CRLA/2345/1983 Judgment/Order Date: 24-12-2021 (2022)01ILR A514
HEADNOTE hearing
Criminal Law - Indian Penal Code, 1860- Section 149 - Unlawful Assembly- Common Object- As per Section 149 IPC to convict a person with the aid of this Section, it is necessary to prove the following ingredients; namely, (1) the offence is committed by any member of an unlawful assembly; and (2) the offence must be committed in prosecution of the common object of an unlawful assembly; or such as the members of that assembly knew to be likely to be committed in prosecution of that object. Section 149 of the IPC fastens vicarious liability upon every member of an unlawful assembly for the offence actually committed by other members of the same unlawful assembly in prosecution of a common object which the members of such unlawful assembly had knowledge of likelihood of the commission of that offence. Criminal Law - Indian Penal Code, 1860 - Section 149- Keeping in mind that all the accused were stated to be standing in front of their own house and not having gone as a group of persons, armed, to another place to commit an offence, they cannot be said to be part of an unlawful assembly with a common object, at the stage, when the gun shots were fired- Members of an unlawful assembly may have community of object upto the certain point of time and not beyond that. It cannot with certitude be held that the common object of the assembly was either to commit the murder of Dhirendra Singh (the deceased) or to cause such bodily injuries to him or to anybody else that may result in death because the accused persons did not move as a group to assault the victims-As the prosecution failed to provide evidence to prove that accused persons including the surviving appellants held a common object to cause the death of Dhirendra Singh or to cause any such injury which in ordinary course of event would have resulted in his death, the surviving appellants cannot be held liable for the murder of Dhirendra Singh under Section 302 IPC with the aid of Section 149 IPC- Even the rest of the accused persons could get collected with their lathies but that by itself would not be sufficient to infer that they shared common object with the co-accused, who fired at the deceased. Where the appellants were standing infront of their home and had not gone as a group and it cannot be established that they shared the common object of committing murder of the deceased, as they were armed with lathies which were wielded after shots were fired by the other accused, the present appellants cannot be convicted u/s 302 IPC with the aid of Section 149 IPC. Criminal Law - Indian Penal Code, 1860 - Section 149 - In stage (C), according to the prosecution, a total of five persons including the surviving appellants Brijendra Singh (appellant no.5) and Saleem (appellant no.7) participated, but as we have earlier held that involvement and presence of Saleem (appellant no.7) appears to be doubtful and benefit of doubt is, therefore, extended in his favour, therefore, Saleem (appellant no.7) cannot be convicted under Section 147 and 323 IPC for even stage (C) of the entire incident. Appellant No. 5 (Bijendra Singh) was member of an unlawful assembly and participated in stage (C) of the entire incident and was armed with lathi along with other co-accused persons and injury report of Rajendra Singh (PW-2) shows that he sustained a contusion with two abrasions, therefore, appellant no. 5 (Bijendra Singh) can be convicted under Section 323 IPC with the aid of Section 149 IPC. Where the accused has inflicted injuries at a subsequent stage and without participating in the offence of committing murder then instead of Section 302 IPC readwith Section 149 IPC, he shall be liable for having committed the offence punishable with Section 323 IPC readwith Section 149 IPC. The Juvenile Justice (Care and Protection of Children) Act, 2015- Section 18(1) (d) & 21 - The claim of juvenility was raised after the Juvenile Justice (Care and Protection of Children) Act, 2015 had come into force with effect from 15.01.2016. The proviso to sub-section (2) of Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short Act, 2015) enables raising of a claim before any court even after final disposal of the case and such a claim is to be determined in accordance with the provisions contained in the Act and the Rules made thereunder even if the person has ceased to be a child on or before the date of commencement of the Act-Comparison of the provisions of Section 21 of Juvenile Justice Act, 1986 with the provisions of Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2015 - there exist similar provisions for orders that could be passed in respect of a juvenile in conflict with law including direction to pay fine. Hence, by applying the law laid down by the Apex Court in Jitendra Singh's case (Supra) and by keeping in mind the provisions of Section 18(1) (d) of the Act, 2015, and provisions of Section 21 of of Juvenile Justice Act, 1986, we are of the view that the appropriate punishment that ought to be awarded to appellant no.5 (Brijendra Singh), who was a juvenile on the date of the incident, would be 'fine'. Settled law that the claim of juvenility can be raised at any time and the same has to be adjudicated in terms of the Act 2015 even if the person was not a juvenile on the date of commencement of the said Act and since provisions of the Act 1986 are similar to the provisions of the Act 2015 , accordingly the appropriate punishment would be fine. (Para 37, 40, 41, 42, 44, 52, 53, 64, 65, 67) Accordingly, the appeal of surviving appellant No. 7 (Saleem) is allowed whereas, the appeal of appellant No. 5 (Brijendra Singh) is partly allowed. (E-3)
Title: Harnath Singh & Ors. Vs. STATE OF U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manoj Misra,Sameer Jain
English hearing
CRLA/2209/2019 Judgment/Order Date: 01-12-2021 (2022)01ILR A508
HEADNOTE hearing
Criminal Law - Indian Evidence Act, 1872 - Section 32- Dying Declaration- The dying declaration can be acted upon without collaboration if it inspires truth. Thus having summarize the law we are of the considered opinion that no other view than that taken by the learned Judge can be taken for upholding the conviction of the accused on the basis of dying declaration. It is settled law that if the Court is satisfied that the dying declaration is true and voluntary, it can record conviction on its basis without corroboration. Criminal Law - Indian Penal Code, 1860 - Section 302 - Section 304 II - Death was due to ante thermal burns and due to septicemia. The law as far as it concerned septicemia is well settled the death occurred after few days. The deceased died during treatment, this High Court substituted the sentence as the deceased died out of septicemial septicemia. The offence is not under Section 302 of I.P.C. but is culpable homicide. Where the deceased died as a result of septicaemia after a few days of the occurrence, the offence would be one of culpable homicide not amounting to murder. ( Para 10, 12, 13, 14, 15) Criminal Appeal partly allowed. (E-3)
Title: Smt. Preeti & Anr. Vs. STATE OF U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kaushal Jayendra Thaker,Ajai Tyagi
English hearing
CRLA/2137/2015 Judgment/Order Date: 27-11-2021 (2022)01ILR A484
HEADNOTE hearing
Criminal Law â?? Indian Penal Code, 1860 â?? Section 304(1) - Allegation-dowry death- burn injuries-husband admitted in the hospital-dying declaration-cause of death- septicimia-accused had no intention to cause death-injuries though sufficient to cause death-hence incident fall under Ex.1 and 4 to section 300 IPC-offence will fall under section 304 (1) IPC-conviction u/s 302 IPC converted into under section 304 (1) IPC. Appeal partly allowed. (E-9)
Title: Smt. Sudha & Anr. Vs. STATE OF U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kaushal Jayendra Thaker,Vikas Budhwar
English hearing
CRLA/446/2015 Judgment/Order Date: 27-11-2021 (2022)01ILR A466
HEADNOTE hearing
