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Procedures to be followed in cases where protest petition is to be treated as a separate complaint: SC

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Case title:-Mukhtar Zaidi V. The State of Uttar Pradesh

Case no:- criminal appeal no. of 2024 (arising out of SLP (CRL.) NO.9122 OF 2021)

Dated on:- 18th April 2024

Quorum:- Justice Vikram Nath

Facts of the case

Respondent no.2 lodged a First Information Report before the CJM, Aligarh in case No. 129/2020 under sections 147, 342,323,307, 506 of the Indian Penal Code, 1860. The same was investigated and after investigation the police submitted report under section 173(2) Cr.p.c, according to which the investigating officer found that no evidence could be collected which could substantiate the allegations made in the FIR. The said report was submitted to the Court concerned whereupon notices were issued to the informant. The informant filed a Protest Petition along with affidavits to show that the investigation carried out by the Investigating Officer was not a fair investigation. The CJM, by order dated 08.03.2021 rejected the police report under Section 173(2) Cr.P.C. and further proceeded to take cognizance for offences under Sections 147, 342, 323, 307, 506 of the IPC and under Section 190 (1) (b) of the Cr.P.C. and also directed that the matter would continue as a State case. Accordingly, it summoned the accused, fixed 30th April, 2021. This order of cognizance and summoning the present appellant was assailed before the High Court by way of a petition under Section 482 Cr.P.C. registered as Application u/s.482 No.15273 of 2021. The said application has sine been dismissed by the High Court giving rise to the present appeal.

Contentions of the appellant:-

CJM had relied upon not only the Protest Petition but also on the affidavits of witnesses which were filed along with the Protest Petition to support the contents of the complaint. Once the CJM was relying upon additional material in the form of evidence, along with the Protest Petition then the only option for the CJM was to treat it as a complaint under Section 200 Cr.P.C. and proceed accordingly. The said case could not have been continued as a State case and should have been treated as a private complaint. Once additional evidence was being relied upon which had been filed along with the Protest Petition then the only option open was to treat it as a private complaint and after following the due procedure in Chapter XV of the Cr.P.C.

Contentions of the respondant:-

CJM did not take into consideration any additional evidence filed in the form of affidavits along with the Protest Petition. He only relied upon the material collected during the investigation as contained in the case diary. Based upon the same, CJM rejected the police report and took cognizance which was within his domain and such cognizance would fall within Section 190(1)(b) Cr.P.C.

Legal Provisions:-

Section 190(1)(a) Cr.P.C- issue of summons

Section 200 Cr.P.C- Examination of the complainant

Section 482 Cr.P.C- inherent power of High Court

Section 173(2) Cr.P.C- police report

Issues:-

How the Magistrate would proceed under Section 190 Cr.P.C., once the Investigating Officer had submitted a closure report under Section 173(2) Cr.P.C?

Courts judgement and analysis:-

Where initially the complainant has not filed any complaint before the Magistrate under Section 200 CrPC, but, has approached the police only and where the police after investigation have filed the ‘B’ report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) CrPC on a complaint. 

 If it were to be so, the Protest Petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) CrPC, and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) CrPC.

 If it is to be simply styled as a Protest Petition, without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 CrPC.

However, in the present case as the Magistrate had already recorded his satisfaction that it was a case worth taking cognizance and fit for summoning the accused, the Magistrate ought to have followed the provisions and the procedure prescribed under Chapter XV of the Cr.P.C. 

 

Accordingly, the appeal was allowed to set aside the orders passed by the High Court as also the CJM, Aligarh. However, it is open for the Magistrate to treat the Protest Petition as a complaint and proceed in accordance to law as laid down under Chapter XV of the Cr.P.C

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Judgement reviewed by- Parvathy P.V.

 

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The Allahabad High Court criticized the National Minorities Commission for overstepping its authority and summoning officers without valid grounds.

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Case Title: Divine Faith Fellowship Church and Another vs. State of U.P. And 5 Others 2023

Decided on: 26th September, 2023

Writ no. – C No. – 30476 of 2023

CORAM : Hon’ble Mahesh Chandra Tripathi,J. Hon’ble Prashant Kumar,J.

INTRODUCTION

The case of “Divine Faith Fellowship Church and Another vs. State of U.P. And 5 Others” in 2023 involves a dispute where a church-owned property in Uttar Pradesh, India, had been illegally occupied.

