# Arvind Upadhyay v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 978
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-08
- **Case number:** Application U/S 482. No. 37040 of 2016
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-upadhyay-v-state-of-u-p-anr-47425
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Domestic Violence Act, 2005

Intervention
application
-
question
of
maintenance of a married woman and her small
daughter - husband of a woman (applicant and
opposite party no.2 herein) not available - her
mother-in-law and father-in-law, who are like
her
father
and
mother
become
their
responsibility - question of peaceful life, safety
and education of a girl child.

HELD:- Commissioner of Police to file his
affidavit on or before next date and appear
before this Court for explaining as to why the
9 All Arvind Upadhyay Vs. State of U.P. & Anr.
979
applicant is not traceable by the Police, despite
the fact that a first information report about the
missing of the applicant has been lodged and
various orders have been passed by this Court
for production of the applicant before the Court
- On the next date, the District Judge as well as
the Commissioner of Police shall inform the
Court
of
the
similar
cases,
where
the
maintenance has been awarded by the courts
but the same has not been executed, as
summons have not been served till date. (Para -
10,11,13)

Application u/s 482 Cr.P.C. pending. (E-7)

## Text

978 INDIAN LAW REPORTS ALLAHABAD SERIES
Advocate
General,
Shri
A.K.
Sand,
Additional Government Advocate for the
State that the trial has almost concluded
and the statement of the accused under
Section 313 Cr.P.C. was made before the
trial court on 03.08.2021. Thereafter the
matter is liable to be posted for final
hearing on 06.08.2021.

67.
 Learned
counsels
for
the
applicants do not dispute the contention on
behalf of the State that since the trial has
concluded and all evidences have been
tendered, the cause of instituting this
Application U/S 482 Cr.P.C. does not
survive.

68. Similarly on merits in Application
U/S 482 Cr.P.C No. 14919 of 2020 (Daha
Desai and 12 others vs. State of U.P. and
another) it is submitted by Shri M. C.
Chaturvedi, learned Additional Advocate
General, Shri A.K. Sand, Additional
Government Advocate for the State that the
trial
has
almost
concluded
and
the
statement of the accused under Section 313
Cr.P.C. was made before the trial court on
03.08.2021. Thereafter the matter is liable
to
be posted
for
final
hearing
on
10.08.2021.

69
. Learned
counsels
for
the
applicants do not dispute the contention on
behalf of the State that since the trial has
concluded and all evidences have been
tendered, the cause of instituting this
Application U/S 482 Cr.P.C. does not
survive.

70. The applicants can take up various
objections on facts, law and evidence
before the learned trial court.

71. In wake of the preceding
discussion,
these
Applications
Under
Section 482 Cr.P.C. are being disposed of
with the direction to the learned trial court
to
decide
the
trial
proceedings
expeditiously.

72. The Applications U/S 482 Cr.P.C.
are disposed of finally.
----------
(2021)09ILR A978
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2021

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482. No. 37040 of 2016

Arvind Upadhyay ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Mrs. Alka Singh, Sri Vipin Kumar Singh

Counsel for the Opposite Parties:
A.G.A., Sri Anil Kumar Chaudhary, Sri Ved
Prakash Shukla, Smt. Priyanka Upadhyay (In
Person)

Counsel for the Intervener:
Sri Rajiv Upadhyay, Sri Rahul Misha

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Domestic Violence Act, 2005

Intervention
application
-
question
of
maintenance of a married woman and her small
daughter - husband of a woman (applicant and
opposite party no.2 herein) not available - her
mother-in-law and father-in-law, who are like
her
father
and
mother
become
their
responsibility - question of peaceful life, safety
and education of a girl child.

HELD:- Commissioner of Police to file his
affidavit on or before next date and appear
before this Court for explaining as to why the
9 All Arvind Upadhyay Vs. State of U.P. & Anr.
979
applicant is not traceable by the Police, despite
the fact that a first information report about the
missing of the applicant has been lodged and
various orders have been passed by this Court
for production of the applicant before the Court
- On the next date, the District Judge as well as
the Commissioner of Police shall inform the
Court
of
the
similar
cases,
where
the
maintenance has been awarded by the courts
but the same has not been executed, as
summons have not been served till date. (Para -
10,11,13)

Application u/s 482 Cr.P.C. pending. (E-7)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. On the matter being taken up, Mr.
J.K. Upadhyay, learned A.G.A. assisted by
Mr. Gaurav Pratap Singh, brief holder for
the State and Mrs. Priyanka Upadhyaya,
opposite party no.2 (in person) are present.
Mr. Rajiv Upadhyay, Advocate holding
brief of Mr. Rahul Mishra, Advocate who
has filed an intervention application on
behalf of one Laxmi Prasad Upadhyay,
who happens to be the father of the
applicant is also present. However, neither
Mrs. Alka Singh and nor Mr. Vipin Kumar
Singh, Advocates who have filed the
present application on behalf of the
applicant and also appeared before the
Court earlier, are not present in the Court
today, even in the revised reading of the
list.

