The Lucknow Bench of the Allahabad High Court has quashed criminal proceedings against a Samajwadi Party (SP) leader and former UP Minister’s daughter, Shreya Verma.

A Single Bench of Justice Shamim Ahmed passed this order while hearing an application under section 482 filed by Sushri Shreya Verma and 4 Others.

The application under Section 482 Cr.P.C has been filed on behalf of the applicants with a prayer to quash the charge sheet dated 27.03.2022 alongwith summoning order dated 22.09.2023 arising out of Case under Section 188, 171-H I.P.C, Police Station-Mohammadpur Khala, District-Barabanki as well as the entire proceeding of Criminal Case pending before the court of Additional Chief Judicial Magistrate/ F.T.C, Barabanki with a further prayer to stay the proceedings of the aforesaid case.

Counsel for the applicants submitted that the father of the applicant No 1 was contesting for the post of Member of Legislative Assembly in Vidhansabha Elections, 2022 from the constituency of Kursi District-Barabanki.

During that period on 29.01.2022, an F.I.R was lodged by the opposite party no 3, the then In-charge, Mobile Squad Vidhansabha Kursi, District-Barabanki against the applicants alleging therein that due to ongoing elections of Vidhansabha in District-Barabanki, the model code of conduct was enforced and on 28.01.2022 the applicant Nos 1 and 2 and about 50 other persons were canvassing in the election in Village Bhund Hamlet Sewali Gram Sabha Aalhemau and Jyoti without permission and the video of the canvassing programme went viral, which has been organized by applicants and others.

Counsel for the applicants further submitted that on 01.02.2022, the Investigating Officer recorded the statement of the complainant, wherein he reiterated the same version of the F.I.R and from perusal of the same no offence is made out against the applicants and the statements given by the complainant are not trustworthy and same is based on false and concocted facts.

Counsel for the applicants further submitted that the F.I.R was registered under Sections 171 H and 188 I.P.C, which is without jurisdiction as Section 171 H of I.P.C is described as non cognizable offence in the penal code and Section 195(1) Cr.P.C specifically provides that no court shall take cognizance of any offence under Sections 172 to 188 except upon a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Thus, taking cognizance under Section 188 I.P.C is also without jurisdiction.

Counsel for the applicants further said that the order dated 22.09.2023 passed by the Additional Chief Judicial Magistrate/F.T.C, Barabanki, by which the applicants were summoned, is also non speaking as the Magistrate has not considered any material available before him while summoning the applicants to face the trial. As such, the order dated 22.09.2023 on the face of record appears to be unjustified, arbitrary, illegal and is passed without application of judicial mind, therefore, the same is liable to be set aside by the Court and the application under Section 482 Cr.P.C is liable to be allowed.

On the other hand, A.G.A for the State opposed the argument advanced by counsel for the applicants and submitted that the impugned summoning order dated 22.09.2023 is rightly passed and no interference by the Court is required in the matter, therefore, the application is liable to be dismissed at this stage only

On careful perusal of the averments made in this application under Section 482 Cr.P.C as well as after hearing the counsel for the parties, the factual matrix disclose that the o the opposite party no 3, the then Incharge, Mobile Squad Vidhansabha Kursi, District-Barabanki had lodged an F.I.R against the applicants alleging therein that applicant No 1 whose father, namely-Rakesh Verma was contesting election for the post of Member of Legislative Assembly in the Vidhan Sabha Election, 2022 and model code of conduct was enforced in the area. On 28.01.2022 the applicant Nos 1 and 2 alongwith 50 persons were canvassing in support of Rakesh Verma without any prior permission.

The Court found that the above said two offences are non cognizable offences. Therefore, as per Section 155(2) of Cr.P.C, the police have no right or jurisdiction to investigate the matter, without prior permission of the Magistrate, who has got jurisdiction to try those offences. Therefore, the entire charge sheet filed by the police is vitiated by serious incurable defects and procedural irregularities.

The Court further found that the F.I.R as well as the charge sheet, do not disclose that there was any cognizable offence made by the applicant, so as to enable the police to investigate both the cognizable and non- cognizable offences together and to file the charge sheet. Therefore, the entire charge sheet papers and on the basis of which the criminal case is registered is liable to be quashed.

The Court also found that the trial court while summoning the applicants by impugned order has totally failed to appreciate the factual and legal aspect of the matter.

The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue.

This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.

“In view of the above said facts and circumstances of the case, the investigation done by the police in this case is without jurisdiction and based on such invalid investigation report, the cognizance taken by the Magistrate is also illegal. Secondly, the entire proceeding before the Magistrate is vitiated by serious incurable defects.

Thus, in view of the law laid down by the Apex Court and the facts and circumstances, as narrated above and from the perusal of the record, the charge sheet dated 27.03.2022 alongwith the summoning order dated 22.09.2023 passed by the Additional Chief Judicial Magistrate/ F.T.C, Barabanki in Criminal Case under Sections 171 H and 188 of I.P.C, Police Station Mohammadpur Khala, District-Barabanki, as well as the entire criminal proceedings in pursuance thereof are against the spirit and directions issued by the Apex Court and are liable to be set aside”, the Court observed while allowing the application.

Accordingly, the Court quashed the charge sheet dated 27.03.2022 alongwith the summoning order dated 22.09.2023 passed by the Additional Chief Judicial Magistrate/F.T.C, Barabanki in Criminal Case under Sections 171 H and 188 of I.P.C, Police Station Mohammadpur Khala, District-Barabanki as well as the entire criminal proceedings in pursuance thereof.

The Lucknow Bench of the Allahabad High Court has directed the Regional Passport Officer to decide the application moved by Singer Sapna Choudhary for renewal/re-issue of her passport and pass an order within 1 month.

A Single Bench of Justice Shamim Ahmed passed this order while hearing an application under section 482 filed by Ms Sapna @ Sapna Choudhary.

The application under Section 482 Cr.P.C has been for grant of permission/No objection for issuance of Passport to the applicant Sapna @ Sapna Choudhary presently residing at: ATS Kocoon, Section 109, Gurugram, Haryana in Case under Section 406/420 I.P.C, Police Station Ashiyana, District Lucknow in so far it relates to the applicant, pending in the court of Additional Chief Judicial Magistrate, District Lucknow be setting aside order dated 21.12.2023.

Counsel for the applicant submitted that on 13.10.2018, the respondent No 2 who is posed as Sub-Inspector at Police Station Ashiyana, District Lucknow lodged a complaint/application against the applicant and others. Upon the aforesaid application on 14.10.2018, an F.I.R got registered in Case under Section 406/420 I.P.C Police Station Ashiyana, District Lucknow

Counsel for the applicant further submitted that the passport was issued to the applicant by the Regional Passport Office concerned. The validity of the said passport has expired.