The petitioners, a Christian organization, sought legal action through the U.P. Commission for Minorities and later the National Commission for Minorities. The case primarily focuses on whether these commissions had the authority to adjudicate and order actions related to the property dispute and whether their actions exceeded their statutory jurisdiction.

Facts of the case:

The petitioners, an NGO associated with a church, claimed ownership of property including Shop no. 13/1.They sought to evict an unauthorized occupant from Shop no. 13/1. The U.P. Commission for Minorities treated the case as a civil matter and ordered an FIR against the occupant.

The National Commission for Minorities got involved, issuing orders to assist the petitioners. The dispute centered on whether these commissions had the authority to handle the property dispute, leading to a legal challenge. The Allahabad High Court ultimately ruled that the commissions had exceeded their jurisdiction in this case.

Courts Analysis and Decision.

The court highlighted the limited statutory functions of these commissions, primarily aimed at safeguarding minority interests. Emphasized that these commissions do not possess the authority to adjudicate property disputes.

Criticized the practice of summoning government officers and pressuring them to pass orders beyond their jurisdiction. Reiterated that public officers should not be called to court unnecessarily. Deplored the commissions’ tendency to function as if they were courts, calling it an abuse of their position. Noted that such actions could result in the removal of commission members. Ultimately, the court dismissed the petition and affirmed that the commissions had acted beyond their authorized functions in the property dispute, underscoring the importance of respecting the separation of powers between the judiciary and executive branches.

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Written by- Kusuma R

 

 

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Police’s Inability To Timely Serve Summons, Execute Coercive Processes Violates Right To Speedy Trial Of Accused: Allahabad High Court

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CASE TITLE:  Bhanwar Singh @ Karamvir vs. State of U.P. 2023 LiveLaw (AB) 288

DECIDED ON: 24.08.2023

CORAM: Hon’ble Ajay Bhanot,J.

INTRODUCTION

In a significant observation, the Allahabad High Court has said that the failure of the state police to serve the summons and execute coercive processes issued by the court is affecting the fundamental rights of the accused and their right to obtain bail in a timely manner.

FACTS

It is noteworthy that sections such as 61, 62, 70, 72, 74, 78, etc., of the Criminal Procedure Code (CrPC) impose an obligation on law enforcement authorities to promptly deliver summons and carry out other enforcement actions like bailable and non-bailable warrants issued by courts.

Justice Ajay Bhanot’s bench highlighted that an “independent and effective” internal accountability mechanism within the police force is urgently required to ensure the timely delivery of summons and execution of enforcement measures.

The bench additionally underscored that the substantial problem of absent witnesses and the inadequacy of the police’s response to enforce summonses and enforcement measures expose a structural weakness that jeopardizes the integrity of the justice system.

“The incapability of the police to serve summonses and implement enforcement measures within the stipulated timeframe, as mandated by the learned trial courts, is a systemic issue and a significant obstruction in the criminal justice process. This deficiency in police performance leads to witness absence in court and results in prolonged trial delays, eroding public trust in the justice dispensation system,” the bench commented, emphasizing that police authorities cannot overlook internal deficiencies and senior officials cannot evade responsibility.

In light of this, the Court suggested that appointing focal officers at various levels to ensure witness appearance could be an effective solution to address the crisis. However, the Court pointed out that this approach would be effective only if the designated officers were in leadership positions within the police hierarchy at respective levels.

Furthermore, the Court recommended that such focal officers should be authorized to coordinate with police forces at different tiers, whether at the district, zone, state, or inter-state level.

Notably, the Court also proposed that the statutory duty imposed on police authorities to compel witness attendance as per court orders should be integrated into the responsibilities of the designated focal officers, who would be held accountable accordingly.

The performance of these officials should be evaluated based on these criteria and corrections should be made by the department when deviations occur, the Court remarked.

These significant observations were made by the Court while granting bail to an accused individual, as the Court noted the recurring failure of the police to serve summonses and execute enforcement measures, which, in turn, impacts the rights of accused individuals seeking bail.

The Court also examined status reports submitted by trial courts (in the context of the bail matter), revealing that trial delays were attributed to the police’s failure to deliver summonses and execute enforcement measures in a timely manner to ensure witness attendance on scheduled trial dates.

Highlighting the interconnectedness of the constitutional liberty under Article 21 and the statutory right to bail for undertrial prisoners, the Court emphasized that the prolonged detention of accused individuals due to trial delays violates their fundamental liberties, especially when the delay is not caused by the accused.