Criminal Law - Indian Penal Code, 1860 - Sections 376 & 506 - Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989- Section 3(1)XII and 3(2)V- Conviction under- Sentence of Life Imprisonment- Quantum of Sentence- Proportionate Sentence- It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission- While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. Moreover, the judicial trend in the country has been towards striking a balance between reform and punishment- The criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system- 'Reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. Sentence should be proportionate to the gravity of the offence, manner of commission and its impact on society and should not be unduly harsh in view of the judicial trend of adopting the corrective and reformative theory of punishment. Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989- Section 3(1)XII and 3(2)V- There is neither any serious discussion nor any finding in the judgment in question with regard to the fact that the victim belongs to SC/ST category. Apart from the same, this Court finds that there is no witness to prove the caste of the victim. the sine qua non is that the victim should be a person, who belongs to scheduled caste or scheduled tribe and that the offence under the Indian Penal Code is committed against such person on the basis that such person belongs to the same caste and the offender does not belong to the same caste. If this is proved, then only conviction under Section 3(2)(V) of the Act, 1989 can be invoked. Thus inevitable conclusion is this that no offence under Section 3(2)V of SC/ST Act is made out and thus the conviction and the sentence so made under Section 3(2)V of SC/ST Act is unsustainable in the eyes of law. In order to secure the conviction of an accused under Section 3(1)XII and 3(2)V of the Sc/St Act, it has to be proved and established that the victim belonged to a scheduled caste/ scheduled tribe while the offender did not belong to the said category. (Para 23, 24, 25, 26, 29) Appeal Partly Allowed. (E-3)
Title: BALA PRASAD KURMI Vs. STATE OF U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kaushal Jayendra Thaker,Vikas Budhwar
English hearing
WRIA/17061 /2021 Judgment/Order Date: 02-12-2021 (2022)02ILR A911
HEADNOTE hearing
A. Service Law - Compassionate appointment-dying in harness- candidate appointment rejected-father of the petitioner died in harness leaving behind his widow and son/petitioner- petitioner found unfit for post of constable on the ground that he was over age and also because of his marital status-petitioner was also considered for driver post but he failed to submit his driving license-thus the age as on the date on which the application is considered would be the relevant date, and not when the application is made- compassionate appointment is an exception to the general rule-the compassionate ground is a concession and not a right-Hence, no illegality in the impugned order.(Para 1 to 13) B. The appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. (Para 10) The writ petition is dismissed. (E-6)
Title: Sumit Kumar Sharma Vs. U.O.I. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur
English hearing
WRIA/10884 /2021 Judgment/Order Date: 23-11-2021 (2022)02ILR A908
HEADNOTE hearing
A. Service Law - Compassionate Appointment - U.P. Dying in Harness Rules, 1974-Rule 5-Father of petitioner died due to Covid-19- mother of the petitioner submitted an application as per State Govt. Order dated 20.05.2021 for compassionate appointment-if the case of the petitioner falls within Rule 5 of notification no. 6/XII/73/Ka-2-T.C.- IV dated 22.01.2014 only then he may be provided compassionate appointment-the mother of the petitioner was employed in Kendriya Vidyalaya which is governed and administered by Central Government and Rule 5 of U.P. Dying in Harness Rules, 1974 excludes the dependent of an employee for compassionate appointment whose husband and wife, as the case may be, is employed under the Central Government or State Government-Thus, Rule 5 of U.P. Dying in Harness Rules, 1974 clearly bars the appointment of the petitioner on compassionate ground.(Para 1 to 13) The writ petition is dismissed. (E-6)
Title: Aditya Sudhakar Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saral Srivastava
English hearing
WRIA/15873 /2021 Judgment/Order Date: 09-11-2021 (2022)02ILR A899
HEADNOTE hearing
A. Service Law - Medical Council of India Minimum Qualification for Teachers in Medical Institutions Regulations, 1998- challenge to-appointment-unexplained delay of 4 years in filing the writ petition- post of lecturer-cum-Statistician is a specialized post in a medical fraternity and the prescription of qualification is a specialized task of the experts being academicians which cannot be made a subject matter of a judicial review, particularly when there is nothing on record to show that the rule making authority has no legislative competence to lay down the qualification-limitation does not strictly apply to proceedings under Article 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time-delay defeats equity-it is a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment.(Para 1 to 30) The writ petition is dismissed. (E-6)
Title: Anand Bihari Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Surya Prakash Kesarwani,Vikas Budhwar
English hearing
SAPL/38 /2022 Judgment/Order Date: 14-02-2022 (2022)02ILR A890
HEADNOTE hearing
A. Service Law - Maintainability of special appeal-no appeal is maintainable under Chapter VIII Rule 5 of this Rules of the Court against any order passed in proceedings under Contempt of Courts Act as it is a self contained Code and it also provides for a remedy of appeal under section 19 though only against specific type of orders or decisions-In the present case also since the Hon'ble single Judge has refused to entertain contempt petition, the appeal is not maintainable under Chapter VIII Rule 5 of the Rules to such proceedings where an order dismissing an application for contempt is challenged would not be attracted except when the contempt court decides to pass orders issuing directions in exercise of powers beyond the Contempt of Courts Act, which order would be referable to the powers vested in the High Court under Article 226 of the Constitution of India rather than Contempt of Courts Act.(Para 1 to 23) The writ petition is dismissed. (E-6)
Title: Shivam Das Chandani & Ors. Vs. Prabhu N Singh & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sangeeta Chandra,Mohd Faiz Alam Khan
English hearing
WRIA/4215 /2019 Judgment/Order Date: 17-02-2022 (2022)02ILR A876
HEADNOTE hearing
A. Service Law - U.P. Basic Education (Teachers) Service Rules, 1981-challenge to-forged appointment-petitioners did not fulfill the eligibility condition for appointment on the post of Head Master and Asst. Teacher-if the petitioners do not have essential qualification as prescribed under the statute, their appointment is void ab initio and they cannot claim any benefit of any alleged inaction on the part of the Basic Shiksha Adhikari-The void and illegal appointments would not become valid and legal if the Basic Shiksha Adhikari did not take decision within a period of one month as required under Rule 10 of Rules, 1978-In the present case, the selection has not been made free and fair inasmuch as three candidates had received envelops containing blank papers sent by petitioners no. 1 intimating the date of interview-if the Basic Shiksha Adhikari was not granting approval, petitioner no.1 could have approached the higher authorities or the Court against the alleged inaction of the Basic Shiksha Adhikari, but petitioner no. 1 went ahead to advertise the posts-Hence, no irregularity found in the impugned order.(Para 1 to 47) The writ petition is dismissed. (E-6)
Title: C/M Sri Shanker Junior High School & Ors. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Dinesh Kumar Singh
English hearing
WRIA/17421 /2020 Judgment/Order Date: 18-02-2022 (2022)02ILR A870
HEADNOTE hearing
A. Service Law - Compulsory retirement- Petitioner was working as Administrative Officer in Zila Panchayat-Screening committee recorded that the petitioner is indolent, quarrelsome and has become 'dead wood' in the organization-Petitioner obtained interim order on the basis of false and misleading averments and concealing material facts-petitioner work and conduct was found unsatisfactory-he has been compulsorily retired by adopting due procedure of law-no illegality of any procedural or substantive law in passing the impugned order-Petiitoner has not approached this Court with clean hands.(Para 1 to 19) B. To obtain favourable order the petitioner misguided the Hon'ble Court. Truth of the matter is that the screening committee was duly constituted and reported the matter to authorities. Administrative Committee also recommended compulsory retirement in its meeting. In the instant case the petitioner approached the Court stating that no such procedure was adopted.(Para 5) The writ petition is dismissed. (E-6)
