#allahabadhighcourt Archives - Page 6 of 8

11 Aug

In A Rare Tiebreaker, Allahabad High Court Grants Interim Protection To Indiabulls Officers In FIRs By Shipra Group

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CASE TITLE: Reena Bagga and Another vs. State of UP and 2 Others [Criminal MISC. Writ Petition No. – 11837/2023] and Himri Estate Pvt. Ltd. and 4 Others v. State of UP and 2 Others [Criminal MISC. Writ Petition No. – 11838/2023]

DECIDED ON: 08.08.2023

CORAM: Hon’ble Samit Gopal, J.

INTRODUCTION

Resolving divergent opinions concerning the suspension of the First Information Report (FIR) lodged by the Director of Shipra Estate against officials of Indiabulls Housing Finance Ltd. concerning disagreements related to a loan facility they had utilized, the Allahabad High Court has determined that without affording time for the Advocate General and the complainant’s legal representative to seek guidance, it is an appropriate situation to offer provisional safeguard.

Justice Samit Gopal, who was assigned the case as the third judge following a division in the bench of Justices Vivek Kumar Birla and Rajendra Kumar-IV, has ruled in favor of the officers of IHFL.

FACTS

The officers of IHFL expressed their discontent with the proliferation of legal actions stemming from a solitary loan transaction. Justice Kumar declined to grant immediate relief, citing the hasty progression of the matter and the lack of time afforded to the Additional Government Advocate (AGA) to gather guidance. He opined that the appropriate course was to allow the AGA the necessary time for instruction before delivering a consequential verdict that might adversely impact the opposing party.

On the contrary, Justice Birla supported the interim protection for the petitioners, drawing on the precedent set by Gagan Banga vs. Samit Mandal & another (2023). In this case, similar FIRs were under consideration, and the Supreme Court had granted protection to the financial institution and its officers.

The case was elevated to the Chief Justice’s attention, who subsequently delegated it to a third judge to solicit an opinion.

Currently, Justice Gopal has aligned with Justice Birla’s perspective, expressing:

“After reviewing the Supreme Court’s ruling in the matter of Gagan Banga vs. Samit Mandal & another: Contempt Petition (Civil) No. 774 of 2023 in Criminal Appeal No. 463 of 2022, along with the decision rendered by a Division Bench of this Court in Criminal Misc. Writ Petition No. 10893 of 2023 (Neeraj Tyagi and another vs. State of U.P. and 3 others), and considering the nature of the incident pertaining to financial institutions or money lenders pursuing recovery actions for their legitimate debts, with the proceedings adhering to the same trajectory, it is a suitable scenario to extend interim protection to the petitioners.”

In light of Shipra Group’s failure to fulfill its loan obligation to IHFL, Shipra Mall, an asset of the Shipra Group, was auctioned by IHFL. Himri Estate emerged as the successful bidder and acquired the mall.

Representative Mohit Singh of Shipra Group lodged several FIRs against IHFL officers and Himri Estate Pvt. Ltd. He alleged that the sale of Shipra Mall was illicit due to its undervaluation, resulting in substantial state revenue loss. Moreover, he claimed that specific officers were illicitly obtaining land in the vicinity, labeling them as land mafia from Delhi and NCR.

Conversely, the Additional Advocate General, representing the State, contended that given the potential sentences being less than 7 years, the petitioners needn’t fear arrest, thus negating the necessity for interim protection at this stage.

Additionally, the Informant’s legal counsel argued that the allegations against the petitioners extended beyond Shipra Mall to encompass illegally occupied lands held by the petitioners.

CASE ANALYSIS AND DECISION

The Court noted that the matter pertained to financial dealings involving loans, their non-repayment, and the subsequent auction of assets owned by the borrower.

In response to the argument put forth by the learned Additional Advocate General that the petitioners are unlikely to be arrested and any proceedings would adhere to the directives of the Supreme Court as referenced by him, the Court clarified that the interim order’s scope extends beyond solely preventing the arrest of the petitioners; it encompasses other aspects as well, as per the Court’s determination.

The case is scheduled to be heard before the division bench on August 11, 2023.

