• Home
  • Tag: 夜上海论坛EMA

Significant Judgments Of Allahabad High Court In 2020

first_imgTop StoriesSignificant Judgments Of Allahabad High Court In 2020 Akshita Saxena2 Jan 2021 7:45 AMShare This – xSame-sex couples, Inter-faith marriages & Right to choose partner 1. “Right To Choose A Partner Of Choice A Fundamental Right”: Allahabad High Court Says The Judgments Which Held “Conversion For The Purpose Of Marriage Only” Not Good Law A Bench of Justice Pankaj Naqvi and Justice Vivek Agarwal specifically observed that “Right to live with a person of his/her choice…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginSame-sex couples, Inter-faith marriages & Right to choose partner 1. “Right To Choose A Partner Of Choice A Fundamental Right”: Allahabad High Court Says The Judgments Which Held “Conversion For The Purpose Of Marriage Only” Not Good Law A Bench of Justice Pankaj Naqvi and Justice Vivek Agarwal specifically observed that “Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty.” It remarked, “We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together.” The Bench held that a Single Judge’s recent order stating that conversion only for the purpose of marriage is not unacceptable, is bad in law. [Case: Salamat Ansari & Ors. v. State of UP & Ors.] Also Read: UP Governor Promulgates Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 20202. “She Has A Choice To Live Life On Own Terms”: Allahabad High Court Reunites An Interfaith Couple A Bench of Justice Pankaj Naqvi and Justice Vivek Agarwal reunited Salman and Shikha, an interfaith couple, separated by the latter’s parents. The Court noted that Shikha had “expressed that she wants to live with her husband (Salman @ Karan) she is free to move as per her own choice without any restriction or hindrance being created by third party.” [Case: Shikha & Anr. v. State of UP & Ors.] 3. Live-in Relationship Between Consenting Adults Not An Offence: Allahabad High Court Observing that a live-in relationship between two consenting adults is not an offence, a division bench comprising Justices Anjani Kumar Mishra and Prakash Padia granted police protection to a couple who wanted to live together. It observed that it is “settled the law that where a boy and a girl are major and they are living with their free will, then, nobody including their parents, has authority to interfere with their living together”. The Court also noted that to provide protection to women in live-in relationships, the Domestic Violence Act as been enacted to cover couples having relationship in the nature of marriage. Also Read: Upholding Love : In Last One Month, Allahabad High Court Grants Protection To Over 125 Inter-Faith/Caste Couples [Case: Kamini Devi & Anr. v. State of UP & Ors.] 4. Allahabad High Court Extends Protection To Same Sex Couple, Acknowledges The Stark Reality of Discrimination Faced By The Community In The Society The High Court granted protection from harassment to a homosexual couple from Uttar Pradesh, while citing the Supreme Court’s landmark verdict in Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1. “The petition highlights the stark reality of the society where the citizens are facing discrimination at the hands of the society only on account of their sexual orientation despite it being well settled that sexual orientation is innate to human being,” the Bench of Justices Shashi Kant Gupta and Pankaj Bhatia said. [Case: Sultana Mirza & Anr. v. State of UP & Ors.] 5. No Protection For Married Live In Partners, Holds Allahabad HC While consistently protecting live-in couples throughout the year, the High Court in one of its orders made it clear that where a man and a woman, during the subsistence of their marriages to other persons, reside as a live in couple, they will not be entitled to any protection under the law. A division bench comprising Justice Bharati Sapru and Justice Piyush Agrawal dismissed a writ petition moved by a live-in couple, who “candidly” stated that they had married to other persons but they now lived with each other. It observed that the sanctity of a marriage has to be preserved. If a party wants to opt out, it can always seek dissolution of the marriage in a valid manner. However, the Courts cannot lend aid to the people who choose to not abide by the law. [Case: Akhlesh & Anr. v. State of UP & Ors.] Right to Die with Dignity 6. Hathras Victim Was At Least Entitled To Decent Cremation; State Action Infringed Her Human Rights: Allahabad HC Dissatisfied with the reasons given by the UP administration for hasty cremation of the body of 19-year old Dalit woman in the Hathras gangrape and murder case, the Lucknow Bench of the Allahabad High Court expressed its displeasure on the entire incident and deprecated the local authorities for violating the victim and her family’s human and fundamental rights. “India is a country which follows the religion of humanity, where each one of us are supposed to respect each other in life and in death. However, the above facts and circumstances, as of now, ex facie, reveal that the decision to cremate the victim in the night without handing over the body to the family members or their consent was taken jointly by the administration at the local level and was implemented on the orders of the District Magistrate, Hathras. This action of the State Authorities, though in the name of law and order situation, is prima facie an infringement upon the human rights of the victim and her family,” the Bench of Justices Pankaj Mithal and Rajan Roy observed. The Court directed the Additional Chief Secretary (Home) to come out with a draft policy by the next date of hearing, so that proper guidelines in that regard may be laid to avoid incidents of this kind in future. Also Read: ‘Aware Of 2013 Amendment?’ : Allahabad HC Asks UP ADGP Who Denied Rape In Hathras Case Also Read: ‘Not Allowed To See Her Face For Last Time’ : Hathras Victim’s Family Break Down Before Allahabad HC Also Read: Would You Have Burnt Body If Victim’s Family Was Well-to-Do? Allahabad HC Asks Hathras DM Latest Update: Hathras Case: Allahabad High Court Proposes Viewing Of Audio-Visual Material By Parties On Jan 16 [Case: Suo-Moto Inre: Right To Decent & Dignified Last Rites/Cremation] Free Speech & Personal Liberty 7. ‘Dr Kafeel Khan’s Speech Does Not Promote Hatred Or Violence, It Gives A Call For National Integrity And Unity Among Citizens’: Allahabad HC The High Court set aside the detention order passed against Gorakhpur-based paediatrician Dr. Kafeel Khan, under the stringent National Security Act, 1980, allegedly for giving a provocative speech during an anti-CAA protest last year. He had been languishing in the Mathura Jail since January 2020. A Division Bench comprising Chief Justice Govind Mathur and Justice Saumitra Dayal Singh rapped the local District Magistrate who had passed the detention order under NSA, for a ‘selective reading’ of Khan’s speech and selective mention of few phrases from his speech, “ignoring its true intent”. Dr. Khan, who addressed a group of AMU students during protests against the contentious CAA Bill, inter alia, made insinuations against ‘Mota Bhai’ of promoting communalism instead of humanism. The High Court observed that Dr. Khan’s remarks in fact called for “national integrity and unity among the citizens”. “A complete reading of the speech prima facie does not disclose any effort to promote hatred or violence. It also no where threatens peace and tranquility of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence,” the High Court observed in a much-celebrated ruling. It made significant remarks with respect to right to liberty of citizens as reiterated below: “Preventive detention is an exceptional