Begin typing your search above and press return to search.
Top Stories

100 Significant Bombay High Court Judgments Of 2021 In Civil, Constitutional And Criminal Law

Sharmeen Hakim
1 Jan 2022 4:22 AM GMT
100 Significant Bombay High Court Judgments Of 2021 In Civil, Constitutional And Criminal Law
x

As the year comes to an end Live Law brings to you a News Digest of 100 Significant Cases from the Bombay High Court in Civil, Constitutional and Criminal Law 1. Bombay High Court Bans Propagation For Sale Of Items Claiming Miraculous or Supernatural Powers via Television Advertisement [Rajendra v. UOI & Ors.] The Bombay High Court (Aurangabad Bench) held that sale...

As the year comes to an end Live Law brings to you a News Digest of 100 Significant Cases from the Bombay High Court in Civil, Constitutional and Criminal Law

1. Bombay High Court Bans Propagation For Sale Of Items Claiming Miraculous or Supernatural Powers via Television Advertisement [Rajendra v. UOI & Ors.]

The Bombay High Court (Aurangabad Bench) held that sale of items, claiming that they possess miraculous or supernatural powers via television advertisement, is illegal. The bench of Justice Tanaji Nalawade and Justice Mukund Sewlikar has also held that the TV channel, telecasting such advertisement, would be liable under the provisions of the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013.

The Petitioner, through his plea, stated that he came across advertisements on TV channels which were propagating that there were special, miraculous and supernatural properties/qualities in Hanuman Chalisa Yantra, which the advertiser was selling. It was further stated that this was a false propaganda and the propaganda was made to exploit the persons, who are superstitious by nature and to exploit them. The Court accordingly issued directions so that such broadcasting of advertisements is stopped immediately.

2. Media Trial During Investigation Interferes With Administration Of Justice; Amounts To Contempt Of Court : Bombay High Court [Nilesh Navalakha & Ors. v. Union of India]

A Division Bench comprising Chief Justice Dipankar Dutta and Justice GS Kulkarni held that media trial during criminal investigation interferes with administration of justice and hence amounts to 'contempt of court' as defined under the Contempt of Courts Act, 1971. The Court also held that media reports interfering with criminal investigation, before the initiation of a trial, can amount to interference with administration of justice.

The bench rejected the argument of fair reporting under Section 3 should be available even for reports about investigation. This argument was made on the interpretation that 'judicial proceeding' as defined under Section 3 should cover proceedings from the stage of registration of FIR.

Further, the Court issued a slew of directions to regulate media reporting of an ongoing criminal investigation. The order was passed in the backdrop of alleged 'media trial' in actor Sushant Singh Rajput's death case.

The bench directed all complaints regarding a programme's content to be handled by an authorized officer of the Central Government under the Cable TV Network Act without involving a private body.

3. Conviction In A Non-Compoundable Case Can't Be Set Aside By HC u/s 482 CrPC On The Ground Of Compromise Except In Rarest Of Rare Cases: Bombay HC (FB) [Saumaya Sanjay Khandare & Anr. v. State of Maharashtra]

In a significant judgment, a Full Bench of the Bombay High Court (Nagpur Bench) held that the High Court while exercising the inherent powers under Sec. 482 CrPC cannot set aside the order of conviction of accused in a non-compoundable case merely on the ground that the accused and complainant had arrived at a compromise at a post-conviction stage.

However, the Bench comprising Justices N.B Suryawanshi, Vinay Joshi and AS Chandurkar said the same can be done only in the rarest of the rare cases depending upon the facts and circumstances of each case. The observation came in the wake of a reference made by a division bench of the High Court after a conflict of decisions was observed in three different judgments pronounced by division benches of the High Court. The question of reference came into existence after a division bench of the High Court was of the view that exercise of power under Sec. 482 of CrPC for quashing and setting aside the conviction order must be rarely exercised and the power must be invoked in exceptional circumstances only.

4. "She Chose Female Gender As Her Self-Perceived Gender Identity": Bombay HC Allows Transgender To Contest Polls As Woman Candidate [Anjali Guru Sanjana Jaan v. The State of Maharashtra, through its Principal Secretary, Rural Development Department]

Noting that Transgender Persons (Protection of Rights) Act, 2019 permits a transgender person to have a right to be recognised and such transgender is permitted to have a right to self-perceived gender identity, the Bombay High Court (Aurangabad Bench) on January 2, 2021 allowed a transgender to contest village panchayat polls as a Woman candidate.

A Bench of Justice Ravindra Ghuge allowed the plea filed by Anjali Guru Sanjana Jaan, who challenged an order passed by the Returning Officer who rejected her nomination for the village panchayat polls.

The Bench remarked, "In the present case, the petitioner has opted for the female gender as her self-perceived gender identity and makes a solemn statement, which is recorded as the statement made to the Court, that henceforth in her lifetime she would not switch over to the male gender driven by opportunism and would continue to opt for the female gender, in future, save and except if there is a reservation provided for transgender in public life."

5. Demand Of Outstanding Loan Amount From Defaulting Borrower Not Abetment To Suicide: Bombay High Court [Rohit S/o Nawanath Nalawade v. State of Maharashtra]

"The demand of outstanding loan amount from the person who was in default in payment of loan amount, during the course of employment as a duty, at any stretch of imagination cannot be said to be any intention to aid or to instigate or to abet the deceased to commit the suicide," a Bench of Justices VM Deshpande and AS Kilor held.

The Division Bench observed that the allegations against the accused in the case were only to the effect that he demanded outstanding loan amount from the deceased, which was a part of his duty being an employee of the Finance Company. It thus held that it is necessary for the prosecution to at least prima facie establish that accused had an intention to aid or instigate or abet the deceased to commit suicide.

6. Writ Jurisdiction Cannot Be Extended Against The Rejection Of Nomination Papers At An Intermediate Stage Of Gram Panchayat Elections: Bombay HC [FB] [Karmaveer Tulshiram Autade & Ors. v. State Election Commission & Ors.]

A full bench of the Bombay High Court comprising Chief Justice Dipankar Datta, Justice AS Gadkari and Justice GS Kulkarni held that a writ petition under Art. 226 challenging the rejection of nomination papers by the Returning Officer cannot be entertained as it is not a step in facilitating the election process. The Court was hearing a reference made to a larger bench after the division bench of the High Court was dealing with two conflicting opinions of the Court expressing different opinions with regards to the maintainability of petitions.

The bench also clarified that Art. 243-O(b) of the Constitution places a bar on the HC for entertaining writ petitions under Art. 226 against impugned orders passed by the Returning Officer rejecting the nomination papers.

8. Pressing Breasts Without Disrobing Not "Sexual Assault" As Per POCSO Act But Offence Under Sec 354 IPC: Bombay High Court [Satish v. State of Maharashtra]

A single bench of Justice Pushpa Ganediwala (Nagpur Bench) held that groping a child's breasts without 'skin-to-skin contact' would amount to molestation under the Indian Penal Code but not the graver offence of 'sexual assault' under section 8 of the Protection of Children from Sexual Offenses (POCSO) Act.

The judgement was severely criticized as POCSO is a gender-neutral legislation unlike sections about rape in the IPC. The observation was made while modifying the trial court's order that held a 39-year-old man guilty of sexual assault for groping a 12-year-old girl and removing her salwar. The court sentenced the man under Section 354 IPC (outraging a woman's modesty) to one-year imprisonment for the minor offence.

In another controversial judgment, Justice Ganediwala held that holding a minor girl's hands and opening the zip of pants will not fall under the definition of "sexual assault" under the Protection of Children from Sexual Offences Act 2012 but "sexual harassment" under the IPC.

The Supreme Court recently reversed both these controversial judgments by holding that 'skin to skin' contact is not necessary for POCSO offence, and what mattered was if the touch was made with 'sexual intent', whether it was done over clothes or not.

9. Epidemic Diseases Act Cannot Be Exercised To Transfer An Officer In Disregard Of Transfer Act: Bombay High Court [State Of Maharashtra v. Dr.Ashok Ramchandra Anand]

The Epidemic Diseases Act, 1897 (ED Act) cannot be used to transfer a government employee in violation of laws that would govern his transfer, a division bench of Chief Justice Dipankar Dutta and Justice GS Kulkarni observed while denying relief to the Director of Medical Education and Research, TP Lahane.

The Court held that allowing the Director, a competent officer under ED Act, to transfer a government servant disregarding the safeguards provided to him under the Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (Transfer Act), would make such a transfer arbitrary and violative of Article 14 of the constitution (equal protection of the law).

10. Take Precautions To Avoid & Prevent Disclosure Of Rape Victim's Identity Even Indirectly: Bombay High Court Issues Directions For Media, Public & Courts

The Bombay High Court (Aurangabad bench) issued additional guidelines to restrain print/electronic media as well general public from using social media, publishing information related to rape victims that could "directly or indirectly" disclose their identity.

This includes non-disclosure of victim's parents and relative's identity, relation of the accused with the victim, residential/occupational/work address of the accused and the victim and the village at which the victim and/or accused live etc.

A bench of Justices TV Nalawade & MG Sewlikar passed the order on a rape victim's mother's petition seeking that her daughter's name should not be disclosed by the print and electronic media.

The guidelines are in addition to SC's directions in Nipun Saxena and another Vs. Union of India and others reported in (2019) 2 SCC 703.

11. Rail Accident Claim Can't Be Denied On Account Of Boarding Wrong Train Mistakenly: Bombay High Court Directs Rly To Pay 8 Lakh To A Victim's Mother [Smt. Munnibai v. Union of India]

A Bench of Justice Anuja Prabhudessai ruled that one cannot be branded as an unauthorised train passenger merely because one mistakenly boards a wrong train. It observed thus while directing railways to pay ₹8 lakh as compensation to one Munnibai Chaube whose son died due to injuries sustained in accidental fall from a running train.

