The Allahabad High Court while disposing an application observed that merely quashing of charge sheet in criminal offence cannot be a ground to quash the proceeding under Domestic Violence Act.

A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application under section 482 Sushma & Another.

The application under Section 482 Cr.P.C has been filed for quashing the entire proceedings of Case under Section 12 Domestic Violence Act, 2005, Police Station- Jalesar, District Etah, pending in the court of C.J(J.D)/ F.T.C (Crime Against Women), Etah.

Contention of the counsel for the applicants is that on the basis of the same set of allegations opposite party no 2 had lodged an FIR i.e Case Crime 446 of 2021, P.S Jalesar, District Etah though after investigation, police had submitted a charge sheet against the applicants and his family members.

The applicants had challenged the charge sheet before the Court in Application u/s 482 Cr.P.C in which charge sheet against the applicants was quashed by the Court vide order dated 02.08.2021, therefore it is submitted the impugned proceedings may be quashed.

“Considering the submissions of the counsel for the parties and perusal of record, it appears that the criminal proceeding against the applicants has been quashed by the Court in an Application u/s 482 but merely quashing of charge sheet in criminal offence cannot be a ground to quash the proceeding under Domestic Violence Act.

The Court in the case of Amardeep Sonkar vs State of U.P and another decided on 05.04.2024 has already held that proceeding under Domestic Violence Act is civil in nature. It is undisputed that the applicants were residing with opposite party no 2 in shared house hold therefore the impugned proceeding cannot be quashed”, the Court observed while disposing the application.

It is open for the applicants to file objections under Domestic Violence cases against grant of civil relief, the order reads.

The Allahabad High Court while dismissing an application observed that on commencement of insolvency resolution process, the moratorium u/s 14 of I.B.C prohibiting the proceeding u/s 138/141 N.I Act will be applicable only against the corporate debtor and not against the natural persons like the directors of the company for their vicarious liability.

A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application under section 482 filed by Gurmeher Singh.

The application has been filed seeking quashing of the order dated 12.1.2024 passed by Additional District & Sessions Judge/Special Judge (NDPS Act), Gorakhpur in Criminal Revision No 107 of 2023 (Gurmeher Singh Majithia vs State of U.P & others) as well as the order dated 23.3.2023 passed by Addl Civil Judge (J.D), Gorakhpur and stay the further proceeding of Complaint Case u/s 138 N.I Act, P.S Kotwali, District Gorakhpur, pending before Addl Civil Judge (J.D), Gorakhpur.

The facts of the case are that opposite party No 2 had filed an application u/s 138 N.I Act against the applicant and his company, namely, M/s Saraya Industries Ltd the trial court, after perusal of the complaint and other evidences on record, issued summon to the applicant being the active director of the company by order dated 8.2.2021.

That order was challenged by the applicant by way of Revision before Addl District & Sessions Judge, Gorakhpur, but the said revision was also rejected by order dated 12.1.2024. Feeling aggrieved by both the orders, the applicant has filed the application.

The contention of the counsel for the applicant is that the applicant is the director of the company on whose behalf the cheque in question was issued. As the insolvency proceeding is going on against the company under Insolvency and Bankruptcy Code, 2016 (I.B.C), therefore, as per Section 14 of I.B.C any proceeding including the proceeding u/s 138 N.I Act cannot be executed or proceeded further against the company and the applicant, being the director, has not given any guarantee for any amount payable under cheque in question.

It is also submitted that no finding was recorded that the applicant being the director has an active role in day to day business.

In support of her submission counsel for the applicant has relied upon the judgement of the Apex Court in the case of P Mohanraj and others vs M/s Shah Brothers Ispat Pvt Ltd; (2021) 6 SCC 258 in which the Apex Court observed that once the insolvency proceeding is pending against the company, then no proceeding including the proceeding u/s 138 N.I Act can be executed against the company.

Per contra, A.G.A has submitted that Section 14 of I.B.C prohibits the execution only against the company and not against the natural person.

It is further submitted that specific allegations were made against the applicant who actively played a role in persuading opposite party No 2 to invest money in the company of the applicant.

The Court observed that,

Considering the submissions of the counsel for the parties and on perusal of record, it is clear that the applicant, being director of the company, has played an active role in day to day business of the company and also persuaded opposite party No 2 to invest money in the liquor business.

The Apex Court in the case of P Mohanraj and others vs M/s Shah Brothers (supra) already considered this issue in detail and observed that moratorium u/s 14 of I.B.C is applicable against the corporate debtor and not against the natural person like the applicant. The above judgement was again reiterated by the Apex Court in the case of Narindar Garg and others vs Kotak Mahindra Bank Ltd and others; 2022 SCC OnLine SC 517.

“From the perusal of the above quoted judgement, it is clear that on commencement of insolvency resolution process, the moratorium u/s 14 of I.B.C prohibiting the proceeding u/s 138/141 N.I Act will be applicable only against the corporate debtor and not against the natural persons like the directors of the company for their vicarious liability. Therefore, this judgement does not help the applicant.

From the perusal of the complaint as well as the statement of opposite party No 2, it is clear that there are clear allegations against the applicant that he was actually involved in day to day business of the company in question, therefore, he is also liable as per Section 141 of N.I Act.

In view of the above, the Court does not find any good ground to quash the impugned proceeding”, the Court further observed while dismissing the application.

The Allahabad High Court while dismissing an application held that if there is an offence under two Acts, then the person can be prosecuted and punished only in one Act, a person shall not be liable to be punished twice for the same offence. 

A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application under section 482 filed by Brijpal Singh.

By way of the application, the applicant has challenged the criminal proceeding of Case pending in the court of Additional Chief Judicial Magistrate, Etah arising out of Case u/s 409, 420, 467, 468, 471 IPC, Police Station Naya Gaon, District-Etah, and also the charge sheet dated 24.05.2011 as well as the cognizance order dated 21.07.2011.

