Allahabad High Court Weekly Round Up: March 7 To March 13, 2022

NOMINAL INDEX

Madhav Singh v. State of U.P. and Another 2022 LiveLaw (AB) 94

Mohammad Niyaz v. State of U.P. 2022 LiveLaw (AB) 95

Shankar Varik @ Vikram v. Union of India 2022 LiveLaw (AB) 96

Monu Thakur v. State of U.P. 2022 LiveLaw (AB) 97

Ram Harsh v. Union of India and 4 Others 2022 LiveLaw (AB) 98

Smt. Maya v. State Of U.P. Thru. Prin. Secy. Medical Health And Ors 2022 LiveLaw (AB) 99

M/S V.K. Traders v. Union Of India And 3 Others 2022 LiveLaw (AB) 100

Durgawati Singh and others v. Deputy Registrar, Firms, Societies & Chits Lucknow and others 2022 LiveLaw (AB) 101

Avneesh Kumar And 2 Others v. Union Of India And 4 Others 2022 LiveLaw (AB) 102

Smt. Sharma Devi v. State Of U.P. Through Its Additional Chief Secretary, Food And Civil Supply Lko And Ors 2022 LiveLaw (AB) 103

Bharat Mint And Allied Chemicals v. Commissioner Commercial Tax And 2 Others 2022 LiveLaw (AB) 104

Mohammad Azam Khan v. The State Of U.P. Thru. Prin. Secy. Addl. Chief Secy. Home Lko. 2022 LiveLaw (AB) 105

State of U. P. v. Brijesh and another 2022 LiveLaw (AB) 106

Jatinder Pal Singh vs M/S Statcon Power Controls Ltd 2022 LiveLaw (AB) 107

Mohammad Azam Khan v. State Of U.P. Thru Prin. Secy. Home And Anr. 2022 LiveLaw (AB) 108

Shiv Kumar Bahadur Singh v. State Of U.P. Thru. Prin. Secy.Dairy Development And Others 2022 LiveLaw (AB) 109

Bhura v. State of U.P. 2022 LiveLaw (AB) 110

Judgments/Orders of the Week

1. Magistrate Has Duty To Ensure Fair Probe After Passing Order U/S 156 (3) CrPC: Allahabad High Court

Case title - Madhav Singh v. State of U.P. and Another

Case Citation:2022 LiveLaw (AB) 94

The High Court observed that the Magistrate cannot wash his hands of the case after passing an order under Section 156 (3) Cr.P.C and that it is the duty of the Magistrate to ensure that investigation is done impartially and in a fair manner.

The Bench of Justice Umesh Kumar observed thus while referring to the Supreme Court's ruling in the case of Sakiri Vasu Vs. State of U.P. & others, 2008 (60) ACC 689, wherein the Apex Court held thus:

"...there is an implied power in the Magistrate under Section 156 (3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer-in-charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same."

2. Allahabad High Court Grants Bail To Man Accused Of Posting Pakistan's Flag, Writing 'I Love You Pakistan' On FB

Case title - Mohammad Niyaz v. State of U.P.

Case Citation:2022 LiveLaw (AB) 95

The High Court granted bail to a man who has been booked under Sedition Charges (Sedition 124-A IPC) as he allegedly supported and posted Flag of Pakistan on his Facebook I.D. and thereby tried to create any social disturbance in the country.

Having heard the counsel of the petitioner/Mohammad Niyaz, the Bench of Justice Om Prakash Tripathi, without expressing any view on the merits of the case, was of the opinion that it was a fit case for bail, hence, the bail application was allowed.

3. Evidence Of Public Officer Can't Be Disbelieved Merely Because He Is A Police Officer: Allahabad High Court Denies Bail In NDPS Case

Case Title: Shankar Varik @ Vikram v. Union of India

Citation: 2022 LiveLaw (AB) 96

"Evidence of a public officer cannot be thrown only on the ground that he is a police officer," the High Court held while denying bail to an accused allegedly involved in a case pertaining to recover of 1,025 kg ganja.

Justice Shekhar Kumar Yadav discarded the argument that the arresting officials did not comply with the mandatory provisions of search and seizure under the Narcotic Drugs and Psychotropic Substances Act.

4. "No Worthwhile Evidence To Prove Charges": Allahabad HC Acquits Minor's Rape-Murder Accused, Sets Aside Death Sentence

Case title - Monu Thakur v. State of U.P.

Case Citation: 2022 LiveLaw (AB) 97

The High Court rejected the reference made to it to confirm the death penalty awarded to a man accused of burning a 14-year-old girl alive after committing rape upon her.