Counsel for the applicant also submitted that the applicant is an artist/ actress and is required to travel to various destinations/ countries for her performances and she is required to move an application seeking permission to travel abroad every time she travels. The entire process is not only causing difficulty to the petitioner but also putting burden upon the trial court and due to the issuance of the short validity passport to the applicant, the applicant is unable to get visas for many host countries where she is required to perform or to attend functions, which is resulting in loss of business and income to the applicant and she prays for permission/NOC to get her passport renewed for the period of 10 years.

Counsel for the applicant said that an application was filed by the applicant before the court of Additional Chief Judicial Magistrate, District Lucknow for grant of permission for renewal of passport, which was rejected by means of order dated 21.12.2023 observing therein that the Court has no jurisdiction for granting the permission of renewal of passport.

The Court observed that,

The Court after considering the judgment of the Supreme Court in the case of Maneka Gandhi (Supra) this court is of the view that right to travel abroad is a part of the personal liberty guaranteed under Article 21 and 19 (1) (g) of the Constitution of India and in addition thereto a careful reading of provisions of the Passport Act and the Notification dated 25.08.1993 alongwith the Office Memorandum dated 10.10.2019 in the light of it’s legislative backgrounds, it is clear that passport or travel document of a person, who is facing trial can be refused by the authority concerned during pendency of his criminal case, but there is no statutory bar for giving no objection by the court concerned. No hard and fast straight jacket formula can be laid down regarding issuance of permission or giving no objection by the court concerned for issuance of passport.

It is always discretion of the court concerned and depends upon the facts and circumstances of each case, act and conduct of the accused as well as nature of alleged offence committed by him/her and stage of trial, etc. Some time on account of enmity or ill will one party enmesh the other party in a frivolous criminal case to settle his personal score, therefore, in the interest of justice, it is necessary to consider all aspects of the matter and surrounding circumstances while granting or refusing the no objection for renewal or reissue of passport or travel documents by the court concerned or by the authorities concerned and the trial in the above case is not likely to conclude very soon. These were relevant factors to be considered by the Trial Court while passing the impugned order.

The trial court had completely ignored the Notification issued by Ministry of External Affairs, New Delhi dated 25.08.1993 as well as Office Memorandum dated 10.10.2019 issued by the Ministry of External Affairs, Government of India, New Delhi while passing the impugned order and had rejected the application of the applicant for grant of permission for renewal/re-issue of passport, thus, the impugned order is not sustainable in the eyes of law, therefore, the same is liable to be set aside/reversed.

“In view of above, in the light of the notification dated 25.08.1993 and the Office Memorandum dated 10.10.2019 as well as the judgment passed by the Supreme Court in the case of Maneka Gandhi (Supra) and considering the larger mandate of the Article 19 and 21 of the Constitution of India, the order dated 21.12.2023 passed by Additional Chief Judicial Magistrate, District Lucknow, by means of which application for renewal/re-issue of passport of applicant was rejected, is hereby set aside and reversed”, the order reads.

Accordingly, the Court allowed the application under Section 482 Cr.P.C with following directions:

(i) The applicant shall move a fresh application along with a certified copy of this order for renewal/re-issue of her passport before the concerned Regional Passport Officer within 20 days from the date of this order.

(ii) In case such application is moved by the applicant, within the time stipulated by this Court, the concerned Regional Passport Officer/authority shall decide the application and pass an order for renewal/re-issue of the passport of the applicant within 01 month from the date of production of certified copy of this order, after completing the due formalities in accordance with law.

(iii) The applicant shall inform and take permission from the trial court concerned before going abroad and she shall appear before the trial Court on the date fixed as directed by the trial Court and she shall be bound by the terms and conditions imposed by the trial court.

The Lucknow Bench of the Allahabad High Court while rejecting the delayed application against acquittal and said that lapse on the part of litigant in approaching Court within time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, would add to his negligence, and would be relevant factor going against him.

A Single Bench of Justice Shamim Ahmed passed this order while hearing a petition filed by Smt Sarla Devi.

This leave to appeal has been filed with a delay of 2 Years 04 Months and 8 Days, as per the report of the stamp reporter, challenging the order dated 10.06.2013 passed by the Additional Chief Judicial Magistrate, Kheri in Criminal Case Police Station Kotwali Sadar, District Kheri against the acquittal of the accused person/opposite party nos 2 & 3.

Counsel for the applicant in the application for condonation of delay supported with the affidavit has taken the ground that the impugned order was passed on 10.06.2023 by the court concerned and the appeal was not filed in time as the clerk of the advocate was ill.

Hari Shanker Bajpai, A.G.A-I for the State Opposite Party No1 as well as Shailendra Singh Rajawat, counsel for the opposite party nos 2 & 3 jointly submit that this leave to appeal is time barred by 2 Years 04 Months and 8 Days and the reasons shown in the affidavit supported with application for condonation of delay do not appear to be justified.

After considering the arguments advanced by counsel for the parties as well as after perusal of record, the Court found that the explanation given in the affidavit accompanying delay condonation application filed under Section 5 of Limitation Act, 1963 is neither acceptable nor trustworthy.

The Court observed that,

The expression “sufficient cause” in Section 5 of Act, 1963 has been held to receive a liberal construction so as to advance substantial justice and generally a delay in preferring appeal may be condoned in interest of justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to parties, seeking condonation of delay. In Collector, Land Acquisition Vs Katiji, 1987(2) SCC 107, the Court said, that, when substantial justice and technical considerations are taken against each other, cause of substantial justice deserves to be preferred, for, the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. The Court further said that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

The Rules of limitation are not meant to destroy rights of parties. They virtually take away the remedy. They are meant with the objective that parties should not resort to dilatory tactics and sleep over their rights. They must seek remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The statute relating to limitation determines a life span for such legal remedy for redress of the legal injury, one has suffered. Time is precious and the wasted time would never be revisited. During efflux of time, newer causes would come up, necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The statute providing limitations is founded on public policy. It is enshrined in the maxim Interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). It is for this reason that when an action becomes barred by time, the Court should be slow to ignore delay for the reason that once limitation expires, the other party matures his rights on the subject with attainment of finality. Though it cannot be doubted that refusal to condone delay would result in foreclosing the suitor from putting forth his cause but simultaneously the party on the other hand is also entitled to sit and feel carefree after a particular length of time, getting relieved from persistent and continued litigation.

The Court said that there is no presumption that delay in approaching the court is always deliberate. No person gains from deliberate delaying a matter by not resorting to take appropriate legal remedy within time but then the words “sufficient cause” show that delay, if any, occurred, should not be deliberate, negligent and due to casual approach of concerned litigant, but, it should be bona fide, and, for the reasons beyond his control, and, in any case should not lack bona fide. If the explanation does not smack of lack of bona fide, the Court should show due consideration to the suiter, but, when there is an apparent casual approach on the part of the suiter, the approach of Court is also bound to change.

