Allahabad High Court Weekly Round Up: February 21 To February 27, 2022

1. Using Cyberspace To Vent Out Anger By Travestying PM, Key Figures Abhorrent: Allahabad HC Asks Centre To Tackle The 'Menace'

Case title - Niyaz Ahmad Khan v. State of U.P. and Another

Case citation: 2022 LiveLaw (AB) 58

The High Court observed that the use of Cyberspace by some people to vent out their anger and frustration by travestying the Prime Minister, Key Figures holding the highest office in the country, or any other individual is abhorrent and it violates the right to reputation of others.

The Bench of Justice Sanjay Kumar Singh observed thus while refusing to quash criminal proceedings including the charge sheet, cognizance and the summoning order passed by Additional Chief Judicial Magistrate, Sant Kabir Nagar against one Niyaz Ahmad Khan who allegedly shared morphed photos of Prime Minister Narendra Modi and Union Home Minister Amit Shah on Facebook.

2. Wife Who Has Challenged Divorce Decree & Hasn'tAccepted Permanent Alimony U/S 25 Hindu Marriage Act Can Seek Maintenance U/S125 CrPC: Allahabad HC

Case Title: Tarun Pandit v. State of U.P. and Another

Citation: 2022 LiveLaw (AB) 59

The High Court recently allowed the claim for maintenance of a wife under Section 125 of CrPC, despite the grant of divorce decree by the Family Court, while noting that an appeal against the said decree was pending before the Court and the same had not attained finality.

Justice Syed Aftab Husain Rizvi discarded the husband's plea that a divorced wife cannot claim maintenance under Section 125 CrPC. It also rejected the argument that since the Family Court has awarded permanent alimony under Section 25 of the Hindu Marriage Act, no maintenance under CrPC can be awarded. It observed,

"It is clear that as O.P. No. 2 (wife) has not accepted the amount of alimony as she has challenged the divorce decree in appeal and appeal is pending and in that circumstances she can not accept the amount of alimony. So it can not be said that she has sufficient financial resources as permanent alimony has been awarded to her. At present she has no source of income and financial support to maintain her and comes in the category of destitute."

3. S.406 CrPC| Appeal In Case Transferred To Sessions Court In Another State Lies Before HC Of Transferee State & Not Transferor State: Allahabad HC

Case Title: Virendra Singh vs State Of U.P.

Citation: 2022 LiveLaw (AB) 60

The High Court has held that once in exercise of its powers under Section 406 CrPC the Supreme Court transfers a case from the subordinate criminal court in one state to a subordinate criminal court in another state, any appeal against an order in the said case shall lie before the High Court in the transferee High Court.

The bench of Justice Suneet Kumar and Justice Om Prakash Tripathi made this observation while dealing with a criminal appeal, wherein a preliminary objection was raised by the CBI that the appeal is not entertainable before Allahabad High Court as the cause of action arose in Rajasthan.

4. Allahabad High Court Discusses Scope Of Powers While Hearing An Application For Discharge U/S 227 CrPC

Case Title: Rakesh Kumar Pandey & Anr v. State Of U.P. & Anr.

Citation: 2022 LiveLaw (AB) 61

The High Court, sitting in Lucknow, recently delved into the power of Courts at the time of framing of charges under Section 228 CrPC and to discharge an accused under Section 227 CrPC.

Justice Sangeeta Chandra observed,

"Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions the Court is required to consider the 'record of the case' and documents submitted there with and, after hearing the parties, either discharge the accused or where it appears to the Court and in its opinion, there is ground for presuming that the accused has committed an offence, it shall frame the charge."

5. Power U/S 311 CrPC For Recall Of Witnesses: Allahabad High Court Explains

Case Title: Bheem Singh vs State of UP Through Secretary Home, Govt. U.P. Lucknow

Citation: 2022 LiveLaw (AB) 62

The High Court has rejected an application filed under Section 482 of CrPC seeking to quash an order of the Additional Sessions Judge, Deoria rejecting two applications filed by the Applicant/accused under Section 311 of CrPC for recall of two prosecution witnesses.

While doing so, Justice Sanjay Kumar Pachori shed light on the applicability of Section 311 CrPC.

