In an FIR lodged against former Uttar Pradesh Shia Central Waqf Board chairman, Wasim Rizvi (Jitendra Tyagi) for allegedly making derogatory remarks against the adorable personalities of the Sunni Sect of the Muslim community in his film Ram Ki Janmabhoomi, the Allahabad High Court has granted relief to Wasim Rizvi.

A Single Bench of Justice Rahul Chaturvedi passed this order while hearing an application under section 482 filed by Syed Waseem Rizvi.

The extra-ordinary power of the Court under section 482 Cr.P.C has been invoked by the applicant with the prayer to quash the entire proceeding of Criminal Case Police Station-Chowk, District-Lucknow pending in the court of the Additional Chief Judicial Magistrate-III, Lucknow under section 153-A and 504 IPC and to quash the summoning order dated 21.01.2023 passed by the Additional Chief Judicial Magistrate-V, Lucknow in case as well as charge sheet dated 07.01.2023, under section 153-A and 504 IPC.

The prosecution against the applicant started rolling after filing of a FIR by one Abdul Fahid Farooqui against the applicant-Syed Waseem Rizvi, the then Chairman, Shia Waqf Board. The allegations made in the FIR is that the informant is the Chairman of Sahaba Action Committee which is involved in the upliftment of social and educational standards of Sunni Sect of Muslim community.

On 19.11.2018, a trailer was shown to the informant titled as “Ram Janmabhoomi” and the said trailer was subsequently played on Youtube channels, a digital platform.

It is alleged that in that trailer, certain imputations and derogatory remarks were made against the adorable personalities of Sunni Sect causing hurt to the informant also.

As per the allegations made in the FIR, the informant is of the view that the screening of the film may lead to communal tension in the city.

The applicant was said to be the writer and producer of that film. Needless to mention here that by that time, proper certification of the film was not done by the Central Board of Film Certification, Mumbai. Therefore, it was urged that suitable action shall be taken under section 153, 153-A, 504, 505 and the Cinematography Act, 1952.

After holding an in-depth probe into the matter, police submitted the charge sheet/report under section 173(2) Cr.P.C on 07.01.2023. It is further argued by the counsel for the applicant that the Magistrate in a most mechanical fashion, has taken cognizance of the offence under section 153-A and 504 IPC without assigning any good reason for the same.

Thereafter, the informant of the case has parallely filed Misc Writ Bench, titled as ‘Abdul Waheed Farooqui Vs U.O.I and others’ before Division Bench of the Court and the Court in its lengthy judgment, considering all the aspect of the issue, dismissed the petition with the observation that the petition is being filed to gain cheap popularity among masses.

Since, by that time, the applicant had not received proper certification with regard to film but on 14.03.2013, the Central Board of Film Certification has granted ‘A/UA’ certificate to that film.

Counsel for the applicant stated that despite the fact that the applicant has received proper certification from the competent Board on one hand and the Government of Uttar Pradesh has sanctioned the prosecution case against the applicant on 31.12.2022 as contemplated under section 196 of the CrPC.

Counsel for the applicant has further drawn the attention of the Court to the two judgments of the Apex Court in the case of Salman Khan Vs State of Gujarat and others reported in 2018 SCC Online SC 3758 and 2019 SCC Online SC 2144 in which the Apex Court have categorically opined that as soon as the Central Board of Film Certification provides the producer to entitle to screen his film then under that circumstances, no “lis” remain to be adjudicated by the competent concerned court.

After perusing the aforesaid judgment, it seems that no case against the applicant is made out. But the Court is also conscious of the fact that there is a scheme provided in the Code of Criminal Procedure and the Court consciously is not inclined to break that scheme, the Court observed.

Thus, the Court directed that the applicant shall appear before the court concerned armed with an application under section 88 of the CrPC which reads thus:-

“When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.”

“The concerned court, after taking personal bond, may release the applicant with or without surety and thereafter, the applicant shall move detailed discharge application under the appropriate sections of CrPC raising all the legal as well as factual points for the determination of the same by the court concerned and it is mandatory and obligatory on the part of the court concerned to decide the same within a period of six weeks from its institution by giving a well reasoned order”, the order reads.

With the aforesaid observations, the Court disposed of the application.

The Lucknow Bench of the Allahabad High Court has quashed the proceedings of criminal case against a old age lady who was not a relative in a matrimonial dispute.

A Single Bench of Justice Rahul Chaturved passed this order while hearing an application under Section 482 filed by Sufia Kidwai.

The application has been filed under section 482 Cr.P.C invoking the extra-ordinary power of the Court whereby the applicant-Sufia Kidwai, aged old lady of 73 years is assailing the proceeding of criminal case arising out of case crime whereby she was roped in by the informant for the offence under sections 498A, 323, 504, 506 and 120B IPC and Section 3/4 of D.P Act Police station- Mahanagar, District-Lucknow.

The Court noted that,

Admittedly, the applicant is a neutral lady, unconnected with either of the parties. From the FIR, there is no allegation that the applicant has ever demanded any type of dowry or harass the opposite party no 2. The interesting feature of this case is that she is a land lady of a repute, whereby the accused persons and the informant work as her domestic help. The applicant used to scold both the parties and tried to pacify the situation between them. In the FIR, a tangent remark has been made, that the accused were deriving the power from the applicant and used to commit atrocities upon the informant/victim. After the investigation, the police has submitted the charge sheet only under sections 120B, 504 and 506 IPC against the applicant.

Keeping in view the submissions advanced by counsel for the applicant and the contentions made in the affidavit, there is no allegation that at any point of time, the applicant has ever demanded any additional dowry or harass the opposite party no 2. But the police whimsically has leveled the allegations of hatching the conspiracy against her. In the entire case diary, there is not a whisper against the applicant who is elderly lady of 73 years of age, the Court observed.