12. Cancerous To The Justice Delivery System If Hostile Witnesses Believe They Are Beyond The Rule Of Law: Bombay High Court [Saraswati v. State of Maharashtra]

A division bench of Jusitces Ravindra Ghuge and BU Debadwar observed that the courts cannot "turn a blind eye to the menace of hostile witnesses," while directing the trial court to take action against five witnesses whose evidence resulted in acquittal of a 75-year-old woman.

It said that even though respect for the law cannot be guaranteed by the threat of legal action, it has become necessary to send a "loud and clear" message to the society that hostile witnesses shall not be pardoned.

13. "Consensual Sex Between Minors A Grey Area Under POCSO Act": Bombay High Court [Arhant Janardan Sunatkari v. State of Maharashtra]

A single judge Bench of Justice Sandeep K. Shinde observed that enactment of POCSO Act has been a "significant and progressive step" in securing children's rights, however, incidents of consensual sex between minors has been a grey area under the law as minor's consent is not valid in the eyes of law.

The observation was made while granting bail to a 19-year-old convicted under Sec. 4 and 6 of the POCSO Act and IPC for repeatedly raping his minor cousin. The court, while looking at the unique facts of the case observed that during the course of investigation, the victim under her Section 164 CrPC statement had disclosed that "it was a consensual act, not once but at least 4-5 times."

14. Authorities Should Avoid Viewing Action Against Religious Trust As Against God; Need To Have Secular Mind, Scientific Approach : Bombay High Court [Namdev Sahebrao Garad v. State of Maharashtra & Ors.]

A division bench, comprising Justices TV Nalawade and MG Sewlikar noted that government authorities, including police officers and judicial officers should work with a 'secular mind' and avoid the general fear of inviting trouble in matters involving religious feelings. The Court added that authorities need to have a 'scientific approach' and should avoid viewing statutory action against a religious trust as action against God.

The court accordingly directed the police to register a crime for the offences of conspiracy, cheating, misappropriation, breach of trust and also those under the Black Magic Act, 2013 against the trustees of the Jagadamba Devi Sarvajanik Trust, Mohote Ahmednagar.

15. Default Bail- Period Of 90/60 Days Will Commence From Date Of Remand Only, Not From Any "Unlawful Custody" Prior To It: Bombay High Court [Gautam P. Navlakha v. National Investigation Agency]

The time spent in "unlawful custody" cannot be included while computing the 90 days period prescribed for grant of default bail under section 167(2) of the Criminal Procedure Code (CrPC), the Bombay High Court held while rejecting senior journalist-activist Gautam Navlakha's petition for bail.

The petitioner was arrested twice in the Elgar Parishad-Maoist links case. The first time on August 28, 2018 and the second time after he surrendered on April 14, 2020. He was placed under house arrest the first time, following an order of the Delhi High Court and released after his arrest was declared illegal, in October.

A division bench of Justices SS Shinde and MS Karnik held that the 34 days Navlakha spent under house arrest between August 28, 2018 - October 10, 2018, cannot be used to calculate his total detention period, especially since his arrest, as well as the magistrate's transit remand, was found to be illegal by the Delhi HC.

16. Strained Relations Between Rhea Chakraborty & Sushant's Sisters Not A Ground To Quash FIR Against Priyanka Singh : Bombay High Court [Priyanka Singh & Anr. v. State of Maharashtra & Ors]

The Bombay High Court has observed that strained relations between actor Rhea Chakraborty and late actor Sushant Singh Rajput's sister Priyanka Singh cannot be a ground to quash the charges pertaining to abetment of suicide and criminal conspiracy levelled by Chakraborty against Singh, at that stage.

The division bench of Justices SS Shinde and MS Karnik also refused to accept the contention raised by Priyanka's lawyers that the FIR against her be quashed as it was "malicious and more in the nature of counter blast as the same was filed at the instance of respondent No.2 (Chakraborty) who is an accused in the FIR registered at the instance of the late actor's father."

17. Wife's Habit Of Chewing Tobacco Not Sufficient To Grant A Decree Of Divorce: Bombay High Court

Dismissing an appeal filed by a husband against the Family Court's judgment and decree dismissing the husband's plea for divorce, the Bombay High Court (Nagpur Bench) ruled that wife's habit of chewing tobacco alone was not sufficient to grant divorce.

Noting that if the marriage was dissolved, the children would suffer a great loss, the Bench of Justices Pushpa V. Ganediwala and AS Chandurkar ruled that no case was made out by the appellant/husband to disturb the well-reasoned findings of the trial Court.

18. Making Unfounded Allegations/Complaints Against Spouse With A View To Affect His/Her Job Amounts To Causing Mental Cruelty: Bombay High Court [Thalraj v. Sau. Jyoti]

Noting that it appeared from the conduct of the husband that in one way or the other he intended to prejudice the service of the wife, the Bombay High Court (Nagpur Bench) upheld the Judgment and Order passed by the Family Court, Nagpur granting decree of divorce in favour of the wife.

19. Bombay High Court Grants 6 months Temporary Bail to UAPA Accused Varavara Rao On Medical Grounds [Dr. P Varavara Rao v. NIA & Anr.]

An undertrial accused of serious offences under the Unlawful Activities Prevention Act (UAPA) can be granted bail purely on grounds of sickness and advanced age, if it is found that his continued incarceration is endangering his life, the Bombay High Court held in its order granting temporary bail to Bhima Koregaon-Elgar Parishad accused P V Varavara Rao.

A division bench of Justices SS Shinde and Manish Pitale granted bail on medical grounds to the 81-year-old awaiting trial since August 28, 2018. The High Court observed that it was a "genuine and fit case" for granting relief in view of the advanced age of the petitioner and inadequate facilities at Taloja jail hospital.

20. 'No Likelihood Of Trial Being Completed In Near Future' : Bombay High Court Upholds Bail Granted To Youth Accused Of Joining ISIS [NIA v. Areeb Ejaz Majeed]

A division bench of Justices SS Shinde and Manish Pitale upheld bail granted to an alleged Islamic State recruit from India, Areeb Majeed and disposed of an appeal by the National Investigation Agency (NIA). The Court cited Majeed's prolonged incarceration of six years and slow pace of the trial to uphold his bail.

The 27-year-old man from Kalyan argued his own bail application. He was granted bail by the Special Court on March 17, 2020. The order was subsequently stayed after the NIA approached the HC in appeal.

21. Medieval Notion Of Wife Being The Property Of Husband Still Persist In Majority Mindset, Refusal To Give Tea Not Sudden Or Grave Provocation : Bombay HC [Santosh Mahadev Atkar v. State of Maharashtra]

Observing that the medieval notion of a wife being the 'property of the husband to do as he wishes, still persists,' a single judge Bench of Justice Revati Mohite Dere refused to show any leniency to a man convicted for culpable homicide not amounting to murder. The court rejected the husband's contention that his wife, by refusing to make tea, offered a grave and sudden provocation for him to strike her. "Ludicrous," "clearly untenable and unsustainable," the court observed on the argument.

22. Civil Appeal May Be Filed Against Family Court's Order Under Domestic Violence Act: Bombay High Court [Dr. Sandip Mrinmoy Chakrabarty v. Reshita Sandip Chakrabarty]

A Division Bench comprising Justices RD Dhanuka and VG Bisht held that reliefs canvased under Sections 19 to 22 of the Domestic Violence Act were predominantly of civil nature and there was no infirmity in filing a civil appeal against an order passed under the said provisions.

The observation was made with respect to a case whereby two separate proceedings filed by a wife, one for divorce under the Special Marriage Act and another against restrain order under the Domestic Violence, were clubbed, and heard and decided by a Family Court.

23. "Silence Of Constitutional Functionary Highly Detrimental To Democracy"; Bombay High Court Sets Aside Notifications Reserving Wards In Goa Municipal Councils, Censures EC [Romaldo Fernandes v. State of Goa & Ors.]

A Division Bench of Justices Bharati Dangre and MS Sonak at Goa quashed reservations made in Municipal Councils of Sanguem, Mormugao, Mapusa, Margao and Quepem. It directed the state to issue a fresh notification ensuring reservations for women and other communities to ensure that the process was completed by April 15, 2021.

It came down heavily upon the Commission stating that it was bound to apply Constitutional principles rather than rushing with the elections. "The silence on part of the constitutional functionary, according to us, is highly detrimental to the democratic concept of this country. We say nothing more".

24. Maharashtra Govt Ban On School Fee Hike Prospective; Won't Apply To Schools Which Fixed Fee Before May 8, 2020: Bombay HC [Association of Indian Schools & Ors. v. State of Maharashtra]

A division bench of Chief Justice Dipankar Datta and Justice GS Kulkarni asked Maharashtra state government to deal with complaints regarding fee hike in schools on a case-to-case basis, while disposing off a clutch of petitions by private unaided schools challenging a Government Resolution from May 8, 2020. The GR barred private unaided schools from increasing their fees for the academic year 2020-21 in view of the pandemic.

It left open the question about validity of such a resolution being passed by the government, but clarified that the GR was prospective in nature and would not affect cases where the fee was fixed and accepted before the GR. The order implied that the GR was still in force.

25. Registration Of Copyright Not Mandatory For Seeking Protection Under Copyright Act: Bombay High Court [Sanjay Soya Pvt. Ltd. v. Narayani Trading Company]

A single judge Bench of Justice GS Patel held that registration of copyright was not mandatory under the Copyright Act, 1957 for seeking injunction against an infringement. It emphasised that Section 51 of the Copyright Act, which speaks of infringement of copyright, does not restrict itself to works that have been registered with the Registrar of Copyright.