"Section 311 of the Code gives a wide power to the court to summon a material witness or to examine a person present in court or to recall a witness already examined. It confers a wide discretion on the court to act as the exigencies of justice require. The word "just" cautions the court against taking any action which may result injustice either to the accused or to the prosecution," it observed.

6. "Most Gender Insensitive & Crooked Person": Allahabad HC Denies Bail To Man Who Allegedly Sent Girlfriend's Intimate Pics To Her Family

Case title - Balram Jaiswal v. State of U.P

Case Citation: 2022 LiveLaw (AB) 63

The High Court recently denied bail to a man who allegedly shared intimate pictures of his girlfriend with her family members as it noted that this was an exclusive case of betrayal of the faith of the victim by the applicant.

The Bench of Justice Rahul Chaturvedi also observed that while the victim permitted the accused to have those photographs under certain confidence and understanding, the applicant/accused had backstabbed her and betrayed her to its core.

7. Application Seeking Condonation Of Delay Has To Be Decided Before Hearing On Merits Of Appeal: Allahabad High Court Answers Reference

Case Title : Ram Prakash v. Deputy Director of Consolidation, Hardoi and others

Citation: 2022 LiveLaw (AB) 64

The High Court, sitting in Lucknow, recently held that where Limitation Act, 1963 is applicable to a statute and the party is entitled to seek condonation of delay in filing statutory appeal, the application seeking the latter relief has to be considered by the Court first and only thereafter, the appeal can be considered on merits.

While answering a reference made by a single judge in relation to the U.P. Consolidation of Holdings Act, 1953, the division bench of Chief Justice Rajesh Bindal and Justice Pritinker Diwaker held,

"As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted."

8. "Murder Wasn't Pre-Planned Or Pre-Meditated": Allahabad High Court Commutes Death Sentence Of 4 In A 27 Yr Old Case

The High Court commuted the death sentence awarded to 4 people in a 27-year-old murder case while noting that the case did not fall in the category of 'rarest of rare cases', warranting capital punishment.

The Bench of Justice Ramesh Sinha and Justice Vivek Varma didn't agree with the opinion of the trial court that the murder was premeditated and pre-planned one. In fact, the trial court had concluded that the imposition of a lesser sentence than that of a death sentence, would not be adequate and appropriate.

9. Recovery Officer Required To Cancel Auction Sale If Bank Is Satisfied That Dues Are Paid Before Sale: Allahabad High Court

Case title - Dinesh Kumar Tiwari v. Bank Of Baroda A Body Corporate And Ors

Case Citation: 2022 LiveLaw (AB) 66

The High Court has observed that in case Bank/financial institution is satisfied that its dues are paid before the auction sale is confirmed, then the Recovery Officer would be required to cancel the auction sale.

The Bench of Justice Dinesh Singh observed thus while dealing with a Writ Petition seeking to quash a 2015 order passed by the Debts Recovery Tribunal, Lucknow ordering the Recovery Officer to take forcible possession of the mortgaged property from the petitioner.

10. Allahabad HC Dismisses PIL Seeking Lucknow IGP's Transfer As Her Husband Is Contesting UP Polls From Same Area

Case title - Saurabh Kumar Shukla v. The Election Commission of India and others

Case Citation: 2022 LiveLaw (AB) 67

The High Court dismissed a Public Interest Litigation (PIL) plea seeking transfer of Laxmi Singh, the Inspector General of Police (IG), Lucknow Range on the ground that her Husband, Rajeshwar Singh [Former Joint Director ED] is a Bhartiya Janta Party (BJP) candidate from Sarojini Nagar, a constituency in the Lucknow district.

Terming it as proxy litigation, the Bench of Chief Justice Rajesh Bindal and Justice Jaspreet Singh dismissed the plea on the ground that the plea had been filed even though key details were not disclosed in the plea.

11. Circumstantial Evidence Should Not Only Be Consistent With Guilt Of Accused But Also Be Inconsistent With His Innocence: Allahabad HC Reiterates

Case Title : Shriniwas vs State Of U.P. And Others

Citation: 2022 LiveLaw (AB) 68

"(Circumstantial) evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence," the High Court reiterated recently.

