Case BriefsHigh Courts

Bombay High Court: Revati Mohite Dere, J., while addressing a very significant issue of assault, expressed that:

“There is imbalance of gender roles, where wife as a homemaker is expected to do all the household chores.”

Factual Matrix

Appellant was married to Manisha (deceased) and they both used to reside with the appellant’s mother.

According to the prosecution, the appellant was suspecting Manisha’s character as a result of which, there used to be frequent quarrels between them.

On 19-12-2013, Manisha was leaving the house without preparing tea on account of which, there was an exchange of words between the appellant and the deceased. Since the appellant was suspecting Manisha’s character and as she refused to make tea for the appellant, it was alleged that the appellant had given a blow on Manisha’s head from behind, with a hammer.

Further, it was alleged that the said incident was witnessed by Rohini, the appellant and Manisha’s daughter.

Prosecution submitted that after Manisha was assaulted, the appellant gave her a bath, wiped the bloodstains from the spot and thereafter took Manisha to Vitthal Hospital.

At the time when Manisha was admitted, her uncle visited, during that time appellant informed Manisha’s uncle that he had assaulted Manisha. Hence a complaint was lodged and a charge sheet was filed against the appellant for the offence punishable under Sections 302 and 201 of the Penal Code, 1860.

Sessions Judge convicted the appellant for the above-stated offences.

Analysis, Law and Decision 

High Court observed that on the day of the incident on being refused tea, the appellant assaulted Manisha with a hammer, but in Court’s opinion:

“…deceased-Manisha, by refusing to make tea for the appellant, by no stretch of imagination, can be said to have offered grave and sudden provocation for the appellant to assault her, much less, such a brutal assault.”

Bench also observed that:

“…a wife is not a chattel or an object.”

Cases as the present one, reflect the imbalance of gender – skewed patriarchy, the socio-cultural milieu one has grown up in, which often seeps into a marital relationship.

While making very essential observations, Bench quoted from a study, ‘The Man Who Mistook His Wife For Chattel’ by Margo Wilson and Martin Daly:

“by `proprietary’, we mean first that men lay claim to particular women as songbirds lay claim to territories, as lions lay claim to a kill, or as people of both sexes lay claim to valuables. Having located an individually recognizable and potentially defensible resource packet, the proprietary creature proceeds to advertise and exercise the intention of defending it from rivals. Proprietariness has further implication, possibly peculiar to the human case, of a sense of right or entitlement”. 

Medieval notion of the wife being the property of the husband to do as he wishes, unfortunately, still persists in the majority mindset. Nothing but notions of patriarchy.

Bench refused the appellant counsel’s argument the deceased by refusing to make tea for the appellant offered grave and sudden provocation.

In view of the present set of circumstances and arguments, Court stated that appellant not only assaulted his wife, but also after assaulting her, he wasted precious and crucial time by wiping the blood from the spot and bathing Manisha before taking her to hospital, if the deceased would have been rushed to the hospital, her life could have been saved.

Therefore, Court found no infirmity in the impugned judgment and dismissed the present appeal.[Santosh Mahadev Atkar v. State of Maharashtra, 2021 SCC OnLine Bom 248, decided on 02-02-2021]


Advocates who appeared before the Court:

Sarang Aradhye for the Appellant

V. Gavand, A.P.P for the Respondent–State

Appointments & TransfersNews

President appoints Pushpa Virendra Ganediwala, to be an Additional Judge of the Bombay High Court for a period of 1 year with effect from 13-02-2021.

Notably, Justice Ganediwala authored the following two controversial Judgments:

 

NOTIFICATION


Ministry of Law and Justice 

[Notification dt. 12-02-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and Ravindra V. Ghuge, J., while addressing a Public Interest Litigation held that stepping into the other domains of State Organs would result into Judicial Over-Reach.

The instant PIL was instituted before this Court by a social activist seeking a direction upon the respondents to spread awareness of the contents of Constitution of India, The Right to Information Act and the Consumer Protection Act among the masses by including such laws as compulsory subjects of education at a higher level of studies.

Taking note of the above stated, Bench pointed out that in Justice K.K. Mathew’s ‘Democracy, Equality and Freedom’, the forward was penned by the former Chief Justice Y.Y. Chandrachud, wherein it was expressed that

“in our present dispensation, a Judge cannot, except for honourable exceptions, lay plausible claim of legal scholarship.”