The facts of the case are that the applicant was working as Secretary Sadhan Sahkari Samiti Ltd Navar Block, Aliganj, Etah. On receiving specific complaints against the applicant, District Assistant Registrar Co-operative Society, Etah, vide order dated 30.11.2007, directed to conduct an enquiry against the applicant.

In pursuance of the order dated 30.11.2007 of District Assistant Registrar Cooperative Society, Etah, the enquiry was conducted by a committee consisting of the Additional District Cooperative Officer and Deputy General Manager, District Cooperative Bank Ltd, Etah and on receiving the enquiry report, District Assistant Registrar Cooperative Society by his order dated 02.07.2008 directed to lodge an F.I.R against the applicant based on the finding of above enquiry report.

In pursuance of the order dated 02.07.2008, Deputy General Manager District Cooperative Bank, Etah lodged an F.I.R dated 13.07.2008 in Case under section 467, 468, 471, 409, 419 and 420 IPC against the applicant for the allegation of misappropriation of stock of fertilizers, breach of trust as well as forgery in the document of society and causing loss of Rs 5997497.20 to society.

Police, after investigation, had submitted chargesheet against the applicant and two other co-accused namely, Malti Devi and Mahendra Singh Chauhan on 24.05.2011, u/s 409, 420, 467, 468, 471 IPC and ACJM-I, Agra had taken cognizance over the chargesheet on 21.07.2011 and registered, the case and subsequently case was transferred in the Court of ACJM-II, Agra and applicant also obtained bail on 18.04.2012, thereafter, case was also transferred on 16.06.2018 from District-Agra to District-Etah in pursuance of circular of Lucknow Bench of the Court.

Since the date of transfer of the case from District-Agra to District-Etah, this case has been pending in the Court of Additional Chief Judicial Magistrate, Etah.

The Court observed that,

After hearing the parties and on perusal of the record, a question that requires to be determined is whether Sections 68, 103, 105 of the Act, 1965, as well as Section 26 of the General Clauses Act, bar the prosecution of an employee of the cooperative society for the offence under the IPC.

From a perusal of the sections of the Act, 1965, it is clear that machinery for recovery of any loss caused to society by its employee has been given in Sections 68, 95 of the Act, 1965 without making the same as a panel. Certain offences are also mentioned in Sections 103 and 104 of the Act, 1965. The offence mentioned in Section 103 mainly relates to non submission of returns or the reports required by this Act to the concerned officers and also destroying, mutilation, alteration or falsification of any book, paper or security belonging to society or refusal of any officer of society without reasonable cause to hand over books, records or property belonging to the society or failure of an officer to establish contributory provident fund regarding employees of the society, negligence in maintaining the accounts and register of the cooperative society non furnishing information, books and records to the concerned officers as per the requirement of the Act including during conduct of audit of the record of the society, non returning the deduction made by an employee of the society u/s 40(2) of the Act, 1965 as well as any act on the part of the officer of the society which is declared by the rules as offence but the offence regarding breach of trust was not mentioned in Section 103 or in any other provision of Act, 1965.

It is clear that if there is an offence under two Acts, then the person can be prosecuted and punished only in one Act. The above provisions are based on the principle of double jeopardy, i.e a person shall not be liable to be punished twice for the same offence. Therefore, the above mentioned provision’s primary emphasis is a prohibition against the punishment for the same offence. Though the offence of forgery in the record of a cooperative society is punishable under Section 103(ii) of the Act, 1965, as well as Chapter 18 of IPC, a person can be prosecuted and punished in either of the two enactments, not in both Acts. There is no prohibition in the Act 1965, for prosecution under I.P.C instead of Act, 1965 even though the offence is punishable under the Act, 1965 as well as under IPC.

In the Act of 1965, no such provision can be said to be pari materia to Section 89 of the Food Safety and Standards Act, 2006. In the Act, 1965 there are only two provisions; one is Section 90, which is with regard to overriding effect of Chapter 11 of the the Act, 1965 and also Section 111, which also provides bar of jurisdiction regarding certain cases including the dispute and award under Section 70 of the Act, 1965 but there is no provision providing overriding effect of the offence and penalty in Chapter 14 of the Act, 1965 which includes offence of forgery over all other laws including IPC.

“It is clear that even if the offence of forgery is punishable under Section 103(ii) of the Act, 1965 as well as under Chapter 18 of I.P.C, there is no provision prohibiting the prosecution under Chapter 18 of I.P.C instead of Section 103 of the Act, 1965.

The Act, 1965, does not provide a punishment for breach of trust; therefore, the same can be prosecuted under Section 406 I.P.C, and the bar of Section 26 of the General Clauses Act as well as Section 300(1) Cr.P.C will not be applicable.

The employee and officer of the cooperative society are not public servants as per Section 21 of I.P.C for the purpose of offences mentioned in IPC. Therefore, they cannot be prosecuted under Section 409 I.P.C but definitely can be prosecuted for the breach of trust under Section 406 IPC. However, appropriate Section can be added or removed at the time of framing of charges. In view of the foregoing conclusions, no case is made out for interference”, the Court further observed while dismissing the application.

The Allahabad High Court while allowing an application said that as per Section 5 of the Hindu Marriage Act, for a valid marriage, neither party to the marriage should have a living spouse at the time of marriage, meaning that if the first wife is alive, marriage with another woman is not valid. The relationship between such a man and woman cannot be as husband and wife. Therefore, proceeding under Section 498-A I.P.C is not maintainable against such a husband at the instance of a second wife (not legally wedded).

A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application under section 482 filed by Akhilesh Keshari And 3 Others.

