Allahabad High Court Monthly Digest: October 2022 [Citations 455 - 477]

Rajendra Kumar And 2 Others v. State Of U.P. Thru Prin Secy Home And Another 2022 LiveLaw (AB) 455

Shahzad v. State of U.P. 2022 LiveLaw (AB) 456

Jitendra @ Jitendra Kumar Singh v. State of U.P 2022 LiveLaw (AB) 457

Ajay Agarwal v. State Of U.P. Thru. Addl. Chief Secy. Home Lko. And 3 Others 2022 LiveLaw (AB) 458

Anugrah Narayan Singh v. Harsh Vardhan Bajpayee 2022 LiveLaw (AB) 459

Umesh Pratap Singh v. State Of U.P. And 5 Others 2022 LiveLaw (AB) 460

Kailash v. State of U.P. and other connected appeals 2022 LiveLaw (AB) 461

Tulsarani And Another v. Union Of India And 3 Others 2022 LiveLaw (AB) 462

Azizurrahman v. Hamidunnisha @ Sharifunnisha 2022 LiveLaw (AB) 463

Prveen Kashyap v. State Of U.P. And 3 Others 2022 LiveLaw (AB) 464

Monu v. State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others 2022 LiveLaw (AB) 465

Nadeem Ansari v. State of U.P 2022 LiveLaw (AB) 466

Amarjeet v. State Of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Home, Lko. Lko. And 4 Others 2022 LiveLaw (AB) 466

Flipkart Internet Private Limited v. State Of U.P. And 3 Others 2022 LiveLaw (AB) 467

State of U.P. v. Govind Pasi along with a connected appeal 2022 LiveLaw (AB) 468

Sujit & Ors. v. State & Ors. 2022 LiveLaw (AB) 469

Naresh Kumar Valmiki v. State of U.P. and others along with connected matters 2022 LiveLaw (AB) 470

Sanjeev @ Kallu Sethiya v. State of U.P. 2022 LiveLaw (AB) 471

Sandeep Kumar And Another v. State Of U.P. And 9 Others 2022 LiveLaw (AB) 472

Lal Bihari Yadav v. Chairman/Sabhapati U.P. Legislative Council Vidhan Bhawan Lko & another 2022 LiveLaw (AB) 473

Mr.X(Minor) v. State Of U.P.And Another 2022 LiveLaw (AB) 474

Lokesh Kumar Khurana and others v. Union of India and others along with connected matters 2022 LiveLaw (AB) 475

Malati Devi v. State Of U.P. And 3 Others 2022 LiveLaw (AB) 476

Rama Nand v. Hira Lal : 2022 LiveLaw (AB) 477

ORDERS/JUDGMENTS OF THE MONTH

Bail Can't Be Cancelled Without Giving Notice To Accused, Giving Him An Opportunity Of Being Heard: Allahabad High Court

Case title - Rajendra Kumar And 2 Others v. State Of U.P. Thru Prin Secy Home And Another [APPLICATION U/S 482 No. - 6779 of 2022]

Case Citation: 2022 LiveLaw (AB) 455

The Allahabad High Court recently observed that the cancellation of bail cannot be done without giving notice to the accused and giving him an opportunity of being heard.

With this, the bench of Justice Ajai Kumar Srivastava-I sets aside the order of the Sessions Judge, Raebareli canceling the bail granted earlier to Rajendra Kumar and 2 others in connection with a criminal case.

The High Court noted that the impugned order canceling the bail was passed without issuing notice to the applicants/accused and without affording them a reasonable and sufficient opportunity of hearing and the same was patently illegal being in flagrant violation of Supreme Court rulings.

Person Out On Regular Bail Can Be Granted Anticipatory Bail In Added Sections If He Isn't Misusing Liberty: Allahabad High Court

Case title - Shahzad v. State of U.P. [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION US 438 CR.P.C. No. - 9391 of 2022]

Case Citation: 2022 LiveLaw (AB) 456

The Allahabad High Court has observed that a person who has already been granted regular bail under Section 439 of CrPC and if it found that he has not misused the liberty, then he may be granted anticipatory bail under Section 438 of CrPC in connection with added sections related to the same crime.

With this, the bench of Justice Krishan Pahal granted anticipatory bail to one Shahzad in connection with the offence under Section 3/7 of The Essential Commodities Act.

