Allahabad High Court Weekly Round Up: August 15 To August 21, 2022

Triyugi Nath Tiwari v. State Of U.P. And 2 Others 2022 LiveLaw (AB) 371

Dr. Vijay Kumar v. State Of U.P. Thru Prin.Secy.Home 2022 LiveLaw (AB) 372

Nirbhay Singh and others v. State of U.P. and others along with connected pleas 2022 LiveLaw (AB) 373

Ajay Kumar Yadav And Another v. State Of U.P. And 2 Others along with connected matters 2022 LiveLaw (AB) 374

SR Cold Storage versus Union of India and Ors. 2022 LiveLaw (AB) 375

Sunil Kumar Chauhan And 186 Others v. State Of U.P. And 5 Others along with connected petitions 2022 LiveLaw (AB) 376

Sanjay Kumar Singh Vs. State Of U.P. And Another 2022 LiveLaw (AB) 377

Smt. Kiran Kunwar And 2 Others v. State of U.P. and Another 2022 LiveLaw (AB) 378

Azahar Khan v. State of U.P 2022 LiveLaw (AB) 379

Gaurav @ Govind v. State of U.P. and Another 2022 LiveLaw (AB) 380

Km. Mohini v. State Of U.P. And 2 Others 2022 LiveLaw (AB) 381

In Re v. Shri Chandan Kumar, Investigating Officer 2022 LiveLaw (AB) 382

Drs Wood Products Lucknow Versus State Of U.P. 2022 LiveLaw (AB) 383

Intezamia Committee Shahi Masjid v. State Of U.P. And 2 Others 2022 LiveLaw (AB) 384

JUDGMENTS/ORDERS OF THE WEEK

Section 372 CrPC Proviso Providing Substantive Right Of Appeal To 'Victim' Isn't Retrospective In Nature: Allahabad High Court

Case title - Triyugi Nath Tiwari v. State Of U.P. And 2 Others [CRIMINAL APPEAL DEFECTIVE U/S 372 CR.P.C. No.- 10 of 2022]

Case citation: 2022 LiveLaw (AB) 371

The Allahabad High Court has observed that the amendments made in Section 372 CrPC by adding a proviso in the year 2009, creating a substantive right of appeal for the 'victim' is not retrospective in nature.

Meaning thereby, a 'victim' [as defined under Section 2w (wa) of CrPC] has no right to prefer an appeal against an order passed before December 31, 2009, acquitting the accused/punishing him for a lesser offence/imposing inadequate compensation.

"He Would Have Managed CID Probe If HC Had Not Intervened": Allahabad HC Denies Bail To Former BSP MLA In Murder Case

Case title - Dr. Vijay Kumar v. State Of U.P. Thru Prin.Secy.Home [CRIMINAL MISC. BAIL APPLICATION No. - 1751 of 2022]

Case Citation: 2022 LiveLaw (AB) 372

The Allahabad High Court denied bail to former BSP MLA Dr. Vijay Kumar, the prime accused in the Shikhar Srivastava murder case as the Court noted that he is a resourceful person who could evade his arrest for four long years and might have even managed the CID probe if the HC had not intervened.

Observing that the accused was not allowing the trial to proceed, the bench of Justice Dinesh Kumar Singh denied him bail after noting that if released on bail, he would be in a position to influence the witnesses and tamper with the evidence.

RTE Act | Teachers Can Be Given Election Duties Even Before Issuance Of Poll Notification: Allahabad High Court (DB)

Case title - Nirbhay Singh and others v. State of U.P. and others along with connected pleas

Case Citation: 2022 LiveLaw (AB) 373

The Allahabad High Court (division bench) has ruled that in view of Section 27 of the Right of Children to Free and Compulsory Education Act, teachers can be deployed for election duty even before issuance of the notification relating to elections to Local Body, a State Assembly or the Parliament.

The bench of Chief Justice Rajesh Bindal and Justice Jaspreet Singh further ruled that the teachers cannot be deployed during teaching days or teaching hours but can be on non-teaching days and non-teaching hours.

Essentially, the bench was answering the reference made to it by the Single Judge vide its order dated November 11, 2021, regarding the allotment of election duties (before or after the issuance of election notification) to teachers on teaching days/during teaching hours.