The provision was also compared to Section 27 of the Trade Marks Act which creates a conspicuous bar on institution of any proceeding in regard to infringement of an unregistered trade mark.

26. Daughter Has Every Locus To Question Validity Of Father's Second Marriage: Bombay High Court [Nayana M. Ramani v. Fizzah Navnitlal Shah]

A Division Bench of Justices VG Bisht and RD Dhanuka ruled that a daughter could present a petition challenging the validity of her parent(s)' second marriage. It interpreted clause (b) of the explanation appended to Section 7 to hold that a daughter has every locus to bring in question the validity of her father's marriage.

The Bench pronounced judgment in an appeal against a Family Court's dismissal of the young girl's petition against her (appellant) father's second wife. The petition questioned the validity of the respondent's marriage to the appellant's father. Her father, a wealthy industrialist, married the respondent after the death of the appellant's mother.

27. PMLA- Even If Predicate Offence Is Compromised, Compounded, Quashed, ED's Investigation Is Not Affected Or Wiped Away: Bombay High Court [Babulal Verma v. ED]

A single judge Bench of Justice AS Gadkari held that the Enforcement Directorate could continue investigation into cases of money-laundering even after investigation into the base/scheduled offences were closed.

It ruled to the effect stating, "Once an offence under the PMLA is registered on the basis of a Scheduled Offence, then it stands on its own and it thereafter does not require support of Predicate/Scheduled Offence. It further does not depend upon the ultimate result of the Predicate/Scheduled Offence. Even if the Predicate/Scheduled Offence is compromised, compounded, quashed or the accused therein is/are acquitted, the investigation of ED under PMLA does not get affected, wiped away or ceased to continue."

28. "Court Is Not A Pedantic School Master" – Bombay High Court Dismisses BVG's Plea Challenging Civic Body's 'No-Blacklister' Condition In Hospital Tender [BVG India Ltd. v. The State of Maharashtra & Ors.]

A tender condition disallowing a contractor from participating in the process again because his work was previously terminated, would not amount to blacklisting, a division bench of Chief Justice Dipankar Datta and Justice GS Kulkarni held while rejecting a petition by mechanised housekeeping major Bharat Vikas Group (BVG India Ltd).

It ruled that the Navi Mumbai Municipal Corporation (NMMC) was entitled to impose such a condition as the "terms of invitation to tender" were not open to judicial scrutiny and the condition was neither illegal nor arbitrary.

29. Setting Out Two Separate Prayers For Injunction, One For Infringement And Other For Passing Off A Singularly Unwise Practice: Bombay High Court [Hindustan Unilever Ltd v. An Opposing Party]

The High Court called for a halt to the practice of seeking separate reliefs of injunction for passing off and infringement when pleadings were presented in respect of infringement. Describing the practice as singularly unwise, Justice Gautam Patel remarked, "I would venture to suggest as a matter of law that the operative injunction order should only be as an injunction without a restriction specifying infringement or passing off".

30. Merely Executing Notarized Document Purporting To Adoption Deed Does Not Give A Right To Child Custody: Bombay High Court [Kripal Amrik Singh & Anr. v. State of Maharashtra & Ors.]

A Bench of Justices SS Shinde and Manish Pitale refused permission to a couple to take custody over a two-year-old child on the strength of a "notarised adoption deed". It ruled, "We are of the opinion that by merely executing a notarized document purporting to be an Adoption Deed, the petitioners cannot claim that they have a right to hold custody of the girl-child."

The petitioner claimed to be the child's adoptive parents and sought a writ of habeas corpus after the child was taken away by the Child Welfare Committee (CWC). The CWC in turn submitted that it received a communication from Childline informing that a woman was unwilling to take care of her newly born child and she had decided to give the child up for adoption. By the time the CWC took cognisance of the matter and directed the biological mother to appear before the Committee, the woman had already handed the child over to the petitioners by a notarised adoption deed, it was found.

31. Developer Not Paying 'Transit Rent' For Months A 'Growing Social Injustice'; Single Default Sufficient To Terminate Agreement: Bombay High Court [Rajawadi Arunodaya Co-op Hsg Soc Ltd. v. Value Projects Pvt Ltd]

A single bench of Justice Gautam Patel held that even the slightest delay in project completion or payment in rent was sufficient to warrant the termination of a developer's contract. The court observed that in matters of redevelopment, which were in the realm of private law, there was no such thing as 'substantial compliance.'

"The slightest delay in project completion, unless specifically accepted by the society, and even one single default in payment of transit rent or other dues is actually sufficient to warrant a termination. There is no such thing in these matters as 'substantial compliance'. That is not the principle of obligations in the realm of private law," the order stated.

32. No concept of "suspect" in CrPC, only an accused can be investigated – Bombay High Court Admits Arnab Goswami's Petition and Directs Thee Days Prior Notice Before Coercive Action [ARG Outlier Media Pvt. Ltd. & Anr. v. State of Maharashtra & Ors.]

A division bench of Justices SS Shinde and Manish Pitale admitted Republic TV and Arnab Goswami's petition challenging Mumbai police's investigation in the Television Rating Points scam, and granted Goswami protection from arrest. It directed the police to give him an advance notice of three days in case they decide to take any coercive action.

In the interim order the bench observed that prima facie under the CrPC there is no such concept of "suspect" and that investigation and proceedings can be undertaken only against accused persons. Therefore, the police prima facie couldn't have investigated him by referring to a clause in the charge sheet filed against others where the owners of Republic TV were cited as suspects.

The court also framed certain questions to be decided at a later stage about entertaining a quashing of FIR petition when the petitioner is not named an accused. And if writ petitions can be entertained on the grounds of serious malafides alone.

33. Centre's Order Reducing Oxygen Supply Hit Maharashtra As A Bolt From Blue : Bombay High Court Directs Restoration Of Earlier Quantity [Court on its own motion v. Union of India and Ors]

During the second wave of Covid-19 in the country, the Bombay High Court at its principal seat along with its benches at Aurangabad, Nagpur and Goa passed a slew of orders on the management of the crisis in the State.

In this particular order, a division bench of Justices Sunil Shukre and SM Modak at the Nagpur Bench held an urgent late night hearing to ensure uninterrupted supply of Oxygen to city hospitals.

It questioned the Ministry of Health and Family Welfare for reducing the supply of oxygen to Maharashtra from the Bhilai Plant (Chhattisgarh) despite the State bearing the load of 40% Covid-19 patients in India, and directed immediate restoration of supply.

It also pulled up the State Government for not complying with its earlier order directing to supply 10,000 vials of Remdesivir, an anti-viral drug, to hospitals treating Covid-19 patients in the city.

34. Bombay High Court Directs CBI To Conduct Preliminary Inquiry Into Corruption Allegations Against Maharashtra Home Minster Anil Deshmukh [Param Bir Singh S/o Hoshiyar Singh v. The State of Maharashtra & Ors.]

The Chief Justice's bench directed a preliminary CBI enquiry in to corruption allegations against Maharashtra Home Minister Anil Deshmukh observing that it involved issues about the very faith of citizens in the functioning of the police department.

The bench said it was ordering the enquiry to instil public confidence and safeguard the fundamental rights of the citizens. It further observed that the court couldn't be a mere spectator.

"Thus, when high officials are likely to be involved and a question of public confidence in the impartial working of the State agencies arises, the writ court in exercise of its jurisdiction under Article 226 of the Constitution is certainly not powerless to order such inquiry and investigation by the CBI."

35. "Extreme or Harsh Point Of View Not Hate Speech": Bombay High Court Reiterates The Ingredients Of Section 153A IPC [Sunaina Holey v. State of Maharashtra]

"The right to express one's views is a protected and cherished right in our democracy. Merely because the point of view of the Petitioner is extreme or harsh will not make it a hate speech as it is only expressing a different point of view, a division bench of Justices SS Shinde and MS Karnik observed while quashing an FIR against Navi Mumbai resident Sunaina Holey.

Holey was booked u/s 153A (promoting enmity between different groups on the grounds of religion) of the IPC for posting a video along with a comment on migrant workers gathered outside Bandra Masjid, in Mumbai, at the peak of the nationwide lockdown on April 14, 2020. In the video, a man shouted that Covid-19 pandemic is not an act of God but has been brought by India's Prime Minister. The bench observed that Holey's intent behind reposting the video with a comment was only to criticise that man's perspective.

37. Maharashtra Govt Decides To Explore Home Vaccination For Bed-Ridden Without Centre's Nod

After passing several orders, asking the State and Centre to consider the plight of immobile citizens, the Maharashtra government began a home vaccination drive for the bed ridden, without the Centre's nod. Today thousands of bed-ridden patients have been successfully vaccinated under the State's civic administration.

After the State came up with a policy for vaccinating the bedridden, the bench disposed of the PIL filed by two advocates seeking door-to-door immunisation for the elderly above 75 years, the disabled and immobile.

38. Bombay High Court Directs Trial Court To Redact References On Victim's Identity In Tarun Tejpal Judgment [The State Of Goa vs Tarun Jit Tejpal]

A single judge Bench of Justice SC Gupte directed the District and Sessions Court which tried the sexual assault case involving Tarun Tejpal to redact references relating to the victim's identity while uploading the acquittal order on its website.

In her 527-page judgement, Special Judge Kshama Joshi extensively commented on the woman's non-rape victim like behaviour and faulty investigation to grant Tejpal the benefit of doubt. The judge also disclosed the victim and the victim's husband's identities in the judgment.

