Gauhati HC: Anticipatory bail application is not maintainable if accused is prosecuted either for an offence U/S 65 or U/S 70(2) of BNS

 The learned counsel for the petitioners has submitted that legislature has deliberately used the conjunction “and” in Section 482(4) in place of the disjunction “or” in the said provision, hence, unless a person is accused of both the offences under Section 65 and Section 70(2) of BNS 2023, the bar of Section 482(4) will not be applicable. He, therefore, submits that as in this case, only offence under Section 65(1) is involved without any accusation under Section 70(2), the bar under Section 482(4) is not applicable to this case. {Para 10}

23. This Court fully agrees with the submission of the learned Amicus Curiae that if literal meaning is given to the word “and” used in Section 482(4), it would frustrate the legislative intent of restricting the operation of provisions regarding anticipatory bail in respect of certain heinous offences which was earlier provided for in Section 438(4) of Cr.P.C, 1973.

24. The Apex Court in the case of “Spentex Industries Limited vs.

Commissioner of Central excise and others”(supra) has observed as follows:-

“29. We are conscious of the principle that the word “or” is normally disjunctive and “and” is normally conjunctive (see Union of India v. Kamalabai Harjivandas Parekh [AIR 1968 SC 377 : (1968) 1 SCR 463] ). However, there may be circumstances where these words are to be read as vice versa to give effect tomanifest intention of the legislature as disclosed from the context”.

25. If we look at the provisions contained in Section 65 of BNS, it appears that it penalizes two kinds of rape i.e., under Section 65(1), it penalizes rape of a woman under the age of 16 years whereas under Section 65(2), the penalty is for rape of a woman under the age of 12 years whereas Section 70(2) penalizes gang rape (rape of a woman by one or more person constituting a group or acting in furtherance of common intention of a woman who is less than 18 years of age). The basic difference between the two penal provisions is that in case of offence under Section 65, the victim is either less than 16 years of age or less than 12 years of age and the offender is normally a single person, whereas under Section 72(1) of the BNS, the victim is under the age of 18 years and the offenders are more than one person constituting a group or acting in furtherance of common intention. There is unlikelihood of a case where a person would be charged both under Section 65 of BNS as well as under Section 70(2) of BNS. If there is a single offender and the victim is less than 16 years of age, he would be charged under Section 65 of BNS whereas if there are one or more women who is raped by one or more in a group of persons acting in furtherance of their common intention of raping the minor girl, they would be charged under Section 70(2) of BNS. To say in other words, if more than one person are involved in the offence of raping a victim under the age of 18 years, they would not be charged under Section 65 but under Section 70(2) of BNS, therefore, there is unlikelihood of a case being registered under both the sections i.e., Section 65 and Section 70(2) of BNS if there are more than one person involved and victim is less than 18 years of age.

26. Under such circumstances, giving a literal meaning to the word “and” and insisting that the bar of Section 482(4) would be applicable only if both the sections are involved in the case and the accused has been arrested of having his own accusations of committing offence under both the Sections i.e., under Section 65 and Section 70(2) of BNS would result in making the bar provided in Section 482(4) of BNSS almost redundant in any case which would frustrate the legislative intent.

27. Hence, agreeing with the submissions made by the learned Amicus Curiae, this Court is of considered opinion that the word “and” appearing between the words “under Section 65” and “sub-Section (2) of Section 70” in Section 482(4) of BNSS shall have to be read as “or” to give effect to the manifest intention of the legislature.

28. In view of the above discussion, the contention of the learned counsel for the petitioners is rejected and it is hereby held that the embargo of Section 482(4) of BNSS would apply to any case involving the arrest of any person on accusation of having committed an offence under Section 65 or sub-Section (2) of Section 70 of BNS, 2023.

 THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : AB/446/2025

NAZIR HUSSAIN AND 3 ORS. Vs THE STATE OF ASSAM

BEFORE

MR. JUSTICE MRIDUL KUMAR KALITA

Date : 02.06.2025

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Gauhati HC: [S.187 BNSS] Status Of Hospitalised Arrestee Cannot Remain Unknown, Magistrate Must Verify Through Visit Or VC

Though, there is no dispute at the bar regarding the proposition of law, as mandated by Article 22 of the Constitution of India, that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of his arrest excluding the time taken for the journey from the place of arrest to the Court or the Magistrate and no such person shall be detained in custody beyond the said period without authority of a Magistrate, however, in the instant case, though the petitioner was arrested on 14.04.2025 (as apparent from the arrest memo of the petitioner available in the record), however, there is no order of remand either judicial or police neither the petitioner is released on bail. {Para 13}

14. It appears that the learned Magistrate has erred in not passing any order regarding production of the petitioner through video conferencing mode when such a prayer was made by the Investigating Officer on 15.04.2025 by simply allowing the Investigating Officer to produce the petitioner before the Magistrate as and when he is released from the hospital. Such an order without clarifying the status of the petitioner, as to whether he is in custody or a free person, when the arrest of the petitioner was reported to the said Magistrate stating the reasons for not producing him before such Magistrate, is in violation of the provisions contained in Section 57 of the BNSS as well as Article 22(2) of the Constitution of India.

