Allahabad High Court Weekly Round Up: March 14 To March 20, 2022

NOMINAL INDEX

Chavi Lal And Others vs State Of U.P. And Another 2022 LiveLaw (AB) 111

Amitabh Thakur v. State Of U.P. Thru Addl. Prin.Secy. Home Lucknow 2022 LiveLaw (AB) 112

Om Prakash Verma v. State of U.P. 2022 LiveLaw (AB) 113

Raj Kumar Verma v. State of U.P. and Others 2022 LiveLaw (AB) 114

Sangram Yadav v. State Of U.P. And 3 Others 2022 LiveLaw (AB) 115

Nokhe Lal v. State of U.P. and 2 Others 2022 LiveLaw (AB) 116

Mukis v. State Of U.P. And 2 Others 2022 LiveLaw (AB) 117

Gamma Gaana Limited v. Union Of India 2022 LiveLaw (AB) 118

Prabhat Kumar And Others vs Dheeraj And Others 2022 LiveLaw (AB) 119

C/M Jago Rajbhar Jago Samiti And Another V. Union Of India And 4 Others 2022 LiveLaw (AB) 120

United India Insurance Co. Ltd. Thru Its Divisional Manager v. Motor Accident Claim Tribunal 2022 LiveLaw (AB) 121

Amrita Nand @ Tribhuvan Arjariya @ Baba v. State of U.P. and Another. 2022 LiveLaw (AB) 122

Upendra v. State of U.P. 2022 LiveLaw (AB) 123

Pankaj Tyagi v. State Of U.P. And Another 2022 LiveLaw (AB) 124

Smt. Rekha Gautam v. State of U.P. and Another 2022 LiveLaw (AB) 125

Khurshidurehman S. Rehman v. State of U P and another 2022 LiveLaw (AB) 126

Titu v. State Of U.P.And 2 Others 2022 LiveLaw (AB) 127

Daujee Abhushan Bhandar Pvt. Ltd. v. Union Of India And 2 Others 2022 LiveLaw (AB) 128

Prakash @ Jai Prakash Ruhela v. State of U.P 2022 LiveLaw (AB) 129

Judgments/Orders of the Week

1. Can't Enter Into Marshalling & Appreciation Of Evidence In Discharge Application U/S 239 CrPC: Allahabad High Court Reiterates

Case Title: Chavi Lal And Others vs State Of U.P. And Another

Citation: 2022 LiveLaw (AB) 111

The Allahabad High Court, sitting in Lucknow, reiterated that while dealing with an application for discharge under Section, the Court is required to only see whether a prima facie case is made out against the accused. Detailed inquiry is not required at this stage and the accused can be discharged when the charge is groundless.

"At the stage of charge the court is not required to consider pros and cons of the case and to hold an enquiry to find out truth. Marshalling and appreciation of evidence is not in the domain of the court at that point of time. What is required from the court is to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case for framing a charge against the accused has been made out," Justice Suresh Kumar Gupta observed.

2. SC Self-Immolation: Allahabad High Court Grants Bail To Former IPS Officer Amitabh Thakur In Abetment Of Suicide Case

Case Title: Amitabh Thakur v. State Of U.P. Thru Addl. Prin.Secy. Home Lucknow

Citation: 2022 LiveLaw (AB) 112

The Allahabad High Court granted bail Former IPS officer Amitabh Thakur in the abetment to suicide case, in which a woman and her friend had set themselves on fire outside the Supreme Court and succumbed to burn injuries.

"Admittedly, the charge sheet is already filed and there is no averment in the counter affidavit for tampering any evidence," the bench of Justice Rajeev Singh stated.

3. [NDPS Act] Accused Claims Standing Order Not Followed In Seizure Of Over 1 Quintal Of Ganja, Allahabad High Court Grants Bail

Case title - Om Prakash Verma v. State of U.P.

Case Citation:2022 LiveLaw (AB) 113

The Allahabad High Court last week granted bail to a man booked under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) from whose possession allegedly over 1 Quintal of Ganja was recovered.

The Bench of Justice Krishan Pahal granted bail to one Om Prakash Verma who claimed before the Court that the procedure laid down in the Standing Order to be followed while conducting seizure of the contraband was not followed in the instant case.

4. "Extra-Judicial Confession Not Corroborated": Allahabad High Court Upholds Acquittal Of Murder-Robbery Accused

Case title - Raj Kumar Verma v. State of U.P. and Others

Case citation:2022 LiveLaw (AB) 114

The Allahabad High Court recently upheld the acquittal of a Murder-Robbery accused as it noted that the alleged extrajudicial confession made by all the accused persons was highly unnatural and the same was not corroborated by any other evidence.