A Person Seeking Regular Bail Has To Be In Court's Custody Which Isn't Necessarily Required To Be Physical Custody: Allahabad HC

Case title - Jitendra @ Jitendra Kumar Singh v. State of U.P [CRIMINAL MISC. BAIL APPLICATION No. - 37894 of 2021]

Case Citation: 2022 LiveLaw (AB) 457

The Allahabad High Court recently held that it is not mandatory for an accused to be in physical custody at the time of filing the bail application. The Court clarified that if the accused is out of physical custody but his liberty is subject to the conditions imposed by the Court i.e. the accused is in constructive custody, he can apply for regular bail.

The bench of Justice Saurabh Vidyarthi observed thus while granting regular bail to one Jitendra who is facing charges under sections 420 and 120B of IPC. The Court noted that he had not been named in the FIR; rather, his name surfaced during the investigation.

High Court Of One State Can Grant Transit Bail In A Case Registered Within Jurisdiction Of Another HC: Allahabad High Court

Case title - Ajay Agarwal v. State Of U.P. Thru. Addl. Chief Secy. Home Lko. And 3 Others [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION 438 CR.P.C. No. - 1669 of 2022]

Case Citation: 2022 LiveLaw (AB) 458

The Allahabad High Court has recently observed that the High Court of one State can grant transit bail in respect of a case registered within the jurisdiction of another High Court in the exercise of power under Section 438 of the Code of Criminal Procedure.

"...there is no fetter on the part of the High Court in granting a transit anticipatory bail to enable the applicants to approach the Courts including High Courts where the offence is alleged to have been committed and the case is registered," the Court stressed.

With this, the bench of Justice Rajesh Singh Chauhan granted transit anticipatory bail to a man booked under Sections 406 & 420 IPC in connection with a case registered in Maharashtra

Furnishing False Information About Educational Qualification Not 'Corrupt Practice' U/S 123 Of RP Act: Allahabad High Court

Case title - Anugrah Narayan Singh v. Harsh Vardhan Bajpayee [ELECTION PETITION No. - 10 of 2017]

Case Citation: 2022 LiveLaw (AB) 459

The Allahabad High Court has observed that a piece of false information regarding the education qualification of an election candidate can't be termed a 'corrupt practice' within the meaning of subsection (2) or (4) of section 123 R.P. Act.

The bench of Justice Raj Beer Singh further observed that the information regarding the educational qualifications of a candidate is not a vital and useful piece of information to the voter and thus, it cannot be said that any inconsistency or error in the affidavit of a candidate regarding candidate's educational qualification would amount to corrupt practice.

The Court also held that concealment of electricity dues or housing loans by a candidate would also not be termed as a corrupt practice within the meaning of section 123 of the R.P. Act.

"Criminal Case Pendency No Ground To Deny Promotion": Allahabad High Court Orders UP Govt To Promote A Police Inspector As Dy. SP

Case title - Umesh Pratap Singh v. State Of U.P. And 5 Others [WRIT - A No. - 7917 of 2022]

Case Citation: 2022 LiveLaw (AB) 460

The Allahabad High Court has directed the Uttar Pradesh Government to give a promotion to a Police Inspector posted in the Civil Police to the post of a Deputy Superintendent of Police.

With this, the bench of Justice Neeraj Tiwari set aside the order of the Additional Chief Secretary Home by which the name of the petitioner was kept in a sealed cover envelop and juniors to him were granted promotion

SC/ST Act | "Special Court's Order Rejecting Anticipatory Bail Plea Appealable U/S 14A Before HC": Allahabad High Court

Case title - Kailash v. State of U.P. and other connected appeals

Case Citation: 2022 LiveLaw (AB) 461

The Allahabad High Court has observed that an order of the Special Court granting/rejecting bail for the offences punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 is appealable before the HC under Section 14A of the 1989 Act.

The bench of Justice Krishan Pahal further clarified that if the Special Court denies anticipatory bail to the accused, he may move an appeal against the bail denial order before the High Court under Section 14A of the 1989 Act, however, it would not be open to him to file an anticipatory bail before the High Court under Section 438 of CrPC.

Commercial Court Can't Hear S. 34 Arbitration Act Application Challenging Compensation Awarded Under NH Act: Allahabad HC

Case title - Smt. Tulsarani And Another v. Union Of India And 3 Others [MATTERS UNDER ARTICLE 227 No. - 56 of 2022]

Case Citation: 2022 LiveLaw (AB) 462

The Allahabad High Court has observed that the Commercial Courts have no Jurisdiction to hear Applications filed under Section 34 of the Arbitration and Conciliation Act, 2013 challenging the quantum of compensation awarded under the National Highways Act, 1956.

