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24 Apr

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.

23 Apr

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 Respondent:-
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
“PRIME LEGAL is a full-service law firm that has won a National award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer”.
Judgement reviewed by- Parvathy P.V.

15 Jan

Claiming Retiral Benefits: Deceased Teacher’s Nominee Challenges Legally Wedded Wife’s Right.

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Case Title: Rajni Rani vs State of U.P. and others

Case No: WRIT – A No. – 11483 of 2023

Decided on: 11.01.2024

Coram: The Hon’ble Mr. Justice Saurabh Shyam Shamshery

Facts of the Case

After reaching superannuation on June 30, 2012, one Sri Bhojraj Singh retired from his position as an assistant teacher at Maharaja Tej Singh Junior High School in Aurandh, Vikash Khand Sultanganj, District Mainpuri he passed away on February 10, 2021. The petitioner is claiming Sri Bhojraj Singh’s retirement benefits on the grounds that she was his nominee and lived with him as his wife for a considerable amount of time, as stated in the service record.

Advocates for the petitioner stated that the petitioner does not dispute that Respondent-10, Usha Devi, was Sri Bhojraj Singh’s lawfully wedded wife. She supposedly got married to someone else after divorcing him, hence she is not eligible for Sri Bhojraj Singh’s retirement payments. The learned counsel went on to say that Respondent-10 initiated a proceeding under Section 125 Cr.P.C., wherein an agreed amount was taken and a compromise was entered. Respondent-10 never claimed any maintenance allowance after that, and as a result, she has abandoned any rights she may have had.

On the other hand, the advocate for Respondent 10 contended that the respondent is in fact the legally wedded wife of Sri Bhojraj Singh and there was no divorce between them, therefore, only based on being a nominee or that the petitioner stayed with Sri Bhojraj Singh for a long time, would not sufficient to accrue all retiral benefits to her.

Issue

Whether the petitioner as the nominee of the government employee can claim the retiral benefits?
Whether the legally wedded wife even after having left the husband for years be entitled to his retiral benefits as a legal heir?

Legal Provision

Section 125 of the CrPC –

This code provides that any person who has sufficient means to maintain himself cannot deny the maintenance to the wife, children, and parents if they are not able to maintain themselves. After the party has invoked Section 125 of the Code, the court may order the respondent—the husband—to provide monthly maintenance to the wife in the event that she is unable to support herself. Nevertheless, the regulation contains an exemption. The husband must be able to support his wife after their divorce and the wife cannot be living in adultery or apart from her husband for an insufficient period of time in order for the husband to be entitled to maintenance payments. The wife will not be eligible for any kind of maintenance, even if they are living apart with mutual consent. In the event that the wife receives a favourable judgement, the court has make sure that the husband has sufficient means to provide maintenance to the wife. The court also needs to make sure that the wife after the separation does not have enough money to maintain herself.

Court Decision and Analysis

The court referred to the judgment passed by the apex court in Shipra Sengupta vs Mridul Sengupta and others (2009) 10 SCC 680 wherein it was held that a nominee of a Government employee is only a custodian and benefit after the employee’s death will confer to his/ her legal heirs.

The petitioner and Respondent-10 both lay claim to Bhojraj Singh’s benefits, but their legal grounds differ starkly. While the petitioner asserts some abandonment of rights based on past proceedings, it’s critical to remember, firstly, that Respondent-10 was Bhojraj Singh’s legally married wife, not the petitioner. Moreover, he never divorced her. Therefore, as per the legal precedent established in Shipra Sengupta, Respondent 10 holds a rightful claim as his heir. Viewing the nominated beneficiary merely as a temporary custodian, the law dictates benefits flow to legal heirs upon the employee’s death. Given these clear-cut facts and established legal principles, the challenged order stands on solid ground. In simpler terms, Respondent-10, as the legally wedded and undivorced wife, rightfully inherits the benefits, not the petitioner.

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Written by- Bhawana Bahety

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12 Jan

Appointment of a teacher based on forged educational documents cannot be entitled to sympathy; cancelled the appointment: Allahabad High Court

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Case Title: Shiv Kumar Mishra v. State of U.P. and Others

Case No: Writ – A No. 13121 of 2023

Decided on: 9^th January, 2024

CORAM: THE HON’BLE MR. SAURABH SHYAM SHAMSHERY

Facts of the Case

The petitioner assumed the role of an Assistant Teacher at Primary School Harnahi Chakarwa Bahordas, District Deoria, in 2005. Subsequently, in 2008, the petitioner was promoted to the position of Headmaster. In 2015, an inquiry was launched following a complaint asserting that the petitioner’s appointment had been made on the basis of falsified educational documents.

The District Basic Education Officer’s office in Deoria meticulously examined the documents and found no discrepancies. Subsequently, the documents were sent for additional verification.