mode to curtail liberty and freedom of a person in exceptionally rare circumstances. Under Article 21 of the Constitution of India along with the right to life, the right to personal liberty is a precious fundamental right. This precious fundamental right must always be protected.” [Case: Nuzhat Perween v. State of UP & Anr.] 8. Allahabad HC Grants Anticipatory Bail To ‘The Wire’ Editor Siddharth Varadarajan, Accused Of Making Objectionable Remarks Against UP CM A Single Bench of Justice Chandra Dhari Singh allowed the anticipatory bail application filed by Founding-Editor of the Wire, Siddharth Varadarajan, while stating, “The court Right to life and personal liberty are one of the important fundamental rights guaranteed by the constitution and therefore, no person should be confined or detained in any manner unless he has been held guilty.” Varadarajan was booked under Sections 188, 505(2) of the IPC and Section 66D of the IT Act for allegedly making “objectionable” remarks against Uttar Pradesh Chief Minister Yogi Adityanath. Two FIRs were registered against him on April 1, at City Kotwali and Ayodhya Kotwali Police Station, for making “false claims” on Twitter that Adityanath had attended a religious event on March 25 in Ayodhya on the occasion of Ram Navmi, when a national lockdown was in force. [Case: Siddharth Varadarajan v. State of UP & Anr.] 9. Allahabad HC Grants Bail To Journalist Prashant Kanojia The High Court came to the rescue of freelance journalist Prashant Kanojia, booked for allegedly making social media against political leaders, with an intention to promote enmity between two or more communities/groups. It was alleged that Kanojia had posted pictures of the President of India, the Prime Minister and UP CM Yogi Adityanath on his Twitter account, accompanied by objectionable comments. It was further alleged that he also made comments against the Dalit community, and his posts were intended to incite caste and religious sentiments among the citizens of the country for inciting violence. While releasing Kanojia on bail, a Single Bench of Justice Attau Rahman Masoodi noted, “The submission as regards the quantum of punishment or entitlement of the accused applicant to be released on bail could not be disputed on any tangible ground”. [Case: Prashant Kanojia v. State of UP] 10. ‘Expressing Dissent Hallmark Of Democracy’: Allahabad High Court Quashes FIR For Tweets Against UP CM The Allahabad High Court on Wednesday held that merely expressing dissent against the affairs of the State is not a criminal offence. A division bench of Justice Pankaj Naqvi and Justice Vivek Agarwal in its judgement, stated, “Expressing dissent on law and order situation in the State, is a hallmark of a constitutional liberal democracy like ours, constitutionally protected under Article 19 of the Constitution.” The Court was hearing a writ petition filed by one Yashwant Singh. The petitioner had sought directions from the Court to quash an FIR that was lodged against him by the UP Police for his tweets which made critical remakes about the UP government. The Petitioner had tweeted that the Chief Minister of UP, Yogi Adityanath, has turned UP into a ‘jungleraj’, where law and order have no prevalence. The Petitioner also cited various incidents of abduction, demand of ransom and murders that rampantly taken place in the state. [Case: Yashwant Singh v. State of UP & Ors.] Right to Privacy 11. ‘No Court Can Shut Its Eyes If A Public Unjust Is Happening Just Before It’ : Allahabad HC On Suo Moto Action Against ‘Name & Shame’ Banners In March, a Bench of Chief Justice Govind Mathur and Justice Ramesh Sinha took suo moto cognizance of the infamous “Name & Shame Banners” raised by the UP Government, displaying photos and personal details of individuals allegedly involved in violence during anti-CAA protests. The Bench held a special sitting on a Sunday to deal with the issue and after an eventful hearing session, the High Court observed that the Government action had an “injurious effect” on the precious rights enshrined under the Constitution and that the Courts cannot “shut its eyes” if a public unjust is happening just before it. The Court concluded that the UP Govt had failed to show why the personal data of few persons had been placed on banners and it thus amounted to an “unwanted interference” with the citizens’ right to privacy. Undoubtedly, the Name & Shame banners had the effect of fixing liability on individuals without a trial and the High Court made extensive observations against such “colorable exercise of powers” by the Executive. “We do not find any necessity for a democratic society for a legitimate aim to have publication of personal data and identity. The accused persons are the accused from whom some compensation is to be recovered and in no manner they are fugitive. Learned Advocate General also failed to satisfy us as to why placement of the banners is necessary for a democratic society for a legitimate aim,” the order read. Latest Update: The State of Uttar Pradesh approached the Supreme Court against the HC verdict. The Supreme Court refused to stay the High Court verdict but referred the petition to a larger bench. [Case: In-Re Banners Placed On Road Side In The City Of Lucknow] Protection of Human Rights 12. [AMU Violence] Allahabad HC Directs UP Govt. To Take Action Against Policemen, Orders Compensation For 6 Students A Division Bench comprising of Chief Justice Mathur and Justice Samit Gopal ordered inquiry into alleged police excesses at the Aligarh Muslim University, during protests against the current Government’s pilot project, the Citizenship Amendment Act. Terming the incident to be a ‘human rights violation’ the Court had stated, “Section 12 of Protection of Human Rights Act, 1993 charges National Human Rights Commission as well as the State Human Rights Commission with duty for proper implementation as well prevention of violation of the human rights and fundamental freedoms available to every human being. Under the Act of 1993 the Commission may inquire suo motu or on a petition relating to the students for violation of human rights or abatement thereof or negligence in prevention of such violation by a public servant.” It thus constituted a six-member team of the NHRC, which recommended that action must be taken against the delinquent policemen in accordance with the law apart from compensating the injured students. Accordingly, the Court directed the Director General of Police of the UP Government to identify and take action against the errant policemen. A direction was also made to sensitize the police force and to impart special training so as to inculcate “professionalism” in handling such situations. The order came as a huge relief to students who were not only subjected to unwarranted brutality at the hands of executive but were also being projected as anti-nationals for raising a voice of dissent. [Case: Mohd. Aman Khan v. Union of India & Ors.] Name change a fundamental right 13. Change Of Name Is A Part of Right To Expression Under Article 19 & Article 21 of Constitution of India: Allahabad High Court A single bench of Justice Pankaj Bhatia observed that change of name is an expression guaranteed under Article 19 (1) (a) of the Constitution of India. This order was given in the light of a writ petition which was filed by Kabir Jaiswal, the petitioner, who had appeared for the class XI and XII CBSE exams as Rishu Jaiswal. “The individual ‘name’ is a facet of right of expression, which is guaranteed under Article 19(1) (a) read with Article 21 of the Constitution of India. The freedom of expression as guaranteed under Article 19(1) (a) includes within its sweep all forms of expressions