Title: Mohammed Naseem Ali Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Dinesh Kumar Singh
English hearing
WRIA/755 /2022 Judgment/Order Date: 15-02-2022 (2022)02ILR A865
HEADNOTE hearing
A. Service Law - The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974-Challenge to-appointment-petitioner had obtained appointment illegally on compassionate ground in KGMU, Lucknow after death of his father-the petitioner mother was employed in the University itself as female sick attendant-Petitioner deliberately concealed this fact in his application form- Petitioner suppressed the material fact and played fraud for securing public employment and therefore, his long continuation (15 years) would not be of any help to him to continue to hold his post inasmuch as his appointment was void ab initio-In service law there is no place for the concepts of adverse possession or holding over.(Para 1 to 17) The writ petition is dismissed. (E-6)
Title: Sumit Kumar Verma Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Dinesh Kumar Singh
English hearing
WRIC/3000031 /1994 Judgment/Order Date: 04-02-2022 (2022)02ILR A861
HEADNOTE hearing
A. Ceiling Law - U.P. Imposition of Ceiling on Land Holdings Act, 1960 - Sections 9 and 10(2) - General Clauses Act, 1897 - Section 21 - Second notice was issued u/s 10(2) - Objection filed on the ground that it was issued against his father, who was dead - Maintainability of second notice challenged - First general notice u/s 9 was already issued - Effect - Held, the prescribed authority has not committed any error in issuing second notice - It would not be prudent to institute two separate cases inasmuch as the notices have been issued in respect of the same land holding - High Court issued direction clubbing both notices, giving the petitioner one month time to file comprehensive objection. (Para 18 and 19) Writ petition disposed of. (E-1)
Title: Ajay Pratap Singh Vs. State Of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Dinesh Kumar Singh
English hearing
WRIC/1003453 /1980 Judgment/Order Date: 27-01-2022 (2022)02ILR A851
HEADNOTE hearing
A. Indian Forest Act, 1927 - Section 4 - Land, in dispute, was notified under the Act - Adjudication by the Consolidation authority - Permissibility - Jurisdiction of Consolidation authority, challenged - Held, once the notification is issued u/s 4 of the Act, the Consolidation Authorities would lack jurisdiction with respect to the land - High Court set aside the impugned order passed by the District Judge. (Para 9 and 13) Writ petition allowed. (E-1)
Title: State Of U.P. & Anr. Vs. Chunnu & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Dinesh Kumar Singh
English hearing
WRIB/6574 /2016 Judgment/Order Date: 03-02-2022 (2022)02ILR A259
HEADNOTE hearing
(A) Civil Law - Delay Condonation - U.P. Consolidation of Holdings Act, 1953, S. 11, S. 53B - Limitation Act, 1963, S. 5 - Delay in filing Appeal - If an appeal is filed beyond the time limit, party is entitled to seek condonation of delay in filing appeal - an application has to be filed specifying the grounds on which delay in filing the appeal is sought to be condoned - firstly delay condonation application has to be considered - It is only after that the application is allowed, the appeal can be entertained and heard on merits - Before that the appeal cannot be taken up and considered on merits â?? However both can be taken up & heard on the same day - there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay Reference Answered. (E-5)
Title: Ram Prakash Vs. Deputy Director of Consolidation, Hardoi & Ors. .
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Bindal,Pritinker Diwaker
English hearing
WRIC/1003418 /1980 Judgment/Order Date: 27-01-2022 (2022)02ILR A838
HEADNOTE hearing
A. UP Bhoodan Yagya Act, 1952 - Section 14 - Bhoodan Yagna Committee (BYC) - Power of BYC to distribute the land to landless agricultural labours - Permissibility - Committee formed in 1953 and distribution of land made in 1978, this distribution was made beyond period of three years - Validity challenged - Held, the Bhoodan Committee, Kheri did not have power to distribute the land amongst the respondents in the 1978 and, it was the Collector, who could have distributed the land if there was no notification issued under Section 4 of the Act, 1927 to constitute the land as 'reserved forest' - Held further, the respondents did not become the Bhumidhars on the basis of the alleged patta/lease in their favour. (Para 36 and 37) Writ petition allowed. (E-1)
Title: State Of U.P. & Anr. Vs. Sone Lal & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Dinesh Kumar Singh
English hearing
WRIC/23288 /2021 Judgment/Order Date: 21-12-2021 (2022)02ILR A834
HEADNOTE hearing
A. Labour Law - Contract Labour (Regulation and Abolition) Rules, 1971 - Rule 25(2)(v)(a)&(b) - Workmen employed by the contractor - However, the order for payment of wages was passed directly to the Principle employer - Validity challenged - Contractor was not made party - Effect - Held, no order could have been passed directly asking the principal employer for making the payment to the workmen who were employed by the contractor. Since the contractor himself had not been made a party in the proceedings before the Deputy Chief Labour Commissioner (Central), definitely no direction could be issued to the contractor and, therefore, the direction which had been issued to the principal employer could not have also been issued at all - Held further, if the contractor despite any order being made under Rule 25(2)(v)(a) &(b), did not pay wages, then the principal employer could be made liable to pay the wages (Para 15) B. Constitution of India - Article 226 - Writ - Maintainability - Contract Labour (Regulation and Abolition) Rules, 1971 - Alternative remedy to file appeal u/s 15 of the Act - Impugned order was passed by the same authority, before whom the appeal is to be filed - Effect - Held, since the Appellate Authority was the Deputy Chief Labour Commissioner (Central) and the order was also passed by the Deputy Chief Labour Commissioner, no Appeal would lie - High Court entertained the writ petition. (Para 17) Writ petition allowed. (E-1)
Title: F.C.I. & Anr. Vs. State Of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Siddhartha Varma
English hearing
WRIC/10015/2021 Judgment/Order Date: 25-01-2022 (2022)02ILR A801
HEADNOTE hearing
A. Labour Law - UP Industrial Dispute Rules, 1957 - Rule 40 - Suo moto reference by the State Government - Workman's right of representation - Held, clause (i) of sub-rule (1) of Rule 40 of the U.P. Rules gives discretion to the workmen for opting for representation by the persons mentioned therein - The contention regarding non-entitlement of the respondent-Union to represent the interest of the workmen before the Industrial Tribunal would not be acceptable. (Para 19) B. Labour Law - UP Industrial Dispute Act, 1947 - Sections 2(n) and 6-K - Lay off - Lay off compensation - Entitlement of workmen - Petitioner-company had gone into liquidation - Effect - Settlement occurred - Lay off compensation not duly paid to the workmen - Consequence - Industrial Tribunal answered the reference which pertained to the validity of the lay-off by means of the award and has recorded a definite finding about the lay-off being unjustified and illegal - Tribunal analyzed the settlement only for consideration of the provisions and terms of lay-off - Validity challenged - Held, the finding of the Industrial Tribunal with regard to the lay-off done on 15.04.2007 by the petitioner-company being completely unjustified and illegal, is correct and deserves no interference. (Para 41, 43 and 45) C. Company Law - Insolvency and Bankruptcy Code, 2016 - Sections 14, 33, 34, 36 and 53 - Company was declared sick by BIFR and is not continuing with its business - It is under the liquidation process - Effect - Workmen's dues - Payment - Liability to pay the back wages etc. of the workmen, on whom lie - Held, it is for the liquidator to assess the claims of the workmen, taking into account the impugned award of the Industrial Tribunal - If any monetary liability arises on the petitioner-company after the final disposal of the matter, the liquidator undertook to safeguard the interest of the workmen in accordance with Section 53 of the Code. (Para 46, 48, 50 and 61) Writ petition disposed of. (E-1)