39. "Prisoners Have A Right To Their Medical Records Under Article 21: Bombay High Court Says While Hearing Sudha Bharadwaj's plea

The Bombay High Court ruled that prisoners had a right to their medical records under Article 21 of the Constitution of India, and prison officials should provide the information, on request.

Medical records would include test results and medicines prescribed, the bench of Justices SJ Kathawalla and SP Tavade said. The court was hearing a petition seeking medical attention and release of sixty-year lawyer-activist Sudha Bharadwaj, undertrial in the Bhima Koregaon-Elgar Parishad Case.

40. GST On Intermediaries : Bombay High Court Delivers Split Verdict On Constitutionality Of Section 13(8)(b) IGST Act [Dharmendra M. Jani v. Union of India & Ors.]

A Division Bench delivered a split verdict on the Constitutionality of Section 13(8)(b) of the IGST Act, which imposes GST liability on services provided by intermediaries to persons located outside India. While Justice Ujjal Bhuyan held the provision to be unconstitutional, Justice Ahuja held otherwise.

As per Section 13(8)(b) of the Integrated Goods and Services Tax Act, the place of supply of intermediary services is deemed as the location of the supplier of the services. As a result of this deeming provision, the services given by intermediaries like agents, brokers etc. to overseas clients are brought under tax liability. The export of service by an intermediary would be treated as intra-state supply of services under section 13(8)(b) read with section 8(2) of the IGST Act rendering such transaction liable to payment of Central Goods and Services Tax (CGST) and State Goods and Services Tax (SGST).

41. 'Wrong Caste Certificate Deprives Genuine Persons Of Benefits' : Bombay High Court Cancels 'Fraudulent' Caste Certificate Of MP Navneet Kaur Rana [Anandrao Vithoba Adsul v. State of Maharashtra & Ors.]

Observing that Amravati MP, Navneet Kaur-Rana had committed 'systematic fraud', a bench comprising Justices RD Dhanuka and VG Bisht cancelled her caste certificate and the Caste Scrutiny Committee's (CSC) 2017 order validating her "false" claim of belonging to the 'Mochi' Scheduled Caste. The Court directed Rana to pay Rs. 2 lakh as costs to the Maharashtra Legal Services Authority and gave her six weeks to surrender the certificate.

The court observed that such acts might deprive genuine candidates of the reserved category of all benefits he/she may be entitled to under the Constitution of India. It further commented on the CSC's abysmal conduct.

42. Arbitral Tribunal Cannot Apply Public Law Principles Or Article 14 Against Public Body : Bombay High Court [BCCI v. Deccan Chronicle Holdings Ltd.]

While setting aside the arbitration award against the BCCI over the termination of Deccan Chargers from IPL, the Bombay High Court observed that an arbitral tribunal cannot apply public law principles on fairness and reasonableness.

The arbitrator had held that BCCI, though not a state under Article 12 of the Constitution, was performing 'public functions' and hence had the public law duty to act fairly.

44. Courtroom Leaking: State Has Constitutional Duty To Provide Effective Infra, Funds To Democracy's Third Pillar, Judiciary: Bombay High Court [High Court Bar Association, Nagpur v. State of Maharashtra & Ors.]

A Division Bench of Justices Sunil B. Shukre and Anil S. Kilor 'reminded' the State of its constitutional duty towards providing of workable and effective infrastructure and adequate funds to the third pillar of our democracy, the judiciary. The development came in a PIL regarding the 'situation of emergency arose in the precincts of this very Court' wherein there was 'heavy leakage' from the ceiling of a Court room.

The Court was concerned with an incident where due to heavy rainfall outside, the Courtroom started leaking and the same was also seen inside the Court room and the video recording of such inside rainfall was also made.

45. Award Of Lok Adalat Cannot Be Considered As An Award Of The Court Made Under Part III Of Land Acquisition Act: Bombay High Court [Umadevi Rajkumar Jeure & Ors. v. District Collector, Solapur & Ors.]

A division bench comprising Justices AA Sayed and SC Gupte held that an award of the Lok Adalat, being an executable decree binding between the parties, cannot be considered as an award of the Court under Part III of the Land Acquisition Act for the purposes of sec. 28A providing for re-determination of the amount of compensation of the award.

It observed thus: "There is nothing in this scheme of things for treating an award passed by a Lok Adalat as a deemed decree of that court which made the reference to the Lok Adalat or for which the Lok Adalat was organised. In the context of the LA Act, and particularly for the purposes of Section 28A, the fiction of "decree of a civil court" will not only have to be extended to a decree of the court referring the matter to Lok Adalat or for which such Lok Adalat is organised, but such court having passed it under Part III of the LA Act, so as to have consequences for third parties."

46. Bombay High Court Upholds Validity of Section 11 of TRAI Act Challenged By TV Channels' [The Film and Television Producers Guild of India Ltd & Anr v. The Union of India & Anr]

In a win for the Telecom Regulatory Authority of India (TRAI) and ordinary consumers, a division bench of Justices AA Sayed and Anuja Prabhudessai upheld the Constitutional validity of Section 11 of the TRAI Act regarding the regulator's powers and functions over television broadcasters.

The Authority, as Regulator, is expected keep a watch on the market and act whenever the situation so warrants. The Court also upheld TRAI's 2017 and 2020 Tariff Order (Rules) and regulations but set aside one of the twin conditions in the 2020 order, according to which the MRP of an a-la-carte channel could not be more than 1/3rd the maximum rate of a channel in the bouquet. To illustrate this rule (which has been struck down by the HC), if the maximum rate of a channel in a bouquet was Rs. 12, a broadcaster could not charge more than Rs. 4 for an a-la-carte channel.

47. Wife Staying Abroad For Career Not 'Cruelty' To Husband Or 'Desertion Of Spouse' : Bombay High Court

Observing that a wife's decision to remain in Canada, where she settled with the couple's son is not "unjustified" or "selfish," the Bombay High Court refused to grant divorce to a 44-year-old engineer alleging cruelty and desertion following his spouse's refusal to join him back in India.

The court reproduced the woman's resume and details of her flourishing career with a pharmaceutical company in Canada to note that the husband could re-join his wife, especially since it was his idea to settle in Canada for better prospects in the first place.

48. Court's Power To Summon Any Person u/s 311 Of CrPC Cannot Be Used To Fill Lacunae In The Prosecution Evidence – Bombay High Court [Nayna Rajan Guhagarkar v. The State of Maharashtra]

Observing that the Court's powers to summon any person under section 311 of the CrPC cannot be used to tie loose ends in the prosecuting agency's case, the court set aside a trial judge's order recalling a material witness for examination at the fag-end of the trial.

"No doubt, under Section 311 CrPC, any Court may, at any stage of any inquiry, trial or other proceedings summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined, if it is essential to the just decision of the case, however, at the same time, the said power under Section 311 cannot be used to fill in the lacunae in the prosecution evidence," Justice Revati Mohite Dere held.

49. Remedy For Breach of Contractual Obligation Not In a Petition Under Article 226 - Bombay High Court Dismisses Sanatan Sanstha's Petition Against Facebook For Blocking Their Page

A division bench of Justices MS Sonak and MS Jawalkar dismissed Sanatan Sanstha's petition challenging Facebook's decision to block their social media page for violating their community standards. It observed that the petition was "sketchy" and the pleadings "unclear". Moreover, if there was a breach of contractual obligation, the Petitioner's remedies would lie elsewhere and not in a petition under Article 226 of the Constitution of India.

The NGO couldn't point out a single provision under the Information Technology Act by which it can insist on maintaining a Facebook page without agreeing to be bound by the company's contractual terms proposed, the court observed.

50. Bombay High Court Issues Directions For Proper Functioning Of Tree Authority In Goa [Living Heritage Foundation v. State of Goa, through its Principal Secretary (Forests)]

Being "extremely distressed" by the fact that the Tree Authorities in both the districts of Goa had not functioned at all since about a decade, the Bombay High Court at Goa issued several directions for their proper functioning.

The bench directed:

a) Tree Authorities should meet at least once in every three months.

b) The Tree Authorities under Section 7(b) of the Trees Act are directed to carry out a census of the existing trees and obtaining, whenever considered necessary, declarations from all the owners or occupants about the number of trees in their lands.

c) Use modern technology as RFID and geo-tagging for this purpose.

51. 'CBI Can Investigate Transfers & Postings By Anil Deshmukh' : Bombay High Court Dismisses Maharashtra Govt Plea [The State of Maharashtra v. The central Bureau of Investigation]

The Bombay High Court dismissed a petition filed by the State of Maharashtra challenging the portions of CBI FIR relating to transfers & postings made by the former Home Minister Anil Deshmukh, who had resigned following a Bombay High Court order directing Preliminary Enquiry on corruption allegations made against Deshmukh.

Significantly, the court held that the State Government had locus to challenge CBI investigation if it went beyond the scope of HC order.

The court observed that while the court, under Article 226, can direct the CBI to enquire or investigate, allowing "unfettered powers" to the investigating agency would render Section 5 and 6 of the Delhi Special Police Establishment Act, 1946 otiose (redundant), which bars the Central government from venturing into investigation in a State without its consent.

52. 'Line Between Freedom Of Press & Right To Privacy Has To Be Balanced': Bombay HC Directs Take Down Of Certain Content Against Shilpa Shetty (Shilpa Shetty Kundra v. Clapping Hands Private Limited & Anr)

The High Court ordered removal of certain videos from media and news channels, that were prima facie defamatory against actor Shilpa Shetty Kundra in a Rs. 25 crore defamation suit filed by her in connection with her husband's arrest in the porn film case.

