a statement is defamatory so far as the Judge is concerned does not necessarily make it a contempt.

The position therefore is that a defamatory attack on a Judge may be a libel so far as the Judge is concerned and it would be open to him to proceed against the libellor in a proper action if he so chooses. If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such court, it can be punished summarily as contempt. One is a wrong done to the Judge personally while the other is a wrong done to the public. It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from placing complete reliance upon the Court’s administration of justice, or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties. It is well-established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely, or tends in any way, to, interfere with the proper administration of law.

22. Several other judgments, details of which need not be noted by us in the present order, have been cited to establish the proposition that a charge of criminal contempt has to be established on the basis of proof beyond reasonable doubt as in a criminal pro-eeding. We have no doubt that the aforesaid proposition sought to be established by the learned Counsel for the respondents is correct in law.

23. In the decision the Apex Court was answering a Presidential reference made under Article 143(1) of the Constitution. The reference was necessitated by a somewhat unusual situation in which all the Judges of the Allahabad High Court (28 in number) set in a Full Bench to hear the validity of a notice issued by the State Legislature to two of the Hon’ble Judge. appear before the House on an allegation commission of breach of privilege of the House by the said two Hon’ble Judges by entertaining a writ petition filed by one Keshav Singh challenging the decision of the House holding that he had committed contempt of the House. The illuminating views expressed by Justice Gajendragadkar in the said judge on all other points being not necessary are not being noticed in the present order save and except what is being reproduced herein below:

We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.

24. The decision of the Apex Court in Perspective Publications (P) Ltd. and Ors. v. The State of Maharashtra , must be noticed in some details as the facts of the said case have a striking resemblance to those before us.

A suit filed by one Thackersey against a weekly newspaper ‘Blitz’ and its editor claiming Rs. 3 lacs as damages for libel was taken up for day to day hearing by Justice Tarkunde of the Bombay High Court in June 1964. The delivery of marathan judgment (as it subsequently came to be known) started on January 19,1965 and completed on February 12, 1965. The suit was decreed and a sum of Rs. 3,00,000/- was awarded as damage. On April 24,1965 an article was published in Prajatantra, a Gujrati paper under the caption “Story of a Loan and Blitz Thackersey Libel Case”. In the article it was mentioned that on 10th of December, 1964, a loan facility of Rs. 10 lacs was made available by the Bank of India to one Khare-Tarkunde Private Limited of Nagpur in which company the close relationships of Justice Tarkunde were partners [(sic) Directors]. The poor financial standing of the company was also highlighted in the article besides the fact that Thackersey was a director of the Bank of India at the relevant point of time and one of the directors of the guarantor of the loan i.e. the New India Assurance Company Ltd. was a senior partner of the solicitors for Thackersey in the suit in question. The Apex Court, on the reasons and grounds assigned, upheld the conclusion reached by the Bombay High Court that the publication of the article in question amounted to commission of contempt. What would be of significance to us, insofar as the aforesaid decision is concerned, is the view expressed by the Apex Court that in the facts before it though the imputations cast and insinuations made were in respect of an individual Judge, the same would amount to commission of contempt, a conclusion, inter alia, recorded on the basis that the Hon’ble Judge involved had nothing to do with the company which had received the loan. The re-statement of the principles for exercise of the contempt power made in paragraph 17 of the judgment would also be relevant to the present case the same are, therefore, extracted herein below:

(1) It will not be right to say that committals for contempt scandalizing the court have become obsolete.

(2) The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice.

(3) It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because “justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

(4) A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the court.

The test in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by his court. It is only in the latter case that it will be punishable as contempt.

(5) Alternatively the test will be whether the wrong is done to the judge personally or it is done to the public. To borrow from the language of Mukherjee J. (as he then was) (Brahma Prakash Sharma’s case, 1953 SCR 1169) the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.

25. Another decision that will be required to be noticed for the purpose of the present case is the suo motu action taken by the Apex Court for commission of contempt by one S. Mulgaokar for a publication dated 13th of December, 1977 in the Indian Express newspaper. The article in question pertained to a letter sent by the Chief Justice of India to the Chief Justices of various High Courts suggesting the drafting of a code of ethics for the Judges. The publication in question reported that the letter of the Chief Justice of India had evoked so adverse criticism that even the Supreme Court Judges who were associated with the preparation of the draft code had disowned it. A letter was sent by the Registrar of the Supreme Court to the Editor of the newspaper pointing out that the Judges of the Supreme Court had nothing to do with the matter and therefore the question of disowning the proposed code by any Judge did not arise. The Editor of the newspaper instead of publishing any correction, offered to publish the whole material in his possession and in fact went on to put on record the disappointing performance of the Supreme Court Judges, which in his opinion was on account of the fact that the Supreme Court was packed with “pliant and submissive Judges except for a few” by the then Prime Minister of the country. Though the three member Bench which heard the case was of the unanimous opinion that the matter should not be proceeded with any further, the illuminations available in the said judgment [(1978) 3 SCC 339] cannot but be noticed by the Court in its quest to understand the correct principles of law.

26. The following observations of Chief Justice Beg, as contained in paragraphs 15 and 16 of the judgment, must, therefore, be extracted below:

15. National interest requires that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisa spirit or tactics. This should be a part of national ethics. Newspapers, in particular, ought to observe such a rule imbued with what Montesquieu considered essential for a healthy democracy: the spirit of “virtue”. They should, if they are interested in promoting national welfare and progress, support proposals for framing correct rules of ethics for every class of office-holder and citizen in the country. And, the judiciary must, in its actions and thoughts and pronouncements, hold aloft the values and the spirit of justice and truth enshrined in the Constitution and soar high above all other lower loyalties and alignments if it is to be truly independent.

16. The judiciary cannot be immune from criticism. But, when that criticism is based on obvious distortion or gross mis-statement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it, it cannot be ignored. I am not one of those who think that an action for contempt of court, which is discretionary, should be frequently or lightly taken. But, at the same time, I do not think that we should abstain from using this weapon even when its use is needed to correct standards of behaviour in a grossly and repeatedly erring quarter. It may be better in many cases for the judiciary to adopt a magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement. But, when there appears some scheme and design to bring about results which must damage confidence in our judicial system and demoralize Judges of the highest Court by making malicious attacks, anyone interested in maintaining high standards of fearless, impartial, and unbending justice will feel perturbed. I sincerely hope that my own undisguised perturbation at what has been taking place recently is unnecessary. One may be able to live in a world of yogic detachment when unjustified abuses are hurled at one’s self personally, but, when the question is of injury to an institution, such as the highest Court of justice in the land, one cannot overlook its effects upon national honour and prestige in the comity of nations. Indeed, it becomes a matter deserving consideration of all serious-minded people who are interested in seeing that democracy does not founder or fail in our country. If fearless and impartial courts of justice are the bulwark of a healthy democracy, confidence in them cannot be permitted to be impaired by malicious attacks upon them. However, as we have not proceeded further in this case, I do not think that it would be fair to characterize anything written or said in the Indian Express as really malicious or ill-intentioned and I do not do so. We have recorded no decision on that although the possible constructions on what was written there have been indicated above.

27. Justice Krishna Iyer who wrote a separate judgment, laid down six broad guidelines in the matter. The first rule, according to the learned Judge, is “wise economy of use of the contempt power”. The second is the necessity to harmonise the constitutional values of free criticism with the need for a fearless judiciary. The third principle laid down is to “avoid confusion between personal protection of a libeled Judge and prevention of obstruction of public justice and the community’s confidence in that great process”. The fourth principle laid down emphasizes the realization of the role of the Fourth Estate in a democratic process while by the fifth principle laid down a reminder was issued to Judges not to be hypersensitive even where distortions and criticisms are erroneous. It is only upon an evaluation of the totality of the circumstances, if the Court considers the attack offensive, intimidatory and malicious beyond condonable limits that the contempt power must come in to maintain the supremacy of the Rule of Law. This is the sixth and the last principle laid down.

28. The decision of the Apex Court in P. N. Duda v. P. Shiv Shankar and Ors. must be noticed by us. One Shri P. Shiv Shankar, a Judge of the Andra Pradesh High Court, who resigned to become the Law Minister of the Union, delivered a speech to the Bar Council of Hydderabad on 28th November, 1987. In the course of the said speech, Shri P. Shiv Shankar had commented on the class composition of the Judges of the Supreme Court; accused the Supreme Court of being partial towards economically affluent sections of the society and further stated that the said weakness found reflection in the judgments delivered by the Supreme Court in matters relating to Zamindary abolition, abolition of privy purses and the payment of compensation for nationalization of Banks. The person concerned i.e. Shri P. Shiv Shankar also commented that:

Anti-social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court.

The Apex Court took note of the available precedents on the point, both foreign and Indian, and the works of celebrated authors and recorded its opinion that what was sought to be conveyed by the Hon’ble Minister did not amount to bringing the administration of justice into disrepute so as to justify resort to contempt power. However, the views expressed should have been expressed in more polite and dignified language. As paragraph 17 of the aforesaid judgment contains more insights than what has been noticed by us till now, the same may be usefully extracted below:

17. It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar’s wife must be above suspicion, per Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court . It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the court and in the majesty of law and that has been caused not so much by the scandalizing remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. Many today suffer from remedyless evils which Courts of justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice system. It is a criticism which the Judges and lawyers must make about themselves. We must turn the search light inward. At the same time we cannot be oblivious of the attempts made to decry or denigrate the judicial process, if it is seriously done. This question was examined in Rama Dayal Markarha v. State of Madhya Pradesh where it was held that fair and reasonable criticism of a judgment which is a public document or which is a public act of a judge concerned with administration of justice would not constitute contempt. In fact such fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both with regard to law or established facts. But when it is said that the Judge had a pre-disposition to convict or deliberately took a turn in discussion of evidence because he had already made up his mind to convict the accused, or has a wayward bend of mind, is attributing motives, lack of dispassionate and objective approach and analysis and pre-judging of the issues which would bring administration of justice into ridicule. Criticism of the Judges would attract greater attention than others and such criticism sometime interferes with the administration of justice and that must be judged by the yardstick whether it brings the administration of justice into a ridicule or hampers administration of justice. After all it cannot be denied that pre-disposition or subtle prejudice or unconscious prejudice or what in Indian language is called “Sanskar” are inarticulate major premises in decision making process. That element in the decision process cannot be denied, it should be taken note of.

