Allahabad High Court Weekly Round-Up: November 28 To December 4, 2022

Dr. Archana Gupta v. State of U.P. 2022 LiveLaw (AB) 507

Asheem Kumar Das v. Manish Viswas And 4 Others 2022 LiveLaw (AB) 508

Raj Kumar v. State of U.P 2022 LiveLaw (AB) 509

Shipra Hotels Limited And Anther v. State Of U.P. And 3 Others and other connected matters 2022 LiveLaw (AB) 510

Dr. Syed Fareed Haider Rizvi @ Dr. S.F.H. Rizvi v. C.B.I. Thru. S.P./A.C.B. Lko 2022 LiveLaw (AB) 511

Manjeet Yadav v. State Of U.P. Thru. C.B.I 2022 LiveLaw (AB) 512

Umesh Kumar Versus State Of U.P. 2022 LiveLaw (AB) 513

Rahul Agarwal v. State of U.P. Thru. Addl. Chief./Prin. Secy. Deptt. Home, Lko and connected matters 2022 LiveLaw (AB) 514

Ganesh v. State of UP 2022 LiveLaw (AB) 515

Vakeel Quraishi and 2 Ors.v. State of U.P. 2022 LiveLaw (AB) 516

Hari Singh v. Shyam Bihari And 20 Others 2022 LiveLaw (AB) 517

ORDERS/JUDGMENTS OF THE WEEK

Absconder/Proclaimed Offender Not Entitled To Anticipatory Bail: Allahabad High Court

Case title - Dr. Archana Gupta v. State of U.P. [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9023 of 2022]

Case Citation: 2022 LiveLaw (AB) 507

The Allahabad High Court has observed that an absconder/proclaimed offender in terms of Section 82 of the Code of Criminal Procedure 1973 is not entitled to the relief of anticipatory bail.

The bench of Justice Suresh Kumar Gupta observed thus as it rejected the anticipatory bail plea of one Archana Gupta, who has been accused of grabbing a piece of land property of the first informant on the basis of a forged and fictitious sale deed.

"After the filing of the charge-sheet against the applicant, she wilfully absented herself before the trial court and due to this, till today trial against the applicant could not commence. Moreover, it is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail," the bench observed.

Allahabad High Court Expunges Its Remarks On Varanasi District Judge's Conduct Citing His Bona Fide Intent In Passing Orders

Case title - Asheem Kumar Das v. Manish Viswas And 4 Others [MATTERS UNDER ARTICLE 227 No. - 10301 of 2022]

Case Citation: 2022 LiveLaw (AB) 508

The Allahabad High Court on Monday expunged its remarks made against the District Judge of Varanasi, Dr. Ajaya Krishna Vishvesha in its order dated November 21, 2022, in view of his bona fide intent in passing an order (admitting a revision petition without condoning delay under Section 5 of the Limitation Act).

The bench of Justice Ajit Kumar expunged the observations made in the last fourth paragraph of his order dated 21st November 2022 regarding the conduct of District Judge, Varanasi Dr. Vishvesha. The relevant paragraph (now expunged) is reproduced below:

"In the present case, the ordersheet reflects that the District Judge, Varanasi is in the habit of committing impropriety in discharge of his judicial function."

Allahabad High Court Acquits Rape Convict Who Spent 18 Years In Jail With Remission

Case title - Raj Kumar v. State of U.P [CRIMINAL APPEAL No. - 7006 of 2009]

Case Citation: 2022 LiveLaw (AB) 509

The Allahabad High Court acquitted a rape convict languishing in jail for more than 18 years (with remission) as it found that neither the medical evidence nor the statement of prosecution witnesses supported the case against the rape convict.

"Once we analyze the evidence available on record, we find that neither the medical evidence nor the victim or her father in their deposition before the Court have supported the prosecution case. The statement of the victim under Section 164 Cr.P.C., therefore can not be read in isolation so as to form a basis for the conviction of the accused-appellant when the victim herself has not supported her previous stand in her deposition made before the Court," the bench of Justice Ashwani Kumar Mishra and Justice Shiv Shanker Prasad remarked as it disagreed with the judgment and order of the trial court convicting Raj Kumar (appellant).

[S.14 SARFAESI Act] CMM/DM Not Required To Give Notice To Borrower Before Taking Possession Of Secured Asset: Allahabad HC

Case title - Shipra Hotels Limited And Anther v. State Of U.P. And 3 Others and other connected matters

Case Citation: 2022 LiveLaw (AB) 510

The Allahabad High Court has ruled that the Chief Metropolitan Magistrate or District Magistrate acting under Section 14 of the SARFAESI Act, 2002 is not required to give notice to the borrower at the stage of the decision or passing order pertaining to taking possession of the secured asset.