The court made it clear that no part of the order should be considered as a media gag. "...The considerations in a defamation case, and the wide protection recognised for the Freedom of Speech and Freedom of Press will have to be balanced against the right of privacy. It is possible that the exceptions to free speech will have to be exceedingly narrowly tailored. But it is not possible to fail to recognise the constitutional under pinnings of the right to privacy nor to say that because a person is a public figure of some sort therefore that person must be deemed to have sacrificed his right to privacy."

53. 'Prima Facie PhD Degree Not Valuable Security For 467 IPC': Bombay High Court Grants Interim Bail To Woman In Forgery Case (Dr. Swapna Patker v. The State of Maharashtra & Ors.)

The High Court granted interim bail to a 39-year-old woman, accused of using a fake PhD degree for practicing at a Hospital in Mumbai's Bandra area. Earlier, the woman had accused her estranged husband and Shiv Sena MP Sanjay Raut of harassment, in three separate petitions.

Swapna Patker practised at Lilavati Hospital in Bandra (West) for at least two years by allegedly using a fake PhD degree in Clinical Psychology before she was removed from the post. She was booked for offences under Sections 467, 468, 420 of the IPC. A division bench of Justices SS Shinde and NJ Jamadar granted Patker bail till the pendency of her plea to quash the stringent section of 467 (forgery of valuable security) of the IPC against her.

54. UAPA – Rigours of UAPA Won't Apply When Bail Is Sought On Humanitarian Grounds : Bombay High Court (Surendra Pundalik Gadling v. Senior Inspector of Police, NIA)

The High Court granted temporary bail to Bhima Koregaon–Elgar Parishad accused Surendra Gadling observing that the rigors of regular bail under the Unlawful Activities (Prevention) Act would not apply for grant of temporary bail on humanitarian grounds.

Therefore, the judgement in the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali could not be used to oppose bail being sought purely on humanitarian grounds on the death of a parent, the court said. A division bench of Justices SS Shinde and NJ Jamadar granted Gadling bail for nine days, from August 13-21, 2021 to perform his mother's funeral rites on her first death anniversary, on humanitarian grounds.

55. Accused Can't Claim Protection for Improper Service of a 41A Notice If He Indulges In Destroying Material: Bombay High Court Dismisses Raj Kundra's Plea In Porn Racket Case (Ryan John Michael Thorpe v. The State of Maharashtra)

The protection granted to a suspect under section 41A of the CrPC will not apply if the accused indulges in destroying incriminating material, the Bombay High Court said while dismissing businessman Raj Kundra and his associate's pleas.

The petitions essentially alleged illegal arrest for non-compliance of Section 41 A of the Criminal Procedure Code, which deals with a notice to appear before the investigating officer when an accused is booked for offences punishable with up to seven years imprisonment.

"…After service of notice under Section 41A of Cr.P.C., what is expected under the law from the accused is to co-operate in the process of investigation and not to indulge in destruction of incriminating material/evidence against him/her, which the investigating agency intends to seize or to take it into its custody for the purpose of investigation of a crime."

56. UAPA - Extension Of Detention Under Section 43D(2) Not Vitiated For Not Serving Prosecutor's Report On Accused : Bombay High Court (Sanjay Gangaram Avathare v. The State of Maharashtra)

The High Court held that when seeking extension of detention under Section 43(D) of the UAPA, the fulfilment of the mandatory requirements was required in substance and not strictly in form. Justice Manish Pitale noted that substance would take precedence over form while deciding whether the mandatory requirements under the said provisions have been satisfied.

The applicant-accused was assailing two orders of the Sessions Judge – first, extending detention beyond 90 days under Section 43-D(2) of the Unlawful Activities (Prevention) Act, 1967; and second, rejecting the default bail of the applicant under Section 167(2) of the CrPC. Under UAPA, the maximum period of filing the charge sheet is 180 days as Section 167(2) of CrPC is to be read together with Section 43D(2)(b) of UAPA. Accordingly, this proviso confers power upon the Court to extend the period up to 180 days.

57. Judges' Association Moves Bombay High Court Over Residential Woes; CJ To Examine On Administrative Side [Maharashtra State Judge's Association vs State of Maharashra and others]

Maharashtra State Judges Association approached the Bombay High Court highlighting the lack of infrastructure and the State Government's apathy regarding residential quarters for judicial officers of the subordinate judiciary.

The petition sought directions to set up a single-window portal to consider grievances of judicial officers, regarding electricity cuts without generator back-ups in different parts of the State and safety of residential accommodations in Maharashtra.

Chief Justice Dipankar Datta decided to take up the plea on the administrative side.

58. 'Dissent In Democracy Is Vital' : Bombay High Court Stays Enforcement Of IT Rules 'Code Of Ethics' Against Digital Media [Agij Promotion of Ninteenonea Media Pvt Ltd & Ors v. Union of India & Anr]

In an interim order, the Bombay High Court stayed Rules 9(1) and 9(3) of the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021, which mandate that digital news media and online publishers should adhere to the "Code of Ethics" prescribed by the Rules.

The HC bench comprising Chief Justice Dipankar Datta and Justice GS Kulkarni prima facie observed that the said provisions infringe the fundamental right to freedom of speech under Article 19(1)(a) and also go against the substantive provisions of the Information Technology Act, 2002.

"Dissent in democracy is vital. It is, however, the checks and balances that make a democracy work. There can be no two opinions that a healthy democracy is one which has developed on criticism and acceptance of contra views. Opinion based on criticism reinforces its acceptance in a democratic society."

59. Governor Has Duty To Decide On Recommendations Of Council Of Ministers For MLC Members Nomination Within Reasonable Time : Bombay High Court [Ratan Soli Luth v. State of Maharashtra]

A bench of Chief Justice Dipankar Datta and Justice GS Kulkarni held that it is the Governor's duty to speak and let the Chief Minister know his reservations, if any, regarding recommendations of members to the Legislative Council within a reasonable time; otherwise, the statutory intent would stand defeated. These recommendations were made by the Council of Ministers.

The court disposed of a PIL against the Governor, Bhagat Singh Koshyari's "inaction" in nominating members to Maharashtra's Legislative Council (MLC), despite the 12 names submitted by the Council of Ministers on November 6, 2020. The bench said that eight months was more than enough time in the particular facts of the case.

It observed that while directions could not be given to the Governor under Article 361 of the Constitution, it hoped that things would be set right at an early date.

60. Counsel's Failure To Argue Written Submissions Not A Ground For Review: Bombay High Court [Priyanka Communications (India) Pvt Ltd & Anr vs Tata Capital Financial Services Ltd.]

In an important order, the High Court observed that written submissions in a dispute become immaterial if the litigant's counsel doesn't rely on them before the court of the first instance. The Bench went on to add that those submissions cannot subsequently be used to challenge any order.

"Counsel's failure to argue written submissions is not a ground of review or, I dare say, even appeal. It is no ground to assail any order of any judge of any court. If the written submissions were to be relied on, that ought to have been done during arguments, or, at any rate, while judgment was being dictated in open court or at best shortly after the judgment or order was uploaded. These never-argued written submissions cannot be taken in hindsight."

61. Second Marriage After Divorce Not Domestic Violence': Bombay High Court Admonishes Wife For Abuse Of Process Of Law

The Nagpur bench of the High Court ruled that a man entering into a second marriage after divorce will not amount to cruelty or an act of domestic violence under the provisions of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) while quashing proceedings initiated by the ex-wife. Justice Manish Pitale observed that the contention that second marriage after the grant of a divorce decree amounts to domestic violence cannot be accepted.

62. Court Can Interfere In Unconditional Bank Guarantee Only When There Isn't A Slightest Possibility Of Amount's Restitution: Bombay HC [SKS Power Generation (Chattisgarh) Ltd v. Canara Bank]

The High Court observed that there can be no interference with an unconditional bank guarantee except when fraud was established or apprehension of irretrievable injustice was demonstrated. The Bench of Justice G S Patel observed that while a bank guarantee's encashment or realisation has a localised adverse effect on the bank, this must be set against, and weighed against, the larger adverse effect on country-wide commerce of the grant of an injunction itself.

63. Wife Creates Matrimonial Profile : Bombay High Court Grants Husband Divorce On Grounds Of 'Mental Cruelty'

Relying on instances of high degree of "mental cruelty" meted out by a wife to her 36-year-old husband, the High Court's Nagpur Bench granted him a divorce. Justice GA Sanap held that the evidence on record proved that the respondent-wife inflicted mental pain and sufferings on the appellant-husband which would make it impossible for him to live with her. It was proved that the mental cruelty was such that it would in all probability cause injury to the health of the appellant, the court added.

64. PC Act - Mere Recovery Of Tainted Money From Accused Without Proof Of Demand Not Sufficient To Convict : Bombay High Court (Sunil Hirasingh Rathod v. The State of Maharashtra)

In a case under the Prevention of Corruption Act (PC Act), mere recovery of tainted money from the accused in the absence of proof of demand is not sufficient to sustain the conviction, the High Court reiterated.

The observation was made by Justice Bharati Dangre in the backdrop of 'permissible level of presumption of motive' under Section 20 of the Prevention of Corruption Act.

Sunil Rathod, an assistant engineer Vilas Khillari and sub engineer Balaji Birajdar, along with two others, were convicted under Sections 7, 12 and 13(1)(d) r/w 13(2) of the PC Act in 2018, which was set aside. They were accused of demanding and accepting bribe of Rs. 10-15 lakh for issuing an Intimation of Disapproval Certificate (IOD) for a redevelopment project.

The HC has observed that in a criminal trial, an accused doesn't have to prove his case with the same rigour with which the prosecution is required to prove theirs. Once the accused gives a reasonable and probable explanation, the prosecution must prove the explanation is false, it said.

65. NDPS Act - Purchasing Drugs For Another At A Party Doesn't Make One A Drug Peddler : Bombay High Court [Harsh Shailesh Shah v. The State of Maharashtra]

The Bombay High Court granted bail to two young men arrested for possession and consumption of drugs observing that prima facie purchasing drugs for another person at a party would not make one a drug peddler to attract the rigours of section 37 for bail under the NDPS Act.

Justice Bharati Dangre adopted the reformative approach for the two first-time offenders and remarked that today's youth, with their "now or never" attitude, cannot foresee the consequences of their actions.

The two petitioners were arrested under Sections 20, 21, 25 of the Narcotic Drugs and Psychotropic Substances Act (NDPS) in June 2021 related to intermediate quantities of contraband.

66. "Regular water supply is a fundamental right": Bombay High Court On Plight Of Villagers Getting Water Supply Twice A Month For Two Hours (Shobha Vikas Bhoi & Ors. Vs The State of Maharashtra & Ors)

Regular water supply is a fundamental right, the High Court observed upon being apprised about the plight of some villagers in Thane, outside Mumbai, who were being provided with water only twice a month, for two hours. The court summoned authorities responsible and eventually ensured that they come up with long term and short term solutions to address their woes.

A division of Justices SJ Kathawalla and Milind Jadhav took strong exception against authorities that failed to remove over 300-400 illegal water connections and stated this as "blatant mockery of their (Petitioners) fundamental right."

"We are at pains to record that the abovenamed Petitioners are required to knock the doors of this Court after completion of 75 years of independence seeking direction against the Respondents to provide regular water supply to them since they are at present supplied water only twice a month, that too for approximately two hours," the court observed.

67. Procedural Irregularity Cannot be Ground to Quash Proceedings – Bombay High Court Dismisses Kangana Ranaut's petition in Javed Akhtar's Defamation Case [Kangana Ranaut v. The State of Maharashtra]

A procedural irregularity by the Metropolitan Magistrate while taking cognisance of the complainant cannot be a ground to quash proceedings, the Bombay High Court observed dismissing actor Kangana Ranaut plea in lyricist Javed Akhtar's defamation complaint.

Justice Revati Mohite Dere refused relief to Ranaut, who filed a petition under Section 482 of CrPC and sought to quash the entire proceedings initiated by the Metropolitan Magistrate against her. The court rejected Kangana's contention that the order was bad in law merely because the Magistrate had mentioned "inquiry" and not "investigation" as permitted under section 202(1) of the CrPC while directing the police to look into Akhtar's complaint.

It observed that the Metropolitan Magistrate had "applied his mind" and "considered all aspects" before issuing process and summoning Kangana to the court under Section 204 of CrPC for the offence of defamation under Sections 499 and 500 of the IPC.

68. Prisoner Doesn't Cease To Be A Human Being, Can't Be Deprived Of Right To Life : Bombay HC Allows Palliative Care Plea Of Alleged Naxal [Nirmala Kumari Uppuganti vs State of Maharashtra & Anr]

In an exceptional situation, the bench of Justices SS Shinde and NJ Jamadar directed a terminally ill blast accused and alleged Naxal, Nirmala Uppuganti, to be shifted to a hospice (meant for patients left with no cure) from her cell at Byculla Women's Prison.

The court directed prison officials to transfer her to the Shanti Avedna Hospice and directed them to take her to Tata Memorial Hospital as and when required. Her petition sought to be shifted to the hospice without seeking bail.

"A prisoner, be he a convict or undertrial or a detenue, does not cease to be a human being, and even when lodged in jail, he is not deprived of his right to life guaranteed to him under Article 21 of the Constitution, which includes the right to obtain medical treatment. A prisoner cannot be deprived of health services as it would violate the guarantee conferred under Article 21 of the Constitution of India," the Court had said during the last hearing.

69. Hindu Remarried Widow Has Right To Deceased Husband's Property If She Wasn't Remarried On The Day Succession Opens: Bombay High Court [Smt Jaiwantabai v. Sunanda]

The term used by the Court to describe this situation was "the day the succession opens."

A single judge bench of Justice SM Modak discussed the provisions of Hindu Succession Act, 1956 and the Hindu Widows' Re-marriage Act, 1856 (which was repealed in 1983), observed,

"There is emphasis 'on the date when succession opens' as per Section 24 of the Act of 1956. The status of the widow being remarried continuing to be widow must be on the date when succession opens. The wordings "if on the date the succession opens" does not find place in Section 2 of the Act of 1856. So, we have to respect the intention of the legislators while incorporating these provisions in Section 24 of the Act of 1956."

The court thus ruled, "In other words, if the widow has not re-married when the succession opens, the disqualification under Section 24 of the Act of 1956 will not be applicable."

70. Aryan Khan Case : No Evidence For Conspiracy; Nothing Objectionable In WhatsApp Chats Suggesting Conspiracy, Says Bombay High Court In Bail Order [Aryan Shan Rukh Khan v. The Union of India & Anr]

Prima facie there was no evidence on record to infer that Aryan Khan, his friend Arbaaz Merchant and Munmun Dhamecha conspired to commit offences under the Narcotics Drug and Psychotropic Substance Act, the Bombay High Court said in its detailed order granting bail to the trio in the Cruise Ship Drugs case.

They were booked under Section 8(c) read with Section 20(b), Sections 27, 28, 29 and 35 of the NDPS Act.

Justice Nitin Sambre discussed the law on WhatsApp chats, conspiracy and testing an accused for consumption in detail in the order. The court also observed that confessional statements recorded by NCB could not be cited as evidence considering the SC's observations in Tofan Singh Vs. State of Tamil Nadu. Therefore, NCB's claims that they had admitted to committing the crime must be rejected, the court held.

71. Dowry Death: Silence Of Family Members About Cause Of Death Would Become An Additional Link In Chain of Circumstances - Bombay HC [Achyut Bhaskar Kale & Ors. v. State of Maharashtra]

The Aurangabad bench of the High Court observed that house inmates' silence on the cause of a woman's death inside her marital home would be held against them as such incidents happen in complete secrecy. A division bench of Justices VK Jadhav and Shrikant Kulkarni held a deceased pregnant woman's husband and in-laws guilty of dowry death under section 304B IPC for strangulating her within two years of her marriage and eight days after they threatened to kill her in 2012. The court dismissed the appellants' appeals against conviction and allowed the State's appeal for enhancement of sentence.

72. "Sexual Violence Knows No Boundaries, Failure To Create An Atmosphere For Caregivers To Identify Signs Of Abuse": Bombay High Court [Gaurav s/o Sopan Narkhede v. The State of Maharashtra]

Adjudicating upon an unfortunate case where a teen committed suicide due to sexual harassment by a close family member, the Bombay High Court observed that we, as a society, had failed to create an environment where primary caregivers can identify signs of abuse.

Justice Bharati Dangre rejected a man's bail application for allegedly abetting his 17-year-old niece's suicide. The teen reportedly jumped out of her high rise apartment's balcony minutes after handing over her phone with objectionable messages to her mother.

73. Not Maintainable: Bombay High Court Dismisses Ex-Mumbai Police Chief Parambir Singh's Plea Against Preliminary Inquiries Initiated By Maharashtra Govt [Param Bir Singh v. State of Maharashtra & Ors]

The High Court dismissed ex-Mumbai Police Commissioner Param Bir Singh's plea under Article 226 challenging two enquiries initiated against him by the Maharashtra government. The court concluded that the petition was not maintainable. A division bench of Justices SS Shinde and NJ Jamadar observed that since the matter fell within the ambit of "service matters", it was only the Central Administrative Tribunal, which as a Court of first instance, was empowered to delve into its legality, propriety and correctness.

74. Supreme Court Has Repeatedly Said 10 Years Experience In Law Is Sufficient For Appointment As Judicial Member In Tribunals : Bombay High Court Quashes Rules Framed Under the Consumer Protection Act. [Vijaykumar Bhima Dighe v. Union of India]

Quashing certain provisions of the new Consumer Protection Rules, 2020 the Nagpur bench of the Bombay High Court said 10 years of experience in law and in other specialised fields was sufficient for appointment as a judicial member in the Tribunal.

Bench of Justices Sunil Shukre and Anil S Kilor struck down Rules 3(2)(b) and 4(2)(c) prescribing a minimum experience of not less than 20 years for appointment of President and Members of State Commission and experience of not less than 15 years for appointment of Presidents and Members of District Forums as unconstitutional and violative of Article 14 of the Constitution of India.

75. Can't Use 'Astrological Incompatibility' To Avoid Rape Charges On False Promise Of Marriage – Bombay High Court [Avishek Asit Mitra v. State of Maharashtra & Ors.]

The High Court refused to discharge a 32-year-old man accused of 'rape on false promise of marriage' and cheating, rejecting his claims of 'astrological incompatibility' as valid reason for refusing the marriage. Justice Sandeep Shinde said it was clear from the man's conduct that he had no intention of marrying the girl right from the beginning. Because, if his intentions were genuine, he wouldn't refuse to marry her, citing mismatched horoscopes after she withdrew her first police complaint.

75. Accused Has No Fundamental/Statutory Right To Appeal Against Conviction Eo Instanti: Bombay High Court [Pankaj Arjunbhai Koli v. The State Of Maharashtra]

The High Court held that an accused has no fundamental or statutory right to prefer an appeal against an order holding him guilty of offence eo instanti. After the court records a conviction, the accused has to be heard on the question of sentence and it is only after the sentence is awarded that the judgment becomes complete and can be appealed against under Section 374 of the Code of Criminal Procedure, the Division Bench comprising Justices SS Shinde and NJ Jamadar observed.

76. "Gives An Impression That Justice Can Be Bought & Judges Can Be Sold": Bombay HC Refuses Bail To Man Who Assured Favourable Court Decision [Minol Anil Hudda v. The State of Maharashtra]

The High Court refused bail to a man accused of cheating a woman by guaranteeing a favourable court decision for her son's release on bail, observing that it is a grave issue and amounts to tarnishing the judiciary's image.

Justice Bharati Dangre said that such instances have become rampant and must be nipped in the bud. "This tendency of guaranteeing the decision to come in favour of one party or the other amounts to maligning a particular Judge and at large, the institution itself by giving an impression that justice can be bought and the Prosecutors and Judges can be sold. These vexatious attempts are rampant and this has to be nipped in the bud."

77. 'Serious Dent To The Financial Health Of State': Bombay High Court Denies Bail For Rana Kapoor's Wife & Daughters In Yes Bank - DHFL Scam [Radha Kapoor Khanna & Ors V. Central Bureau of Investigation]

The Bombay High Court refused bail to Yes Bank founder Rana Kapoor's wife Bindu Kapoor and two daughters – Radha and Roshni Kapoor – in the Rs. 4000 crore Yes Bank – DHFL alleged quid-pro-quo case of 2020 being investigated by the CBI.

Justice Bharati Dangre observed that the applicants were alleged to have indulged in the commission of offences, which resulted in a serious dent to the financial health of the State as well as defrauding the public at large. Moreover, just because the accused were not arrested at the time of investigation, it didn't mean they couldn't be kept in custody during the trial after the gravity of their offences was revealed in the charge sheet.

78. Mother's Work Commitments Don't Make Her Unsuitable For Child's Custody: Bombay High Court

Observing that a busy actress's work commitments don't make her unsuitable for her child's custody, the Bombay High Court ruled that a minor's 'welfare' cannot be decided solely on which parent has more free time. A division bench of Justices SS Shinde and NJ Jamadar dismissed the husband's habeas corpus petition for custody of their minor son. However, the court granted him visitation rights.

79. 'Dignity Of Rape Victim Must Be Upheld, Judge's Duty To Forbid Scandalous Questions In Cross Examination': Bombay High Court [Ranjeet Shahaji Gade v. State of Maharashtra]

The Bombay High Court sent a strong reminder to the trial courts to ensure that the dignity of a rape victim was protected and line of questioning during cross-examination didn't intend to insult or annoy the victim.

A division bench of Justices Sadhana Jadhav and Sarang Kotwal in their judgement reminded the trial courts to resort to Sections 148, 151 and 152 of the Indian Evidence Act and stop such a line of cross-examination, remind the victim that she cannot be compelled to answer the questions put to her by the defence lawyers. Referring to numerous graphic details of the act put to a victim during cross-examination and the trial judge's "passive approach", the bench criticised the trial judge's 'passive approach' in allowing the questions.

80. Arbitral Tribunal Can't Pass Ex-Parte Ad-Interim Order; Arbitration Act Mandates Advance Notice : Bombay High Court [Godrej Properties Ltd v. Goldbricks Infrastructure Pvt. Ltd.]

An arbitration tribunal cannot pass an ex-parte order on the mere filing of an interim application as the Arbitration and Conciliation Act of 1996 mandates sufficient advance notice for any hearing, the Bombay High Court held. Justice GS Kulkarni observed that a combined reading of Sections 18, 19 and 24 (2) of the Act required all parties to be treated fairly at all stages. Also, the tribunal should give them adequate/sufficient opportunity to present their case, including a chance to be heard at the time of ad-interim orders.

The court allowed Godrej Properties Ltd's application under Section 37 of the Act and set aside the tribunal's ex-parte ad-interim order in favour of Goldbricks Infrastructure Pvt. Ltd. By the order, the tribunal had restrained Godrej from creating third party rights in case of the disputed property.

81. Merely Abusing Complainant Does Not Constitute Offence U/s 504 IPC; Intention To Provoke Him To Break Public Peace Necessary: Bombay HC [Subhash Mishrilal Jain v. Laxman Kondiba Aswar & Ors]

The Nagpur Bench of the Bombay HC held that a mere allegation that the accused abused the complainant does not itself satisfy the ingredients of offence under section 504 of IPC. Section 504 speaks of 'Intentional insult with intent to provoke breach of peace'.

A Bench of Justice Rohit B. Deo observed that ingredients of section 504 IPC were not made out and quashed the order of issuance of process under this provision. The court, however, upheld process issued for an offence under section 506 of the IPC.

"All that is alleged, without spelling out the words used, is that the accused abused the complainant. Such allegation does not satisfy the ingredients of offence punishable under section 504 of IPC, and to that extent the learned Magistrate clearly erred in issuing process."

82. Lack Of Aadhaar Linkage No Reason To Deny Benefits Under Food Security Act : Bombay High Court [Ganpat Dharma Mengal & others v. Tehsildar Office, Murbad and Others]

Noting that several tribals were denied supplies under the Public Distribution System due to the non-linking of their Aadhaar Cards, even as the fortunates eagerly awaited Diwali, the Bombay High Court ordered the Tehsildar of Murbad to distribute supplies to nearly 90 tribals.

In an interim order, Justices Prasanna Varale and Madhav Jamdar observed no logic, reason or rationale for denying benefits of distribution of food grains under the National Food Security Act, 2013 (NFSA) to the tribals because the State machinery was not technically equipped to give them the benefits.

83. Companies Act 2013 - Proposed Shareholder Resolution Must Be Legal For EGM To Be Called : Bombay High Court [Zee Entertainment Enterprises Ltd. v. Invesco Developing Markets Fund & Others]

The High Court ruled that a shareholder resolution requisitioned under Section 100 of the Companies Act, 2013 must be legal so as to demand the Board of Directors hold an Extraordinary General Meeting (EGM).

Justice GS Patel was hearing a suit filed by Zee Enterprises Limited, a public limited and listed company seeking an injunction against Invesco (investors and shareholders that held 17.88% equity in Zee) from acting in furtherance of a requisition notice on the grounds that it was illegal, ultra vires, invalid, bad in law and incapable of implementation.

84. Saga Of Violence, Humiliation' : Bombay High Court Directs Round The Clock Protection To Inter Caste Couple [X v. State of Maharashtra & Ors]

In a serious case of caste violence and patriarchy, the High Court directed the Mumbai Police Commissioner to ensure 24/7 protection to a young inter-caste couple, the in-laws and witnesses to the marriage owing to death threats from the girl's Ahir community.

A division bench of Justices SJ Kathawalla and Surendra Tavade detailed in an interim order the bone-chilling "saga of violence, humiliation, rape, grievous bodily injury, and mental injury", the woman and her Brahmin husband endured since they first eloped in February 2020.

85. Bombay High Court Seeks Inquiry, Orders Compensation To Man Illegally Detained In Custody [Sadiquabee Mohd. Usman Shaikh v. State of Maharashtra & Ors]

The Bombay High Court directed the Maharashtra Government to pay compensation to a man and urged an inquiry against errant police officers regarding a 28-year-old's detention in police lockup despite a court order remanding him in judicial custody.

"The constitutional and legal rights of a person cannot be sacrificed at the altar of such flimsy explanations," the bench observed while ordering Rs. 20,000 as compensation to be paid within four weeks. The bench passed the order on a habeas corpus petition by the man's wife.

86. Conviction Cannot Be Solely Based On Admissions Made By Accused In His Statement Under Section 313 CrPC: Bombay High Court [Jabbar Isak Shaikh & Ors v. The State of Maharashtra]

The prosecution has to prove guilt of the accused beyond reasonable doubt and conviction cannot be solely based on the admissions made by the accused in his statement under Section 313 of the Criminal Procedure Code, the HC held.

The bench was hearing an appeal filed by two convicts against the trial court's order sentencing them to 10 years' imprisonment for offences under Sections 489 (B) and 489 (C) read with 34 of the Indian Penal Code.

87. S 417 IPC - Mere Refusal To Marry After Sexual Relations Not Offence of Cheating : Bombay High Court [Kashinath Narayan Gharat v. The State of Maharashtra]

Mere refusal to marry a woman after a long relationship would not constitute the offence of 'cheating' under section 417 of the Indian Penal Code if there is no evidence of fraudulent misrepresentation of promise of marriage for sex, the Bombay High Court held.

The court allowed a man's appeal against the trial court's order sentencing him to 1 year imprisonment for cheating.

Justice Anuja Prabhudessai observed that in the instant case the couple had indulged in sexual relations for over three years; the woman's testimony did not indicate that she was under a misconception of a promise of marriage nor was there evidence to show the man didn't intend to marry her since the very beginning.

88. Sessions Court Cannot Stay Own Bail Order Under CrPC - Bombay High Court [Naresh Ramniklal Gaur vs Union of India through SP NIA]

Justice SK Shinde held thus while setting aside the Special NIA court's decision to stay its own order granting bail to Naresh Gaur, a bookie in the Ambani Terror Scare Case. The Special NIA court stayed the operation of its own bail order of November 20, 2021 for 25 days, to allow the NIA time to appeal against the grant of bail in the HC on the ground that it was empowered to stay its own order of grant of bail, in terms of the provisions of Section 309(1) of the Criminal Procedure Code.

"In so far as the power of the learned Sessions Judge to stay his own order of grant of bail is concerned, in my view, the Code of Criminal Procedure does not empower the Sessions Judge to stay the operation of his order of grant of bail," the High Court observed.

89. Bombay High Court Grants Default Bail To Sudha Bharadwaj In Bhima Koregaon Case; Refuses Bail To 8 Other Accused [Sudha Bharadwaj & Ors v. National Investigation Agency & Ors]

A division bench of Justices SS Shinde and NJ Jamadar discussed in depth section 167(2) CrPC regarding default bail. The bench also significantly ruled that when an accused was charged under the Unlawful Activities (Prevention) Act, the case must be heard by a Special court notified under section 11 or 22 of the NIA Act. And only in the absence of a Special Court can the matter be heard by a Sessions Court.

  1. The High Court accepted the petitioners' argument that the Additional Sessions Court, Pune, that extended the accused's detention period beyond 90 days as per Section 43D(2) of the UAPA, was not competent to do so. Because, the Court was not notified as a Special Court under the NIA Act. Also, there was a Special NIA Court in existence in Pune at the relevant time.
  2. The court held that while the charge sheet ought to have been lodged before the Special Court under the NIA Act, however, Additional Sessions Judge KD Vadane taking cognisance of the charge sheet did not entail the consequence of vitiating entire proceedings. Consequently, the accused did not automatically become entitled to default bail.

90. 'Right to Privacy Has To Be Balanced With Freedom Of Speech ' : Bombay High Court Refuses Injunction Against Nawab Malik in Defamation Suit [Dhyandev Kachruji Wankhede v. Nawab Malik]

Despite observing that Nawab Malik's tweets against the Wankhedes actuated out of malice, the Bombay High Court refused to grant ad interim relief to Narcotics Control Bureau's ZOnal Director Sameer Wankhede's father Dhyandev. The Court noted that right to privacy had to be balanced with freedom of speech and that public had the right to comment about actions of a person in official capacity. Moreover, it couldn't be said that the allegations were completely false, the court observed.

91. Section 376 E – Death Penalty for Rape [The State of Maharashtra v. Vijay Mohan Jadhav & Ors]

The Bombay High Court commuted to life imprisonment the death penalty awarded to three repeat offenders in connection with the gang-rape of a photo-journalist inside Mumbai's defunct Shakti Mills compound, in 2013. This was the first death penalty awarded for repeat offenders of rape where the victim was not murdered.

Justices SS Jadhav and Prithviraj Chavan held that the conviction under section 376E would not sustain as the men cannot be called repeat offenders since the trial for both offences was conducted simultaneously.

"This is not a case of previous conviction as both sessions cases were tried simultaneously and the conviction in both cases was recorded on the same day without giving the accused an opportunity to present place before the court mitigating circumstance."

92. Every Institution Must Have Confidence In Its Leader, Chief Justice's Decisions To Assign Matters Not Open to Judicial Review – Bombay High Court [Vasudev Darra & Ors v. The Registrar General & Ors]

No litigant can decide which judge should be assigned to hear his matter as that is the absolute and unfettered power that vests with the Chief Justice, the court held. It added that the Chief Justice can deviate from the roster and assign a matter to a particular bench, however, the decision to do so is not subject to judicial review.

A division bench of Justices GS Patel and Madhav Jamdar adjudicated on questions raised about the powers of the Chief Justice of a High Court as the Master of the roster, whether she/he would be constrained by the assignment list or not in a writ petition under Article 226.

93. No Likelihood Of Bias Just Because CBI Director Is Ex-DGP : Bombay High Court Rejects Maharashtra's Plea For SIT In Anil Deshmukh Case [The State of Maharashtra through the Joint Secretary, Home Department v. Central Bureau of Investigation & Ors]

The court dismissed Maharashtra Government's petition to hand over CBI's anti-corruption probe against former Home Minister Anil Deshmukh to a court-monitored Special Investigation Team.

The important aspects discussed in the judgement included the state's power (locus) to approach the HC invoking parens patriae jurisdiction after the CBI issued summons to two of its top bureaucrats, and also the conduct of the party.

The Bombay High Court held that just because Subodh Kumar Jaiswal, ex-DGP Maharashtra, now happens to be Director CBI, there is no likelihood of bias in the agency's investigation into police transfers and postings in Maharashtra.

"The Court exercising jurisdiction rooted in equitable considerations has to ascertain whether the prayer sought is bonafide and in the public interest and that it is not for some other colourable purpose"

94. Domestic Violence Act Complaints Can't Be Filed At Places Of Casual Visits, Should Be Instituted In Place Of Temporary Or Permanent Residence: Bombay High Court

A domestic violence complaint cannot be filed at a place a woman is only casually visiting and proceedings must be instituted at her temporary or permanent residence under section 27 of the Domestic Violence Act, the Bombay High Court said.

The court interpreted 'temporary residence' to mean the place an aggrieved person has temporarily decided to make their home and not a lodge or a guest house, meant for short visits.

Justice SK Shinde thus upheld a magistrate's order declining to entertain a woman's application under section 12 of the Domestic Violence Act for want of jurisdiction under section 27 as both parties were permanent residents of Hyderabad.

95. Is An Accused's Anticipatory Bail Plea Maintainable If He Is Already In Judicial Custody In Another Crime? –Bombay High Court Rules [Alnesh Akil Somji v. State of Maharashtra]

The Bombay High Court held that an accused can be granted anticipatory bail even if he is in prison in connection with another offence, and that every case registered against an accused would have to be decided on its own merits.

Adjudicating a petition for anticipatory bail under section 438 of the Criminal Procedure Code (CrPC), Justice VG Bisht held that neither CrPC nor any other statute bar the Sessions Court or the High Court, as the case may be, from deciding the anticipatory bail application of someone already in custody in another offence.

"Accused has every right, even if he is arrested in number of cases, to move (court) in each of offences registered against him irrespective of the fact that he is already in custody but for different offence," the bench observed.

96. Bombay High Court Disposes of Late Father Stan Swamy's Petitions

Four and a half months after Bhima Koregaon accused Father Stan Swamy's demise, a division bench of Justices Nitin Jamdar and Sarang Kotwal disposed of as withdrawn appeals filed by father Stan Swamy challenging his prosecution under the Unlawful Activities (Prevention) Act.

Father Swamy passed away from a cardiac arrest in a private hospital ahead of his bail hearing on July 5. He was on October 8, 2020 and was the 16th civil liberties activist arrested under anti-terror offences of the UA(P) Act.

The court had orally observed that the Jesuits seeking certain directions regarding the mandatory judicial inquiry into his demise and to clear the odium attached to his name cannot be done in appeals pending posthumously.

97. Section 8(2) RTI – Is a Form of voluntary disclosure, not a vested or justiciable right that citizens can enforce [Rashmi Uday Shukla vs State of Maharashtra]

The Bombay High Court disposed of senior IPS officer Rashmi Shukla's petition under Article 226 and section 482 refusing to quash the FIR registered by Mumbai Police in the "illegal" phone tapping and data leak case. The FIR invoked the Indian Telegraph Act, Information Technology Act, and Official Secrets Act, 1923.

The petitioner had argued that she hadn't leaked the report, but even if assuming she had, it wouldn't constitute an offence under the Official Secrets Act as it was done in the larger public interest'.

The HC held that under section 8(2) of the RTI Act only a 'public authority' can decide if it wants to voluntarily and lawfully disclose confidential information in the larger public interest. The petitioner admittedly was not the authority under RTI Act. Section 8(2) does not create a vested or justiciable right that citizens can enforce, the HC said.

98. No Media Reporting, Public Disclosure Of POSH Case Judgments Without Prior Approval : Bombay High Court Issues Guidelines To Shield Anonymity

In a move that was criticised, Justice GS Patel in a short order issued guidelines for cases regarding Sexual Harassment of Women at the Workplaces and virtually barred the media from writing about such cases. The court directed that such matters be heard either in-camera or in the judge's chambers, orders are not to be passed in open court and should not be uploaded on the official HC website either.

The court further barred the media from publishing proceedings under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 or reporting on a judgement without the court's permission.

Breach of the guidelines or publishing any party's name or their information, even if it is in public domain, would amount to contempt of court, as per these guidelines.

The guidelines deal with the format of orders in POSH cases, filing protocols, grant of access by the registry, conducting hearings, directions to the certified copy department, public access and breach.

99. 'Daughters Are Daughters Forever, Sons Are Sons Till They Are Married': Bombay HC Upholds Direction Under Senior Citizens Act To Son To Vacate Flat Of Elderly Parents [Ashish Vinod Dalal & Ors v. Vinod Ramanlal Dala & Ors]

The Maintenance and Welfare of Parents and Senior Citizens Act mandates that children or relatives are obligated to cater to the needs of the senior citizens so that they 'live a normal life', free of any harassment, the Bombay High Court said, directing a Mumbai resident and his wife to vacate his elderly parents' flat within a month.

The Court observed that the man and his family living on his 90-year-old father's property (which has been gifted by him to his daughter) against the parent's wishes was harassment and defeated the parents' right to a 'normal life.' Accordingly, it dismissed the son's appeal against the Maintenance Tribunal order asking him to vacate the premises.

"..Section 4 clearly provides that the obligation of the children or relatives would be to cater to the needs of the senior citizens so that they 'live a normal life'…this would certainly include within its ambit, protection from any harassment and torture meted out by a son or relative by keeping himself on the premises owned by the senior citizens..."

100. 'Abetment By Instigation Depends On Intention Of Accused, Not On Victim's Actions': Bombay High Court [Gaurav s/o Sopan Narkhede v. The State of Maharashtra]

In a significant ruling, the High Court held that the offence of abetment by instigation would depend on the intention of the accused and not the victim's actions. Refusing bail to a man accused of sexually harassing and abetting suicide of his 17-year-old niece who jumped out of her balcony, Justice Bharati Dangre observed that 'instigation' in cases of abetment would have to be gathered from the circumstances surrounding the suicide.


Next Story