The bench of Justice J. J. Munir though clarified that an award of the Statutory Arbitrator under Section 3G(5) of the National Highways Act, 1956 can be challenged by an application under Section 34 of the Arbitration and Conciliation Act before the appropriate forum.

Muslim Man Can't Marry Another Woman As Per Quran If He Isn't Capable Of Fostering First Wife, Children: Allahabad High Court

Case title - Azizurrahman v. Hamidunnisha @ Sharifunnisha [FIRST APPEAL No. - 700 of 2022]

Case Citation: 2022 LiveLaw (AB) 463

Stressing that as per the mandate of the Holy Quran, bigamy is not sanctified unless a man can do justice to orphans, the Allahabad High Court has observed that a Muslim man has to prevent himself to perform a second marriage if he is not capable of fostering his wife and children.

"The religious mandate of Sura 4 Ayat 3 (of Quran) is binding on all Muslim men which specifically mandates all Muslim men to deal justly with orphans and then they can marry women of their choice two or three or four but if a Muslim man fears that he will not be able to deal justly with them then only one. If a Muslim man is not capable of fostering his wife and children then as per the above mandate of the Holy Quran, he cannot marry the other woman," the Bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV observed.

Also read: Can't Compel Wife To Live With Muslim Husband Who Has Married Another Woman If It Isn't 'Equitable': Allahabad High Court

Allahabad High Court Denies Bail To POCSO Accused Who Married Minor, Established Physical Relation With Her 'Consent'

Case title - Prveen Kashyap v. State Of U.P. And 3 Others [CRIMINAL MISC. BAIL APPLICATION No. - 36810 of 2022]

Case Citation: 2022 LiveLaw (AB) 464

The Allahabad High Court denied bail to a man accused of raping a minor girl (16-17 years old) after marrying her with her consent as the Court noted that the consent of the minor is no consent at all.

The bench of Justice Sadhna Rani (Thakur) opined that even if the minor she left her home, solemnized marriage, and had physical relations with the applicant with her consent, her consent, being consent of the minor, cannot be said to be of any significance.

Allahabad High Court Grants Bail To POCSO Accused On Condition Of Marrying Victim, Accepting Their Child As His Daughter

Case title - Monu v. State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others [CRIMINAL MISC. BAIL APPLICATION No. - 10567 of 2022]

Case Citation: 2022 LiveLaw (AB) 465

The Allahabad High Court granted bail to a POCSO accused booked for raping a minor girl (17 years old) with whom he allegedly eloped, on the condition that he would marry her within a period of one month and shall give all rights to her and his child as wife and daughter.

While granting him bail, the Bench of Justice Dinesh Kumar Singh took into consideration the stand of the prosecutrix and her father who stated that they had no objection if the accused is released on bail. The Court also noted the fact that the Girl had already delivered a child from the accused applicant.

Allahabad High Court Grants Bail To Man Who Allegedly Posted Video On FB Depicting The Beheading Of Nupur Sharma

Case title - Nadeem Ansari v. State of U.P [CRIMINAL MISC. BAIL APPLICATION No. - 33710 of 2022]

Case citation: 2022 LiveLaw (AB) 466

The Allahabad High Court has granted bail to one Nadeem Ansari who has been accused of posting a video on Facebook showing to behead former BJP spokesperson Nupur Sharma.

The bench of Justice Deepak Verma granted him bail considering the entire facts and circumstances of the case, submissions of counsel for the parties, and keeping in view the nature of offence, evidence, the complicity of the accused and larger mandate on Article 21 of the Constitution of India.

Allahabad High Court Grants Pre-Arrest Bail To Rape Accused Till Completion Of Probe As He Marries Victim

Case title – Amarjeet v. State Of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Home, Lko. Lko. And 4 Others [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1687 of 2022]

Case Citation: 2022 LiveLaw (AB) 466

The Allahabad High Court has granted pre-arrest bail to a Rape accused till the completion of the investigation or till the filing of the police report/charge sheet.

The bench of Justice Rajesh Singh Chauhan granted relief to the accused as it noted that both, the victim and accused have married each other and are living happily as husband and wife.

"Therefore, without entering into merits of the issue, considering the arguments of learned counsel for the parties, the material available on record, the contents and allegations of the F.I.R., the undisputed fact by the parties that the applicant and the prosecutrix got married and are living happily together, the investigation is going on and the undertaking of the present applicant that he shall co-operate with the investigation and shall never misuse the liberty of anticipatory bail, I find it appropriate that liberty of the present application may be protected till completion of the investigation or till filing of the police report/ charge-sheet under Section 173 (2) Cr.P.C," the Court remarked.