Essentially, the Bench of Justice Vivek Kumar Birla and Justice Subhash Vidyarthi was hearing an appeal filed by the informant of the case (US/ 372 CrPC) challenging the judgment and order of September 2021 passed by Additional Session Judge, Bijnor, acquitting the accused persons in a Murder-Robbery case.

5. Prosecution Must Stand On Own Legs, Can't Allow Suspicion To Take Place Of Proof Even In Domestic Enquiry: Allahabad HC

Case title - Sangram Yadav v. State Of U.P. And 3 Others

Case Citation: 2022 LiveLaw (AB) 115

The Allahabad High Court has observed that the prosecution must stand on its own legs based on its own evidence and that suspicion can't be allowed to take the place of proof even in a domestic inquiry.

The bench of Justice Siddhartha Varma observed thus as it set aside the dismissal order passed against an Uttar Pradesh police official for allegedly misbehaving with the private cook under the influence of alcohol.

6. Testimony Of Interested Witness Has To Be Examined With Extra Care And Caution, Reiterates Allahabad High Court

Case title - Nokhe Lal v. State of U.P. and 2 Others

Case citation: 2022 LiveLaw (AB) 116

While stressing that during the trial of a case, the testimonies of the interested witnesses have to be examined with extra care and caution, the Allahabad High Court today dismissed an appeal filed by the informant of the case challenging the acquittal order of the trial court in an attempt to murder case.

Finding serious discrepancies in the statements of the interested witnesses in the case, the Bench of Justice Vivek Kumar Birla and Justice Subhash Vidyarthi upheld the October 2014 judgment and order passed by the ASJ, Mahoba acquitting two accused charged for offences under Sections 387, 307/34, 452, 323/34 and 427 IPC.

7. Section 125 CrPC Falls Within Constitutional Sweep Of Article 15 (3); It Intends To Protect Women, Children & Infirm Parents: Allahabad HC

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

Case Citation: 2022 LiveLaw (AB) 117

The Allahabad High Court observed that Section 125 Cr.P.C. is enacted for social justice and especially to protect women and children and also old and infirm parents and that this provision falls within the constitutional sweep of Article 15 (3), re-enforced by Article 39 of the Constitution of India.

The Bench of Justice Shekhar Kumar Yadav observed thus as it stressed that this provision gives effect to the natural and fundamental duty of a man to maintain his wife, children, and parents so long as they are unable to maintain themselves.

8. Rejection Of GST Refund Application On The Ground Of Delay Not Valid, Extension Of Limitation Applicable: Allahabad High Court

Case Title: Gamma Gaana Limited Versus Union Of India

Citation: 2022 LiveLaw (AB) 118

The Allahabad High Court bench consisting of Justice Surya Prakash Kesarwani and Justice Jayant Banerji observed that the refund application under the Goods and Service Tax (GST) cannot be rejected merely on the ground of delay.

"We find that the refund application of the petitioner could not have been rejected by the respondent merely on the ground of delay, ignoring the order of the Supreme Court," the court said.

9. 'Sympathetic View Required When Such Great Loss Of Body Part': Allahabad High Court Enhances Motor Accident Compensation To Child Who Lost One Kidney

Case Title: Prabhat Kumar And Others vs Dheeraj And Others

Citation: 2022 LiveLaw (AB) 119

The Allahabad High Court enhanced the compensation granted by the Motor Accident Claims Tribunal to a minor (as he then was), who lost one kidney and suffered liver damage on being hit by a motorcycle while driving a moped.

Justice Ajai Tyagi said,

"The learned tribunal has not taken sympathetic view which is required by tribunal in such matters when the child has suffered such a great loss of body part. Theories of just compensation has also been overlooked by the tribunal while adjudicating this matter, just because no disability or injury report was filed."

10. Allahabad HC Directs UP Govt To Take Decision On Representations To Include Rajbhar Community In ST List In 2 Months

Case title - C/M Jago Rajbhar Jago Samiti And Another V. Union Of India And 4 Others

Case citation: 2022 LiveLaw (AB) 120

The Allahabad High Court directed the Uttar Pradesh Government to take a decision over the representations forward to it by the Centre seeking inclusion of the State's Rajbhar community in the list of Scheduled Tribes.

