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25 Important Judgements And Happenings In The Bombay High Court From 2021
Sharmeen Hakim
31 Dec 2021 8:00 AM GMT
From Bollywood to politics, 25 important judgements and happenings in the Bombay High Court from 2021. 1. 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...
From Bollywood to politics, 25 important judgements and happenings in the Bombay High Court from 2021.
1. 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.
2. 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.
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.
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."
The fight between the Centre and the Maharashtra Government took considerable amount of judicial time at the Bombay High Court, and also resulted in setting of some precedents in cases involving the State Government, former Maharashtra Home Minister Anil Deshmukh, former Mumbai Police Commissioner Param Bir Singh and former State Intelligence Department head Rashmi Shukla.
It began with the Chief Justice's bench directing a Preliminary Enquiry (PE) by the CBI into corruption allegations levelled by Singh against Deshmukh while disposing of a clutch of PILs.
A division bench of Justices SS Shinde dismissed a petition filed by the State Government challenging two paragraphs of the FIR against Deshmukh and unknown others. One paragraph pertained to Deshmukh's knowledge of dismissed API Sachin Waze's reinstatement in the police force, in June 2020, and the second was regarding corruption and political influence in police transfers. "The Investigation agency can in our view legitimately inquire in our view into the aspect of transfer and posting of police officers so also reinstatement of Waze after 15 years to the extent those tranfers and postings have the nexus with the alleged offences against the then home minister and his associates", the Court said in the order.
The bench, however, also held that a state government is well within its rights to raise a grievance if a central agency's investigation goes beyond the scope of the Court's order that authorised investigation in the absence of the state's consent. The bench rejected the CBI's contention that the State had no locus standi to challenge the corruption FIR against Deshmukh.
The same bench, in a separate judgment, also rejected a petition filed by Deshmukh seeking to quash the CBI FIR against him. The court, however, said that the CBI must also investigate the committee that reinstated Waze, which also involved former Mumbai Police Commissioner Param Bir Singh.
A different bench of the court also dismissed Maharashtra Government's petition challenging handing over of the case against Deshmukh to the CBI alleging bias since former Maharashtra DGP Subodh Kumar Jaiswal was heading the CBI. The Court held that there was no likelihood of bias in the agency's investigation. "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."
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.
7. UAPA Accused Entitled For Bail If Continued Incarceration is Endangering His Life [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 for six months on medical grounds to the 81-year-old awaiting trial since August 28, 2018.
"Old age, sickness, infirmity and health conditions, as also the admitted sufferings faced by the undertrial during incarceration including infection of Covid-19 virus, lead to a conclusion that upon his discharge from the Nanavati Hospital, placing the undertrial back in custody would be incompatible with his health conditions and it would endanger his life," the court had observed in its order granting medical bail to Rao on February 22, 2021.
The bench added that if it denies relief to Rao, it will be abdicating its constitutional duties as a protector of human rights and right to health covered under Article 21 of the Constitution.
8. 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."
9. Covid Crisis
Through the second wave the Bombay High Court's Nagpur and Aurangabad benches registered and heard suo motu PILs to deal with the Covid crisis within their respective jurisdiction. Covid management PILs were also heard by the Bombay High Court at its principal seat in Mumbai and bench in Goa.
The Bombay High Court passed a slew of orders for managing the crisis in the state. While the HC refused to dictate how the state of Maharashtra should respond to the Covid-19 crises, it prodded the administration to re-think certain decisions and issued directions only when absolutely necessary. The HC bench at Nagpur conducted late night hearings to address the Oxygen crisis.
The issues specifically addressed were as follows.
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 the city hospitals. They questioned the Central Government's decision to reduce oxygen supply to Maharashtra, and directed immediate restoration of supply.
The HC passed several orders to curb black marketing and unequal distribution of these drugs.
- Fake Vaccination
- Door-to- door vaccination for the elderly - After HC 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 Chief Justice Dipankar Datta and Justice GS Kulkarni's bench disposed of the PIL filed by two advocates seeking door-to-door immunisation for the elderly above 75 years, the disabled and immobile.
10. 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.
11. 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 petitions filed by ARG Outlier, which owns Republic TV channel, 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.
12. "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.
13. 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 complaint 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.
14. 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."
15. 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.
16. 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.
17. Bombay High Court Directed the 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.
Revealing a rape victim's identity is an offence under section 228A of the IPC. It attracts a 2 year imprisonment along with fine.
18. Aryan Khan Case : No Evidence For Conspiracy; Nothing Objectionable In WhatsApp Chats Suggesting Conspiracy, Says Bombay High Court In Bail Order [Aryan Shah 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 on October 3, 2021.
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.
The court observed that to prove conspiracy, there has to be positive evidence about an agreement to do an unlawful act and such agreement must precede with meeting of minds.
19. S 167(2)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 section 167(2) CrPC regarding default bail. The bench 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.
- 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.
- 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.
20. '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 the 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 their official capacity. Moreover, it couldn't be said that the allegations levelled by Malik against Wankhede were completely false, the court observed.
Wankhede appealed to the division bench against the single bench order. The division bench made certain oral observations against the conduct of Nawab Malik in his capacity as a minister. Later, Malik undertook before the Court to refrain from making statements against Sameer Wankhede family. Malik had to later apologize to the Court for violating the undertaking.
21. 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.
22. 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.
23. 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.
24. Mandating Covid Negative Report For Unvaccinated Is A Reasonable Restriction – Bombay High Court
The Bombay High Court upheld a circular issued by the Mumbai Port Trust (MPT) mandating RT-PCR tests every 10 days for unvaccinated employees. The Court held the test mandate was a reasonable restriction on their fundamental rights.
A division bench of Justices SJ Kathawalla and Abhay Ahuja dismissed a plea filed by seven employees of Mumbai Port Trust (MPT) challenging a circular issued by it in June 2021 on the ground that it discriminated between vaccinated and unvaccinated employees.
The court observed that those avoiding the covid jab are placing themselves at a higher risk of contracting and transmitting the virus.
"While the Petitioners' decision not to take the vaccination is well respected, that does not mean that they are ipso facto entitled to the same treatment as that given to vaccinated persons by the MPT," the bench observed.
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.