CASE ANALYSIS AND DECISION

The Court noted that while legal provisions exist to address instances where police officers fail to serve summonses or carry out enforcement actions, pursuing such actions through statutory means results in unnecessary legal disputes and consumes valuable judicial resources.

In this context, the Court emphasized that the courts’ authority to initiate criminal or contempt proceedings against errant police officials for their failures needs to be complemented by “effective internal protocols that assign responsibility and establish accountability within the police force.”

The Court further pointed out that the state must introduce and consider the formulation of regulations that establish a robust accountability framework within the police department for this purpose. Highlighting that the state has previously been advised to take necessary action in this matter, the Court urged the authorities to meticulously examine these aspects and expedite the implementation of these measures.

“The failure of the police authorities and the negligence of the State Government in acknowledging their legal obligations and constitutional duties will result in a miscarriage of justice. Lengthy incarcerations of prisoners occur because the police authorities do not ensure the timely appearance of witnesses, thereby disregarding orders issued by trial courts. This failure of justice is particularly severe for many detainees who come from marginalized segments of society and are hindered by poverty and lack of legal awareness,” the Court observed while directing the distribution of its order to the Director General of Police (DGP), Government of Uttar Pradesh, and the Director of the Judicial Training and Research Institute (JTRI) in Lucknow.

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Relationship Between Logic & Experience Important While Invoking Precedents’: Allahabad High Court Rejects Anticipatory Bail

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CASE TITLE:  Kusum Devi And Another v. State of U.P. and Another [Criminal Misc Anticipatory Bail Application U/S 438 CR.P.C. No. – 1907 of 2023]

DECIDED ON: 24.08.2023

CORAM: Hon’ble Krishan Pahal,J.

INTRODUCTION

On Thursday, the Allahabad High Court emphasized the significance of comprehending the interplay between reasoning and practical knowledge when utilizing legal precedents to determine cases with resemblant facts and conditions. The court underscored that a mechanical application of these principles is inappropriate. In line with this perspective, Justice Krishan Pahal dismissed the plea for anticipatory bail made by the mother of a deceased individual who had passed away by suicide in her residence.

FACTS

Reportedly, the spouse of the person providing information resided with his parents due to his father’s illness, and his earnings were directed to his father’s bank account. The informant was staying at her maternal residence when she was informed about her husband’s suicide. She received an alleged suicide note from her husband’s phone, which was being used by her father-in-law. Subsequently, she lodged a First Information Report (FIR) against her in-laws.

The legal representatives for the applicants argued that imprisonment would harm the reputation of the female defendants. They pointed out that one of the co-accused individuals had already been granted regular bail, and no direct witness was available in the ongoing case. Additionally, they highlighted the delay of one month in filing the FIR, and with the chargesheet submitted, there was minimal risk of evidence tampering. Hence, the counsel contended that the circumstances were appropriate for granting anticipatory bail.

The applicants drew support from the rulings of the Supreme Court in the cases of Kamlesh & Anr. vs. The State of Rajasthan & Anr., and Vinod Kumar Sharma & Anr. vs. State of Uttar Pradesh & Anr., along with the decision of the Allahabad High Court in Dr. Rajni Tripathi vs. State of U.P. In these cases, the courts determined that seeking anticipatory bail under Section 483 of the Criminal Procedure Code (CrPC) remains valid even after the rejection of an application filed under Section 482 of the CrPC.

Furthermore, the applicants referred to the instance of Udit Arya vs. State of U.P, where the Allahabad High Court granted anticipatory bail despite the initiation of proceedings under Section 82 of the CrPC. Conversely, the informant’s representative cited the Supreme Court’s judgment in Prem Shankar Prasad vs. State of Bihar & Anr., highlighting that anticipatory bail was not viable after the conclusion of proceedings under Section 82 (regarding a proclamation for an absconding person) and Section 83 (regarding the attachment of property of an absconding person).

CASE ANALYSIS AND DECISION

The court noted that concerning the current applicants, their prior challenge to the chargesheet had not succeeded, whereas in the case of Kamlesh, the practice at the Rajasthan High Court involved challenging the First Information Report (F.I.R.) through a Section 482 Cr.P.C. petition. This procedure allowed the consideration and decision of the application under Section 438 Cr.P.C., even after challenging the F.I.R.

In a differentiation from the Vinod Kumar case, the court observed that the precedent established in that case, suggesting that the term ‘regular bail’ encompasses the provisions of Section 483 of the CrPC, did not directly apply to the circumstances of the present case.

