Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., held that the Magistrate is denuded of his power to pass any order under Sections 451, 452 and 457 CrPC for release of a vehicle seized for alleged violation of provisions of the U.P. Prevention of Cow Slaughter Act.

Instant application was filed under Section 482 of the Code of Criminal Procedure, 1973 to set aside the decision of Additional Sessions Judge passed in case under Sections 3/5-A/8 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 and Section 11 of the Prevention of Cruelty to Animal Act, 1960.

An FIR was lodged under the above-stated sections, the vehicle stated to be carrying the animals was seized under Section 5-A of the PCSA and the applicant who claimed to be the owner of the vehicle in question, filed an application before the court of ACJM-I, Ballia, seeking release of the vehicle, which was rejected.

Analysis, Law and Decision

The Uttar Pradesh Prevention of Cow Slaughter Act, 1955 is an Act to prevent the slaughter of cows and their progeny in the State of Uttar Pradesh.

Section 5-A of the PCSA would indicate that the transportation of cow, etc., is regulated in terms thereof. Sub-section (1) of Section 5-A contains a clear prohibition on transportation of any cow or bull or bullock, the slaughter whereof in any place in Uttar Pradesh is punishable under the Act, from any place within the State to any place outside the State, except under a permit to be issued by an officer authorised by the State Government in this behalf by notified order and except in accordance with the terms and conditions of such permit. Sub-section (4) mandates that the form of permit, the form of application therefor and the procedure for disposal of such application shall be such as may be prescribed.

Confiscation and Seizure

PCSA is a “local law” within the meaning of Section 5 of the Code and in view thereof, the general provisions contained under Sections 451 of the Code with regard to custody and disposal of the property pending trial or the power for making an order for disposal of property at the conclusion of trial under Section 452 or the procedure under Section 457 would therefore, be subject to the powers exercisable under Section 5-A of the PCSA which makes a special provision with regard to confiscation and seizure of the vehicle used for transport in contravention of the provisions of the Act.

Bench held that the vehicle in question having been confiscated and seized in exercise of powers under Section 5-A of the PCSA, which was in the nature of a special Act and a local law under Section 5 of the Code, the same would clearly have the effect of denuding the magistrate his power to pass any order under Sections 451, 452 and 457 of the Code for release of the vehicle seized for alleged violation of the provisions of the Act.

Therefore, the application under Section 482 of the Code was dismissed. [Yas Mohammad v. State of U.P., 2021 SCC OnLine All 608, decided on 2-09-2021]


Advocates before the Court:

Counsel for Applicant:- Ramesh Kumar Chaurasia

Counsel for Opposite Party:- G.A.

Appointments & TransfersNews

Reiteration of earlier recommendation for elevation of 3 Judicial Officers as Judges


Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendation for the elevation of the following Judicial Officers as Judges in the Allahabad High Court:

1. Shri Om Prakash Tripathi,

2. Shri Umesh Chandra Sharma, and

3. Shri Syed Waiz Mian.


Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

Elevation of 13 Advocates as Judges in Allahabad HC


Supreme Court Collegium has approved the proposal for elevation of the following Advocates as Judges in the Allahabad High Court:

1. Shri Chandra Kumar Rai,

2. Shri Shishir Jain,

3. Shri Krishan Pahal,

4. Shri Sameer Jain,

5. Shri Ashutosh Srivastava,

6. Shri Subhash Vidyarthi,

7. Shri Brij Raj Singh,

8. Shri Shree Prakash Singh,

9. Shri Vikas Budhwar,

10. Shri Vikram D. Chauhan,

11. Shri Rishad Murtaza,

12. Shri Dhruv Mathur, and

13. Shri Vimlendu Tripathi.


Collegium Resolution

[Statement dt. 1-09-2021]

Case BriefsHigh Courts

Allahabad High Court: Chandra Dhari Singh, J., expressed that,

Merely because the litigation has reached a revisional stage or that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that a revisional stage, the nature of offence punishable under Section 138 NI Act should be treated as if the same is falling under table-II of Section 320 IPC.

Petitioner and OP 2 had a business relationship during the course of business and had issued two cheques in favour of OP 2 and when he had deposited, the cheques were bounced due to insufficient funds.

OP 2 had filed a complaint case under Section 138 Negotiable Instruments Act, 1881. Trial Court had convicted the petitioner and further on being aggrieved the petitioner had preferred a criminal appeal.

Question for consideration

Whether an order passed by the High Court in the criminal revision petition confirming the conviction can be nullified by the High Court in a petition filed under Section 482 CrPC noticing subsequent compromise of the case by the contesting parties?

Analysis, Law and Decision

High Court stated that it is well stated that inherent powers under Section 482 CrPC can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute.

Inherent powers under Section 482 of CrPC include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case.