“I need not burden this judgment with a catena of decisions explaining and laying down as to what should be the approach of the Court on construing “sufficient cause” under Section 5 of Act, 1963 and it would be sufficient to refer to a very few of them besides those already referred.

In my view, the kind of explanation rendered herein does not satisfy the observations of Apex Court that if delay has occurred for reasons which does not smack of mala fide, the Court should be reluctant to refuse condonation. On the contrary, I find that here is a case which shows a complete careless and reckless long delay on the part of the appellant which has remained virtually unexplained at all. Therefore, I do not find any reason to exercise my judicial discretion exercising judiciously so as to justify condonation of delay in the case”, the Court further observed while dismissing the appeal.

Accordingly, the application for condonation of delay is rejected by the High Court.

Stating that we are not living in a Western country where live-in relationships are very popular and common among citizens, the Allahabad High Court recently dismissed a habeas corpus petition filed by a man, noting that it was solely filed to extract a compromise from the woman’s family by placing them under pressure and fear of humiliation

By Dr Swati Jindal Garg

Justice Shamim Ahmed of the Allahabad High Court made the observation while deciding the petition submitted by 32-year-old Ashish Kumar, who claimed that his partner, a 29-year-old woman, was being confined forcefully by her family members. Being totally unconvinced by the submissions made by the petitioner’s lawyer, the judge reiterated that live-in relationships are not common in India and imposed a cost of Rs 25,000 on the petitioner.

The judge observed: “This Court does not find any justification to entertain this type of petition and to frustrate this type of petition filed by any such person in future only to defame the image of a girl or her family members, who are living in a society and if the Court entertains this type of petition, the image and reputation of family as well as of the girl will certainly be demolished and it will be very difficult for a family who has been roped in these type of cases to solemnize the wedding of their girl in future to any other family of their choice.” The judge further said: “We live in a country where people believe in culture and traditions, which is the crown of our country and we are proud of it, therefore, we have to respect the traditions and culture of our country.”

The decision of the Court was a blow to the petitioner who had claimed to be in a relationship with the woman since 2011. It was also alleged by him that, despite the couple’s desire to marry, the woman was forbidden from meeting Kumar, was forced to stay at home and her family strictly opp­osed the union. Kumar further submitted photographs and a letter allegedly written by the said woman to back up his accusations as proof. 

The state, on the other hand, opposed these claims stating that the entire case was not only bogus, but also concocted and intended to harm the woman and her family’s reputation in the society. The Court seeing merit in the state’s submissions, concluded that the pictures submitted by the petitioner appeared to be modified and altered and that the letter allegedly written by the woman appeared to be forged. The Court at the same time also questioned why the couple did not marry after supposedly being in a relationship for 13 years. Noting that Kumar’s writ petition made no mention of any live-in relationship, the Court was also of the view that the petitioner’s arguments before it were carefully crafted in order to secure a favourable ruling.

This is not the first time when the courts in India have taken an adverse view regarding providing protection to couples who claim to be in a live-in relationship. Observing that live-in relationship cannot be at the cost of the social fabric of this country, the Allahabad High Court had recently dismissed another writ plea filed by a married woman and her live-in partner, seeking police protection on the grounds that her husband was endangering their peaceful lives.

Dismissing another petition filed by an inter-faith couple, who were in a live-in relationship and had approached the Court seeking protection from alleged police harassment, the Lucknow bench of the Allahabad High Court had said that live-in relationships were a “social problem” and could be “uprooted socially” and not by the intervention of the courts in the garb of violation of Article 21 of the Constitution. The judgment was passed by a division bench comprising Justice Sangeeta Chandra and Justice Narendra Kumar Johari last year on a petition filed by a Hindu woman, who had contended that she was an adult and had been living with a Muslim man in a live-in relationship and alleged that she was being harassed by the police. Suggesting an alternative remedy to such couples, the Court had also stated: “If there is any real grievance of a live-in couple against their parents or relatives who are allegedly interfering with their live-in status which goes to such an extent that there is a threat of life, they are at liberty to lodge an FIR.” The Court had in fact in this case also discussed the Muslim Personal Law and said that live-in relationship is not recognised in Islam. “In Muslim law no recognition can be given to sex outside marriage,” the Court said.

Referring to the concept of “Zina” (any sexual intercourse except that between husband and wife includes both extra-marital sex and premarital sex) in Islam, the Court also said that “any sexual, lustful, affectionate acts such as kissing, touching, staring, etc” are “Haram” in Islam before marriage because these are considered parts of “Zina” which may lead to actual “Zina” itself. The punishment for such offence according to Quran (chapter 24) is hundred lashes for the unmarried male and female who commit fornication and the punishment prescribed by the “Sunnah” for the married male and female is stoning to death.

Giving an in-depth assessment of the problems caused due to such relationships, the Court had even opined that “awareness has to be created in young minds not just from the point of view of emotional and societal pressures that such relationships may create, but also from the perspective that it could give rise to various legal hassles on issues like division of property, violence and cheating within live-in relationships, rehabilitation in case of desertion by or death of a partner and handling of custody and other issues when it comes to children born from such relationships”.

There is no doubt that being a culturally rich society, the value system on which India thrives cannot run on the same lines as that of the Western societies. Due to the growing economy and the fact that people are now getting more and more aware, India finally had to step ahead and walk with the rest of the world by legalising live-in relationships. The state cabinet gave its nod to amend Section 125 of the Criminal Procedure Code which seeks to protect the pecuniary interests of the other women. However, it would need the centre’s stamp of approval to become a law. The legal definition of live-in relationship is “an arrangement of living under which the couples which are unmarried live together to conduct a long-going relationship similarly as in marriage.” 

While a marriage is governed by a separate set of laws in all countries which safeguards the interests of both parties who enter into the union, live-in relationships, on the other hand, have received due recognition in a very few countries such as France and Philippines. In India, presently there is no law defining the maxims of a live-in relationship. 

The Supreme Court, however, in Khushboo’s case opined that a man and woman living together without marriage cannot be construed as an offence. “When two adult people want to live together what is the offence. Does it amount to an offence? Living together is not an offence. It cannot be an offence,” a three-judge bench of then Chief Justice KG Balakrishnan, Deepak Verma and BS Chauhan had observed. The Court, in fact, went as far as saying that even Lord Krishna and Radha lived together according to mythology.

Live-in relationships do guarantee immense financial freedom for both parties involved and this is one of the reasons why scores of couples are opting for the same today. However, it cannot be denied that the society attaches a taboo to such relationships. A majority of the Indian population still looks at live-in relationship as a dilution of morals, and more importantly, tradition. Marriage, on the other hand, is still venerated by most despite the alarming rise in the number of divorces. Therefore, the primary social difference between live-in relationship and marriage is that while marriages have received the societal stamp of approval, live-in relationships still have a long way to go before society accepts them. 