15. It is settled constitutional position that an arrestee shall have to be produced before the nearest Magistrate within 24 hours excluding the time required for his production before such Magistrate. There may be exceptions to such requirement, like in the instant case where the arrestee is injured and requires urgent medical care so that instead of producing such an arrestee before the Magistrate, he might have to be rushed to the hospital for providing urgent medical treatment. However, in such cases also the Magistrate may ascertain the condition of the arrestee through video conferencing or personally visiting such arrestee whose arrest has been reported to him by the Police. After the arrest of a person if he is not released on bail, an order for remand to judicial custody has to be made though it can be qualified by clarifying that the petitioner may continue to stay in the hospital after ascertaining such a requirement. For the said purpose, the Magistrate may also call for a report from the hospital where the arrestee has been admitted.

16. However, as Section 187 of BNSS categorically states that subject to condition of bail, the Magistrate may authorize his detention either in judicial or in police custody. Unless, such an order is passed, the initial arrest of the petitioner beyond the period of 24 hours from the time of his arrest, would become illegal.

17. In this case, the petitioner has been admitted in hospital for last 45 day after the date of his arrest. Though, he is admitted in the hospital and it appears that his status is not of a free person but of an arrestee as he has not been granted bail in this case, however, no order under Section 187 BNSS was passed by the Magistrate. In absence of any order of remand beyond the period of 24 hours from the time of his arrest, his arrest gets vitiated on completion of 24 hours in custody. Since such non-production of the petitioner, even through video conferencing mode, beyond 24 hours in custody amounts to violation of Article 22(2) of the Constitution of India, his fundamental right to liberty guaranteed under Article 21 of the Constitution of India is also violated and, on that count, the petitioner is entitled to go on bail.

 In the High Court of Gauhati

(Before Mridul Kumar Kalita, J.)

Bittu Kumar  Vs  State of Assam 

Bail Appln./1662/2025

Decided on June 2, 2025

Citation: 2025 SCC OnLine Gau 2842,

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Gauhati HC Extends Benefit Of Probation of offenders Act To Man Convicted U/S 498A IPC, Says Offence Was Not Heinous

 It is by now well settled that Act, 1958 is a milestone in progress of modern liberal trend of reform in the field of Penology. It is the result of recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. It was also held by Hon’ble Apex Court in the case of Ved Prakash Vs. State of Haryana reported in 1981 1 SCC 447, that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial court should collect material necessary to award a just punishment in circumstances. It was further held that the social background and the personal factors of the crime doer are very relevant in this regard. {Para 7}

8. In the case of Sita Ram Paswan Vs. State of Bihar reported in AIR 2005 SC 3534, the Hon’ble Apex Court has laid down certain principle for exercise of discretionary power under the Act and the consideration required. The Hon’ble Apex Court opined that while exercising the discretionary power under the Act 1958, the courts are to consider the circumstances of the case, the nature of offence and the character of the offender. While considering the nature of the offence, the court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. It was concluded by the Hon’ble Apex Court that the benefit available to the accused under section 4 of the Act, 1958 is subject to the Limitation embodied in the provision and the word ‘may’ clearly indicates that the discretion is vested with the court whether to release the offender in exercise of power under section 3/4 of the Act, 1958, having regard to the nature of the offence, the character of the offender and overall circumstances of the case.

9. It was further held by the Hon’ble Apex Court that such power can be exercised by the court even at the appellate or revisional stage or also by Apex Court hearing appeal under Article 136 of the Constitution of India.

10. Now, in the backdrop of the aforesaid settled proposition of law, let this court consider the arguments advanced by the learned counsel for the parties.

11. In the case in hand, the offence was committed on 11.02.2008. The nature of offence cannot also be said to be heinous in the given circumstances of the present case. The victim and the accused have got remarried as recorded hereinabove. The accused has also offered the Mohr, paid the maintenance awarded, the wife had also withdrawn the maintenance case and in view of the aforesaid, in the considered opinion of this Court that this is a fit case where the benefit of provisions of the Probation of Offenders Act, 1958 should be given to the accused petitioner by this court in exercise of its revisonal power.

 THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Rev.P./331/2013

MD. BADRUT ZAMAN Vs  THE STATE OF ASSAM

BEFORE

HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

Date of Judgement : 19.12.2024.

Citation:  2024:GAU-AS:12939.

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Under which circumstances Magistrate who has no jurisdiction to try the case can release seized property U/S 457 of CRPC?

  On a reading of Section 457 Cr.P.C, we find that the said provision coverers a wide spectrum and would apply to all kinds of seizures under the Cr.P.C. On a reading of the words “and such property is not produced before a Criminal Court during an inquiry or trial” appearing in Section 457 Cr.P.C, the same does not necessarily mean that the report of the seizure of property to a Magistrate would be given to the same Magistrate who would hold an inquiry of the case under Section 2(g) of the Code and the trial of the case. The report of the seizure of property could be to a different Magistrate than the one who would conduct the inquiry or trial. The report of the seizure of property under Section 457 Cr.P.C which has not been produced at the stage of investigation, could be to a Magistrate who may not have the jurisdiction to hold the inquiry or trial on the submission of the charge-sheet in the said case. As such, we are of the view that the power conferred under Section 457 Cr.P.C cannot be given a restrictive meaning, as the power under the said provision can be exercised by a Magistrate who has no power to hold an inquiry or trial of the case, in which the seized property is involved in. {Para 43}

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Crl.Pet 284/2022

The State of Assam and Another.  Vs Ram Sankar Maurya. 

BEFORE

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

HON’BLE MRS. JUSTICE MALASRI NANDI

Author: (M. Zothankhuma, J)

Date of judgment : 02.03.2023.

Read full Judgment here: Click here

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Can the court release seized property at the investigation stage U/S 457 of CRPC even if not produced before the court?

 The fact that the Hon’ble Supreme Court has given a direction to the learned Criminal Court to consider release of seized property/articles at the investigation stage under Section 457 Cr.P.C, shows that Section 457 Cr.P.C. can be applied by the Criminal Court at the investigation stage for release of seized

property.The submission made by the counsel for the appellant that the judgment of the Apex Court in Ram Prakash Sharma (supra) did not deliberate on the scope of Section 457 Cr.P.C, for granting custody of seized property at the stage of investigation cannot be accepted by us. While different situations and circumstances could arise in respect of seized property, one situation that can arise is when the police submit a final negative report and the police authorities fail to release custody of the seized property in terms of

Section 102 Cr.P.C. In that case, there would be no remedy for the aggrieved person, except to approach the High Court under Section 482 Cr.P.C or Article 226 of the Constitution, which would be a difficult task for people living in far flung areas and those belonging to the weaker sections of society. In that event,

Section 457 Cr.P.C would become redundant. After considering the decisions of the Apex Court and the various High Courts alongwith Section 457 Cr.P.C, we are of the considered opinion that the words “and such property is not produced before a Criminal Court during an inquiry or trial”, appearing in sub-Section (1) of Section 457 Cr.P.C, cannot be restricted to mean that the stage of inquiry or trial is a condition precedent, for a Court to have jurisdiction for exercising power under Section 457 Cr.P.C. at the investigation stage. We are of the view that the words “and such property is not produced before a Criminal Court during the inquiry or trial” appearing in Section 457(1) Cr.P.C would have to be considered to be a reference to a stage of investigation and not the stage of inquiry or trial. Further, we are bound by the decision of the Apex Court in Ram Prakash Sharma (supra) , in terms of Article 141 of the Constitution of India, as it is the mandate of the Constitution that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Also, in the case of Anil Kumar Neotia vs. Union of India & Others, reported in AIR 1988

SC 1353, it has been held that the High Court cannot question the correctness of the decision of the Supreme Court, even though the points stated before the High Court were not considered by the Supreme Court. {Para 44}

45. In view of the reasons stated above, we answer the reference by holding that at the investigation stage, seized articles cannot be released by a Court under Section 451 Cr.P.C. However, under Section 457 Cr.P.C., the Criminal Court has the jurisdiction to give custody of seized property/articles at the stage of investigation, when those seized property are not produced before the Court.

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Crl.Pet 284/2022

The State of Assam and Another.  Vs Ram Sankar Maurya. 

BEFORE

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

HON’BLE MRS. JUSTICE MALASRI NANDI

Author: (M. Zothankhuma, J)

Date of judgment : 02.03.2023

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Golden principles for deciding application for amendment of written statement

  What emerges from the various authorities cited above is that normally, amendment to a written statement is allowed subject to a few exceptions, these exceptions are:

(i) The proposed amendment which the defendant seeks to make, should not cause injustice to the plaintiff and the admissions made in favour of the plaintiff should not be allowed to be withdrawn.