 In the Supreme Court decision of Krishan v. Krishnaveni, (1997) 4 SCC 241, the Court held that though the inherent power of the High Court is very wide, yet the same must be exercised sparingly and cautiously particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may in its discretion prevent the abuse of process or miscarriage of justice by exercising jurisdiction under Section 482 of the Code.

Bench opined that it is not in agreement that when the adjudication of a criminal offence has reached the state of revisional level, there cannot be any compromise without permission of the Court in all cases including the offence punishable under Negotiable Instruments Act, 1881.

Section 147 of NI Act begins with a non obstante clause and such clause is being used in a provision to communicate that the provision shall prevail despite anything to the contrary in any other or different legal provisions. So, in light of the compass provided, a dispute in the nature of complaint under section 138 of N.I. Act, can be settled by way of compromise irrespective of any other legislation including CrPC in general and Section 320 (1)(2) or (6) of the CrPC in particular. The scheme of Section 320 CrPC deals mainly with procedural aspects; but it simultaneously crystallizes certain enforceable rights and obligation.

Further, it is well settled that the operation or effect of a general Act may be curtailed by a special Act even if a general Act contains a non-obstante clause. But here is not a case where the language of Section 320 CrPC would come in the way of recording the compromise or in compounding the offence punishable under Section 138 of the N.I. Act.

In the present matter, the problem was with the tendency of litigants to belatedly choose compounding to resolve their dispute.

Section 147 NI Act does not carry any guidance on how to proceed with compounding of offences under the Act.

 Hence the Court held that offence under Section 138 NI Act read with Section 147 are at liberty to compound the matter at any stage.

“…when both the parties have invoked the jurisdiction of this Court and there is no bar on exercise of powers and the inherent powers of this court can always be invoked for imparting justice and bringing a quietus to the issue between the parties.”

Concluding the matter, High Court allowed the present petition under Section 482 CrPC is allowed in terms of the compromise arrived at between the parties to this litigation out of court. [Rishi Mohan Srivastava v. State of U.P., 2021 SCC OnLine All 532, decided on 13-08-2021]


Counsel for Applicant:- Naved Ali, Sandeep Yadav

Counsel for Opposite Party:- G.A., Pawan Bhaskar

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J. while addressing a bail application of an accused expressed that,

“A criminal conspiracy is generally hatched in secrecy, and it is difficult to obtain direct evidence.”

Instant bail application was filed to seek bail in a case filed under Sections 302, 201, 120-B and 34 of the Penal Code, 1860 during the pendency of the trial.

Factual Matrix 

Complainant who was the friend of the deceased lodged the FIR against the co-accused Shamshad (husband of present applicant Aysha Khatoon) for the offence under Section 364 of Penal Code, 1860 to the effect that the co-accused who was a Muslim by caste and already married had lured and masquerade the deceased 5 years ago and solemnized second marriage with her.

Thereafter, the deceased and her daughter started residing with him.

Deceased had informed the complainant about the torture and harassment along with the threat that co-accused used to subject her to due to her being aware of the first marriage of the co-accused.

Co-accused had confessed his guilt before the police wherein he confessed that the deceased resided with him under a live-in relationship, and he used to bear all the expenses of both the deceased.

Further, he added that co-accused-Shamshad also stated that the deceased was a very high ambitious lady and also spend a lot of money and was leading a luxurious life and when he tried to stop her from doing so, she started squabbling with him.

On an intervening night, the deceased started quarreling with co-accused and demanded money, then he strangulated the victim to death and also killed her daughter (second deceased) by putting the pillow on her face.

The co-accused even confessed that the dead bodies of both the deceased were hidden by him on the floor of the L.E.D room of his house. Police recovered the skeleton and other parts of the bodies in a decomposed condition.

Analysis, Law and Decision

 High Court noted the fact that it was a brutal and heinous double murder case, in which a helpless mother, who blindly trusted upon the co-accused, Shamshad and living with him for the last 5 years and her little daughter had been flagitiously killed and their dead bodies had been hid by the co-accused Shamshad with the help of his brother-in-law in the floor of the room.

“Deceased would never have imagined that the place where they lived would become their graveyard.”

Bench noted the fact that the dead bodies of both the deceased had been buried by the co-accused to destroy the evidence.

Further, the High Court asserted that it is well settled that a man may tell a lie, but circumstances do not.

Hence, in view of the above background, the innocence of the applicant could not be adjudged at the pre-trial stage.

Therefore, while rejecting the bail application, Bench concluded stating that,

 “…trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led uninfluenced by anything expressed in this order.”[Aysha Khatoon v. State of U.P., 2021 SCC OnLine All 548, decided on 16-08-2021]


Advocates before the Court:

Counsel for Applicant:- Yogendra Pal Singh, Avnish Kumar Srivastava

Counsel for Opposite Party:- G.A.

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J., expressed that,

“Little girls are worshiped in our country, but the cases of pedophilia are increasing.”