The observation was made by a division bench of Justice Vivek Kumar Birla and Justice Subhash Vidhyarthi while dismissing an appeal filed by the victim against the order of Additional Sessions Judge, Badaun, acquitting the respondent of charges under Sections 302, 34 IPC.

12. Appointment In Public Services Secured Through Fraudulent Concealment Void Ab Initio, Long Continuation In Service Immaterial: Allahabad High Court

Case Title: Sumit Kumar Verma v. State Of U.P. Thru. Addl.Chief Secy. Dept. Of Medical Edu.Govt. Of U.P.Civil Secrtt. Lko And Others

Citation: 2022 LiveLaw (AB) 69

The High Court, sitting in Lucknow, recently held that when employment in a public service is obtained by playing fraud, the long continuation in such service would be immaterial to uphold the appointment.

Justice Dinesh Kumar Singh observed,

"it is evident that the petitioner has suppressed the material fact and played fraud for securing public employment and, therefore, his long continuation (15 years) would not be of any help to him to continue to hold his post inasmuch as his appointment was void ab initio."

13. Accused Charged With Serious Offence Must Not Be Stripped Of The Valuable Right Of Impartial Trial: Allahabad HC

Case title - Sunil @ Moni And Another v. State of U.P. and Another

Case citation: 2022 LiveLaw (AB) 70

The High Court observed that an accused who is charged with a serious offence, must not be stripped of his/her valuable right of a fair and impartial trial because it would be a negation of the concept of due process of law.

The Bench of Justice Sanjay Kumar Singh observed thus while dealing with a 482 CrPC Application filed against the order of Additional Sessions Judge, FTC, district Meerut who rejected the Rape accused prayer to recall the witness/victim for the purpose of cross-examination.

14. Canceling Firearm License Without Recording A Finding That It Was Misused Isn't Justified: Allahabad High Court

Case title - Sudhakar Mishra v. State Of U.P. And Ors.

Case citation: 2022 LiveLaw (AB) 71

The High Court has observed that in absence of any finding recorded by authorities that a person has misused the firearm in question or there is any other disability on his/her part, the exercise of power in canceling the firearm license is not justified.

The Bench of Justice Gautam Chowdhary observed thus while hearing a writ plea filed against an order of May 1989 passed by Collector canceling the firearm licence of the petitioner, Sudhakar Mishra. His appeal was also rejected in October 1995 passed by Commissioner, Varanasi Division, Varanasi.

15. "Remain Vigilant, No Doubts Should Arise": Allahabad HC Tells ECI On Plea Complaining About 'EVM Tampering' In UP Polls

Case title - Suraj Singh v. Election Commission Of India Nirvachan Sadan And 2 Others

Case citation: 2022 LiveLaw (AB) 72

While dealing with a plea that raised complaints regarding EVM Tampering in the ongoing Uttar Pradesh State Assembly Elections, the High Court asked the Election Commission Of India to remain vigilant to all such situations and not to allow doubts of any description arise.

The Bench of Justice Attau Rahman Masoodi and Justice Narendra Kumar Johari also observed that the democratic process, being sacrosanct, is well protected under the Constitution of India by placing a respectful restraint on the scope of judicial review under Article 226 or Article 32 of the Constitution of India

16. Allahabad HC Upholds Compulsory Retirement Of Govt Employee Found To Be 'Indolent', 'Religious Bigot' & 'Harasser Of Females'

Case title - Mohammed Naseem Ali v. State Of U.P. Thru.Prin.Secy. Panchayat Raj Deptt. And Ors.

Case citation: 2022 LiveLaw (AB) 73

Stressing that the employer is entitled to remove the dead woods from service, the High Court recently upheld the order of compulsory retirement of a Government employee who was found to be indolent, quarrelsome, disturber of peace, religious bigot, harasser of females, and scheduled caste people.

The Bench of Justice Dinesh Kumar Singh also observed that an employer is entitled to remove the dead woods from service if on consideration of the service record, it is found that the work of such an employee has not been upto the mark or he has become 'dead wood' for the organization.

17. Allahabad High Court Allows Appeal Of Murder Convict After 40 Yrs, Sets Aside Conviction

Case Title : Babu Pasi alias Babu Lal Pasi and another v. State of U.P.