(ii) The proposed amendment should not be allowed, if inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts are sought to be incorporated by means of amendment to the pleadings.

(iii) The proposed amendment should not be allowed if it amounts to, or results in, defeating a legal right accruing to the opposite party on account of lapse of time. {Para 23}

24. The law, as regards amendment of written statements, is, thus, almost settled. The principles applicable to the amendments of the plaint are applicable with equal force to the amendments of the written statements. However, the Courts are more generous in allowing amendment of written statement as the question of prejudice is less likely to operate in the case of written statement. The defendant has a right to take alternative pleas in defence, which, however, is subject to an exception that by proposed amendment, the opponent should not be subjected to prejudice. All amendments of the pleadings should be allowed, which are necessary for determination of the real controversies in the suit provided that the proposed amendment does not alter or substitute defence taken. However, inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side, which cannot be compensated by costs. No amendment should be allowed, which amounts to, or results in, defeating a legal right accruing to the opposite party on account of lapse of time. The delay, in filing a petition for amendment of the pleadings, should be properly compensated by costs. Error or mistake, which, if not fraudulent, should not be, ordinarily, made a ground for rejecting the application for amendment of a written statement. Above, all, no admission made in favour of a plaintiff, can be allowed to be withdrawn by amendment.

IN THE HIGH COURT OF GAUHATI

Decided On: 30.10.2006

Uttam Chand Kothari Vs.  Gauri Shankar Jalan and Ors.

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Whether Parents Can Give Consent On Behalf Of Minor Victim To Compromise Sexual Offence?

 It is also settled that offences which involve moral turpitude and grave offences like rape, murder etc. even if compromised cannot be quashed in exercise of High Court’s power under Section 482 Cr.P.C. inasmuch as such offences are against the State and cannot be restricted to two individuals or groups.

11. In the case in hand, the offences are grave in nature involving minor victim. The allegations are under Section 354A (2)/307 read with Section 18 of the POCSO Act. Therefore, when the offences are grave in nature and allegation is of an attempt of rape of a minor, such allegation and criminal proceeding cannot be quashed on the basis of a compromise entered into between the

families of the victim and accused inasmuch when it is a sexual offence involving a minor, the parents, in the considered opinion of this court, cannot give consent on behalf of the minor to compromise such serious offences.

THE GAUHATI HIGH COURT

KOHIMA BENCH

Case No. : CRL.REVN 5/2021

MR. LIMHATHUNG Vs THE STATE OF NAGALAND

BEFORE

 MR JUSTICE ARUN DEV CHOUDHURY

Date of Judgment/ Order :24.03.2022

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Whether trial will be vitiated if the court fails to hear accused on the point of sentence?

 From the above abstract, it may be seen that the Apex Court, as a general Rule, has held that the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. However, in the instant case, the learned Trial Court proceed to pronounce the sentence immediately after convicting the appellant on the same day. {Para 8}

[9.] The Apex Court in Santa Singh Vs. State of Punjab (1976) 4 SCC 190, held that hearing contemplated by Section 235 (2) of the Cr.PC is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the Court facts and material relating various factors bearing on the question of sentence and if they are contested by other side, then to produce evidence for the purpose of establishing the same. At the same time, care would have to be taken by the Court to see that hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonized with the requirement of expeditious disposal of proceedings.

The non-compliance with the mandatory provisions of Section 235 (2) cannot be treated as a mere irregularity curable under Section 465 of the Code of Criminal Procedure, 1973. It is much more serious. It amounts to bypassing an important stage of the trial and omitting it altogether so that the trial cannot be said to be that contemplated in the Code. This deviation constitutes disobedience to an express provision of the Code as to the mode of trial. It goes to the root of the matter and the resulting illegality is of such a character that it vitiates the sentence.

THE GAUHATI HIGH COURT

Case No. : CRL.A(J)/8/2020

Zothanpuia Council Veng Vs State of Mizoram Aizawl

BEFORE

 MR. JUSTICE NELSON SAILO

 MRS. JUSTICE MARLI VANKUNG

Author: (Nelson Sailo, J)

Date of Judgment : 31.01.2022.

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Under Which section of CPC court can grant temporary Injunction to a party?

  The question, therefore, which stares at us, now, is this : whether it is Order 39, Rules 1 and 2, which confer jurisdiction and powers on the courts of civil jurisdiction to grant temporary injunction ? Since the orders and the rules framed thereunder merely prescribe the procedure for exercise of the powers by the courts, it logically follows that the power to grant temporary injunction lies elsewhere and not in Order 39, Rules 1 and 2. The question is, as to where lies the power to grant temporary injunction. The answer to this question really lies in Section 94 of the Code, for, the relevant portion of Section 94 reads, thus :

94. Supplemental proceedings. - In Order to prevent the ends of justice from being defeated the court may, if it is so prescribed -

(a) ...

(b) ...

(c) grant of temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and Order that his property be attached and sold.

(d) ...

(e) ...                                                   {Para 15}

16. What is, thus, clear from the above discussion is that it is Section 94(c), which vests the civil courts with the power to grant temporary injunction and also to punish for disobedience of the Order of temporary injunction. How, under what circumstances and in what manner, this power can be exercised is actually given in Order 39, Rules 1 and 2.

Gauhati High Court

Reboti Ray vs Sashi Kanta Budhia @ Agarwal on 22 February, 2006

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When court should not release accused prosecuted under NDPS Act on bail?

  This Court also finds force in the submission of the learned APP regarding the operation of the statutory bar under Section 37 of the NDPS Act. The said Section which has been quoted above makes it clear that all the three conditions are conjunctive i.e. all the

three conditions namely, (i) opportunity to the Public Prosecutor to oppose the bail (ii) prima

facie satisfaction regarding availability of ground for believing that the accused is not guilty

and (iii) he is not likely to commit any offence while on bail are required to be fulfilled.

Though, the first condition is fulfilled and even assuming that the second condition is also

fulfilled, the case records clearly demonstrates the involvement of the accused in another

case involving the NDPS Act in which he has been charge sheeted and he has been facing

trial. Since, the same is relevant factor, this Court is of the opinion that the privilege of bail is

not entitled to by the applicant. As regards the length of detention, apart from the fact that

the offence involved is the socio economic offence, the Hon'ble Supreme court in the

Sahabuddin case, as indicated above has held that the duration as an under trial prisoner has

to be examined from the point of view of the interest of the society.

33. In the case of Amit Kumar (Supra) the Hon'ble Supreme Court has held that socio-economic offences constitute a class apart and are to be visited with a different approach.

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Bail Appln./1894/2021

MD. MOFIDUL HAQUE Vs THE STATE OF ASSAM

BEFORE

 MR. JUSTICE SANJAY KUMAR MEDHI

Date of Judgment : 07.09.2021

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Whether court can insist on plaintiff to prove his case if it can not allow withdrawal of implied admission in a written statement?

What is important to note is that the proviso to Rule 5 gives to the Court the power to insist that notwithstanding the fact that there is an implied admission, because of non-traversing of a fact, the plaintiff proves his statement by adducing evidence. The exercise of this discretion cannot be arbitrary and the Court may have to bear in mind the standard of drafting obtaining at the place, where the suit is instituted. Thus, in a given case, when the counsel's default leads to an implied or express admission, the remedy of the defendant does not lie in withdrawing the admission by making amendment in the written statement, but in making out a case for the Court to exercise its powers under the proviso to Rule 5 of Order 8 and insist upon the plaintiff to prove his case notwithstanding the admission - implied or express - made in the written statement. In the case at hand too, if the learned trial Court finds that non-traversing of the statements made in paras 3 and 15 to 19 of the plaint have been impliedly admitted by the defendant and still if the defendant satisfies the learned trial Court that such admission was due to fault of his earlier counsel, the Court may, if satisfied, insist on the plaintiffs, to prove the statements made in paras 3 and 15 to 19 of the plaint.

36. Coupled with the above, it is pertinent to note that apart from the fact that Order VIII, Rule 5 permits the Court to insist on a plaintiff to prove a fact notwithstanding an implied admission, which the defendant might have made, even Section 58 of the Evidence Act makes it clear that notwithstanding a defendant's admission, express or implied, made in his written statement, a Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.

IN THE HIGH COURT OF GAUHATI

Decided On: 30.10.2006

Uttam Chand Kothari Vs.  Gauri Shankar Jalan and Ors.

Hon'ble Judges/Coram:

I.A. Ansari, J.

Citation: AIR 2007 Gau 20, 2007 (1) GLT 37, MANU/GH/0209/2006

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Whether a husband can take divorce from his wife on the ground of cruelty if she is preventing him from taking care of his parents?

There is another aspect of the matter which needs to be reflected upon in the face of the

evidences adduced by the parties. Under the “Maintenance and Welfare of Parents and Senior Citizens

Act, 2007” children (which includes the son) shall mandatorily be required to maintain parents and

senior citizens. In terms of the definition under Section 2 (d), a parent includes step-mother also.

Under Section 2 (h), senior citizen means any person being a citizen of India who attained the age of

60 years. Under Section 2 (k) “welfare” means provisions for food, health care, recreation centres and

other amenities necessary for senior citizens. A perusal of the provisions of the Act reveals that under

this Act every child including a son is mandatorily required to provide for maintenance/welfare of any

parent.