The application under Section 482 Cr.P.C has been filed for quashing the entire proceeding of the charge-sheet dated 06.12.2019 as well as the cognizance order dated 10.01.2020 in Case under Sections 498-A, 323, 504, 506 and Section 3/4 D.P Act, Police Station Mahila Thana, District Sonbhadra pending in the Court of Civil Judge (Junior Division)/C.A.W, Robertsganj, Sonbhadra.

The facts of the case are that opposite party no 2 had lodged an F.I.R dated 08.06.2019 under Section 498-A, 323, 504, 506 I.P.C & 3/4 D.P Act, 1961 against applicants alleging that she got married to applicant no 1, six years back and out of their wedlock three children were also borne.

However, applicants had started harassing her for dowry demands and subsequent applicants had also beaten her. Police after investigation had submitted a charge-sheet dated 01.12.2019 against the applicants under Section 498-A, 323, 504, 506 I.P.C & Section 3/4 D.P Act and cognizance was also taken on 10.01.2022.

Counsel for the applicants contends that the impugned proceeding is illegal as opposite party no 2, claiming herself as the wife of applicant no 1, lodged the F.I.R of the impugned proceeding on 08.06.2019 but the applicant got divorced from his first wife on 10.02.2022 therefore opposite party no 2 was not the legally valid wife of applicant and on the date above F.I.R, hence no offence under Section 498-A I.P.C as well as Section 3/4 D.P Act is made out against the applicants.

In support of his contention, counsel for the applicants has relied upon a judgment of the Apex Court in the case of Shivcharan Lal Verma and another vs State of Madras 17 Vol 15 SCC 369 in which the Apex Court observed that if the marriage itself is null and void, then prosecution under Section 498-A IPC against the husband is not maintainable at the instance of the alleged wife.

Per contra, A.G.A has relied upon the judgment of Reema Agarwal (supra) and submitted that for the purpose of Section 498-A as well as Section 3/4 of the D.P Act, strict interpretation regarding the validity of marriage should not be made and liberal consideration should be given to those persons who contracted for marriage and are cohabiting together.

The Court observed that,

From the perusal of Section 498-A I.P.C, it is explicit that to attract the ingredients of the Section, a woman must be subjected to cruelty by her husband or his relative. However, the definition of the husband is unavailable either in I.P.C or the Hindu Marriage Act of 1955.

From the perusal of the judgments mentioned above of the Apex Court, it is clear that strict interpretation is required when interpreting the word husband in Section 498-A I.P.C as the I.P.C is a penal provision, not beneficial legislation where the liberal interpretation is permissible. Therefore, the Court holds that proceeding under Section 498-A I.P.C by the opposite party no 2, who is not the legally wedded wife of applicant no 1, is not maintainable against applicants.

The Court observed that,

From the perusal of Section 2 of the D.P Act, dowry may be given at, before or after the marriage. Therefore, for the dowry, the performance of marriage is not necessary, and even a marriage contract is sufficient. If a male and female contracted for marriage and cohabiting together and the male partner makes any dowry demand from the female partner, then ingredients of Sections 3 and 4 of the D.P Act are attracted.

In the case, appellants and opposite party no 2 had been living as husband and wife and three children were also borne from their co-habitation therefore, the allegation of demand or receiving of dowry on the part of the applicants will attract ingredients of Section 3/4 D.P Act, despite the fact, their marriage was not valid.

From the perusal of the record, it is clear that there is sufficient material to make out a prima facie case under Section 323, 504, and 506 IPC.

“In view of the above analysis, the proceeding under Section 498-A IPC in Case is hereby quashed. However, the proceeding under Section 323, 504, 506 IPC and Section 3/4 of D.P Act in Case is maintained. Therefore, the Court below is free to proceed against the applicants under Section 323, 504, 506 IPC and Section 3/4 of the D.P Act”, the order reads.

With the aforesaid observations, the Court allowed the application.

The Allahabad High Court while dismissing an application held that discharge application under Section 258 Cr.P.C is also not maintainable as that section applies where summons are instituted otherwise than upon complaint, but proceeding under Section 138 N.I Act instituted on the basis of complaint.

A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application under section 482 filed by Jai Prakash Goyal.

The application under Section 482 Cr.P.C has been filed for quashing the order dated 16.12.2023 passed by Presiding Officer, Additional Court, Agra as well as entire proceeding of Complaint Case under Section 138 N.I Act, Police Station Hari Parwat, District Agra pending in the court of Additional Court, District Agra.

The facts giving rise to the case is that on issuance of summon order against the applicant under Section 138 N.I Act, the applicant filed an Application u/s 482 CrPC challenging the entire proceedings of Complaint Case. That case was disposed of by the Court vide order dated 18.02.2019 permitting the applicant to raise all the dispute regarding the complaint before the trial court.

Thereafter, the applicant filed a discharge application before the trial court on 05.03.2019. In that discharge application, the applicant has raised a number of issues including the issue of premature complaint as well as cheque in question was given as security, therefore no liability under Section 138 N.I Act is made out and also that complaint was filed by stranger, hence not maintainable.

The trial court vide order dated 16.12.2023 rejected the aforesaid discharge application vide order dated 16.01.2023 on the ground that discharge application is not maintainable as per judgement of the Apex Court in Adalat Prasad vs Rooplal Jindal and others; 2004 (7) SCC 338 wherein it is observed that the summoning order cannot be recalled by the court which had issued the same.

The contention of counsel for the applicant is that the order dated 16.12.2023 is bad in law; firstly because the court has not considered the issue raised in its discharge application. Secondly, the court has erroneously held that the discharge application is not maintainable after passing the summoning order.

