Allahabad High Court Weekly Round Up: February 28 To March 6, 2022

NOMINAL INDEX

1. Juvenile 'X' through his father v. State of U.P. and Anr. 2022 LiveLaw (AB) 77

2. Mohd. Afzal @Guddu and Anr. v. State of U.P. . 2022 LiveLaw (AB) 78

3. Radhey Shyam v. State of U.P. Thru. Prin. Secy. Food And Civil Supplies Lucknow . 2022 LiveLaw (AB) 79

4. Hasmukh Prajapati v. Jai Prakash Associates Ltd. Through Its Managing Director . 2022 LiveLaw (AB) 80

5. Durga Datt Tripathi v. State of U.P. and Another . 2022 LiveLaw (AB) 81

6. Ahsan And Others v. State of U.P. 2022 LiveLaw (AB) 82

7. Mohd.Imran Malik v. State Of U.P And Another 2022 LiveLaw (AB) 83

8. Kalicharan v. State Of U.P. And 2 Others 2022 LiveLaw (AB) 84

9. Ram Audhi @ Sudhir Kumar v. State Of U.P. And Anr 2022 LiveLaw (AB) 85

10. In-Re v. Sri Krishna Kumar Yadav, Adv 2022 LiveLaw (AB) 86

11. Smt. Habiba v. State Of U.P. And 2 Others 2022 LiveLaw (AB) 87

12. Alok Shukla And Another v. State Of U P And 2 Others 2022 LiveLaw (AB) 88

13. Yashpal v. State of U.P. and Another 2022 LiveLaw (AB) 89

14. Akhilesh Kumar v. State of U.P. and Another 2022 LiveLaw (AB) 90

15. Dr. Rajeev Gupta M.D. v. State Of U.P. Thru. Sp Cbi/Acb Naval Kishore 2022 LiveLaw (AB) 91

16. Prasiddh Narayan Yadav v. State Of U.P. And 2 Others 2022 LiveLaw (AB) 92

17. Smt. Ramendri v. State of U.P. and Another 2022 LiveLaw (AB) 93

Judgments/Orders of the Week

1. Identity Of Juvenile Is Not To Be Disclosed: Allahabad High Court Reminds Its Registry

Case Title: Juvenile 'X' through his father v. State of U.P. and Anr.

Citation: 2022 LiveLaw (AB) 77

The High Court has reiterated that the identity of a juvenile/ child in conflict with law must not be disclosed. Thus, the Court directed its Registry to redact the name of the juvenile accused in the present case, from the entire record.

Justice Sanjay Kumar Pachori observed,

"the identity of the juvenile in the present matter has been disclosed in the impugned judgment and order which violates the right to privacy and confidentiality of the juvenile and against the law laid down by the Supreme Court in Shilpa Mittal v. NCT Delhi, (2020) 2 SCC 787 wherein, it was held that the identity of the juvenile shall not be disclosed."

2. Statement Of Witness Recorded U/S 161 CrPC Is Only For Confrontation In Cross-Examination, Does Not Fall Within Ambit Of Evidence: Allahabad HC

Case Title : Mohd. Afzal @Guddu and Anr. v. State of U.P.

Citation: 2022 LiveLaw (AB) 78

"It is crystal clear in the catena of judgement that statement of the witness recorded under Section 161 Cr.P.C. does not fall within the ambit of evidence. Such evidence is only for confrontation in cross-examination. The statement of witness recorded under Section 161 Cr.P.C., being wholly, inadmissible in evidence, cannot be taken into consideration," the Allahabad High Court has held recently.

The remarks were made by Justice Om Prakash Tripathi and Justice Manoj Kumar Gupta while dealing with a criminal appeal filed by the appellants against the order of conviction passed by Special Judge, Bulandshahr and sentencing the appellants to undergo life imprisonment under Section 302/34 of IPC with a fine of Rs.10,000/- each.

The Bench noted that in reaching the conclusion of guilt, the trial Court had relied on the statement of a witness recorded under Section 161 CrPC, with the help of Section 33 of Indian Evidence Act. It disagreed with this course of action.

