Bombay High Court Weekly Round-Up: August 21 To August 27, 2023

Khairunisa Sheikh Chand v. Chandrashekhar Daulatrao Chincholkar & Ors. 2023 LiveLaw (Bom) 379

Asha Shivaji More v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 380

ABC v. XYZ 2023 LiveLaw (Bom) 381

Prakash Madhukarrao Desai v. Dattatraya Sheshrao Desai 2023 LiveLaw (Bom) 382

Archbishop Patriarch Of Goa Rev. Fr. Filipe Neri Ferrao v. State Information Commission 2023 LiveLaw (Bom) 383

Shamsher Ahmed Shaikh & Ors. v. Municipal Corporation of Greater Mumbai & Ors. 2023 LiveLaw (Bom) 384

Rahul S/o Sahdev Lokhande and Anr. v. State of Maharashtra 2023 LiveLaw (Bom) 385

Sudhir Dhar and Ors. v. State of Maharashtra 2023 LiveLaw (Bom) 386

Ranjeet Sampatrao Raskar & Ors. v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 387

Sangita Vilas Kiwade v. State of Maharashtra 2023 LiveLaw (Bom) 388

Ashim Kumar Bagchi v. Balaji Telefilms Limited & Ors. 2023 LiveLaw (Bom) 389

State of Maharashtra v. Madhuri Badrinarayan Gote 2023 LiveLaw (Bom) 390

 Jayendra Narandas Bhatia v. State of Maharashtra 2023 LiveLaw (Bom) 391

Vijay Choudhary v. state of Maharashtra and Ors. 2023 LiveLaw (Bom) 392

Astec LifeSciences Ltd. v. The Assistant Commissioner of Income Tax 2023 LiveLaw (Bom) 393

Reports/Judgments

Two Children Limit For Panchayat Members Not Meant To Discourage Re-Marriage, Excludes Step-Children: Bombay High Court

Case Title: Khairunisa Sheikh Chand v. Chandrashekhar Daulatrao Chincholkar & Ors.

Citation: 2023 LiveLaw (Bom) 379

A panchayat member with more than two biological children could be disqualified under the Maharashtra Village Panchayats Act, however, the member’s step children wouldn’t be a determining factor for the same, the Bombay High Court held.

The court said that the objective of the Section was to disqualify a panchayat member responsible for the birth of more than two children. Therefore, a woman cannot be disqualified because her spouse has two children from his previous wedlock.

According to Section 14(1)(j-1) of the Act - No person shall be a member of a panchayat, or continue as such, who has more than two children unless they were born before the cut-off date.

A division bench of Justices AS Chandurkar and Vrushali Joshi said, “It is not the object of the said provision to discourage re-marriage of a spouse who has more than two children from his/her previous wedlock.”

Can Victim Appeal Against Acquittal Or Award Of Lesser Sentence By Appellate Court? Bombay High Court Refers Issue To Larger Bench

Case Title: Asha Shivaji More v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 380

The Bombay High Court referred to a larger bench the question of whether an appeal by the victim against the judgment of acquittal passed by the appellate court is maintainable.

Justice Modak while dealing with two criminal appeals filed by the victims against acquittal of the accused by the sessions court in appeal, observed,

“I think forum for this (victim’s) Appeal is correlated to forum for an Appeal provided to the Accused against the judgment of conviction. If such forum is not there, how an Appeal against the judgment of acquittal passed by the Appellate Court will be maintainable?. So also, there is a controversy when the Appellate Court convicts the accused, whether victim can prefer an Appeal under Section 372 proviso of the Code (for inadequate compensation/for higher sentence) ?”

Trial Court Didn’t Conduct Inquiry Into Actual "Giving And Taking" Of Child In Adoption: Bombay HC Quashes Order Granting 2-Yr-Old’s Custody To Biological Parents

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 381

The Bombay High Court quashed a civil court’s order directing a couple to hand over custody of a two-year-old adopted child to his biological parents and directed the civil court to decide their suit seeing a declaration that the adoption is valid, within six months.

Justice Sharmila Deshmukh held that the trial court failed to conduct a comprehensive inquiry into the actual "giving and taking" of the child in adoption. The court highlighted that evidence needed to be presented to establish the actual giving and taking of the child with the intent to transfer the child from one family to another.