The Bench of Justice Siddhartha Varma and Justice Dinesh Pathak issued this direction on a plea moved by C/M Jago Rajbhar Jago Samiti moved through Advocate Agnihotri Kumar Tripathi.

11. Motor Accident Claim: Allahabad High Court Imposes ₹5 Lakhs Cost On Insurance Co. For 'Keeping Litigation Alive' For 20 Yrs

Case title - United India Insurance Co. Ltd. Thru Its Divisional Manager v. Motor Accident Claim Tribunal

Case Citation: 2022 LiveLaw (AB) 121

The Allahabad High Court imposed Rupees Five Lakhs on an insurance company while noting that it kept the litigation alive for almost 20 years in connection with a Motor Accident Claims case.

The Bench of Justice Dinesh Kumar Singh imposed the exemplary cost on the Insurance Company as they made the complainant (whose husband died in a motor accident in the year 1999) and her five minor children suffer beyond imagination.

12. Competency Certificate Of Child Witness Not Mandatory If It Understands Court's Questions & Answers Rationally: Allahabad HC In POCSO Case

Case Title: Amrita Nand @ Tribhuvan Arjariya @ Baba v. State of U.P. and Another.

Citation: 2022 LiveLaw (AB) 122

The Allahabad High Court held that the Competency Certificate of a child witness is not mandatory if the child gives rational answers to the court's questions and his testimony is unshaken, inspires confidence of the Court.

"Nowhere it is provided that certificate regarding the competency of the child witness is mandatory. If it is recorded, it is so far so good. But, if the court has put the question to understand his intellect to understand the question and if he replied the rational answer and thereafter his examination was recorded without recording the certificate regarding the competency of the witness and he was thereafter cross examined by counsel for the accused and had replied satisfactorily and given rational answer, therefore, in above circumstances not appending the certificate by the trial judge regarding the competency of the witness is of no consequence and it will not make his statement inadmissible," Justice Mohd. Aslam observed.

13. "Investigation Was Anything But Scientific": Allahabad High Court Acquits Rape-Murder Accused, Sets Aside Death Penalty

Case title - Upendra v. State of U.P.

Case citation: 2022 LiveLaw (AB) 123

The Allahabad High Court rejected the reference made to it to confirm the death penalty awarded to a man accused of Raping and murdering a 75-year-old woman. The Court observed that the investigation in the case had not been up to the mark.

Acquitting the accused, the Bench of Justice Manoj Misra and Justice Sameer Jain noted that in the instant case, blood and other biological material were not collected from the accused of DNA profiling as per the requirement of section 53-A CrPC.

14. Genuineness Of Allegations Can't Be Determined While Summoning Accused, Reiterates Allahabad High Court

Case title - Pankaj Tyagi v. State Of U.P. And Another

Case citation: 2022 LiveLaw (AB) 124

The Allahabad High Court reiterated that Genuineness or otherwise of the allegations cannot be even determined at the stage of summoning the accused.

The Bench of Justice Sanjay Kumar Singh observed thus while dismissing a 482 CrPC Application filed challenging the summoning order of the Magistrate.

15. Maintenance Has To Be Awarded From Date Of Application Not From The Date Of Order: Allahabad High Court

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

Case Citation: 2022 LiveLaw (AB) 125

Referring to the Apex Court's ruling in the case of Rajnesh v. Neha and another, (2021) 2 SCC 324, the Allahabad High Court observed that the maintenance has to be awarded from the date of application and not from the date of the order.

The Bench of Justice Samit Gopal observed thus as it opined that the order of the revisional court in granting maintenance to a lady and her minor children from the date of the order was illegal.

16. Can't Make Political Parties Liable For Failure To Fulfil Promises Made In Election Manifesto: Allahabad High Court

Case title - Khurshidurehman S. Rehman v. State of U P and another

Case Citation:2022 LiveLaw (All) 126

The Allahabad High Court observed that there is no penal provision under any statute to bring the political parties within the clutches of enforcement authorities, in case, they fail to fulfill their promises as made in the election manifesto.

The Bench of Justice Dinesh Pathak further clarified that a political party as a whole can't be made liable under the Representation of Peoples Act, 1951 for adopting corrupt practices of the election.

17. Order U/S 111 CrPC Must Contain Reasons Of Executive Magistrate's Satisfaction: Allahabad High Court

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

Case Citation: 2022 LiveLaw (AB) 127

The Allahabad High Court explained the scope and necessary ingredients of an order drawn under Section 111 of the Code of Criminal Procedure by an Executive Magistrate.