Title: M/s LML Ltd., Kanpur Vs. State Of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Jayant Banerji
English hearing
WRIC/5031 /2014 Judgment/Order Date: 16-12-2021 (2022)02ILR A795
HEADNOTE hearing
A. Essential Commodity - Fair Price Shop licence - Cancellation - Complaint by the persons, who were not the card-holder - Locus standi of complainant - No finding recorded in the impugned order - Effect - Held, once the complainants are not found the card holders of the petitioner's shop, they cannot be treated as aggrieved person - In the light of the settled law, this Court is of the firm view that only aggrieved person can file complaint and in the present case complainants are not the aggrieved person - High Court set aside the impugned order. (Para 17) Writ petition allowed. (E-1)
Title: Mahipal Vs. State Of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Neeraj Tiwari
English hearing
CRLA/423/1995 Judgment/Order Date: 10-01-2022 (2022)01ILR A447
HEADNOTE hearing
Criminal Law - Indian Penal Code, 1860 - Section 302/34 - Session Judge acquitted three co-accused-convicted Appellant u/s 302/34 IPC-Ante -mortem injuries shows injuries of laathi and danda have not been found on the person of deceased as alleged in the FIR-no attempt made by the informant & ors. family member-to save the deceased-cast doubt upon prosecution case- enmity on record-possibility of false implication cannot be ruled out. All other co- accused acquitted giving benefit of doubt- Appellant entitled for benefit of doubt. Appeal allowed. (E-9)
Title: Lot Prasad Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ramesh Sinha
English hearing
A482/23667/2008 Judgment/Order Date: 19-01-2022 (2022)01ILR A436
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Section 200,202 - Indian Penal Code, 1860 - Section 383 - Extortion, Section 386 - Extortion by putting a person in fear of death or grievous hurt , section 506 - Punishment for criminal intimidation . Complaint against applicants and two armed unknown persons - allegation - applicants asked complainant to sign certain blank papers - for the purpose of compromising proceedings - refusal - applicants pulled gun on the wife of complainant - applicants summoned to face trial - applicants approached Court for quashing the entire proceedings.(Para - 2 to 6) HELD:- Continuation of the criminal proceedings against the applicants is an abuse of process of the Court and ends of justice requires that the said proceedings be quashed . Entire criminal proceedings quashed. (Para - 22) Application u/s 482 Cr.P.C. allowed. (E-7)
Title: Bhupinder Singh & Ors. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ashutosh Srivastava
English hearing
A482/17371/2020 Judgment/Order Date: 01-12-2021 (2022)01ILR A416
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Sections 154,155(2),156,173(2),190,200, 202 & 205 Section 2(d) - Complaint - Section 2(d) Explanation - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant - Indian Penal Code, 1860 - Section 323,504 - Proceedings initiated with registration of an NCR - relating to non-cognizable offence - investigation carried out by police - pursuant to an order of the Magistrate under Section 155(2) of the Code - police report under Section 173(2) disclosing non-cognizable offence - cognizance taken by the Magistrate - Application for quashing entire proceeding. HELD:-In view of the set of facts, the same would not be covered within the purview of the explanation to Section 2(d) to bring it within the ambit of the term "complaint". Magistrate has rightly taken cognizance.(Para - 47) Application u/s 482 Cr.P.C. dismissed. (E- 7)
Title: Mahendra Kumar Chaudhary & Ors. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Yogendra Kumar Srivastava
English hearing
A482/15360/2021 Judgment/Order Date: 21-12-2021 (2022)01ILR A400
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power -Indian Penal Code, 1860 - Sections 302,307 & 504 , Criminal Law (Amendment) Act ,1932 - Section 7 - when an application for default bail is filed, the merits of the matter are not to be gone into - It is the duty and responsibility of a court on coming to know that the accused person before it is entitled to " default bail" to at least apprise him or her of the indefeasible right - while computing the period under Section 167(2), the day on which accused was remanded to judicial custody has to be excluded and the day on which challan/charge-sheet is filed in the court has to be included.(Para -17,18 ) (B) Criminal Law - The Code of criminal procedure, 1973 - Section 167(2) - indefeasible right cannot be exercised after the charge-sheet has been submitted and cognizance has been taken because in that event the remand of the accused concerned including one who is alleged to have committed an offence is not under Section 167(2) of the Code but under other provisions of the Code. (Para - 21) Applicant moved an application for default bail under Section 167 (2) read with Section 209 of Cr.P.C. - ground - charge sheet not filled within 90 days - application rejected by magistrate - instant application filed to set aside order passed by magistrate - release the applicant under section 167(2) of the code .(Para -1 to 5 ) HELD:-Magistrate was justified in its conclusion arrived through the order impugned that the charge-sheet has been filed within time and rightly rejected the application. Therefore, there is no infringement of Section 167(2) of the Code.(Para - 24) Application u/s 482 Cr.P.C. dismissed. (E-7)
Title: PRATEEK SHUKLA Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sanjay Kumar Pachori
English hearing
A482/12578/2021 Judgment/Order Date: 14-12-2021 (2022)01ILR A366
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Sections 173,190(1)(b),193,200,202,203,204,460,4 61 & 465 - Indian Penal Code, 1860 - Sections 324, 323 and 504 - taking cognizance of an offence - cognizance - taking judicial notice - there is no legal requirement that the Magistrate should pass a speaking order indicating reasons, at the stage of taking cognizance - in the absence of any legal requirement for the Magistrate to have given detailed reasons in an order taking cognizance and issuing process the same cannot be held to be vitiated only on the ground that the order is not a reasoned order.(Para - 43,48) Application filed seeking quashing of the charge- sheet - principal ground - order passed by Magistrate - taking cognizance is without application of mind - passed mechanically without assigning any detailed reasons. HELD:-Order of cognizance passed by the Magistrate after having advantage of perusing the police report and the materials therewith, the same therefore cannot be assailed only on the ground that it does not give detailed reasons. Court not inclined to exercise its inherent jurisdiction under Section 482 CrPC.Para - 56,57) Application u/s 482 Cr.P.C. dismissed. (E- 7)
Title: Badri Prasad & Ors. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Yogendra Kumar Srivastava
English hearing
A482/5009/2021 Judgment/Order Date: 16-12-2021 (2022)01ILR A319
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - -Sections 2(u),4,5,26,156(3),164,173,190,193,200,2 04,207,209,230,319,460,461 & 465 - Indian Penal Code, 1860 - Sections 363,366 & 376D - The Protection of Children From Sexual Offences Act, 2012 - Section 3/4 , 5/6 - Constitution of India - Article 15,21,39 - Inherent power non- commitment of the case, ipso facto, would not vitiate the trial by Sessions Court unless failure of justice has in fact been occasioned thereby or the accused can establish that he has been prejudiced as a result thereof - irregularity in procedure, if any, with regard to committal would not be a cause of injustice or prejudice to the applicants.(Para -75,83 ) (B) Criminal Law - The Protection of Children From Sexual Offences Act, 2012 - Section 33(1) - power of the Special Court to take cognizance - without any committal of the accused - to the extent of any inconsistency - would override the general provisions under the Code, by virtue of the provisions under Section 42- A read with Section 31 of the POCSO Act. (Para -81) Application filed - seeking to quash entire proceedings as well as summoning order - passed by Special judge , POCSO - police report submitted - under section 363 IPC - only against applicant no. 1 - prior to taking cognizance - application filed by opposite party no. 3 (prosecutrix) - cognizance may also be taken under section 3/4 POCSO Act and Section 376D,366,363IPC - view of Magistrate - power to take cognizance with the Special Court constituted under the POCSO Act and not with the Magistrate - papers transmitted to Special Court, POCSO - directed registration of the case - issuance of summons to applicants - hence present application . HELD:-Order of summoning and also the proceedings of the criminal case, of which quashment is sought, being in accord with the scheme of the statutory enactment, cannot be said to suffer from any illegality so as persuade this Court to exercise its inherent jurisdiction under Section 482 of the Code.(Para -84 ) Application u/s 482 Cr.P.C. dismissed. (E-7)