While proponents of live-in relationships have multiple arguments in their favour, it cannot be denied that such relationships come with their own baggage. Although the apex court has granted legal status to live-in relationships, what happens if one partner decides to walk out? Could the other partner be left homeless? Will the children born into a live-in relationship be recognized by the law? Will it empower women with the right to inheritance, right to maintenance and right to demand alimony? Will the law give the same standing status to live-in relationships as that of marriage? Only time will tell. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

The Allahabad High Court while allowing an appeal observed that an offence under S.C/S.T Act, 1989 would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment in any place within the public view.

A Single Bench of Justice Shamim Ahmed passed this order while hearing a Criminal Appeal filed by Bhaiya Lal Singh.

The Criminal Appeal under Section 14-A(1) of  the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been filed by the appellant, namely, Bhaiya Lal Singh with a prayer to set aside the proceedings of the Special Sessions Trial (State Vs Manager B.L Singh and Others) arising out of Case at Police Station-Kotwali, District-Rae Bareli, under Section 143 and 506 I.P.C as well as under Section 3(1)(Dha) of S.C/S.T Act, 1989, pending in the Court of learned Special Judge, S.C/S.T Act, Rae Bareli.

Further prayer is to set aside the impugned cognizance as well as summoning order dated 07.02.2022 passed by Special Judge, S.C/S.T Act, Rae Bareli in the aforesaid case, whereby cognizance was taken against the appellant.

Counsel for the appellant submitted that the facts of the case is that the appellant is an educationist by profession and runs a school, named as, BSS Public School at Anmol Vihar in Rae Bareli and he also the manager of the said institution, which is affiliated to C.B.S.E Board.

On 30.07.2021, result of Class XIIth by C.B.S.E Board was declared for the academic year 2020-2021, wherein total 140 students appeared from the school of the appellant and out of which, 129 students passed, 23 students had to write compartment examination and 11 students failed. Out of the 11 failed students, one student, namely, Ritesh Sonkar is the son of respondent no 3.

Counsel for the appellant further submitted that aggrieved by the fact that son of the respondent no 3 failed, the respondent no 3 entered into the school premises and started misbehaving and abusing the teachers.

After considering the arguments advanced by counsel for the parties and perusal of record in light of the submissions made at the Bar and after taking an overall view of all the facts and circumstances of the case, the nature of evidence and the contents of the F.I.R, statements of witnesses, charge sheet as well as summoning order dated 07.02.2022, this court is of the view that the Act, 1989 is meant to prevent the commission of offences of atrocities against the members of the Schedule Castes and the Schedule Tribes, to provide for Special Courts and Exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto, the Court observed.

It is further observed that the Act, 1989 was enacted to improve the social economic conditions of the vulnerable sections of the society as they have been subjected to various offences such as indignities, humiliations and harassment. They have been deprived of life and property as well.

The object of the Act, 1989 is thus to punish the violators who inflict indignities, humiliations and harassment and commit the offence as defined under Section 3 of the Act, 1989.

The Act, 1989 thus intended to punish the acts of the upper caste against the vulnerable section of the society for the reason that they belong to a particular community.

In the case, the Court found that the appellant has not abused the respondent No 3 by caste name in any place within the public view, even though, the respondent No 3 has not stated anything about abuses hurled to him by the appellant nor any caste language has been used against the respondent No 3, thus, the allegations as leveled in the F.I.R does not constitute offence under Section 3(1)(Dha) of the Act, 1989.

Thus, in the case the Magistrate without considering the material available before him and even without considering the averments made in the F.I.R in which as per the own case of the respondent No 3 the alleged incident took place inside his house and at that time no public was present nor there was any public view, even though the two independent witnesses have denied about any such incident as alleged by respondent No 3.

The Magistrate while taking cognizance did not consider the statements of the appellant and other named persons which was recorded by the Investigating Officer before filing the chargesheet. Thus, the ingredients of Section 3(1)(Dha) of Act, 1989 is not attracted in the present case and as such, no offence under the aforesaid section is made out against the appellant.

The Court further found that,

In this case, it is alleged in the F.I.R and the statement of the respondent No 3 recorded under Section 161 Cr.P.C that the appellant made an offer of Rs 5,00,000/- to the respondent No 3 to settle the matter.

It is hard to believe that a person whose son has failed in Class XIIth examination conducted by C.B.S.E Board wherein the appellant has no concern at all regarding the declaration of the result, why would the appellant offer Rs 5,00,000/- to the respondent No 3 when the final authority for declaring the result is C.B.S.E Board, this story as made by the respondent No 3 appears to be unbelievable and unacceptable even though no independent witness has supported the case that the appellant has committed the offence of criminal intimidation, thus, the ingredients of Section 506 I.P.C is also not attracted in the present case and no offence under Section 506 I.P.C is made out against the appellant.

In order to attract the ingredients of Section 506 I.P.C, the intention of the accused must be to cause alarm to the victim. Mere expression of words without any intention to cause alarm would not suffice.

Mere vague and bald allegations that the accused threatened the victim with dire consequences is not sufficient to attract the provisions under Section 506 I.P.C. The threat should be a real one and not just a mere word when the person uttering does not exactly mean what he says and also when the person against whom the threat is launched, does not feel threatened actually.

Thus, after perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of the case, the nature of evidence and as per the contents of the F.I.R as well as the statements of respondent No 3 and other witnesses and considering the various case laws referred above, the incident does not appear to happen, thus, Section 3(1)(Dha) of Act, 1989 is not attracted against the appellant as the incident did not occur in any “place within a public view”, even though Sections 143 and 506 of I.P.C are also not attracted against the appellant, as such, considering the law laid down by the Apex Court in the case of Hitesh Verma (Supra), Ramesh Chandra Vaishya (Supra), Fakhruddin Ahmad (Supra) as well as law laid down by coordinate Bench of the Court in the case of Ankit (Supra) the Court is of the view that the court below has failed to appreciate the material available on record.

The cognizane as well as summoning order dated 07.02.2022 passed by the court below is liable to be reversed and set aside as well as the entire criminal proceedings of the aforesaid case is liable to be quashed.

“Accordingly in view of the above discussions and observations made, the appeal is allowed, the impugned summoning as well as cognizance order dated 07.02.2022 passed by Special Judge, S.C/S.T Act, Raebareli, whereby the appellant has been summoned in Special Sessions Trial (State Vs Manager B.L Singh and Others) arising out of Case under Section 143 and 506 I.P.C as well as under Section 3(1)(Dha) of S.C/S.T Act, 1989, Police Station-Kotwali, District-Raebareli, is hereby set aside and reversed, the criminal proceedings of the aforesaid case is also quashed so far as it relates to the appellant”, the Court ordered.