29. One further judgment of the Apex Court i.e. in Rajendra Sail v. M.P. High Court Bar Association , must be noticed by us before we proceed to the next part of the present exercise i.e. to understand the purport of the allegedly offending news item and, thereafter, to the core question involved i.e. whether the respondents in the present case have committed contempt.

30. A news report was published in a news-” paper ‘Hitavada’ on 4.7.1998 under the caption “Sail terms High decision in Niyagi murder case as rubbish”. The news report was based on a speech delivered by one Rajendra Sail in a meeting held to commemorate the death of Shankar Guha Niyagi and the interview given by Sail soon after the speech to one Ravi Pandey, the correspondent of the newspaper. In a news report it was stated that the decision of the High Court was rubbish and that a Judge who was on the verge of retirement should not have been entrusted with such a crucial case. The news report also stated that the Judges hearing cases were prejudiced and pre-disposed and that one of the Judges had been bribed and further that the said Judge possessed properties disproportionate to his income. In defence, Rajendra Sail denied the correctness of the news item saying that in the speech delivered in the meeting he had attempted to bona fide analyse the judgment without bringing the judiciary to disrepute and further that he had not given any interview to the correspondent of the newspaper. The High Court of Madhya Pradesh which initially heard the matter summoned the audio and video recording of the speech delivered by Rajendra Sail and found Rajendra Sail guilty of commission of contempt. In appeal, the Supreme Court upheld the view taken by the High Court after an exhaustive consideration of the available case laws on the subject. The Apex Court having laid down the principles for exercise of power of contempt in paragraphs 11,42,43 and 44 of the judgment it will be necessary to extract the aforesaid paragraphs herein below to enable us to proceed correctly in the matter under consideration.

11. It has been repeatedly held that the rule of law is the foundation of democratic society. The judiciary is the guardian of the rule of law. The confidence, which the people repose in the courts of justice, cannot be allowed to be tarnished, diminished or wiped out by the contemptuous behaviour of any person. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded. It is for the purpose that the courts are entrusted with extraordinary powers of punishing for contempt of court those, who indulge in acts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalizing it. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalized, but to uphold the majesty of the law and of the administration of justice.

42. The issue as to whether the alleged statements amount to contempt or not does not present any difficulty in the present case. If the conclusions reached by the High Court are correct there can be little doubt that it is serious case of scandalizing the Court and not a case of fair criticism of a judgment. Undoubtedly, judgments are open to criticism. No criticism of a judgment, however vigorous, can amount to contempt of court, provided it is kept within the limits of reasonable courtesy and good faith. Fair and reasonable criticism of judgment which is a public document or which is a public act of a judge concerned with administration of justice would constitute contempt. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both with regard to law or established facts.

43. It is one thing to say that a judgment on facts as disclosed is not in consonance with evidence or the law has not been correctly applied. But when it is said that the judge had a predisposition to acquit the accused because he has already resolved to acquit them or has a bias or has been bribed or attributing such motives, lack of dispassionate and objective approach and analysis and prejudging the issues, the comments that a judge about to retire is available for sale, that an enquiry will be conducted as regards the conduct of the judge who delivered the judgment as he is to retire within a month and a wild allegation that judiciary has no guts, no honesty and is not powerful enough to punish wealthy people, would bring administration of justice into ridicule and disrepute. The speech that the judgment is rubbish and deserves to be thrown in a dustbin cannot be said to be fair criticism of judgment. These comments have transgressed the limits of fair and bonafide criticism and have a clear tendency to affect the dignity and prestige of the judiciary. It has a tendency to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge and to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice, it is also likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.

44. When there is danger of grave mischief is done in the matter or administration of justice, the animadversion cannot be ignored and viewed with placid equanimity. If the criticism is likely to interfere with due administration of justice or undermine the confidence which the public reposes in the courts of law as courts of justice, the criticism would cease to be fair and reasonable criticism but would scandalize courts and substantially interfere with administration of justice. Having perused the record, we are unable to accept the contention urged on behalf of Mr. Rajendra Sail that on facts the conclusions arrived at by the High Court are not sustainable. Once this conclusion is reached, clearly the publication amounts to a gross contempt of court. It has serious tendency to undermine the confidence of the society in the administration.

31. Before setting course to reach the necessary determination required in the present case i.e. whether the respondents are guilty of commission of contempt, the purport and effect of the allegedly offending news item on the average reader and the impact of such an impression on the system of administration of justice must be determined.

The news item is under the caption “Even Hon’ble Judge is in Himanta Biswa’s grip”. The news item in question recites that Himanta Biswa Sarma, a powerful Minister of the State, was involved in two police cases registered in the Panbazar and Chandmari Police Stations of Guwahati for commission of offences under the Arms Act, Unlawful Activities (Prevention) Act as well as for offences under the TADA. According to the news item, the records of investigation including the case diaries of the two cases became mysteriously unavailable. Though the trial court ordered for reconstruction of the records nothing in this regard was done and instead the powerful Minister had moved the High Court seeking his discharge/acquittal from the two cases. However, the High Court did not take any interest in the matter. The news item further goes to recite that one Bhuban Ggogoi had filed a PIL in the High Court in this regard which eventually came up for hearing before a Division Bench consisting of Justice D. Biswas and Justice P.G. Agarwal on 01.7.2004. According to the news item while Justice Biswas was inclined to treat the matter as a serious one Justice Agarwal thought otherwise. Eventually, the judgment was delivered after 90 days of the completion of hearing. A day after the delivery of the judgment, Justice Agarwal left for Singapore on a pleasure trip, the source of funds for which trip remained a mystery. The news item also states that during the pendency of the PIL, 20 bighas of Govt. land was allotted to one Jerico Detergent Private Limited owned by Justice Agarwal’s daughter and that the said allotment was made for a sum of Rs. 50,000/ – per bigha though the market value of the land would be several crores of rupees. In the news item it was further stated that a son of Justice Agarwal had also developed intimacy with the Minister concerned and he had obtained a wine shop licence. The news item closes by saying that in a situation where the common citizen is being harassed by the police, Army and even by the Courts for trivial acts like sheltering an ULFA cadre for a night the undue favour shown to Sri Himanta Biswa Sarma in the PIL has raised eye brows.

32. A reading of the aforesaid news item, in our considered view, conveys the impression that in rejecting the PIL filed by Bhuban Gogoi Justice Agarwal had placed a dominant role and that Justice Agarwal left for Singapore on the next day, possibly, on funds made available by the Minister Himanta Biswa Sarma. The news item also, according to us, is capable of creating an impression that the judgment in the PIL was delivered on account of the land allotment made to M/s. Jerico Detergent Private Limited in which Justice Agarwal’s daughter and son-in-law had interest and further that Justice Agarwal’s son had obtained a liquor shop licence at the instance of the Minister.

33. If our understanding of the purport and affect of the news item, as stated above, is correct there can be no manner of doubt that the news item in question though casts a reflection on an individual Judge i.e. Justice Agarwal, the same affects or has the potential of affecting the credibility of the institution as a whole. Judges like Caesar’s wife must be above suspicion (Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court . Confidence in the integrity, honesty and impartiality of a Judge is a necessary adjunct of the confidence that the judicial system must enjoy. Any allegation to the contrary carries with it the potential of eroding public faith in the judicial system. The maker of such an al- legation, therefore, has to establish that he had reasonable materials and/or information in his possession on consideration of which he felt that it would be justified, in public interest, to inform the public of all that had happened by means of the news item in question. This, according to us, is the crucial and core test that has to be applied by us to determine the culpability of the respondents, if any. Judged by application of the aforesaid yardstick, some of the statements appearing in the news item and the affidavits in defence i.e. the difference of opinion between the two judges as to whether adjournment should be granted; the justification for the refusal of adjournment; the dominant role attributed to Justice Agarwal in the course of the court proceedings and such other matters would hardly be relevant to require any notice by us. The essence of the issue, in our considered view, revolves around the question as to whether the impression/opinion sought to be conveyed by the news item, as can be legitimately inferred, i.e. that the judgment in the PIL was passed on account of extraneous consideration can be sustained on the basis of relevant materials available to the respondents so as to confer the required degree of legitimacy and protection to the news item in question. Specific scrutiny of the Court will be required in respect of three species of extraneous considerations that find explicit manifestation in the news item in question, namely, (1) grant of liquor licence to the son of Justice Agarwal, (2) allotment of land to Jerico Detergent Private Limited, and (3) foreign trip of Justice Agarwal.

34. It is not the case of the respondents before us that they had any material in their possession which would go to show that Justice Agarwal’s foreign visit was sponsored by any person other than the learned Judge himself. It is also not the case of the respondents that any such material exist as on date. The Court, therefore, will have to proceed on the basis that the withdrawal of the sentence appearing in the news item with regard to Justice Agarwal’s foreign visit has been made as the said statement is false and untrue. The second sentence that has been sought to be withdrawn i.e. regarding the liquor licence obtained by Justice Agarwal’s son has, in fact, been admitted to be incorrect by the respondents themselves who admit that the said licence was granted even before Justice Agarwal had become a Judge of the High Court. A third offending sentence i.e. that even the High Court is in the grip of Minister Himanta Biswa Sarma which, in fact, is the caption of the news item, has also been offered to be withdrawn. The withdrawal of the aforesaid third sentence, according to us, is a natural corollary of the withdrawal of the other two sentences i.e. with regard to Justice Agarwal’s foreign visit and the liquor licence obtained by his son. The above facts, according to us, amply demonstrate that imputations have been made and aspersions have been cast on the integrity of the learned Judge on the basis of at least two facts stated in the news item in question which facts have not been demonstrated before us to be based on any relevant and reliable material available to the respondents at the time of publication of the news item or even thereafter. If a Judge is to deliver a judgment in consideration of a liquor licence being granted to his son and thereafter he had gone on a foreign trip sponsored, possibly, by the beneficiary of the judgment, the impression of the average reader of the newspaper insofar as the judicial system is concerned can hardly be complementary so as to inspire confidence and faith in the system.