Bench while considering the above expressed that

“We certainly are not exceptions and, therefore, would never dream of claiming legal or any other scholarship.”

“As Judge, we primarily don the hat of an adjudicator.”

Bench while expressing its’ opinion in the instant matter with regard to the administrative work, added that:

“Having regard to the manifold activities in relation to administrative work that we perforce are bound to discharge, we also don other hats.”

Judicial Over-reach

Further, the Court stated that the petitioner has made an attempt to make the Bench don the hat of an academician and interfere in academic matters, a field where they have little or no expertise.

The above action could be a judicial over-reach and stepping into the domain of the other organs of the State.

Hence, while disposing of the present petition,  Court opined that the matter must be left to the discretion of the experts in the educational field. [Sanjay Bhaskararo Kale v. Union of India,  2021 SCC OnLine Bom 89, decided on 20-01-2021]


Advocates for the parties:

Ms P.S. Talekar, Advocate on behalf of Talekar & Associates for petitioner;

Mr Bhushan Kulkarni, Standing Counsel for respondents 1 & 2; Mr A.R. Kale, A.G.P. for respondents 4 & 5

Case BriefsHigh Courts

Bombay High Court: Pushpa V. Ganediwala, J., altered the conviction of the appellant who was accused of sexually assaulting a minor child by partly quashing his conviction for the offence of sexual assault and aggravated sexual assault punishable under Sections 8 and 10 of POCSO Act, respectively.

The instant appeal challenged the judgment wherein the appellant/accused was convicted for the offence under Sections 354-A(1)(i) and 448 of the Penal Code, 1860 and Sections 8, 10 and 12 read with 9(m) and 11(i) of the Protection of Children from Sexual Offences Act, 2012.

Factual Matrix

Informant i.e. the mother of the prosecutrix had gone to her duty and on returning back home she saw the presence of appellant/accused in her house molesting her minor daughter who was aged about 5 years.

Further, the informant stated that she saw that the accused was holding the hands of her elder daughter. Informant’s daughter had informed that the accused removed his penis from the pant and asked her to come to the bed for sleeping.

Analysis and Decision

Bench noted that the appellant/accused was convicted by the trial court for the commission of offence of ‘aggravated sexual assault’, punishable under Section 10 of POCSO Act. However, to decide whether the alleged act of appellant/accused would fit into the definition of ‘aggravated sexual assault’, Court looked into the definition of ‘sexual assault’, according to which the offence involved the following ingredients:

(i) Act must have been committed with sexual intention.

(ii) Act involves touching the vagina, penis, anus, or breast of the child.

 or

makes the child touch the vagina, penis, anus or breast of such person or any other person.

 or

does any other act with sexual intent which involves physical contact without penetration.

 Further, the Court added that the acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as had been allegedly witnessed by PW-1, which in the opinion of this Court did not fit in the definition of ‘sexual assault’.

Considering the nature of the offence and the sentence prescribed, Court opined that the aforesaid acts were not sufficient for fixing the criminal liability on the appellant/accused of the alleged offence of ‘aggravated sexual assault’.

“At the most, the minor offence punishable under Section 354-A(1)(i) of the IPC r/w Section 12 of the POCSO Act is proved against the appellant.”

Another point noted by the Bench was that as per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient for the offence.

The definition starts with the words – “Whoever with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person or does any other act with sexual intent……’ The words ‘any other act’ encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis.’ The act should be of the same nature or closure to that.

Bench expressed that the prosecution could establish that the appellant/accused entered into the house of the prosecutrix with the intention to outrage her modesty or sexual harassment as defined under Section 11 of the POCSO Act.

Hence, the conviction of the appellant/accused of the offence punishable under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act was maintained. The criminal appeal was partly allowed and the conviction of the appellant/accused of the offence punishable under Sections 8 and 10 of the POCSO Act, was quashed and set aside.[Libnus v. State of Maharashtra, 2021 SCC OnLine Bom 66, decided on 15-01-2021]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has stayed the controversial Bombay High Court judgment wherein the High Court had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that the accused had no sexual intent in committing the offence under POCSO Act because there was no direct physical contact, i.e., skin to skin.