Acquitting the accused of Rape and Murder charges, the Bench of Justice Manoj Misra and Justice Sameer Jain noted that that there was no worth-while evidence on record to prove the charges against the accused-appellant.

5. Armed Forces Tribunal Act Cannot Curtail High Court's Power Of Judicial Review U/A 226: Allahabad High Court

Case Title: Ram Harsh v. Union of India and 4 Others

Citation: 2022 LiveLaw (AB) 98

The High Court made it clear that the Armed Forces Tribunal Act, 2007 cannot and does not oust the High Court's power of judicial review contained under Article 226 of the Constitution.

"The jurisdiction under Article 226 of the Constitution of India is extraordinary and discretionary in nature. It is also to be noted that the powers to be exercised by the High Court under Articles 226 and 227 are constitutional powers and the same cannot be excluded by legislation. The Armed Forces Tribunal Act cannot curtail the powers under the grundnorm being the constitution," a Bench of Justice Anjani Kumar Mishra and Justice Vikram D. Chauhan observed.

6. No Class-IV Employee Should Normally Be Transferred Out Of District: Allahabad High Court

Case Title - Smt. Maya v. State Of U.P. Thru. Prin. Secy. Medical Health And Ors

Case Citation: 2022 LiveLaw (AB) 99

The High Court observed that no Class-IV employee should normally be transferred out of the district. The Bench of Justice Vivek Chaudhary made this observation while setting aside a transfer order passed against a Class IV Employee as it noted that the same was punitive in nature.

Essentially, the petitioner Smt. Maya (a Class IV Employee) was transferred by State Medical Health Department from Lucknow to Kanpur by transfer order dated July 12, 2021, on administrative grounds, however, the officer responsible for her transfer did not give any reason whatsoever for transferring her.

7. Anticipatory Bail Plea Not Maintainable In Case Of A Bailable Offence: Allahabad High Court

Case title - M/S V.K. Traders v. Union Of India And 3 Others

Case citation: 2022 LiveLaw (AB) 100

The High Court held that an application for grant of Anticipatory bail under Section 438 Cr.P.C. is not maintainable in case of an offence that has been declared by the concerned statute as a bailable offence.

The Bench of Justice Samit Gopal further clarified that anticipatory bail does not arise for an offence that is bailable and a direction for the same can be issued only in respect of non-bailable and cognizable offences.

8. Court May Refuse Relief For Breach Of Principles Of Natural Justice Where No 'Real Prejudice' Is Caused To Affected Party: Allahabad HC Reiterates

Case Title: Durgawati Singh and others v. Deputy Registrar, Firms, Societies & Chits Lucknow and others

Citation: 2022 LiveLaw (AB) 101

The High Court, sitting in Lucknow, reiterated that a Court, in exercise of its discretion, may refuse relief in a case where there has been a breach of principles of natural justice, if it is of the opinion that no "real prejudice" is caused to the affected party.

"Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused," the bench comprising Chief Justice Rajesh Bindal and Justice Jaspreet Singh reiterated.

9. "Consider Candidature If Religious Tattoos Are Removed": Allahabad HC Directs Centre, Grants Relief To SSB Exam Candidates

Case title - Avneesh Kumar And 2 Others v. Union Of India And 4 Others

Case citation:2022 LiveLaw (AB) 102

In a relief to 3 candidates who participated in the 2018 Sashastra Seema Bal (SSB) recruitment process but were denied employment on account of certain tattoos on a certain part of their hands (forearm), the High Court directed the Central Government to consider their candidature if they remove their tattoos.

The Bench of Justice Siddhartha Varma directed the Centre and the SSB that if the petitioners' tattoos are removed then that particular disability may not be considered as an obstacle for selection on the ministerial posts for which the petitioners had applied.

10. Daughter-In-Law Eligible For Allotment Of Fair Price Shop On Compassionate Grounds: Allahabad High Court

Case title - Smt. Sharma Devi v. State Of U.P. Through Its Additional Chief Secretary, Food And Civil Supply Lko And Ors

Case citation: 2022 LiveLaw (AB) 103

The High Court held that a daughter-in-law is very well entitled to allotment of a fair price shop on compassionate grounds.

The Bench of Justice Manish Mathur relied upon an earlier judgment of the High Court wherein it was held that a widowed daughter-in-law is eligible for allotment of a fair price shop on compassionate grounds.

Essentially, the Court was dealing with a writ plea filed by one Sharma Devi whose application for allotment of fair price shop on the compassionate ground had been rejected by the Government authority on the ground that she does not come within the definition of 'family' as described in paragraph IV(10) of the Government Order dated 5th August, 2019.