 In the present application, applicant who was involved in a Case under Sections 323, 376(2)(1), 452 and 506 Penal Code, 1860, and Sections 3,4 of Protection of Children from Sexual Offences Act, sought enlargement on bail during the pendency of trial.

Informant had lodged FIR against the applicant alleging that victim who was aged 13 years was residing with her and was alone in the house for doing some house-hold work and all the family members had gone to agricultural field for cutting fodder.

Taking the advantage of the situation, applicant forcibly entered into the house of the informant and threatening to kill the victim, she was dragged inside the room by grabbing her hair, and forcibly committed rape upon the victim.

Suddenly the informant, her son and one Magan came to the house and knocked on the door, but when they entered the house, they saw the victim lying unconscious in a naked condition and the applicant tried to flee away by climbing the wall but was caught. When the victim gained consciousness, she narrated the whole incident and thereafter, police was informed.

Analysis, Law and Decision

High Court found that the applicant already had a criminal history.

In the opinion of the doctor, who conducted the medical examination of the victim, sign of violence was seen and sexual violence could not be ruled out.

“The offence of committing rape upon a minor child is heinous in nature.”

 In the Supreme Court decision of Neeru Yadav v. State of U.P., (2016) 15 SCC 422, criminal antecedents of the accused cannot be ignored while dealing bail application, discretionary powers of Courts to grant bail must be exercised in a judicious manner in case of a habitual offender. The said judgment was followed in a recent Supreme Court decision in Sudha Singh v. State of U.P., (2021) 4 SCC 781.

Bench observed that in the present matter, a small innocent girl has been raped, who does not understand its meaning.

Victim in the instant case, suffers from psychological effects of embarrassment, disgust, depression, guilt and even suicidal tendencies. Many cases go unreported.

The victim/female small child experience sexual abuse once tend to be more vulnerable to abuse in adult life. Healing is slow and systematic. In such a situation, if the right decision is not taken from the Court at the right time, then the trust of a victim/common man will not be left in the judicial system. This is the time to strictly stop this kind of crime. 

In view of the above background, bail was rejected. [Jasman Singh v. State of U.P., Criminal Misc Bail Application No. 1665 of 2021, decided on 17-08-2021]


Advocates before the Court:

Counsel for the Applicant: Bhagwan Das

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Allahabad High Court: Yogendra Kumar Srivastava, J., dismissed the petition and rejected the issuance of writ of habeas corpus by a husband seeking production of his wife.

The facts of the case are such that petitioner 2, wife of petitioner 1, left her matrimonial home sometime in the month of June, 2019 on account of some serious differences with her husband (Petitioner 1) and an application for restitution of conjugal rights was filed by the Petitioner 1 which stands pending before the court of the Principal Judge, Family Court, Saharanpur.

Counsel for petitioners Mr Avinash Pandey submitted that sometime in the month of November, 2020 information was received by him suggesting that petitioner 2 was being detained at her parental home

Counsel for State submitted that petitioner 2 (wife) left her matrimonial home sometime in the month of June, 2019 on account of serious differences with her husband (petitioner 1), it is not a case of illegal and a writ of habeas corpus would not be entertainable.

The Court relied on Mohammad Ikram Hussain v. State of U.P., 1964 AIR 1625 and Kanu Sanyal v. District Magistrate Darjeeling (1973) 2 SCC 674 wherein it was observed that the writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause.

The Court further observed that the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.

The Court held “the petitioner no. 2 having left her matrimonial home on her own on account of a matrimonial discord, the present petition seeking a writ of habeas corpus at the behest of the petitioner no. 1 (husband) would not be entertainable.”[Mohd Ahmad v. State of UP, 2021 SCC OnLine All 542, decided on 05-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Ajit Singh, J., rejected the bail application observing that the incident involves the rape of a minor and family is threatened to convert their religion. 

The present petition was filed seeking enlargement on bail during the trial as the petitioner was charged under sections 452/376/120-B IPC, and Sections 3/4, 17/18 POCSO Act and Section 3/5(1) U.P. Prohibition of Unlawful Conversion of Religion Act 2020 and 66 E Information Technology (Amendment) Act.

The factual matrix involves that the present accused had entered into the house of the complainant and forcibly raped the minor daughter of the complainant when she was alone at her house. It was also alleged in the F.I.R. that present accused has made a video clip of the victim and was pressurizing her for establishing physical relation again and when complainant asked the father of the present accused to get the video clip deleted, then the father of the present accused said when your entire family will convert the religion then my son will marry to your daughter else I will marry her.

The Court observed and held that “considering the seriousness of the matter and minor daughter was raped and entire family was asked to convert their religion, without expressing any opinion on the merits of this case, this court does not deems it fit to release the applicant on bail.”[Abdul Rahman v. State of U.P., Criminal Misc. Bail Application No. – 21091 of 2021, decided on 05-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

Counsel for Applicant: – Mr Qaisar Kamal Ansari

Counsel for Opposite Party: – Mr Kamal Kumar and Mr Om Singh Rathaur

Case BriefsHigh Courts

Allahabad High Court: Yogendra Kumar Srivastava, J. dismissed the petition and declined to entertain the present application in exercise of its inherent jurisdiction under Section 482 CrPC.