3. License To Run 'Fair Price Shop' Under Public Distribution Scheme Not Fundamental Right To Carry Business Under Art. 19(1)(g): Allahabad High Court

Case Title: Radhey Shyam v. State of U.P. Thru. Prin. Secy. Food And Civil Supplies Lucknow

Citation: 2022 LiveLaw (AB) 79

The Allahabad High Court has made it clear that a license to run a fair price shop is a privilege conferred by the State on a person. These kind of licenses does not fall within a category of fundamental right to carry on their business as provided in Article19(1)(g) of the Constitution of India.

"A need for fairness in procedure adopted for suspension and cancellation of such license/agreement would not mean that these licenses fall within the category of a fundamental right to carry on the business as provided under Article 19(i)(g) of the Constitution of India," Justice Dinesh Kumar Singh said.

4. Difference Between 'Seat' & 'Venue' Of Arbitration: Allahabad High Court Explains

Case Title: Hasmukh Prajapati v. Jai Prakash Associates Ltd. Through Its Managing Director

Citation: 2022 LiveLaw (AB) 80

The Allahabad High Court while adjudicating upon a petition filed under Article 227 of the Constitution of India discussed the difference between 'Seat' and 'Venue' of Arbitration in the light of several judicial precedents.

Justice Siddharth clarified,

"The term "seat" is of utmost importance as it connotes the situs of arbitration. The term "venue" is often confused with the term "seat" but it is more a place often chosen as convenient location by the parties to carry out arbitration proceedings but should not be confused with "seat". The term "seat" carries more weight than "venue" or "place"."

5. [17-Crore Fraud Case] "Abuse Of Public Office For Private Gain Has Hit Nation Badly": Allahabad HC Refuses To Quash FIR

Case title - Durga Datt Tripathi v. State of U.P. and Another

Case citation: 2022 LiveLaw (AB) 81

While refusing to quash criminal proceedings in connection with a fraud involving Rs. 17 Crore of public money, the Allahabad High Court recently stressed that the abuse of public office for private gain has grown in scope and scale and hit the nation badly and that corruption reduces revenue, slows down economic activity, and holds back economic growth.

Essentially, the Bench of Justice Rajiv Gupta was hearing a 482 CrPC application filed by one Durga Datt Tripathi who has been named as an accused in Rs.17.27 crores embezzlement case.

6. Benefit of Section 57IPC Not Available Merely On Ground Of Being In Jail For 18 Yrs: Allahabad HC Dismisses Murder Convicts' Appeal

Case Title - Ahsan And Others v. State of U.P.

Case citation: 2022 LiveLaw (AB) 82

Upholding the life imprisonment sentence of 5 convicts in connection with a 2003 murder case, the High Court observed that the benefit provided under section 57 IPC cannot be extended to the appellants merely on the ground that they are languishing in jail for about 18 years.

Having analyzed the facts and circumstances of the Case, the Bench of Justice Sunita Agarwal and Justice Om Prakash VII disagreed with the argument of the counsel for the appellants that they could be released by taking recourse to the Section 57 IPC as they have already suffered 18 years of imprisonment.

7. PM Narendra Modi's Image Shared Allegedly With A Pig's Face: Allahabad HC Denies Relief To WhatsApp Group Admin

Case title - Mohd.Imran Malik v. State Of U.P And Another

Case Citation:2022 LiveLaw (AB) 83

The High Court recently refused to quash a criminal case against one Mohd. Imran Malik, who is the admin of a WhatsApp group, wherein a message was shared which allegedly contained the photo of Prime Minister Narendra Modi with the face of a pig.

Not finding any 'cogent' reason to quash the case, the Bench of Justice Mohd. Aslam dismissed his 482 CrPC Application as it noted that he was a 'group admin' and also a co-extensive member of the WhatsApp group

8. Defence Of Accused Can't Be Looked Into In Writ Plea Seeking Quashing Of FIR: Allahabad High Court

Case title - Kalicharan v. State Of U.P. And 2 Others

Case Citation:2022 LiveLaw (AB) 84

The High Court has observed that the defence of the accused cannot be looked into while considering the writ petition seeking quashing of the First Information Report.