35. The respondents have tendered their apology for publication of three sentences in the news item including those relating to Justice Agarwal’s foreign trip and Justice Agarwal’s son obtaining a liquor licence as noted above. A little divergence between the apology expressed in the supporting affidavit dated 4.1.2008 and the clarificatory news item dated 27.11.2007 has already been noticed by us. While in the clarificatory news item dated 27.11.2007 the sentences as a whole are sought to be withdrawn and the regret expressed is unconditional, in the affidavit dated 4.1.2008 the regret is only for the intemperate and undignified language used in publishing the news item. We could have, but we do not propose to, hold the aforesaid facts against the respondents. We could have also taken into account the fact that the withdrawal of the three sentences by the clarificatory news item dated 27.11.2007 was made after nearly two years of the publication of the allegedly offending news item on 10thh of August 2005 and the possible cementing role that lapse of time has on formulation of negative public opinion. Damages caused to reputation of individuals and institutions have a tendency to acquire permanence with the passage of time. However, an apology tendered, by its very nature, can only after the occurrence of the incident. In the present case as the respondents have tendered unqualified apology for the three sentences appearing in the allegedly offending news item we are of the view that, though somewhat reluctantly, the cause of justice would be better advanced if we accept the apology tendered with a note of caution to the respondents to be careful in future.

36. This will bring the Court to a consideration of the part of the news item relating to land allotment. The respondents stick by what has been published by contending that such allotment is a matter of Govt. record which records have been placed before the Court. In this regard we had requested the learned Government Advocate to make available to us the records of the land allotment in question. Accordingly, File No. KRS 164/2004 maintained in the office of the Deputy Commissioner, Kamrup and a second file i.e. KSS 708/2004 maintained in the Revenue Department have been made available to us. A scrutiny of the aforesaid two files would go to show that after the judgment in the PIL in question i.e. PIL No. 16 of 2004 was kept reserved on 1.7.2004, an application dated 4.8.2004 was submitted by one Shweta Agarwal for allotment of 40/45 bighas of land preferably in North Guwahati, on payment of requisite premium, to enable Jerico Detergent Private Limited to establish a low ash metallurgical Coke Industry as a part of the company’s expansion/diversification plans. Shweta Agarwal, as evident from the documents enclosed to the affidavit of the respondent, is the daughter-in-law of Justice Agarwal and a director of Jerico Detergent Private Limited. The attention that this application received and the speed at which it was processed cannot but be noticed by us. The Circle Officer, North Guwahati, to whom the matter was endorsed for due verification and report had admitted an almost immediate report on the availibility of a plot of land measuring 40 bighas 4 kathas 2 lechas in village Nomalijalah. The land advisory committee acted equally promptly in the matter and after completion of all formalities the Deputy Commissioner submitted his proposal recommending allotment of land measuring 40 bighas covered by Dag No. 154 under village Nomalijalah, Mouza Sendurigopha in favour of M/s Jerico Detergent Private Limited. This was on 29.9.2004. The State Government, however, directed for refixing of the land value which was earlier fixed at Rs. 43,084.00 per bigha. Thereafter, the file was re-submitted with a revised land value of Rs. 50,000.00 per bigha on which the departmental Minister granted his approval, though, in respect of 20 bighas of land. Thereafter, on 20th of January 2005 the formal settlement order for 20 bighas of land covered by dag No. 154 of village Nomalijalah, mouza Sendurigopha was issued subject to payment of premium at the rate of 150% of the land value which was fixed at Rs. 50,000.00 per bigha.

37. The materials placed before the Court by the respondents along with their affidavits, particularly the authenticated documents showing the shareholding of M/s Jerico Detergent Private Limited issued by the Registrar of Companies, Shillong, would go to show that promoters and some of the directors of the company includes the son and daughter-in-law and other close relatives of Justice Agarwal. Justice Agarwal himself is/was holding 18,000 shares in the company valued at Rs. 1.80 lacs.

38. Whether at the relevant point of time Justice Agarwal was aware of the application filed by Jerico Detergent Private Limited for allotment of land is a fact that is not before us. The observation of Lord Denning in Regina v. Commr. of Police of the Metropolis, Ex parte Blackburn (1968) 2 WLR 1204, that the maker of an allegation must remember that the judge against whom it is directed cannot reply to the criticism levelled would be appropriate to be recalled at this stage. Even otherwise no material has been laid before us to show that the allotment of the land was at the instance of Minister Himanta Biswa Sarma or that the respondents had in their possession any other relevant material which could throw some light on the existence of a live/reasonable link between the delivery of the judgment in the PIL and the allotment of the land. The connection between the two that has been sought to be built in the news item in question could have been accepted by us to be bona fide only in the event relevant materials, capable of sustaining such a bonafide belief or opinion, had been placed before us. The respondents have not so acted. On the basis of the said finding recorded by us it is possible for us to hold the respondents guilty of commission of contempt. However, we do not propose to do that. The respondents, in the affidavit filed, have repeatedly stated that the facts surrounding the allotment of land were published by them in public interest. The fact of allotment of land to Jerico Detergent Private Limited; the proximity of time between the proceedings in the PIL and the process of allotment of land; the holding of shares in Jerico Detergent Private Limited by Justice Agarwal as also the holdings of other members of the learned Judge’s family are all facts established by the records placed before us. Even holding that Justice Agarwal had no knowledge of the making of the application, a conclusion that we must reach at least for the time being on the materials available, we are of the view that in the present case whether the respondents could have reasonably and bonafide entertained the belief of an acceptable connection between the judgment in the PIL and the allotment of land is an issue of fact on which the respondents are entitled to the benefit of our reasonable doubt.

39. Before parting with the record, we would like to observe that in view of the circumstances surrounding the allotment of land to Jerico Detergent Private Limited and the close proximity of the process of allotment with the judgment delivered in PIL No. 16 of 2004 we had seriously debated as to whether we should suo motu re-open the proceedings in PIL No. 16 of 2004. After due consideration we have thought it appropriate to exercise our restraint in the matter and leave the same to be determined in an appropriate manner and at the appropriate time as and when an approach is made to this Court, if at all. Similarly, we had also debated as to whether the allotment of land to Jerico Detergent Private Limited should be re-opened by us on the authority of the judgment of the Apex Court in Tarak Singh and Anr. v. Jyoti Basu and Ors. cited by the respondents. For the same reason as alluded to earlier we have decided to exercise our restraint in the matter particularly in view of the fact that in Tarak Singh (supra) the approach to the Apex Court was in the form of a PIL specifically challenging the allotment of land to the concerned Judge. The above matter, therefore, in our considered view, should await an appropriate and adequate approach by any conscious citizen.

40. For all the aforesaid reasons, we are of the view that this suo motu contempt proceeding should be ordered to be closed in terms of our directions and conclusions recorded above. We order accordingly.

Uken Pegu And Anr. vs Romesh Chandra Borah And Ors. on 29 February, 2008

Gauhati High Court
Uken Pegu And Anr. vs Romesh Chandra Borah And Ors. on 29 February, 2008
Equivalent citations: 2008 (1) GLT 886
Author: H Roy
Bench: J Chelameswar, H Roy


JUDGMENT

Hrishikesh Roy, J.

1. The writ appeal No. 402/07 has been filed Uken Pegu who was the respondent No. 3 in W.P. (C) No. 4072/07. The State of Assam and their officials have filed the second writ appeal No. 403/2007.

The appellants are aggrieved by the judgment and order dated 15.10.2007, whereby the learned Single Judge, allowed the writ petition No. 4072/07 filed by Romesh Ch. Borah (Chief Engineer, Quality Control) and quashed the impugned promotion order dated 3.8.2007, whereby the appellant Uken Pegu was posted to the post of Chief Engineer, Water Resources in the Department.

2. The service conditions, governing the appointment in the Water Resources Department (earlier known as the Flood Control Department) are governed by a set of Rules, named as “The Assam Engineering (Flood Control Department) Service Rules, 1981″(hereinafter referred to as the Rules).

3. Under Rule 3(1) amongst the Class I (Senior Grade), the posts of, inter alia, Secretary to the Government, Chief Engineer, Addl. Chief Engineer and Superintending Engineer are included.

Rule 3(2) of the Rules provides that service may also include any post equivalent to a post in any of the Cadre mentioned in Sub-Rule 1 or any cadre or post subsequently laid down by the Government, to be included in a cadre of service.

Rule 4 indicates the service strength of the Department as shown in schedule I of the Rules.

Rule 12 provides that all vacancies in class I cadre shall be filed up by promotion, subject to specialized needs of the Department. Rule 12 provides that promotion to the post of Secretary is to be made from the cadre of Chief Engineer.

Rule 13(4)(d) initially provided for all promotions to be made to the rank of Superintending Engineer and above, only on ‘merit’ basis but the said criteria has since been amended and promotion to the rank of Superintending Engineer and above are now to be made on the basis of ‘merit with due regard to seniority’ with effect from the 1990 by virtue of the amendment notified in the Gazette on 27.8.1990.

4. By notification dated 9.3.1987 the Government declared the post of Chief Engineer, Flood Control as the Head of the Department.

Subsequently, by a Government memo dated 26.5.1999, the Government conveyed its sanction to up gradation of the post of Addl. Chief Engineer (Quality Control) to the post of Chief Engineer (Quality Control). Consequent upon the said up-gradation, the post of Addl. Chief Engineer (Quality Control) was abolished.

