Mohd Farman Vs State of UP on 12 Aug 2021
A division bench of Allahabad High Court held as follows, regards to a set of 340 CrPC applications filed by the knife.
From Para 15-17,
15. It is a fact that Professor F.A Ansari himself did not file any affidavit to say that invigilation duty certificate in question was forged and the same did not contain his signatures. It has to be kept in mind that necessary, prelude for action under section 340, Cr. P.C is that the Court should be of the opinion that it is expedient in the interest of justice to do so. Action under section 340, Cr. P.C should be taken only when the Court on objective consideration of the entire facts and circumstances, is of the belief and opinion that the interest of justice so requires. The Court may act suo motu also. It is for the Court to decide whether to take action and initiate proceedings. Even when an application is made by one of the parties, it becomes a matter between the Court and the alleged perjurer. Action under section 340, Cr. P.C is undertaken in the interest of justice and not to satisfy the private grudge of a litigant. Every case of perjury need not result in prosecution.
16. An action of law should not be equated to a game of chess. Indeed, the wife cannot rely on the sheer technicality that no rejoinder affidavit has been filed by the petitioners in criminal Writ Petition No. 822 of 2000. It is for the Court to consider the entire material and the attending circumstances to come to a right decision to be taken in the matter. The action cannot be permitted to be used by a party as a tool to derive sadistic pleasure in nailing his opponent.
17. On cumulative consideration that charge-sheets in both the cases have been submitted in Court setting the law on its course with regard to the alleged offences and that Professor F.A Ansari himself did not file any affidavit to support the contention of the wife designating the invigilation duty certificate in question to be forged and fictitious, we do not think it to be expedient in the interest of justice to accede to the prayer of Arsi Yusuf (wife) to take any action under section 340, Cr. P.C Hence, the applications under section 340, Cr. P.C are liable to be rejected.
Indiankanoon Version:Zeba Khalil and Ors Vs State of U.P and Ors on 18 Nov 2005 (IK Ver)
Casemine Version:Zeba Khalil and Ors Vs State of U.P and Ors on 18 Nov 2005 (CM Ver)
Citations : [2005 SCC ONLINE ALL 1164], [2006 ACC 54 354]
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Single judge bench of Allahabad High Court made pertinent comments on how not to interpret a provision of law.
From Para 6,
6. It is not disputed that the learned Magistrate had taken cognizance on the complaint filed by Dowry Prohibition Officer. Section 7(1)(b) of Dowry Prohibition Act bars taking cognizance of an offence under this Act except upon a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation. In this case undisputedly, the complaint was not filed by opposite party No. 2, or her parents or other relatives. Dowry Prohibition Officer has not been authorised by above section to file complaint. No doubt, Section 8B of Dowry Prohibition Act says that the State Government may appoint as many Dowry Prohibition Officer as it thinks fit and specified area in respect of which they shall exercise their jurisdiction and powers under this Act.
From Paras 8-11,
8. The learned Additional Sessions Judge has observed that though the Dowry Prohibition Officer was not authorised to file complaint, but he had power to collect evidence as may be necessary for the prosecution of persons committing offence under the Act and it appears that it was the intention of the Legislature to empower the District Dowry Prohibition Officer to move to the Court for prosecution of the person, who is found guilty of taking or demanding dowry. He further observed that if he was not empowered to file complaint for prosecution of guilty person, he cannot prevent the taking of dowry and his act of collecting evidence will go waste. In these circumstances, the Dowry Prohibition Officer has got power to collect evidence and also got powers to file complaint. The above observation of the learned Additional Sessions Judge shows that he acted beyond the scope of Section 7(1)(b) of the Act. If the Legislature actually intended to confer power of filing complaint on Dowry Prohibition Officer, it ought to have been mentioned in Section 7(1)(b) of the Act itself.
9. The power to file complaint, therefore, cannot be inferred from the analogy of the powers of Dowry Prohibition Officer enumerated in Section 8B. Anything which is not in the Act cannot be inserted by Courts. The Court does not possess law-making power. The Courts may interpret the law contained in the Act and not insert any fresh provision, which has deliberately not been incorporated by the Legislature. Therefore, the above observation of the learned Additional Sessions Judge that Dowry Prohibition Officer has got power to file the complaint is against the provisions of law.
10. The learned Additional Sessions Judge has further observed that Section 7(1)(b)(ii) and the Explanation to said section says that Court shall take cognizance of a complaint filed by a recognised welfare institution or organisation. The Harijan Welfare Department of the State of U.P. is a welfare institution and if its officer has filed complaint under the provisions of Dowry Prohibition Act, the Magistrate will take cognizance over it under Section 7(1)(b)(ii). This observation of the learned Additional Sessions Judge is also against the provisions of law. The complaint was not filed by Harijan Welfare Department allegedly a recognised welfare institution, but by Dowry Prohibition Officer. If the law requires that complaint should be filed by an institution, then it must be filed by institution and not by other Authority. It may be true that Dowry Prohibition Officer was appointed by Harijan Welfare Department, but that officer did not become the Department itself and no action has been taken by the Department, as there is no such indication in the complaint that it was filed by Harijan Welfare Department through Dowry Prohibition Officer. Therefore, above observations of the learned Additional Sessions Judge are against the provisions of law and cannot be accepted.