The petitioner’s legal representative contended that despite the absence of any ambiguity in the documents, an investigation ensued, leading to the filing of an FIR against the petitioner in 2022. The argument emphasized that although the chargesheet was provided to the petitioner, the documents forming the basis for framing the charges were not supplied to him. Furthermore, the contention was put forth that the cancellation of the petitioner’s appointment was in violation of the principles of natural justice, as the order was issued without furnishing him with a copy of the inquiry report. This, it was asserted, warranted setting aside the decision.

On the contrary, the legal representative for the respondents argued that despite numerous notices sent to the petitioner, no responses were received to the specific queries raised. Consequently, the inquiry continued, and the charges were substantiated based on the police report.

Legal Provision

According to Rule 9(4) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, if any penalty outlined in Rule 3 is intended to be enforced, the government servant must be furnished with a copy of both the inquiry report and the Disciplinary Authority’s conclusions.

Issue

Whether the petitioner, who has procured an appointment as a Teacher based on forged educational documents, can be entitled to any sympathy?

Court’s analysis and decision

The Allahabad High Court has affirmed the annulment of the appointment of a primary school teacher due to the use of fraudulent documents. Justice Saurabh Shyam Shamshery, presiding over the bench, remarked that “a person such as a petitioner, who has procured appointment as Teacher on basis of forged educational documents, cannot be entitled to any sympathy and he is required to be dealt with strictly.”

The court affirmed that “It is well settled that fraud vitiates all solemn acts. Petitioner has not submitted any document which could contradict the findings returned by Inquiry Officer as well as by disciplinary authority that forged educational documents were provided by petitioner at the time of his appointment.” Consequently, the court concluded that the failure to serve the inquiry report was a mere irregularity and not an illegal act that resulted in any harm or injustice to the petitioner.

The court noted that the situation did not constitute double jeopardy since the District Basic Education Officer’s report from Deoria, affirming the authenticity of the documents, was not conclusive. This is because the District Basic Education Officer in Deoria had forwarded the documents for additional verification. Consequently, the court concluded that the petitioner had no grounds to assert a claim of double jeopardy.

The court noted that the petitioner’s response lacked specificity and failed to address the specific queries outlined in both the chargesheet and the notices served. Simultaneously, the court also remarked that the process outlined in Rule 9(4) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, was not adhered to.

The court referenced the cases of Rajasthan Rajya Vidyut Prasaran Nigam Limited and another vs. Anil Kanwariya (2021) and Indian Oil Corporation Ltd. vs. Rajendra D. Harmalkar (2022), where the Supreme Court emphasized that the issue of trust becomes significant if an employee secured the job through the submission of forged documents. In such instances, the dismissal penalty was upheld.

The court further noted that throughout the proceedings, including the writ petition stage, the petitioner did not present any document to challenge the findings of the Inquiry Officer and the Disciplinary Authority, which established that the petitioner obtained the appointment using fraudulent documents. Consequently, the court ruled that the petitioner failed to demonstrate any harm caused by the non-supply of the inquiry report.

As a result, the writ petition was rejected.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Afshan Ahmad

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9 Nov

The Allahabad High Court held that section 17 UP-Lokayukta And Uttar Pradesh Lokayukta Act Does Not Preclude High Court’s Authority Under Article 226

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Title: Masood Ahmad Khan v. State of UP and Ors.

Decided on: 06 November, 2023

+ Writ- A No. 10788 of 2023

CORAM: Hon’ble Justice Munir J

Introduction

Based on a review of its ruling by any court, the Allahabad High Court ruled that the bar established in Section 17 of the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 does not apply to the High Court’s jurisdiction under Article 226 of the Indian Constitution.

Facts of the Case

Due to accusations that the petitioner had falsified his birthdate in the service record, his services were terminated. The writ court overturned the termination judgment on the grounds that he had already reached superannuation age. This was predicated on allegations that he had falsified his birthdate in the service record. Nevertheless, the petitioner was suspended pending further investigation. The petitioner’s attorney argued that the High Court had already overturned the petitioner’s termination without allowing the Nagar Palika Parishad to take up the case again. Because of this, the respondents lacked the authority to suspend the petitioner and bring legal action against him for allegedly falsifying his birthdate in the service book.

Courts analysis and decision

The Court decided that manipulation is not just “overwriting” or “cutting,” but that it can also be accomplished in other ways. Therefore, the absence of “overwriting” or “cutting” does not prove that the records were not altered. The Court decided that Nagar Palika Parishad is still free to carry out additional investigation despite this fact being noted in the decision. The Court noted that Section 17(2) solely restricts the regular jurisdiction of the Courts and cannot be interpreted as limiting the High Court’s authority under Article 226 of the Indian Constitution. As a result, the Court denied the petition and instructed the inquiry officer to wrap up the investigation in three months.

Written by- Hargunn Kaur Makhija

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