The Court relied upon the judgment of the Apex Court in the case of Kahkashan Kausar @Sonam and others v State of Bihar and others, (2022) 6 SCC 599, paragraph no 18 of which is quoted hereinbelow :-

“18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analyzing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, the court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.”

The aforesaid judgment is true and clear depiction of the prevailing practice in the society now-a-days that the entire family has been falsely roped in such type of cases, the Court said.

“In the case, the applicant is rank outsider and there is no question of demand of any additional dowry from the accused. She has been falsely roped in the case for the reasons best known to the informant.

The Court is of the considered opinion that it would be heavy upon the elderly lady of 73 years to face the prosecution in the case. Even during investigation, nothing on record to prima facie accuse her for hatching the conspiracy against the victim”, the Court further observed while allowing the application.

“Hence, the Court, after exercising the extra- ordinary power of the Court, is quashing the proceeding of criminal case under sections 120B, 504, 506 IPC, police station-Mahanagar, District-Lucknow so far as it relates to the applicant-Sufia Kidwai only”, the order reads.

The Allahabad High Court has refused to quash an FIR lodged against the Vice Chancellor and other higher officials of the Sam Higginbottom University of Agriculture Technology and Science (SHUATS) accused of persuading a woman to adopt Christianity by offering her a job and other allurements.

The Division Bench of Justice Rahul Chaturvedi and Justice Mohd Azhar Husain Idrisi passed this order while hearing a petition filed by Rajendra Bihari Lal and 6 Others.

The petition is being filed by the seven petitioners. All the petitioners are jointly invoking the extraordinary powers of the court enshrined under Article 226 of the Constitution of India with the prayer :-

“I. Issue a writ, order or direction in the nature of certiorari for quashing the first information report dated 04.11.2023 as case under Sections 328, 376D, 365, 506 IPC, Section 3/5(1) of U.P Prohibition of Unlawful Conversion of Religion Act, 2021 and section 5 of Immoral Traffic (Prevention) Act, 1956, Police Station-Bewar, District- Hamirpur.

II. Issue an order or direction in the nature of mandamus directing the respondent not to arrest the petitioners in case under Sections 328, 376D, 365, 506 IPC, Section 3/5(1) of U.P Prohibition of Unlawful Conversion of Religion Act, 2021 and section 5 of Immoral Traffic (Prevention) Act, 1956, Police Station-Bewar, District- Hamirpur.

III. Issue a writ, order or direction, which the Court may deem fit and proper under the facts and circumstances of the case; and

IV. Award the cost of the writ petition to the petitioner.”

It is clear that a writ of certiorari was prayed for quashing of the FIR dated 04.11.2023, P.S Bewar, District Hamirpur and also writ of mandamus as an ancillary writ seeking a direction from this Court to the respondent authorities not to arrest the petitioner named above pursuant to the above case crime at P.S Bewar, Hamirpur.

The Factual Aspect of the issue, it has been contended that though the FIR was registered way back on 04.11.2023 at police station Bewar, Hamirpur but the investigation yet to see the final day and the investigating officer is yet to file his report under Section 173(2) CrPC.

The respondent no4 is the informant as well as victim of the case.

After reading the contents of the FIR, it has clearly been culled out that the victim has suffered lots of atrocities mentally as well as physically by the hands of petitioners-accused. There was a yawning gap between the financial, social status of the accused-petitioners vis-a-vis the respondent no 4 and as such she was subjected to mental and physical atrocities by the petitioners.

Every sentence of the FIR is a sad saga of the atrocities faced by the respondent no 4/victim during this period and she was not permitted to open her mouth as the accused-petitioners are head and shoulders above in all aspects of life. Anyhow after mustering much of the courage, she has succeeded in lodging the FIR on 04.11.2023 at police station Bewar, District Hamirpur.

Counsel for the petitioner while denying the allegation contained in the FIR submits that no offence whatsoever is being made out against the petitioner.

Counsel for the petitioners have also submitted, that for the incident said to have taken place in November 2005, the FIR was registered on 04.11.2023 of which there is no plausible justification is coming forward to explain this inordinate delay.

Aggrieved by this illegal termination, respondent no 4 has approached the Court by means of Writ-A (Saroj Kumar Vs Union of India and 5 others).

It is alleged that the order was passed on 13.10.2022 and almost after a year, she has succeeded in lodging the impugned FIR on 04.11.2023 under Sections 328, 376D, 365, 506 IPC and Section 3/5(1) of U.P Prohibition of Unlawful Conversion of Religion Act,2021 and Section 5 of the Immoral Traffic (Prevention Act) 1956. Thus there is no proximity between the two incidents.

From the FIR, it has surfaced that the respondent no 4 is an alumnus of Allahabad University and has completed her B.A in November 2005. During her student days, she met another girl Rekha Patel, who used to allure her fellow girls by providing lots of gifts and other articles of their choice. The respondent no 4 belongs to the lower middle class, was also trapped in ploy/trap of Rekha Patel, who has taken her to Yeshua Tabernacle Church in Muirabad, where Pastor Ivan Dass, R.B. Lal, Imtiyaz Ahmad, David Philip, Vinod B Lal and Ramakant Dubey were already present.

It is urged by AGA that this was a typical modus operandi of any Church to get the girl converted and imbibing the Christianity.

The tender mind of respondent no 4 was brainwashed by the higher priest of the church and persuaded her to adopt christianity by offering her a job. So that her future would be secure and she would be regularly attending the church.

The Court observed that,

It is beyond doubt that the allegations levelled in the FIR are extremely serious and horrifying that the accused petitioners have exploited her financial position and allured her to change the side and have succeeded and thereafter prevailed upon her. No God or true Church or Temple or Mosque would approve such type of malpractices. If someone, on his own, has chosen to get him converted to a different religion is totally another aspect of the issue.