and name in the present world is clearly a strong expression,” it stated. [Case: Kabir Jaiswal v. Union of India & Ors.]Right to shelter 14. Responsibility Of State To Protect Weaker Sections From Any Hardship During Pandemic: Allahabad HC Stays Demolition Of Ghaziabad Slum “When the entire globe is facing a pandemic, it is the responsibility of the State to protect everyone, more specifically the population of weaker sections from any hardship that may aggravate their plight adversely,” the Division Bench comprising of Chief Justice Govind Mathur and Justice Siddhartha Varma observed while restraining the Ghaziabad Development Authority from carrying out demolition in a slum area located at Ghaziabad. The Court was hearing a PIL concerning eviction of residents of Bhovapur Basti behind Radisson Blue Hotel at Kaushambi in Ghaziabad. The Petitioners had averred that the District Administration is continuously making efforts to remove them without providing any compensation/ alternative land for their rehabilitation, that too in the middle of a global pandemic. As interim relief, the court directed the authority to provide alternate accommodation, essential amenities and medical facilities to the displaced slum dwellers and also to take measures for their rehabilitation. The Court also directed the state to come up with the action plan for rehabilitating the slum dwellers on the next date of hearing. [Case: Dev Pal v. Ghaziabad Development Authority & Ors.] Use of Loudspeakers not an essential religious practice 15. No Religion Prescribes Use Of Loudspeakers For Worshipping: Allahabad HC Declines Mosques’ Request To Install Loudspeaker For Azaan Stating that no religion prescribes the use of loudspeakers for worshipping, the Allahabad High Court declined the permission sought by two mosques to install loudspeakers, for the purposes of Azaan. “No religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums and if there is such practice, it should not adversely affect the rights of the others including that of not being disturbed,” division bench of Justice Pankaj Mithal and Justice Vipin Chandra Dixit held. The Petitioners had argued that it is an essential part of their religious practice and it has become necessary with the increasing population to give call to the people on amplifiers and loudspeakers to come and pray. Declining that argument, the court held, “It is true that one can practice, profess and propagate religion as guaranteed under Article 25 (1) of the Constitution of India but the said right is not an absolute right. The right under Article 25 is a subject to the wider Article 19 (1) (a) of the Constitution and thus both of them have to be read together and construed harmoniously.” Also Read: Allahabad HC Allows Recital OF Azan By Muezzin From Minarets Of Mosques Amid Lockdown Without Microphones [Afzal Ansari & Ors. v. State of UP & Ors.] [Case: Masroor Ahmad & Anr. v. State of UP & Ors.] Rights of migrant labours, indigent and down-trodden 16. Throughout UP Cooks Being Paid Paltry Amounts Amounting To Forced Labour: Allahabad High Court Orders Increment As Per MWA The High Court took stern view against the authorities in a plea moved by Chandrawati Devi, a mid-day meal cook at the Basic Primary School Pinesar since 2005, whose services were terminated without any opportunity. The Single Bench of Justice Pankaj Bhatia observed that such cooks are paid such “paltry amounts” that their employment may qualify as “forced labour”. The Bench thus directed the State Government and Union of India to ensure that cooks are not paid wages less than the minimum prescribed under the Minimum Wages Act. [Case: Chandrawati Devi v. State Of UP & Ors.]  During subsistence of the Covid-induced lockdown, that forced thousands of migrant labours to undertake foot-journeys towards their homes, a Bench of Justices Anil Kumar and Saurabh Lavania asked the state Government to provide details on the facilities being provide to such workers/ laborers. A report was also sought on the status of workers/ labourers who were stranded in the state. The Court was hearing a PIL seeking directions to safeguard the rights of migrant workers, who were walking miles to reach their native places in the State of UP. The Petitioner had sought a direction to both the Central as well as the State Governments to ensure that the migrant/ labourers who are moving on the road are not left starving and to provide them essential necessities like food, drinking water and medical help, along with free of cost transportation to enable them to reach to their native places. [Case: Dileep Kumar Mishra v. Union of India & Ors.] 17. Submit Report On Scheme To Reduce Migration Of Natives Of UP To Other States: Allahabad HC Directs UP Govt. In Plea On Migrants Issue A Division Bench of Justice Govind Mathur and Justice Ramesh Sinha asked the Uttar Pradesh Government about the steps being taken to ensure that its natives are not forced to seek employment in other states. In a plea alleging step-motherly treatment given to migrant labours in other states, the Court ordered the Government to apprise it about the “scheme of the Government for rehabilitation of migrant workmen and their families in the State of Uttar Pradesh itself. The State is also required to give a complete layout to reduce migration of the natives of Uttar Pradesh to other parts of the country to earn minimum livelihood.” The Petitioners in this case had submitted that due to non-availability of basic infrastructure for employment in the State of Uttar Pradesh, lakhs of people migrate to the other States to earn their livelihood. The Court’s order further recorded, “Such migration is not at all wrong as the entire India is a union but the present attitude of the State Governments, where these people were working, is contrary to the spirit of union and federal structure, therefore, it is more necessary for the State of Uttar Pradesh to strengthen its edifice for local employment.” [Case: Ritesh Srivastava & Anr. v. State of UP] 18. Right Of An Indigent Accused To Free Legal Services Will Be “Illusory” Unless The Court Informs Him Of Such Right The High Court observed that while prosecuting an indigent person who cannot afford to engage of lawyer, the court must provide him with “real and meaningful” free legal aid. The Single Bench of Justice Rajeev Singh observed that if adequate legal is not provided to an accused during trial, the same will be violative of his rights under Article 21 of the Constitution. The observations were made while allowing a revision petition for quashing the order passed by Special Judge (POCSO) whereby the Revisionist’s application under Section 311 CrPC for recall of the witnesses for cross-examination was rejected. The revisionist submitted that since he was not in a position to engage lawyer, Amicus Curiae for defending him was provided by the trial court at State expenses. However, the said Amicus Curiae did not avail the opportunity to cross-examine the witnesses, that too without consulting him. The court observed that the impugned actions of the Amicus Curiae did not come across as real and effective and held that the impugned order had been passed on the wrong premise. It went on to state that if adequate legal is not provided to an accused during trial, the same will be violative of his rights under Article 21 of the Constitution. [Case: Shadaan Ansari v. State of UP & Ors.] 19. Man Kept In 8-Months Illegal Confinement As ‘Middle Name’ Was Missing To His Name In Bail Order, Allahabad High Court Orders Release, Summons Jailer The High Court pulled up the Jailer/Jail Superintendent, who refused to release Vinod Baruaar as the word ‘Kumar’ was missing