Underlining the sensitivity of the matter, the court said that there will be no extension of time for the final adjudication of the suit, and until then the child, who has been with the adoptive parents since he was two days old, will continue to remain with them.

Cheque Holder's Failure To Record Loan In Books Not Ground To Dismiss Complaint U/S 138 NI Act: Bombay High Court

Case Title: Prakash Madhukarrao Desai v. Dattatraya Sheshrao Desai

Citation: 2023 LiveLaw (Bom) 382

The Bombay High Court recently held that failure of the cheque holder to record a loan given to a cheque drawer in books/Income Tax Returns will not by itself render the loan unenforceable under section 138 of the Negotiable Instruments Act (NI Act).

A division bench of Justice AS Chandurkar and Justice Vrushali V Joshi observed that the existence of a legally enforceable debt/liability in favour of the cheque holder is presumed under Section 139 of the Act, and the accused has the onus to rebut such presumption.

The court further held that violation of section 269-SS of the Income Tax Act, 1961 (IT Act) which prohibits the receipt of more than Rs. 20,000/- in cash also would not render the transaction unenforceable under Section 138 of the NI Act.

Church Patriarchal Tribunal Not A ‘Public Authority’ Under RTI Act: Bombay High Court

Case Title: Archbishop Patriarch Of Goa Rev. Fr. Filipe Neri Ferrao v. State Information Commission

Citation: 2023 LiveLaw (Bom) 383

The Archbishop Patriarch of Goa in his capacity as the Patriarchal Tribunal or Church Tribunal is not a “public authority” under Section 2(h) of the Right to Information Act, 2005 (RTI Act), the Bombay High Court held.

The decision was passed in an eight years old case regarding information on the Archbishop Patriarch of Goa’s appointment. He adjudicates private law matters of Roman Catholics like annulment of marriage.

Justice MS Sonak reasoned that only a body established or constituted by a law made by the Parliament or the State Legislature would fall under RTI, however the Patriarchal Tribunal couldn’t be called an authority constituted by the parliament or state legislature.

The court noted that certain laws like the Canon Law made under the Portugal Parliament for its colonies was granted limited recognition under the Goa, Daman and Diu (Administration) Act, 1962. But this recognition didn’t mean they were laws constituted under the Parliament or State Legislature.

Municipal Commissioner Duty Bound To Provide Fit And Convenient Place For Disposal Of Dead: Bombay High Court

Case Title: Shamsher Ahmed Shaikh & Ors. v. Municipal Corporation of Greater Mumbai & Ors.

Citation: 2023 LiveLaw (Bom) 384

The Bombay High Court expressed its concerns regarding the shrinking space for burials in cemeteries in Mumbai and reminded the Municipal Commissioner & Maharashtra Government of their duty to provide such spaces.

The court was hearing a PIL which alleged that all the three spaces in the city originally earmarked by the Municipal Commissioner for cemeteries were either deleted from reservation or being used for some other purpose.

“For a Municipal body as also the State Government, there cannot be any engagement more urgent than finding appropriate space for burial of dead,” the bench of Justices Devendra Kumar Upadhyay and Arif Doctor observed in their order.

The bench added that under Section 436 of the Mumbai Municipal Corporation Act, 1888, it was mandatory upon the Commissioner to find other convenient places for the purpose of burials.

Sarpanch Removed Due To No-Confidence Motion Can Contest By-Elections To Fill Vacancy Caused By Own Removal: Bombay High Court

Case Title: Rahul S/o Sahdev Lokhande and Anr. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 385

The Nagpur bench of the Bombay High Court held that a Sarpanch who got removed from the post due to a no-confidence motion can contest a by-election conducted to fill the resulting vacancy.

A division bench of Justice AS Chandurkar and Justice Vrushali V Joshi observed that there is no provision in the Maharashtra Village Panchayats Act, 1959 prohibiting such a Sarpanch to contest the by-election necessitated due to their own removal.

Ensure Proper Maintenance Of Case Diaries Without Lame Excuses: Bombay High Court To Maharashtra DGP

Case Title: Sudhir Dhar and Ors. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 386

Expressing strong displeasure over police disregard towards proper maintenance of case diaries, the Bombay High Court directed the Director General of Police (DGP), Maharashtra to ensure that his directions about proper maintenance of case diaries are followed by police officers without any lame excuses.