Counsel for the applicant further submitted that as per proviso of Section 143 N.I Act, in the proceeding under Section 138 N.I Act, Section 262 to 265 Crpc will be followed and Section 262 Cr.P.C specifically mentioned that during summary trial of case, proceeding of summon case has to be followed and proceeding of summon case has been mentioned in Chapter 20 of Cr.P.C which cover Sections 251 to 259 and Section 259 specifically provides that the trial court may convert summons case into warrant case in appropriate case, therefore the provisions of the warrant case mentioned in Chapter 19 of Cr.P.C will also applicable in proceeding under N.I Act. Therefore, discharge application under Section 244 Cr.P.C. in the proceeding under Section 138 N.I Act is very well maintainable.

Per contra, AGA submitted that application for discharge is not applicable in the proceeding under N.I Act unless the court pass specific order converting from the proceeding of summon case to warrant case as required under Section 259 Cr.P.C and in the case, the court has not passed any order for converting for summary trial to warrant trial.

The Court observed that,

After considering the submissions of the counsel for the parties and perusal of record, it appears that in the case, the applicant has challenged the order dated 16.12.2023 by which discharge application of the applicant was rejected. Therefore, other contention, at this stage, cannot be looked into or consider unless discharge application itself is maintainable, even otherwise, the applicant has already challenged the impugned complaint proceeding in earlier application u/s 482 Cr.P.C, wherein court was not inclined to interfere in the impugned proceeding of complaint case.

From the above analysis as well as law laid down by the Apex Court, it is clear that unless proceeding of complaint case under Section 138 N.I Act specifically converted into summon case or into trial case then the provision of summon case or warrant case cannot be strictly applied in the proceeding under Section 138 N.I Act.

In the case, the Magistrate has not passed any order for converting the trial of impugned proceeding from summary trial into warrant case. Once it is established that provisions of warrant case are not applicable then the question of applicability under Section 245 Cr.P.C regarding discharge of accused does not arise.

In view of above, the Court does not have any good ground to quash the impugned order by which the discharge application of the applicant was rejected, on the ground of maintainability.

Accordingly, the Court dismissed the application.

The Court provided that in case, the applicant appears before the court below within 15 days from today and applies for bail, his bail application shall be considered and decided in view of law laid down by the Apex Court in the case of Satender Kumar Antil vs Central Bureau of Investigation and another, 2021 SCC Online SC 922.

The Lucknow Bench of the Allahabad High Court while dismissing an appeal held that against the rejection of amendment application under Order 6 Rule 17 C.P.C during the proceeding of Section 278 of Indian Succession Act, 1925, no appeal lies under Section 299 of the Act, 1925.

A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an appeal filed by Indra Bahadur Yadav.

The appeal has been filed to set aside the order dated 22.12.2023 passed by the Additional District Judge, Pratapgarh, whereby the amendment application of the appellant was dismissed.

The contention of the counsel for the appellant is that the appellant had filed a petition u/s 278 of the Indian Succession Act, 1925 for grant of letters of administration and during its pendency, he filed an amendment application which was rejected by the impugned order.

It is further submitted that the impugned order is absolutely erroneous as if the amendment was allowed that would not change the nature of the suit as he simply wanted to add the date of the will dated 4.6.1996 in the plaint.

After considering the aforesaid submission, a question arises as to whether against the rejection of an amendment application under Order 6 Rule 17 of C.P.C by the District Judge, while hearing the suit u/s 278 of the Act, 1925, an appeal lies under Section 299 of the Act, 1925.

On that issue, counsel for the appellant submitted that as per Section 299 of the Act, 1925, every order passed by the District Judge in the proceeding under Section 278 of the Act, 1925, is appealable.

The Court observed that,

From perusal of Section 299 of the Act, 1925, it appears that under this Section only those orders are appealable which were passed by the District Judge in exercise of power, conferred upon him under the Act and same will be in accordance with the provision of CPC.

From perusal of the Order 43 Rule 1 of C.P.C, it is clear that against the rejection of an amendment application under Order 6 Rule 17, no appeal lies. Appeal is creation of statute which cannot be inferred without statutory provision. Section 295 of the Act provides that if the proceeding u/s 278 of the Act, 1925 is contentious, the same will proceed in the form of regular suit, according to the provision of CPC.

On combine reading of Sections 299 and 278 of the Act, 1925, it is clear that contentious proceeding u/s 278 of the Act, 1925 will proceed as regular suit and appeal against any order, passed during the proceeding u/s 278 of the Act, 1925, will be in accordance with the CPC. Therefore, the Court holds that the appeal u/s 299 of the Act, 1925 will lie only against those orders that are appealable as per Order 43 Rule 1 CPC and rejection of the amendment application under Order 6 Rule 17 CPC does not find place in Order 43 Rule 1 CPC.

In view of the above analysis, the Court is of the view that against the rejection of amendment application under Order 6 Rule 17 C.P.C during the proceeding of Section 278 of Indian Succession Act, 1925, no appeal lies u/s 299 of the Act, 1925 and the same can be challenged by the appellant either in revision u/s 115 C.P.C or under the supervisory jurisdiction of the High Court, under Article 227 of Constitution of India.

Accordingly, the Court dismissed the appeal with a liberty to the appellant to challenge the impugned order in appropriate proceeding.

The Allahabad High Court has ruled that forcing a husband and wife to live together despite their intense hate towards each other will amount to cruelty.

The Division Bench of Justice Saumitra Dayal Singh and Justice Arun Kumar Singh Deshwal passed this order while allowing an appeal filed by Ashok Jha.

The appeal was filed against the order dated 07.11.2019 of Additional Principal Judge, Family Court, Ghaziabad passed in Matrimonial Case, by which application of the appellant under Section-13(1) of the Hindu Marriage Act, 1955 for annulling the marriage of appellant and respondent was rejected.

