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

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

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

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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Students Should Be Given Opportunity To Reform, Instead Of Punitive Punishment: Allahabad High Court

CASE TITLE:   Prakhar Nagar vs. State of UP & 4 Others 2023 LiveLaw (AB) 244 [Writ C No. 21339/2020]

DECIDED ON: 02.08.2023

CORAM: Hon’ble Ajay Bhanot,J

INTRODUCTION

The Allahabad High Court has emphasized that universities should refrain from implementing solely punitive measures towards students. According to the court, students, being young adults, deserve a chance for rehabilitation and personal growth.

FACTS

The petitioner, a student pursuing B.Tech (CSE), faced accusations of various acts of misconduct, which included engaging in morally questionable behavior, involvement in corruption or bribery, disrupting the university’s academic operations, and actions related to exams and tests. In the beginning, the petitioner was expelled from the institution for six months; however, this duration was lessened to three months upon appeal.

The legal representative for the petitioner contended that the allegations made against the petitioner were unclear and lacked specificity. There was no supporting evidence provided to substantiate the decision to expel the petitioner. Furthermore, it was argued that the punishment imposed was disproportionate. Additionally, it was highlighted that the petitioner was never officially provided with the charge sheet, which violated the fundamental principles of fairness and justice.

On the other hand, the legal representative for the respondent argued that the punishment was administered following a thorough investigation. Given the seriousness of the charges, the decision to expel the petitioner was justifiable.

CASE ANALYSIS AND DECISION

The Court noted that the respondent university was incapable of disproving the allegation of disregarding principles of natural justice. The unfavorable evidence on record failed to substantiate the accusations against the petitioner. The Court expressed, “The harm caused to the petitioner due to the respondents’ adopted procedure is irreversible.”

“The structure of disciplinary measures in a higher education institution is an essential aspect of its management. The system of penalties within an organization must combine fundamental components to uphold order in the University, which contributes to its academic environment, and a rehabilitative strategy that plays a crucial role in shaping students. The fundamental aspect of a proficient disciplinary system is achieving equilibrium between acting as a deterrent and offering the potential for reform.”

Drawing from a prior verdict, Anant Narayan Mishra v. Union of India, the Court upheld the stance that students shouldn’t exclusively face punitive measures. If any punitive action is taken, it should encompass a reformatory perspective.

While granting the student’s plea and annulling the punishment, the Court declared that students, as young adults, should be granted an opportunity to rectify any mistakes and embark on a fresh journey with a clean record.

“The imposition of excessive punishment undermines the validity of punitive measures,” the Court stated.

Furthermore, the Court endorsed the request for the issuance of a revised marks sheet that reflects the petitioner’s performance assessed out of 100 marks. The Court also ordered the removal of the “Reappearance September 2020” notation and the removal of the B Cap on the petitioner’s earned marks.

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Transfer Order Allegedly In Violation Of State Policy Cannot Be Challenged In Writ Jurisdiction: Allahabad High Court

CASE TITLE:   Amit Kumar vs. State of UP & 2 Others 2023 LiveLaw (AB) 248 [Writ A No. 11797/2023]

DECIDED ON: 24.7.2023

CORAM: Hon’ble J.J. Munir,J

INTRODUCTION

According to the Allahabad High Court, a transfer order that is claimed to be issued against the State policy cannot be contested through a writ jurisdiction, as it does not affect any statutory rights. The court clarified that State policies are administrative in nature and differ from laws enacted by the legislature, which possess a statutory nature.

FACTS

The petitioner, a Senior Auditor in the office of the Director, Co-operative Societies and Panchayat Audit, Lucknow, U.P., was issued a transfer order in the name of ‘public interest.’ He challenged the transfer order because his wife, who is an Assistant teacher at a Government Primary School, was recently transferred to the same location to accommodate spouses at the same station as per the State Government’s transfer policy for 2022-23.

The petitioner’s counsel argued that the transfer, which placed him 200 km away, was arbitrary and not in line with the policy. They contended that the wife’s recent transfer to the same location should protect the petitioner’s right to be transferred nearby as well.

However, the Court referred to the Supreme Court’s decision in the case of State of U.P. and others v. Govardhan Lal, emphasizing that State transfer policies are administrative in nature and distinct from statutory rules. Violation of such policies does not entitle government employees to challenge them in a court of law.

CASE ANALYSIS AND DECISION

The Court made a distinction from the case of Ram Awadh Ram v. State of U.P. and another, which the Petitioner had relied upon. In that case, the transfer order was found to be in violation of the U.P. District Offices (Collectorates) Ministerial Service Rules, 1980, leading the Court to intervene. However, in the present case, as no violation of any statutory rule was proven, the Court declined to interfere with the transfer order. Nonetheless, the petitioner was granted the chance to join his new posting and present his concerns before the relevant authorities.

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Practice Of Lodging False FIRs Alleging Rape Has to Be Dealt With A Heavy Hand: Allahabad HC Imposes ₹10K Cost On A Woman

CASE TITLE:   Shivam Kumar Pal @ Sonu Pal And 3 Others vs. State Of U.P. And 2 Others [CRIMINAL MISC. WRIT PETITION No. – 11560 of 2023]

DECIDED ON: 26.7.2023

CORAM: Hon’ble Anjani Kumar Mishra,J. Hon’ble Vivek Kumar Singh,J.

INTRODUCTION

Last week, the Allahabad High Court ordered a woman to pay a fine of Rs. 10,000. The woman had confessed to filing a false First Information Report (FIR) against four men, leveling charges of rape and unnatural sex against them.

The Court emphasized that the act of lodging FIRs with false and serious allegations of rape cannot be tolerated and should be severely dealt with.

FACTS

Subsequently, the Court granted approval to a writ petition filed by the four accused individuals, leading to the dismissal of the challenged First Information Report (FIR) registered against them. The FIR encompassed allegations under Sections 376, 377, 313, 406, and 506 of the Indian Penal Code (IPC).

The Court’s proceedings primarily revolved around the writ petition submitted by the accused, asserting that the FIR against them was fabricated and false.

Furthermore, the Court was informed that petitioner no.1 (one of the accused) and the first informant (who alleged rape) had entered into a lawful marriage as consenting adults, and they are presently leading a contented life together as husband and wife.

In addition, the Court learned that the first informant, who was the alleged victim, had addressed an application to the Commissioner of Police, Prayagraj, admitting that she had impulsively lodged a false FIR due to some disagreements that arose between her and petitioner no.1.

During the proceedings, the counsel for the alleged victim reiterated the arguments made by the accused persons’ counsel and presented the fact that the victim is currently residing with petitioner no.1, who is one of the accused, as his spouse. Based on this, the counsel sought the quashing of the writ petition.

CASE ANALYSIS AND DECISION

After carefully considering the arguments presented by both parties and examining the application filed by the alleged victim, the Court immediately observed that it was evident that the serious rape allegations made against the petitioners were entirely false. This led the Court to conclude that the false FIR had been filed with the intention of either exerting pressure on the petitioners or seeking revenge.

Emphasizing the gravity of lodging such FIRs with fabricated rape accusations, the Court granted the plea and imposed a penalty of Rs. 10,000/- on the alleged victim, instructing her to deposit the amount within ten days.

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