The Chief Engineer (Quality Control) was ordered by the said notification to function directly under the Secretary of the Flood Control Department.

5. By a separate notification, also issued on 26.5.1999, the Government notified the functions to be performed by the Quality Control unit in the Water Resources Department under the Chief Engineer (Quality Control), wherein different functions are mentioned in the said notification.

6. With the creation of the post of Chief Engineer (Quality Control), the cadre strength of Chief Engineer was raised to two and the two posts were Chief Engineer (Water Resources) and Chief Engineer (Quality Control) with effect from 26.5.1999.

7. Following a meeting of the Selection Board under Rule 13(10) of the Rules, selections and recommendations were made for promotion to the cadre of Chief Engineer and a list of officers were prepared in order of merit. In the select list dated 31.3.2007, the merit position of the recommended officers were reflected as follows:

1. Sri Ziaul Islam

2. Sri Romesh Chandra Borah (Writ Petitioner/respondent No. 1)

3. Sri Uken Pegu (ST Plains/Writ Appellant) and

4. Sri Lohit Chandra Hazarika.

8. The respondent Romesh Ch. Borah was thereafter promoted on 30.6.2007 to the cadre of Chief Engineer and was posted as Chief Engineer, Quality Control. On his such posting Romesh Ch. Borah and Paran Baruah, the Chief Engineer, Water Resources were considered for promotion to the higher post of Secretary, Water Resources Department.

On the basis of recommendation of the Selection Board which met on 19.7.2007, Paran Baruah was promoted to the Post of Secretary of the Department. In the resultant vacant post of Chief Engineer, Water Resources, the appellant Uken Pegu was given promotion on 3.8.2007, by virtue of his merit position in the select list dated 31.3.2007.

9. The respondent Romesh Ch. Borah challenged the said promotion and posting notification dated 3.8.2007 by filing the W.P. (C) No. 4072/07. The learned Single Judge by judgment dated 15.10.2007 allowed the petition and quashed the notification dated 3.8.2007 and gave direction for posting of Romesh Ch. Borah to the post of Chief Engineeer, Water Resources, leading to the present Writ Appeals.

10. The learned Single Judge in his judgment took into account the practice followed in the Department, where an Addl. Chief Engineer is first promoted to the cadre of Chief Engineer and posted as Chief Engineer (Quality Control) and thereafter such Chief Engineer (Quality Control) are posted as Chief Engineer (Water Resources) and accordingly considered the later post as a promotion post.

The other reasons noticed for treating the post of Chief Engineer (Water Resources) to be higher than the post of Chief Engineer (Quality Control) was the fact that the Chief Engineer (Water Resources) is designated as the Head of the Department. The nature of duties in the two posts of Chief Engineers have also been considered as good reasons for treating one post to be higher then the other.

11. Mr. P. K. Goswami, Mr. A. K. Bhattacharyya and Mr. K. N. Choudhury, the learned senior counsels assailing the decision of the learned Single Judge submits that when Rules do not make any distinction in the status of the two posts of Chief Engineers as both posts have been treated as feeder cadre posts for promotion to the higherpost of Secretary, merely because of past practice and nature of responsibilities, would not permit taking a different view as both posts are equal in status and pay. Specific instance of respondent being considered for promotion to the post of Secretary, while being the Chief Engineer (Quality Control) along with Paran Baruah when the later was the Chief Engineer (Water Resources) has been cited to show that both posts are equal and have been treated to be equal by the Government and also under the Rules.

12. On behalf of the appellants, Mr. A. K. Bhattacharyya, learned senior counsel submitted that merely because the Chief Engineer, Water Resources has been designated as the Head of the Department, there is no scope to treat the post of Chief Engineer, Quality Control to be inferior than the post of Chief Engineer, Water Resources. The decision of the Supreme Court reported in AIR 1967 SC 1684 (K. Gopaul v. The Union of India and Ors.) has been cited in support of the said submission. The following passage in Para 5 of K. Gopaul has been relied upon by Mr. Bhattacharyya:

We cannot accept the submission that the mere fact that the post of Accommodation Controller, to which the appellant has been transferred, has not been designated as the post of a Head of Department necessarily involves any reduction in rank. In fact, it is well known that in Government service, there may be senior posts, the holders of which are not declared as Heads of Department, while persons holding comparatively junior posts may be declared as such. The rank in Government service does not depend on the mere circumstance that the Government servant, in the discharge of his duties, is given certain powers.

The above decision has also been cited in support of the contention made on behalf of the appellant that merely because the Chief Engineer, Water Resources have been given wider number of responsibilities than the Chief Engineer, Quality Control, would not necessarily mean that the post of Chief Engineer, Quality Control is inferior to that of Chief Engineer, Water Resources.

13. The decision of the Supreme Court in (Lalit Mohan Deb v. Union of India) has also been cited to contend that promotion would mean higher pay to a higher post unlike a placement in selection grade which may involve a higher pay but not a higher post. Accordingly it is submitted by Mr. Bhattacharyya that since the movement from the post of Chief Engineer, Quality Control to Chief Engineer, Water Resources does not lead to higher pay or movement to a higher grade, the said two posts of Chief Engineers is are to be construed to be equivalent and of the same cadre.

The decision of the Supreme Court (State of Haryana and Ors. v. Ram Kumar Mann) has also been cited on behalf of the appellant to contend that no enforceable right based on the doctrine of discrimination has been created in favour of the writ petitioner and accordingly the impugned judgment interfering with the appointment and posting of the appellant to the post is vitiated in law.

14. Mr. K. N. Choudhury, learned Counsel appearing for the State Appellant submits that in the instant case the Rules treat both the posts of Chief Engineer as equivalent and both the posts have been encadred under the Rules in the same grade. The Rules also comprehend the post of Chief Engineer, Water Resources and Chief Engineer, Quality Control to be the feeder posts for the post of Secretary, Water Resources Department. Since there is no ambiguity in the Rules with regard to the equality of the posts, it is submitted that the two posts could not have been treated as unequal merely on the basis of the past practice followed in the Department where an incumbent was permitted movement to the post of Chief Engineer, Quality Control, before permitting further movement to the post of Chief Engineer, Water Resources.

The learned Counsel relies on the decision in Sanjay Kumar v. Narinder Verma in support of his submissions.

In Sanjay Kumar (supra) the Supreme Court held that where the Rules make no distinction and when the executives do not think fit to treat the two posts as unequal by making a distinction in the Rules, there can be no justification to ignore the provisions enshrined in the Rules and treat the posts as unequal posts.

15. Appearing for the writ petitioner Mr. N. Dutta, learned Counsel submits that the nature of duties and responsibilities are relevant factors for deciding equivalence of post. He relies upon the decision of the Supreme Court (Union of India and Anr. v. P. K. Roy and Ors.) where the Supreme Court has indicated the following criteria for determining equation of posts and relative seniority:

(i) The nature and duties of a post

(ii) The responsibilities and powers exercised by the officers holding a post; the extent of territorial or other charge held or responsibilities discharged;

(iii) The minimum qualifications, if any, prescribed for recruitment to the post;

(iv) The salary of the post.

16. The learned Counsel has also cited the “decision of the Supreme Court reported in (1986) 3 SCC 7 : Vice Chancellor, L. N. Mithila University v. Dayanand Jha) where it is held that the two posts of Principal and Reader cannot be regarded as of equal status by virtue of the responsibilities discharged by them.

17. Similarly it is submitted that the post of Chief Engineer, Quality Control cannot be treated to be at par with the post of Chief Engineer, Water Resources since the later post carries far wider degree of responsibilities and functions.

18. Making submissions for relevance of past practice followed in the Department to determine the equivalence of the posts, the Supreme Court decision reported in 1992 Supp. (1) SCC 584 (N. Suresh Nathan and Anr. v. Union of India and Ors.) has been relied on by Mr. Dutta where the Supreme Court has held as follows:

The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to determined.

19. The decision of the Supreme Court reported in (1992) 1 SCC 105 (Dr. Uma Kant v. Dr. Bhikalal Jain and Ors.) has been cited to contend that where the Rules are capable of two interpretations, the Court should not accept the interpretation which will upset and reverse the long practice followed by the Department in matter of movement from the post of Chief Engineer, Quality Control to the post of Chief Engineer, Water Resources.

20. Mr. Dutta also relies upon the Supreme Court decision in Union of India v. S.S Ranade reported in (1995) 4 SCC 462, where the Supreme Court held that in order to determine whether the two posts are equivalent or not, apart from the pay scales attached to the posts, one must also look at the duties and responsibilities that are attached to such post.

21. The Supreme Court decision in M. B. Joshi v. Satish Kumar Pandey reported in 1993 Suppl. 2 SCC 419 has also been placed where the Supreme Court has held that in the absence of any specific Rules, the seniority amongst persons holding similar post in the same cadre is to be determined on the basis of length of service and not on the basis of any other fortuitous circumstances.

22. The learned Counsel also contends that merely because the pay scales of the two posts are equal, that cannot be the basis for deciding the post to be equivalent and factors like nature of duties, responsibilities etc. should also be taken note of, in deciding the equivalence of the posts.

23. In the instant case, for the first time both the posts of Chief Engineer, Quality Control and Chief Engineer, Water Resources fell vacant simultaneously. The learned Single Judge laid great emphasis on the past practice followed in the Department whereby an incumbent only after being posted as Chief Engineer, Quality Control is posted as Chief Engineer, Water Resources and thereafter is considered for promotion to the post of Secretary of the Department.

24. The fact that the post of Chief Engineer, Water Resources has been declared to be the Head of the Department was also considered by the learned Single Judge to be a relevant factor for deciding the said post to the higher than the post of Chief Engineer, Quality Con-tool.

The learned Single Judge was also influenced by the fact that the budget for the Department is prepared by the Chief Engineer, Water Resources.