The Bench Justice Anjani Kumar Mishra and Justice Deepak Verma observed thus while dismissing a plea filed by one Kalicharan seeking the quashing of the impugned F.I.R. registered against him under Section 302, 120-B I.P.C.

9. Direct UP Cops To Prepare True Site Map, Take Picture Of Crime Spot With Smart Phones During Probe: Allahabad HC To DGP

Case title - Ram Audhi @ Sudhir Kumar v. State Of U.P. And Anr

Case Citation:2022 LiveLaw (AB) 85

The High Court recently directed the Director General of Police, U.P., to issue necessary directions to the Investigating officers regarding preparation of true site plan/map with dimensions in the correct manner and also to take photographs of the spot with smart phones.

The Bench of Justice Rajeev Singh issued this order while allowing the bail plea of a gang rape accused as it noted that in the case, site plan was prepared by the Investigating Officer in a most cursory manner.

10. Advocate Apologizes For Abusing Lady Judge In Open Court: Allahabad HC Disposes Contempt Case After Imposing 2K Cost

Case title - In-Re v. Sri Krishna Kumar Yadav, Adv

Case Citation:2022 LiveLaw (AB) 86

The High Court disposed of a contempt case against a lawyer who abused a lady judge in the open court after he tendered an unconditional & unqualified apology before the court/judicial officer.

The Bench of Justice Suneet Kumar and Justice Vikram D. Chauhan however imposed a cost of Rs. 2,000/- upon him to be deposited at the District Legal Services Authority, Mau. Further, the contemnor/advocate would be under observation with regard to his conduct and behavior for a period of two years.

11. Special Leave To Appeal U/S 378 (4) CrPC Can Be Granted Only When View Of Acquitting Judge Is Unreasonable: Allahabad HC

Case title - Smt. Habiba v. State Of U.P. And 2 Others

Case Citation:2022 LiveLaw (AB) 87

The High Court observed that special leave to appeal as envisaged under Section 378(4) of the Code Of Criminal Procedure (CrPC) could be granted by the High Court only where the view taken by acquitting judge is clearly unreasonable.

The Bench of Justice Mohd. Aslam further added that it is the duty of the court to punish the guilty person when the guilt is established beyond reasonable doubt and it is also the duty to acquit the accused when it is not so established.

12. Courts Can't Direct Govt To Have A Particular Method Of Recruitment, Eligibility Criteria For Services: Allahabad High Court

Case title - Alok Shukla And Another v. State Of U P And 2 Others

Case Citation:2022 LiveLaw (AB) 88

The Allahabad High Court has observed that the prescription of qualifications and other conditions of service pertains to the field of policy and is within the exclusive discretion and jurisdiction of the State and that it is not open to the Courts to direct the Government to have a particular method of recruitment or eligibility criteria.

The Bench of Justice Manju Rani Chauhan further opined that the selection and appointment to any post should be made strictly in accordance with terms of the advertisement and the recruitment rules.

13. [UP Excise Act] Civil Appeal Against DM's Confiscation Order Lies Before Concerned District Judge: Allahabad High Court

Case title - Yashpal v. State of U.P. and Another

Case Citation:2022 LiveLaw (AB) 89

The High Court has observed that as per provisions of Section 72(7) of Uttar Pradesh Excise Act, 1910, a Civil appeal against the order of confiscation passed by the District Magistrate would lie before the District Judge of the respective District.

The Bench of Justice Sanjay Kumar Singh observed thus in light of the notification issued in the year 1978 by the UP Government, wherein the appellate judicial authority appointed by the State Government is "District Judge", who has been designated to hear the appeal against the order made by the DM Concerned regarding the confiscation of a vehicle under the Act.