11. In the result it is clear that complaint was not filed by person enumerated in Clause (b) of Sub-section (1) of Section 7 of Dowry Prohibition Act and, therefore it was without authority. Therefore, the cognizance against the applicants on the complaint filed by unauthorised person could not have been taken. Therefore, there was legal bar for taking cognizance against the applicants and cognizance was wrongly taken. The prosecution of applicants on the complaint of unauthorised and incompetent person was nothing but abuse of process of law and on this ground the cognizance as well as proceedings arising out of it are liable to be quashed under the exercise of powers conferred under Section 482, Cr.P.C. Thus, the application succeeds.
Indian kanoon version:Yogesh Chhibbar Vs State of U.P. on 6 Dec 1999 (IK Ver)
Casemine Version:Yogesh Chhibbar Vs State of U.P. on 6 Dec 1999 (CM Ver)
Citations : [2000 ACR 1 65], [2000 ALLCC 40 459], [2000 RCR CRIMINAL 3 206], [2000 DMC 2 537], [2000 JIC 2 575], [1999 SCC ONLINE ALL 1527], [2000 ALL LJ 1053], [2000 CRI LJ 2849], [2001 HLR 1 676]
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Based on Sharad Birdhichand here and many other judgments, Allahabad High Court has set-aside the conviction and sentence of the appellants.Gyan Singh Shakya Vs State of UP on 08 Mar 2021
After discussion the law around converting one petition into one with different pleadings/prayers under Rule 17 of Order VI of the C.P.C., the division bench of Allahabad High Court held that under this rule, Court has power to allow amendment petitions to avoid multiplicity of suits, to do the substantial justice to parties.Preeti Vs Sandeep Asthana on 6 Sep 2017
Citations : [2017 ADJ 10 232], [2017 ALLWC 5 4646], [2017 ALR 125 133], [2017 ALR 125 397], [2017 ARC 3 853]
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Single-judge bench said that,
From Paras 64, 65 and 66
Anshu Goel and Anr Vs State of U.P and Anr on 16 Apr 2020
64. If anyone is involved in the most heinous social evil of dowry, I have no manner of doubt that law must be allowed to take it course with full swing and there should not be any sympathy, compassion or leniency for such person who is indulged in such crime but only on whims and caprice someone who is not accused of any such offence, should not be implicated and undergo an ordeal criminal trial merely for the reason that he or she is relative of the husband and every relative of the husband should be made to teach a lesson. After all, performance of marriage by itself is no offence and if any one is relative of one of the spouse who is alleged to be a guilty of offence of dowry, mere relationship should not be a reason to implicate such person in a criminal proceedings.
65. Hon’ble S.S. Nijjar, J. (as His Lordship then was) in Lakhwinder Singh Vs. State of Punjab (supra), dealing with slightly a similar matter and observed that it is generally seen that when any marriage goes in rough weather the tendency of bride is to insinuate as many members of the family of her husband as possible with the allegation of laying demand for dowry and also treating her with cruelty when their demand for dowry is not being fulfilled. Allegations of misappropriation of dowry are also made some times against those members of the family of the husband who do not have anything with the dowry which is the basic concern of the bride and bridegroom and at best parents of the bridegroom. If there is no entrustment of any article of dowry to anyone and the ingredients of definition of dowry under Section 2 of Act, 1961 are not satisfied, offence of Section 3/4 of Act, 1961 will also not be attracted.
66. In these circumstances, it cannot be said that offences under Section 3/4 of Act, 1961 against applicants are made out and, in my view, proceedings, if allowed against applicants will be nothing except but a gross abuse of process of law and ends of justice required that the same must be quashed against applicants.
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From Paras 6 and 7,
6. The above order was passed in revisional jurisdiction of the Sessions Judge. Obviously that jurisdiction was exercised Under Section 397, Cr.P.C. Under its provisions the Sessions Judge could pass an interlocutory order by directing “that the execution of any sentence or order be suspended….” It is, therefore, clear that in a revision, the Sessions Judge could, during the pendency of the revision, suspend either sentence or order against which the revision has been filed. In the present case there is no question of any sentence. There was only the order in question against which revision was filed. At best the said order could only be suspended during the pendency of the revision.
7. The question of suspending the order would only arise if it was still to be executed. If the order had already come into operation, there remained nothing to be suspended. In the present case it is undisputed fact that in pursuance of the order of the learned Magistrate, applicant Kamlesh Kumar had already executed the necessary bonds on the same date and had taken delivery of the said print of the film ‘Naseeb’. Accordingly there remained nothing which could be suspended.
Casemine Version:Kamlesh Kumar Vs Girish Kapoor and Anr on 12 Apr 1984
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Based on the landmark judgment from Supreme Court is here, Allahabad High Court held against the Love Jihad marriages in India.Noor Jahan Begum @ Anjali Mishra and Anr Vs State of UP and 4 Ors on 16 Dec 2014
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Many such Love Jihad marriages are listed here, for awareness purpose, as nothing can be done to such legally major ladies.
Again a fundamental rule to be followed who are seeking a writ of Mandamus from a High Court. First seek justice for the Concerned authority against whom the Writ is being prayed for. Once that stage is exhausted (successfully or otherwise), the litigant is good for filing the writ of mandamus.Saumitra Anand and 4 Ors Vs Registrar General High Court of Allahabad and 2 Ors on 27 Jul 2020
AP HC also held so in the case here.