25. The earlier stand taken by the Govt. in the counter affidavit submitted in the case of Anil Kumar Mitra v. State of Assam in W. P. (C) No. 2675/06, where the deponent of the affidavit claimed the post of Chief Engineer, Water Resources to be a higher post than the post of Chief Engineer, Quality Control, was also noted as a factor by the learned Single Judge to reach the impugned conclusion.

26. The further fact that the Chief Engineer, Water Resources has been included in the Selection Board for making promotion under Rule 15 of the Rules and that he is also a member of Technical Advisory Committee for the Assam State Brahmaputra Valley Control Board, which responsibilities have not been conferred on the Chief Engineer, Quality Control have been taken to be a reasonable basis for treating the post of Chief Engineer, Quality Control as a feeder post for filling up the post of Chief Engineer, Water Resources.

On the basis of the aforesaid differentiation, it was held that the post of Chief Engineer, Water Resources is higher in status than the post of Chief Engineer, Quality Control.

27. However, in our view the factors noted in the impugned judgment could not be conclusive on the equivalence of the two posts in question. Such factors may be relevant only if the Rules leave scope for examining these factors because of its ambiguity.

28. The Rules in our considered view do not make any distinction between the two posts. The Chief Engineer, Water Resources and Chief Engineer, Quality Control report directly to the Secretary of the Department and both the posts are encadred in the same cadre and carry equal pay.

There are also instances where the Department had departed from the usual practice of permitting movement to the post of Chief Engineer, Quality Control before permitting further movement to the post of Chief Engineer, Water Resources.

Inclusion of the two posts in the same cadre under the Rules have been held by the learned Single Judge to be not conclusive per se, on the issue of equivalence of the two posts. But on the basis of other factors such as past practice in the Department and certain additional responsibilities attached to the post of Chief Engineer, Water Resources, the learned Single Judge took the view that the Chief Engineer, Water Resources enjoys ascendancy in distinction power and status in office as compared to that of Chief Engineer, Quality Control. These external factors have been taken by the learned Single Judge to be good reasons to depart from the equivalent position of the two posts as reflected in the, service Rules.

29. But when the Rules clearly indicate the two posts to be of equal status in rank as they have been encadred in the same cadre without any distinction between the Chief Engineer, Quality Control and Chief Engineer, Water Resources and both the posts have been made the feeder posts for making promotion to the post of Secretary of the Department, we are of the opinion that there cannot be any basis for treating one post to be higher to the other since such conclusion would obviously be contrary to the Rules in force. The decisions which have been cited can only be relevant and relied upon, when the Rules are ambiguous or is not conclusive on the status of the two posts in question. But when the Rules are unambiguous, there cannot obviously be any justification to rely upon past practice, nature of responsibilities, special responsibility attached to the post, to take a view that one post is superior to the other.

30. It must also be observed that it is for the Government to decide as to which of the Chief Engineer should be posted as Chief Engineer (Water Resource) or Chief Engineer (Quality Control). It would be inappropriate for a Court to interfere with such exercise of the Government as the employer is expected to know how best to utilize the services of its officers. Under the circumstances, the Government’s decision in preferring to post the appellant as Chief Engineer (Water Resource) in preference to the respondent can hardly be subjected to judicial scrutiny, when we do not see any arbitrariness or mala fide exercise of power.

31. In view of above, the Writ Appeals are allowed and the impugned judgment and order dated 15.10.07 in W.P. (C) No. 4072/07 is hereby set aside and quashed and the notification dated 3.8.2007 (Annexure G) is declared to be legally valid.

Abdun Noor And Ors. vs State Of Assam on 27 February, 2008

Gauhati High Court
Abdun Noor And Ors. vs State Of Assam on 27 February, 2008
Equivalent citations: 2008 (1) GLT 878
Author: A H Saikia
Bench: A H Saikia, H Barua


JUDGMENT

Aftab H. Saikia, J.

1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. I. Uddin, learned Counsel appearing on behalf of the appellants and Mr. K. A. Mazumdar, learned Public Prosecutor, Assam.

2. Conviction of the 4 (four) appellants, namely, 1) Abdun Noor, 2) Md. Jaban Ali, 3) Musstt. Kali Bibi and 4) Musstt. Fatai Bibi @ Aftarun under Sections 148/323/448/302 IPC read with Section 149 IPC handed down by the learned Additional Sessions Judge (Adhoc), Karimganj by his Judgment and Order dated 17.6.2006 in Sessions Case No. 88/2003, whereby each of the convicted accused were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each in default to undergo additional two years simple imprisonment under Section 302 IPC read with Section 149 IPC, to undergo one year rigorous imprisonment under Section 323 IPC read with Section 149 IPC, to undergo three years rigorous imprisonment under Section 148 IPC read with Section 149 IPC and to undergo one year rigorous imprisonment under Section 448 IPC read with Section 149 IPC, has been assailed in this criminal appeal.

3. The prosecution case in brief is that on 5.1.2002 at about 10.00 a.m. accused persons namely, Abdun Noor, Soloi Bibi, Kali Bibi, Fatai Bibi and her husband and Wasid Ali assembled unlawfully and being armed with dao, rod, lathi and other dangerous weapons, they trespassed into the dwelling house of the informant, Md. Mostaque Ahmed, P.W. 2 and assaulted the informant, his nephew Fakar Uddin, another nephew Akhoi Mian and his wife causing grievous injuries to their persons and took away all the utensils from the house causing him a loss of Rs. 1,000/-. Thereafter, an ‘Ejahar’ was lodged with the Karimganj Police Station and on the basis of the same investigation ensued.

4. During investigation, injured Asaddar Ali @ Akhoi Mian died. After completion of investigation, police submitted chargesheet against all the accused persons namely, Md. Abdun Noor, Md. Wasid Ali, Mustt. Soloi Bibi, Md. Joban Ali, Musstt. Kali and Mustt. Fatai Bibi @ Aftarun under Section 147/448/ 323/302 IPC. As accused Musstt. Soloi Bibi also died, the case against her had to be dropped but the case against other accused persons was committed by the Committing Magistrate to the learned Court of Sessions being the case exclusively triable by the Court of Sessions.

5. The learned Sessions Judge, Karimganj, after hearing the learned Counsel for both sides framed charges under Sections 148/323/448/ 380/302IPC against the accused persons and the same was read over and explained to them, to which they pleaded not guilty and claimed to be tried. During trial, accused Wasid Ali was reported to be dead and the case against him had to be dropped. The case was eventually proceeded against the four appellants herein.

6. The prosecution examined as many as eight witnesses in support of its case. After closure of the prosecution’s evidence, statements of the accused persons under Section 313 Cr.P.C. were recorded. Defence adduced none.

7. Upon hearing the learned Counsel for the parties and after appreciation of the material evidence on record so examined by the prosecution, the learned Judge imposed the aforementioned conviction and sentence upon the appellants.

8. Haying extensively heard the learned Counsel for the parties and having carefully gone through the impugned Judgment and Order as well as the deposition of all the witnesses, it appears that the learned Judge while arrived at the conclusion of conviction and sentence of the appellants as mentioned above, though all the independent witnesses so examined by the prosecution were declared to be hostile, relied heavily on the statements made by the prosecution witnesses, namely, P.W. 2, P.W. 3 and P.W. 4 and so recorded by the Police under Section 161 Cr.P.C.

9. It is settled law that the statement under Section 161 Cr.P.C. is not a substantive piece of evidence in view of the proviso of subsection-1 of Section 161 Cr.P.C. and the same can only be used for the limited purpose to contradict a witness in the manner laid down in the said proviso and hence the same is impermissible under the law. (See Baldev Singh v. State of Punjab , (Omkar Ndmdeo Jadhao and Ors. v. Second Additional Sessions Judge, Buldana and Anr. ), (Ram Swaroop and Ors. v. State of Rajasthan) reported in AIR 2004 SC 2943, (Rajendra Singh v. State of U.P. and Anr.) and (Tolar Sorum v. State of Arunachal Pradesh) reported in 2007 (4) GLT 905).

10. It is also transpired from the close scrutiny of the records that though the deceased, Asaddar Ali @ Akhoi Mian died after 5 days from the date of occurrence i.e. on 5.1.2002, no attempt whatsoever was ever made to record the dying declaration of the deceased/victim. It is admitted that the deceased was assaulted on 5.1.2002 and he died after 5 days of the incident and the same is also revealed from the evidence of the Doctor, P.W. 8, who conducted the autopsy on the dead body of the deceased on 11.1.2002.

11. This Court, in a case of Ganesh Gogoi v. State of Assam reported in 2008 GLT(Crl) 51 : 2008 (1) GUI 314, while examining the scope of non-recording of dying declaration of the deceased, who survived for several days, in para-17, has also observed as under:

17. It is also admitted and noted herein that the deceased was assaulted on 30.9.01 at about 11.30 a.m. and he died on 4.11.2001 succumbing to the injuries so inflicted upon him as per the medical evidence of P.W. 12. during this long gap of period no dying declaration was made by the deceased. Even no attempt has been made to record his dying declaration during the period he had undergone treatment in the Hospital. There is also no evidence on record that the deceased went into coma immediately after so called assault. Even P.W. 6 who examined the dead body of Bhogeswar Baruah (deceased) never stated that the patient was under coma rather he opined that the nature of injury was simple and individually.

12. In the case in hand, as already noted above, no dying declaration of the deceased was recorded during the period of his survival for five days. There is nothing on record to show that deceased was not in a position to speak and the same is evident from the deposition of P.W. 1, the Doctor, Dr. Khandakar Golam Hussain, who examined the deceased when he was under his treatment in injured condition on the very date of incident itself on 5.1.2002. Only reference was made by P.W. 1, in his evidence therein that the deceased was referred to Karimganj Civil Hospital, without mentioning his physical condition as to whether he could speak or not. Besides, in the instant case all the independent witnesses i.e. P.W. 2, P.W. 3 and P.W. 4 were declared as hostile witnesses by the prosecution. However, it is settled law that in case of hostile witnesses, portion of the evidence of hostile witnesses, which is consistent with the prosecution or defence case can be accepted. Fact, that the hostile witnesses resiled from their earlier statement made under Section 161 Cr.P.C. without giving any reason as to why the Investigating Officer would record statement under Section 161 Cr.P.C. incorrectly, raises doubts on their subsequent versions in favour of the accused. (See Bishu Das @ Jishu Das v. State of Assam 2005 (2) GLT196). In the case in hand, however, we do not find that any portion of such hostile evidence is consistent with the prosecution case for acceptance by the Court.