Candidates Can't Claim As A Matter Of Right That Recruitment On Any Govt Post Should Be Made Every Year: Allahabad High Court

Case title - Ajay Kumar Yadav And Another v. State Of U.P. And 2 Others along with connected matters

Case Citation: 2022 LiveLaw (AB) 374

The Allahabad High Court has observed that candidates cannot claim as a matter of right that recruitment on any post should be made every year. With this, the Court denied relief to certain over-aged Assistant Prosecution Officer Exam - 2022 candidates.

The bench of Justice Saurabh Shyam Shamshery also emphasized that due to inaction on the part of the State Government in not filing the posts year-wise, the candidates cannot get a right to participate in the selection process being over-aged.

Illegal Demand Of Income Tax Mechanically- Allahabad High Court Imposes Cost Of 50 Lakhs On Income Tax Authorities

Case Title: SR Cold Storage versus Union of India and Ors.

Case Citation: 2022 LiveLaw (AB) 375

The Allahabad High Court has directed that the Union of India or other authorities under the Income Tax Act, 1961 shall not interfere with the quasi-judicial functions and discharge of statutory duties by the Assessing Officers unless permitted by the Income Tax Act.

Further, the High Court directed the Union of India to put in place a mechanism to ensure that the information fed on data-base/ portal of the revenue department is verified in reality, and not as an empty formality, before initiating proceedings under the Income Tax Act, 1961.

Provincial Armed Constabulary & Civil Police Part Of Same Force; No Bar On Transfer From PAC To Civil Police: Allahabad High Court

Case title - Sunil Kumar Chauhan And 186 Others v. State Of U.P. And 5 Others along with connected petitions

Citation: 2022 LiveLaw (AB) 376

The Allahabad High Court has observed that the entire Police Establishment including the Provincial Armed Constabulary (PAC) shall be deemed to be one Police Force. and that transfer can be made from PAC to Civil Police or vice versa.

With this, the bench of Justice Saurabh Shyam Shamshery upheld the order of the UP Govt transferring constables and head constables in Uttar Pradesh Provincial Armed Constabulary (UPPAC) to the civil police and dismissed dozens of petitions filed against the transfer.

Compassionate Appointment Can't Be Claimed/Offered After A Significant Lapse Of Time And After Crisis Is Over: Allahabad High Court

Case title - Sanjay Kumar Singh Vs. State Of U.P. And Another [WRIT - A No. - 47252 of 2003]

Case Citation: 2022 LiveLaw (AB) 377

The Allahabad High Court recently observed that an appointment on compassionate grounds cannot be claimed or offered after a significant lapse of time and after the crisis is over.

"The object of compassionate appointment is to tide over the immediate financial crisis suffered by the bereaved family due to the unexpected death of the employee concerned," the Court remarked.

The bench of Justice Saurabh Shyam Shamshery observed thus while dismissing the plea of one Sanjay Kumar Singh who sought appointment on compassionate ground on account of the death of his adoptive father, who died in harness in January 1995.

The Court also held that the claim of the petitioner for a compassionate appointment at a belated stage, after 27 years of the death of his father, cannot be sustained.

Issuing Summons On Printed Proforma After Passing Hand Written Cognizance Order On Chargesheet Isn't Invalid: Allahabad High Court

Case Title - Smt. Kiran Kunwar And 2 Others v. State of U.P. and Another [APPLICATION U/S 482 No. - 15581 of 2019]

Case Citation: 2022 LiveLaw (AB) 378

The Allahabad High Court has observed that if the order of taking cognizance has been passed on the first page of the charge-sheet in the hand writing not by filling up the proforma then the summoning order carried on the order-sheet on printed proforma won't be invalid.

The bench of Justice Mohd. Aslam clarified that if after taking cognizance of the police charge sheet by way of a written order, summons is issued on the printed proforma, then it cannot be said that the cognizance order is a proforma order.

The Court was dealing with a Section 482 CrPC plea filed by the applicants seeking to quash the cognizance order passed by the Additional Civil Judge (SD)/Additional Chief Judicial Magistrate, J.P. Nagar.