14. During Confiscation Proceedings Magistrate Has No Jurisdiction To Release Vehicle Seized U/S 72 UP Excise Act: Allahabad HC

Case title - Akhilesh Kumar v. State of U.P. and Another

Case Citation: 2022 LiveLaw (AB) 90

The High Court observed that during the confiscation proceedings initiated under the Uttar Pradesh Excise Act, 1910, the Magistrate has no power under sections 451 or 457 Cr.P.C. to release the vehicle in question.

The Bench of Justice Syed Aftab Husain Rizvi has concluded thus in view of the law laid down by the Allahabad High Court in the case of Ved Prakash vs. State of U.P. 1982 AWC 167, wherein it was held that during the confiscation proceedings u/s 72 of UP Excise Act, a Magistrate is not empowered to release the seized vehicle.

15. Corruption A Termite And Root Cause Of All Problems Like Poverty, Inequality, Illiteracy, Social Unrest, Etc: Allahabad High Court

Case Title - Dr. Rajeev Gupta M.D. v. State Of U.P. Thru. Sp Cbi/Acb Naval Kishore

Case Citation:2022 LiveLaw (AB) 91

The High Court recently made significant observations on the growing menace of corruption in society. It observed that it is like a termite in every system and once it enters the system, it keeps on getting bigger and bigger.

"Corruption is a termite in every system. Once it enters the system, it goes on increasing. Today, it is rampant and has become a routine. Corruption is the root cause of all the problems, such as poverty, unemployment, illiteracy, pollution, external threats, underdevelopment, inequality, social unrest. The menace has to be put into account. The offence is against society. The Court has to balance the fundamental rights of the accused to the legitimate concerns of the society at large vis-avis the investigating agency," the Court remarked

The bench of Justice Krishan Pahal averred thus while hearing the anticipatory bail plea of Dr. Rajeev Gupta M.D., who has been arraigned as an accused in a corruption case. While denying him bail, the Court also stressed that the medical practitioner should follow the oath which is administered to them at the time of convocation as provided by the Indian Medical Association.

"The medical practitioner administers an oath at the time of convocation as provided by Indian Medical Association which is an extension of Hippocratic oath taken the world over. The oath is not merely a formality. It has to be observed and followed in letter and spirit. It is on these lines that the apex medical education regulator, National Medical Commission has suggested that the Hippocratic oath be replaced by 'CHARAK SHAPATH' during the convocation ceremony for graduates in medical services," the Court averred.

16. Rights Accrued To Others Due To Delay In Approaching Court Shouldn't Be Disturbed If Delay Is Unexplained: Allahabad High Court

Case title - Prasiddh Narayan Yadav v. State Of U.P. And 2 Others

Case Citation:2022 LiveLaw (AB) 92

The High Court has observed that the time-barred cases should not be entertained by Courts as the rights, which have accrued to others by reason of delay in approaching the Court, cannot be allowed to be disturbed unless there is a reasonable explanation for the delay.

The Bench of Justice Manju Rani Chauhan observed thus as it dismissed a Writ Petition filed seeking a direction to the Government Authority to take a decision on the representation filed by the petitioner more than 12 years ago.

17. Allahabad HC Imposes ₹20K Cost On Dowry-Death Accused Who Approached Court With 'Unclean Hands' By Filing Successive Pleas

Case title - Smt. Ramendri v. State of U.P. and Another

Case Citation:2022 LiveLaw (AB) 93

The High Court recently imposed ₹20,000 Cost on a Dowry Death Accused after noting that she misused the process of law by filing successive applications before the Court suppressing the material facts and documents and had misled the Court.

The Bench of Justice Sanjay Kumar Singh further stressed that honesty, fairness, purity of mind should be of the highest order to approach the court, failing which the litigant should be shown the exit door at the earliest point of time.

Important Weekly Updates From the High Court/UP courts

1. Allahabad High Court Seeks DGP's Affidavit On 'Institutional Capacity' Of UP Police To Tackle Cyber Crime Menace

Case title - Shabbu v. State Of U.P. And 2 Others

Expressing dissatisfaction with 'institutional preparedness' on part of the U.P. Police to curb the menace of cyber-related crimes, the High Court sought the reply of the state Director-General of Police over an array of issues.