In the case prevailing upon a tender mind of a young girl providing gifts, clothings and other physical amenities and then asking her to get her baptised is an unpardonable sin. No true religion on the earth would endorse such type of malpractices by the priest or the Godmen. Besides this, the allegation levelled in the FIR is not only abhorring but distasteful, whereby she has narrated her sad story of sexual exploitation.

We are at the prenatal stage of the case and after reading the allegation made therein, we cannot shut our eyes closed and install the investigation of the case as contemplated in the judgement of Neeharika Infrastructure (supra) that the police has got a statutory rights and duty under the relevant provisions of Cr.P.C under Chapter XIV of the Code to investigate into the cognizable offence and the court should shun away to thwart any investigation into the cognizable offence.

It is only in the cases, where no cognizable offence or offence of any kind is disclosed in the FIR that court would not permit an investigation to go on. The powers of quashing should be exercised in the “rarest of the rare case” sparingly and in exceptional circumstances, as mentioned above in the month of November 2023, she has succeeded in lodging the FIR. Indeed there is delay in lodging of the FIR, but as compared with the allegation made therein we are unable to accept the contention raised by the counsel for the petitioners that there is inordinate delay in lodging of the FIR.

“As mentioned above, there is no level playing ground between the contesting parties. Her opponents’ are formidable ones. All these are subject matter of investigation and this could not be a ground of quashing of FIR.

The quantum of threat extended to her by the accused-petitioners is apparent from her 164 CrPC statement.

Infact, the 164 Cr.P.C statement of the victim is a sad saga faced by her. The bundle load of atrocities upon which she was constantly subjected to all sorts of harassment but she was asked not to dare and open her mouth or make a complaint. At this stage, it would be unjust and improper to stall the investigation by the police. This a brutal and heinous crime against women. Infact, it is too far to imagine that for a sake of retaliation a lady would put her dignity and honour to the stake and make it public, just to falsely implicate the accused petitioners. For a lady, dignity and honour is a valuable and nonnegotiable asset”, the Court further observed while disposing the petition.

“However, we are not making any verdict upon the final outcome of the investigation, we are expecting that the S.P,Hamirpur would personally supervise the investigation done by the three senior Police Officials of the C.O. rank of Hamirpur, after holding investigation with utmost transparency and objectively would conduct an investigation and probe into the matter to its core within a specific time frame, say about 90 days from today, and submit a report under Section 173(2) CrPC before concerned Magistrate.

Since the petitioners are accused of heinous offences, we direct that they should surrender before the Majesty of the Court on or before 20.12.2023 and apply for regular bail. The bail application of the accused petitioner shall be heard and decided by the court concerned thoroughly on merits as expeditiously as possible unaffected by any of the observations made above. Similarly, the S.I.T/I.O of the case too would not sway away from any of the observations made above, and come to the conclusion after thrashing the material collected during investigation.

Under circumstances we are afraid to quash the FIR and gag the investigation proceeding at this primitive stage, where after reading the FIR a serious cognizable offence is made against the accused-petitioners”, the order reads.

The Allahabad High Court while rejecting an FIR quashing plea filed by a live-in relationship couple, involving a minor boy and a major girl said that it is surprising that the minor boy, dependent upon his father, wants to be in a live-in relationship.

The Division Bench of Justice Rahul Chaturvedi and Justice Mohd Azhar Husain Idrisi passed this order while hearing a petition filed by Anchal Rajbhar and Another.

By means of the petition under Article 226 of the Constitution of India, the petitioners are assailing the legality and validity of the FIR dated 7.9.2023 registered as Case under Section 366 IPC, Police Station Bahariyabad, District Ghazipur.

Upon hearing counsel for the parties and upon a perusal of the record, it reveals that the petitioners are in a living relationship. Admittedly, petitioner no 2-Jaihind Rajbhar is a minor boy and dependent upon his parents, whereas the date of birth as per High School Certificate, petitioner no 1-Anchal Rajbhar is 27.5.2004, the Court observed.

The Court said that it is surprising that a minor boy who himself is dependent upon his father claiming that he wants to be in a living relationship with petitioner no1.

“In view of the above, there is no occasion or reason to quash the FIR in exercise of power conferred under Article 226 of the Constitution of India. The prayer for quashing the FIR is declined and refused”, the Court further observed while rejecting the petition.

The Allahabad High Court while dismissing a habeas corpus petition observed that the counsel for the petitioner without annexing the bail rejection order has made a passing reference, so as to justify his conduct. When a counsel is invoking the extraordinary jurisdiction of the Court, he must come with clean hands.

The Division Bench of Justice Rahul Chaturvedi and Justice Mohd Azhar Husain Idrisi passed this order while hearing a habeas corpus petition filed by Golu @ Arun Patel.

The prayer sought by the petitioner is that:-

“(i) A writ, order or direction in the nature of habeas corpus to direct the respondents to produce the corpus namely, Golu @ Arun Patel before the Court and to set free the corpus namely Golu @ Arun Patel at his own liberty in pursuance of the F.I.R dated 16.02.2023 registered as Case under Sections 4,5 and 6 of the Prevention of Immoral Trafficking Act, Police State-Jaipura, District-Varanasi.

(ii) An order or direction for compensation in favour of the petitioner and against the respondents.

(iii) To pass an order of disciplinary enquiry against the erring officer.

(iv) Any other writ order or direction, which the Court may deem fit and proper under the facts and circumstances of the case.

(v) Award the cost of the petition in favour of the petitioner and against the respondents.”