11. "Follow Natural Justice Principles Contemplated U/S 75(4) CGST/ UPGST Act": Allahabad HC Directs UP Assessing Authorities

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

Case Citation: 2022 LiveLaw (AB) 104

The High Court has directed the Proper Officers/Assessing Authorities in the State of Uttar Pradesh to follow the principles of natural justice as 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 had moved the Court after an assessment order was passed against it creating a demand of tax.

12. Allahabad High Court Grants Bail To MP Azam Khan In Case Over His Alleged Remarks Against RSS, BJP

Case title - Mohammad Azam Khan v. The State Of U.P. Thru. Prin. Secy. Addl. Chief Secy. Home Lko.

Case Citation:2022 LiveLaw (AB) 105

The High Court granted bail to the Senior Samajwadi Party leader and a Member Of Parliament, Azam Khan in connection with a case registered against him for allegedly making derogatory statements against BJP, RSS by way of misusing his official letterhead and seal as a UP Minister.

Noting that Khan has been in jail since February 2020, a charge-sheet has been submitted against him and the trial Court has taken cognizance of it, the Bench of Justice Ramesh Sinha was of the view that his continued custody isn't necessary for the purpose of further investigation and trial in the instant case and therefore, he was granted bail.

13. "No Evidence That Accused Administred Poison To Deceased": Allahabad HC Upholds Trial Court's Acquittal Order In Murder Case

Case title - State of U. P. v. Brijesh and another

Case citation:2022 LiveLaw (AB) 106

The High Court upheld an acquittal order of a trial court in a murder case after concluding that there was not sufficient evidence to prove that the accused persons had committed the murder of the deceased by administering poison to him.

With this, the Bench of Justice Vivek Kumar Birla and Justice Subhash Vidyarthi rejected the application filed by the State Government seeking leave to file an appeal against the acquittal order. The appeal was also dismissed summarily at the admission stage.

14. Director Can't Be Prosecuted U/S 138 NI Act When He Is Not Involved In Day To Day Affairs Of The Company: Allahabad High Court

Case Title : Jatinder Pal Singh vs M/S Statcon Power Controls Ltd

Citation:2022 LiveLaw (AB) 107

The High Court has held that a director, who is not involved in the day to day affairs of a company, cannot be prosecuted for the offence under section 138 (Dishonour of cheque for insufficiency, etc., of funds in the account) of the Negotiable Instruments Act, 1881.

'It is clear from the perusal of the complaint that there is no specific averment that applicant is involved in day-to-day affairs of the company. There is only general allegation that applicant is a Director of the company. The documents filed by the applicant establishes that the applicant was a nominee Director and who has now resigned. Considering the aforesaid facts and the law propounded on the point it is clear that in absence of specific allegations about the applicant he can not be prosecuted for any offence under section 138 N.I. Act," Justice Syed Aftab Husain Rizvi held.

15. Allahabad High Court Grants Bail To MP Mohammad Azam Khan In UP Jal Nigam Recruitment Scam Case

Case title - Mohammad Azam Khan v. State Of U.P. Thru Prin. Secy. Home And Anr.

Case Citation:2022 LiveLaw (AB) 108

The High Court granted bail to Senior Samajwadi Party leader and a Member Of Parliament, Mohammad Azam Khan in a case registered against him in connection with the 2016 Uttar Pradesh Jal Nigam recruitment scam.

The Bench of Justice Ramesh Sinha noted that the State had failed to point out any clinching evidence from the charge sheet against Khan, which could show that he actively participated in the recruitment process in the U.P. Jal Nigam.

16. Precarious Financial Condition No Ground To Delay Pensionary Benefits To Superannuated Govt Employee: Allahabad HC

Case Title : Shiv Kumar Bahadur Singh v. State Of U.P. Thru. Prin. Secy.Dairy Development And Others

Citation:2022 LiveLaw (AB) 109

The High Court observed that the Precarious financial condition of a corporation can not be a ground to delay payment of pensionary benefits that are due to superannuated employees.

The Bench of Justice Irshad Ali made this observation on a plea filed by one Shiv Kumar Bahadur Singh who sought direction upon the Government authorities to make payment of him a full amount of gratuity to along with interest in view of the amended provisions of Section 4 of Payment of Gratuity Act, 1972.

17. Allahabad High Court Modifies Sentence Of Life Imprisonment Awarded To 32-Yr-Old Rape Convict To RI Of 13 Years

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

Case citation: 2022 LiveLaw (AB) 110

The High Court modified the sentence of Life Imprisonment awarded to a 32-Year-Old Rape convict to Rigorous Imprisonment for 13 years, which the convict has already served out.