13. In view of the above, we are of the firm view that the prosecution has failed to prove the case beyond reasonable doubt. Consequently, the conviction and sentence of the appellants so imposed by the learned Additional Sessions Judge (Adhoc), Karimganj need to be interfered with and hence the same is hereby set aside and quashed.

14. The appellants be set at liberty forthwith if they are not wanted in connection with any other criminal case. In the result, this appeal succeeds and stands allowed.

15. Send down the LCR immediately.

Mainul Haque vs State Of Assam on 19 February, 2008

Gauhati High Court
Mainul Haque vs State Of Assam on 19 February, 2008
Equivalent citations: 2008 (1) GLT 916
Author: H Barua
Bench: H Barua


JUDGMENT

H. Barua, J.

1. This is an appeal against the Judgment and Order of conviction dated 15.07.2005 passed by the learned Assistant Sessions Judge Nalbari in Sessions Case No. 26/04 by which the learned trial Court convicted and sentenced the appellant to undergo imprisonment for 8 years under Section 376 IPC together with a fine of Rs. 2,000/- in default to suffer another 6 months RI.

2. The appellant being aggrieved by and dissatisfied with the Judgment and Order of conviction as aforesaid this instant appeal seeking setting aside and quashing of the Judgment so rendered by the learned trial Court has been filed.

3. Criminal law was set in motion by the victim with the lodgment of an FIR (exhibit 1) before the Station House Officer of Mukalmua Police Station on 23.09.2003 contending inter alia that she was in love with the appellant and the appellant used to visit their residence regularly for the last four years and in one day the appellant forcibly raped her. As a result she became pregnant. While she was carrying four months pregnancy she informed the appellant that she was carrying and requested him to marry her. Accordingly on 14.09.2003 accused took her to their residence and kept her in the courtyard and fled away therefrom. The family members of the appellant did not allow her ingress rather forcibly driven her out from their campus. The matter was brought to the notice of village elders. A village “mel” was accordingly convened but the appellant did not make his presence available rather kept himself in concealment.

4. The FIR (exhibit 1) being thus lodged, the Station House Officer registered a case and commenced investigation. The victim informant was examined by the Investigating Officer and got her examined medically. The informant victim was also produced before a Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. During investigation the appellant could not be apprehended by the Police. However, he surrendered before the Court and got himself enlarged on bail. The Investigating Officer after completion of the investigation laid the charge sheet against the appellant under Sections 493/376 IPC The case was subsequently committed to the Court of Sessions for trial of the appellant. The learned Assistant Sessions Judge framed charge against this appellant under Section 376 IPC. The appellant pleaded not guilty and claimed to be tried. Altogether 6 witnesses were examined by the prosecution. Appellant was examined under Section 313 Cr.P.C. He pleaded his innocence. No defence evidence in any form was adduced. At the conclusion of the trial, the learned trial Court convicted the appellant and sentenced him as herein before stated. Hence this appeal.

5. Heard Sri B.C. Das, learned Senior Counsel for the appellant. Also heard learned , additional PP for the respondent, The State of Assam. This Court has carefully gone through the facts and circumstances of the case, evidence on record and other materials available in the case record including the impugned judgment. It is found from the perusal of the Judgment that the learned trial Court had carefully gone through all the facts and circumstances of the case, the evidence on record and also the law relevant therefor.

6. Sri B.C. Das, learned Senior Counsel while arguing this appeal submitted that this appeal could be disposed of on the decision of a solitary issue of consent of the victim. Sri B. C. Das raised this issue in the following manner:

(1) Whether the victim had given her consent under misconception of facts.

Sri B.C. Das, while arguing submitted that there is no dispute in relation to visit of the appellant to the residence of the victim, since both the victim and the appellant were in love at that time. It was argued by Sri Das that the medical testimony of PW-5 goes to show that victim at the relevant point of time was above 18 years of age as per radiological report and also was carrying 16 to 17 weeks pregnancy as per ultra sonography report. Further the victim herself in her evidence as well as her statement recorded under Section 164 of the Cr.P.C had given her age as above 18 years. Apparently the victim was a major and was competent to give her consent. It was further argued by Sri B.C. Das that since the victim was in love with the appellant cohabitation resulted as per consent of the victim. Therefore, there cannot be any issue that consent was given by the victim for such cohabitation due to inducement etc., by the appellant.

7. Contrary to the argument so advanced by Sri B.C. Das, learned Senior Counsel for the appellant, the learned Additional PP, Assam appearing for and on behalf of the State respondent, submitted that on the basis of facts and circumstances and the evidence on record it can be inferred that the consent was given by the victim for such cohabitation due to misconception of facts. The learned Additional PP, referring to the evidence of the victim as well as the mother and the contents of the FIR submitted that the appellant had his carnal desire fulfilled, saying that he would marry the victim in near future. But the evidence categorically speaks about the conduct of the appellant. It is in the evidence that the appellant had taken the victim when she divulged about her pregnancy due to cohabitation between them. On 14.09.2004 appellant had taken her (victim) to his residence and keeping her in the courtyard fled away there from. The family members of the appellant did not accept her as the wife of the appellant rather drove her out forcibly there from. According to learned Additional PP, the appellant’s conduct of leaving the victim at their courtyard makes it palpably clear that the appellant had no intention to marry the victim. The appellant by inducing the victim that he would marry her in near future obtained her consent for such cohabitation. The victim, therefore, misconceived the fact and agreed to have a sexual intercourse in between them. The learned Additional PP, therefore, prayed this Court to maintain the conviction and sentence so rendered by the learned trial Court.

8. Sri B.C. Das, learned Senior Counsel Submitted that on facts prosecutrix had taken a conscious decision to participate in the sexual act with the appellant on being impressed by the appellant’s promise to marry her. The appellant’s promise was not false. He had an intention to marry since inception. It was further argued by Sri B.C. Das, that the appellant’s intention to marry the victim could be inferred from his conduct. When the , victim became pregnant and when she divulged the fact of carrying pregnancy to the appellant, appellant in order to keep his promise had taken the victim as his wife to his residence. But the acts and omission on the part of his parents cannot however be combined with the appellant’s conduct and intention. Appellant had sexual intercourse with the victim with a promise to marry her and on the face of the facts and circumstances and evidence on record it cannot be said that the appellant obtained the consent of the victim by playing fraud on her.

9. The word “consent” in the Indian Penal Code is nowhere defined comprehensively but what cannot be recorded as consent under the Code is unambiguosly explained in Section 90 of the Code, which provides as under:

90 Consent known to be given under fear or misconception.- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; Consent of insane person.- If the consent is given by a person, who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent;

Consent of Child-Unless the contrary appears from the context, if the consent is given by a person, who is under twelve years of age.

10. Therefore, under the provisions of Section 90 of the Indian Penal Code, two conditions must be fulfilled. Firstly, it must be shown that the consent was given under fear of injury or under the misconception of fact. Secondly, it must be proved that the person, who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception.

11. In our present case, of course we are not concerned about the consent under fear of injury. We are, however, concerned about the next phrase “misconception of fact” appearing in the section for arriving at a decision whether the prosecutrix had given her consent under misconception of fact.

In the First Information Report that lodged by the prosecutrix herself it was contended that the appellant used to visit their home for last 4(four) years and they fell in love with each other but on a certain day the appellant forcibly raped her as a result of which she became pregnant. When she was carrying pregnancy of 4(four) months, the matter had been divulged to the appellant and requested him to marry her. So, apparently, from the text of the First Information Report that lodged it appears that the appellant forcibly had sexual intercourse with her resulting pregnancy of four months. This first informant while in the witness box has, to some extent, deviated from her earlier stand and in her deposition it is found that as a result of visit of the appellant to their residence, a friendship developed in between the first informant and the appellant and they fell in love for last four years and one day the appellant offered a proposal to marry her. With the assurance of marrying her, he tried to have sexual intercourse but she initially resisted. Thereafter, the appellant promised to marry her and had sexual intercourse with her as a result she discovered that she was pregnant. So, from the reading of the evidence of the prosecutrix, there appears no iota of evidence that the appellant had used force as has been contended in the first information report, to have sexual intercourse. But it is in evidence, when the appellant gave an assurance or in other words promised to marry the prosecutrix, the prosecutrix allowed the appellant to have sex with her. Further, when the prosecutrix divulged the factum of pregnancy of four months to the appellant, the appellant had taken her unto his residence accepting her as his wife but left her at their courtyard and fled away. She was subsequently driven out by the parents of the appellant.

12. Mr. B.C. Das, learned senior counsel, in the face of the facts submitted that there was no misconception of fact on the part of the appellant as contended by the State respondent. It is evident on record that the appellant honestly obtained the consent of the prosecutrix in having sex with her. The subsequent conduct of the appellant, according to Shri B.C. Das, learned senior counsel, gives a go by to the second requirement of Section 90 of the Indian Penal Code. There is no evidence in the record to show that the appellant induced the prosecutrix to obtain her consent to have sexual intercourse with him. The prosecutrix being a major lady and in belief of the promise, gave consent for sexual intercourse. Divulgence of the factum of pregnancy by the prosecutrix to the appellant and her taking by the appellant subsequent thereto treating her as his wife unto their residence cumulatively make the position of the case clear and crystal that there was no misconception of fact as urged by the respondent.