Thus, from the prayer sought, it is apparent that the only prayer is sought is a direction to the respondent authorities to produce the corpus of petitioner Golu @ Arun Patel before the Court and thereafter to set free the corpus Golu @ Arun Patel at his own liberty, who is in judicial confinement pursuant to the FIR dated 16.02.2023 in case under Sections 4, 5 and 6 of the Immoral Traffic (Prevention) Act 1956, P.S Jaitpura, District Varanasi. There is neither any prayer nor any pleadings to this effect that the alleged judicial remand is absolutely illegal or suffers from the vice of lack of jurisdiction or has been passed in absolutely mechanical manner by the court concerned.

Moreover, now the petitioner is facing the regular trial and thus canvass that the judicial remand is farfetched.

On 16.02.2023 around 13.38 hours one Habiburrehman has lodged an FIR against unknown person for the incident said to have been taken place on 12.02.2023 under Section 363 IPC at P.S Jaitpura, District Kashi (Police Commissionerate Varanasi) with the allegation that the informant is residing at adjacent lane, nearby Kohinoor Garden in a tenanted accommodation.

Informant’s daughter on 12.02.2023 went from her home without informing anybody and since then her whereabouts were not traceable and thus prayed that the police may help in searching for his daughter.

After lodging of the FIR the police has inquired from the informant Habiburrehman but the victim was recovered after 15 days. In her 161 Cr.P.C statement was recorded.

In this 161 Cr.P.C, dated 25.02.2023, she declares that her age is 16 years and she further states in her 161 Cr.P.C statement that she left her home on her own, without any information or knowledge to any of the family members in order to earn money. She went to Cantt Railway Station Varanasi and started searching for work for her. At the Station she met with one Prakash. Prakash has made an offer that he would provide service at Indore, M.P and asked her to purchase a ticket for Indore. For this purpose, she contacted one Golu, her own old acquaintance. Golu and her father came to the station and took her home. She remained silent when the question was put by the I.O as whether any sexual abuse were done by Prakash or not. She further states that all during these 15 days she remained at Varanasi Station.

Thereafter, the I.O of the case has brought her before the Magistrate for recording her statement under Section 164 Cr.P.C dated 27.02.2023, in which, she discloses that her age is 17 years and she further states that on her own she left her home, as the condition of the home were not congenial on account of financial distress & paucity. She went to the railway station to get herself engaged in some work,so that she may earn money. At the station, she met with two ladies and a manPrakesh, the ladies did not disclose their names or identity and all of them have made an offer to accompany her to Indore, so that they may arrange a good service for her.

Consequently, she joined their company and thereafter, all of them administered her ‘Beer’ and some other ‘intoxicant’, so that she got unconscious. Not only this, they have taken her to some nearby hotel, where Prakash got her to engage in sexual activities with some unknown persons. Not only this, Prakash and his wife compulsorily make her, as a subject of the sexual activities with some unknown person and in flesh trading while sending her in a number of hotels and virtually they have thrown her in the “so called profession” of prostitution for 15 days.

In the ‘Majeed Bayan’ of Habiburrehman, after inquiring from her daughter, she disclosed her pathetic & ordeal experience during these 15 days. She has given every minutest detail of suffering faced by her to her father. In which she has almost reiterated the 164 Cr.P.C version with necessary details in it. Many other characters were inserted in her story as she was dumped into the market of flesh trading.

The Court observed that,

Thus, the exercise of jurisdiction clearly shows that the Magistrate performs a judicial act. The order of remand, which is a judicial act, as we perceive does not suffer from any infirmity. It is a well accepted principles that a writ of Habeas Corpus is not to be entertained when a person committed to the judicial custody or the police custody by a competent court by an order, which prima facie does not appear without jurisdiction or passed in absolutely mechanical manner or wholly illegal as has been stated in judgement in B Ramachandra Rao(supra) & Kanu Sanyal(supra). The court is required to scrutinize the legality or otherwise of the order of detention which has been passed unless the court is satisfied the person has been committed to the jail custody by virtue of an order that suffer from vice of lack of jurisdiction or absolute illegality a habeas corpus writ petition cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of the courts, is neither an inquiry or a trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activities is clear cut and well demarcated, thus we are of the considered opinion that the prayer sought by means of the Habeas Corpus writ petition could not be granted in favour of the petitioner.

In the light of the above judgements, when there is a no prayer with regard to the alleged judicial remand is ex-facie defective or illegal by the aforesaid any of the vices, we cannot allow the Habeas Corpus writ petition in favour of the petitioner.

As it is evident from the prayer, that only limited remedy is sought to the extent that the personal presence of the petitioner may be ordered and he is sat at liberty. There is no whisper with regard to the fact that the alleged remand by the Magistrate suffers from any of the vices enumerated above. Even assuming for the sake of argument that the said judicial remand order suffers from any of the vice mentioned above the apt remedy is to challenge the said order first by invoking proper remedy for the same and then to approach the Court.

The Court noted that that the petitioner’s bail application has already been rejected by the concerned court by order dated 11.07.2023, he ought to have invoked the powers of the Court under Section 439 Cr.P.C for filing the bail application but instead of invoking the same, counsel for the petitioner has wrongly advices the petitioner to move a instant Habeas Corpus writ petition without challenging the judicial remand order, which clearly indicates the professional incompetence of the counsel for the petitioner. Not only this, the counsel during this marathon argument of two days never divulged this important aspect of this issue, that petitioner’s bail application was rejected on 11.07.2023. When a counsel is invoking the extraordinary jurisdiction of the Court, he must come with clean hands. We are of the opinion that the counsel for the petitioner without annexing the bail rejection order has made a passing reference, so as to justify his conduct.