“The learned Senior Counsel for the applicants has also drawn upon the judgment in Vinod Kumar Sharma (above-mentioned), which suggests that the phrase ‘regular bail’ includes the provisions laid out in Section 438 Cr.P.C. This argument is valid and indeed, even after a decision for regular bail is granted, the option for anticipatory bail remains. However, this legal precedent does not pertain to the current situation. We must assess this case based on its individual merits. Furthermore, the judgment of this Court in the case of Dr. Rajni Tripathi (previously mentioned) has been built upon the aforementioned verdict of the Apex Court in the case of Vinod Kumar Sharma (aforementioned). Therefore, these decisions are not applicable to the current circumstances.”

Furthermore, the court pointed out that the proclamation under Sections 82 and 83 of the CrPC had concluded over six months ago and that the suicide had occurred within the applicants’ residence. Consequently, the exception established in the Udit Arya case would not be pertinent to the present scenario.

Lastly, the court determined that the applicants’ attempt to assert that the case was per incuriam (decided without considering relevant law) did not hold, and as a result, the request for anticipatory bail was dismissed.

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PIL In Allahabad High Court Against Development Authority Over Land Held For “New Kanpur City”

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CASE TITLE:  Prantesh Narayan Bajpeyi v. State Of Up And 4 Others [WPIL No. – 1889 of 2023]

DECIDED ON: 21.08.2023

CORAM: Hon’ble Pritinker Diwaker,Chief Justice Hon’ble Ashutosh Srivastava,J.

INTRODUCTION

On Monday, the Allahabad High Court addressed a public interest litigation concerning the lack of action from the Kanpur Development Authority regarding the land that was acquired through a notification in 1996 for the purpose of establishing the “New Kanpur City” and a residential colony under the development authority.

A total land area of 464.6965 hectares was intended for acquisition from seven villages based on the notification issued on August 9, 1996, for the creation of the “New Kanpur City”. This acquisition was contested by several individuals before the Allahabad High Court, which subsequently invalidated the notifications in 1999.

FACTS

Subsequently, the Supreme Court, in the context of Special Leave Petitions, upheld the validity of the notifications issued under Section 4 of the Land Acquisition Act, 1984. However, it invalidated certain aspects of the Section 6 notifications, directing the need for a fresh evaluation under Section 5A. During the ongoing Special Leave Petition proceedings, multiple requests were made to the Kanpur Development Authority to allocate funds for compensating landowners.

As a result, new declarations under Section 6 of the Act were issued in 2005. The designation of the project changed from “New Kanpur City” to “Residential Colony of Kanpur Development Authority.” These declarations faced legal challenges in the High Court, leading to the annulment of notifications associated with filed petitions. Subsequently, fresh notifications were put forth.

The petitioner presented various records of Authority board meetings to establish that it had been consistently conveyed that the project had lost its effectiveness. Furthermore, the petitioner argued that private individuals had already constructed on their lands and were living peacefully. The Authority’s actions under the guise of the scheme were allegedly infringing upon Article 300A of the Indian Constitution by disturbing the peaceful possession of land.

The petitioner’s counsel asserted that there was a status-quo order in effect during the proceedings in both the High Court and the Apex Court. The scheme initially aimed to acquire land from seven villages for the “New Kanpur City,” but this was purportedly and arbitrarily modified to the “Residential Colony of Kanpur Development Authority.” Allegations are made that the possession of 111.8468 hectares of land, out of the total 464.6965 hectares, was taken unlawfully.

There are concerns about the remaining land, currently in private possession and already built upon, not under the control of the Kanpur Development Authority. Additionally, it was conveyed that the State Government declined the proposal from the Kanpur Development Authority for advancing both the “New Kanpur City” project and the establishment of a residential colony.

While the Kanpur Development Authority acknowledged holding 111.8468 hectares of land, the counsel indicated that due to the scattered nature of the land in their possession, negotiations with the landholders were underway to make the scheme more viable.

CASE ANALYSIS AND DECISION

Ordering the involved parties to uphold the current situation, the bench composed of Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava remarked,

“In light of the arguments presented by the learned Senior Counsel representing the Petitioner, and recognizing that the Respondent Development Authority possesses only a portion of the land and the feasibility of the proposed ‘New Kanpur City’ scheme is currently uncertain, it is decreed that the parties shall maintain the existing status-quo. However, the Kanpur Development Authority is permitted to engage in negotiations with the tenure holders.”

The case has been scheduled for hearing on October 16, 2023.

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Written by- Mansi Malpani

 

 

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