The said order came after Attorney General for India K. K. Venugopal brought to the Court’s notice that the Nagpur Bench of Bombay High Court has passed a judgment dated 19.01.2021 is likely to set “a dangerous precedent”.

The Court, hence, permitted the Attorney General to file an appropriate petition against the said judgment and in the meantime, stayed the acquittal of the accused in the case in question.

The bench, further, issued notice to the accused and the State of Maharashtra returnable two weeks.

In judgment dated 19.01.2021, Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench, expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, the said would not amount to ‘sexual assault’.

The Bench expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.

[Attorney General for India v. Satish, 2021 SCC OnLine SC 42, order dated 27.01.2021]


ALSO READ

Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act?

Case BriefsHigh Courts

Bombay High Court: Pushpa V. Ganediwala, J., expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, the said would not amount to ‘sexual assault’.

Present appeal was filed against the Order passed by the Extra Joint Additional Sessions Judge, Nagpur by which the appellant was convicted for the offence punishable under Sections 354, 363 and 342 of the Penal Code, 1860 and Section 8 of the Protection of Children from Sexual Offences Act, 2012.

Factual Matrix

In the instant matter, it was noted that the prosecutrix’s age was 12 years. Prosecutrix went to bring guava and did not come back for a long time. Informant i.e. the mother (PW1) of appellant started searching for her, her neighbour told her that the appellant who was staying in the vicinity of their house, took her daughter to his house and showed her the house of the appellant.

PW1 went called out the prosecutrix’s name. Later, she saw the appellant coming down from the first floor. She asked the appellant about the whereabouts of her daughter. He denied the presence of the prosecutrix in his house. Further, the PW-1 searched for her daughter on the ground floor and then she went up to the first floor. The room was bolted from outside. She opened it and found her daughter.

Informant took out her daughter from that room and her daughter narrated the incident that on the pretext of giving guava to her, the appellant brought her to his house and pressed her breast and when he tried to remove her knicker, she shouted. Thereafter he went out, after bolting the room from outside.

Question for Consideration

Whether the ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act?

Appellant/accused was convicted for the offence of ‘sexual assault’ and added that as per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence.

Analysis and Decision

Bench expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.

 The above would certainly fall within the definition of the offence under Section 354 of the Penal Code, 1860.

“The act of pressing breast can be a criminal force to woman/girl with the intention to outrage her modesty. Minimum punishment to be provided for the said offence is 1 year, which may extend to 5 years and shall also be liable to fine.”

Further, the Court added that in the instant case, having regard to the nature of the alleged act by the appellant and having regard to the circumstances, in the opinion of this Court, the alleged act fits into the definition of the offence as defined in Section 354 of IPC.

Court also noted that the prosecution’s case was not that the appellant had removed her top and pressed her breast. As such, there was no direct physical contact i.e. skin to skin with sexual intent without penetration.

Bench while concluding, held that the appellant shall be acquitted under Section 8 of the POCSO Act and convicted under minor offence under Section 354 of IPC.

In light of the above, criminal appeal was disposed of. [Satish v. State of Maharashtra, 2021 SCC OnLine Bom 72, decided on 19-01-2021]


Advocates for the parties:

Sk. Sabahat Ullah, Advocate for the appellant.

J. Khan, APP for the respondent.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., while addressing the several questions on reporting by electronic media, expressed that:

“The duty of the press/media to have news items printed/telecast based on true and correct version relating to incidents worth reporting accurately and without any distortion/embellishment as well as without taking sides, cannot, therefore, be overemphasized.”

Genesis of the Several Public Interest Litigations

In the instant matter, several PIL’s cropped from the unnatural death of the actor Sushant Singh Rajput on June 14, 2020.

Insensitive and Disparaging Comments by News Channels

On June 20, 2020, a complaint was lodged against one of the prominent news channels before the Secretary, Ministry of Information and Broadcasting seeking action for insensitive and disparaging comments against the Indian Army and the coverage of the death of the actor, stated to be in defiance with the Programme Code.

Further, it was said that no action against the media channel was taken in regard to the complaint made.

Media Trials

Since the time of death of the actor, several prominent media channels have been literally conducting ‘media trials’ and ‘parallel investigation’ by conducting and broadcasting debates, rendering opinions, exposing the material witnesses, examining and cross-examining the witnesses, chasing the officials of CBI who were investigating the case.

