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Allahabad High Court Weekly Round Up: January 31 To February 6, 2022
Sparsh Upadhyay
6 Feb 2022 1:38 PM GMT
Judgments/Orders of the Week1. [Child Custody] Habeas Writ Lies Only If Minor Is Detained By A Person Who Isn't Entitled To His/Her Legal Custody: Allahabad HCCase title - Shradha Kannaujia (Minor) And Another v. State Of U.P. And 5 Others Case citation: 2022 LiveLaw (AB) 28The High Court has observed that the power of the High Court in granting a writ of Habeas Corpus in child custody...
Judgments/Orders of the Week
Case title - Shradha Kannaujia (Minor) And Another v. State Of U.P. And 5 Others
Case citation: 2022 LiveLaw (AB) 28
The High Court has observed that the power of the High Court in granting a writ of Habeas Corpus in child custody matters may be invoked only in cases where the detention of a minor is by a person, who is not entitled to his/her legal custody.
In view of this, the Bench of Justice Raj Beer Singh dismissed a Habeas plea filed by the mother of a 5-year-old girl seeking minor's custody from her father (her husband) as the Court noted that the appropriate remedy in such matters would lie under the Hindu Minority and Guardianship Act, 1956 or Guardians and Wards Act, 1890.
Case Title: Kanhaiya Lal Nishad v. State of U.P.
Case Citaion: 2022 LiveLaw (AB) 29
The Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 was brought in considering the increasing objectionable advertisements claiming to cure venereal diseases, diseases and conditions peculiar to women, and the term advertisement as per this act includes 'oral announcements' for the purposes of the Act, Allahabad High Court held.
In an appeal filed against the order of Additional Sessions Judge passed in 2011 which held the appellant liable under Section 7 of the Act, Justice Sadhna Rani Thakur observed that advertisements under the said Act can be oral as well.
Case title - Pinkoo @ Jitendra v. State of U.P. connected with Smt. Ishwari Devi v. State of U.P.
Case citation: 2022 LiveLaw (AB) 30
The High Court set aside the life sentence of two murder convicts, including a woman in connection with the murder of a youth in Aligarh's Gandhi Park area while stressing that 99 guilty persons may escape the clutches of law but one innocent shouldn't be punished.
The judgment came from the division bench of Justice Arvind Kumar Mishra-I and Justice Vikas Budhwar on a criminal appeal filed by two murder convicts against a 2012 order of conviction passed by Additional District and Sessions Judge, Aligarh under Sections –302/34 and 114 I.P.C.
Case title - Nikhil Upadhyay (Minor) v. State Of U P And 4 Others
Case citation: 2022 LiveLaw (AB) 31
The High Court has observed that a minor's right to be educated can't be violated on account of his/her father's fraudulent claim under the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act).
The Bench of Justice Saumitra Dayal Singh was hearing a writ plea moved on behalf of an 8-year-old, Nikhil Upadhyay, whose name had been struck off from the list of beneficiaries under the RTE Act due to a fraudulent claim of his father for minor's free education under the ACT.
Case title - Radhey Shyam And Others v. State
Case citation: 2022 LiveLaw (AB) 32
The High Court set aside the life sentence of a murder convict in a case that dates back to 1981 after concluding that the investigation of the case appeared to be tainted and not as per law.
The Bench of Justice Ramesh Sinha and Justice Vivek Varma didn't find the statements of the eyewitnesses of the incident to be credible and it also discarded several theories put up by the prosecution regarding the motive behind the killing of the deceased.
Case title - Bablu Second Bail Application v. State of U.P.
Case citation: 2022 LiveLaw (AB) 33
The High Court denied bail to a Husband who has been accused of burning her 22-year-old wife and thereafter, burying her dead body was buried at a secret place in connection with the demand of dowry.
The Bench of Justice Vikas Kunvar Srivastav denied bail to Bablu (husband of the deceased) as the court remarked that the alleged act of husband was evident of callous greed of a heartless husband and self-centered irresponsible father of the infant child.
Case title - Dr. Mohd. Ibrahim And Ors. v. State Of U.P. And Ors.
Case citation: 2022 LiveLaw (AB) 34
The High Court said that mere incorporation of Section 307 IPC (attempt to murder) in the FIR and the charge-sheet, would not be a bar to the compromise entered into between the parties to put an end to the disputes between them.
Observing thus, the Bench of Justice Subhash Vidyarthi allowed a 482 CrPC application filed by the applicants seeking quashing of the summoning order, in a case registered under Sections 147, 148, 149, 323, 504, 506, 427, 307 IPC.
Case title - Satya Prakash v. State of U.P.
Case citation: 2022 LiveLaw (AB) 35
The High Court set aside the life sentence of a murder convict in a case that dates back to the year 1998, after concluding that the testimony of the sole eye witness in the case isn't truthful on a material particular and is inconsistent as well.