Thus, the Court are not at all inclined to grant the desired prayer to the petitioner on the aforesaid reasons and ground hereby rejected the Habeas Corpus petition with the cost of Rs 50,000/- (Rs Fifty Thousand Only), which the petitioner shall deposit with the Registrar General, High Court, Allahabad within a period of one month. 

The Allahabad High Court while allowing the petition said that trivial and insignificant offences having one or two in number would not make the person branded as a “Goonda”.

The Court stated that this adjective “Goonda” itself carries bundle load of bad name, and the executive authorities casually and irresponsibly brand a person as a Goonda, goes without saying, that his entire future and reputation would go to dogs and cause irreparable damage to his name and reputation of his family.

A Division Bench of Justice Rahul Chaturvedi and Justice Mohd Azhar Husain Idrisi passed this order while hearing a petition filed by Govardhan.

The petition has been filed on behalf of petitioner Govardhan seeking following main prayer:

“Issue a writ, order or direction in the nature of Certiorari quashing the show cause notice dated 15.6.2023, issued by the Additional District Magistrate (Finance & Revenue), Aligarh, in Case No 3400 of 2023 (State Vs Govardhan), under Section 3 of the Uttar Pradesh Control of Goondas Act, 1970, Police Station Chharra, District Aligarh.”

In the case, the notice under Section 3 of the Uttar Pradesh Control of Goondas Act, 1970 dated 15.6.2023 has been issued on the basis of two cases, (i) Case under Sections 323, 504, 506, 354, 354B, 452 IPC, Police Station Chharra, District Aligarh and (ii) Report dated 3.5.2023.

On the basis of these “so called two cases” the Additional District Magistrate (Finance & Revenue), Aligarh has issued a notice under aforesaid section of the Act, 1970 against the petitioner for the purposes of bringing an additional offence within the four corners of Uttar Pradesh Control of Goondas Act, 1970. For this objective the person must be a “Goonda” and this expression of “Goonda” has been defined in Section 2(b) of the Uttar Pradesh Control of Goonda Act, 1970.

The peculiar feature of this enactment is that the person who is branded as “Goonda” should be ousted from the municipal limits of the city as a preventive measure by the executive authorities of the district by passing externment order. That the person either himself or as a member or leader of a gang, who habitually commits the offences mentioned in the Section 2(b) of the Act or he has got the tendency to commit the offence time and again. If a person is having a solitary case to his credit, he cannot be branded that he has a habitual Goonda pleaded by the counsel for the petitioner.

Provisions of Uttar Pradesh Control of Goonda Act, 1970 are applicable in the entire State of UP. Its punishment is provided in Section 3 of the aforementioned enactment that when it appears to the District Magistrate that any person is a “Goonda” or his movements or acts in the district or any part thereof may cause or are calculated to alarm, danger or harm to the persons or property of the district. The District Magistrate feels and have a sufficient material of believing that, he is engaged or about to engage in the District or any part thereof, in the commission of offence referred to in sub-clauses (i) to (iii) of clause (b) of Section 2, or its abetment of such an offence and no witness would come forward to give evidence against him, meaning thereby, that individual has earned lots of bad name and has got sufficient ‘nuisance value’ in the district. By this reason of apprehension with regard to the safety of their person or property, the District Magistrate may pass an externment order for a period of six months as specified in law with sole motive to save the citizens from the wrath of that individual “Goonda”. Thus, it can safely be termed that under this enactment, the District Magistrate are empowered to handle such type of miscreants and oust them from the municipal limit of the district maximum for the period of six months by way of preventive measures. This is a deterrent law whereby a person who is termed as a “Goonda” is asked to leave the premises of the district. It shall be branded as “Goonda” for the rest of his life.

The District Magistrate before exercising this extraordinary and unusual powers conferred by this enactment, must exercise with all caution and care, but we are noticing that there is a rampant misuse of provisions of this enactment. The executive authorities for the extraneous consideration exercising this extraordinary powers at their whims and capricious and are issuing notices on a solitary case or some beat reports. This amounts to making the deterrent enactment blunt. The indiscreet exercise of provisions of Goonda Act and sending the notices to the persons is not based on executive authorities’ sweet will or choice. Issuing notice on solitary cases is quite irritating and unnecessarily, there is piling up of litigation.

In the case there is a solitary case and solely on this basis no executive authority can justify that the petitioner is a ‘habitual offender’ or involved in the cases mentioned in Section 2(b) of the Uttar Pradesh Control of Goondas Act, 1970.

The Court further said that it is a fundamental right of every citizen to reside peacefully and profess his business, but if the executive authorities are issuing notice under this deterrent law, then they must be doubly sure about the individual’s past image, his past credentials, his family, social educational background and after assessing all these factors if the executive authorities comes to the conclusion that individual is a “Goonda” or a potential threat to society at large and should be thrown out from the municipal limits, then only by well reasoned order, after applying his own independent judicial mind pass a well reasoned order for externment of that individual or even issue notice to that individual calling upon him to justify his past conduct.

The Court also said that the public perception regarding the individuals’ image carries weight. If the individual is enjoying a bad reputation and name in the area and coupled with the fact that he has got a chequered past then executive authorities are well within their right to issue notice to that individual or to pass an externment order for that individual.

“But in the case, the notice under challenge spells out the cases required against the petitioner which is allegedly issued on a “prescribed printed proforma” without application of mind by the executive authorities. Not only this, except enumeration of pending solitary case and a beat report, there is total lack of any judicial mind spelling out the general nature of material allegations against the petitioner, making entire impugned notice per se defective and cannot be acted upon any further”, the Court observed while allowing the petition.

The Court expressed displeasure in this type of routine pasting of such provisions of the Uttar Pradesh Control of Goondas Act, 1970 and Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 in a most capricious and casual way.