Petitioners added that the above-stated telecast and broadcast are available in the public domain.

Sensationalization and Scandalize the death of the Actor

It is said that the prominent news channels in their attempt to sensationalize the issues have gone as far as displaying the CDR records which is a vital piece of evidence, thereby resulting in the several threat calls and messages sent to the alleged accused.

The petitioners say that to scandalize and sensationalize the death of the actor, irresponsible reporting to implicate one of the prominent ministers of the State of Maharashtra and have been making derogatory, false and distasteful remarks against several ministers.

Further, it was also pointed that the news anchors and reporters were examining and cross-examining all the proposed witnesses exposing the probable evidence to the public which could be examined only by the investigating agency or by the competent courts during the course of the trial.

Press Council of India

PCI had also issued a statement wherein it was stated that the coverage of the alleged suicide of the actor by many media outlets was in contravention of the norms of journalistic conduct.

Undermining the concept of free and fair trial

Petitioners submitted that the freedom of the media, especially of the TV channels, cannot be allowed to super stretch to a point where, by outpouring reprobate information, begins to clog and cloud the pellucid comprehension of ‘facts/news’ in the people’s minds and impinges upon free and fair investigation.

Fundamental Question

Whether the media under the garb of reporting news, can serve their own opinions as facts/news?

Petitioner observed that media works to create or induce opinions by narrating and reporting opinionated and tailored facts as news, which is beyond the scope, power and privilege accorded to the proverbial fourth pillar and a blatant abuse and misuse thereof.

Petitioners assert that media is plagued with the affliction of disproportionate reporting, which may be seen from the undue coverage given to inconsequential and mindless matters, unrelated to the greater good of the people of the country, as opposed to issues of national and international importance which the people are grappling with such as the COVID 19 crisis, mass joblessness, economic downfall, starvation, medical and healthcare structural problems, farmers issues, domestic violence, etc.

Adding to the above, petitioners stated that it is not the media’s domain to prove someone guilty a definitely no question of calling out someone guilty or innocent until the investigation and trial is complete.

Petitioners referred to the Supreme Court decision in Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1, wherein the Supreme Court has commented on the danger of serious risk of prejudice if the media exercises unrestricted and unregulated freedom, and stated that people at the helm of affairs should ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever.

Petitioners refer to the decision of the Supreme Court in R.K. Anand v. Delhi High Court, reported in (2009) 8 SCC 106, where the Supreme Court observed that it would be a sad day for the court to employ the media for setting its own house in order and the media too would not relish the role of being the snoopers of the court.

Observation

Contention that media houses have crossed the ‘Lakshman Rekha’

Bench opined that the petitions filed aimed at redressal of genuine public harm or public injury and involve substantial public interest.

Hence, the Court overruled the objections of the media houses to the maintainability of the writ petitions.

Important Legal Questions before the Court

  1. What does the expression “administration of justice in any other manner” in Section 2(c)(iii) of the Contempt of Courts Act, 1971 connote, and whether trial by media/pre-judgment while a police investigation is in progress could lead to interference with/obstruction to “administration of justice”, thereby constituting criminal contempt under the aforesaid section?
  2. Is it necessary to construe “judicial proceedings” in Section 3 of the Contempt of Courts Act, 1971 to have commenced with the registration of an FIR? Also, is it at all necessary to read Section 3 of the Contempt of Courts Act, 1971 in the manner the petitioner in PIL (St.) 2339 of 2020 urges us to read?
  3. Whether media trial in respect of matters pending investigation of a criminal complaint, fall within the restrictions as contained in the Programme Code as postulated under Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the rules framed thereunder?
  4. Whether the regime of self-regulation adopted by the news channels would have any sanctity within the statutory framework?
  5. While emphasizing on the need to strike the right balance between freedom of speech and expression and fair investigation/right to fair trial, to what extent, if at all, should press/media reporting be regulated if the same interferes with or tends to interfere with, or obstructs or tends to obstruct, “administration of justice”?

