Bombay High Court Weekly Roundup: February 7 To February 13, 2022

Case Title: Ms Moonline Express Cargo Pvt Ltd vs UoI through Divisional Railway Manager

Citation: 2022 LiveLaw (Bom) 30

Observing that an entity cannot be blacklisted from participating in future contracts without being allowed a proper opportunity to defend itself and without following the due process of law, the Bombay High Court granted interim relief to a company in a contract with the Railways.

The court held that the railway officials had not given the petitioner a fair opportunity to defend his stand by failing to mention the possibility of debarment in the show-cause notice.

2. Subsequent Reconstruction Of File Records Doesn't Change Original Filing Date: Bombay High Court

Case Tile: Mahadev Sadhu Ingale vs The State Of Maharashtra & othrs

Citation: 2022 LiveLaw (Bom) 31

The limitation period for considering an appeal (reference) against a land acquisition order must be calculated from the date an application was first filed and not from the date a missing appeal copy was reconstructed and submitted by the applicant, the Bombay High Court held.

The court set aside the Deputy Collector's (Sangli) order rejecting an application to refer the acquisition proceedings to a competent court under Section 18 of the Land Acquisition Act, 1894. It observed that merely because the documents were not traceable in the Deputy Collector's office and the petitioner had to reconstruct them, it didn't mean the application was filed later.

3. 'Employer Entitled To Carry On Business In Company's Best Interest': Bombay HC Grants Pre-Arrest Bail In Employee's Abetment To Suicide Case

Case Title: Dr. Surendra Manjrekar vs State of Maharashtra

Citation: 2022 Live Law (Bom) 32

The Bombay High Court granted anticipatory bail to former Director of a company accused of abetting the suicide of an employee, observing that all the allegations seemed to be part of "normal course of business" and that a company was "entitled to carry its business in the manner that was in the best interest of the company."

In the order, Justice Sarang Kotwal observed that the deceased, Nikhil Joshi, was taking treatment for stress management and was in a disturbed state of mind.

"Though, there are allegations that he was disturbed because of stress in the company, the company was entitled to carry its business in the manner that was in the best interest of the company. That by itself would not mean that the bigger targets were given and meeting was arranged, so that the deceased would commit suicide," the court observed.

4. "Mujhse Bahut Badi Galti Huwi Hai": Bombay High Court Cites Extra-Judicial Confession To Uphold Conviction as also Commute Death Penalty Of 23 Yr Old

Case Title: The State of Maharashtra vs Mohammad Aabed Mohammad Ajmir Shaikh

Citation: 2022 LiveLaw (Bom) 33

An extra-judicial confession made voluntarily, free from threat or inducement, carries the presumption of truth, Bombay High Court observed adding that depending on the facts of the case, a confession doesn't need to be presumed as weak piece of evidence.

Other considerations that weighed in with the bench were that the accused brought forth his crime by confessing to his friend, the accused's family neither tried to destroy evidence nor made attempts to conceal the accused. They also did not try to win over the friend to whom the extra judicial confession was made. In fact, the brother helped the police arrest the accused.

5. 'Parrot-Like Testimonies Of 6 Eye Witnesses, Humanly Impossible': Bombay High Court Acquits 20 Persons In Murder Case

Case Title: Komal Babusingh Ade and others vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 34

The Bombay High Court, Nagpur Bench, acquitted 20 persons in a murder case, citing identical and parrot-like version of all the star prosecution witnesses, calling it as "humanly impossible".

A division bench of Justices Sunil Shukre and Pushpa Ganediwala, observed in the judgement, "It's difficult to believe that six eyewitnesses deposed in an identical fashion with each and every minute detail. In our considered opinion, it's humanly impossible. Not a single independent witness (except police and medical witness) was examined even when it is not the case that the incident occurred in isolation or during late night hours."

6. Due Caution Must Be Exercised By Appellate Court Before Reversing Acquittal Orders By Trial Courts: Bombay High Court

Case: State of Maharashtra v. Gulab Dattu Patil & Ors.

Citation: 2022 LiveLaw (Bom) 35

Even if the appellate court is inclined to re-evaluate and re-appreciate evidence on record to take a different approach, such interference is not justified when the trial court's view is a possible view, not marred with perversity or unreasonableness and thus, the appellate Courts must exercise a great deal of caution before disturbing the factual findings recorded by the trial court, Bombay High Court held.

7. Customs Duty Circular Not Applicable To 'Finalised' Benefits Under SFI Scheme: Bombay High Court Quashes Rs. 27.4 Crore Demand Notice To Essar Group

Case Title: Essar Shipping Limited Vs. Union of India & Ors.

Citation: 2022 LiveLaw (Bom) 36

The Bombay High Court set aside a demand notice issued by the Joint Director-General of Foreign Trade (DGFT) against Essar Shipping Ltd, though the court upheld the validity of the circular under which the demand was made. The court held that the circular was restricted only to those cases where the claims were "being finalised" and therefore would not apply to Essar's case as it was already finalised by the concerned authorities.

The notice and the reminder which were set aside by the HC sought Rs 27.40 crore from the company comprising customs duty and interest on the basis of the benefits already availed and utilised on account of its entitlement under the Served from India (SFI) Scheme.

Other Important Updates

1. Minor's Deposition Should Be Completed Expeditiously, Bombay High Court Seeks Explanation From Trial Judge On Delay

The Bombay High Court said that in cases under the Protection of Children from Sexual Offences Act, where the victims are minor, the trial court should complete the deposition of the victim as expeditiously as possible.

"In cases where the victims are minor, POCSO Courts should atleast complete the examination of the victim/prosecutrix, as expeditiously as possible, lest the victims who are minor forget the incident, due to passage of time, giving advantage to the accused," Justice Revati Mohite Dere observed while hearing a case where the trail was expedited by HC in October 2019, but only one witness was examined by the court, who was not the victim in the case.

2. Bhima Koregaon | Vernon Gonsalves, Varavara Rao & Arun Ferreira File Review Application In Bombay High Court, Seek Default Bail

The Bombay High Court directed the National Investigation Agency to respond to a review application filed by three accused in the Bhima Koregaon–Elgar Parishad Case seeking bail and factual corrections in the order refusing them default bail.

In an order passed on December 1, 2021, the HC had denied default bail to the petitioners and five of their co-accused on the ground that they had not filed their default bail applications within the stipulated period, which is after 60 days of their arrest and before filing of the charge sheet.

All the eight who were denied relief claimed that denial of bail was on account of a factual error; as just like Sudha Bharadwaj who was grnated bail in the same HC judgement, they had also filed default bail applications in the trial could within the stipulated period.

3. Sanatan Sanstha's Virendrasinh Tawde Is A Threat To Society: CBI Opposes 's Bail Before Bombay High Court In Narendra Dabholkar Murder

The intention of the mastermind in rationalist Narendra Dabholkar's murder case, Virendrasinh Tawde, was to eliminate 'anti-hindus' and people opposed to Sanatan Sanstha's beliefs and customs, the Central Bureau of Investigation told the Bombay High Court while opposing Tawde's bail application in the 2013 murder case.

Tawde had allegedly conspired and hired sharp shooters to execute Dabholkar over ideological differences. The CBI affidavit says Tawde and his associates followed the teachings of 'Kshatra Dharma Sadhana,' advocated by Sanatan Sanstha, which was against alleged Evil Doers, Anti-Hindus, Dharamadrodhis and Durjans.

"The crime gave a feeling that those who do any act which the accused persons and the Sanatan Sanstha/Hindu Jan Jagruti Samiti doesn't like or tolerate, would be dealt with in a brutal manner. Such a feeling is more than sufficient to threaten the security of the people and the Nation. It had a terrorizing effect on the society," CBI's affidavit read.

4. Justice Pushpa Ganediwala Of Bombay High Court Resigns

Justice Pushpa Ganediwala, judge of the Bombay High Court (Nagpur Bench) resigned on Februrary 10, 2022, two days before her extended tenure as an Additional Judge was set to expire. The Supreme Court collegium did not recommend the extension of her term.

She became a district judge in 2007 and was elevated as an additional judge of the Bombay High Court on February 13, 2019, for a term of two years. In January 2021, Justice Ganediwala delivered two judgments relating to child sex abuse, which attracted widespread criticism for taking the proposition that direct skin to skin contact was necessary for constituting the offence of sexual assault under the POCSO Act. Following the controversy, the Supreme Court collegium revoked the recommendation made by it on January 20, 2021 to make her a permanent judge of the Bombay High Court.

A month later, in February 2021, the Collegium recommended the extension of her term as an additional judge for one more year, instead of proposing to make her a permanent judge.

5. 'Will Popularize Alcohol Consumption': PIL In Bombay HC Challenges Maha Cabinet Decision Permitting Sale Of Wine In Super Markets

A PIL filed in the Bombay High Court challenged the Maharashtra Cabinet's recent decision to permit sale of wine in supermarkets and walk-in stores through 'self-purchase'. The petition filed by Sandip Kusalkar, who runs NGO for empowering the youth, said Maharashtra Government's decision was contrary to its de-addiction policy and a Government Resolution (GR) issued on August 17, 2011 to curb proliferation addictions in youth.

The decision will popularize and familiarize the alcohol and alcohol consumption in masses of the state. "This very objective of the Cabinet Decision is defeating the aim and object of de-glamorizing the alcohol consumption and negating the status acquired for alcohol consumption under the De- addiction policy mentioned in the said GR."

6. 'Playgrounds Rare In Mumbai' : PIL In Bombay High Court Against Any Construction At Shivaji Park Amid Demands For Lata Memorial

A PIL in the Bombay High Court challenged construction of any memorial in the future at the iconic Shivaji Park ground and for guidelines to protect the park in the wake of a political tussle over erecting late singing legend Lata Mangeshkar's memorial there.

Soon after Mangeshkar's demise on February 6, and cremation at Shivaji Park, BJP leaders in opposition demanded her memorial to be built there. However, the State Cabinet led by the ruling Shiv Sena decided that her memorial would be an international Music Academy in Kalina.

The academy would be built at an approximate cost of Rs 1200 crore, and spread across 2.5 acres. The PIL was filed before the State Cabinet's decision on the music academy.

7. Permitting 50% Capacity In Cinemas But Only 50 Wedding Guests Discriminatory: Nagpur Banquet Owners Association Moves Bombay High Court

The Bombay High Court issued notices to the Maharashtra Government, Collector and Municipal Commissioner of Nagpur on a plea alleging discrimination against wedding hall owners by restricting the number of guests to just 50 in Nagpur District.

The petition filed by Mangal Karyalaya & Lawn Association alleged that while guests at social gatherings were restricted, cinema halls, theatres, malls, restaurants were permitted to carry on their businesses with 50% capacity for the doubly vaccinated.

"This is an unreasonable classification resulting in impermissible discrimination," the petitioners represented by Advocate Shyam Dewani for the petitioners said. Imposing additional curbs and restrictions without any rationale is arbitrary and violative of Article 14, 19(1)(g) & Article 21 of the Constitution.