Accordingly, the Court quashed the show cause notice dated 15.6.2023, issued by the Additional District Magistrate (Finance & Revenue), Aligarh, in Case under Section 3 of the Uttar Pradesh Control of Goondas Act, 1970, Police Station Chharra, District Aligarh.

The Allahabad High Court while noting that after 17 years of lodging of the FIR, this exercise being carried out by the police is strange and mockery of the criminal jurisprudence, disapproved the issuance of notice under Section 160 of CrPC to five accused in connection with an FIR registered against them in the year 2006.

The Division Bench of Justice Rahul Chaturvedi and Justice Gajendra Kumar passed this order while hearing a petition filed by Devendra Singh and 4 Others.

This is a strange case where after 17 years of the lodging of the FIR (date of lodging is 06.05.2006) against 106 persons including the petitioners, now, the petitioners are in receipt of notice under section 160 of Code of Criminal Procedure dated 19.04.2023, summoning him to record his statement.

Counsel for the petitioners submitted that petitioner no1- Devendra Singh has retired as Gram Panchayat Vikas Adhikari, petitioner no 2-Parashuram@Parashuram also superannuated from the post of A.D.O.(Panchayat), petitioner no 3-Ram Kishun@Ramkishun Yadav retired as Block Pramukh and respondent no 4 and 5, Kotedar at relevant point of time.

The next contention raised is that after the lapse of 17 years, the investigation is still going on without any cogent result and the petitioners are more than willing and ready to cooperate in the investigation provided the interest of the petitioners are protected.

The Court has seen the allegation and accusation made in the FIR. After 17 years of lodging of the FIR, this exercise, being carried out by the police, is strange and a mockery of the criminal jurisprudence.

“However, the interest of the petitioners are protected for a period of one month from today with the liberty that in case, the petitioner shall apply for anticipatory bail, his anticipatory bail will be considered sympathetically, keeping in view that the petitioner has already attained the age of superannuation and the matter relates to the year 2006, by the court concerned within a period of one week of its filing. However, it is open that the petitioners would cooperate with the investigation”, the order read.

With this observation, the Court disposed of the petition.

The Allahabad High Court while allowing the petition said that the preventive detention laws in India are a colonial legacy and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of care cases.

The Division Bench of Justice Rahul Chaturvedi and Justice Gajendra Kumar passed this order while hearing a Habeas Corpus Writ Petition filed by Shivbodh Kumar Mishra Alias Shiv Bodh Mishra.

The Habeas Corpus Writ Petition filed invoking constitutional remedy under Article 226 of the Constitution of India, whereby the petitioner Shivbodh Kumar Mishra @ Shiv Bodh Mishra has sought the following prayer :-

“issue a Writ of Habeas Corpus commanding all the respondents to release the petitioner from his illegal detention in pursuance of the detention order dated 04.03.2022 passed by respondent no 3 under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

and to set the petitioner at liberty forthwith, and may further be pleased to quash the impugned order dated 04.03.2022 passed by the respondent no 3 of the writ petition.”

Thus, from the above prayer, it is clear that petitioner has sought a command and direction from this Court to release him from illegal detention pursuant to order passed by the respondent no 3 dated 04.03.2022 u/s 3(1) of “Prevention of Illegal Traffic in Narcotic Drug and Psychotropic Substance Act, 1988” (PITNDPS Act’) and the petitioner may be set at liberty forthwith after quashing the order dated 04.03.2022.

In this case, on 04.01.2016 the Zonal Director, NCB Lucknow after receiving a tip from his sources that 4-5 persons coming from Bihar on a truck, and a Mahindra Scorpio car are likely to deliver a consignment of illegal ‘Ganja’ to the petitioner near Nawabganj Bypass situated at Allahabad Lucknow Road around 01.00 in the day on 04.01.2016. On receiving this information, a team consisting of NCB officials intercepted the aforesaid vehicle and recovered 312.045 kgs of Ganja.

In this operation total 8 persons were nabbed, though the petitioner was sitting in a Mahindra Scorpio Car. Accordingly, a criminal case was filed by NCB Lucknow having Criminal Case under section 8, 20, 29 of N.D.P.S Act before the District & Session Judge, Allahabad on 29.6.2016.

It is contended by counsel for petitioner that after great deal and efforts, the petitioner was eventually let loose on bail by this Court vide order dated 05.03.2020 while allowing his Third Bail Application and thereafter the petitioner was bailed out after completing the necessary formalities, furnishing the bail bonds and sureties.

On 25.10.2020 he was again apprehended along with three other persons while travelling on a Swift Desire car along with Surajpal Soni, Vijay Kesarwani and Sanjay Kesarwani. After being searched out, a total quantity of 170 kgs of Ganja was recovered.

In respect of this incident, an FIR was lodged on 25.10.2020 as Case under section 8 & 20 of NDPS Act, Police Station Mahewaghat, District Kaushambi. It is interesting to mention here that, petitioner again preferred a Bail Application in aforesaid case crime which was allowed by the Additional Sessions Judge (POCSO Act), Kaushambi vide order dated 18.12.2020.

These aforementioned are only two cases in which the petitioner was arrested and later on was bailed out on 05.03.2020 and 18.12.2020 respectively. Except for the above mentioned two cases, there are no other cases to the credit of petitioner.

It has been strenuously argued by counsel for the petitioner that after being released on bail vide order dated 18.12.2020, the petitioner has never indulged into any offence, much less than the cases of NDPS Act, till he was bombarded by impugned detention order dated 04.03.2022, signed by Ravi Pratap Singh, Joint Secretary, Government of India, Ministry of Finance, Department of Revenue (PITNDPS Unit) u/s 3(1) of the PITNDPS Act, 1988.