The bench of Justice Sunita Agarwal and Justice Vipin Chandra Dixit observed that since the proceedings before the CMM/ DM under Section 14 of the Act are ministerial in nature, therefore, no opportunity for a hearing is required to be given to the borrower at this stage.

[S. 19 PC Act] No Sanction Needed To Prosecute Public Servant If CBI Probed Case Upon Constitutional Court's Order: Allahabad HC

Case title - Dr. Syed Fareed Haider Rizvi @ Dr. S.F.H. Rizvi v. C.B.I. Thru. S.P./A.C.B. Lko [APPLICATION U/S 482 No. - 8292 of 2018]

Case Citation: 2022 LiveLaw (AB) 511

The Allahabad High Court has held that when a Constitutional Court entrusts an investigation in a case to CBI and the role of a public servant emerges as an accused for committing such an offence, no prior sanction under Section 19 PC Act would be required for prosecuting such a public servant.

In other words, the bench of Justice Dinesh Kumar Singh has observed that if the CBI has probed a matter upon a direction of the High Court or Supreme Court, and has filed a charge sheet against a government/public servant, then there is no requirement to obtain sanction under Section 19 of the Prevention of Corruption Act from the competent authority for prosecuting such a government/public servant (serving or retired).

2013 DSP Jiya-Ul-Haq Murder Case: Allahabad High Court Grants Bail To Accused Who Spent 9 Years In Jail

Case title - Manjeet Yadav v. State Of U.P. Thru. C.B.I [CRIMINAL MISC. BAIL APPLICATION No. - 5796 of 2021]

Case Citation: 2022 LiveLaw (AB) 512

The Allahabad High Court granted bail to one Manjeet Yadav, who is an accused in the 2013 Deputy Superintendent Of Police Zia-ul Haq Murder Case in view of his long incarceration of 9 years in jail.

Essentially, Manjeet Yadav had moved to the High Court with the instant bail plea on the ground that he has been in jail for more than nine years from the date of his arrest, the prosecution has concluded the evidence of its witnesses and now, the defence witnesses are being examined.

Revocation of GST Registration Can't Be Rejected Solely For Delay In Moving Revocation Application: Allahabad High Court

Case Title: Umesh Kumar Versus State Of U.P. [Writ Tax No. - 648 of 2021]

Citation: 2022 LiveLaw (AB) 513

The Allahabad High Court has held that the rejection of registration solely on the ground of delay in moving the revocation application is not sustainable in law when the entire tax is deposited.

The single bench of Justice Rohit Ranjan Agarwal has observed that once the department has accepted the return and there are no outstanding dues, the department should not obstruct the business of an assessee.

Levana Suites Fire | Allahabad High Court Grants Bail To Owners, Manager Of Hotel

Case title - Rahul Agarwal v. State of U.P. Thru. Addl. Chief./Prin. Secy. Deptt. Home, Lko and connected matters

Case Citation: 2022 LiveLaw (AB) 514

The Allahabad High Court on Monday granted bail to a manager and two owners/partners of the Hotel Levana Suites (in Lucknow), where a major fire incident took place on September 5 resulting in the killing of 4 people and leaving 7 others injured.

The bench of Justice Dinesh Kumar Singh granted bail to owners Rahul Agrawal and Rohit Agrawal and manager Sagar Srivastava by observing thus:

"There may have been some infraction of regulatory requirements to run a hotel, but that would not amount that the accused-applicants have been negligent or they failed to take due care of their guests or they had knowledge of fire accident, which would result in death/injuries to the guests."

Allahabad High Court Grants Bail To Man Accused Of Killing Wife As She Couldn't Prepare Food For Him

Case title - Ganesh v. State of UP [CRIMINAL MISC. BAIL APPLICATION No. ­ 3162 of 2021]

Case Citation: 2022 LiveLaw (AB) 515

The Allahabad High Court granted to a man who has been accused of killing his wife as she could not prepare food due to the non-availability of vegetables.

Taking into account the dying declaration of the deceased, the bench of Justice Shekhar Kumar Yadav noted that there was no premeditation for the applicant--husband to commit the offence as alleged against him.

"Perusal of the dying declaration of the deceased clearly shows that on the date of the alleged incident i.e. on 25.07.2013 at noon, when the deceased could not prepare the food due to the non-availability of vegetables for which her husband lost his temper and started beating and poured kerosene oil upon her and burned. It means that there was no premeditation for the applicant to commit such offence as alleged against him.

Murder Convict Can't Be Sentenced To Punishment Less Than Life Imprisonment: Allahabad High Court

Case title - Vakeel Quraishi and 2 Ors.v. State of U.P. [CRIMINAL APPEAL No. - 4041 of 2018]

Case Citation: 2022 LiveLaw (AB) 516

There cannot be any sentence/punishment less than imprisonment for life if an accused is convicted of murder offence under Section 302 of the Indian Penal Code, the Allahabad High Court observed in a judgment delivered recently.

The Court observed thus while relying upon the ruling of the Apex Court in the case of State of Madhya Pradesh vs Nandu @ Nandua 2022 LiveLaw (SC) 732, wherein it was ruled that any punishment less than the imprisonment for life for the offence punishable under Section 302 would be contrary to Section 302 IPC.

"Judge Is An Easy Target": Allahabad High Court Dismisses Transfer Plea Alleging Judicial Bias, Imposes ₹10K Costs

Case title - Hari Singh v. Shyam Bihari And 20 Others [TRANSFER APPLICATION (CIVIL) No. - 810 of 2022]

Case Citation: 2022 LiveLaw (AB) 517

"...the citizens from all walks of life have developed an outlook, where they think that a Judge is an easy target and that they can malign the Judges' reputation, alleging anything against them, particularly, the Presiding Officers in subordinate Courts," the Allahabad High Court recently remarked as it dismissed a transfer application and imposed Rs. 10K Costs on the petitioner.

Dismissing the plea, the bench of Justice J. J. Munir further remarked that the impact of such transfer applications, if entertained and the Presiding Officer asked to put in his comments, may demoralize the subordinate judiciary.

Updates from the High Court

Allahabad HC Orders Personal Presence Of UP Bar Council Chairman To Explain Steps Proposed To Prevent Strikes By Lawyers

Case title - Suraj Pasi v. State of U.P [CRIMINAL MISC. BAIL APPLICATION No. - 14553 of 2022]

The Allahabad High Court has sought the personal presence of the Chairman of the Bar Council of Uttar Pradesh to explain the steps which are proposed to be taken by the Council to prevent frequent Lawyers' Strikes in the future and the action to be taken in such cases.

The bench of Justice Ajay Bhanot ordered thus while dealing with a bail plea filed by one Suraj Pasi and after noting that the trial in the matter could not proceed on a number of occasions as the counsels were on strike.

Allahabad High Court Reserves Order On Gyanvapi Masjid Committee's Challenge To ASI Survey Ordered By Varanasi Court

The hearing in the ongoing matter before the Allahabad High Court in connection with the Kashi Vishwanath temple-Gyanvapi mosque dispute got completed yesterday and now, the Court has reserved its order in the matter.

The bench of Justice Prakash Padia has reserved its verdict in a plea moved by the Anjuman Masjid Committee (which manages the GYANVAPI MOSQUE) challenging an order of the Varanasi Court to conduct an archaeological survey of the Kashi Vishwanath Temple-Gyanvapi Mosque complex to determine whether a Hindu temple was partially razed to build the Gyanvapi mosque in the 17th century.

Allahabad High Court Summons State's Chief Secretary Over Appearance Of State Counsels Without Any Brief

The Allahabad High Court has directed the Uttar Pradesh Chief Secretary Durga Shankar Mishra to appear before the Court personally over the appearance of state counsels before the court without any brief.

The bench of Chief Justice Rajesh Bindal and Justice J. J. Munir ordered thus while hearing a special appeal filed by Manish Srivastava and others.

Essentially, when the matter came up before the Court, and no state counsel appeared in the case, the Court called the state counsel and inquired as to whether any state counsel was appearing in the matter. The state counsel informed the court that he did not have a brief of the case.

Gyanvapi | "Need 3 Months' Time To Report On Method To Determine 'Shiva Linga' Age Sans Causing Any Damage": ASI To Allahabad HC

The Archaeological Survey of India (ASI) submitted before the Allahabad High Court that it needs a 3 months' time to report on the feasibility of carrying out any kind of investigation to determine the age of the alleged 'Shiva Linga' found inside the Gyanvapi Mosque premises without causing any damage to it.

This submission was made before the bench of Justice J. J. Munir which is currently hearing a plea challenging the Varanasi Court's October 14 order rejecting Hindu worshippers' plea for conducting a scientific probe of the 'Shiva Linga', reportedly found inside Gyanvapi Mosque premises (on May 16).