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Written by- Mansi Malpani

11 Aug

In Most Cases, Women File False FIRs Under POCSO/SC-ST Act Using It As A Weapon To Grab Money From State: Allahabad HC

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CASE TITLE: Ajay Yadav vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 254 [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 7907 of 2023]

DECIDED ON: 10.08.2023

CORAM: Hon’ble Shekhar Kumar Yadav,J.

INTRODUCTION

The Allahabad High Court made a remark on Thursday stating that it is regrettable that currently, a significant number of cases involve women submitting untrue FIRs under the POCSO/SC-ST Act with the intention of exploiting it as a means to extract funds from the government. The Court emphasized the need to halt this trend.

The Court highlighted the trend of these baseless FIRs, which are primarily aimed at securing monetary gains from the government. This practice has the harmful consequence of tarnishing the reputation of innocent individuals within the community.

FACTS

The recent statement from the Allahabad High Court lamented the unfortunate trend where a significant number of women are currently submitting false FIRs under the POCSO/SC-ST Act, utilizing it as a strategy to obtain financial gains from the government. The Court expressed its concern about this practice and emphasized the need for its cessation.

The Court observed that these fabricated FIRs are primarily aimed at extracting money from the government, leading to the detrimental consequence of tarnishing the reputation of innocent individuals within society.

Addressing the prevailing issue of increasing instances of sexual violence, the bench of Justice Shekhar Yadav further remarked, “Considering the widespread and consistently growing occurrences of such acts, I believe that it is essential for both the State of U.P. and the Union of India to recognize the gravity of this matter.” This observation was made while granting anticipatory bail to a rape accused.

The accused was alleged to have committed rape against the victim in 2011, yet the FIR was filed in March 2019, approximately 8 years after the purported incident. In his pursuit of anticipatory bail, the accused’s legal counsel argued that the victim had not provided a reasonable explanation for the significant delay in lodging the FIR. The defense contended that the accused had been falsely implicated in an attempt to harass him, asserting that the alleged incident never occurred as described in the FIR.

The defense also highlighted that the victim herself had admitted to engaging in a physical relationship with the accused, indicating her consent and confirming her age as over 18 years. Additionally, it was brought to the court’s attention that a co-accused had already been granted anticipatory bail, prompting the defense to request the same relief for the accused in question.

CASE ANALYSIS AND DECISION

After considering the content of the First Information Report (FIR) and the arguments presented by the accused’s legal representative, the Court made an observation that there exist significant inconsistencies in the victim’s statements recorded under Sections 161 and 164 of the Criminal Procedure Code (Cr.P.C.).

The Court also highlighted that according to the details provided in the FIR, it was stated that the accused engaged in a physical relationship with the victim in 2012. However, in the statement given under Section 161 of the Cr.P.C., the victim asserted that the accused had such a relationship with her in 2013.

Given these circumstances, the Court issued a directive specifying that if it is determined that the FIR filed by the victim is unfounded, then a proper inquiry will be conducted and criminal proceedings under Section 344 of the Cr.P.C. will be initiated against the victim. Additionally, the Court mandated that any financial assistance provided to the victim by the State will be reclaimed from her.

In a recent incident last month, the Allahabad High Court imposed a fine of Rs. 10,000 on a woman who openly admitted to submitting a false FIR against four men, falsely accusing them of rape and unnatural sexual acts against her.

The Court further emphasized that the act of filing FIRs containing fabricated and grave allegations of rape cannot be condoned. Such a practice must be handled with a firm approach, according to the Court’s statement, as it necessitates a severe response.

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Written by- Mansi Malpani

9 Aug

Ineligibility Of Arbitrator As Per S.12(5) Arbitration Act Can’t Make Arbitration Clause Itself Invalid: Allahabad High Court:

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CASE TITLE: M/S Bansal Construction Office v. Yamuna Expressway Industrial Development Authority And 2 Others 2023 LiveLaw (AB) 250 [Arbitration And Conciliation APPL.U/S11(4) No. – 142 of 2019]

DECIDED ON: 04.08.2023

CORAM: Hon’ble Ashwani Kumar Mishra,J.