The Bench of Justice Suneet Kumar and Justice Om Prakash Tripathi ordered thus while observing that at the time of the incident, the prosecutrix was about 14 years and the convict was a 19-year-old, married man. The Court also noted that the prosecutrix married later on and is leading a peaceful married life.

Important Weekly Updates From the High Court/UP courts

1. Allahabad High Court Issues Notice On PIL Seeking ₹5K Financial Support/ Stipend For Junior Lawyers Upto 3 Yrs Of Practice

Case title - Ashish Kumar Singh (In Person) v. U.O.I Thru. Secy. Ministry Of Law And Justice New Delhi And Ors

The High Court (Lucknow Bench) issued notice on a Public Interest Litigation (PIL) plea seeking stipend for Junior Lawyers who are having initial practice up to 3 years

The Bench of Justice Devendra Kumar Upadhyaya and Justice Mohd. Faiz Alam Khan has issued notices to U.O.I, UP Bar Council and others.

The PIL has been moved by the petitioner-in-person Ashish Kumar Singh who has averred in the plea that the UP State Government had announced in the month of April of 2020 that a monthly stipend of Rs.5000/- would be paid to the junior Lawyers/Advocates, however, the announcement has not been implemented.

2. Nithari Killings: After Allahabad HC's Nudge, CBI Files Autopsy Reports In Accused Surendra Koli's Appeal Against Death Penalty

Case title - Surendra Koli v. State Thru C.B.I.

Days after the High Court slammed the Central Bureau of Investigation (CBI) for its failure to produce the post mortem reports of the victims of the Nithari case (also known as the 2006 Noida Serial Murders case), the CBI submitted the copies of the post-mortem reports before the HC.

The CBI has submitted the Post mortem reports in pursuance of the HC's previous order wherein the Bench of Justice Manoj Misra and Justice Sameer Jain, while hearing an appeal filed by accused Surinder Koli against his conviction and sentence of the death penalty, had asked the CBI to file autopsy reports of the victims.

3. UPSC Aspirant Who Missed Civil Services Mains Exam Due To COVID Moves Allahabad High Court For Extra Chance

Case Title: Abhinav Mishra v. Union Of India Thru. Secy. Dept. Of Personnel And Training New Delhi And Another

A Civil Services aspirant, who couldn't appear for a few papers of the Union Public Service Commission's (UPSC) Civil Services Main Examination 2021 due to COVID-19, has approached the High Court seeking an additional chance to write the remaining papers.

Hearing the matter on Wednesday, the Bench of Justice Vivek Chaudhary deferred the hearing to March 30, 2022, as it sought details of an SLP pending before the Supreme Court for the same cause of action.

4. Allahabad HC Restores Lawyer's Plea Seeking Recognition Of Mathura's Idgah Mosque Site As Krishna Janam Bhoomi

Case title - Mehek Maheshwari v. Union of India and others

The High Court restored a plea filed by a Lawyer, Mahek Maheshwari, seeking recognition of Mathura's Shahi Idgah Mosque site as Krishna Janam Bhoomi. This plea was earlier dismissed in default on January 19, 2021, on account of absence of the petitioner, who appears in person in the matter.

The Bench of Chief Justice Rajesh Bindal and Justice Prakash Padia restored the plea as it noted that the application for restoration was filed immediately after it was dismissed in default.

5. Allahabad HC Grants Relief To Flipkart In A Case Over Sale Of Products In Violation Of Copyright Act

Case title - M/S Flipkart Internet Private Limited v. State Of U.P. And 2 Others

In relief to Flipkart Internet Private Limited and its officials, the Allahabad High Court issued an order to stay any coercive against the company officials till the next date of hearing in a case related to the sale of counterfeit products on the company's website.

The bench of Justice Ashwani Kumar Mishra and Justice Rajnish Kumar also issued notices to State of Uttar Pradesh and other respondents and asked them to file a counter affidavit in the matter within six weeks.

6. Allahabad High Court Allows Jailed Man To Appear In LL.B Semester Exam Under Police Custody

Case title - Anjani Kumar Shukla v. State Of U.P Thru. Prin. Secy. Home And 4 Others

The High Court allowed a jailed man to appear for his LL.B Ist Semester exam under police custody. The bench of Justice Attau Rahman Masoodi and Justice Narendra Kumar Johari directed that the man be brought to the examination center for his participation therein and re-lodged in jail after the examination is over.

Essentially, Anjani Kumar Shukla (who is presently in jail/petitioner) is a student of LL.B Ist Semester enrolled in Rajendra Singh(Rajju Bhaiya) University, Prayagraj, U.P. and he approached the Court seeking permission to appear in his LLB Semester examination.