2. At this stage, this case has turned
into a strange case, in which, being wife i.e.
opposite party no.2 filed a case against her
husband i.e. the applicant herein under the
provisions of Protection of Women from
Domestic Violence Act, 2005 before the
court below and the court below passed
order dated 4th November, 2016 directing
the husband to provide a separate living
room to wife and daughter as also to give
Rs. 1000/- for their maintenance. On the
application filed by wife i.e. opposite party
no.2, the court below passed another order
dated 8th November, 2016 that if the
husband i.e. applicant does not comply the
order dated 4th November, 2016, the
Station House Officer, Sarnath shall ensure
the compliance of the said order. Against
both the orders, the present application has
been filed by the husband i.e. applicant,
who obtained an interim order dated 5th
December, 2016 ex parte, whereby the
orders dated 4th and 8th November, 2016
were stayed till the next date of listing.
Thereafter the wife i.e. opposite party no.2
appeared in the present case to defend her
case in the present application. When the
Court asked the learned counsel for the
applicant to ensure production of the
applicant before the Court, it has been
informed by the learned counsel for the
applicant that he is missing since 9th April,
2017 and a first information report about
his missing has also been lodged on 16th
May, 2018 at Police Station-Sarnath,
District-Varanasi. Learned counsel for the
applicant has further informed the Court
that now he has no instruction on behalf of
the applicant, as he is not in his contact.
Thereafter Court passed various orders
directing the learned counsel for the
applicant as well as District Police
Varanasi to ensure the production of the
applicant before the Court but the applicant
has not been produced before this Court
either by the learned counsel for the
applicant or by the District Police,
Varanasi.

3. In compliance of the order of the
Court dated 28th March, 2021, an affidavit
sworn by Mr. Vikrant Vir, Deputy
Commissioner of Police, Varuna Zone,
Varanasi has been filed today in the Court
on behalf of the State, which is taken on
980 INDIAN LAW REPORTS ALLAHABAD SERIES
record. In paragraph nos. 4 to 6, it has been
stated as follows:

"4. That in compliance of the
order passed by this Hon'ble Court the
earlier Incharge of Police D.I.G./Senior
Superintendent of Police, Varanasi has
constituted a team for the search of
applicant namely Arvind Upadhyay vide
order dated 26.02-2021.

5. That the team constituted vide
order dated 26.2.201 has with great effort
tried to search the whereabouts of the
applicant on various dates and places,
which has been entered in G.D. record and
the same can be produced before this
Hon'ble Court as and when the Court
wishes to peruse, however, the entire gist
with regard to the efforts made by the
searching team is being placed before this
Hon'ble Court by way of progress report
dated 02.04.2021 through the answering
respondent. A Photostat copy of the
progress report dated 02.04.2021 is being
annexed
herewith
and
marked
as
ANNEXURE-2 to this affidavit.

6.That the police team constituted
earlier is still searching the applicant
namely Arvind Upadhyay with serious
efforts and the same will be produced as
and when recovered without wasting any
time in compliance of the orders of this
Hon'ble Court."

4. This Court is sorry to record that
the affidavit filed on behalf of the District
Police of Varanasi is too flimsy to be
accepted by this Court. The story made out
in the affidavit from the side of Police is
highly improbable, which is nothing else
but a scene of drama. A person, who is
missing since 9th April, 2017 and whose
missing report has been lodged on 16th
May, 2018, is not traceable inspite of all
the efforts of the police. The same appears
to be fishy as stated by the wife of the
applicant i.e. opposite party no.2 herein. In
today's modern era, where the policemen
have got all the facilities, yet the police is
not able to find out a person, despite
several orders of this Court. This creates a
doubt in the mind of a common ordinary
person. Either the police can say that they
have not got full powers or facilities or they
are not able to find out the person, who is
missing since 9th April, 2017 and this case
should be given to some other agency.

5. The opposite party no.2, wife of the
applicant, who is present, states before this
Court that she has disclosed to the Police
regarding whereabouts of the applicant but
the Police reaches the place after giving
space to the applicant to flee from there. It
has also been brought to the knowledge of
the Court that several cases, wherein
maintenance has been awarded by the
orders of the court, are pending and even
notices have not been served upon the
parties due to which women are suffering,
as in the present case, which is the best
example of harassment faced by the women
even after passage of nearly five years from
the date of orders in her favour.