The division bench of Justice AS Gadkari and Justice Shivkumar Dige, while dealing with a writ petition filed by eight persons accused of insulting a woman's modesty, noted that the police had maintained the case diary in loose sheets disregarding Section 172 of the CrPC as well as the DGP’s directives.

The bench on highlighted that this was not the first time issues with case diaries had arisen, with multiple cases showing police stations not adhering to the proper procedures for maintaining case diaries under Section 172 of the CrPC. The court expressed frustration over the fact that despite having previously brought such cases to the attention of the Director General of Police (DGP) of Maharashtra, no improvement has been observed.

Administrator Appointed U/S 452A Of Maharashtra Municipal Corporation Act Can Exercise All Powers Of The Body Corporate U/S. 5: Bombay High Court

Case Title: Ranjeet Sampatrao Raskar & Ors. v. State of Maharashtra & Ors.

Citation: 2023 LiveLaw (Bom) 387

The Bombay High Court disposed of two PILs challenging proposed de-merger of Uruli Devachi and Phursungi villages from the Pune Municipal Corporation (PMC), and establishment of a separate Municipal Council. The PILs claimed that the state government did not follow the process of consultation with the corporation as per section 3(3)(a) of the Maharashtra Municipal Corporation Act, 1949.

The court held that an Administrator appointed under Section 452A of the Act, possesses the authority to exercise all functions and duties entrusted to the body corporate under Section 5 of the Act.

Advocate General of Maharashtra Dr. Birendra Saraf told the bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor that the state government will rectify any legal deficiency found in the process of consultation with the Corporation before issuing the final notification modifying PMC limits.

Bombay HC Upholds Woman's Conviction For Murder Of 3-Yr-Old, Attempt To Drown 3 Other Children Over Money Lending Dispute With Their Grandmother

Case Title: Sangita Vilas Kiwade v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 388

The Bombay High Court upheld the conviction of a 51 years old woman who murdered her neighbour's 3-year-old grandchild and attempted to kill three other grandchildren by throwing them in a canal over repayment of an illegal loan.

A division bench of Justice Revati Mohite Dere and Justice Gauri Godse observed that throwing a three-year-old child into the canal is so imminently dangerous that the appellant had knowledge that it would cause his death.

The appellant, Sangita Vilas Kiwade, was convicted under sections 363 (kidnapping), 302 (murder), and 307 (attempt to murder) of IPC for abducting four children and pushing three of them into a canal, leading to the demise of the youngest of them – a three-year-old. She is also convicted under section 32B(b) of the Bombay Money ending Act for operating illegal money lending business.

No Stay At 11th Hour: Bombay High Court Refuses To Stall Release Of Ayushmann Khurrana Starrer 'Dream Girl 2'

Case Title: Ashim Kumar Bagchi v. Balaji Telefilms Limited & Ors.

Citation: 2023 LiveLaw (Bom) 389

The Bombay High Court refused to stay the release of the Ayushmann Khurrana starrer Dream Girl 2. The film is produced by Ekta Kapoor’s Balaji Telefilms.

Justice Riyaz Chagla passed the order in a Commercial IPR suit filed by writer-director Ashim Kumar Bagchi wherein he alleged that makers are passing off his registered script as their own.

Bagchi sought an interim injunction on the release of the film. However, the court observed the interim plea was filed only on August 18, 2023 and the respondent must be given an opportunity to respond.

“It is well settled that at the eleventh hour, films should not be prevented from their release. An opportunity is required to be given to Respondent / Defendant to file their reply to the Interim Application.”

Application To Become Approver Cannot Be Withdrawn Once Pardon Is Granted: Bombay High Court

Case Title: State of Maharashtra v. Madhuri Badrinarayan Gote

Citation: 2023 LiveLaw (Bom) 390

The Nagpur bench of the Bombay High Court recently held that an accused cannot withdraw application to become a witness for the prosecution (approver) against co-accused once the application is accepted and pardon is already granted.

Justice GA Sanap explained that once an accused becomes an approver, she must be examined as a prosecution witness, and pardon can be withdrawn only as per section 308(1) of the CrPC if the prosecutor, after examination, certifies that she did not adhere to the terms of her pardon.