Over the detention of a convict after completing sentence, the Allahabad High Court has directed the Director General, Department of Prisons, Uttar Pradesh, Lucknow to file personal affidavit stating therein that till now how many convicts/prisoners are still detained in jail after completing their sentence in the entire State of Uttar Pradesh.

A Single Bench of Justice Shamim Ahmed passed this order while hearing a Criminal Appeal filed by Arvind @ Naga.

Counsel for the appellant submitted that the appellant, namely-Arvind @ Naga has been convicted by the impugned judgment and order dated 28.11.2022 passed by the Special Session Trial (State vs Arvind Naga) arising out of Case under Section 354(kha), 323 and 506 I.P.C, Police Station- Shahabad, District Hardoi by means of which the appellant has been convicted under Section 354 (kha) I.P.C for a period of five years rigorous imprisonment and fine to the tune of Rs 5000/- and in default of payment of fine the appellant will serve for a period of five months additional imprisonment and the appellant has also been convicted under Section 323 I.P.C for a period of six months rigorous imprisonment and fine to the tune of Rs 500/- and in default of payment of fine the appellant will serve 15 days additional imprisonment, and the appellant has also been convicted under Section 506 I.P.C for a period of three years rigorous imprisonment and fine to the tune of Rs 3000/- and in default of payment of fine the appellant will serve three months additional imprisonment.

No separate conviction under Section 7/8 of POCSO Act has been done, and the sentence which has been passed by the appellant in jail shall also be adjusted in the period of sentence.

Counsel for the appellant further submitted that the appellant is in detention since 20.12.2017 and has already undergone the period of sentence awarded to him.

She further submitted that now after the conviction period is over, the appellant is still in jail and is held in detention for more than eleven months, which is a clear violation of Article 21 of the Constitution of India.

Thus, she also submitted that this period of detention of eleven months, which has been forced upon the appellant may be compensated in terms of money, which shall be paid by the State Exchequer.

Ashok Kumar Singh, A.G.A-I for the State submitted that he may be given sometime to seek instructions in this matter as the matter appears to be serious as to how the appellant has been detained in jail for eleven months after completing his sentence awarded by the court below.

In view thereof, the Court directed A.G.A-I to seek instructions from the Jail Superintendent, District-Hardoi.

The Court further directed that Jail Superintendent must file his personal affidavit clearly stating the reasons as to why the appellant has been detained illegally by the jail authorities after completing his conviction/sentence period.

“The Director General, Department of Prisons and Jail Superintendent, District-Hardoi, shall remain present in person before the Court to assist the Court on the next date fixed”, the order reads.

The Court has fixed the next hearing of the petition on December 08, 2023.

The Lucknow Bench of the Allahabad High Court while allowing an appeal said that it is settled principle of law that only on account of the fact that prosecution case is based on testimony of police witness, it cannot be thrown out, if the evidence of such witness is wholly reliable.

A Single Bench of Justice Shamim Ahmed passed this order while hearing a Criminal Appeal filed by Surju.

The appeal has been preferred against the order dated 29.05.2001 passed by the Additional Sessions Judge, S.C/ S.T (Prevention of Atrocities) Act, Sultanpur in Special Criminal Case, Police Station Gosainganj, District Sultanpur, convicting and sentencing the accused under Section 20 of N.D.P.S Act for two years rigorous imprisonment alongwith fine of Rs 5,000/-(in default of payment of fine, the appellant was directed to undergo further six months rigorous imprisonment).

The prosecution story is that S.I Ajit Kumar Singh, the then Officer-in-charge, Police Station Gosainganj was in search of criminals on 11.05.1998 at try-way Barui, Bisui and Imiliya alongwith constables Ranjit Singh, Bhanu Pratap Singh and driver Fateh Bahadur Singh when he noticed a person coming from towards Barui at 12:50 Noon took about turn with steps in speed on seeing police party. He was detained by going 20-25 paces and revealed his name Surju Mallah and gave out his parentage and address.

On being asked, the accused Surju Mallah told Ajit Kmar Singh for having about 2 Kg Ganja in the bag due to which he attempted to run away.

The accused was told about his right to be searched in presence of a Gazetted Officer but he agreed for being searched by Ajit Kumar Singh when he was already detained and admitted to have 2 Kg Ganja in his possession.

The recovered Ganja, wrapped in newspaper, was kept in a plastic lining bag and sealed on the spot. The accused failed to show any license or authority to possess it which amounted to offence under Section 20 N.D.P.S Act.

The accused Surju was taken into custody and brought to the Police Station Gosainganj with recovered articles. Memo was prepared on the spot which was signed over by the witnesses and the accused. No public witnesses could be taken because of the sudden recovery of Ganja from possession of the accused.

Thereafter, a case under Section 8/20 of N.D.P.S Act was registered at Police Station Gosainganj, District Sultanpur and investigation was handed over to the Sub Inspector Rampal Tomar, who in turn got the sample chemically examined and received a report.

The accused-appellant was charged for offence under Section 20 of N.D.P.S Act; to which he pleaded not guilty and claimed for trial.

Appellant was examined under Section 313 of Code of Criminal Procedure, 1973, wherein he stated that he had been falsely implicated as he is a rickshaw puller and he refused to carry table on his rickshaw without fare on being asked by constable.

The trial Court, after going through the evidence available on record as well as after hearing the counsel for both the parties, convicted and sentenced the appellant under Section under Section 20 of N.D.P.S Act for two years rigorous imprisonment along with fine of Rs 5,000/- (in default of payment of fine, the appellant was directed to undergo further six months rigorous imprisonment).

Aggrieved by the aforesaid judgment and order, the appellant has filed the appeal.

Counsel for the appellant argued that Section 50 of the N.D.P.S Act is a mandatory provision. The arresting officer has not complied with that provision. As such, the recovery is illegal which vitiates the trial.

Counsel further submitted that the alleged place of recovery is a public place but no effort to invite the public witness at the time of recovery was made by the police party. The trial Court without proper appreciation of the evidence available on record has illegally convicted the appellant vide impugned judgment and order which is liable to be set aside as the prosecution has miserably failed to prove its case beyond reasonable doubt.

A.G.A vehemently opposed the submission of the counsel for the appellant and submitted that there is no illegality in the impugned judgment and order as it is settled provision of law that only on the solitary testimony of witness, conviction can be maintained and statement of police witness cannot be rejected on the ground that he is a police witness.

A.G.A further submitted that impugned order, passed by the trial Court, is well reasoned, well discussed and appeal is liable to be dismissed.