Further, the Court also proposes to address the following incidental questions:

  1. Are the guidelines for reporting cases of deaths by suicide sufficient? If insufficient, should further guidelines be laid down for reporting cases of deaths by suicide?
  2. Has the media coverage complained of in these writ petitions interfered with/obstructed and/or tends to interfere with/obstruct “administration of justice”, and thus amounts to criminal contempt within the meaning of section 2(c)(iii) of the Contempt of Courts Act, 1971? and whether criticism of Mumbai Police by the electronic media is fair?
  3. Is the accusation that the Ministry of Information and Broadcasting, Government of India, being the Nodal Ministry, has abdicated its statutory functions [under the Cable Television Networks (Regulation) Act and the rules framed thereunder read with the Policy Guidelines of 2011 and the license executed with the broadcaster] of deciding complaints received in respect of offending programmes, by forwarding the same to private bodies like the News Broadcasting Authority (NBA) and the News Broadcasters Federation (NBF), justified?
  4. Should an order be made, on facts and in the circumstances, postponing reporting of events by the media in respect of investigation by the CBI into the FIR registered by it pursuant to the complaint of the actor’s father? Also, is it necessary for the Court to suggest measures for regulating media coverage of incidents such as the one under consideration to address the concerns expressed in these writ petitions?

Analysis

  • Investigative Journalism

The controversy in the instant matter raises questions of contemporary importance touching upon the right of the press/media to express views freely, the right of the deceased to be treated with respect and dignity after death, the need to ensure investigation of the crime to proceed on the right track without being unduly prejudiced by media reports based on “investigative journalism”, and the right of the accused to a free and fair trial as well as the right to not be prejudged by the media.

“Right guaranteed by Article 19(1)(a) of the Constitution is not merely a right of speech and expression but a right to freedom of speech and expression.”

 In Supreme Court’s decision of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 the need to protect the ‘Freedom of Press’ was highlighted, which is the heart of social and political intercourse.

Further, the Court referred to in LIC v. Manubhai D. Shah (Prof.), (1992) 3 SCC 637, wherein the flavour of the right to freedom of free speech and expression was brought out by the Supreme Court.

 “What resonates in our ears now is whether the right guaranteed under Article 19(1)(a) is the most abused right in recent times?”

 To the above stated, Court answered in negative and expressed that “it is a reminder of what has at times been the unsavoury past of the press/media in India crossing the proverbial ‘Lakshman Rekha’.”

Rule of Law

There can be no two opinions that in a society governed by the rule of law, no price is too high to maintain the purity of administration of justice; and, as a Constitutional court, we have the power, nay the duty, to protect not only the Fundamental Rights of the citizens as well as the press/media in the judicious exercise of our jurisdiction under Article 226 of the Constitution but also to secure that the stream of administration of justice flows unsullied and unpolluted, uninfluenced by extraneous considerations.

 Supreme Court’s decision in Harijai Singh, In Re., (1996) 6 SCC 466 held that:

“10. But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving unrestricted freedom of speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible. In fact, the element of responsibility must be present in the conscience of the journalists.”

PCI Guidelines

Electronic media should also be guided by the contents of the guidelines of the PCI on reporting of death cases by suicide for two reasons: first, the said guidelines have a statutory flavour and similar such binding guidelines on reporting cases of death by suicide are non-existent for the electronic media; and secondly, the absence of such guidelines could lead to the dignity of the dead being breached with impunity.

The death of the actor was followed by such crude, indecent and distasteful news reporting by a few of the TV channels that we do not consider it worthy of being referred to here and be a part of this judgment.

Court’s Ruling

“No report/discussion/debate/ interview should be presented by the press/media which could harm the interests of the accused being investigated or a witness in the case or any such person who may be relevant for any investigation, with a view to satiate the thirst of stealing a march over competitors in the field of reporting.”

High Court opined that the press/media ought to avoid/regulate certain reports/discussions/debates/interviews in respect of and/or touching upon any on-going inquiry/investigation into a criminal offence.

Hence, Bench directed the press/ media to exercise restraint and refrain from printing/displaying any news item and/or initiating any discussion/debate/interview of nature, as indicated hereunder:

  1. In relation to death by suicide, depicting the deceased as one having a weak character or intruding in any manner on the privacy of the deceased;
  2. That causes prejudice to an ongoing inquiry/investigation by:

(i)  Referring to the character of the accused/victim and creating an atmosphere of prejudice for both;

(ii)  Holding interviews with the victim, the witnesses and/or any of their family members and displaying it on screen;

(iii)  Analyzing versions of witnesses, whose evidence could be vital at the stage of trial;