INTRODUCTION

The Allahabad High Court has ruled that the complete arbitration arrangement will not become void solely due to the fact that the process of selecting the arbitrator, as outlined in the agreement, is prohibited by Section 12(5) of the Arbitration and Conciliation Act, 1996.

FACTS

The Court ruled that the inclusion of Section 12(5) in the Arbitration and Conciliation Act, 1996 was intended to introduce principles of fairness and autonomy in the arbitrator selection process. Consequently, the presence of an arbitration clause in a contract cannot be interpreted in a strict manner that would exclude the possibility of arbitration itself.

The applicant was granted a contract for constructing roads near Usmanpur village, which was completed by June 30, 2017. Payments were disbursed by the authority based on ongoing bills. However, deductions were made in the final bill, leading to a dispute.

The applicant repeatedly requested the appointment of an arbitrator, which the YEIDA (Yamuna Expressway Industrial Development Authority) denied, citing that the arbitration clause was invalidated by Section 12(5) of the 1996 Act. According to Clause 33 of the contract, only the Chief Executive Officer of YEIDA is eligible to arbitrate in this matter.

Section 12(5) of the Act states that irrespective of any contrary agreements, an individual cannot be appointed as an arbitrator if they have any affiliations with either party or their legal representatives as outlined in the Seventh Schedule of the Act, unless both parties provide written consent.

The applicant’s legal representative divided the arbitration agreement into two parts: one pertaining to the dispute’s referral to an arbitrator, and the other outlining the procedure for such reference. It was further argued that the statutory provision of Section 12(5) should take precedence over the contractual autonomy granted by the arbitration agreement.

Furthermore, it was emphasized that the possibility of arbitration shouldn’t be denied solely due to a statutory provision overriding the arbitrator appointment method outlined in the agreement.

The respondent’s counsel countered that since the CEO of YEIDA couldn’t appoint an arbitrator due to Section 12(5), arbitration couldn’t be pursued at all. Citing a previous ruling by the Court in Arbitration Application No. 54 of 2017, it was argued that Section 12(5) prevented the arbitrator from arbitrating any dispute. Additionally, in the absence of a specific clause recording consent from both parties, arbitration reference couldn’t be initiated.

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CASE ANALYSIS AND DECISION

The Court noted that it is essential to interpret the arbitration clause “in a manner that reveals the genuine intention of the parties,” despite its wording seeming to exclude arbitration under Section 12(5).

In the ongoing case, when selecting an arbitrator, none of the parties involved can maintain authority while disregarding the arbitration process itself. Clause 33 of the contract in question would be secondary to the influence of Section 12(5) of the Act.

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Written by- Mansi Malpani

9 Aug

Can’t Say Physical Relationship Was Without Consent If Married Woman Having Experience in Sex Doesn’t Offer Resistance: Allahabad HC

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CASE TITLE: Rakesh Yadav and 2 Others vs. State of U.P. and Another

DECIDED ON: 04.08.2023

CORAM: Hon’ble Sanjay Kumar Singh,J.

INTRODUCTION

The Allahabad High Court made a noteworthy observation that when a married woman with prior sexual experience doesn’t oppose a physical relationship, it cannot be concluded that her involvement with a man was non-consensual. Justice Sanjay Kumar Singh’s bench stated this while halting legal actions against an individual who was accused of raping a 40-year-old married woman. The Court pointed out that the purported victim, while still married and with two children, chose to enter a live-in arrangement with the first party involved (Rakesh Yadav) to pursue her goal of marrying him, without obtaining a divorce from her husband.

FACTS

In essence, the Court was addressing the request presented by three accused individuals aiming to dismiss the official accusation documented against them. Subsequently, charges were acknowledged against applicant no.1 under Sections 376 and 506 of the IPC, and against applicant nos. 2 and 3 under Sections 504 and 506 of the IPC by the Additional Civil Judge (Junior Division), New Court No.III/Judicial Magistrate, Jaunpur.

As per the version provided by the alleged victim, she entered into matrimony in 2001 with her spouse, resulting in the birth of two children from their union. Due to a strained relationship with her husband, Applicant No. 1, Rakesh Yadav, purportedly took advantage of the situation and lured her by promising to marry her. Consequently, she resided with him for a period of five months, during which he engaged in a physical relationship with her under the guise of marriage.