to his name in the bail order. Condemning the reprehensible and contumacious conduct of the authorities, the Bench of Justice JJ Munir directed the Jail Superintendent/Jailer to appear before the Court and explain as to why appropriate departmental inquiry may not be recommended against him. “This Court does not appreciate our orders being flouted with impunity. This Court fails to understand that when the applicant’s name mentioned in the bail rejection order is ‘Vinod Baruaar’, then why ‘Kumar’ must be added to the name mentioned in the bail order, in order to make it effectual,” the Court said. It further remarked, “This kind of a trifling of mistake pointed by the Jail Authorities must invite severe punishment, unless there is a serious doubt or dispute about the identity of the applicant. That, apparently, is not the case here. The sole purpose of not complying with the bail orders for all these eight months appears to be, prima facie, an obstinate attitude of the jail administration in carrying out the orders of this Court. In the process, they have deprived a citizen of his liberty, without any just or reasonable cause, since April, 2020 till date. This illegal deprivation of liberty is patently an illegal confinement and that too, during these perilous Covid-19 times.” [Case: Vinod Baruaar v. State of UP] 20. An Alcoholic Person Who Is Otherwise Of Sound Mind Can’t Be Kept In Rehab Centre Against His/Her Will: Allahabad High Court The Bench of Justice JJ Munir held that an alcoholic person who is otherwise of sound mind can’t be kept in Rehab Centre (Nasha Mukti Kendra) against his/her will and wish. “If a person is an alcoholic but otherwise of sound mind about there is no authority with any relative of his or Drug De Addiction and Rehabilitation Centre to detain him in custody against his will and wish,” the Court said. [Case: Ankur Kumar & Anr. v. State of UP & Ors.] 21. Mass Disaster/Pandemic May Severely Obstruct Our Life But Doors Of Courts Must Remain Open For Protection Of Article 21: Allahabad High Court While observing that “non-performance of duty owing to holidays is a serious dereliction of duty on the part of the Session Judges/magistrates”, a Bench of Justice Attau Rahman Masoodi rapped the Magistrates/Session Judges from the district Lucknow/Hardoi and the State for failure to perform its duty and rejecting the Petitioners’ plea for default bail under Section 167 of CrPC. The Court specifically observed, “A mass disaster or Pandemic may severely obstruct our life and governing systems in many ways but the doors of the courts of law must remain open for the protection of Article 21 of the Constitution of India.” [Case: Abhishek Srivastava v. State of UP] Anticipatory bail 22. Section 438 CrPC Doesn’t Mandate That Sessions Court Must Be Moved First; But Special Circumstances Must Be Shown To Directly Approach HC A 5-judge bench of the Allahabad High Court clarified that under special circumstances, a person apprehending arrest may approach the High Court directly seeking anticipatory bail, without approaching the Sessions court first. The decision was rendered by a five-Judges bench comprising Chief Justice Govind Mathur and Justices Ramesh Sinha, Sunita Agarwal, Yashwant Verma and Rahul Chaturvedi, while answering a reference made by a single-Judge of the high court. Section 438 confers concurrent jurisdiction on both High Court and the Sessions Court to entertain an application for anticipatory bail. Notwithstanding this concurrence, the bench observed that strong, cogent, compelling and special circumstances must necessarily be found to approach the High Court first, without the avenue as available before the Court of Sessions being exhausted. “…special circumstances must necessarily exist and be established as such before the jurisdiction of the High Court is invoked. The application must rest on a strong foundation in respect of both the apprehension of arrest as well as in justification of the concurrent jurisdiction of the High Court being invoked directly,” it held. [Case: Ankit Bharti v. State of UP & Anr.] 23. Anticipatory Bail Can Be Granted Even After Chargesheet Has Been Filed: Allahabad High Court A single bench of Justice Siddharth held that anticipatory bail can be granted even after a chargesheet in the criminal case has been filed. The Court further stated that the anticipatory bail need not be in place for a limited duration of time. In many cases, it can even go on till the conclusion of the trial. The High Court’s power to grant an applicant anticipatory bail doesn’t conclude after the submission of the chargesheet. This decision was given by the Court when it was presented with a pre-arrest bail plea filed by the petitioner, Adil. He had earlier been granted anticipatory bail till submission of the police report under Section 173(2) CrPC. He had put in the application, seeking a second anticipatory bail. The AGA, appearing on behalf of the state argued that that once anticipatory bail has been granted to the applicant and such bail has been availed, there is no circumstance where further anticipatory bail can be granted to him till the trial has been concluded. The Court dismissed the argument presented by the respondent and the petition was allowed. [Case: Adil v. State of UP] 24. Rejection Of Anticipatory Bail Not a Ground For Not Entertaining Petition For Quashing Of FIR: Allahabad High Court A division bench of Justice Devendra Kumar Upadhyaya and Justice Saroj Yadav, while dealing with a petition seeking anticipatory bail in a case of abetment of suicide, held that rejection of anticipatory bail from the High Court is not a ground for the Court for not entertaining a petition under Article 226 for quashing of the FIR. The Court observed that the scope of Article 226 is much broader than the scope of Section 438 of CrPC. The bench while granting interim relief to the petitioner discussed the scope of anticipatory bail in writ jurisdiction of the High Courts and also dealt with the essential elements in meeting the requirements of Section 306 IPC. The Court held that in order to make on offence under Section 306, mere allegation of harassment does not suffice. There must be a proof of direct or indirect act of incitement leading to commission of suicide. The case concerned to an FIR registered under Sections 147, 323, 504, 506 and 306 of IPC. The petition was filed by sister-in-law of the deceased seeking anticipatory bail from arrest against the allegations of harassment and abetment to suicide. [Case: Nasim Bano v. State of UP & Ors.] 35. ‘Give Complete Details Of Criminal Antecedents Of Applicants In Bail Orders’: Allahabad High Court Directs Trial Courts A Bench of Justice Samit Gopal directed the Courts to “give a complete details of the criminal antecedent(s), if any, of the applicant(s)/accused before them or record the fact that there are no criminal antecedent(s) of the said person(s) if there are none.” It observed, “Although the criminal antecedents of the accused are not the sole and decisive factor for decision of bail applications but the same needs to be considered while deciding an application for bail under Section 439 Cr.P.C.as per the legislative mandate of Section 437 Cr.P.C.” The direction was passed while hearing a regular bail application filed by one Uday Pratap, seeking enlargement on bail during trial in connection with a criminal case registered under Sections 364, 302, 201, 120B and 34 of IPC. [Case: Uday Pratap @ Dau v. State of UP] Compassionate appointment 26. Marital Status Of A Daughter Alone Not A Ground For Rejecting Claim For Compassionate Appointment: Reiterates Allahabad HC The High Court observed that marital status of a daughter alone cannot be the ground for rejecting her application for compassionate appointment in terms of the UP Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. With this observation, Justice Manish Mathur directed the state to reconsider the Petitioner’s application for an appointment in place of her deceased father. The Court observed that the law on this point has already been settled by the high court on two different occasions. In Smt. Vimla Srivastava v. State of UP & Ors., Writ C No. 60881/2015, a division bench had held that exclusion of married daughters from the ambit of expression, ‘family’ in Rule 2(c) of the Rules of 1974 is unconstitutional. It also struck down the word ‘unmarried’ in Rule 2(c) (iii) of the said Rules. [Case: Mala Devi v. State of UP] 27. Husband’s Appointment On Compassionate Ground Won’t Take Away His Fundamental Right Of Remarriage: Allahabad High Court A bench of Justice Pankaj Mithal ruled, “Merely because petitioner has been appointed on compassionate basis, he cannot be forced to sacrifice his/her fundamental right of remarriage, after the death of the earlier spouse.” Further, the Court said, “A person would not earn any disqualification on this score and warrant any disciplinary proceedings.” In this case, the petitioner (husband) was appointed on compassionate basis on the death of his wife. The petitioner intended to marry the younger sister of his wife; therefore, he sought permission to re-marry from Basic Shiksha Adhikari where he was employed. The Court stated, “There is no provision under law which requires any person to seek permission from the employer for re-marriage.” [Case: Mohammad Haidar v. State Of UP & Anr.] Preventive detention Laws should be used with extreme care 28. ‘Extraordinary Haste Shown’: Allahabad High Court Cautions State To Use National Security Act With Extreme Care During hearing of a plea filed by Javed Siddiqui against his arrest under the stringent National Security Act (NSA), the High Court cautioned the authorities to be extremely careful while complying with the procedures prescribed therein. “Where the law confers extra-ordinary power on the executive to detain a person without recourse to the ordinary law of the land and to trial by courts, such a law has to be strictly construed and the executive must exercise the power with extreme care,” the Bench of Justice Pritinker Diwaker and Justice Pradeep Kumar Srivastava said on noting that Siddiqui’s petition report was not presented before the Advisory Board on time. [Case: Javed Siddiqui v. Superintendent District Jail Jaunpur & Ors.] Section 66A is unconstitutional, reminds HC 29. UP Police Disregarding Supreme Court’s Shreya Singhal Verdict By Registering FIRs Under Section 66A IT Act The High Court quashed a number of FIRs registered under Section 66A of the IT Act, despite the fact that this provision was declared as unconstitutional by the Supreme Court in 2015 Shreya Singhal judgment. A bench comprising Justices Ramesh Sinha and Samit Gopal was in fact constrained to observe that it is encountering many such challenges against FIRs lodged under Section 66A. “The authorities concerned in spite of the clear mandate of the Hon’ble Apex Court in the Case of Shreya Singhal (Supra) declaring the same as ultra-vires and later on in the case of Peoples’ Union for Civil Liberties (Supra) having reminded the said situation through a specific order have become inresponsive and insensitive to the issue. Time and again reminders have been issued by this Court for effective and actual enforcement of it and of the fact that Section 66-A of the Information Technology Act, 2000 has been declared ultra-vires and also in spite of the fact that the said judgment declaring it to be so, has been ordered to be circulated amongst the officers concerned, there appears to be no regards for the same and the situation remains as earlier as is the said section is well in force,” the Bench remarked. [Case: Rajesh Singh & Ors. v. State of UP & Ors.] 30. ‘Amazed That FIRs Under ‘Unconstitutional’ Section 66A IT Act Are Still Being Registered In UP’: Allahabad HC Quashes FIR “We are amazed that despite Section 66-A of the Information Technology Act, 2000 having been declared ultra vires by the Apex Court in Shreya Singhal vs. Union of India, (2015) 5 SCC 1 yet F.I.R’s are being registered in our State under the said provision…We are back to square one wherein the instant FIR has been registered under Section 66-A of the I.T. Act, 2000. Prima facie the action discloses complete disregard to the orders of the Hon’ble Apex Court,” the High Court observed in yet another case emanating from a FIR lodged under Section 66A of the IT Act. Also Read: How FIR U/s 66A IT Act Has Been Registered? Allahabad HC Pulls Up UP Police; Seeks Explanation From Mathura SSP [Case: Nand Lal Singh Yadav v. State Of UP] Covid & Lockdown 31. Allahabad HC Takes Suo Moto Cognizance Of Unhygienic Conditions In Quarantine Centers [In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive Respondent] A division bench comprising of Chief Justice Govind Mathur and Justice Siddharth Varma at the Allahabad High Court addressed all the issues arising out of the Covid-19 pandemic and the consequent lockdown by way of a suo moto case, that was initially registered to make sure that the Quarantine Centres in the State are functioning properly. The bench also directed the authorities to keep a regular check on the health and living conditions of migrant workers. The matter was later assigned to Bench comprising of Justices Siddhartha Varma and Ajit Kumar that passed a series of directions in this case, over a span of eight months, including those for (i) mass testing in the entire state, (ii) strengthening health facilities at Government hospitals; (iii) use of CCTV cameras to monitor whether people follow social distancing norms; (iv) regulation of restaurants/eateries selling open food, (v) 24X7 surveillance in public places, etc. The Bench consistently kept tabs with implementation of social distancing norms, and several times rapped the administration for failing to enforce the 100% mask rule. “People have got a wrong impression that they can now freely mix with each other,” the High Court said in one of its order while asking the State Government to take strict action against those not following physical distancing norms, including ‘incarceration’. When the situation worsened, the High Court even suggested imposition of another Lockdown, if need be, while stating “When we have to balance between bread and butter and life, the latter has to prevail. Food is for life to survive and not vice-versa. We do not think that a lock down for a fortnight would bring the economy of the State to such a halt that people would die of hunger.” Also Read: “No Person Should be Seen Outside his/ her House Without Mask on Face”: Orders Allahabad HC Saying ‘If Action Not Taken Today, We Won’t Be Able To Face Our Progenies’ Inter alia, the High Court passed the following orders in view of the public health emergency: 32. ‘Complete Prohibition Of Essential Religious Practices Is In Proportion To The Unprecedented Pandemic’: Allahabad HC Refuses To Permit Muharram Processions The Division Bench comprising Justices SK Gupta and Shamim Ahmed dismissed a batch of petitions seeking permission to take out Tazia procession during Muharram, on August 29. “It is with a heavy heart that we hold that in these testing times, it is not possible to lift the prohibition by providing any guidelines for regulating the mourning rituals/practice connected with the 10th day of Moharram,” it said. The Court also said that complete prohibition of practices which are essential to our religions is very much in proportion to the unprecedented situation we are faced with. Also Read: [Eid-Al-Adha] ‘Restrictions Do Not Impinge Upon Fundamental Rights Of Members Of Any Religion’; Allahabad HC Dismisses Plea To Ease COVID-19 Norms [Dr. Mohammad Ayub v. State of UP & Ors.] [Case: Japhar Abbas v. Union of India & Ors.] 33. Covid 19: Allahabad HC Prohibits Serving Of Hookahs In Restaurants/Cafes Until Further Orders As a preventive measure against the spread of Corona virus, the Division Bench comprised by Justices Shashi Kant Gupta and Shamim Ahmed prohibited the serving of Hookah/s in restaurants, cafes etc., in the State of UP with immediate effect. “The communal nature of water pipe smoking means that a single mouth piece and hose are often shared between users, especially in social settings. The difficult-to-clean long pipes and a cold water reservoir makes them ideal for coronavirus transmission. Infection can be transmitted through hookah by waterpipe smoking,” the Court said. [Case: Suo Moto v. State of UP & Ors.] 34. Allahabad HC Directs Govt To Establish District Level Committees To Supervise Functioning Of Quarantine Centers The bench comprising of Justices Shashi Kant Gupta and Saurabh Shyam Shamshery directed the State of Uttar Pradesh to constitute a three-member Committee in every district so as to ensure that persons who have completed their Quarantine period and have tested Covid-negative are released forthwith. The court clarified that the Committee will not only supervise the functioning of the Quarantine Centers but will ensure also that such centers are properly maintained and administered. [Case: Shaad Anwar v. State of UP] 35. Allahabad HC Allows Bail Plea Directly Without Requiring The Accused To Approach Trial Court A Bench of Justice Siddharth allowed a bail petition filed directly before it under Section 439 for CrPC without requiring the Petitioner to first approach the Trial Court, on account of the lockdown situation. “Extraordinary circumstances requires extraordinary remedies and therefore this court is inclined to consider the present bail application in exercise of its power under Section 439 Cr.P.C., but without making it a precedent for normal times,” the bench said. [Case: Suraj Kumar v. State of UP] 36. ‘Spread Awareness Rather Than Putting Lockdown Violators In Jails’: Allahabad HC A bench comprised by Justice Sunita Agarwal and Justice Saumitra Dayal Singh advised the Police authorities to desist from taking coercive action and rather spread awareness regarding adversities of lockdown violation. “There is no doubt that the denizens of the city are under obligation to follow the protocol of social distancing in collective fight of the country with pandemic Covid-19. It is the responsibility of each and every person to be aware of the protocol and see that others follow it strictly. However, in our opinion restraining these persons who for some reason violated the protocol of social distancing may further aggravate the Corona crisis,” the Bench observed. [Case: Munna & Ors. v. State of UP & Ors.] 37. Allahabad HC Allows Release Of Prisoners On Personal Bonds Due To Non-Availability Of Sureties During To Lockdown The single bench of Justice Abdul Moin ordered that all the accused persons, whose bail applications had been allowed subsequent to March 15, 2020 but had not been released due to non-availability of sureties amid the lockdown, may be released on execution of personal bonds. [Case: Ankit Gupta v. State Of UP] Tablighi Jamat 38.  ‘They Are Also Entitled To Equal Protection Of Law”, Allahabad HC Grants Bail to 6 Foreign Members of Tablighi Jamaat A Bench of Justice Jaspreet Singh granted bail to six members of Tablighi Jamaat, who happen to be citizens of Kyrgyzstan, and held that the applicants, even though are foreign nationals, cannot be deprived of their personal liberty except in procedure established by law and that they are also entitled to equal protection of law and equality before the law. Court, in its order said, “The law does not permit any differentiation between Indian nationals and foreign citizens in the matter relating to grant of bail. What is permissible while considering the facts and circumstances of each case, the Court can impose different conditions which may be necessary to ensure that the accused is made available for facing the trial and an application for bail cannot be rejected solely on the ground the applicants are foreign nationals.” Court also noted the fact that unless and until extreme circumstances are pointed out, it cannot be considered that the parameters for considering a bail application for a national or a foreigner would be on a different footing before the Court of law. Also Read: [Nizamuddin Tablighi Jamaat Case] ‘Govt. Of India & Bangladesh Can Decide The Fate Of Criminal Cases Otherwise Than By Way Of A Judicial Trial’, Observes Allahabad HC [Case: Sagynbek Toktobolotov & Ors. v. State of UP] 39. Charge Of Attempt To Murder For Attending Tablighi Jamaat Congregation Prima Facie Abuse Of Process Of Law: Allahabad High Court While staying further criminal proceedings against one Mohd. Sad for attending Tablighi Jamaat Congregation, a Bench of Justice Ajay Bhanot observed that charge sheeting the applicant under Section 307 IPC, i.e. attempt to murder, prima facie reflected abuse of the power of law. It directed the concerned officer to file his personal affidavit indicating as to how the ingredients of Section 307 IPC are made out from the facts in the record from the material collected during the investigation. [Case: Mohd. Saad v. State of UP & Anr.] Other significant rulings 40. Sec. 164(2) Of Companies Act Valid; But FY Before 2014-15 Not Relevant For Its Application In a significant ruling, the Allahabad High Court upheld the constitutional validity of Section 164(2) of the Companies Act, 2013, which stipulates that a Director whose company has not filed financial statements or annual returns for any continuous period of three financial years, shall be disqualified from holding the position for five years. The Court also held that the “financial year” for the purpose of the Section will start only from 2014-15. The division bench of Justices Sudhir Agarwal and Rajeev Misra said that the provision rightly differentiated between tainted and untainted Directors on the basis of an intelligible classification and thus, was not violative of Article 14 of the Constitution. [Case: Jai Shankar Agrahari v. Union of India & Anr.] 41. Withholding Gratuity Amount Merely Due To Pendency Of Criminal Investigation Violates Article 300A Of The Constitution The Single Bench of the Allahabad High Court, Justice Ashwani Kumar Mishra observed that withholding the amount of gratuity payable to a retired employee of State merely on account of pendency of criminal investigation against him at the time of retirement violates Article 300A of the Constitution. “The right of a retired employee to receive pension and gratuity is recognised as a property which cannot be deprived except by having recourse to law in view of Article 300-A of the Constitution of India. The power of State to withhold pension and gratuity, therefore, must be exercised strictly as per the applicable law and if the State action is not found to be in consonance with it, the withholding of gratuity would violate Article 300-A of the Constitution of India. The denial of such constitutional right, therefore, would be liable to be interfered with by this Court under Article 226 of the Constitution of India,” held the court. [Case: Udai Narain v. State of UP & Ors.] 42. Time-Bound Contractual Services On Honorarium Basis Cannot Be Classified To Be An Office Of Profit A Bench of Justice Attau Rahman Masoodi held that time-bound contractual services on honorarium basis cannot be termed to be an office of profit and hence, an elected pradhan, receiving honorarium in a private contractual service, alone is not a decisive factor to state that he is disqualified from being pradhan. Holding an office of profit by an elected pradhan leads to disqualification for membership of a Gram Panchayat, by virtue of Section 5-A(c) of the U.P. Panchayat Raj Act, 1947. [Case: Neelam Nigam v. State of UP] 43. Offences Under SC/ST Act Is Made Out When Offence Is Perpetrated In Public The Allahabad High Court has held that for constituting an offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the alleged offence should have been committed in “public view”. The single-Judge bench comprising Justice Ram Krishna Gautam clarified that where a person is allegedly insulted for being a member of the SC/ST community behind closed doors, the SC/ST Act cannot be applied. [Case: KP Thakur & Anr. v. State of UP & Anr.] 44. Special Courts Under SC/ST Act Empowered To Take Direct Cognizance Of IPC Offences The High Court held that Special Courts under the SC/ST Act are empowered to take direct cognizance of offences committed under IPC and committal of the case to it by a magistrate under Section 193 of CrPC is not a mandatory precondition. Section 193 CrPC stipulates that no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under CrPC. The bench comprising Justice Dinesh Kumar Singh-I held that if the Special Court was not allowed to conduct a joint trial and a separate trial were conducted for offences committed under IPC the same would lead to a miscarriage of justice. [Case: Sumit v. State of UP & Anr.] 45. ‘Even If Will Not Enforceable For Being Void, It Is Not Non-Est & Is Admissible Under Evidence Act S. 32(5) To Decide Pedigree’: Allahabad HC Expounding the difference between the concepts of ‘void’ and ‘non-est’, the bench of Justice Salil Kumar Rai held, “Even if the Will is not enforceable for being void or may not be relevant under Section 32(6) of the Evidence Act, 1872 as a Will, it would still be admissible and relevant under Section 32(5) of the Act because the relevant recital in the Will is a statement in writing of the deceased and relates to the existence of a relationship by blood about which the testator had special means of knowledge.” [Case: Bhrigurasan & Ors. v. DDC & Ors.] 46. Stamp Duty Cannot Be Levied On Contact Security’: Allahabad High Court The Bench headed by Justice Jayendra Thaker quashed the order demanding stamp duty on contract security. It observed, “The Authorities empowered shall in no circumstance demand stamp duty beyond the scope of Article 57 (b) Schedule 1B of Stamp Act,” Article 57 (b) Schedule 1 B stipulates that stamp duty may be levied on the Security Bond and Mortgage Deed, inter alia executed by a surety to secure the due performance of a contract or the due discharge of a liability.” [Case: M/S Yogendra Kumar v. State of U.P & Ors.] 47. Bar Council Has No Power To Constitute Elders Committee For Bar Associations: Allahabad HC The Division Bench comprising of Justices Sunita Agarwal and Ajay Bhanot clarified that the Bar Council does not have the jurisdiction to “usurp” the power for constitution of an Elders Committee under the Bye-laws of a Bar Association. It held that Elders Committee is a “permanent statutory committee” and any dispute relating to its constitution can only be raised either before it or the General Body of the Bar Association. [Case: Meerut Bar Association & Anr. v. Bar Council of UP & Ors.] 48. Non-Function Of JJ Boards Against Mandate Of A. 15(3) & UNCRC: Allahabad HC Directs State Govt. To Fill Vacancies At least 6 Months Prior To Falling Due Reiterating that non-function of the Juvenile Justice Boards is clearly against the mandate of Article 15(3) and against the solemn promise made in the form of ratification of the United Nations Convention on the Rights of Children treaty, the Bench of Justices Shashi Kant Gupta and Pankaj Bhatia observed that in the future, the State Government should ensure that the vacancies are expeditiously filled up and steps for filling the vacancies be taken at least six months prior to the date of the vacancy falling due. [Case: Ishwari Prasad Tiwari v. State of UP & Ors.] 49. [Discharge U/s 245 CrPC] There Is Difference Between An Unrebutted Case & Unrebutted Evidence: Allahabad HC Single Bench of Justice Chandra Dhari Singh held that while deciding whether to discharge an accused person under Section 245 of CrPC, the Court must examine if there is a “prima facie case” made out against him. The Court has clarified that the Court has to examine whether a “case”, which, if unrebutted, would warrant a conviction is made out and not whether “evidence” if unrebutted, would warrant a conviction. “It is not the mandate under Section 245(1) Cr.P.C. that evidence if unrebutted would warrant a conviction, charge has to be framed. The language of Section 245(1) makes it very clear that evidence will have to be adduced and thereafter the court will have to consider whether a case, which, if unrebutted, would warrant a conviction is made out. It is not the mandate of law that the court need only consider whether “evidence if unrebutted, would warrant a conviction.” What should be considered is whether a case if unrebutted, would warrant a conviction. I must note that there is a distinction between these two circumstances,” the Bench said. [Case: M/S Daurala Sugar Works v. State of UP & Anr.] 50. Contravention Of Obligations Cast Upon Promoters Under RERA Act: Authority Fully Empowered To Award Interest U/S 38(1), Holds Allahabad HC A Division Bench of Justices Surya Prakash Kesarwani and Dr. Yogendra Kumar Srivastava held that in case of contravention of any obligation cast upon the promoters under the Real Estate (Regulation and Development) Act, 2016, the Authority while exercising jurisdiction under Section 38(1), is fully empowered to award interest on the amount paid by allottees. The Court on the other hand observed that a combined reading of Section 18 and 38 of the RERA Act empower the authority to impose interest in case of contravention. [Case: Paramount Prop Build Pvt. Ltd. v. State of UP & Ors.] 51. [S. 311 CrPC] Accused Has A Right To Summon Any Evidence/Witness Relevant For Proper Appreciation Of Prosecution Evidence: Allahabad High Court The Single Bench of Justice Rajiv Joshi allowed an application for recall of witness moved by an accused under Section 311 of CrPC, while holding that the same is a matter of right, when it comes to proper appreciation of the prosecution evidence. “There can be no dispute that the accused has a right to summon any evidence/witness which may be relevant for proper appreciation of the prosecution evidence and to substantiate his defence, therefore, in any case when the mobile and pen drive have already been exhibited in the record, then, recall of the injured witness appears to be necessary for his re-examination by the defence on the question of that video clip,” the Court held. The power to summon material witness, or examine person present under Section 311 of CrPC stipulates that any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case. [Case: Amarjeet @ Kaluwa v. State of UP & Anr.] 52. [Dishonour Of Cheque] Once Intention Of Drawer To Not Make Payment Is Clear, Drawee Need Not Wait For 15 Days To File Complaint: Allahabad High Court While interpreting Section 138 of the Negotiable Instrument Act, 1881, a Bench of Justice Dr. Kaushal Jayendra Thaker held that once the intention of the party is clear that it does not wish to make payment, the Complainant need not wait for the minimum period 15 days. “The only object of proviso (c) to Section 138 of the Act, 1881 is to avoid unnecessary hardship if the drawer wants to make payment,” it said. However, it cannot be interpreted to mean that even if the accused refuses to make payment, the complainant cannot file a complaint. [Case: Ravi Dixit v. State of UP & Anr.] 53. Allahabad High Court Holds That 3 Years Limitation For Filing Claim Petition Is Applicable To All Insurance Policies Irrespective Of Its Terms Giving huge relief to farmers and other marginalised sections of the society, a Division Bench of Justices Shashi Kant Gupta and Pankaj Bhatia held that the period of limitation of 75 days for filing a claim under Government insurance schemes, particularly the Mukhyamantri Kisan Avam Sarvahit Bima Scheme is unreasonable and arbitrary. It noted that such a short period of limitation militates against the ‘socio-beneficial’ object of the Scheme and is therefore liable to be set aside. The Bench ordered that for filing claim petition, a period of three years from the date of the death of the deceased, or from the date when the claim is partly or wholly denied, as also given under the Insurance Act and the Limitation Act, shall be available to the beneficiaries under the impugned scheme. [Case: Gautam Yadav v. State of UP & Ors.] 54. Filing Of Writ Petition Only For Directions To Create Awareness Regarding Certain Laws Is Not Proper: Allahabad High Court A Division Bench of Justice Pankaj Mithal and Justice Saurabh Lavania observed that the filing of Writ Petition, praying for directions to create awareness regarding certain laws is not proper and that “it appears that such petitions are filed only for the sake of popularity.” The Court was of the view that every citizen of the country is presumed to be aware of the laws of the land. But even then, it may be necessary at times to create awareness. It further observed that Courts, in a given case, if necessary, may issue directions for taking steps for creating awareness regarding certain laws, but filing of writ petition only for the above purpose is not proper. [Case: Dr. Syed Rizwan Ahmed v. Union Of India & Anr.] 55. DNA Test For Paternity Most Authentic For Wife To Establish That She Had Not Been Unfaithful, Adulterous Or Disloyal: Allahabad High Court A Bench of Justice Vivek Agarwal observed that DNA Test is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. It said, “This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal.” The observation is relevant in light of the presumption under Section 112 of the Indian Evidence Act that any person born during the continuance of a valid marriage between his mother and any man, shall be conclusive proof that he is the legitimate son of that man. The issue in this case before the Court was, as to whether a Court, in a divorce petition filed by Husband, under Section 13 of the Hindu Marriage Act, 1955 on the ground of adultery, can direct the wife, either to undergo a D.N.A. test or refuse to undergo a D.N.A. test? The High Court while mooting for DNA Test relied on Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another, 2014 (2) SCC 576, where the Apex Court had observed that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act. [Case: Neelam v. Ram Asrey] 56. No Limitation Period For Filing Motor Accident Claim Petition; Amendment Introducing Six Months Cap Yet To Be Notified, Clarifies Allahabad High Court A Single Bench of Justice Dr. Kaushal Jayendra Thaker made it clear that amendments proposed to Section 166 (Application for compensation) of the Motor Vehicles Act, 1988 are yet to be notified. Thus, the proposed limitation period of six months for filing a claim petition before the Motor Accident Claims Tribunal has not yet come into force. “I have enquired from Sri Ojha, State Law Officer and the position is that 166 (3) has not been brought on the statute book. What is the position is that 166 of 1998 Act would still govern the litigation as of today,” the Court said. It clarified that Section 53 of the Motor Vehicles (Amendment) Act, 2019 which proposes to amend Section 166 of the principal Act and introduce a six months limitation period for filing a claim petition, was not notified by the Central Government on August 9, 2019 (date when major provisions of the Amendment Act were notified). [Case: Shailendra Tripathi & Anr. v. Dharmendra Yadav & Ors.] 57. Private Financial Institutions May Be Performing Public Duties But Can’t Be Considered ‘State’ Under Article 12 Of Constitution: Allahabad High Court A Bench of Justices Naheed Ara Moonis and Vivek Varma reiterated that private financial institutions (in this case HDFC), carrying business or commercial activity, may be performing public duties, but cannot be considered to be covered under the definition of “State” under Article 12 of the Constitution. Reliance in this regard was placed on Federal Bank Ltd. v. Sagar Thomas and others, (2003) 10 SCC 733, whereby the Supreme Court had held that, “Any business or commercial activity, may be banking, manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money are no doubt, such which do have impact on the economy of the country in general. But such activities cannot be classified as one falling in the category of discharging duties or functions of a public nature.” [Case: Kailashi Devi v. Branch Manager & Anr.] 58. Consent Of Wife, Estranged But Not Divorced, Necessary For Adoption Under Hindu Adoptions & Maintenance Act: Allahabad High Court A single Bench of Justice JJ Munir passed an order saying that a man, living separately from his wife without obtaining a divorce, needs the consent of such estranged wife to adopt a child under the Hindu Adoptions and Maintenance Act, 1956. “A wife living apart from the husband, utterly estranged, is still a wife, until the marital bond between the parties is severed by a decree of divorce or nullity of marriage,” the Court held wrt the Hindu Marriage and Adoption Act. This case was brought to light when a petition was filed by Bhanu Pratap Singh, seeking compassionate employment from the Forest Department, in place of his late uncle Rajendra Singh. The Court ruled his adoption to be null as he was adopted by his uncle, without the consent of his aunt. The Court emphasized that his uncle and aunt were still married but they had been living separately at the time. [Case: Bhanu Pratap Singh v. State of UP & Ors.] 59. GST Rate & HSN Code Requisite In Notice Inviting Tenders To Ensure Level Playing Field: Allahabad High Court A bench of Justices Sunita Agarwal and Jayant Banerji held that bidders are required to mention the GST Rate and the HSN Code in the Notice Inviting Tender to ensure uniform bidding from all participants. The Court also held that the same is necessary in order to ensure that all tenderers and bidders are provided a “level playing field”. The bench also stated, “The mentioning of the HSN Code in the tender document itself shall resolve all disputes relating to fairness and transparency in the process of selection of bidder, by providing ‘level playing field’ to all bidders/tenderers in the true spirit of Article 19(1)(g) of the Constitution of India,” The petitioner, in this case, contended that a circular issued by the Railway Board indicated that bidders were required to specify the percentage of local content in the material being offered in accordance with the Make in India policy and as the value of GST was not mentioned in the bidding documents, those bidders which had quoted a lower GST rate could have outbid the petitioner. [Case: Bharat Forge Limited v. Principal Chief Materials Manager Diesel Locomotive Works & Ors.]Next Storylast_img read more