6. An Intervention Application has
been filed by Mr. Rahul Mishra, Advocate
on behalf of one Laxmi Prasad Upadhyay,
who happens to be the father of the
applicant. In the affidavit filed in support of
the intervention application, it has been
stated that it is only because of the
applicant's mental imbalance induced due
to long standing acrimony, differences,
disputes with opposite party no.2 that he
went missing and could not be found till
date despite Gumshudagi Report lodged in
the year 2017 itself. It is further stated that
9 All Arvind Upadhyay Vs. State of U.P. & Anr.
981
neither he nor any of his relatives have any
knowledge about the whereabouts of the
applicant-Arvind Kumar Upadhyay and
therefore, he and his wife who are ailing
senior citizens may be rescued from the
police authorities, who are harassing and
victimising
them
on
the
pretext
of
complying with various orders of the
Hon'ble
Court.
In
the
intervention
application, it has also been stated that
during the pendency of the present
application, the applicant-Arvind Kumar
Upadhyay suffered with mental imbalance
and was subjected to treatment at Mental
Hospital, Varanasi and while he was
receiving treatment, he left the house and
went missing since 9th April, 2017, true
copies of medical treatment from Mental
Hospital, Varanasi has been enclosed as
Annexure-1 to the affidavit accompanying
the Intervention Application.

7. To the averments made in the
affidavit accompanying the Intervention
Application, opposite party no.2 submits
before this Court that the applicant is not
missing anywhere, he has deliberately left
his house and is hidden somewhere. The
father and other family members of the
applicant have also helped him only in
order to disobey the orders of the court
below dated 4th November, 2016 and dated
8th November, 2016. Opposite party no.2
further submits that after the orders of the
court below dated 4th and 8th November,
2016, father of the applicant (Intervenor
before this Court) has deliberately sold his
properties only for harassing opposite party
no.2 and her female child as well as to
disobey the orders of the court below and
this Court. Opposite party no.2 further
submits that the averment made in the
intervention application that the applicant
was suffering from some mental imbalance
for which his treatment was going on in
Mental Hospital Varanasi, is also incorrect,
because the medical prescriptions, which
have been enclosed along with the affidavit
accompanying the intervention application,
do not establish as to the exact mental
ailment of the applicant. Lastly, opposite
party no.2 submits that the conduct of the
father of the applicant (Intervenor) and
other family members of the applicant is
doubtful.

8. Prima facie, the submissions made
by opposite party no.2 appears to be
correct.

9. Opposite party no.2 may file
response,
if
any,
to
the
aforesaid
intervention application on or before the
next date.

10. In this case, there is a question of
maintenance of a married woman and her
small daughter in these hard days. Now
when the husband of a woman (applicant
and opposite party no.2 herein) is not
available, then her mother-in-law and
father-in-law, who are like her father and
mother, also become their responsibility.
After marriage, a woman's husband and inlaws are everything. In this case, there is a
question of peaceful life, safety and
education of a girl child, who is none other
but grand-daughter of the parents of the
applicant. In-laws of a woman or grand
parents of a girl child cannot leave her
daughter-in-law or grand daughter alone if
the husband of said woman or father of the
said girl child, is missing.

11. In view of the present facts and
circumstances of the case, this Court is left
with
no
option
but
to
direct
the
Commissioner of Police, Varanasi to
appear before this Court for explaining the
fair conduct of the Police of District
982 INDIAN LAW REPORTS ALLAHABAD SERIES
Varanasi. However, seeing the intricacies,
this Court constrains itself in passing such
orders without affording one opportunity to
such a Senior Officer of the Police
Department at Varanasi. This Court,
therefore, directs the Commissioner of
Police, Varanasi to file his personal
affidavit categorically explaining as to why
the applicant is not traceable by the Police,
despite the fact that a first information
report about the missing of the applicant
has been lodged on 16th May, 2018 at
Sarnath Police Station, Varanasi and
various orders have been passed by this
Court for production of the applicant before
the Court. In the affidavit it shall also be
disclosed
about
the
prima
facie
observations made by this Court herein
above. In the affidavit, it shall also be
indicated as to how many days, the
applicant shall be traceable by the Police.
The affidavit shall be filed on or before the
next date i.e. 29th September, 2021.

12. Seeing this pitiable predicament
of a woman, who has been grappling from
pillar to post and getting hoodwinked by
multifarious
impediments,
which
are
purportedly for the objective of harbouring
the applicant from the shrewdness of this
Court, excogitated by the family of the
husband, is an archetype illustration of the
loopholes in way of our criminal justice
system. To counteract
and proscribe
kindred occurrences in future and to
safeguard the right to maintenance of
wives, this Court directs the Commissioner
of Police, Varanasi also to find out
properties/whereabouts of the applicant as
well as in-laws of opposite party no.2
promptly and after searching the same, in
any one of the property/whereabout, he
shall ensure that opposite party no.2 and
her daughter are permitted to stay, so that
the orders of the court below dated 4th and
8th November, 2016 may be complied
with, as interim order granted earlier by
this Court staying the operation of the same
has not been extended and same stood
discharged earlier. He shall also take
assistance of opposite party no.2 i.e. wife
of the applicant in tracing him as well as
finding out the properties of the applicant
and his father.

13. On the next date, the District
Judge,
Varanasi
as
well
as
the
Commissioner of Police Varanasi, shall
inform the Court of the similar cases,
where the maintenance has been awarded
by the courts but the same has not been
executed, as summons have not been
served till date.

14. On earlier occasions, the Court
has been informed that the applicant is not
missing and he is in contact with his
counsels, who are not present in the Court
today. On the last occasion also i.e. 1st
March, 2021, learned counsels for the
applicant were not present.

15. The appearance of Mrs. Alka
Singh and Mr. Vipin Kumar Singh,
Advocates,
who
have
filed
their
vakalatnama on behalf of the applicant in
the present application and also appeared
earlier, before the Court on his behalf, are
necessarily required in the present strange
case.

16. The Secretary, Allahabad High
Court Bar Association, Allahabad shall
ensure that Mrs. Alka Singh (A/A-0060/16)
and
nor
Mr.
Vipin
Kumar
Singh,
Advocates, (En. No.-04687105, AOR No.-
A/V.-0438/12, Mobile No. 9415630302),
resident of 148A, N.B. H.C., Allahabad,
appear in the Court on the next date i.e.
29th
September,
2021.
9 All U.P.S.R.T.C., Lko. & Ors. Vs. Shubash Chandra Gautam & Anr.
983

17. Put up this case on 29th
September, 2021 at 02:00 p.m.

18. A copy of this order shall be
provided to the learned A.G.A., who shall
communicate the same to the District
Judge, Varanasi, Commissioner of Police,
Varanasi as well as to the Secretary,
Allahabad High Court Bar, Association for
necessary compliance by Wednesday i.e.
15th September, 2021.

19. The party shall file computer
generated copy of this order downloaded
from the official website of the High Court,
Allahabad, self attested by the party
concerned along with a self attested
identity proof of the said person(s)
(preferably Aadhar Card) mentioning the
mobile number(s) to which the said Aadhar
Card is linked.

20. The concerned Court/Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court, Allahabad
and shall made a declaration of such
verification in writing.
----------
(2021)09ILR A983
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE DINESH PATHAK, J

Special Appeal No. 25 of 2021
&
Special Appeal Defective No. 225 of 2021
& others

State of U.P. & Ors. ...Petitioners
Versus
The C/M Sri Durga Ji Purva Madhyamik
Balika Jamin Rasoolpur, Azamgarh & Anr.
 ....Respondents

Counsel for the Petitioners:
Sri M.C. Chaturvedi, Sri Rajiv Singh

Counsel for the Respondents:
Sri Kunwar Bhaskar Parihar, Sri R.K. Ojha

A. Service Law - UP Basic Education Act,
1972 - Section 12 - UP Junior High Schools
(Payment of Salaries of Teachers and other
Employees) Act, 1978 - Appointment on the
post of Headmaster/ Assistant Teacher -
Cancellation - Inquiry set up by the
Commissioner - Jurisdiction - Held, report
that was forwarded by the Commissioner,
though may not form the basis for the
action as directed, but it could very well be
treated
as
an
information
justifying
initiation of an enquiry and consequential
action that is otherwise permissible under
the statutory scheme - Held, further the
learned Single Judge while allowing the writ
petitions has not left it open for the
educational authorities empowered under
the 1972 Act and 1978 Act to examine the
validity of the appointments under the
provisions of the Act - Division Bench
modified the writ order. (Para 18 and 19)
B. Service Law - Appointment on the post of
Headmaster/Assistant Teacher - Approval
granted - Power of Review, when can be
exercised - Held, there is no power of
review of the order of approval once
accorded - But, it is well settled, where an
appointee does not possess the minimum
qualifications prescribed by a statutory rule,
the appointment would be void and can be
questioned at any stage - Similarly, where
appointments are obtained by a procedure
not known to law or by following a
procedure which is in flagrant violation of
the
statutory
provisions,
it
can
be
questioned at any stage. (Para 18)
C. Rule of Law - Power under law must be
exercised in its true spirit - Held, when
the administration is governed by a