Allahabad High Court Grants Bail To Man Accused Of Assaulting Police Officers, Damaging Public Property During CAA-NRC Protests

Case title - Azahar Khan v. State of U.P

Case Citation: 2022 LiveLaw (AB) 379

The Allahabad High Court granted bail to one Azahar Khan accused of assaulting the police officers, damaging police bikes by setting them on fire, and also causing damage to public property during the CAA-NRC Protests.

As per the prosecution's case, a protest against NRC and CAB was organized by Muslim Clerics (Ulemas) of Rampur city and they called the public at Eidgah on December 21, 2019.

In the night of December 20, 2019, the Muslim clerics of Rampur City assured the police administration that considering the atmosphere of Rampur city, the procession has been canceled. The next morning also, the clerics again assured the police that no crowd will be gathered but probably the clerics did not inform the police in this regard.

Allahabad High Court Explains Difference Between Inquiry Undertaken U/S 174 CrPC And Investigation Conducted U/S 157 CrPC

Case title - Gaurav @ Govind v. State of U.P. and Another

Citation: 2022 LiveLaw (AB) 380

The Allahabad High Court explained the difference between the Section 174 CrPC [Police to enquire and report on suicide, etc.] and Section 157 CrPC [Procedure for investigation preliminary inquiry].

The Court emphasized that the preparation of inquest under Section 174 Cr.P.C. is in fact in the nature of inquiry, and the same cannot be equated with the investigation contemplated under Section 157 Cr.P.C. which commences after lodging of F.I.R. under Section 154 Cr.P.C.

Sister Can't Claim Benefit Of Compassionate Appointment In Presence Of Wife Under 'UP Dying In Harness Rules': Allahabad High Court

Case title - Km. Mohini v. State Of U.P. And 2 Others [WRIT - A No. - 4174 of 2022]

Case citation: 2022 LiveLaw (AB) 381

The Allahabad High Court has held that as per the UP Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, the benefit of compassionate appointment cannot be given to a sister in the presence of a wife.

The bench of Justice Neeraj Tiwari observed that under the UP Dying in Harness Rules 1974 as amended by 2021 rules, a wife has the first right to a compassionate appointment, and in her presence, the Sister does not have the right to a compassionate appointment.

Allahabad HC Holds Police Officer Guilty Of Contempt For Violating 'Arnesh Kumar Guidelines', Sentences Him To 14 Day Imprisonment

Case title - In Re v. Shri Chandan Kumar, Investigating Officer

Citation: 2022 LiveLaw (AB) 382

The Allahabad High Court sentenced a police officer to undergo simple imprisonment for 14 days after holding him guilty of contempt for deliberately bypassing the mandate of the Supreme Court in the case of Arnesh Kumar v. State of Bihar.

As per the Arnesh Kumar judgment, the arrest should be the exception where the offence is punishable with less than 7 years imprisonment, and notice for appearance under Section 41A CrPC should be served on the accused in such cases instead of arrest. The arrest can be made in exceptional circumstances in such cases, but the reasons have to be recorded in writing.

Allahabad High Court Imposes Cost Of Rs. 50000 For Arbitrary Cancellation of GST Registration

Case Title: Drs Wood Products Lucknow Versus State Of U.P.

Case Citation: : 2022 LiveLaw (AB) 383

The Allahabad High Court has imposed a cost of Rs. 50,000 for the arbitrary cancellation of GST registration.

The single bench of Justice Pankaj Bhatia observed that the arbitrary exercise of power to cancel the registration in the manner in which it has been done has adversely affected the petitioner. It has also had a negative impact on the revenues that could have flowed into the coffers of GST had the petitioner been allowed to conduct commercial activities. The actions were clearly not in consonance with the ease of doing business, which is being promoted at all levels.

Allahabad High Court Dismisses Plea Against Proposed Removal Of Saidabad Shahi Masjid For Widening Of State Highway

Case title - Intezamia Committee Shahi Masjid v. State Of U.P. And 2 Others [WRIT - C No. - 15737 of 2022]

Case Citation: 2022 LiveLaw (AB) 384

The Allahabad High Court dismissed a writ plea moved against the proposed removal of the Shahi Masjid located at G.T. Road, Saidabad (purportedly more than 100 years old) for the purposes of a state highway widening project.