The facts which give rise to the case are that marriage of the appellant and respondent was solemnized on 19.06.2002. Two children were born out of their wedlock. The appellant filed an application under Section13(1) of the Act, 1955 on 15.02.2014 for dissolving marriage of the appellant and respondent. The application was allowed ex parte by order dated 03.08.2016 and marriage of the parties was dissolved. After the knowledge of the aforesaid ex parte divorce decree dated 03.08.2016, the respondent filed a recall application on 22.11.2017, which was allowed and ex parte order dated 03.08.2016 was recalled by order dated 24.05.2018 and the divorce petition was restored at its original number.

Thereafter, the respondent had also filed her written statement denying the allegation of divorce petition.

Subsequently, the appellant had also filed an amendment application to make amendments in the divorce petition, which was allowed on 27.05.2019 by which the appellant brought on record certain new facts regarding criminal cases lodged by the respondent against the appellant, during the pendency of the divorce petition but respondent did not file any written statement after the amendment of the divorce petition.

After hearing both parties, the Family Judge rejected the divorce petition of the appellant on the ground that the appellant could not prove cruelty on the part of the respondent.

Counsel for the appellant submitted that the Court below failed to consider the evidence on record while passing the impugned order.

The concerned criminal Court acquitted the appellant, and a closure report was submitted by the police and apart from this, the respondent has also filed civil suit for permanent injunction, which was also dismissed on 10.01.2019 by the Civil Judge, Senior Division, Ghaziabad and several false complaints were also sent by respondent to Senior Police and Administrative Officer against appellant.

The above conduct establishes that the respondent, just to harass and defame him, had repeatedly lodged criminal and civil cases against him, this continued act amounts to cruelty.

It was lastly submitted by the counsel for the appellant that the appellant and respondent have been residing separately since 2014, and because of false criminal complaints as well as other complaints to police and administrative officers by the respondent, their relationship has become so bitter that there is a complete irretrievable breakdown of their marriage. There is no chance of reconciliation. Therefore, his divorce petition deserves to be allowed on this ground also.

It is contended by the respondent, who is present in person, that she has never committed any cruelty to the appellant and except the case of 498A, she lodged all other cases against the appellant during the pendency of the divorce petition, and the appellant had also lodged false criminal case against her and also illegally grabbed her property.

The respondent also submitted that till 2013, the respondent had a cordial relationship, but subsequently, on developing the extramarital relation of the appellant with one lady, who was an employee in the firm/company of the appellant, their relationship had become estranged and subsequently, after getting ex parte divorce decree, the appellant also got married to the said lady.

Respondent also submitted, her husband wrongly shifted (on the respondent) the entire liability of service tax that arose on their joint business and grabbed her property; therefore, she also lodged cases against the appellant.

It is also further submitted by the respondent that appellant is having several immovable properties worth crores of rupees and his ITR for the F.Y. 2021-22 is approximately 2 crores. The respondent in her written statement also submitted that he had bad intention to not only cheat her but also to kill her and her children. Now she, along with two children aged about 16 years & 19 years, has been living on her own but she doesn’t want the stigma of divorce.

The respondent lastly submitted that the appellant could not prove cruelty on the part of the respondent; therefore, his divorce petition was rightly rejected by the Court below.

The Court observed that,

After hearing both the parties as well as on perusal of the record, it is clear that though the appellant could not clearly establish the cruelty on the part of the respondent till filing a divorce petition in their day-to-day life, this fact is also undisputed that the respondent had lodged one case under Sections-498A, 420 506 and 507 IPC in 2014, before the filing of the divorce petition by the appellant.

In that case, though police had filed a chargesheet under Section-420 IPC and Section-498A IPC was deleted and subsequently the competent Court also acquitted the appellant under Section-420 IPC.

Similarly, in Case under Section-377 IPC which respondent lodged during the pendency of the divorce petition, the police had submitted a closure report.

Apart from the above criminal cases, the respondent filed several other complaints against the appellant. The record also shows that the property dispute between the appellant and respondent is also pending, and all efforts for conciliation have failed. The Court has also tried to explore conciliation between the parties, but the respondent stoutly refused to consider any settlement.

It is also an undisputed fact that both parties have been residing separately since September, 2013, and there is no chance of reconciliation surviving between them, by way of a realistic possibility.

Even during the hearing, the respondent asserted that as the appellant had grabbed her company, ‘Creative Media’ and by manipulation, the appellant persuaded the service tax department to issue liability of service tax of more than Rs 1 crore against her.

The above facts clearly establish that both parties have lodged criminal cases against each other and have serious disputes about the properties. Apart from this, both parties are also making allegations against each other of having relationships outside of marriage, therefore, forcing them to live together despite their intense hate towards each other will amount to cruelty.

“In the case, both the parties have levelled allegation against each other for not maintaining the sanctity of marriage and their involvement in relationship outside of marriage and they have been living separately for more than ten years and number of complaints including the criminal complaints have been filed by the respondent against the appellant and every effort has been made to harass and torture him. Appellant had also filed a case against the respondent. Even at this stage, the respondent is not ready for any conciliation with the appellant.

It is also an undisputed fact that the appellant got married to another woman after getting an ex parte divorce decree, and for a decade, the parties have been living separately. It also appears from record that the marriage does not survive any longer, and the relationship was terminated otherwise except by a formal divorce decree.

From the analysis and evaluation of the entire evidence, while the respondent may not be claiming cruelty suffered by her, yet she may not thrust that fate on the appellant. To him cruelty remains available and established as a ground to seek dissolution of the marriage. That cruelty stands established. Also, it is clear that the marriage between the parties had broken down irretrievably, and there is no chance of their living together, again”, the Court further observed while allowing the appeal.

Consequently, the Court set aside the judgment dated 07.11.2019 passed by the Additional Principal Judge, Family Court, Ghaziabad in Matrimonial Case and dissolved the marriage between the parties, according to the provision of the Hindu Marriage Act, 1955 on grounds of cruelty suffered by the appellant at the hands of the respondent and also for reason if that marriage having broken down, irretrievably.