The Court said that,

In the case, the petitioner has not been provided any document relying upon the sponsoring authority having prepared his report or as to when the sponsoring authorities have started preparing the report for forwarding the same to the detaining authority. All these vital aspects of the issue remain under the carpet of secrecy which is prejudicial to the interest of the petitioner. It is binding and statutory duty to share all documents material of which the sponsoring authority has firmed opinion to proceed against the petitioner under the PITNDPS Act, without which the entire detention order gets vitiated.

In view of above object of the preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to remain vigilant and keep their eyes skinned but not to turn a blind eye in passing the detention order at the earliest from the date of the proposal and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority would defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate the entire proceedings.

The adverse effect of delay in arresting a detenu has been examined by this Court in a series of decisions and the Court has laid down the rule in clear terms that an unreasonable and unexplained delay in securing a detenu and detaining him vitiates the detention order. In the decisions we shall refer hereinafter, there was a delay in arresting the detenu after the date of passing of the order of detention. However, the same principles would apply even in the case of delay in passing the order of detention from the date of the proposal. The common underlying principle in both situations would be the “live & proximate link” between the grounds of detention & the avowed purpose of detention.

The Court observed that,

Thus, from the above discussion it is abundantly clear that on account of non supply of material by sponsoring authority the petitioner was not in a position to give effective representation. Secondly, there is no direct ‘live and proximate link’ between the action of petitioner and the detention order passed by the detaining authority. In the grounds of detention order, not a single word has been whispered that the petitioner even after being bailed out was regularly in touch with his sources or mobilising them.

The petitioner was bailed out on 18.12.2020 and since then there are no criminal antecedents reported to his credit. He is already attending the proceedings of the court and cooperating with the trial in two cases before the trial court concerned and now whimsically the respondent authorities nabbed the petitioner under Section 3(1) of PITNDPS Act allegedly preventing him from the unknown unheard forthcoming offence which the petitioner is said to have been planning.

The Court further said that the preventive detention laws in India are a colonial legacy and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of care cases. In cases of preventive detention, where the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the courts must always give every benefit of doubt in favour of the detenue, and even the slightest of errors in procedural compliances must result in favour of the detenue.

After having gone through the judgments of the Apex Court and having considered the contentions raised by counsel for the respective parties, the Court have no hesitation to say that the impugned detention order dated 4.3.2022 and the grounds are de hors the provisions of law, and therefore, the impugned detention order dated 4.3.2022 and the grounds dated 04.03.2022 on which the detention order was passed, are hereby set aside and consequently the petitioner is set at liberty forthwith, if he is not wanted in any other case.

The Allahabad High Court while allowing an application observed that an order issuing a summons to an accused for an offense under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, can be challenged by filing an application under Section 482 CrPC.

A Single Bench of Justice Rahul Chaturvedi passed this order while hearing an application under section 482 filed by Devendra Yadav and 7 Others.

The question of sustainability of the 482 Cr.P.C application against the order of summoning under Sections 147, 148, 323, 354 Kha, 452, 504 IPC and Section 3(1)(X) SC/ST Act, P.S Bilhaur, District Kanpur Nagar pending in the court of Additional District & Sessions Judge/Special Judge, SC/ ST Act, Kanpur Dehat and impugned summoning order dated 19.11.2022 passed by the same court.

The extraordinary powers of the Court has been invoked by the applicants challenging the entire proceeding of the under the aforesaid sections of the IPC pending in the court of Additional District & Sessions Judge /Special Judge, SC/ST Act, Kanpur Dehat including the summoning order dated 19.11.2022.

As the matter relates to the “maintainability of the 482 Cr.P.C application” in the light of the full Bench decision of the Court in the case of Gulam Rasool Khan and others Vs State of U.P and others in Criminal Appeal decided on 28.07.2022, , whereby Single Judge vide order dated 03.08.2018 has referred the matter to the larger bench and has framed the following question, which are quoted herein below:-

(i) Whether a Single Judge of this Court while deciding Criminal Appeal (Defective) No. 523/2017 In re : Rohit Vs State of U.P and another vide judgment dated 29.08.2017 correctly permitted the conversion of appeal under Section 14 A of the Act, 1989 into a bail application by exercising the inherent powers under Section 482 of the Cr.P.C?

(ii) Whether keeping in view the judgment of Rohit (supra), an aggrieved person will have two remedies available of preferring an appeal under the provisions of Section 14 A of the Act, 1989 as well as a bail application under the provisions of Section 439 of the Cr.P.C?

(iii) Whether an aggrieved person who has not availed of the remedy of an appeal under the provisions of Section 14 A of Act, 1989 can be allowed to approach the High Court by preferring an application under the provisions of Section 482 of the Cr.P.C?

(iv) What would be the remedy available to an aggrieved person who has failed to avail the remedy of appeal under the provision of Act, 1989 and the time period for availing the said remedy has also lapsed?

AGA has strenuously hammered his submissions that 482 Cr.P.C application is not maintainable in the light of the aforementioned observations made by the full Bench of the Court in the case of Gulam Rasool Khan (supra).

Mohit Singh, counsel for the applicants refuted the submissions by making a mention that there are catena of decisions of the Apex Court with regard to the maintainability of the 482 Cr.P.C application, even though the provisions of SC/ST Act is present.

Since the case of Gulam Rasool Khan was decided in the year 28.07.2022 whereas Ramawtar case was decided in 2021, thus, it has been contended by the counsel that 482 Cr.P.C application is maintainable even if it relates to SC/ST Act.

Counsel for the applicant submitted that while deciding the case of Gulam Rasool Khan (supra), the Division Bench of the Court has never relied upon or even considered the ratio laid down in the judgment of Ram Avtar Vs State of M.P and thus could be safely be termed as per incuriam.