(iv)  Publishing a confession allegedly made to a police officer by an accused and trying to make the public believe that the same is a piece of evidence which is admissible before a Court and there is no reason for the Court not to act upon it, without letting the public know the nitty-gritty of the Evidence Act, 1872;

(v)  Printing photographs of an accused and thereby facilitating his identification;

(vi)  Criticizing the investigative agency based on half-baked information without proper research;

(vii)  Pronouncing on the merits of the case, including pre-judging the guilt or innocence qua an accused or an individual not yet wanted in a case, as the case may be;

(viii)  Recreating/reconstructing a crime scene and depicting how the accused committed the crime;

(ix)  Predicting the proposed/future course of action including steps that ought to be taken in a particular direction to complete the investigation; and

(x)  Leaking sensitive and confidential information from materials collected by the investigating agency;

  1. Acting in any manner so as to violate the provisions of the Programme Code as prescribed under section 5 of the CTVN Act read with rule 6 of the CTVN Rules and thereby inviting contempt of court; and
  2. Indulging in character assassination of any individual and thereby mar his reputation.

Role of Media Houses

Bench advised media houses to inform, guide and advise the guest speakers to refrain from making public utterances which are likely to interfere with and/or obstruct the administration of justice and thereby attract contempt.

The role of the anchor, in such cases, is also important. It is for him/her to apply his/her mind and avoid the programme from drifting beyond the permissible limits. Muting the speaker if he flies off or shows the tendency of flying off at a tangent could be one of several ways to avoid embarrassment as well as contempt.

Investigative Agencies

Court also reminded the investigative agencies that they are entitled to maintain secrecy in the course of the investigation and are under no obligation to divulge materials thus collected.

Further, the Court added that:

If indeed there is leakage or disclosure of materials, which has the potential of stifling a proper investigation, it could pave the way for such information being laid before the competent court having powers to punish for cri6minal contempt under Section 2(c) of the CoC Act and in an appropriate case, for being dealt with in accordance with law.

Appointment of an Officer as a Link between the Investigator and Media Houses

Agreeing with Mr Datar’s suggestion Court observed that:

Mumbai Police, as well as the other investigating agencies, may consider the desirability of appointing an officer who could be the link between the investigator and the media houses for holding periodic briefings in sensitive cases or incidents that are likely to affect the public at large and to provide credible information to the extent such officer considers fit and proper to disclose and answer queries as received from the journalists/reporters but he must, at all times, take care to ensure that secret and confidential information/material collected during the investigation, the disclosure whereof could affect the administration of justice, is not divulged.

In case an officer as stated above would be appointed, he would be expected to bear in mind the Supreme Court’s decision in Rajendran Chingaraveluv. R.K. Mishra, (2010) 1 SCC 457.

“Every journalist/reporter has an overriding duty to the society of educating the masses with fair, accurate, trustworthy and responsible reports relating to reportable events/incidents and above all to the standards of his/her profession. Thus, the temptation to sensationalize should be resisted.”

Therefore, in light of the above discussions, the Court disposed of the PIL’s filed.[Nilesh Navalakha v. Union of India, 2021 SCC OnLine Bom 56, decided on 18-01-2021]


Advocates for the Parties:

Mr. Devadatt Kamat, Senior Advocate a/w Mr. Rajesh Inamdar with Mr.Shashwat Anand, Mr. Pankaj Kandhari, Ms. Smita Pandey, Mr.Amit Pai, Mr. Vishal Jagwani, Kevin Gala, Siddharth Naik, Pinky Chainani, Mr. Ankur Azad, Mr. Sarveshwari Prasad, Mr. Rahat Bansal, Mr. Faiz Ahmad. i/b Mr. Pankaj Kandhari for Petitioners.

Mr. Anil Singh, Additional Solicitor General a/w Mr. Sandesh Patil, Mr.Aditya Thakkar, Mr.Amogh Singh, Ms. Apurva Gute, Mr. Chintan, Mr. Mayur Prashant Rane, Mr. Sumedh Sahakari, Mr. D. P. Singh, Ms.Reshma Ravapati, Mr. Saurabh Prabhulkar and Medvita Trivedi for respondent Nos.1, 4, 12 and 13.

Mr. Arvind Datar, Senior Advocate i/by Mr. Bharat Manghani for respondent 3 (NBA)

Mr. P. P. Kakade, Govt. Pleader with Mrs. R. A. Salunkhe, AGP for respondent 5 -State.