“Considering the facts and circumstances of the case, the Court, while dissolving the marriage between the parties, also directs the appellant to pay Rs 1,00,00,000/- (One Crore) to the respondent towards permanent alimony within three months, considering the financial condition of the appellant that he is having several immovable properties worth crore of rupees and having ITR for F.Y. 2021-22 of about 2 crores.

If the appellant fails to pay the amount indicated above within the stipulated period, the amount awarded shall carry interest liability @ 6% from today, till date of payment”, the Court ordered.

The Allahabad High Court while rejecting an application held that the protection of Section 197 of CrPC is not available to the Waqf Board for prosecuting a mutawalli. In this section, the permission of the government is necessary before prosecuting public servants.

The Single-Judge Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application filed by Abu Talib Husain and Another.

The 482 Cr.P.C. application has been filed to quash the entire proceedings of case under Sections-323, 504, 506, 354 I.P.C, Police Station-Kotwali Nagar, District- Saharanpur as well as summoning order dated 3.9.2022 passed by the Additional Chief Judicial Magistrate, Saharanpur and is pending before the first Additional Civil Judge (Jr Div)/Judicial Magistrate, Saharanpur.

Contention of the counsel for the applicants is that the impugned FIR was lodged and charge sheet was filed after conducting investigation on which cognizance was also taken by the Court but as per Section-101 of Wakf Act, 1995, mutawalli of waqf would be deemed to be a public servant within the meaning of Section-21 of Indian Penal Code, 1860. Applicant no1 is mutawalli of waqf Karbala, Nai Basti, Behat Road, Saharanpur, therefore, as per Section-197 Cr.P.C, cognizance is bad by the Court because no sanction from appropriate Government was taken before taking such cognizance.

It is further submitted that applicant no 2 is father of applicant no1 and also assisted the applicant no 1 in discharge of public duty.

On the other hand, AGA has opposed the above submission and submitted that Section-101 of the Act, 1995 is a deeming provision for the discharge of duty and Section-197 Cr.P.C is applicable only on public servant who cannot be removed without sanction of the State Government whereas for the removal of applicant no 1, sanction of State Government is not required and Section-197 Cr.P.C is not applicable in the case.

The Court observed that,

Considering the submission of the counsel for the applicant as well as AGA for the State, the sole question arises if the mutawalli was deemed to be public servant under Section-101 of the Act, 1995, then merely because he is deemed to be public servant is also entitled to protection under Section-197 CrPC.

From perusal of the above section of the Act, 1995, it appears that not only mutawalli of waqf but every member of Managing Committee of waqf are also deemed to be a public servant within the meaning of Section-21 IPC. But despite the above deeming provision mutawalli can be removed by the waqf board as per Section-64 of the Act, 1995.

For applicability of Section-197 Cr.P.C, following three conditions must be satisfied: (a) accused is a public servant; (b) that the public servant can be removed from the post by or with the sanction either of Central or the State Government as the case may be; (c) the act giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his duty.

Therefore, for applicability of Section-197 Cr.P.C even for the person who is deemed to be a servant under any statute other than IPC, he must be removable by or with the sanction of Central or the State Government.

The Apex Court in the case of Manish Trivedi Vs State of Rajasthan reported in (2014) 14 SCC 420 observed that if any act creates a legal fiction to a particular category of employee by adopting the condition of Section-197 Cr.P.C then those employees are entitled to get the protection of Section-197 CrPC.

In the above mentioned judgement, Section-87 of Rajasthan Municipalities Act, 1959 created legal fiction that members of municipal board will be deemed to be public servant as per Section 21 IPC but the word ‘Government’ mentioned in Section 197 Crpc was deemed to be substituted by municipal board and for that reason member of municipal board Rajasthan was declared as public servant for the purpose of Section 197 CrPC.

“In the case, though by a deeming provision of Section 101 of the Act, 1995 mutawalli was declared as public servant but to satisfy the second condition of Section 197 Cr.P.C, the word ‘Government’ was not replaced by waqf board, therefore, despite the fact that mutawalli was declared to be public servant by Section 101 of the Act, 1995. All conditions for applicability of Section-197 Cr.P.C are not fulfilled, therefore mutawalli of waqf board despite being deemed to be a public servant are not entitled to protection under Section 197 CrPC”, the Court further observed while rejecting the application.

The Allahabad High Court has said that it is not necessary to have a criminal history for the implementation of the Gangster Act and sections of the Gangster Act can be imposed in the course of investigation of any base case.

The Division Bench of Justice Vivek Kumar Birla and Justice Arun Kumar Singh Deshwal passed this order while hearing a petition filed by Usman And 2 Others.

The petition has been preferred with the prayer to quash the impugned First Information Report dated 14.9.2022 registered as Case under Sections 147, 341, 352, 332, 504, 353, 384, 395 IPC and Section 21 (4) of Mines and Minerals Act and Section 3 Prevention of Damage to Public Property Act and Section 3 (1) of UP Gangster and Anti Social Activities (Prevention Act), 1986, PS Thakurdwara, District Moradabad, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

Counsel for the petitioners by referring to Rule 5 (3)(c), Rule 8 and Rule 10 of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021, submitted that gang-chart shall not be approved without completion of the investigation of the base case.

In the case, it is submitted that investigation in the base FIR is going on and during the course of investigation, provisions of Gangster Act have been imposed. Submission is that this could not have been done and is impermissible in law in view of the Rule 5(3)(c), Rule 8 and Rule 10 of the Rules, 2021 framed under the provisions of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act, 1986.