19. In the evidence of the appellant as PW1 it is stated that PW2 is her widowed step-mother who

has no personal source of income. It is also evident from the evidence that the widowed step-mother

is a senior citizen. Consequently, the agreement dated 06.07.2013, which, as brought out in the

evidence led by the appellant, was compelled to be executed at the behest of the respondent wife

prior to seeking pre-arrest bail by the petitioner and his family members. The said condition that the

appellant and the respondent are required to live separately away from the family members of the

appellant and that none of the family members including the step-mother of the appellant will be

permitted to visit them, being present in the agreement is also not disputed by the respondent in the

evidence led before the court below. It is also categorically stated by the respondent that because of

non-compliance of the said agreement, another criminal case being Digboi P.S. Case No.230/2013,

under Sections 471/420 IPC has been filed against the appellant and his family members.

20. Under the circumstances, it is seen that the Family Court completely ignored this fact brought

out during the evidence that the respondent compelled and prevented the appellant from performing

his statutory duties towards his aged mother under the provisions of the 2007 Act. Such evidence is

sufficient to be construed as an act of cruelty as the non-compliance/non-adherence to the provisions of the 2007 Act has criminal consequences leading to punishment or imprisonment as well as fine.

There was completely no reference and discussion in the impugned judgment rendered by the Family

Court although the same is sufficiently evident from the evidence adduced before the Family Court.

21. Consequently, we are of the considered view that the impugned judgment of the Family Court

be overturned in view of the discussions rendered above and which we accordingly do.

THE GAUHATI HIGH COURT

Case No. : Mat.App. 20/2019

SRI BHASKAR DAS  Vs  SMTI. RENU DAS

BEFORE

 THE CHIEF JUSTICE MR. AJAI LAMBA

 MR. JUSTICE SOUMITRA SAIKIA

Date of judgment : 19.06.2020

(Soumitra Saikia, J.)

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Whether Judgement debtor can refuse to execute sale deed by refunding advance money in bank account of decree holder?

Therefore, when the time did not remain the essence of the contract, the judgment debtor/petitioner could not have rendered the compromise decree a non est by unilaterally depositing the advance money in the bank account of the decree holder, without his consent. Even if the petitioner refunded the advance money by depositing the same in the bank account of the respondent, without his consent, such refund or deposit, in view of order XXI Rule 2 of the CPC, as rightly contended by the learned counsel for the plaintiff/decree holder, was of no consequence to affect the decree, unless such adjustment or payment is brought to the notice of the court or the court certifies such adjustment or payment. On the facts and circumstances of the case, the petitioner/judgment debtor cannot be held to have acquired any right to refuse to execute the sale deed in terms of the compromise decree, and as such, the impugned order, in my considered view did not suffer from any jurisdictional error, warranting interference, in exercise of revisional jurisdiction u/s. 115 CPC.

IN THE HIGH COURT OF GAUHATI

CRP 160/2018

Decided On: 25.01.2019

 Partha Mazumder  Vs.  Abhijit Mazumder

Hon'ble Judges/Coram:

Mir Alfaz Ali, J.

Citation: AIR 2019(NOC) 173 Gau

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Whether family court can try dispute raised by third party to Marriage?

 Having taken note of this aspect of the matter, the factual matrix in the present case would disclose that the respondent herein is not the person who claims a declaration about his own marriage. The very contention that is put forth in the proceedings before the Family Court is that the appellant herein, Smti Nitikona Banarjee, is not the legally wedded wife of his (plaintiff's) brother, Lakshman Banerjee. If that be the position, the parties to the proceedings are not parties to the marriage.

9. Be that as it may. The question that would arise is as to whether in such circumstance the case would fall under Section 7(b) of the Act. In that regard, though in Section 7(b) of the Act the expression "parties to a marriage" does not occur, keeping in view the nature of relief that is provided before the Family Court, it would be only between the parties to a marriage to seek for such declaration for their benefit against the person who claims or contends not to be a party to the marriage. If that aspect of the matter is kept in view, a third party questioning the marriage of any other party would not be entitled to maintain proceedings before the Family Court. In any event, if such a party has any grievance, the remedy is available before the ordinary civil court by filing a suit therein.

IN THE HIGH COURT OF GAUHATI

Mat. App. 29/2016

Decided On: 01.11.2018

Nitikona Banarjee Vs.  Ram Prasad Banerjee

Hon'ble Judges/Coram:

A.S. Bopanna, C.J. and Arup Kumar Goswami, J.

Citation: AIR 2019 (NOC) 452 Gau

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Whether it is necessary to pay ad valorem Court-fee on application for restitution?

In my considered view, law is quite clear that the application for restitution under Section 144, C.P.C. is an application for execution of decree within the purview of Section 2(2), C.P.C. read with Order 21 , C.P.C.

6. This Court also in a case between Sri Tapan Sarkar v. Smt. Sukhila Boro reported in 1990 (2) GLR 29 held that the application for restitution under Section 144, C.P.C. is an application for execution of the decree. In view of the above well principle of law, I am of the view that the First Appellate Court has jurisdiction to hear the appeal arising from the order passed under Section 144, C.P.C. I am also of the view that as the application for restitution under Section 144, C.P.C. is an application for execution of the decree, no ad valorem Court-fee is required on the value of the suit land or mesne profit except the required Court-fees for the purpose of execution of decree or order.

IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)

Second Appeal No. 30 of 1984

Decided On: 13.06.1996

Ramesh Ch. Deb Vs.  Barindra Kr. Chakraborty

Hon'ble Judges/Coram:

N. Surjamani Singh, J.

Citation : AIR 1997 Gau 24

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Whether appeal from conviction given by assistant session Judge lie to session court?

On perusal of the impugned judgment and order it reveals that the aforesaid order was passed by learned Assistant Sessions Judge and the Section 374(3)(a) of the Code provides that the appeal from convictions given by the learned Assistant Sessions Judge will lie to the Court of Sessions. Although, the present appeal is not intended against the order of conviction but the same provision have to follow as regards the forum to whom the appeal lies. Obviously, against the order of the learned Assistant Sessions Judge appeal will not lie to the High Court by skipping the forum.

In the High Court of Gauhati

(Before Rumi Kumari Phukan, J.)

Akhtar Mirza v. State of Assam

Crl.L.P 136/2018

Decided on May 14, 2019

Citation: 2019 SCC OnLine Gau 2295 : (2019) 6 Gau LR 386

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Whether Magistrate can order to give custody of child to mother U/S 97 of CRPC?

 Now the question arose whether in the circumstances will it speak about wrongful confinement of child on the part of the petitioner? The answer will be “No”. The person who carried the child to the hospital to fulfil the wish of her wife on 25.01.2019 and while the child was wilfully left by the respondent/wife in the custody of the petitioner because of her ill health since 2017, such a contention raised by the respondent can in no way be stated as a confinement. The learned Additional District Magistrate although initially had issued search warrant treating the same to be wrongful confinement by its order dated 28.01.2019 but in the order dated 26.02.2019 as indicated above in paragraph 2 of the order has itself held that there can be no question of “wrongful confinement by the second party” but strangely the learned court treated the matter as if dealing with the custody of the child and gave the custody of the child to the respondent/wife which is beyond the jurisdiction of Section 97 of Cr.P.C The provision of custody of child can be decided under Section 25 of the Guardian and Wards Act and the same cannot be adjudicated in the petition under Section 97 of the code. The only question which is to be decided while passing any such order by a court that there was certain wrongful confinement of a person while initiating proceeding. As has been discussed above, no matter of wrongful confinement has been made out as against the petitioner, who is the natural guardian/father of the child.

11. The Section 6 of the Hindu Minority and Guardianship Act provides that the natural guardian of any minor is the father and after him the mother.

12. As a corollary of above discussion it can be found that the impugned order dated 26.02.2019 passed by the learned trial court is wholly without jurisdiction. On the other hand, the order of the revisional court is also bad in law while the court has observed that any minor girl cannot be kept in a place against her will and will amounts to wrongful confinement. However, if the parties file a case for custody of the child, then the question of taking opinion of the child will arise as to with whom preferred to live, whether in the custody of her father or mother and that provision is not applicable in a proceeding under Section 97 of Cr.P.C

13. From what has been discussed above and in the circumstance narrated in the petition and the reply of the present petitioner before the court below it emerges that the child of the parties was kept in the custody of the petitioner by his wife voluntarily for her health problem and the same cannot be now contended as wrongful confinement and both the orders of the trial court as well as revisional court is devoid of merit and liable to be interfered. Accordingly, the orders passed by the trial court as well as revisional court is hereby quashed and set aside. It is however, observed that the parties may prefer appropriate application before the appropriate forum for custody of the child in proper manner, if so advised and till then, it is expected that the petitioner will honour the sentiment of the mother/respondent to facilitate her visit to her child as per convenience of the parties.

In the High Court of Gauhati

(Before Rumi Kumari Phukan, J.)

Sanjeev Kumar Singh  v. O. Mema Devi

Crl. Pet. 626/2019

Decided on July 16, 2019

Citation: 2019 SCC OnLine Gau 2874

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Whether husband is liable to pay increased maintenance to son after paying permanent alimony to wife?