Mr. Rajeev Pandey with Mr. Madhur Rai i/by PRS Legal for respondent No.6(The India Today Group).

Mr. Kunal Tandon a/w Ms. Prachi Pandya i/by Corporate Attorneys for respondent No.7 (Times Now).

Ms. Malvika Trivdei a/w Mr. Saket Shukla, Mr. Vasanth Rajshekharan, Mr. Mrinal Ojha, Mr. Debashri Datta, Mr.Rajat Pradhan, Ms. Madhavi Joshi and Mr. Siddhant Kumar i/by Phoenix Legal for respondent 8 (Republic TV).

Mr. Angad Dugal, Mr. Govind Singh Grewal, Shiva Kumar, Tanya Vershney, Raj Surana a/w Rishi Murarka for respondent 9 (NDTV Ltd.).

None for respondent  10 (News 18).

Mr. Ankit Lohiya a/w Mr. Hetal Thakore, Mr. Kunal Parekh, Ms. Bhavika Tiwari i/by Dua Associates AOR Mumbai for respondent 11 (Zee News).

Ms. Hetal Jobhanputra for respondent No. 14 (ABP News).

Mr. Jayant Mehta a/w Mr. Alankar Kirpekar a/w Mr. Tejveer Bhatia, Mr. Rohan Swarop, Mr. Shekhar Bhagat i/by MAG Legal for respondent 15 (India TV).

Mr. Siddhesh Bhole, Mr. Rishabh Dhanuka i/by Alba Law Offices for respondent No. 16 (News Nation).

Mr. Siddharth Bhatnagar, Senior Advocate a/w Mr. Pralhad Paranjape for respondent No. 17 (NBF).

Case BriefsHigh Courts

Bombay High Court: S.M. Modak, J., dealt with some significant issues in a claim petition wherein a widow is earning and has prospects of remarriage.

The present matter dealt with a very interesting issue involving an appeal about the entitlement of widow to the compensation who got remarried during the pendency of petition before Motor Accident Claims Tribunal.

What is the effect of a marriage of widow on her right to claim compensation on account of the death of her husband in a vehicular accident?

Whether due to marriage, her right vanishes?

Further, the issue is whether an earning wife can be said to be dependent of her husband?

MACT did not reject the widow’s claim but allotted less share to her. Insurance company on being aggrieved with the same, came in appeal, wherein the submissions were as follows:

  • the widow was working since the beginning and she was earning separately and as such, she is not depending on the income of her deceased husband and
  • she lost her right to compensation on account of remarriage during the pendency of the petition.

Decision, Law and Analysis

Bench laid down the focus on the following issues:

a] Whether separate earnings of the widow has got any bearing on her right to claim compensation?

b] Whether remarriage of widow dis-entitles her from claiming compensation?

ISSUE OF DEPENDENCY & REMARRIAGE

Bench observed that though the tribunal had outrightly rejected the ground of remarriage, but it apportioned the amount of compensation lesser in comparison to the 2 children and mother.

While analyzing the issue, it was also stated that

The widow is certainly one of the heirs on which property of a Hindu devolves as per intestate succession. Now, it is interesting to see how the word ‘dependent’ has evolved. It has been judicially recognized that –

a] age of the deceased,

b] income of the deceased and

c] number of dependents

are 3 factors to be considered while fixing the quantum of compensation. From his earning the deceased will spend on himself and on his near relatives/dependents. So when a person dies in a vehicular accident, dependents/near relatives losses the amount contributed by the deceased towards them.

Supreme Court has laid down guidelines on how to calculate contribution to personal expenses and contribution towards dependents. It depends upon the status of the deceased (married/unmarried) and on the number of dependents.

More the number of dependents, lesser will be the contribution towards personal expenses.

Bench in view of the above discussion noted the fact that the eligibility of dependency does not come first, it comes later while arriving at the quantum of compensation. Issue of ‘legal representative’ will come first while entertaining the claim petitions.

Supreme Court in the decision of Manjuri Bera v. Oriental Insurance Company Ltd., (2007) 10 SCC 643, held that even married daughter residing with husband (though not dependent on the income of the father) being legal representative is entitled to claim compensation under Section 140 (no faulty liability) of the Motor Vehicle Act.