Apart from highlighting the aforesaid provisions, it is submitted that Rule 8 prohibits stating unconfirmed and false information and Rule 10 provides that along with gang chart, the certified copy of the charge-sheet and recovery memo shall be attached compulsorily, which is not so in the case as investigation in the base case is pending.

AGA opposed the petition and submitted that Gangster Act can be imposed during the course of investigation, falling in the category of cases mentioned in Rule 22 (2) of Rules, 2021.

AGA submitted that gang-chart has already been approved in the case.

AGA pointed out that Section 395 IPC has been added during investigation and therefore, provisions of Section 3 (1) of the Act, 1986 have been invoked against the petitioner, which can be done in the case.

The Court found that an exception has been carved out in Rule 22 of the Rules, 2021 wherein a single act/omission will also constitute an offence under the Act and first information report can be registered on the basis of a single case i.e, it is not mandatory that any criminal history must be recorded and alleged before registering an offence under the Act. Sub-Rule 2 of Rule 22 clearly provides that the Act may also come into force on a single prosecution in certain class of cases, which clearly provides various Sections including Section 395 IPC which is presently under investigation and the offence under this Act is being proved by the collected evidence, then along with the criminal act under consideration, the gang-chart shall be approved by the concerned Commissioner of Police/District Magistrate involved in the investigation of the said offence and the provisions of the Act can be imposed while investigating both the offences together in accordance with the provisions of the Act. Further, the charge-sheet can be sent to the Special Court constituted under the Act.

The Court further found that the heading of Rule 22 itself provides that criminal history is not mandatory and sections of the Gangster Act can be imposed in the course of investigation of any base case, which falls under the category of certain offences.

“We further find that the judgement in Ankit Sharma (supra) relied on by the counsel for the petitioner is of no help as there is no consideration of Rule 22 of the Rules, 2021, which clearly carves out an exception to the other Rules by providing that provisions of Gangster Act can be imposed during course of investigation in a case where investigation is going on in respect of various Sections of IPC as referred to in Sub-Rule 2 of Rule 22 of Rules, 2021, which is presently under investigation and wherein on the basis of collected evidence it is proved that an offence under the Gangster Act has also been made out and the gang-chart shall be approved and both the offences can be investigated in accordance with the provisions of the Gangster Act, 1986.

In such a view of the matter, we find no force in the arguments of the counsel for the petitioner”, the Court observed while dismissing the petition.

The Allahabad High Court while disposing the petition said that freehold rights, under the policy of the Government are granted only on plots which are on lease and which have not vested in the Government. No freehold rights can be granted by the Government in a plot which absolutely vests in it free from all encumbrances.

The Division Bench of Justice  Salil Kumar Rai and Justice Arun Kumar Singh Deshwal passed this order while hearing a petition filed by Smt Ram Pyari Devi and Others.

By way of the petition, the writ petitioners have challenged the demand notice dated 24.7.2000 issued by the District Magistrate, Gorakhpur to respondent no 4 to initiate the proceeding of freehold land of area 43,000 sq ft, Mohalla Arazi Chhawani City Gorakhpur.

Subsequently, during the pendency of the petition, Prayer no 1 was also added for quashing the sale deed / freehold deed dated 26.7.2000 executed by the District Magistrate, Gorakhpur in favour of respondent no 4.

The factual matrix of the case is as follows: –

The ancestor of the petitioners – late Madan Lal Tekariwal was granted lease of Bungalow No 07, Gorakhpur which was having total area 66,795 sq ft by way of two lease deeds dated 1.11.1954 and another dated 3.12.1954.

As per the terms and conditions of above lease deeds, lessee Madan Lal Tekariwal had to construct residential buildings to let out the same to government officers. The above lease deed was for a period of 30 years which could be renewed upto a maximum period of 90 days.

It was further mentioned in the terms and conditions of lease that the lessee shall let out the building exclusively for the residence of gazetted officers on rent and it shall not be occupied by him.

After expiry of period on 30.4.1975, the lessee – Madan Lal Tekariwal also filed an application dated 8.7.1975 before the District Magistrate for renewal of his lease which remained pending till his death. After the death of lessee – Madan Lal Tekariwal, the petitioners being his successors moved an application dated 9.8.1977 for mutation of their name as heirs of late Madan Lal Tekariwal and also prayed that lease may be renewed in their favour.

The above application of the petitioners was forwarded by the District Magistrate to In-charge, Nazul Nagar Palika, Gorakhpur for taking further action. The In-charge, Nazul Nagar Palika, Gorakhpur by letter dated 25.10.1977 informed the District Magistrate that the proceeding for re-vesting the land in question has been pending against lessee – Madan Lal Tekariwal, therefore, the names of the petitioners cannot be mutated as the heirs of Madan Lal Tekariwal and notice has been issued to the petitioners for the same, therefore, the question of renewal does not arise.

But subsequently, there is no order on record that any order was passed on the application dated 7.10.1977 of the petitioners by the District Magistrate. The District Magistrate allotted the building constructed over a part of the land in dispute to respondent no 4 on 27.7.1982 under Act No 13 of 1972 with the stipulation that respondent no 4 will pay the rent to lessee – Banwari Lal (petitioner no 2). It is relevant to mention here that at the time of aforesaid allotment, the respondent no 4 was an MLA.

Thereafter, two renewal applications submitted by the petitioners were rejected by orders dated 9.6.1985 and 7.7.1985 on the ground that the petitioners had violated the terms and conditions of lease by making construction thereon without permission and it was further directed by these two orders that the petitioners should remove the illegal constructions within a period of 30 days. In case, they failed to remove the construction, then they will be evicted from the land in dispute including the building situated over it.

Thereafter, in the year 1989, proceedings under the Public Premises Act were also initiated against the petitioners for their eviction from the land in dispute which remained pending. Thereafter, the State Government issued a Government Order dated 1.12.1998.