Furthermore, the accuser asserted that a co-accused, Rajesh Yadav (applicant no. 2), and Lal Bahadur (applicant no. 3), applicant no.1’s brother and father respectively, also assured her of her impending marriage to Rakesh Yadav. Upon her insistence, they obtained her signature on a plain stamp paper and falsely claimed that they had executed a notarized marriage, even though no such marriage had taken place.

Contrarily, the counsel representing the applicants contended that the alleged victim, a 40-year-old married woman and a mother of two children, possessed the maturity to comprehend the implications and ethical aspects of the actions for which she gave consent. Therefore, it was argued that this case did not involve rape but rather a consensual relationship between applicant no.1 and the complainant.

CASE ANALYSIS AND DECISION

Noting the need for thorough examination, the Court suspended any additional progress in the criminal case involving the applicants. Moreover, the Court provided the opposing parties with the freedom to submit a counter affidavit within a span of six weeks. The case has been scheduled for a hearing in approximately nine weeks’ time.

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Written by- Mansi Malpani

8 Aug

Commercial Electricity Rates Inapplicable To Lawyers’ Chambers As Legal Profession Is Not ‘Commercial’ In Nature: Allahabad High Court

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CASE TITLE: Tehsil Bar Association, Sadar Tehsil Parisar, Gandhi Nagar, Ghaziabad vs. U.P. Power Corporation Limited And 3 Others 2023 LiveLaw (AB) 245 [WRIT – C No. – 2637 of 2023]

DECIDED ON: 03.08.2023

CORAM: Hon’ble Surya Prakash Kesarwani,J. Hon’ble Anish Kumar Gupta,J.

INTRODUCTION

The Allahabad High Court has determined that the actions undertaken by legal professionals do not constitute ‘commercial activities.’ Therefore, the electricity tariffs applicable to commercial establishments cannot be applied to lawyers’ offices when they are utilized for professional engagements.

FACTS

The Sadar Tehsil Bar Association brought a case before the Court challenging the imposition of commercial electricity rates on lawyers’ chambers.

The legal representative for the petitioner asserted that the practice of law does not qualify as a commercial endeavor. Lawyers contribute to society by participating in the administration of justice, reflecting a profession that serves the public good rather than pursuing commercial gains.

Reference was made to previous circulars issued by the U.P. Electricity Regulatory Commission, which classified the judiciary under the LMV-1 category, applicable to residential users. Furthermore, it was argued that lawyers’ chambers in the District Bar Association of Noida were billed under the LMV-1 category. The argument contended that the imposition of varying rates in different regions of the state is arbitrary and discriminatory in nature.

CASE ANALYSIS AND DECISION

The Court’s observation emphasized that when words are used within the same context, they should draw meaning from one another. Since the occupation of lawyers doesn’t fall under the LMV-2 category designated for ‘non-domestic’ activities, for them to be billed under that schedule, an activity of a similar nature must be demonstrated.

Citing the verdict in M.P. Electricity Board and Ors. v. Shiv Narayan Chopra and the Bar Council Rules, the Court based its decision on the understanding that the legal profession lacks a commercial essence, thereby negating the imposition of commercial tariff rates on lawyers.

The Court further pointed out that even though the LMV-2 rates are intended for ‘non-domestic’ users, the stated categories partake in commercial undertakings associated with trade or business. Consequently, these rates cannot be imposed on lawyers’ chambers. The Court maintained that earlier circulars mandating LMV-1 rates for the legal profession and the judiciary will be relevant for lawyers’ chambers situated within court premises.

Addressing the disparity in rates between Gautam Budh Nagar and Ghaziabad, the Court acknowledged that the UP Electricity Regulatory Commission is accountable for tariff rates in Uttar Pradesh. Therefore, it was established that “the respondents are not permitted to differentiate between the electricity supply to advocates’ chambers in different court premises within the same State, especially when the rate schedules are sanctioned by the same governing authority.”

In line with this reasoning, the writ petition was granted approval.

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Written by- Mansi Malpani

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