13. Learned Additional Public Prosecutor, Shri D. Das, while arguing the appeal gave much stress in respect of subsequent conduct of the appellant. According to the learned Additional Public Prosecutor, appellant’s promise was not sane in the true sense of the term; rather he made the promise that he would marry the prosecutrix in near future in order to have sexual intercourse with her. Learned Additional Public Prosecutor, there fore, submitted that no error or illegality had been committed by the learned trial Court in convicting the appellant and sentencing him as above.

14. Mr. B.C. Das, learned senior counsel in support of his argument relied on the decision in the case of Uday v. State of Karnataka . In Paragraphs 11 and 25 of the judgment, his Lordship, Hon’ble Mr. Justice B.P. Singh held as under:

21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of cast considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They meet often, and it does appear that the prosecutrix permitted him liberties, which, if at all, is permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O’clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that comes what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise losses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a week moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons that one for her to consent.

15. Shri B.C. Das also relied on the decision in the case between Deelip Singh @ Dilip Kumar v. State of Bihar wherein the provisions of Section 375 and Section 90 of the Indian Penal Code have been dealt with and explained.

On a close scrutiny of the facts and evidence on record, and the law laid down by the Hon’ble Supreme Court, this Court is of the opinion that the prosecutrix gave consent to sexual intercourse to the appellant without any stress of misconception of fact. Her evidence makes it palpably clear that she gave consent to such sexual intercourse believing the promise of the appellant that she would be married soon. There is no evidence on record to show that the appellant obtained consent or had reason to believe that the prosecutrix gave the consent in consequence of false promise or misconception.

16. Having considered the facts and circumstances of the case and the evidence on record, this Court is of humble view that the judgment and order of conviction so rendered by the learned trial Court cannot sustain. Conviction and sentence so awarded are set aside and quashed.

17. In the result, this appeal stands allowed.

Sibu Nayak vs State Of Assam on 6 February, 2008

Gauhati High Court
Sibu Nayak vs State Of Assam on 6 February, 2008
Equivalent citations: 2008 CriLJ 1705
Author: P Musahary
Bench: A H Saikia, P Musahary


JUDGMENT

P.K. Musahary, J.

1. The prosecution story is based on an FIR dated 14-1-1999, lodged by one Samaru Baraik informing the Officer-in-charge, Mariani P.S. that his coworker, accused Sibu Nayak of Punjabari Tea Estate killed his wife, Smti. Malati Nayak at about 3 a.m. of 14-1-1999 in his own house by dashing her head against the pucca wall. A case, was registered under Section 302, IPC and investigated into leading to filing of charge sheet against the accused. On committal the learned Sessions Judge, Jorhat took up the matter for trial. A charge under Section 302, IPC was framed against the accused and on being explained, he pleaded not guilty and claimed to stand trial.

2. The prosecution examined, in all, 8 witnesses including the informant as well as the Investigating Officer to prove its case but the accused adduced no evidence in his defence. There was no eye-witness to the occurrence and as such the prosecution had to depend on the circumstantial evidence to prove its case.

3. P.W. 1, informant and a tea garden line chowkidar deposed that he came to know about the incident when he was first informed by one Bimal Das who came to his house and informed about it. He, along with Bimal Das, went to the residence of Sibu Nayak and saw his wife lying on the ground covered with a piece of cloth. He then informed the Secretary of the tea garden and came back along with him to the house of Sibu Nayak. They found Sibu’s wife dead. Then he lodged the Ejahar, but did not know who wrote it for him. In cross-examination he stated that when he came with Bimal Das to Sibu’s house, there was none but the accused Sibu himself. He did not know if Sibu’s wife had been mentally disturbed. No suggestion was put by the defence that the accused was not present alone near the dead body of his wife.

4. P.W. 2, Dilbar Tanti alias Guala, a tea garden Sardar deposed that he was informed by Bimal Das and Samaru Boraik (P.W. 1) that the accused husband and his deceased wife quarrelled and the wife died in the morning. He also came to the house of Sibu along with Samaru, Bimal Das and Jaban Karmakar and found Malati’s dead body lying covered with a piece of cloth on the floor inside his house. Upon removal of the cloth he saw the nose bleeding the forehead swollen and blacken and the neck also swollen. He also saw two places of pucca wall stained with blood and the accused was sitting nearby the dead body with his head down and hands over his head. On enquiry the accused told them that his wife died due to some illness. In the meantime the Police Daroga came and held the inquest over the dead body. On being interrogated, he told the Police that Malati’s nose had been bleeding, forehead had been swollen and the wall of the house bore the marks of blood.

5. P.W. 3, Sri Joko Tanti, another tea garden Sardar, stated in his deposition that the occurrence took place on the day of Assamese festival Magh Bihu. He visited the house of Sibu Nayak, where he found gathering of people and also the garden Secretary in the courtyard. He found accused Sibu Nayak sitting near the dead body of his wife covered by a piece of cloth. When the Secretary removed the cover from the dead body, he saw an abrasion and bleeding on the forehead and swollen neck. He also saw some blood which was bleeding out from the nostril. He further stated that he was present when the Police visited the place of occurrence and held the inquest on the dead body. He was interrogated by the Police and put his signature on the inquest report.

6. From the evidence of P.W. 1, P.W. 2 and P.W. 3, it has been proved that the occurrence took place in the residence of accused Sibu Nayak and the dead body was found thereat. It was also proved that the accused was present sitting near the dead body but he himself did not inform anybody about the incident and the FIR was lodged by P.W. 1.

7. P-W. 6, Dr. A.K. Barua, who held the autopsy on the dead body of the deceased, Malati Nayak, deposed that, in his opinion, the cause of death was due to shock and coma, as a result of the head injury sustained by the deceased. He described the injuries as follows:

1) Bruish and haematoma on the forehead of both left side and right side. Left side measuring 1″ × 1″ and right side measuring 1″ × ½”.

2) Black eye (left).

3) Haematoma on right side parietal region measuring 1½ × ½”.

4) Slight abrasion on nose lip measuring ¼ × ½.

5) Abrasion in left side elbow measuring ½” x ¼”.

8. The defence declined to cross-examine this witness. The prosecution has been able to prove that there are injuries, including head injury, on the body of the deceased and she died due to head injury sustained by her. This position was accepted by the defence as they declined to cross-examine the said doctor.

9. P.W. 8, Md. Khairul Islam, the Investigating Officer, stated that he visited the place of occurrence in the course of investigation and examined the witnesses. He found the dead body of Malati Nayak lying inside her house and held inquest on the dead body. He sent the dead body to the Civil Hospital for conducting autopsy and also drew sketch map of the place of occurrence in presence of the witnesses. He searched for the accused but found no trace of him. He arrested the accused when he surrendered himself in the evening of the next day. The defence, in cross-examination, put only one question to the Investigating Officer to which he replied:

It is not true that I had not conducted the investigation as per rules.

10. The learned trial Court put two pertinent questions to the Investigating Officer, P.W. 8. First, whether he could see any marks of blood etc. in the walls of the house. He replied that he saw marks of blood in the pucca wall in the house of the accused but he does not remember now in which he saw those marks. Second, whether he could, from records, tell the number of family members of the accused. He replied that the family of the accused consists of his wife, mother and a child.

11. The prosecution has been able to prove the fact that the deceased was dashed by her forehead against the pucca wall of the house where the accused was living in. No attempt was made by the defence to demolish this piece of evidence in cross-examination of the prosecution witnesses. The injuries described in the post-mortem report. Exhibit-11, as well as the deposition of P.W. 6, particularly, injuries No. 1 and 3, fit well in the nature of physical assault meted on the deceased i.e. dashing of her torehead against the pucca wall. The accused unfortunately did not even bother to have a close look at the injuries on the person of his deceased wife. To a question put by the Court under Section 313, Cr.P.C. regarding the injuries, he casually said that he saw the injuries but did not notice where those were.

12. Having proved that the occurrence took place in their own house, the deceased was killed by dashing her forehead against the wall supported by medical report and evidence of doctor, the wall of the house bore the marks of blood and the accused was sitting near the dead body of his wife, the learned trial Court was required to reach the culprit through the incriminating circumstances. It has been done so and held the accused guilty of killing his own wife. Sitting in appeal, we are in turn now required to find out the incriminating circumstances from the evidence on record as to whether the accused husband is the perpetrator, for the sake of principle that no innocent man is punished and at the same time no guilty man can escape. Incriminating circumstances have been focused by the learned trial Court in Paras 32, 33 and 34 of its judgment which may be reproduced hereunder:

32. The discussion, so made, has pronounced much too loud and clear that on the night, the 13th January, 1999, at about 3 a.m. Malati Nayak, the wife of the accused, met her violent death and that too inside her house. That she met her death following her head being crushed being hit repeatedly and violently against the concrete wall of her house has also been found abundantly clear from our foregoing discussion. Now the moot question is who killed her.

33. Before being found an answer to this query, let me recast the facts and circumstances which come to the force, quite forcefully following the evidence being tendered by the P.Ws. during the trial of this case. They are (i) Malati Nayak, since deceased, was a woman of average built and she enjoyed normal health till she breathed her last on the night on 13th January, 1999, (ii) The accused with his family members were the only occupants of his house and no outsider did visit his house that night, (iii) Malati Nayak died an extremely violent death on the night in question, her head and face being crushed quite badly, (iv) The inner wall of the house of the accused person bore blood marks at place.

34. Some other circumstances, of course, no less in importance than the circumstances, being described in the paragraph before, are (i) despite the wife of the accused died as early as 3 a.m. on the night of 13th January, 1999 and in spite of her meeting a brutal death, the accused did not inform of it to his neighbours till the day break, (ii) The accused, who was at his residence till next morning, fled home soon thereafter, however, only to re-emerge in the Police Station next day in the afternoon.