Citation: 2022 LiveLaw (AB) 74

The High Court, sitting in Lucknow, has allowed the appeal of a Murder convict after 40 years, setting aside the order passed by Sessions Court and directing the jail authorities to set him at liberty forthwith.

The criminal appeal filed in 1982 by Ringu Pasi, convicted by the Additional Sessions Judge, Unnao for offences under Section 302 (Murder) read with Section 34 and Section 404 (Dishonest misappropriation of property) IPC, came to be decided by a bench comprising of Justice Ramesh Sinha and Justice Vivek Varma on Tuesday, February 22, 2022.

18. Boy Not Being Above 21 Yrs Of Age Wouldn't Render Marriage Void; A Major Can Live With Person Of Choice: Allahabad High Court

Case title - Pratiksha Singh And Another v. State Of U.P. And 3 Others

Case citation: 2022 LiveLaw (AB) 75

Stressing that it is well settled that it is the right of a major to live with anyone out of his/her own will, the High Court has held that the fact that a married boy is not above 21 years of age, would not render the marriage void.

The Bench of Justice Ashwani Kumar Mishra and Justice Shamim Ahmed further clarified that at best, this could render the person responsible, liable for punishment in terms of Section 18 of the Hindu Marriage Act, 1955.

19. Undertaking As Contemplated U/S 4 Of Partition Act Must Be Unconditional: Allahabad High Court

Case Title: Yogesh Kesarwani And Anr. vs Devi Shankar Shukla

Citation: 2022 LiveLaw (AB) 76

The High Court, sitting in Lucknow, recently held that a member of an undivided family being a shareholder of the family's dwelling-house is entitled to exercise his rights under Section 4 of the Partition Act only if the undertaking is unconditional. The declaration was made by Justice Jaspreet Singh.

Section 4 of the Partition Act provides that where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.

Important Weekly Updates From the High Court/UP courts

1. Prayagraj Airport Corridor- Allahabad High Court Stays Demolition Of 100-Yr-Old Clinic, Restaurant In Special Sunday Hearing

Case Title - Rakesh Gupta And 2 Others v. State Of U.P. Through Secretary , Ministry Of Urban Planning And Development And 3 Others

In a Special Sunday Sitting, the High Court temporarily stayed the proposed demolition of a hundred-year-old homeopathic clinic and restaurant for the purpose of constructing the Prayagraj airport corridor.

2. PIL Moved In Allahabad High Court Seeking A Stay On 'Why I killed Gandhi' Movie Streaming

Case title - Rehan Alam Khan and Another v. Union of India and others

A Public Interest Litigation (PIL) plea has been moved in the High Court seeking a stay on the streaming of the short film 'Why I killed Gandhi'. The plea contends that the display of the film may disturb the communal harmony of Uttar Pradesh amid the ongoing assembly elections.

The plea has been moved by Rehan Alam Khan and Himanshu Gupta and it goes on to submit that the Movie, which was released on January 30th [the death anniversary of Mahatma Gandhi] on the OTT platform Limelight, tarnishes the image of the Father of the Nation and also disturbs the peace and social harmony of the Indian Society.

3. Husband Files FIR Against Live-In Partner Of His Wife: Allahabad High Court Stays Arrest Of Man, Family Members

Case title - Mohit Agrawal And 3 Others v. State Of U.P. And 4 Others

The High Court stayed the arrest of a man (and his family members) who is living with a married woman in connection with an FIR registered against him by the husband of the woman.

The Bench of Justice Ashwani Kumar Mishra and Justice Rajnish Kumar also issued a notice to the husband of the woman seeking his reply in the matter.

4. "No Need To Extend Interim Orders": Allahabad High Court Closes Suo Moto Extension Of Interim Orders Plea

The High Court has disposed of its plea concerning the suo moto petition registered for the extension of interim orders in all matters pending before it and subordinate Courts including interim bails.

The Bench of Chief Justice Rajesh Bindal and Justice Piyush Agrawal ordered thus as it noted that the situation of the pandemic COVID- 19 has improved and now, normal functions of day-to-day life are being undertaken and the Courts are physically working. The Cout also said that the position has improved as per the data of different agencies of the State of U.P.