18. Mere Digitally Signing On Notice Contemplated U/S 148 Income Tax Act Won't Amount To Issuance Of Notice: Allahabad High Court

Case Citation: 2022 LiveLaw (AB) 128

The Allahabad High Court has recently held that mere digitally signing the notice as contemplated under Section 148 of the Income Tax Act is not the issuance of notice and that the notice needs to be sent/dispatched to the income tax assessee through paper or electronic devices and when it is so sent, that day would be considered as the date of issuance of notice.

The Bench of Justice Surya Prakash Kesarwani and Justice Jayant Banerji observed thus as it further held that the dispatch of an electronic record occurs when it enters into computer resources outside the control of the originator.

19. "Matter Pertains To National Security": Allahabad HC Denies Bail To Man Accused Of Running Fake Lottery, Sending Money To Pakistan

Case title - Prakash @ Jai Prakash Ruhela v. State of U.P

Case Citation: 2022 LiveLaw (AB) 129

The Allahabad High Court denied bail to a man who has been accused of running a fake lottery to dupe Indian nationals and sending the money to handlers in Pakistan.

The Bench of Justice Krishan Pahal opined that even though the provisions of the Unlawful Activities (Prevention) Act have not been initiated against the bail-applicant, prakash, however, since the matter pertains to national security and therefore, it is not a fit case for bail.

Important Weekly Updates From the High Court/UP courts

1. Lawyer Appears In Court Without Gown, Allahabad High Court Calls It 'Unfortunate'

The Allahabad High Court recently pulled up a Lawyer who appeared in the court without a gown and termed it as 'unfortunate'.

The Bench of Justice Pritinker Diwaker and Justice Ashutosh Srivastava, however, did not refer the matter to the State Bar Council as it noted that he is a 'young' lawyer.

"Shri Sandeep, appeared in the Court without gown, this is unfortunate. However, considering the fact that the Shri Sandeep is a young lawyer, we could have referred the matter to the Bar Council also, but we are not referring the matter at this stage," the Court remarked.

2. Allahabad HC Seeks State Food Safety Commissioner's Personal Affidavit In PIL Seeking Constructive Disposal Of 'Used Cooking Oil'

Case title - Udgamya Seva Samiti Society Registered Under The Provisions Of The Societies Reg.Lko Thru.President v. The Food Safety And Standards Authority Of India New Delhi And Anr

The Allahabad High Court (Lucknow Bench) has directed the Commissioner, Food Safety & Drug Administration (State of UP) to file his personal affidavit in a Public Interest Litigation (PIL) plea praying for setting up a State level Monitoring Committee for formulating a Standard Operating Procedure for collection and utilization of Used Cooking Oil (UCO).

It may be noted that Used Cooking Oil (UCO), are oils and fats that have already been used for cooking or frying and since its chemical composition contains carcinogenic substances (which promotes carcinogenesis, the formation of cancer) that resulted from the frying process, it is advised not to consume the same.

3. Reconsider Ban On Fee Hike In Private Schools: Allahabad High Court Asks Uttar Pradesh Govt

Case Title - Association Of Private Schools Of Up Through Its President Atul Kumar And Another v. State Of U.P. Through Principal Secy. Secondary Education Civil Secy., Lko And Others

The Allahabad High Court asked the Uttar Pradesh Government to reconsider the ban imposed by it on fee hikes in private schools. The Bench of Justice Attau Rahman Masoodi and Justice Narendra Kumar Johari ordered thus on a plea moved by the Association Of Private Schools Of UP.

Essentially, the ban was imposed by the State Govt on Jan 7, 2022 in view of the COVID situation taking note of the fact that schools were closed and people, in general, were facing financial difficulties.

4. Form GST DRC-01A Is A Pre-Show Cause Notice Intimation Which Focuses On Reducing Litigation: Allahabad High Court

Case Title: M/S Nanhey Mal Munna Lal Versus State Of U.P.

The Allahabad High Court, consisting of Justice Surya Prakash Kesarwani and Justice Jayant Banerji, ruled that Form GST DRC-01A is a pre-show cause notice intimation which focuses on reducing litigation.

The petitioner/assessee submitted that before issuing the notice under Section 74(1) of the CGST Act, 2017 on Form GST DRC 01, the statement as required under Rule 142 (1A) of the CGST Rules, 2017 was not submitted by the proper officer to the petitioner. Therefore, on account of the non-compliance with the provisions of Rule 142 (1A) of the CGST Rules, the notice deserves to be quashed.