The bench of Justice Sunita Agarwal and Justice Sadhna Rani (Thakur) refused to entertain the plea moved Intezamia Committee Shahi Masjid by taking into account the submission made by the official authoritires that the Masjid is an encroachment on the government land.

Other Updates From the High Court

Allahabad HC Rejects Layout Plan Of Chandrashekhar Azad Park In Prayagraj Made By Pvt Surveyor, Orders State To Devise Fresh Plan

Case title - Jitendra Singh Vishen And Another v. State Of U.P. And 9 Others

The Allahabad High Court on Tuesday rejected a layout plan of the Amar Chandrashekhar Azad Park in Prayagraj District made by a private Land Surveyor Project Consulting Engineer and directed the State Government to come up with a fresh layout plan.

[NOTE: This Park (Amar Shaheed Chandrasekhar Aazad Park) assumed historical importance in the year 1931 when great revolutionary and pioneer of the Indian freedom struggle Chandra Shekhar Azad an associate of Shaheed Bhagat Singh was brutally killed by Britishers here.]

The bench of Chief Justice Rajesh Bindal and Justice J. J. Munir found certain discrepancies in the layout plan prepared by the private Land Surveyor and asked the state's counsel as to why a private surveyor was appointed, however, he could not offer an explanation before the Court.

"The manner in which the plan has been prepared does not satisfy the requirements. Apparently, he is not aware of the procedure how to prepare the layout plan and show the legends...Even as per the plan produced in Court, there are lot of constructions existing at different places in the Chandrashekhar Azad park, earlier known as the Alfred Park and the Company Garden for which no explanation is available. The place where Shahid Chandrashekhar Azad laid down his life is not even pointed out in the plan," the Court remarked as it perused the layout plan submitted before it.

Court, Lawyers Not Aware Of Efforts Made By State To Reconstruct Case Records Gutted In Fire At AG's Office: Allahabad High Court

The Allahabad High Court has called it a 'very sorry state of affairs' that the state has failed to reconstruct the case records that were gutted in the fire that broke out on the sixth, seventh, eighth and ninth floors of the State Advocate General Office on July 17.

"...it is a very sorry state of affair that today about one month has elapsed from the said incident dated 17.07.2022 but proper functioning in the office of Government Advocate at Prayagraj has not been restored back. Several cases are being adjourned on account of non-availability of records or proper instructions with the State counsel, as a result thereof, litigants are suffering," the Bench of Justice Sanjay Kumar Singh remarked.

Allahabad HC Orders CBI Probe Into 'Fake' Cases Lodged Against Advocates, Others U/S 376IPC, SC/ST Act To Extract Money

In a significant order, the Allahabad High Court has directed the Central Bureau of Investigation (CBI) to probe into a bunch of cases allegedly filed falsely against Advocates, others implicating them under charges of rape and offences under the SC/ST Act for the purpose of extracting money.

The bench of Justice Gautam Chowdhary emphasized that in the interest of justice and to protect the interest of Advocates, who are victimized of false accusations merely on the ground that they are contesting the case on behalf of accused persons, it was necessary that the cases be investigated by CBI.

State Govt To Bear All Expenses To Reconstruct Case Records Gutted In Fire That Broke Out At AG's Office, Allahabad HC Told

Case title - Vikram Singh v. State of U.P. and Another [CRIMINAL APPEAL No. - 729 of 2022]

The Uttar Pradesh Government has informed the Allahabad High Court that it has decided to bear all expenses regarding the reconstruction of case records that were gutted in the fire that broke out on the sixth, seventh, eighth, and ninth floors of the State Advocate General Office on July 17.

The State Government has also informed the Court that it has formed 4 Members Committee comprising Mr. Manish Goyal, Additional Advocate General, Mr. M.C. Chaturvedi, Additional Advocate General, Mr. Shiv Kumar Pal, Government Advocate, and Mr. K.R. Singh Chief Standing Counsel to make sure that no inconvenience is caused to the Courts and to ensure that urgent and necessary steps were taken to restore the files destroyed in the fire and also to take measure to make the State Law Office functional.