The Bench of Justice Manoj Misra and Justice Sameer Jain, in its analysis of the facts, circumstances, and evidence adduced in the case found several discrepancies in the testimony of the PWÂ1 (informant and brother of the deceased), who is the only eyewitness of the incident and thus, it didn't find it safe to rely on his testimony to uphold the conviction of the appellant.
Case title - Kartik Chaudhary v. State Of U.P. And 4 Others
Case citation: 2022 LiveLaw (AB) 36
In a Special Sunday Sitting, the High Court refused to grant relief to one Kartik Chaudhary who sought a stay on an externment order passed against him so that he can campaign for his wife, who is contesting the Assembly Elections in Uttar Pradesh from Aligarh's Khaira seat.
The Bench of Justice Anjani Kumar Mishra and Justice Deepak Verma observed that the petitioner isn't contesting the elections himself and rather, his wife is a candidate for the polls, and since she is under no restraining order, she can freely canvass for herself.
Important Weekly Updates From the High Court/UP courts
Case title - Ratna Devi v. Triyug Narayan Mishra And 2 Others
Noticing that in the operative portion of an order passed in Appeal, the Lower/appellate Court had mentioned provisions of law, under which the order was made, the High Court sought the reply of Additional District Judge/ Fast Track Court-II, Ballia explaining his action.
"Mentioning of the provisions of the law in the operative portion of the order is not something expected prima facie of a trained Judge, who is not a lay Court," the Bench of Justice J.J. Munir remarked as it sought the reply of the ADJ on or before February 17, 2022.
Case title - Faraz Hasan v. State of U.P.
The High Court recently deprecated and condemned the tendency of the parents of the wife to come to the Mediation Center only for receiving the amount, deposited by the applicant/husband rather than coming there to settle the matrimonial disputes.
The Bench of Justice Rahul Chaturvedi observed thus as it noted that the parties are coming to the process of mediation in the most non-serious way and premeditated mind.
Case title - Chand Miyan v. State Of Up And 5 Others
Hearing the plea moved by Chand Miyan (father of the Kasganj Custodial death Victim) seeking a CBI probe in the matter, the High Court sought the status report of the magisterial inquiry ordered in the matter by February 8.
The bench of Justice Anjani Kumar Mishra and Justice Deepak Verma directed the Additional Government Advocate to file the report before the next date of hearing, i.e., February 8.
The High Court issued notice to the Uttar Pradesh Government on the plea filed by Dr. Kafeel Khan challenging the termination of his services from the State-run BRD Medical College by the State government.
The Bench of Justice Rajan Roy has asked for a counter in 4 weeks. Khan, against whom the Uttar Pradesh government had issued suspension orders, was dismissed from his service in the 2017 BRD Hospital case, where 63 children had died at Gorakhpur's BRD Medical College in August 2017 due to an alleged shortage of oxygen.
Case title - Atiq-Ur-Rehman and 2 others v. State of Uttar Pradesh and 2 others
Hearing the bail plea of UAPA Accused Atiq-Ur-Rehman and other accused person who were held by UP Police in 2020 while they were on their way to Hathras to meet the family members of gang rape and murder victim, the High Court referred the matter to the Chief Justice and adjourned the matter to February 10.
The Bench of Justice Ashwani Kumar Mishra and Justice Ajay Tyagi sent the matter to the Chief Justice while observing that since the hearing in Habeas Corpus Plea (main matter out of a bunch of connected maters) filed by Atiq and others has already been concluded and in such a situation, it wouldn't be appropriate to hear the instant bail pleas (one of the connected matters).
Case title - Sangeeta Singh (Social Activist) v. Union Of India Through Secretary, Ministry Of Information And Broadcast And 6 Others
A Public Interest Litigation (PIL) plea has been moved in Allahabad High Court by Shri Rashtriya Rajput Karni Sena's National Vice President (women wing) to restrain the release of the movie 'Prithviraj' starring Akshay Kumar and Manushi Chhillar.
The plea has been moved by Sangeeta Singh, National Vice President of (women wing) of Shri Rashtriya Rajput Karni Sena and practicing lawyer in Supreme Court alleging that the film has been titled as 'Prithviraj' in place of 'Samrat Prithviraj Chauhan' and thus, it passes a wrong message in society also hurts the religious sentiments and beliefs of Rajput Community.
7. Allahabad High Court To Function In Hybrid Mode From February 7
The High Court decided that the mode of hearing in the High Court, both at Allahabad and Lucknow, will be switched over to hybrid mode from virtual mode w.e.f. Monday, i.e. 07.02.2022.
This order will be subject to other COVID-19 protocols, including restrictions on the entry of Clerks of Advocates and Litigants other than those whose personal presence has been directed by an order of the Court.
Case title - Rajesh v. State of U.P. and Another
The Allahabad High Court has yet again expressed concerns over the non-implementation of POCSO Act, 2012 read with POCSO Rules, 2020, and also Junaid case guidelines issued by the High Court by the CWCs (Child Welfare Committee) in all districts of U.P.
It may be noted that in Junaid's case, the High Court had, inter alia, issued directions and a timeline for the disposal of bail applications under the POCSO Act, 2012.