Thus from the aforesaid discussions, it is clear that the Apex Court has clearly and time and again have opined that elaborating the aforesaid provision of full bench of the Court as well as the Apex Court and taking the help of the aforesaid judgments, the Court is of the considered opinion that 482 Cr.P.C application could be filed assailing the summoning order, the Court said.

The Court noted that,

The application under Section 156(3) Cr.P.C converted into a complaint case order dated 08.05.2019 passed by Additional District & Sessions Judge/Special Judge, SC/ST Act, Kanpur Dehat.

The Special Judge, SC/ST Act vide summoning order dated 19.11.2022 has summoned the applicants, namely, Devendra Yadav, Babulal Yadav, Laloo Yadav, Lakhan Raidas, Naresh, Amar Singh, Sonu and Arvind under Sections 147, 148, 323, 354 Kha, 452 and 504 IPC and Sections 3(1)(X) SC/ST Act to face the prosecution.

The genesis of the case starts from filing of the 156(3) Cr.P.C application by opposite party no 2 on 27.09.2018 for the incident said to have taken place on 05.04.2018.

Counsel for the applicant have accused the Trial Judge that he has passed the impugned summoning order with pre-meditated mind on 19.11.2022. The Court has occasioned to to peruse the summoning order in which Special Judge, SC/ST Act have narrated the statements and have jumped into the conclusion that prima facie case is made out against the applicant under Section 147, 148, 323, 354 Kha, 452, 504 IPC and Section 3(1)(X) SC/ST Act.

In addition to this, it is argued by the counsel that the court below has passed an impugned order dated 08.05.2021 observing therein that the police have submitted a report that there is no FIR registered at the police station. The aforesaid observation is nothing but a tissue of utter falsehood for the reasons best known to the concerned Special Judge. The aforesaid police report as mentioned in earlier paragraphs, which clearly indicates that there is a FIR lodged by Smt Gangajali wife of Rajaram as case under Sections 147, 452, 504, 380 IPC.

In this case, opposite party no 2 Geeta also sustained injuries but she was adamant to get the criminal case registered under the SC/ST Act, she is playing all the tricks and gimmicks with the court process and the Special Judge, SC/ST Act is supporting her calls and therefore, the proceeding would safely be termed as second complaint on the same facts, though its complainant is a different lady.

“In the case, where the contesting parties are residents of Kanpur Nagar. The Court wonders as to what circumstances, Special Judge, SC/ST Act, Kanpur Dehat has passed the impugned summoning order without holding the requisite mandatory inquiry as contemplated in Section 202(1) Cr.P.C and therefore, the impugned summoning order is well short of aforesaid legal issues, which cannot be sustained in the eye of law.

Thus taking into account the totality of the circumstances and the observation made by the Apex Court in this regard, I have got no hesitation to quash the impugned summoning order dated 19.11.2022 passed by the Additional District & Sessions Judge/ Special Judge, SC/ST Act, Kanpur Dehat. Since parallel proceeding by way of FIR is already progressing and the present controversy is nothing but an arm twisting of the applicants by levelling more serious and grim allegations in it and therefore, it cannot be sustained”, the Court observed while allowing the application.

The Allahabad High Court has stayed the proceeding of a POCSO case while observing that it is society’s dark face that Indian families still feel shy to get their son or daughter married to someone from outside their caste.

A Single Bench of Justice Rahul Chaturvedi passed this order while hearing an application under section 482 filed by the victim.

By means of the application, the prayer sought by the applicants is to quash the charge sheet dated 24.03.2019 in charge sheet under sections 363, 366 IPC and Section 7/8 of POCSO Act, Police station-Bijpur, District-Sonbhadra in Special S.T pending in the court of Additional District Judge/Special Judge, POCSO Act, Sonbhadra.

Contention raised by counsel for the applicants is that both the parties are now married and residing as a happily married couple. Not only this, from this wedlock, they have given birth to a baby boy Master Shivansh on 16.09.2022. The only legal impediment is with regard to the age of the girl.

The next contention is that on the date of her medical examination i.e on 12.02.2019, her age is 17 years and on this basis, POCSO Act has been added in the array of sections.

This is the clear case of our society’s dark face, where the families still feel shy to get their son or daughter to marry inter caste. In the instant case, the victim girl belongs to the OBC community whereas the applicant boy belongs to the SC community and out of sheer love and affection, they decided to marry in their teens. This wedlock is blessed with a baby boy Shivansh having date of birth 16.09.2022. Despite all these developments, the applicant is facing the futile exercise of holding a trial.

The Court said that,

The court, after hearing the parties, records its deepest anguish, whereby this social menace is so deep rooted that even after 75 years of independence, we are fighting the cases with his opponents on this score only. The opposite party no 2 is the father of the victim who lodged the FIR and is still contesting the case against the applicant. He must have been aware that her daughter is now the mother of a small baby and he ought to have, for the bright future of his girl, withdraw the case.

This is the greatest impediment in our society but the requirement of law is that when both the parties have agreed and now they are happily residing as husband and wife with their small kid, there cannot be any impediment in accepting this marriage in the light of the judgment of the Apex Court in the case of Mafat Lal and Another Vs State of Rajasthan decided on 28.03.2022.

Hence, Ayodhya Prasad Vishwakarma, father of the girl is required to appear before the Court on 28.04.2023.

“Till then, further proceeding with regard to charge sheet dated 24.03.2019 in charge sheet under sections 363, 366 IPC and Section 7/8 of POCSO Act, Police station-Bijpur, District-Sonbhadra in Special S.T pending in the court of Additional District Judge/Special Judge, POCSO Act, Sonbhadra shall remain stayed”, the Court ordered.

The Court has fixed the next hearing of the petition on April 28, 2023.