The Court observed that,

After considering the arguments advanced by the counsel for the parties and after perusal of record, this Court finds that the prosecution case is based on oral testimony of police personnel. It is a settled principle of law that only on account of the fact that the prosecution case is based on testimony of a police witness, it cannot be thrown out, if the evidence of such witness is wholly reliable.

Severe punishment has been provided in the N.D.P.S Act to check the misuse of the Act by the police personnel or officers and certain safeguards particularly Section 50 of N.D.P.S Act has been incorporated in this Act that search of the suspected person must be done before the Magistrate or Gazetted Officer. Similarly Section 55 and 57 of N.D.P.S Act provides that seized contraband articles be kept by Station House Officer in safe custody and reports of arrest and seizure be sent immediately to immediate Superior Officer within 48 hours.

“In the light of the above discussion, it is clear that the prosecution has failed to prove the mandatory compliance of Section 50 N.D.P.S Act. In absence of compliance of mandatory provision of Section 50 N.D.P.S Act, the prosecution case, based on testimony of police personnel i.e Sub Inspector Ajit Kumar Singh, Constable Bhanu Pratap Singh and Sub Inspector Rampal Singh Tomar, whose statements are not wholly reliable, cannot be held as proved beyond reasonable doubt in view of the other illegalities and material irregularity committed by the witnesses as discussed above.

Thus the Court is of the view that prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. The trial Court has not properly discussed the evidence produced by the prosecution and has passed the impugned order against the settled principle of law including provisions of N.D.P.S Act. The Court, therefore, was unable to uphold the conviction and sentence of the appellant. The appellant is entitled to be acquitted. The impugned order is liable to be set aside”, the Court further observed while allowing the appeal.

“In view of the above, impugned judgment and order dated 29.05.2001 passed by learned Additional Sessions Judge, S.C/S.T (Prevention of Atrocities) Act, Sultanpur in Special Criminal Case, Police Station Gosainganj, District Sultanpur, is set aside and reversed and accused/appellant, namely, Surju is acquitted of the charges levelled against him. His personal bond and surety bonds are canceled and sureties are discharged”, the Court ordered.

The Allahabad High Court has granted bail to Jose Papachen and Sheeja booked under Section 3 and 5 (1) of Uttar Pradesh Prohibition of Conversion of Religion Act, 2021 and Section 3 (1) (Dha) SC/ST Act, Police Station Jalalpur, District Ambedkar Nagar.

A Single Bench of Justice Shamim Ahmed passed this order while hearing a Criminal Appeal filed by Jose Papachen and Another.

The criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 03.03.2023 passed by court of the Special Judge S.C/S.T Act, Ambedkar Nagar, arising out of Case under Section 3 and 5 (1) of Uttar Pradesh Prohibition of Conversion of Religion Act, 2021 and Section 3 (1) (Dha) SC/ST Act, Police Station Jalalpur, District Ambedkar Nagar, whereby the bail application of the appellant has been rejected.

Counsel for the appellants submitted that on 24.01.2023 an F.I.R was lodged under Section 3 and 5 (1) of Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 and Section 3(1) (dha) of Schedule Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (Amendment 2015) against the appellants at Police Station Jalalpur bearing F.I.R by the complainant, who is Zila Manti of Bhartiya Janta Party Ambedkar Nagar, alleging therein that the appellants are engaged for conversion of religion by various allurement amongst the communities of Scheduled Caste and Scheduled Tribe since three months.

Consequently, the members of Scheduled Caste and Scheduled Tribe are annoyed with the activities of conversion of Religion by the appellants.

Counsel for the appellants further submitted that the appellants are innocent and have been falsely implicated in the case due to political rivalry. The appellants are not involved in any such type of activities, as alleged in the F.I.R and the F.I.R has been lodged only to defame the image of the appellants and their entire family in the society.

Counsel for the applicant has placed emphasis on Section 3 of the Act, 2021 which provides prohibition of conversion from one religion to another religion by misrepresentation, force, fraud, undue influence, coercion and allurement, clearly specifying that conversion on the aforesaid grounds from one religion to another religion is prohibited. False allegations regarding allurement and undue influence for the purposes of mass conversion have been made. It has also been alleged that free treatment was being provided to patients in the hospital which can not be said to be a temptation for purposes of mass conversion.

Counsel for the appellant also submitted that the accused/appellant is languishing in jail since 24.01.2023, who has no previous criminal history, and in case the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the case.

Per contra, A.G.A has vehemently opposed the prayer by submitting that there is active participation of accused/appellant in the crime. He states that the case concerns mass religious conversions within the State of Uttar Pradesh from Hindu religion to Christianity through illicit means. The appellants are allegedly using psychological pressure for forceful conversions, as part of their plan to set up an Christianity state.

In the considered opinion of the Court, after a detailed discussion and evaluation of the material on record it is to be taken into consideration by this Court that primary allegation against the appellants is of having contravened the provisions of Section 3 of the Act of 2021, which prohibits conversion or attempt of conversion either directly or otherwise from one religion to another by use of practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means. But there does not appear to be any material as to show that appellants had used any undue influence or allurement to the said villagers for mass conversion. Rather appellants were involved in providing good teachings to children and promoting the spirit of brotherhood amongst the villagers and there does not appear to be existence of any material which would suggest conversion by use of force.

The Court noted that the first information was not lodged by the competent person as required under Section 4 of the Act of 2021. The various categories of person enumerated in Section 4, who are competent to lodge the first information report are any aggrieved person. The words “any aggrieved person” at the very start of the said section can be interpreted to mean any person, especially since there is no provision under the I.P.C or Cr.P.C, which bars or prohibits any person from lodging a first information report regarding cognizable offence.

However, the words ” any aggrieved person” is qualified by the subsequent categories and the words his, her parents, brother, sisters or blood relations by marriage and adoption included. Therefore, the words “any aggrieved person”, if taken by themselves are extremely wide. The scope of the said term is completely whittled down by subsequent categories and therefore, it has to be said that any aggrieved person would be a person but is personally aggrieved by his or her fraudulent conversion be it an individual or in a mass conversion ceremony. Any interpretation to the contrary would render the remainder of Section 4 after the words “any aggrieved person ” wholly redundant and also render the Section itself completely meaningless. Under the said circumstances the first information report dated 24-01-2023 was not lodged by a competent person.