The instant application was filed under Section 482 Criminal Procedure Code seeking to quash the proceedings of Complaint Case No.10 of 2019 under Section 500 IPC, pending before Additional Chief Judicial Magistrate, Court. The present application also assails a summon order dated 18-01-2020.

Counsel for the applicant Mr Birendra Prasad Shukla submitted that the offence under Section 499 IPC is not made out inasmuch as the case is covered under the first exception to the section which provides that if the imputation is made for the public good, the same would not amount to defamation.

Counsel for the opposite party submitted that the question as to whether imputation is made for public good or not would be a question of fact which is to be seen in the trial and the same cannot be taken as a ground to seek quashing of the proceedings.

The Court observed that Section 499 of the Penal Code states as to when an act of imputation amounts to defamation. It contains four explanations and ten exceptions and section 500 prescribes punishment in such cases. The ten exceptions to Section 499 state the instances in which an imputation, prima facie defamatory, may be excused. The first exception corresponds to the defence which may be set up by taking the plea of the imputation being true and for public good. This exception recognizes the publication of truth as a sufficient justification, if it is made for the public good. Truth by itself would be no justification in criminal law, unless it is proved that its publication was for the public good.

The Court relied on Chaman Lal v. State of Punjab, (1970) 1 SCC 590 and observed that while considering the plea of defence of public good, under the first exception to Section 499, it was held that public good is a question of fact and the onus of proving the two ingredients under the first exception i.e. the imputation is true and the publication is for public good, is on the accused.

The Court observed that defamation is both a crime and a civil wrong. In a civil action for defamation in tort, truth is a defence, but in a criminal action, the accused would be required to prove both the truth of the matter and also that its publication was for public good and no amount of truth would justify a defamatory act unless its publication is proved to have been made for public good. It further observed that the benefit of the first exception to Section 499 IPC being a question of fact, can be decided during trial only and cannot be claimed at the stage of issuance of summons.

The Court held “The protection of the first exception to Section 499 of the Penal Code, which is being relied upon on behalf of the applicant, is not to be seen at this stage.”[Rajesh Churiwala v. State of U.P, 2021 SCC OnLine All 501, decided on 14-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Ramesh Sinha and Rajeev Singh, JJ., upheld the capital punishment of a man who murdered his wife and four minor daughters.

Appellant was charged for offence punishable under Section 302 of Penal Code, 1860.

Aggrieved by conviction and sentence, the accused preferred a Criminal Appeal from Jail. Also, the trial court made a reference for confirmation of the death sentence awarded to the accused.

Instant case was based on circumstantial evidence and the appellant had been convicted and sentenced to death by the trial Court for murdering his wife and children vide impugned judgment.

In respect to convict the person in a case of circumstantial evidence, the Supreme Court in the celebrated case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 3 SCC 116, laid down the conditions to be fulfilled before a case against an accused can be said to be fully established.

Hence, while dealing with circumstantial evidence, the onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea.

In a case of circumstantial evidence, conditions precedent before conviction could be placed on circumstantial evidence, must be fully established such as:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ”must’ or ”should’ and not ”may be’ established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

In the present case, as is apparent from the evidence on record that there appears to be a motive for the appellant to commit the murder of his wife Sangeeta along with her children, which is established from the evidence of PW2-Chatra Pal Raidas, who is the real brother of deceased Sangeeta. PW2, in his deposition before the trial Court, stated that his sister Sangeeta, who used to come to his house and stayed there for about 1-2 months, had made a complaint to him about the illicit relationship of the appellant with Manju; Manju had become pregnant from the appellant; and the appellant wanted to marry with Manju, which was objected by his sister Sangeeta; and the appellant was adamant to marry with Manju, on account of which, the appellant committed the murder of his wife deceased Sangeeta along with four minor children, who was living along with the appellant in his house. P.W.2-Chatra Pal Raidas further stated that when Sangeeta had come to his house, she told about the aforesaid fact. He also stated, in his evidence, that ten days prior to the incident, the deceased Sangeeta had come to his house and in the presence of his neighbours, namely, Chailbihari and Balgovind, had also disclosed about the illicit relationship of the appellant with Manju. Thus, the motive to commit the murder of the deceased Sangeeta along with her children stood proved from the evidence of PW2 and there is no reason for him to depose falsely against the appellant.

It would also be pertinent to mention that another motive of the appellant to commit the murder of his wife and his children, as has been apparent from the evidence of P.W.1 and P.W.2, that the appellant, on taking advantage of the murder of his wife and children, wanted to get compensation from the State Government as earlier also the appellant had taken the compensation for the murder of his real brother Siyaram, which was paid by the State Government to the tune of Rs 4-5 Lakhs, and which was, in fact, given to the daughter of deceased Siyaram, namely, Gudiya but he managed to take the said compensation from Gudiya, who died on account of illness.