Punjab and Haryana High Court in Kartar Kaur. v. Manoj Kumar, 2014 SCC OnLine P&H 25130 held that

“Dis-entitling a woman on account of remarriage would go against the proposal of remarriage of widow after the death of the husband. Taking such drastic view would discourage the remarriage after the death of the husband.”

Similarly in National Insurance Company Ltd. v. Nidhi Goel, 2018 SCC OnLine P&H 6920, it is observed that –

“accepting the proposition of Insurance Company would militate against the right of widow to remarry and it would not be in public interest or in the interest of the Society at large.”

In view of the above decisions it can be found that a consistent view has been taken by all the Courts, that remarriage does not disqualify the widow from claiming compensation.

Continuing with the above analysis, Bench added that

the tribunal should consider the situation prevailing when the cause of action arises. At the time when the accident took place, the widow is the legal representative of the deceased, certainly, she is entitled to claim compensation. What we do is to determine the amount of compensation and its apportionment amongst the eligible persons. So when a widow approaches the Tribunal, she wants to exercise her right which has become part of her estate.

Hence, the Court agreed with the consistent view taken by the Courts.

APPLICATION OF MEASURES

In accordance with Supreme Court guidelines to have uniformity in arriving at the income, it can be stated that if the deceased is having 2-3 dependents, it is presumed that he spends 1/3rd on his personal expenses. If the deceased is having 4-6 dependents, it is presumed that he spends 1⁄4th of his income on his personal expenses.

CRUCIAL ISSUE

When she is having a separate income, whether the widow can be said to be depending on the income of the deceased?

There are two aspects with respect to the above issue:

One is deciding the percentage for personal expenses and towards the contribution of dependents.

Second is the apportionment of compensation which comes later.

As per the guidelines of the Supreme Court given in various judgments, if wife is considered as one of the dependents, then there is a tendency to spend more on an individual and percentage of spending on dependents will be less. If number of dependents is more, there is tendency to spend less on an individual and spend more on dependents.

In the instant case, Court observes that both the spouses are earning. Monthly salary available of the deceased is Rs 23, 431. Where salary of widow Pushpa (for the month of January 2014) had come to Rs 40,044.

Bench expressed that, Separate earning of the widow does not relieve the deceased husband from contributing towards the expenses.

To the above observation Court added that if the evidence on the point of spending by every individual spouse could have been available, this Court might have deleted the widow from the list of dependents.

Hence the Court affirmed the percentage of distribution arrived by the tribunal.

Therefore, High Court opined that case for deleting the widow from list of dependents is not made out by the Insurance Company and remarriage will divest the widow from her right to claim compensation.

APPORTIONMENT

Mother of the deceased was also having two earning sons. It is also their responsibility, so why she shall be given 30%? In fact, more attention towards the two children of the deceased should have been paid.

High Court felt that the widow does not deserve to get Rs 4,00,000 as she was already earning and prospects of re-marriage were there. She also had received service benefits of deceased and amount of L.I.C partially.

Amount was apportioned in the following manner:

Widow Rs 2,00,000  

50% of remaining amount of Rs 40,13,000 after deducting Rs 7,00,000

Son Rs 16, 56, 500
Daughter Rs 16,56,500
Mother Rs 5,00,000

[Bajaj Allianz General Insurance Company Ltd. v. Pushpa Narayan Khurde, First Appeal No. 1379 of 2018, decided on 18-12-2020]

Case BriefsSupreme Court

Supreme Court: In a case where the Bombay High Court declared that tribe “Gowari” is a part of Scheduled Tribe “Gond Gowari” thereby leading to several people taking benefit of Scheduled Tribes for admissions and employment, the bench of Ashok Bhushan*, R. Subhash Reddy and MR Shah, JJ has held that

“the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950.”

The Court, however, directed that the admission taken and employment secured by the members of ‘Gowari’ community on the basis of Scheduled Tribe certificate granted to them between 14.08.2018 till date, as a result of the High Court’s decision, shall not be affected and they shall be allowed to retain the benefit of Scheduled Tribe obtained by them.

“However, the above Scheduled Tribe candidates shall not be entitled to any further benefit as Scheduled Tribe except their initial admission in different courses or employment at different places on the strength of Scheduled Tribe certificate given to the ