Allahabad High Court Weekly Round-Up: June 12 To June 18

Bata India Limited & Anr. vs U.P. State Micro and Small Enterprise Facilitation Council & Anr. 2023 LiveLaw (AB) 185

Moti Lal Yadav vs. State Of U.P. Thru. Addl. Chief Secy./Prin. Secy. Deptt. Home, Lucknow And 3 Others 2023 LiveLaw (AB) 186

Pankaj Khare vs. Union Of India Thru. Secy. Deptt. Of Custom And Cgst, Ministry Of Finance, New Delhi And Others 2023 LiveLaw (AB) 187

Fakre Alam @ Shozil vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 188

Sudhir Kumar vs. Union Of India And 4 Others 2023 LiveLaw (AB) 189

Jay Kant Bajpai @ Jay vs. State of U.P. 2023 LiveLaw (AB) 190

Karuna Shanker and another vs. State of U.P. 2023 LiveLaw (AB) 191

Mohd. Aarif Alias Aarif vs. State Of U.P. Thru. Prin. Secy. Home, Lko. And Another 2023 LiveLaw (AB) 192

Dr R.B. Lal And 7 Others vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 193

Sachin Chaudhary vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 194

Dr. Kartikeya Sharma And 2 Others vs. State of U.P. and Another 2023 LiveLaw (AB) 195

ORDERS/JUDGMENTS OF THE MONTH

Facilitation Council Which Was The Conciliator Under MSMED Act, Can Arbitrate The Dispute; Bar Contained In S. 80 Of Arbitration Act Not Applicable: Allahabad High Court

Case Title: Bata India Limited & Anr. vs U.P. State Micro and Small Enterprise Facilitation Council & Anr.

Case Citation: 2023 LiveLaw (AB) 185

The Allahabad High Court has ruled that the discretion given to Facilitation Council under Section 18(3) of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act) in respect of selection of forum for arbitration between the parties, is absolute and has overriding effect over any other law. In exercise of the said discretion, the provisions of the Arbitration and Conciliation Act, 1996 (A&C Act), including the prohibition contained in Section 80, will have no application, the court has ruled. Therefore, the court held that in the event the conciliation proceedings carried out by the Council under Section 18(2) of the MSMED Act fail, the Council can itself proceed to arbitrate the dispute between the parties.

Gangster Sanjeev 'Jeeva' Murder| Entry Of Accused In Court Premises In Lawyer's Uniform ‘Concerning’: Allahabad HC Refuses To Transfer Probe To CBI

Case title - Moti Lal Yadav vs. State Of U.P. Thru. Addl. Chief Secy./Prin. Secy. Deptt. Home, Lucknow And 3 Others 2023 LiveLaw (AB) 186 [PUBLIC INTEREST LITIGATION (PIL) No. - 572 of 2023]

Case Citation: 2023 LiveLaw (AB) 186

The Allahabad High Court on Monday refused to transfer the probe into the daylight killing of 48-year-old alleged Gangster Sanjeev Maheshwari (alias Jeeva) inside the Lucknow Court premises on June 7, to the Central Bureau of Investigation (CBI).

The bench of Justice Devendra Kumar Upadhyaya and Justice Jaspreet Singh said that only six days have elapsed since the lodging of the FIR in the matter and the constitution of the Special Investigation Team (SIT) and in such a short span of time, it is not possible to draw an inference that the probe will not proceed appropriately and in the right direction.

“In such a short span of time, it will not be possible for the Court to draw any inference in respect of the functioning of the Special Investigation Team (S.I.T.) and the investigation being conducted by it. Besides, having regard to the higher rank of the members of the Special Investigation Team (S.I.T.) which they occupy, we, at this juncture, also do not have any reason to believe that the investigation shall not proceed in the right perspective,” the Court said as it expressed a hope that the SIT shall be conducted in the appropriate direction with the expedition.

'Refrain From Issuing Service Tax /GST Notices To Lawyers Rendering Legal Services': Allahabad HC Directs Lucknow GST Commissionerate

Case title - Pankaj Khare vs. Union Of India Thru. Secy. Deptt. Of Custom And Cgst, Ministry Of Finance, New Delhi And Others [WRIT TAX No. - 148 of 2023]

Case Citation: 2023 LiveLaw (AB) 187

The Allahabad High Court has ordered the Commissioner, GST to issue clear direction to the GST Commissionerate in Lucknow that no notices regarding payment of service tax /GST are issued to the lawyers rendering legal service falling in the negative list so far as service tax is concerned.

The bench of Justice Alok Mathur and Justice Jyotsna Sharma directed thus while hearing a writ plea filed by an Advocate Pankaj Khare challenging a May 2023 order passed by Dy. Commissioner, CGST & Central Excise Div. Lucknow 1 thereby assessing him with regard to service tax and levying tax and interest of over Rs. 33 lakhs.

Allahabad High Court Quashes 'False' POCSO Case Against Man As Victim Says Her Mother Filed FIR To Extract Money From Him

Case title - Fakre Alam @ Shozil vs. State Of U.P. And 3 Others [APPLICATION U/S 482 No. - 41580 of 2022]

Case Citation: 2023 LiveLaw (AB) 188

The Allahabad High Court quashed a rape and POCSO case against an accused after the victim stated that he had not committed any sexual offence against her and her mother filed the false case just to extract five lakh rupees from the accused, who is now her husband.

The bench of Justice Arun Kumar Singh Deshwal also noted that the victim was admittedly above 18 years of age and hence, no case under POCSO Act was made out against the accused.

The Court also observed that as per the medical examination, no injury was found on the victim, and no opinion about sexual assault was given against the victim, and despite this, the police filed a charge sheet in a routine manner without looking into the material collected during the investigation.

In view of this, the Court opined that the proceedings under POCSO Act as well as u/s 376 IPC could be quashed if no case is made out from the material available on record. Consequently, the Court quashed the entire proceedings of Case u/s 363, 366, 376(2N), 506 I.P.C. and 6 POCSO Act against the accused.

Allahabad HC Puts Interim Stay On Broadcast Of Al Jazeera's Documentary 'India: Who Lit The Fuse' In India In View Of Probable 'Evil Consequences'

Case title - Sudhir Kumar vs. Union Of India And 4 Others [PUBLIC INTEREST LITIGATION (PIL) No. - 1407 of 2023]

Case Citation: 2023 LiveLaw (AB) 189

The Allahabad High Court restrained (for now) Al Jazeera Media Network Private Ltd. from telecasting/broadcasting/releasing the Film "India....Who lit the Fuse?" in India in view of ‘evil consequences’ that are likely to occur if the telecast/broadcast of the film is allowed to take place.

The bench of Justice Ashwani Kumar Mishra and Justice Ashutosh Srivastava also directed the Central Government and the Ministry of Information and Broadcasting to take appropriate measures to ensure that the film is not allowed to be telecast/broadcast unless its contents are examined by the authorities, and necessary certification/authorisation is obtained from the competent authority.

‘He Was Actively Involved In The Kanpur Bikru Massacre’: Allahabad HC Denies Bail To Man Accused Of Assisting Slain Gangster Vikas Dubey

Case title - Jay Kant Bajpai @ Jay vs. State of U.P. 2023 LiveLaw (AB) 190 [CRIMINAL MISC. BAIL APPLICATION No. - 30712 of 2021]

Case Citation: 2023 LiveLaw (AB) 190

The Allahabad High Court rejected the bail application filed by Jai Kant Bajpai alias Jai involved in the 2020 Kanpur Bikru Encounter, in which eight policemen were brutally murdered and seven other police personnel received grievous injuries at the hands of a gang of people led by slain gangster Vikas Dubey.

The bench of Justice Mayank Kumar Jain observed that Bajpai was actively involved in the incident and he actually assisted Dubey by providing him with Rs. 2 lakh and 25 cartridges to be used in the incident and further, provided vehicles to him to enable him to escape after committing one of the most heinous crimes.

Mere Non-Recovery Of Weapon Can't Demolish Prosecution's Case: Allahabad HC Confirms Life Term Of Two In A 41 Year Old Murder Case

Case title - Karuna Shanker and another vs. State of U.P. 2023 LiveLaw (AB) 191 [CRIMINAL APPEAL No. - 267 of 1983]

Case Citation: 2023 LiveLaw (AB) 191

Observing that mere non-recovery of the weapon cannot demolish the case of the prosecution, the Allahabad High Court recently upheld the order of conviction and sentence of life imprisonment awarded by the trial court to two murder convicts in a 41-year-old case.

The bench of Justice Attau Rahman Masoodi and Justice Saroj Yadav further observed that other accused involved in the crime remain untraced, it cannot be presumed that the whole incident is false

The bench concluded that the eyewitnesses in the case could prove the case of the prosecution beyond all reasonable doubt and that there was no reason to doubt the testimony of eyewitnesses.

“Hence it is well established from the evidence on record that murder of the deceased was committed by the convicts/appellants namely Karuna Shankar and Rajkishore in association with two unknown miscreants,” the Court said as it upheld their conviction and sentence of life imprisonment.

Special POCSO Court Can Treat Application Filed U/S 156 (3) CrPC As A Complaint Case U/S 190 (1) (a) CrPC: Allahabad High Court

Case title - Mohd. Aarif Alias Aarif vs. State Of U.P. Thru. Prin. Secy. Home, Lko. And Another 2023 LiveLaw (AB) 192 [APPLICATION U/S 482 No. - 3922 of 2023]

Case Citation: 2023 LiveLaw (AB) 192

The Allahabad High Court observed that a Special POCSO Court can treat an application filed under Section 156 (3) CrPC as a complaint case under Section 190 (1) (a) CrPC.

The bench of Justice Suresh Kumar Gupta observed thus:

“Concludingly, I am of the view that the trial court has ample power to treat the application under Section 156 (3) CrPC as a complaint case, therefore, in the POCSO Act proceedings of complaint case can be launched, as in this regard a statutory provision under Section 33 of the POCSO Act already exists. As per Section 33 of the POCSO Act, a Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts. Thus, on the perusal of the entire provisions of the POCSO Act, it appears that there is no bar for prosecution and cognizance in the matter related to the complaint under Section 190 (1) (a) CrPC”

The Court held thus while refusing to quash a summoning order issued against the Accused as well as proceedings in a POCSO Case pending before the Additional Sessions Judge/Special Judge (POCSO Act) Bahraich.

Prima Facie S. 3 & 5 Of UP's 'Anti Conversion' Law Aren't Glaringly Unconstitutional: Allahabad HC Denies Relief To 'SHUATS' VC

Case title - Dr R.B. Lal And 7 Others vs. State Of U.P. And 3 Others [CRIMINAL MISC. WRIT PETITION No. - 1634 of 2023]

Case Citation: 2023 LiveLaw (AB) 193

The Allahabad High Court recently refused to grant any relief to the VC of Allahabad's Sam Higginbottom University of Agriculture, Technology and Sciences (SHUATS), Dr Rajendra Bihari Lal and 7 others, in an FIR filed against them over the allegation of offering allurement to a man to convert to Christianity.

The bench of Justice Anjani Kumar Mishra and Justice Gajendra Kumar also said that prima facie, Sections 3 & 5 of the UP Prohibition of Unlawful Conversion of Religion Act, 2021 do not appear to be glaringly unconstitutional or ex facie unconstitutional.

Perusing the February 2023 FIR lodged in the case, the bench observed that the same contains direct allegations of allurement having been offered by Dr. Lal and 7 others to the first informant and, therefore, the Court added, such allegations, prima facie, constitute an offence under Section 3 of the Act.

Allahabad High Court Refuses To Quash FIR Against Congress Leader Over Alleged 'Modi-Adani Love Affair' Remark

Case title - Sachin Chaudhary vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 194 [CRIMINAL MISC. WRIT PETITION No. - 6138 of 2023]

Case Citation: 2023 LiveLaw (AB) 194

The Allahabad High Court refused to quash an FIR filed against the Secretary of UP Youth Congress, Sachin Chaudhary over his alleged remark pertaining to the 'love affair' between the Prime Minister of India Narendra Modi and Industrialist, founder and chairman of Adani Group, Gautam Adani.

The bench of Justice Anjani Kumar Mishra and Justice Nand Prabha Shukla observed that the offence alleged in the FIR would definitely fall within the ambit of Section 153-A and Section 505(2) of IPC which are cognizable offence and hence, the FIR, cannot be quashed.

Essentially, the FIR in the matter was lodged at the instance of Bharatiya Janata Party's youth wing leader Akshit Agarwal, who alleged that Chaudhary, in a press conference organised in Sambhal, used derogatory words against the Prime Minister by stating that he had a love affair/homosexual relation with (Gautam) Adani.

Can’t Reject Anticipatory Bail Plea On The Grounds That Chargesheet Is Filed Or Court Has Taken Cognizance Of Offence: Allahabad HC

Case title - Dr. Kartikeya Sharma And 2 Others vs. State of U.P. and Another [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3107 of 2023]

Case Citation: 2023 LiveLaw (AB) 195

The Allahabad High Court observed that an anticipatory bail application moved by an accused can never be rejected on the ground that now a charge sheet has been filed in the matter or that the court concerned has taken cognizance of the offence.

Stressing that anticipatory bail can be granted at any time so long as the applicant has not been arrested, the bench of Justice Nalin Kumar Srivastava also observed thus:

“…even if the chargesheet is filed and cognizance is taken by the court against the accused, who has got an immunity from being arrested during the course of investigation either by way of order of a competent court protecting him by grant of anticipatory bail or by service of notice under Section 41-A Cr.P.C. by the Investigating Officer, anticipatory bail application moved by him is legally maintainable…”