“After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that there appears force in the argument of the counsel for the appellants that the appellants are not involved in activity of attempt to convert, either directly or otherwise, any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fradulent means and they have been falsely implicated in the case and the complainant has no locus to lodge the F.I.R as provided under Section 4 of the Act, 2021 and there also appears force in the argument of the counsel for the appellants that providing good teachings, distributing Holy Bible books, encouraging children to get education, organizing assembly of villagers and performing “Bhandara” and instructing the villagers not to enter into altercation and also not to take liquor do not amount to allurement and further considering that the complainant is Zila Mantri of a ruling party and is neither the aggrieved person, his/her parents, brother, sister or any other person, who is related to him/her by blood, marriage or adoption, as provided under Section 4 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, thus the complainant is not competent to lodge the present F.I.R and further considering the fact that appellant is in jail since 24.01.2023 and has now by done a substantial period of detention and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Apex Court in the case of Dataram Singh Vs State of UP and another, reported in (2018) 3 SCC 22, the Court is of the view that the court below has failed to appreciate the material available on record, the impugned order passed by the trial court is liable to be set aside”, the Court observed while allowing the appeal.

“Consequently, the order dated 03.03.2023 passed by court of the Special Judge S.C/S.T Act, Ambedkar Nagar, in Bail Application arising out of Case under Section 3 and 5 (1) of Uttar Pradesh Prohibition of Conversion of Religion Act, 2021 and Section 3 (1) (Dha) SC/ST Act, Police Station Jalalpur, District Ambedkar Nagar is hereby reversed and set aside.

Let the appellants, Jose Papachen and Sheeja, be enlarged on bail in Case under Section 3 and 5 (1) of Uttar Pradesh Prohibition of Conversion of Religion Act, 2021 and Section 3 (1) (Dha) SC/ST Act, Police Station Jalalpur, District Ambedkar Nagar”, the Court ordered.

The Lucknow Bench of the Allahabad High Court while allowing the appeal set aside the order passed by the Additional Sessions Judge, Sitapur, whereby the appellants have been summoned under Section 319 Cr.P.C in Special Trial (State Vs Shivpal Singh & Others), under Sections 452, 323, 427, 504, 506 I.P.C and Section 3(1)(Gha) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Kotwali, District Sitapur.

A Single Bench of Justice Shamim Ahmed passed this order while hearing a Criminal Appeal filed by Vishwapal Singh And 2 Ors.

Counsel for the appellants submitted that initially an impugned F.I.R was lodged by the opposite party no 2, complainant on 29.02.2016 at Case under Sections 323, 147, 452, 504, 506, 427 I.P.C and Section 3(1)(xi) of S.C/S.T Act against the five persons including the appellants. Thereafter, the matter was thoroughly investigated and nothing was found against the appellants and they were expunged by the Investigating Officer.

Counsel for the appellants further submitted that opposite party no 2 moved an application dated 16.09.2019 under Section 319 Cr.P.C before the court below for summoning the appellants to face trial.

He further submitted that against the application under Section 319 Cr.P.C, objection was filed by the appellants on 04.10.2019.

Counsel for the appellants also submitted that the appellants have not committed any offence as alleged by the complainant and from a bare perusal of the evidence collected by the Investigating Officer, it is crystal clear that the appellants have not participated in the alleged offence.

Counsel for the appellants said that the application dated 16.09.2019 moved by the opposite party no 2, complainant under Section 319 Cr.P.C is not supported with any affidavit nor any cogent reason has been given as to why the appellants be summoned after a long time of lodging of the first information report, as such, it shows the malafide arbitrary intention of the complainant just to harass the appellants.

Counsel for the appellants further said that the order dated 04.03.2020 passed by the Additional Sessions Judge, Sitapur, by which the appellants were summoned, is also non speaking as the Magistrate has not considered any material available before him while summoning the appellants to face the trial. As such, the impugned order dated 04.03.2020 on the face of record appears to be unjustified and is passed without application of judicial mind, therefore, the same is liable to be set aside by the Court and the appeal be allowed.

A.G.A for the State as well as counsel for the opposite party no 2 have opposed the argument raised by the counsel for the appellants and have jointly submitted that the order dated 04.03.2020, summoning the appellants under Section 319 Cr.P.C, was rightly passed, as such, the same is not liable to be quashed and the appeal is liable to be rejected.

The Court observed that,

After hearing counsel for the parties and perusal of record, it reveals that the charge-sheet has not been filed against the appellants. The appellants have been summoned merely on the application given by the opposite party no 2, complainant under Section 319 CrPC. It also reveals that a Civil Suit (Shivpal Singh & Others Vs Ram Swaroop & Others) is pending between the parties, as such, the prosecution has tried to give colour of criminal nature to a civil dispute.

Further, the Court finds that the application dated 16.09.2019 filed by the opposite party no 2, complainant under Section 319 Cr.P.C before the court below is not supported with any affidavit nor any cogent reason has been given so that the appellants be summoned by the court below. Even though when the names of the appellants were dropped/expunged during the investigation, the opposite party no 2, complainant has not filed any protest petition against the same, however, after a long gap, the application under Section 319 Cr.P.C was filed that too without assigning any cogent reason.

It is further observed by the Court that in application dated 16.09.2019 filed by the opposite party no 2, complainant under Section 319 Cr.P.C, the same allegation has been leveled which was leveled in the first information report and further that the trial court, while passing the order dated 04.03.2020 did not consider this aspect that the power under Section 319 Cr.P.C is a discretionary and extraordinary power, which should be sparingly used and only in those cases where the circumstances of the case so warrant, has passed the order in cursory manner and without application of judicial mind.

“In the case, it is apparent that the order under Section 319 CrPC is based on the statement of the complainant without considering the relevant facts and without recording any satisfaction that there is some cogent evidence which may lead to their conviction even otherwise the appellants were already expunged by the Investigating Officer and final report was submitted against them.

In the matter of Hardeep Singh & Bijendra Singh (supra) and other judgments, the Apex Court is clearly of the view that evidence should be more prima facie, if unrebutted, would lead to conviction, here no such satisfaction has been recorded by the Additional Sessions Judge, Sitapur while passing the summoning order dated 04.03.2020.

Thus, in view of the law laid down by the Apex Court and the facts and circumstances, as narrated above and from the perusal of the record, the summoning order dated 04.03.2020 passed by the Additional Sessions Judge, Sitapur, summoning the appellants under Section 319 Cr.P.C, is against the spirit and directions issued by the Apex Court and is liable to be set aside”, the Court further observed while allowing the appeal.

“Accordingly, the order dated 04.03.2020 passed by the Additional Sessions Judge, Sitapur, whereby the appellants have been summoned under Section 319 Cr.P.C in Special Trial (State Vs Shivpal Singh & Others), under Sections 452, 323, 427, 504, 506 I.P.C and Section 3(1)(Gha) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Kotwali, District Sitapur is hereby set aside and reversed”, the Court ordered.

The Lucknow Bench of the Allahabad High Court while disposing the petition, seeking custody of two minor children, said that whatever the differences arose between the spouses, the children cannot be denied company of both.

A Single Bench of Justice Shamim Ahmed passed this order while hearing a habeas corpus petition filed by Mirah Pandey Through Mother Ira Sharma Another.