Online Marketplaces Exempted From Liability U/S 79 IT Act: Allahabad HC Grants Relief To Flipkart In Product Discrepancy Case

Case title - Flipkart Internet Private Limited v. State Of U.P. And 3 Others [CRIMINAL MISC. WRIT PETITION No. - 3487 of 2019]

Case citation: 2022 LiveLaw (AB) 467

Taking into account the mandate of Section 79 of the IT Act, 2000, the Allahabad High Court recently granted relief to online Marketplace Flipkart in connection with a case wherein a laptop with a different company processor was delivered to the customer by the seller listed on the Flipkart.

For context, Section 79 of the IT Act, 2000 exempts the liability of intermediaries (like online marketplaces such as Flipkart) in certain cases. The provision states that an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by it.

However, the provision will not apply if the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act.

"Convict's Wife, Children Dependent Upon Him": Allahabad HC Commutes Death Penalty To Life Term In Minor's Rape-Murder Case

Case title - State of U.P. v. Govind Pasi along with a connected appeal

Case citation: 2022 LiveLaw (AB) 468

The Allahabad High Court commuted the death penalty awarded to a rape and murder convict by the trial court to life imprisonment as it noted that the convict was of 20 years of age at the time of the commission of the crime in 2013 and now when he is around 29 year old, he has dependents in the form of wife and children.

"Convict/appellant was of 20 years of age at the time of the commission of crime now he has dependents in the form of wife and children. There is no evidence that the accused committed the crime with pre-planning or pre-ponderance. There is no evidence on record that there is no possibility of improvement in the conduct of the accused. No such evidence is adduced in the trial court that the accused is a hardened criminal. No criminal history of the appellant is stated during the trial," the bench of Justice Ramesh Sinha and Justice Renu Agarwal as it affirmed the conviction of the appellant while setting aside the death penalty of the appellant awarded by the trial court and converting the same to Life Term.

Article 243Q | Governor's Power To Specify Municipality's Transitional Area Circumscribed By Statutory Stipulations: Allahabad High Court

Case Title: Sujit & Ors. v. State & Ors.

Citation: 2022 LiveLaw (AB) 469

The Allahabad High Court has made it clear that the Governor's power under Article 243Q of the Constitution, with respect to specifying transitional area of a Nagar Panchayat, is circumscribed by statutory stipulations.

A Division bench of Justices Manoj Kumar Gupta and Rajendra Kumar-IV observed,

"The Governor while being invested with power to include or exclude any area in a transitional area, or a smaller urban area, in exercise of power under clause (2) of Article 243Q of the Constitution, read with Section 3 of the U.P. Municipalities Act, 1916, has to follow the procedure prescribed under Section 4, which mandates that before issuance of notification under Section 3, a draft proposal has to be published in the manner provided under Section 4, so as to apprise the general public of the inclusions/exclusions and if any person has any objection, he may file objection/suggestion."

SC/ST Act | Special Court Can Treat Application Filed U/S 156 (3) CrPC As A 'Complaint': Allahabad High Court [DB]

Case title - Naresh Kumar Valmiki v. State of U.P. and others along with connected matters

Case Citation: 2022 LiveLaw (AB) 470

In a significant decision, the Allahabad High Court has held that it is permissible for the Special Court designated under the SC/ST Act to take cognizance of an offence on itself by treating an application under Section 156 (3) Cr.P.C. as a complaint.

The bench of Chief Justice Rajesh Bindal and Justice Samit Gopal observed thus as it held that the view taken by the Single Judge in the case of Soni Devi vs. State of U.P. and others: 2022(5)ADJ 64 is incorrect.

Influence Of Money A Big Hurdle In Free And Fair Probe; Influential People Pressurize Police Officers: Allahabad High Court

Case title - Sanjeev @ Kallu Sethiya v. State of U.P. [CRIMINAL MISC. BAIL APPLICATION No. - 18458 of 2022]

Case Citation: 2022 LiveLaw (AB) 471

In a significant observation, the Allahabad High Court has said that the influence of money in conducting an investigation is quite evident and it is a very big hurdle in the free and fair investigation of a crime and case.

Noting that under the pressure of work, police undertake a mechanical investigation of the crimes, the bench of Justice Siddharth further observed that the investigating officers are subjected to pressure by the influential persons of society to give a report as per their command.