Significantly, the Bench of Justice Ajay Bhanot also stressed that the pervasive and fast-evolving nature of cybercrime requires the U.P. Police as an institution to think ahead, plan conceptual responses, and execute a well-thought-out strategic response.

2. Allahabad High Court Seeks UP Govt's Counter Affidavit On Siddique Kappan Bail Plea By March 14

Case title - Sidhique Kappan v. State Of U.P.Thru.Prin.Secy.Home Lko.

The High Court sought the response of the Uttar Pradesh Government on the bail plea filed by Kerala journalist Siddique Kappan in connection with the Sedition, UAPA case registered against him in the alleged Hathras conspiracy case and which is pending before the NIA Court in Lucknow.

The Bench of Justice Rajesh Singh Chauhan has listed the case for next hearing on March 14 and it categorically made it clear that if the counter affidavit is not filed by the UP Govt, then the bail application would be heard and disposed of finally on the basis of material available on record and the arguments so advanced by counsel for the parties.

3. UP Govt Opposes UAPA Accused Atiq-Ur-Rehman's Habeas Corpus Plea In Allahabad High Court

Case title - Atiq-Ur-Rehman And 2 Others v. State Of U.P. And 2 Others

The Uttar Pradesh Government has opposed the Habeas Corpus plea moved by UAPA Accused Atiq-Ur-Rehman before the High Court. Atiq was held by UP Police in 2020 while he was on his way to Hathras to meet the family members of gang rape and murder victim.

The Bench of Justice Ashwani Kumar Mishra and Justice Rajnish Kumar recorded the objections raised by the Counsel for the Uttar Pradesh Government.

4. Release Funds Earmarked For Indian Women's Handball Team's Participation In Asian Jr. Championship: Allahabad HC Directs SAI

Case title - Sheetal Kumari v. U.O.I Thru. Secy.Minisrty Of Youth Affairs And Sports And 3 Others

The High Court directed the Sports Authority of India (SAI) to release necessary funds for sponsoring the Women's Handball National team so that its participation in the 16th Asian Women Junior Handball Championship could be ensured. The Championship would be held in Kazakhstan from March 7 to March 14, 2022.

The Bench of Justice Attau Rahman Masoodi, Justice Narendra Kumar Johari had issued this direction on a plea moved by Sheetal Kumari, who is a Handball player and has been selected to represent India in the 16th Asian Women's Junior Championship Handball, 2022.

5. Right To Hearing Must Be Granted Where Adverse Order Is Contemplated Against A Person U/S 75 (4) CGST Act: Allahabad HC

Case title - Bharat Mint And Allied Chemicals v. Commissioner Commercial Tax And 2 Others

The High Court observed that an opportunity of hearing has to be granted by authorities to a person against whom an adverse decision is contemplated under Section 75(4) of the Central Goods and Services Tax, 2017/ U.P. Goods and Services Tax, 2017.

The Bench of Justice Surya Prakash Kesarwani and Justice Jayant Banerji observed thus in a Tax Writ filed by Bharat Mint And Allied Chemicals that has moved the Court after an assessment order was passed against it creating a demand of tax.

6. Allahabad High Court Seeks UP Govt's Reply On PIL Filed Over 'Poor Upkeep' Of Sandi Bird Sanctuary

Case Title - Inner Wheel Club D.O.D Thru. President Pooja Jain And Ors. v. State Of U.P. Thru. Prin. Secy. Forest Dept. And Ors

The High Court has sought the Uttar Pradesh Government's response on a Public Interest Litigation (PIL) plea expresing concern about the poor upkeep of a wild life sanctuary known as 'Sandi Bird Sanctuary', situated in Hardoi district.

The Bench of Justice Devendra Kumar Upadhyaya and Justice Mohd. Faiz Alam Khan issued this order on a PIL plea moved by Inner Wheel Club D.O.D Thru. President Pooja Jain And others.