To make a brief of the matter it can be seen from the record that owing to the marital dispute between the parties, there was divorce in between them as on 03.10.2013, as per order and decree in F.C. (Civil) No. 473/2008, under Section 13 of the Hindu Marriage Act. The present petitioner paid Rs. 5 lacs to the respondent as a permanent alimony. At the relevant point of time, there was another petition pending before the same Family Court praying for maintenance for the respondent/wife as well as her minor son which was also disposed of on 10.09.2013, in F.C. (Crl.) No. 22/2009 (prior to disposal of the divorce case), where in the learned Trial Court grant the maintenance of Rs. 2500/- to the wife and Rs. 2000/- to the minor child of the parties, by its order.

4. After the divorce was affected between the parties and the respondent/wife was granted the permanent alimony, so the respondent/wife come forward with a petition under Section 127 of the CrPC, praying for enhancement of the maintenance allowance to the minor child. The learned Trial Court upon adjudicating the matter and considering the necessity of the child and the income of the petitioner, directed the present petitioner to pay a sum of Rs. 5000/- per month by the order dated 14.02.2017.

Now in the context of liability, the maintenance always carries the meaning that it should be adequate to the needs of a person and according to the status and income of the person concerned. The child of the petitioner who was enrolled in an English Medium school cannot be stopped to carry on such education by showing inability by his parents. It is the bounded duty of a father to upbringing the child in a befitting manner without hindering his mental health as well as physical one. If the father denies such required amount, it will be nothing but denial of such mandatory requirement of a child for proper upbringing. Having a total salary of Rs. 61,138/- and even after deduction on various count, still the petitioner has sufficient income to provide maintenance to his child, as has been granted by the trial Court.

IN THE HIGH COURT OF GAUHATI

Crl. Rev. P. 78/2017

Decided On: 22.01.2019

Rupak Chowdhury Vs.  The State of Assam and Ors.

Hon'ble Judges/Coram:

Rumi Kumari Phukan, J.

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Whether judgment debtor can challenge that boundaries of suit property is incorrect if he has not challenged it in written statement?

 In the instant case, the defendant decree-holder contested the suit by filing written statements without controverting the boundary given in the schedule of the plaint and accepted the same all-through out and the objection was raised only after execution of the decree. The reports of the Nazir as well as the enquiry so conducted by the learned Executing Court disclose that the decree was executed in terms of the boundary described in the plaint. In fact, neither in the objection filed by the petitioner at the initial stage nor even at the later stage of the proceeding he has challenged that the boundary of the suit property described in the plaint is different from that of the boundary described in the schedule to the decree. The consequence of such silence of the judgment-debtor is that the property which is the subject-matter of the suit falls within the boundary as provided in the decree.

IN THE HIGH COURT OF GAUHATI

Decided On: 09.08.2006

 Jonaram Das Vs.  Md. Abdul Kadir and Ors.

Hon'ble Judges/Coram:

H.N. Sarma, J.

Citation: AIR 2007 Gauhati 18

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What are necessary conditions for drawing presumption U/S 90 of Evidence Act?

 This Court in Paramesh Sarmah & Ors. Vs. Islamali & Ors. (supra), held in para-9 as under:

"9. The condition on which the execution of a document may presume for:-

'(1) That it must have been existed for 30 years or more; (2) It must be produced in court from proper custody. (3) The document must be in appearance free from suspicion and doubt; (4) It must be in a handwriting of a person and should not be anonymous. Generally there is no presumption about recitals in ancient document, but in special circumstances a recital of consideration, legal necessity, etc., may be presumed under S. 90...................."

23. In Bipin Ch. Kalita Vs. Sarama Kalita & Ors. (supra), this court in para-21 held as under:

"The gravamen of the authorities referred to above, is that the presumption comprehend in Section 90 of the Act, is relatable to the writings, execution and the attestation of the document, the contents thereof, being subject to proof in accordance with law. Unerringly, the approach of a court in the matter of presumption under Section 90 of the Act has to be essentially to effectuate the purpose thereof and not to render it nugatory. Though, a court is endowed with a discretion to draw a presumption as enumerated in the section, the exercise thereof, has to be informed with objectivity to further the legislative intendment. Unless, the attending facts and circumstances on the face of the document renders its existence, execution and attestation impossible, a rebuttable presumption is raised in favour of the genuineness and authenticity thereof, casting a burden on the other side to establish the contrary."

IN THE HIGH COURT OF GAUHATI

RSA 107/2014

Decided On: 18.07.2018

 Nepurjan Bibi Choudhury Vs. Musabbir Ali Choudhury and Ors.

Hon'ble Judges/Coram:

Mir Alfaz Ali, J.

Citation: AIR 2018 Gauhati 151

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