As per Para 10 of the Government Order dated 1.12.1998, former lease holders were also given right to apply for freehold within three months from the date of receiving the notice, and in case, they failed to freehold the nazul plot, then rent control tenants residing in the building over nazul land, would get the right to apply for freehold.

In pursuance of above Government Order, the petitioners had submitted two applications, one for commercial portion of land having area 15,800 sq ft and another for residential portion of land having area 50,995 sq ft along with treasury challan of required deposit. The State has executed freehold sale deed dated 20.3.1999 in favour of petitioners regarding commercial part of Plot having area 15,800 sq ft but no action was taken on the application dated 27.1.1999 of the petitioners for freehold of the residential portion of Nazul Plot.

But the District Magistrate, Gorakhpur had issued impugned notice / letter dated 24.7.2000 to respondent no 4 to deposit required amount for execution of freehold deed in his favour regarding area of 43,000 sq ft in Plot which was residential portion in the above land.

This demand notice was under challenge in the petition but during the pendency of the petition, sale deed / freehold deed dated 26.7.2000 was also executed in favour of respondent no 4 after taking required deposit from him.

Therefore, petitioners, by way of amendment, have also prayed for quashing of sale deed / freehold deed dated 26.7.2000 regarding the land of 43,000 sq ft.

The Court noted that,

The petitioners have contended that the Government Order dated 1.12.1998 clearly conferred right upon the lease holder whose lease expired to apply and get the freehold deed executed in their favour within three months from the date of receiving the demand notice and his tenant (respondent no 4) will get right only after the petitioners failed to get the freehold deed executed in their favour but the impugned demand notice was illegally issued to respondent no 4 who was a tenant of the petitioners and thereafter impugned sale deed was also executed in his favour.

It is also submitted by the petitioners that the right of the respondent no 4 comes after the petitioners, not in preference to petitioners.

As respondent no 4 is admittedly the tenant in the building constructed by the ancestor of the petitioners and he had been paying rent to them, therefore, impugned demand notice as well as impugned sale deed / freehold deed executed in favour of respondent no 4 are absolutely illegal.

It is further submitted by the counsel for the petitioners that impugned demand notice as well as impugned sale deed / freehold deed was executed in favour of respondent no 4 for extraneous consideration because respondent no 4 was a Cabinet Minister at that time and was himself part of the Nazul Committee which framed the nazul policy in the year 1998.

The Court does not find anything in the Government Order dated 1.12.1998 which could persuade us to add such words in the enactment. There is no ambiguity or vagueness in Clause 10 of the Government Order dated 1.12.1998. Therefore, while interpreting Government Order dated 1.12.1998, distinction cannot be drawn by the Court between Former Lease Holder whose renewal application has been rejected and whose application for renewal is pending in absence of any such distinction in Government Order dated 1.12.1998. This is also clear from the above quoted provision of Government Order dated 1.12.1998 that Former Lease Holder will have first right to freehold, therefore, he is entitled to get three months’ notice from the District Magistrate and if he fails to complete the formality of freehold, then his rent control tenant will be entitled to get the freehold deed executed in his favour.

In the case, despite application of the petitioners for freehold of the nazul land in dispute, demand notice for the residential part of Plot, was not issued to him to get the freehold deed executed.

The Court said that,

On the other hand, the respondent no 4 who was the rent control tenant was given first right to get the freehold deed executed regarding the plot in dispute by issuing him impugned demand notice and thereafter during the pendency of the petition, impugned sale deed was executed in his favour by the District Magistrate, Gorakhpur. The contention of the counsel for respondent no 4 is that on expiry of lease of plot in dispute, the same vested in the State absolutely.

Therefore, the State Government was well within its power to execute the freehold deed in favour of respondent no 4 ignoring Government Order dated 1.12.1998, cannot be accepted because action of the State Government should be as per the Government Policy regarding nazul plot, i.e, Government Order dated 1.12.1998. This fact is undisputed that respondent no 4 was the tenant of petitioners, therefore, possession of respondent no 4 will be deemed to be constructive possession of petitioners or possession on behalf of petitioners. The respondent no 4 cannot get better rights than the petitioners regarding freehold of nazul plot.

Normally, a writ court does not exercise its prerogative jurisdiction under Article 226, in cases, where the validity of sale deeds executed by private parties are concerned in as much as adjudging the validity of the said sale deed would require oral and documentary evidence and assessment of evidence for which writ proceedings may not be the appropriate remedy.

The issue regarding the validity of the sale deed, in the present case, does not raise any question of private law but raises questions of public law. No disputed questions of fact are involved and no evidence regarding execution of the sale deed is required in the case to adjudicate the validity of the said sale deed. The validity of sale deed is dependent on the validity of the demand notice issued in favour of respondent no 4 and on the decision of the Court regarding the freehold rights of the petitioners in the land which right is claimed against the State.

The Court further said that it is settled law that the power of a High Court under Article 226 of the Constitution of India are plenary powers and are not fatal by any legal constraints. The power under Article 226 is to ensure that the law of the land is implicitly obeyed and that various public authorities and tribunals are kept within the limits of their respective jurisdiction. The remedy provided under Article 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority and it is a remedy in public law.

“In view of the above, demand notice dated 24.7.2000 executed by the District Magistrate, Gorakhpur as well as sale deed dated 26.7.2000 executed by the District Magistrate, Gorakhpur in favour of respondent no 4 are, hereby, quashed and respondent no 2 is directed to consider the application of the petitioners for residential portion of Plot No 103 Bungalow No 07, Gorakhpur having area of 50,995 sq ft and issue demand notice to the petitioners to fulfill the formalities to execute the sale deed for the aforesaid nazul plot and thereafter on completion of formalities of aforesaid demand notice, sale deed of the aforesaid nazul plot be executed in favour of petitioners”, the Court ordered.