“Section 308(1) Cr.P.C. would show that after acceptance of pardon in view of the scheme of Sections 306 to 308 the approver has no choice or option or a right to not press or withdraw the application made to become an approver… in order to relegate the approver to the position of the accused the public prosecutor must certify that in his opinion the approver has, either by wilfully concealing anything essential or by giving false evidence, has not complied with the conditions on which the tender was made. Only after such certificate being given by the public prosecutor, the pardon tendered to the approver can be withdrawn”, the court held.

Bombay High Court Orders Release Of Man 'Detained Unnecessarily' In Rehabilitation Centre At 'Behest Of His Wife'

Case Title:  Jayendra Narandas Bhatia v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 391

The Bombay High Court ordered the release of one Pratap Jivani, who had been unlawfully detained at his wife’s behest at the Amulya Prem Foundation Rehabilitation Centre in Bhiwandi.

A division bench of Justice Revati Mohite Dere and Justice Gauri Godse, in a habeas corpus writ petition filed by Jivani’s cousin Jayendra Bhatia, observed that no medical papers showing that he needed to be admitted in the rehabilitation centre were produced.

“It is clear that Pratap was unnecessarily detained at the said rehabilitation centre at the behest of his wife…We are not shown any medical papers of Pratap to show that he was required to be admitted to the rehabilitation centre. Hence, in view of the aforesaid, we permit Pratap to go alongwith the petitioner. The aforesaid representatives of the rehabilitation centre assured us that henceforth they will not detain any person in such manner without following due process of law. Statement accepted.”

Bombay High Court Quashes Sexual Harassment FIR Against Company's Human Resource VP

Case Title: Vijay Choudhary v. state of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 392

The Bombay High Court has quashed a sexual harassment FIR against the Vice President Human Resources (HR) of an insurance firm observing improvements in the complainant’s statement to the police.

The division bench headed by Justice AS Gadkari cited guideline 6 & 7 in the State of Haryana & Ors. vs Bhajan Lal & Ors judgement.

The court noted that the woman wrongly claimed the company didn’t take action on her complaints as the ICC conducted two enquiries against the petitioner.

“Perusal of record clearly indicates that, the FIR lodged by the Respondent No. 2 is filled with improvements and suppression of material facts which are on record, as noted above and according to us is lodged with mala fide intention, only to harass the Petitioner.”

Bombay High Court Quashes Reopening Of Assessment After 4 Years In The Absence Of Concealment By Assessee

Case Title: Astec LifeSciences Ltd. v. The Assistant Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 393

The Bombay High Court quashed the reopening of the assessment after 4 years in the absence of concealment by the assessee.

The bench of Justice K. R. Shriram and Justice Firdosh P. Pooniwalla observed that where the assessee has fully disclosed all the material facts, it is not open for the Assessing Officer to reopen the assessment on the ground that there is a mistake in the assessment. What is recorded is that the petitioner wrongly claimed certain deductions to which he was not entitled. There is a well-known difference between a wrong claim made by an assessee after disclosing all the true and material facts and a wrong claim made by the assessee by withholding the material facts fully and truly. It is only in the latter case that the Assessing Officer would be entitled to proceed under Section 147 of the Income Tax Act.

Other Developments

AI Assisted Judgement Translations, Automatic Electronic Service And More: Bombay High Court Gets Tech Upgrade

The Bombay High Court took a slew of decisions leading to digital upgradation of the High Court’s processes and functioning, including developing its own software to digitize court records and setting up an “AI Assisted Legal Translation Advisory Committee” to translate important Supreme Court and High Court judgements in Marathi using AI. The announcements came in the form of a series of circulars issued by the Bombay High Court.

Bombay High Court Collects Database Of 40.5K Institutional Litigants, To Commence Automatic E-Service

In a major step towards automatic electronic services in the judicial process the Bombay High Court has become the first and the only High Court to include country-wide data of all institutional litigants.

According to a new circular, High Court and District court’s Case Information System (CIS) will now have a database of information relating to over 40,500 institutional litigants, country-wide like government departments, constitutional bodies, commissions, institutions, banks, universities, educational institutions etc.