Title: Ravi & Ors. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Yogendra Kumar Srivastava
English hearing
A482/2955/2007 Judgment/Order Date: 24-12-2021 (2022)01ILR A314
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Indian Penal Code, 1860 - Sections 307, 504 , 506 - Section 155(4) Cr.P.C - Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.(Para - 16) Informant/respondent no.2 filed an application under Section 156 (3) Cr.P.C. against the accused-applicant - applicant had fired at him with the intention to kill him - charge sheet forwarded to the court for trial of the applicant. - applicant charged with offences under Sections 504 and 506 IPC - one of which, i.e. the offence under Section 506 is a cognizable offence.(Para - 2,3,15) HELD:-Since the accused had been charged under Sections 504 and 506 IPC, he has to be tried for both the offences in the manner prescribed for trial of cognizable offences.(Para - 17) Application u/s 482 Cr.P.C. rejected. (E-7)
Title: Rakesh Kumar Shukla Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi
English hearing
WRIC/61005/2017 Judgment/Order Date: 03-12-2021 (2022)01ILR A312
HEADNOTE hearing
A. UP Avas Evam Vikas Parishad Plots and Housing Regulations and Allotment Rules, 1979 - Allotment of shop/plot to the displaced person - Rates chargeable on it, whether it should be the rate which was given to the farmers at the time of the acquisition or the current market rate - Held, the contention that the demand of the Parishad for current rates is unjustified cannot be sustained. The petitioners are liable to pay the current rates as applicable towards the allotment of the plots in their favour - Raghuvir Singh's case is followed. (Para 3 and 9) Writ petition dismissed. (E-1)
Title: Dhan Pal Singh & Ors. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Pritinker Diwaker,Ashutosh Srivastava
English hearing
WRIC/34 /2020 Judgment/Order Date: 17-12-2020 (2022)02ILR A761
HEADNOTE hearing
A. Civil Law - UP Urban Planning and Development Act, 1973 - Ch. VI - Sections 15 and 18 - Imposition of infrastructure surcharge and corner charge by Development Authority - Validity challenged - Provision for 10% additional infrastructure charge as envisaged in the First Government Order does not find place in the Second Government Order - Benefit claimed - First Government Order stood amended and degraded/devolved to the extent provided by the Second Government Order - Held, intention of the Second Government Order is clear that it seeks to modify and degrade the First Government Order in terms explicit in the Second Government Order - Waiver of infrastructure surcharge for reason of responsibility of internal development of the plot in question by the petitioner, cannot be claimed as a right by the petitioner just because the GDA has recommended reconsideration of its imposition - Authority on the State Government and the GDA to impose infrastructure surcharge and corner charge is conferred by Chapter VI of the Act of 1973. (Para 22, 24, 28 and 32) B. Interpretation of Statute - Rule of contemporanea exposition - First Government Order vis-à-vis Second Government Order - Effect - Held, Second Government Order, which has not been challenged by the petitioner, has to be viewed as a conscious decision by the government to modify and degrade/ devolve the First Government Order by removing the clause for imposition of infrastructure surcharge post issuance of the Second Government Order - Neither the express words of the Second Government Order nor the intention thereof are to rescind or abrogate the First Government Order. (Para 28) C. Transfer of Property Act, 1882 - Section 105 - Document transferring the property in favour of society is a lease-deed, not sale-deed - However, demand of infrastructure surcharge was made by the Development Authority - Validity challenged - First Government Order governing the demand of infrastructure surcharge, its applicability - Held, Lease- deed leave no room for doubt that the transfer of the property in question is not one of transfer of ownership but is a transfer of a right to enjoy such property made for a period of 90 years on payment of premium and rent - Held further, Government Order applies only to such plots of land sold by the Development Authorities - The claim of the GDA of infrastructure surcharge on the property in question pursuant to the First Government Order is dehors the entitlement of the GDA under the First Government Order. The demand for infrastructure surcharge from the petitioner Society does not have the mandate of law and as such is illegal. (Para 69, 70 and 71). D. Interpretation of statute - Estoppel rule - Application - Principle of law discussed - No estoppel would operate against a statute - Private interest would have to give way to public interest. (Para 88) E. Interpretation of statute - Word 'Vendee' used in the sale-deed - Definition - Original allottee/vendee of development authority executed sale-deed in favour of the petitioner/subsequent purchaser - Claimed that the GDA is stopped from raising any demand for additional charge and it would be deemed that they have waived their right to recover any charge other than what has been paid - Held, the vendees mentioned in the sale deed includes their heirs and successors, executors, administrators and permitted assignees - Petitioners, therefore, would be bound under the terms and conditions of the sale deed dated 01.05.2015. (Para 92 and 96) Eight writ petitions dismissed; one writ petition allowed. (E-1)
Title: M/s Panchsheel Buildtech Pvt. Ltd. Vs. State Of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sunita Agarwal,Jayant Banerji
English hearing
WRIA/19263/2021 Judgment/Order Date: 05-01-2022 (2022)02ILR A752
HEADNOTE hearing
(A) Civil Law - Recovery of rent - Uttar Pradesh Municipalities Act, 1916, S. 292 - Rent due to municipality from a tenant of its demised shop can be recovered by issuance of recovery certificate & be recovered as arrears of land revenue (B) Uttar Pradesh Municipalities Act, 1916, S. 292 - U/s 292 rent in respect of properties such as demised shop can be recovered by the Nagar Palika either by directly levying distress, attaching and selling movable property of the defaulter under Chapter VI or issuing a recovery certificate u/s 292 read with Section 173- A to the Collector - all the provisions of chapter VI apply to recovery of rent due to the Nagar Palika relating to the immovable property in view of Section 166 (1) (c) of the Act, that say any other sum, declared by the Act of 1916 or by Rules or Bye Laws to be recoverable in the manner provided under Chapter VI, can also be recovered (Para 19, 20, 21) Father of the tenant-petitioner, allotted Shop, owned by the Nagar Palika Parishad, on the basis of an auction for a period of 99 years - Nagar Palika Parishad issued recovery certificate, on account of outstanding unpaid rent - Petitioner pleaded that Nagar Palika Parishad have no legal right to issue a recovery certificate vis-a-vis defaulted rent due for demised shop & to recover it as arrears of land revenue - Petitioner contended u/s 173-A only taxes due can be recovered as arrears of land revenue but not rent, that is contractual in nature - Held - Nagar Palika well within their rights in issuing a recovery certificate to the Collector for the realization of arrears of rent due in respect of the shop that the petitioner holds on lease against payment of rent (Para 21) Writ Petition dismissed. (E-5)
Title: Chandan Lal Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir
English hearing
FAFO/2124 /2021 Judgment/Order Date: 04-01-2022 (2022)02ILR A749
HEADNOTE hearing
(A) Civil Law - Motor Vehicles Act, 1988 - Compensation Enhancement - Section 163-A - Scheme for payment of compensation in case of hit and run motor accidents . Son (07 years of age at the time of death ) of appellant died in accident - Appellants - claimants (deceased father and mother) filed claim petition before tribunal - awarded a sum of Rs.1,80,000/- as compensation to the claimants with interest at the rate of 7.5% per annum - aggrieved by award - filed appeal claiming enhancement of award.(Para - 1 to 7) HELD:- It is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupees and cost of living . Notional income of the deceased assumed to be Rs.25,000/- per annum as he was non-earning member . Notional income multiplied with applicable multiplier ''15' as prescribed in Scheduled-II of the Motor Vehicles Act, 1988 towards loss of dependency. Appellants entitled to the total compensation of Rs.4,70,000/- and entitled to the rate of interest as 7.5% per annum from the date of filing the claim petition. Judgment and award passed by the Tribunal stand modified . (Para - 12,13,14,15) Appeal partly allowed.(E-7)
Title: Roop Lal & Anr. Vs. Suresh Kumar Yadav & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kaushal Jayendra Thaker,Ajai Tyagi
English hearing
FAFO/1972 /2021 Judgment/Order Date: 03-01-2022 (2022)02ILR A742
HEADNOTE hearing
(A) Civil Law - Motor Vehicles Act, 1988 - Section 140 - Liability to pay compensation in certain cases on the principle of no fault , Section 147 - Requirements of policies and limits of liability - negligence - principle of "res ipsa loquitur" - "the things speak for itself" - if the the order is not questioned as to whether the driver was having a driving licence or not and if it is proved that the driving licence was there in that case of the matter thus it cannot be said that driver was disqualified to drive the vehicle. (Para -13 ) Accident taken place - respondents are drivers and owner of the truck - insured with appellant - death of the sole bread-earner of the respondents-claimants - filed claim petition - claimed a sum of Rs.25,64,000/- - judgment and award granting a sum of Rs.3,24,000/- by tribunal - challenged by Insurance Company - defective appeal since 1998 - pending till date - main dispute regarding driving licence of the driver - finding of fact . (Para - 2,3,4) HELD:- Not proved by the Insurance Company that the owner was aware of the fact that driving licence had expired . Tribunal has not granted any amount under the head of future loss of income rather the multiplier of 17 though is slightly on higher-side the dependency. Thus, this court does not that any amount under the head of in absence of the appellant appear before this Court, no amount requires to be enhanced. Court do not feel that the tribunal has committed any error in allowing the claim petition.(Para - 14,16,17) Appeal dismissed. (E-7)
Title: M/s New India Assurance Comp. Ltd. Vs. Smt. Usha Taneja & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kaushal Jayendra Thaker
English hearing
FAFO/1716 /2010 Judgment/Order Date: 26-11-2021 (2022)02ILR A740
HEADNOTE hearing
(A) Civil Law - Motor Vehicles Act, 1988 - Compensation Enhancement - Daughter of appellants (claimants) - aged about 6 years - died in accident - filed claim petition before motor accident claim tribunal - an award of Rs. 1,07,000/- with 6% per annum interest awarded - aggrieved by award - filed appeal for enhancement of the compensation amount . (Para - 1,2,5) HELD:-Award enhanced to Rs. 2,25,000/- with interest @ 7% per annum . Respondent to re- calculate the amount of compensation accordingly and deposit the difference within 12 weeks from today before the tribunal. Judgment and decree shall stand modified. (Para - 9,10,11) Appeal allowed. (E-7)
Title: Rishi Ram Sahu & Anr. Vs. Mahendra Kumar Tripathi & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Syed Aftab Husain Rizvi
English hearing
FAFO/1447 /2005 Judgment/Order Date: 16-12-2021 (2022)02ILR A737
HEADNOTE hearing
(A) Civil Law - Motor Vehicles Act, 1988 - quantum of compensation - Income Tax Act, 1961 - Section 194A (3) (ix) - total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis - if the interest payable to claimant for any financial year exceeds Rs.50,000/- - insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source'- Order of investment not passed because applicants /claimants are neither illiterate nor rustic villagers. (Para - 8,18) Tribunal awarded a sum of Rs.4,85,000/- - with interest @ 6% as compensation - not granted any amount towards future loss of income of the deceased - multiplier applied 6. (Para - 1,6) HELD:-Total compensation awarded : 14,72,800. Multiplier applied 11. Deceased in the age bracket of (51-60) years as salaried person, 20% of the income added as future prospects . Rate of interest fixed at 7.5%. Judgment and decree passed by the Tribunal stand modified. Respondent-Insurance Company shall deposit the amount along with additional amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. (Para - 6,7,13) Appeal partly allowed. (E-7)
Title: Smt Seema Yadav & Ors. Vs. Vinod Kumar Bajpai & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kaushal Jayendra Thaker,Ajai Tyagi
English hearing
FAFO/876/1992 Judgment/Order Date: 06-01-2022 (2022)02ILR A735
HEADNOTE hearing
(A) Civil Law - Motor Vehicles Act, 1988 - Section 173 - Appeal - Injuries caused to minor - filed claim petition through legal guardian - tribunal raised issues and granted a sum of Rs.2,27,560/- with a rate of interest 12% - State felt aggrieved by award of compensation to the respondent - hence appeal.(Para - 2,4) HELD:-Negligence proved and involvement also proved. Driver never stepped into the witness box, child is a third party and, therefore, also this Court cannot take a different view then that taken by the tribunal. Compensation as awarded to the minor cannot be said to be exorbitant. Amount of Rs.2, 27,560/- for the injuries caused to the minor even in those days cannot be said to be such which requires any interference. The interim relief shall stand vacated forthwith. The amount be deposited with interest at the rate of 9% . (Para -8,9 ) Appeal partly allowed.(E-7)
Title: State Of U.P. & Ors. Vs. Km. Anubhooti @ Eena
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kaushal Jayendra Thaker
English hearing
FAFO/534 /2000 Judgment/Order Date: 05-01-2022 (2022)02ILR A730
HEADNOTE hearing
(A) Civil Law - Motor Vehicles Act, 1988 - Section 3 - Necessity for driving liscence , Section 149 (2) (a) (ii) - a condition excluding driving by a named person or persons or by any person who is not duly licenced , or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification - negligence - principle of " res ipsa loquitur" - "the things speak for itself" -principle of contributory negligence - A person who either contributes or author of the accident would be liable for his contribution to the accident having taken place.(Para - 10,11) Claimant was the driver of tempo - no driving licence - driver of the truck has not stepped into the witness box. -- truck and the tempo are of unequal magnitude - driving the truck in rash and negligent manner - Tribunal awarded a sum of Rs.1,00,000/- - with interest at the rate of 12% as compensation to the respondent claimant - aggrieved by the order of trinbunal - appeal filed by the Insurance company . HELD:-An additional sum of Rs. 25,000/- @ 6% granted to respondent-claimant. The reason for granting additional amount is that while granting the amount of Rs.1,00,000/-, the Tribunal has not added any amount under the head of future loss of income . Rate of interest of 12% granted by Tribunal not disturbed looking to the passage of time and the injuries which the claimant has sustained.(Para - 20,21) Appeal partly allowed. (E-7)
Title: Oriental Insurance Comp. Vs. Pramod Kumar Srivastava & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kaushal Jayendra Thaker
English hearing
FAPL/908/2003 Judgment/Order Date: 04-11-2015 (2022)02ILR A717
HEADNOTE hearing
A. Land Acquisition - Determination of market value of the acquired land - The market value of land under acquisition has to be deduced by loading the price reflected in the instances taken for plus factors and unloading for minus factors. In other words, a balance sheet of plus and minus factors may be drawn and the relevant factors may be valuated in terms of price variation. (Para 19) First Appeal Rejected. (E-10)
Title: Gas Authority of India Ltd. Vs. Ram Ashrey & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sudhir Agarwal,Rakesh Srivastava
English hearing
WRIC/30240/2021 Judgment/Order Date: 03-12-2021 (2022)01ILR A305
HEADNOTE hearing
A. Committee of Management -Election dispute - Rival claim - Order for single operation was passed by D.I.O.S. - No reason recorded - Effect- Held, it is settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. (Para 16) B. Constitution of India - Article 14 & 21 - Principle of natural justice - No opportunity of hearing was given - Effect - Held, the D.I.O.S. has passed the impugned order behind the back of the petitioners without affording any opportunity of hearing to the petitioners, which is clearly in violation of principle of natural justice, which is the requirement of Articles 14 and 21 of the Constitution of India. (Para 23) Writ petition allowed. (E-1)
Title: C/M Sri Ishwar Maharaj Uchchatar Madhyamik Vidyalaya Inter College, Agra & Anr. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manju Rani Chauhan
English hearing
WRIC/26608/2021 Judgment/Order Date: 16-12-2021 (2022)01ILR A294
HEADNOTE hearing
A. Civil Law - The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 - Sections 21, 22 & 23 - UP Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 - Rule 21 - Protection of property of Senior Citizens, its extent - Title dispute - Jurisdiction of Maintenance Tribunal - Held, the proceedings before the District Magistrate are summary in nature and only limited inquiry can be made by the District Magistrate for the purpose of carrying out the object of Rule 21 - The "protection" of property must therefore be understood to mean where a senior citizen retains a property in his name or possession for his welfare and well being - In the Act of 2007, no power have been prescribed of any adjudicatory mechanism being conferred on the District Magistrate for deciding the disputed question of title, right and interest in the property. (Para 25 and 26) B. Pleading - Significance - Vague pleading, it's effect - Missing in the factual foundation for the cause of action, how far effect the relief sought - Held, the pleadings are the foundation of litigation. In pleadings, the necessary and relevant particulars and material must be included and unnecessary and irrelevant material must be excluded- Pleadings in a particular case are the factual foundation on which the case of the litigant is based on. The pleadings should be specific in the petition and should disclose the complete cause of action for approaching the court. If the factual foundation for the cause of action in approaching the court is missing or is vague then it is always open for the court to deny the relief to the petitioner/litigant in the facts and circumstances of the particular case. (Para 33) Writ petition dismissed. (E-1)
Title: BIPRAJI SINGH Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ashwani Kumar Mishra,Vikram D Chauhan
English hearing
WRIC/18526/2021 Judgment/Order Date: 05-01-2022 (2022)01ILR A289
HEADNOTE hearing
A. Acquisition law - Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Section 11 - Acquisition for the purpose of construction of a Railway over-bridge, a public purpose - Principle, required to be kept in mind, while exercising the discretionary power by the Court, laid down - Held, once a project of public importance, which is good in larger public interest, is being executed and has been completed about 45%, setting aside of acquisition in a petition filed by one of the land owners owning a small portion of the land, will not be in larger public interest - Projects of public importance should not be halted as the same would be against the larger public interest and the constitutional courts should weigh public interest vis-à-vis private interest, while exercising its discretion. (Para 8 and 10) Writ petition dismissed. (E-1)
Title: SM. PRABHA SHUKLA Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Bindal,Piyush Agrawal
English hearing
WRIC/7012/2016 Judgment/Order Date: 04-12-2021 (2022)01ILR A280
HEADNOTE hearing
A. Labour law - U.P. Industrial Disputes Act, 1947 - Section 4-K & 6-H (1) - Adjudication - Ex-parte Award in favour of workman was passed and published - An application u/s 6-H (1) was also allowed and recovery certification was issued - Satisfaction with regard to adequacy of service was recorded in the award - Subsequently, Labour Court allowed the application of the employer to recall the recovery certificate - Validity challenged - No application to set aside the ex-parte award - Effect - Held, the award is not a nullity inasmuch as the employer was afforded an opportunity to represent its case before the Labour Court by due service of notice - It was, however, open to the employer to press for setting aside the exparte award where it could have demonstrated that sufficient cause preventing it from appearing during the course of the adjudication. (Para 12) B. Labour law - Adjudication - Ex-parte Award - Absence of defendant - Sufficient cause - Principle laid down - Held, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so - The sufficient cause is a cause for which defendant could not be blamed for his absence - The sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application - Parimal's case is followed. (Para 14) Writ petition allowed. (E-1)
Title: SONE LAL KUSHWAHA Vs. Presiding Officer Labour Court-III, U.P. Kanpur & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Jayant Banerji
English hearing
A482/18671/2021 Judgment/Order Date: 10-12-2021 (2022)01ILR A262
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - The Prevention of Corruption Act, 1988 - Section 7/13(1)(d) r/w Section 13(2) - Section 19 - Previous sanction necessary for prosecution - difference between absence of sanction and validity of sanction - issue regarding absence of sanction can be raised at the inception by the aggrieved person - where the sanction order exists, the issue regarding its validity has to be raised only during course of trial - a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in the ''failure of justice' or has been occasioned thereby.(Para - 26,27) (B) Criminal Law - The Prevention of Corruption Act, 1988 - Section 19(3) - specific embargo for granting any stay order on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it has resulted into failure of justice - Section 4(4) - Act has given a time bound period to conclude the trial of the case within a period of two years (four years maximum).(Para -32,33) Quashing of summoning order , impugned charge-sheet and entire proceeding - trap organized against applicant (Mining Inspector) - demanded a bribe - to issue challan to the complainant - enable him to complete his work - trap successful - F.I.R. lodged by Anti- Corruption - applicant caught red handed - Prevention of Corruption Act initiated against him - statements u/s 161 Cr.P.C. of various witnesses and collecting all the relevant material/ documents - charge-sheet - report u/s 173(2) Cr.P.C. filed without any requisite sanction and pending before the State Government - cognizance taken by magistrate .(Para - 1 to 4) HELD:-Applicant failed to bring on record even a single instance regarding "failure of justice". Not a case of absence of sanction, but in this case sanction has been granted. Authenticity or validity of this sanction could be adjudged either by the Division Bench in writ petition or at the stage of the trial, but there could not be any good reason to stall the proceedings of the case or vitiate the cognizance order in absence of any material on record which may result into "failure of justice" to the applicant . Provisions of Section 4 (4) of the Prevention of Corruption Act has to be kept in mind and suitable endeavour has to be made by the trial court to conclude the trial within the time specified therein.(Para - 33,35) Application u/s 482 Cr.P.C. dismissed. (E-7)
Title: DR. ABHAI RANJAN Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rahul Chaturvedi
English hearing
A482/5691/2021 Judgment/Order Date: 23-12-2021 (2022)01ILR A257
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - section 202 - Postponement of issue of process - Section 2(g) - Inquiry - no specific mode or manner of inquiry provided u/s 202 Cr.P.C. of the Code - Apex Court in the inquiry mandated u/s 202 Cr.P.C. - would mean examination of the complainant and examination of the witnesses. (Para - 11) (B) Criminal Law - The Code of Criminal Procedure, 1973 - Section 202 - in case the summons are issued against the accused persons who are residing outside the territorial limits a prior inquiry by the concerned Magistrate or investigation by the police should be made before issuing summons.(Para -4 ,8) Complaint filed by opposite party no. 2 - summoned all petitioners - residing outside the territory of the court from where the summoning order has been issued - contention - no inquiry was conducted by the Magistrate against the persons who were residing outside the territorial limits. (Para - 4,7) HELD:-Summoning order (impugned) has been issued after examination of the complainant u/s 200 and examination of witnesses u/s 202 Cr.P.C. Therefore, there is no infirmity or illegality in the impugned order. Sections for which the petitioners have been summoned i.e. 500 and 501 IPC are triable by the sessions, therefore, the prior direction for investigation could have not been issued by the Magistrate in view of the first proviso of section 202(1) Cr.P.C. .(Para - 13) Petition dismissed . (E-7)
Title: Hemant Tiwari & Ors. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Singh Chauhan
English hearing
A482/5475/2021 Judgment/Order Date: 20-12-2021 (2022)01ILR A254
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Indian Penal Code, 1860 - Sections 147, 148, 354, 452, 323, 504 & 506 , The Protection of Children From Sexual Offences Act, 2012 - Section 7/8 , The Scheduled Castes/Scheduled Tribes (Prevention from Atrocities) Act, 1989 - Sections 3 (i) (r), 3 (i) (s), 3 (ii) (v) - if any accused person has not been arrested during investigation and has cooperated with the investigation, there is no need to arrest him after filing charge sheet, particularly, if the nature of offences is not so serious - arrest is not mandatory in all cases and if the accused person is cooperating with investigation, there is no need to arrest . (Para - 10) Quashing of Charge-sheet , summoning order, non-bailable warrant including the entire proceeding - applicants/ petitioners have not been arrested during investigation - status of accused described - police granted bail - fully co-operated with the investigation - criminal case being lodged against the petitioners as a counter blast being a cross case.(Para - 4) HELD:-The courts have to be extremely careful before issuing non-bailable warrants. In the order where the bailable/ non-bailable warrant or proclamation under Section 82 Cr.P.C. is issued, the court must indicate that despite the service of summons or bailable warrant or non- bailable warrant the accused has not appeared. In the absence of such indication the coercive orders, would be treated as if they failed the test of statutory prescriptions prescribed under Sections 64 & 65 of the Cr.P.C. . (Para - 13) Petition disposed of finally. (E-7)
Title: Praveen Kumar Singh @ Praveen Singh & Ors. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Singh Chauhan
English hearing
A482/4542/2021 Judgment/Order Date: 17-12-2021 (2022)01ILR A244
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Sectio 220 - Trial for more than one offence , Indian Penal Code, 1860 - Sections 147, 148, 149, 332, 336, 307, 353, 341, 427, 188 & 120-B - Public Property (prevention of Damage) Act, 1985 - Section 3/4, Criminal Law (Amendment) Act, 1932 - Section 7 - Test of sameness - where there is proximity of time, or place or unity of purposes and design or continuity of action in respect of series of acts, the safe inference may be drawn that they form part of the same transactions - Merely because two separate complaints had been lodged, did not mean that they could not be clubbed together and one charge-sheet could not be filed. (Para -20, ) There are three FIRs - date of incidence same - Time of incidence different - protesters were opposing the implementation of CAA and NRC. - In all the three FIRs, the sections of I.P.C. are almost same except one or two charges - in first two FIRs Section 3/4 of Act, 1985 and Section 7 of Act, 1932 are involved - in third FIR Section 7 of Act, 1932 is not involved - In all the three FIRs, the complainants are Officers/ Officials of Police Station - three separate chargesheet filed. (Para - 32) HELD:- Merely because three separate FIRs have been filed do not mean that they could not be clubbed together and one charge- sheet could not be filed. Direction issued for clubbing all the three Charge-sheets together in as much as the occurrence indicated in the second and third FIR is prima-facie appearing as a fall out of the first occurrence indicated in the first FIR. Cognizance order quashed. petitioner is directed to appear/ surrender before the learned court below and may file bail application. (Para - 34,37,40) Three Petitions disposed of finally. (E-7)
Title: Shamshad Ahmad Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Singh Chauhan
English hearing
A482/3274/2018 Judgment/Order Date: 17-12-2021 (2022)01ILR A228
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Indian Penal Code, 1860 - Sections 120-B, 420, 468 and 471 , The Prevention of Corruption Act, 1860 - Sections 13(2) & 13(1)(d) - once the sanction order is refused, in absence of fresh material, it cannot be reviewed or reconsidered. (Para -47 ) Petitioners along with other officials of Airports Authority of India and a private contractor - entered into a criminal conspiracy - committed offence of cheating, forgery and criminal misconduct - caused a huge wrongful loss - competent authority initially did not grant sanction for prosecution - ground - evidence available on record not sufficient to prosecute the officers of AAI - on the direction of Central Vigilance Commission, such sanction for prosecution was granted .(Para - 9, 11,25) HELD:-Impugned sanction order not a valid order in as much as no fresh material was produced before the sanctioning authority and no further investigation of any kind whatsoever has been carried out by the investigating agency. Hence, the sanction order is unwarranted. Sanctioning authority has got no authority or power to review or reconsider its earlier order whereby he has refused to grant the sanction to prosecute the officers of AAI, the petitioners hereto. Impugned prosecution sanction order,cognizance order and order passed by trial court quash/set aside.(Para - 51,52,53,54) Petitions allowed. (E-7)
Title: Giri Raj Sharma Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Singh Chauhan
English hearing
A482/1979/2020 Judgment/Order Date: 11-01-2022 (2022)01ILR A217
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Indian Penal Code, 1860 - Sections 323, 354, 498A & 504 , Dowry Prohibition Act, 1961 - Section 3/4 - after lodging the FIR, which discloses the commission of a cognizable offence, statutory powers of Police, under Section 156 Cr.P.C. to investigate the case registered on the basis of information - no interference is permissible in the investigation in the exercise of its inherent powers, under Section 482 Cr.P.C. - this Court has no jurisdiction to direct a police officer not to arrest the accused during the pendency of investigation of the case - but High Court can always issue a writ of mandamus, under Article 226 of the Constitution restraining the police officer for misusing his legal power in relation to arrest - Fir can be quashed under section 482 Cr.P.C .(Para - 9) First Information lodged by opposite party No.4 - during the course of investigation - FIR and its consequential proceedings challenged before Court - matter referred to the Mediation and Conciliation Centre of Court - on the first date it was successfully concluded - opposite party No.4 enjoying her matrimonial life and residing with her husband and children .(Para - 18) HELD:-Impugned FIR and its consequential proceedings is liable to be quashed in terms of settlement agreement of parties before Mediation and Conciliation Centre of this Court. First Information Report is hereby quashed. (Para - 18,19) Application u/s 482 Cr.P.C. allowed. (E-7)
Title: Ishwar Singhal @ Tinu & Ors. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajeev Singh
English hearing