The petitioner-Ira Sharma has filed this Habeas Corpus petition with the following reliefs:

“(i) to issue a writ, order or direction in the nature of Habeas Corpus commanding the respondents to produce the corpus of detenues, namely Rayan Pandey and Mirah Pandey at the earliest before the Court and to handover the custody of the said minor children to petitioner being their mother.

(ii) to issue directions to respondent no 4 through respondent No 1 and 2 for making necessary provisions for interaction and conversations between the petitioner/ mother and the minor children immediately and during pendency of the present writ petition by mode of voice and video calls.

(iii) to issue any other order or direction which the Court may deem fit and proper under the facts and circumstances of the case in favour of the petitioner in the interest of justice.

(iv) Allow the writ petition with costs.”

Counsel for the petitioner submitted that the petitioner-Ira Sharma got married to respondent No 4-Dheerendra Pandey @ Dheerendra Vikram Pandey at Dharamshala, Himachal Pradesh on 15.02.2008 as per Hindu Rites and Ceremonies.

Thereafter, the couple relocated to the U.S.A for their bright future. After shifting to U.S.A, due to their wedlock two children, one male child namely Master Rayan Pandey born on 02.10.2013 and one female child namely Mirah Pandey born on 03.04.2018 and were having American Passport and it was further submitted that after the second child was born the relationship between the husband and wife started to turn more absurd and regular dispute arose.

Thereafter, the petitioner and respondent No 4 entered into an amicable settlement through a document titled as “Matrimonial Settlement Agreement” (M.S.A) on 02.06.2022. After entering into a settlement, the petitioner and respondent No.4 approached family court and got divorce by mutual consent by the court of competent jurisdiction at U.S.A i.e Superior Court of New Jersey Chancery Division. True copy of the Matrimonial Settlement Agreement and Decree of Divorce as granted by the Courts of the USA have been filed to the habeas corpus petition.

Counsel for the petitioner further submitted that the respondent No 4 is running an IT Company in U.S.A with his broth and is earning in millions of U.S Dollars per annum but the petitioner did not take a single penny as Alimony or any amount of maintenance from the respondent No 4 at the time of divorce.

Counsel for the petitioner has drawn attention of the Court towards Article III of the M.S.A and submits that the days were fixed for the physical custody of the children but the respondent No 4 kept the petitioner in dark and on certain pretext took the children from U.S.A to India at his native place, without obtaining consent of petitioner for permanent relocation of children while the children, being born and settled in USA and having being attached to their mother and they never wanted to come to India with the respondent No 4.

Counsel for the petitioner further submitted that the son and daughter of petitioner, namely Rayan Pandey and Mirah Pandey, who are aged about 9 and 4 years respectively at present are in illegal detention of the respondent No 4-father against the judgment of the Court of U.S.A for which he is not legally entitled as he is flouting the orders of the Court of USA.

Counsel for the petitioner further prays for handing over the custody of said minor children to petitioner who is the biological mother of minor children, so that the children can be taken to the United States of America where they were born and the habeas corpus petition may be allowed by the Court.

The Court noted that,

In the case petitioner-Ira Sharma herself consented to get both the children be admitted to some reputed school in India by e-mail and she will keep on visiting India and whenever she will be in India she will visit her children at Lucknow, the place of stay of respondent No 4 and it was under these circumstances that respondent No 4 had got both the children admitted in GD Goenka Public School, Sector B Sushant Golf City, Shaheed Path, Lucknow affiliated to CBSE Board, New Delhi, where they are studying in Class IV and I.

It is not in dispute that the admission of both the children was done at the aforesaid school with the consent of the mother Ira Sharma for this reason she herself has provided her Aadhar Card and Passport copy as per e-mail dated 22.08.2022 sent to the respondent No 4, thus the case set up by the petitioner Ira Sharma that the minor children are under illegal detention of respondent No 4 have no force and there appears force in the argument of the counsel for the respondent No 4 that the habeas corpus writ petition is not maintainable as the children are not under illegal custody of the father and are studying in India with the consent of the mother Ira Sharma and for custody she may approach the correct forum in accordance with law.

The Court said that it is well settled law by a catena of judgments that while deciding the matter of custody of children, primary and paramount consideration is welfare of the children so demands then technical objections cannot come in the way.

However, while deciding the welfare of the children it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the children.

A child, especially a child of tender years, requires the love, affection, company and protection of both parents. This is not only the requirement of the child, but his/her basic human right. Just because the parents are at odds with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents.

“I am clearly of the view that it is in the best interest of the children to have parental care of both the parents, if not joint then at least separate. I have no doubt that the children need both parents and the children would be equally happy, if not happier, in the company of the mother as well, the children would perhaps be happier if they could have both their parents. Unfortunately, the parents are unable to resolve their differences and stay together. Be that as it may, the children have a right to access both parents, and get the love and affection of both parents. Whatever the differences arose between the spouses, the children cannot be denied company of both.

From perusal of the e-mail dated 22-08-2022 in which petitioner-Ira Sharma herself had consented for admission of the children in India, it is clear that the mother was well aware of the custody of detenue/children, who are with their father in India, as such it cannot be said that it was an illegal custody / detention”, the Court observed.

Master Rayan Pandey and Mirah Pandey are studying in GD Goenka Public School, Sector-B, Sushant Golf City, Shaheed Path, Lucknow and are residing with their father in Lucknow and their studies cannot be disturbed for the present academic session, therefore, in view of the discussion and observation made above, the court issues following directions :

(i) The custody of both the children; Master Rayan Pandey(son) and Mirah Pandey (daughter) shall remain with father respondent No 4-Dhirendra Pandey @ Dheerendra Vikram Pandey.

(ii) Since the mother-Ira Sharma lives in U.S.A, she is permitted to meet the children during her stay in India in the evening between 6:00 PM to 8:00 PM at the current residence of respondent no 4 with the condition of giving one week prior information to the respondent No 4- Dhirendra Pandey @ Dheerendra Vikram Pandey (father) regarding her arrival at Lucknow. It is further provided that if she is abroad, she is allowed to have conversation with her children Mirah Pandey-daughter and Rayan Pandey-son by mobile phone, whats app call or video call during 8.00 p.m to 8.30 p.m as per Indian Standard Time.

(iii) If the mother of children wants to give any gifts on account of love and affection or do anything for the well being of children then father/ respondent no 4 or any of his family members will not make any objection. However, mothers shall keep in mind that such things will be given, which are for use and safe for the children’s health.

(iv) The petitioner Ira Sharma is at liberty to approach the appropriate forum for claiming the custody of the children under the Hindu Minority and Guards Act 1956 or under the Guardians and Wards Act, 1890 as the case may be in accordance with law.

With the above observations/directions, the Court disposed of the habeas corpus petition.