13. The aforesaid circumstances have cumulatively formed a complete chain and they are unerringly pointing towards the guilt of the accused. From the said circumstances there is no difficulty to arrive at a conclusion that within all human probability the crime was committed by the accused and the accused alone. His conduct in not making any hue and cry after discovering his wife dead inside the house, not informing the neighbour, his disappearance from the scene and, of course, surrendering himself before the police, is so unusual from which interference may be drawn that the accused was guilty. He has made no explanation for such unnatural conduct. The only explanation the accused tried to offer is found in his statement/answer to question No. 30 under Section 313, Cr.P.C. which may be quoted below:

30Q:–What would you like to say in your defence?

Ans:–I did not kill my wife. On the day of occurrence, I was not present in my house. That night, it being ‘Bihu’ festival, I was attending a feast with my friends and upon returning home in the morning I found my wife lying dead in the house. She had injuries in her person.

My wife was suffering from ‘Epilepsy’, She fell to the ground from standing several times and sustained injuries. I think that night also she might have had epileptic fit for which she might have fallen heavily, causing injuries on her person resulting her death.

I did not commit any offence. I am innocent. I have no any defence witness to cite. I have this much to say.

14. Epilepsy is commonly known as a disorder of the nervous system that causes a person to become unconscious suddenly. Dr. Bernard Knight in his book entitled “Medical Jurisprudence Toxicology” (6th Edition), described epilepsy as a disorder of brain in which the pathology remain confined exclusively to the motor kortex and the manifestation of the disease is characterized in the form of epileptic fits. If the version of the accused is taken as true that the deceased was attacked by epilepsy, she should have fallen down due to sudden loss of consciousness and there was no chance for her to stand up again and dash her forehead repeatedly against the pucca wall. The injury on her forehead and the marks of blood on the wall belie the explanation of the accused. The accused by offering false explanation has proved himself consistent with the guilt and inconsistent with his innocence. Moreover the burden lies on the accused to prove his deceased wife had a history of epilepsy by adducing sufficient medical evidence. The accused has not even adduced his mother to prove the fact that his wife fell down due to sudden attack by epilepsy on the day of occurrence as a result of which she received severe injuries arid died in her own residence while the accused was not present at the relevant time.

15. The incident, admittedly, took place inside the private house in the night time and there is no evidence on record that any outsider broke open the house and caused murder of the deceased and as such it was not possible on the part of the prosecution to adduce any eye-witness to prove the case. The prosecution has proved its case beyond reasonable doubt on the basis of the attending circumstances mentioned above to which the accused has no answer and adduced no evidence to his defence.

16. The Apex Court in a number of cases has laid down the principle for convicting an accused in a case based on circumstantial evidence. We would like to refer to the case of Trimukh Maroti Kirkon v. State of Maharashtra as as an appropriate case, in which the crime was committed inside the house secretly and no eye witness was available. Para 12 of the said case may be quoted gainfully:

12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability of crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.

17. The circumstances found in the present appeal, fit in the principles laid down by the Hon’ble Supreme Court in the case of conviction rested on circumstantial evidence. The aforesaid circumstances, in our opinion, have rightly been accepted by the learned trial Court leading to proof of guilt of the accused appellant. We have no hesitation to uphold and confirm the impugned judgment and Order dated 29-11-2001, passed by learned trial Court in Sessions Case No. 57(JJ)/1999 convicting and sentencing the appellant and accordingly we do uphold and confirm the same. Appeal stands dismissed.

18. Before we part with the records, we must put in some words of appreciation for Mr. M.R. Patliak, learned Counsel, who appeared as Amicus Curiae and rendered legal assistance in a desired manner for which he deserves remuneration from the Govt., of Assam, which we quantify at Rs. 3,000/-. Send down the records.

Hazrat Ali vs State Of Assam on 6 February, 2008

Gauhati High Court
Hazrat Ali vs State Of Assam on 6 February, 2008
Equivalent citations: 2008 (2) GLT 165
Author: A H Saikia
Bench: A H Saikia, A Hazarika


JUDGMENT

Aftab H. Saikia, J.

1. Heard Mr. Sk. Muktar and Mrs. P. Lahkar, learned Counsel for the appellant as well as Mr. K.A. Mazumdar, learned P.P., Assam.

The conviction of the appellant under Sections 302/34 IPC read with Sections 457/34 IPC and sentence to undergo imprisonment for life under Sections 302/34 IPC and rigorous imprisonment for one year with a fine of Rs. 1000/- and in default, rigorous imprisonment for one month under Sections 457/34 IPC so handed down to the appellant by the learned Sessions Judge, Darrang at Mangaldoi by his judgment and order dated 22.10.99 rendered in Sessions Case No. 18 (DM) 91 have been put under challenge in this instant criminal appeal.

2. Facts briefly stated, as projected in the prosecution case, is (are) that on 19.10.88 at about 2 A.M. accused Sahar Ali @ Sahir Ali and Hazrat Ali, the appellant, entered the house of Md. Miaruddin Sheikh (hereinafter referred to as ‘the deceased’) and killed him by assaulting with axe and dagger. On raising alarm by the wife of the deceased, Siratan Nessa (P.W. 5), she was threatened with dagger and caught by her neck. At that time, P.W.-5 could recognize and identify the accused person including the appellant in the light of a burning lamp. However, the accused persons fled away on arrival of the neighbours. An FIR was lodged to that effect by P.W. 5 herself whereupon the Dhula police registered a case being Dhula PS. Case No. 50/88 under Sections 457/302 IPC.

3. After investigation, police submitted chargesheet against both the accused persons namely Sahar Ali @ Sahir Ali and Hazrat Ali, the appellant under Sections 457/302/34 IPC.

4. On being committed, the learned Sessions Judge took up the trial wherein on appearance of the accused persons and after hearing the learned Counsel for the parties, charges were framed under Sections 457/302/34 IPC against both the accused persons. Both the accused persons pleaded not guilty and claimed to be tried.

5. After completion of examination of the “Witnesses as adduced by the prosecution, the present appellant Hazrat Ali was found to be absent for which he was declared absconder vide order dated 30.9.97. The other accused Sahar Ali @ Sahir Ali after completion of trial was found to be guilty of the commission of offence of murder of the deceased and accordingly; he was convicted under Sections 302/457/34 IPC and sentenced to suffer life imprisonment by the learned Sessions Judge by his judgment and order dated 11.3.98 cassed in Sessions Case No. 18 (DM) 91.

6. On the other hand, the present appellant could be apprehended only on 21.6.99 and brought for trial and on the basis of the same set of evidence the present appellant was convicted by the learned Sessions Judge under Sections 302/457/34 PC and sentenced accordingly as already indicated above.

7. At the very outset Sk. Muktar, learned Counsel for the appellant has submitted that the conviction and sentence so imposed upon the other accused Sahar Ali @ Sahir Ali as noticed above, having been challenged before this Court, were set aside and quashed by this Court by judgment and order dated 21.5.03 passed in Crl. Appeal No. 113 (J)/98 holding that the testimony of P.W. 2 Abdul Latif, P.W.-3 Omar Ali and P.W.-5 Siratan Nessa, the informant who was also being the eye witness, as she claimed seeing the occurrence at the fateful night while she was sleeping in her house with her husband, the deceased, was unreliable and inadequate for a criminal Court to arrive at the definite conclusion that the appellant therein was an assailant of the deceased Miaruddin.

8. Accordingly, it is forcefully submitted that relying on the same set of evidence, the prosecution failed to prove its case against the appellant beyond reasonable doubt for which the appellant is entitled to get the benefit of doubt against the charges under Sections 457/302 read with Section 34 IPC.

9. We have scrupulously Scrutinized the entire evidence made available on record as adduced by the prosecution. We have also given our thoughtful consideration to the extensive arguments and submissions so made on behalf of the appellant as well as the State of Assam.

We have also thoroughly gone through the judgment and order dated 21.5.2003 whereby the other accused Md. Sahar Ali @ Sahir Ali was acquitted by this Court.

10. Having meticulously considered and -appreciated the testimony of the prosecution witnesses more particularly, P.W.-3 (Md. Omar Ali) and P.W.-5 (Mustt Siratan Nessa), the informant and the only eye witness, it is found that P.W. 5 in her evidence in chief deposed that on the night of occurrence accused Sahar Ali @ Sahir Ali, who was acquitted by this Court as indicated above, along with Hazrat Ali, the present appellant, entered the room by breaking the wall at night where a lamp was kept burning. They assaulted her husband with axe and dagger. It was the accused Sahar Ali who held her by throat and the present appellant Hazrat Ali assaulted her husband the deceased. Since both the accused persons hailed from the same village, she knew both of them. However, in cross she categorically testified that both the accused had come by covering their face with black cloth and the lamp which was burning at that time got broken on falling on the ground.

11. Keeping in mind the evidence of this witness, we have no hesitation to hold that there is no clinching evidence to rope in the present appellant in committing the killing of the deceased as one of the assailants of the deceased.

12. That apart, since one of the co-accused was already acquitted by this Court and it also appears that this appellant too stands on the same footing as that of the earlier convicted acquitted co-accused Sahar Ali, the present appellant is also entitled to get acquittal.

13. To arrive at this finding, we have been guided by a decision of the Supreme Court rendered in a case reported in 2004 AIR SCW 1329 (Charan Singh and Ors. v. State of U.P.). In paragraph 12 it was held as under:

12. We shall first deal with the accused-appellant Raj Pal. As noted by the High Court he stands on the same footing as that of the acquitted accused persons. The Trial Court and the High Court, however, distinguished his case by observing that being the son of accused Harkesh who was prime mover of the crime, he may have a motive. In the absence of any positive material in that regard, there is no scope for distinguished his case from the other accused persons who have been acquitted. Therefore, his conviction cannot be maintained.

14. In view of what has been stated, ob-served and discussed above and also having regard to the cited judicial pronouncement of the Apex Court as well as the judgment and order dated 21.5.03 rendered in Crl. Appeal No. 113(J)/1998 as already discussed above, we are of the considered view that the appellant is entitled to get acquittal. We do order accordingly.

15. The appellant be set at liberty forthwith, if he is not required in any other case.

In the result, the appeal succeeds and stands allowed.

Send down the LCR forthwith.