Prosecution proved beyond doubt that the appellant had a motive to commit the murder of his wife and his 4 minor children.

Bench stated that it would be apt to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.

The principles that come out are as follows:

  • The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution;
  • It should be made voluntarily and should be truthful;
  • It should inspire confidence;
  • An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence;
  • For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and
  • Such statement essentially has to be proved like any other fact and in accordance with law.

Bench stated that the accused had strong motive to commit the murder of his wife at the time of the incident, the appellant and the five deceased were the only occupants in the house, in which they were living together; after the arrest of the appellant at his pointing out the weapon of murder and his blood stained clothes were recovered which he had concealed; soon after the incident, the appellant made an extra judicial confession before PW3 and PW 4 admitting his guilt.

From the totality of circumstances and entire evidence on record, it was proved that no one else but the appellant alone committed the murder of his wife and four minor daughters.

Hence, trial court’s order was upheld.

‘Death Sentence’ awarded under Section 302 of IPC

It is true that capital punishment has been the subject-matter of great social and judicial discussion and catechism.

The ratio laid down by the Supreme Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC 470 continue to serve as the foundation-stone of contemporary sentencing jurisprudence though they have been expounded or distinguished for the purpose of commuting death sentence, mostly in the cases of

  • conviction based on circumstantial evidence alone;
  • failure of the prosecution to discharge its onus re: reformation;
  • a case of residual doubts;
  • where the other peculiar ”mitigating circumstances outweighed the ”aggravating circumstances.

In the instant case, the accused/convict Ramanand has committed the murder of his wife and four minor innocent daughters aged about 7 years, 5 years, 3 years and the youngest one aged about one and a half month. It transpires from the evidence on record that the criminal act of the accused/convict was actuated to pave a way to marry one lady, namely, Manju, who was already married. It was the deceased Sangeeta (wife of the appellant), who opposed his marriage with Manju but the accused/convict was adamant to marry with Manju at any cost and in order to marry with Manju, accused/convict murdered not only murder his own wife but also his own four innocent minor daughters aged between one and half month to eight years in a most brutal and barbaric manner without their no-fault and without any rhyme or reason. Before murdering the deceased, the accused/convict had also chopped off various parts of their bodies and inflicted severe incised wounds as is evident from the post-mortem report.

Further, the Court added that the special reasons assigned by the trial Court for awarding extreme penalty of death were that the murder was horrifying as the accused-appellant was in a dominant position; victim was helpless being children aged about 7, 5, 3 years and the youngest one was just one and a half-month-old and the murder was premeditated and pre-planned one with a motive and committed in a cruel, grotesque and diabolical manner. The accused is a menace to the Society and, therefore, imposition of lesser sentence than that of death sentence, would not be adequate and appropriate.

Hence, the Court agreed with trial court and the instant case rightly falls in the category of ‘rarest of rare case’ warranting capital punishment.

Bench confirmed the appellant’ sentence under Section 302 IPC.[State of U.P. v. Ramanand, 2021 SCC OnLine All 451, decided on 9-07-2021]


Advocates before the Court:

Counsel for Appellant: – Govt. Advocate, Amicus Curaie, Rajesh Kumar Dwivedi

Counsel for Appellant: – Jail Appeal, Rajesh Kumar Dwivedi

Counsel for Respondent : – Govt. Advocate

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Anjani Kumar Mishra and Shekhar Kumar Yadav, JJ., expressed on what constitutes as ‘Gang’ under Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986

Petitioner sought to quash an FIR that gave rise to a case under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

Order passed by District Magistrate granting approval to the Gang Chart – Annexure 5 to the writ petition was also sought to be quashed.

The submission was made that the facts alleged in the FIR do not make out any violence, threat or show of violence intimidation, coercion etc. which would amount to disturbing public order. No temporal, pecuniary, material or other advantage having been procured by the petitioner, was alleged in the criminal cases lodged against him. Therefore, the requirements of Section 2(b) & 2(b) (viii) of the Act were not made out.

From the allegations made in the FIR, it appears that the petitioner was intervening in a dispute between the first informant and the other accused, pertaining to an electricity connection.

Senior Advocate, V.P. Srivastava was on the words “with object of disturbing public order” used in Section 2(b) of the Act, which defines a Gang.

(b) “Gang” means a group of persons, who acting either singly or collectively, by violence or threat or show of violence, or intimidation, or coercion, or otherwise, with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage of himself of any other person, indulge in anti-social activities”.

 Bench dismissed the petitioner’s contention that to constitute a Gang, the member of the Gang should be operating only with the object of disturbing public order.

To the above, Court added that the definition of “Gang” no doubt includes within its ambit acts of violence or threat, or show of violence, carried out with the object of disturbing public order. However, this is just the first part of the definition. The second part, which starts with the word ‘or of gaining any as of undue temporal, pecuniary, material or other advantage of himself of any other person, indulge in anti-social activities.

High Court opined that the definition of a Gang is in two parts, and both are mutually exclusive. Each one of the two parts by itself would be enough to bring a case within the ambit of the term Gang.

Further, the Court added that,

Section 2(b) provides that a group of person, singly or collectively would constitute a gang in either of the two conditions below-

(i) by violence, or thereat or show of violence or intimidation or coercion, or otherwise try to disturb public order,

OR

(ii) by violence or threat or show of violence or intimidation or coercion or otherwise try to obtain undue temporal, pecuniary, material or other advantages for himself or any other person.

Hence, in the present matter, the contention that the impugned FIR deserves to be quashed as it does not fall within the purview of the definition of a ‘Gang’ in Section 2(b) of the Act cannot be accepted.

Adding to the above, Court stated that the allegations were that the petitioner interfered in a private dispute between the two parties, with which, he prima facie had no connection. It is, therefore, clearly a case of coercion, intimidation and use of force against a person, who is alleged to have refused to provide electricity to his neighbour, who is stated to be a friend of the petitioner.

Concluding the matter, Court held that no ground for quashing of impugned FIR existed.

In view of the above petition was dismissed. [Pramod Singh v. State of U.P., 2021 SCC OnLine All 480, decided on 16-7-2021]


Advocates before the Court:

Counsel for Petitioner:- Ashish Mishra, Arun Kumar Mishra

Counsel for Respondent:- G.A.

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., refused to exercise and inherent powers under Section 482 CrPC to quash a complaint filed under Section 138 of the Negotiable Instruments Act for dishonour of cheque.

Instant application was filed to quash the proceeding of a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881.

In the present matter, a proposal for OTS was submitted by Chairperson with an application to the Chief Manager, Bank of India. The said proposal was accepted by the applicants.

Further, it was stated that a resolution was passed giving 4 Cheques. Letter for renewal of OTS by giving 4 new Cheques were submitted before Zonal Manager for Rs 100 lacs was allegedly given.

Union Bank of India issued a return memo with the remark ‘Funds Insufficient’. Legal notice due to dishonor of cheque was issued.

A complaint under Section 138 NI At was also filed by the Bank of India and Chief Manager’s statement was recorded under Section 200 CrPC.

Court opined that it is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein.

In, State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, it was held that an F.I.R. or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, but the High Court has not recorded such a finding, obviously because on the allegation in the F.I.R. it was not possible to do so. Therefore, it must be held that the High Court has committed a gross error of law in quashing the F.I.R. and the complaint.

Bench stated that it is only an afterthought that non-bailable warrants were issued that the applicants approached this Court, they did not appear before the lower court nor challenge the summoning order.

High Court held that prima facie ingredients of the offence were made out.

High Court should be loath in exercise of jurisdiction under Section 482 of Code to enter into the process of determining the veracity of complaint.

Powers vested in High Court under Section 482 CrPC have far-reaching consequences, most important being the consequence that it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence and therefore, the exercise of the said powers should be with the utmost caution, care and circumspection.

In Court’s view, the present matter is one which cannot be said to be one where extraordinary power is required to be exercised.

“…application is devoid of merits and is dismissed with exemplary costs of Rs. 50,000/- to be deposited with the Legal Service Authority which can be utilized for the patients of Covid-19 as officers of such institutions after falling to appear before the Court below have come up with this challenge which is a belated challenge.”

Bench added that two proceedings cannot simultaneously be proceeded. Further, the Court stated that the liabilities were prima facie there and hence cannot be said that the issuance of summons was bad.

Hence, the amount of cheque and contours of Section 138 of N.I. Act, cannot be said to have been prima facie not made out.

Accused may appear before the lower court and the Court may consider the applications for cancellation of non-bailable warrants.

In view of the above discussion, application was dismissed with exemplary costs of Rs 50,000.[Shiksha Educational Trust v. State of U.P., 2021 SCC OnLine All 450, decided on 2-07-2021] 

Case BriefsHigh Courts

Allahabad High Court: Division Bench of Manoj Kumar Gupta and Syed Aftab Husain Rizvi, JJ.,  while addressing a matter declined to hear the same on noting that the petitioner’s counsel was addressing the Court while riding a scooter.

High Court remarked that,

He should be careful in future even if the hearing is to take place through video conferencing.

Matter to be put up as fresh on 12-07-2021. [Khusboo Devi v. State of U.P., 2021 SCC OnLine All 443, decided on 25-6-2021]


Advocates before the Court:

Counsel for Petitioner:- Amar Singh Kashyap Counsel for Respondent:- C.S.C.,C.S.C.

Appointments & TransfersNews

Appointment of Acting Chief Justice of Allahabad High Court

President appoints Shri Justice Munishwar Nath Bhandari, senior-most Judge of the Allahabad High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from 26-06-2021 consequent upon the retirement of Shri Justice Sanjay Yadav, Chief Justice, Allahabad High Court.


Ministry of Law and Justice

Notification dt. 22-06-2021

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Dinesh Pathak, JJ., held that it is not against the live-in relationship.

Petitioners preferred the present petition stating that they wanted to have a live-in relationship.

During the pendency of the present petition, the above-stated couple converted their live-in relationship to marriage.

Petitioners apprehended that they would be harassed and would not be permitted to live in peace by private respondents.

High Court held that:

We are not against live in relationship.

Bench stated that the petitioners were of marriageable age and wanted to live in relation, subsequently, they married each other. Court referred to the following Supreme Court decisions:

Hence, in view of the above observations petition was partly allowed. [Chhaya v. State of U.P., 2021 SCC OnLine All 429, decided on 18-06-2021]


Advocates before the Court:

Counsel for Petitioner:- Kuldeep Singh Chahar, Nitin Kumar

Counsel for Respondent :- C.S.C

Case BriefsHigh Courts

Allahabad High Court: Vivek Varma, J., refused to quash a complaint case filed under Section 138 NI Act and directed the trial court to expedite the hearing.

Instant application was filed to quash the proceedings of a Complaint Case under Section 138 of Negotiable Instruments Act, 1881pending in the Court of Metropolitan Magistrate.

Applicant’s Counsel submitted that the cheque in question was not issued against any existing debt or liability and the date of service of notice was not disclosed in the complaint. It was added that until the date of service of notice is not disclosed, the cause of action to initiate the prosecution under Section 138 NI Act will not arise.

Though the AGA appearing for the State submitted that the disclosure of the date of service of notice is not mandatory. The said is a matter of evidence and can be seen during the trial.

Analysis, Law and Decision

Bench first referred to Section 138 of NI Act and further, the decision of Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 wherein presumption under Section 144 of the Evidence Act and Section 27 of the General Clauses Act was enunciated.

The above case was followed in the Supreme Court decision of Ajeet Seeds Limited v. K. Gopala Krishnaiah, (2014) 12 SCC 685, wherein it was held that the absence of averments in the complaint about service of notice upon the accused is the matter of evidence.

High Court in view of the above settled legal position stated that the complaint cannot be thrown at the threshold even if it does not make a specific averment with regard to the service of notice on the drawer on a given date.

Though the Bench added that the complaint must contain basic facts regarding the mode and manner of issuance of notice to the drawer of the cheque.

“…factum of disputed service of notice requires adjudication on the basis of evidence. The same can only be done and appreciated by the trial court and not by this Court under the jurisdiction conferred by Section 482 Cr.P.C.”

Burden of proving that the cheque was issued for debt or liability will also be upon the applicant and can be gone into by the Trial Court.

Pre-trial cannot be held before the actual trial begins. At the stage of summoning, the Magistrate has only to see whether a prime facie case is made out or not.

Therefore, in view of the Supreme court decision and the reasons stated above, the present application was dismissed.

The complaint case had been pending since 2007 and the as per Negotiable Instruments Act the proceedings under Section 138 NI Act ought to be concluded within 6 months, hence Court directed the lower court to expedite the hearing. [Ganesh Babu Gupta v. State of U.P.,  2021 SCC OnLine All 420, decided on 7-06-2021]

Appointments & TransfersNews

Appointment of Chief Justice of Allahabad High Court

President appoints Shri Sanjay Yadav, Judge of the Allahabad High Court, to be the Chief Justice of the Allahabad High Court with effect from the date he assumes charge of his office.

Background

Shri Justice Sanjay Yadav, M.A., LL.B, was enrolled as an Advocate on 25-08-1986. He practiced at Jabalpur for 20 years in Civil, Constitutional, Labour and Service matters and has specialized in Labour and Service matters. He worked as Government Advocate from March 1999 to October 2005. He was Deputy Advocate General with effect from October 2005. He was appointed as an Additional Judge of the Madhya Pradesh High Court on March 2, 2007, and as a Permanent Judge on January 15, 2010. Later, he was transferred to Allahabad High Court. He was appointed as Acting Chief Justice of Allahabad High Court w.e.f. 14-4-2021.


Ministry of Law and Justice

[Notification dt. 10-06-2021]

Case BriefsHigh Courts

Allahabad High Court: Saurabh Shyam Shamsheri, J., held that satisfaction under Section 19(4)(b) of the Gangs Act is a mandatory requirement for bail.

The instant bail application was presented by the accused for crime under Sections 2/3 of Uttar Pradesh Gangs and Anti-Social Action Activities (Prevention) Act, 1986 [Gang Band Act].

Main function of the gang is committing heinous crime by spreading fear and terror in public for their material benefit against whom no one of the public is ready to report and testify. A number of lawsuits have been registered against them at various police stations. Hence it is absolutely necessary to take action against the gang to control anti-social activities.

Bail

The principle of law is that “bail is the rule and jail is the exception”. Bail can neither be accepted or rejected by any mechanical order, as it not only relates to freedom of the person against whom criminal proceedings are going on, but this punishment is also related to the interest of justice system and also ensure that those who commit crimes are not given the opportunity to obstruct justice.

Bench noted that applicant was a habitual criminal who used to commit same type of crime.

As per Sections 2 (b) and (c) of the “Gangs Act”, the applicant is also a member of a gang which is single or collectively anti-social who commits punishable offenses under Chapter 16 or Chapter 17 or Chapter 22 of the Penal Code, 1860.

Court stated that the crime committed by the applicant was punishable under Chapter 17 of the IPC.

High Court held that applicant had a detailed criminal history and there is no dilemma in reaching the conclusion that he is a habitual criminal.  Therefore, there is no reasonable basis for this Court to be resolved that the applicant is not likely to commit any offense while on bail.

“…the Gang Act is a specific act, in which special provisions related to grant of bail have been made, which are described in section 19 (4) (b). Bail cannot be granted under this Act without complying with those provisions. The Act also clarifies that this provision is in addition to the terms of the grant of bail under the Penal Code, and as previously analyzed the method of bail in which certain persons are allowed while granting or disallowing bail.” 

While concluding, Court held that before granting bail under the Act, two conditions which need to be resolved are absent in the instant case.

Hence, the present bail application was cancelled. [Sabir Khan v. State of U.P., 2021 SCC OnLine All 411, decided on 21-05-2021]

Case BriefsCOVID 19High Courts

Allahabad High Court: The Division Bench of Sunita Agarwal and Sadhna Rani (Thakur), JJ., addressed a matter wherein it was alleged that there is ongoing Black Marketing of Oxygen in Ghaziabad.

Diversion of Oxygen Cylinders

Public Interest Litigation consisted of the allegations filed by a sitting M.L.A with regard to the diversion of oxygen allocated for District Ghaziabad and the resultant death of people in Loni Constituency and Ghaziabad District on account of the shortage of oxygen cylinders.

The allegations were primarily of the involvement of respondent 6 who was posted as Additional District Magistrate in the matter of diversion of oxygen cylinders.

Due to the inaction of Senior Superintendent of Police, Ghaziabad in the present matter, the petitioner has approached the Court.

What the Petitioner seeks?

Petitioner seeks a high-level inquiry regarding the matter of diversion of oxygen cylinders from District Ghaziabad to Delhi and the State of Haryana on account of corrupt practices of respondent 6 who is the in-charge of oxygen distribution in District Ghaziabad and as such he is responsible for black marketing and illegal sale of oxygen to Delhi and Haryana.

CBI inquiry in the said matter has been sought.

Manish Goyal Additional Advocate General assisted by Jai Narayan, Additional Government Advocate, submitted that by an order dated 20-04-2021, regulation of the distribution of oxygen supplies to designated hospitals for COVID positive cases was ordered.

The State quota for oxygen was allocated by the Central Government and the distribution was made by the agencies directly to the designated COVID hospitals.

Further, it was added that no shortage of oxygen supply complaint was made from any of the hospitals and in the Loni constituency, there was only one COVID designated hospital and no complaint from the same was made.

In view of the above discussion, High Court directed that the District Magistrate Ghaziabad shall file an affidavit bringing on record the statement made by him in written instructions sent to Manish Goyal.

Bench also added that inquiry report in the inquiry instituted by him on the allegations made in the complaint dated 1-5-2021 filed by the petitioner shall also be brought on record with the said affidavit

Matter to be posted on 07-06-2021. [Nand Kishore v. State of U.P., 2021 SCC OnLine All 334, decided on 21-05-2021]


Advocates before the Court:

Counsel for the Petitioner: Zaheer Asghar, Ankur Azad, Shashwat Anand

Counsel for the Respondent: G.A., A.S.G.I.

Appointments & TransfersNews

The Supreme Court Collegium has recommended the appointment of Justice Sanjay Yadav as the Chief Justice of Allahabad High Court on 20th May, 2021. Justice Sanjay Yadav had been serving as the Acting Chief Justice after former Chief Justice Govind Mathur demitted office on April 14th, 2021.

Born on June 26, 1959, Justice Yadav enrolled as an Advocate on August 25, 1986. Thereafter, he practised on Civil, Revenue and Constitutional sides in the High Court of Madhya Pradesh at Jabalpur. Subsequently, he was appointed Deputy Advocate General of Madhya Pradesh. 

On March 2, 2007 he was elevated as Judge of the High Court of Madhya Pradesh and Permanent Judge on January 15, 2010. He was appointed as Acting Chief Justice of the Madhya Pradesh High Court with effect from October 06, 2019 till November 02,2019 and from September 30, 2020 till January 02, 2021. On January 08, 2021 he was transferred to Allahabad High Court.