"Two Consenting Adults' Yearning To Find Love Can't Be Interfered With By Anyone": Allahabad High Court Unites Husband-Wife

Case title - Sandeep Kumar And Another v. State Of U.P. And 9 Others [HABEAS CORPUS WRIT PETITION No. - 536 of 2022]

Case Citation: 2022 LiveLaw (AB) 472

The Allahabad High Court has observed that the choice of a life partner, the desire for personal intimacy, and the yearning to find love and fulfillment in a human relationship between two consenting adults cannot be interfered with by any other person.

With this, the bench of Justice Sanjay Kumar Singh allowed a Habeas corpus plea filed by a husband after his wife/corpus submitted before the Court that she is willing to go with him and live her matrimonial life peacefully.

Recognition Of LoP By Speaker/Chairman Is A Part Of Convention Not Governed By 'UP State Legislature Act': Allahabad High Court

Case title - Lal Bihari Yadav v. Chairman/Sabhapati U.P. Legislative Council Vidhan Bhawan Lko & another [WRIT - C No. - 4493 of 2022]

Case Citation: 2022 LiveLaw (AB) 473

The Allahabad High Court has held that there is no provision in the Uttar Pradesh State Legislature (Members' Emoluments and Pension) Act, 1980 which mandates the Speaker/Chairman of the house to recognize the leader of a party having the greatest numerical strength, to be the leader of the opposition.

The court further observed that if the Speaker recognizes any person who is the leader of a party in opposition having the greatest numerical strength as the leader of the opposition, he is doing so on the basis of the practice prevailing.

Factors Like Nature Of Crime, Methodology Adopted Assume Significance In Denying Bail To A Juvenile: Allahabad High Court

Case title - Mr.X(Minor) v. State Of U.P.And Another [CRIMINAL REVISION No. - 1036 of 2022]

Case Citation: 2022 LiveLaw (AB) 474

The Allahabad High Court has observed that factors such as the nature of the crime, the methodology adopted, the manner of commission, and the evidence available assume ample significance in deciding to deny bail to a juvenile.

The bench of Justice Jyotsna Sharma observed thus as it stressed that bail to a juvenile is not a must in all cases as it can be denied if, in the opinion of the Court, his release would defeat the ends of justice.

Gorakhpur Hospital Tragedy 2017 | Allahabad High Court Dismisses PIL Seeking Judicial Probe

Case title - Lokesh Kumar Khurana and others v. Union of India and others along with connected matters

Case Citation: 2022 LiveLaw (AB) 475

The Allahabad High Court dismissed a bunch of Public Interest Litigation (PIL) Pleas seeking a judicial probe into the death of 63 children which took place in BRD Medical College (in Gorakhpur district) in 2017.

The PIL plea was dismissed by the bench of Chief Justice Rajesh Bindal and Justice J. J. Munir after taking into account the statement made by the state's counsel that the matter was inquired into and a report was submitted and the guilty doctors and staff were punished, and further, proper corrective measures were taken in all the hospitals.

Allahabad High Court Stays Demolition Order Against UP Hospital Accused Of Transfusing Fruit Juice To A Dengue Patient

Case title - Malati Devi v. State Of U.P. And 3 Others [WRIT - C No. - 32813 of 2022]

Case Citation: 2022 LiveLaw (AB) 476

The Allahabad High Court stayed, for 6 weeks, the proposed demolition of a Prayagraj Hospital which is presently embroiled in controversy for allegedly administering Mosambi (sweet lime) juice instead of platelets to a 32-year-old dengue patient.

The bench of Justice Surya Prakash Kesarwani and Justice Vikas Budhwar gave the liberty to one Malati Devi who owns the land and the property in which the Hospital is presently functioning to file an objection to the demolition notice sent by the Prayagraj Development Authority (PDA) within two weeks.

The Court gave this order on a writ plea moved by the petitioner challenging the demolition notice received by her.

Magistrate Can Issue Warrant For Recovery Of Defaulted Maintenance U/S 125 CrPC As Arrears Of Land Revenue: Allahabad High Court

Case title - Rama Nand v. Hira Lal [SECOND APPEAL No. - 1698 of 1990]

Case Citation: 2022 LiveLaw (AB) 477

The Allahabad High Court has held that the Magistrate has the power to enforce an order of maintenance passed under Section 125 Cr.P.C. by issuing a warrant to the Collector to recover the same as arrears of land revenue.

The bench of Justice J. J. Munir clarified that if read conjointly, Section 125(3) and Section 421 give power to the Magistrate to issue a warrant to the Collector for recovering the defaulted maintenance as arrears of land revenue.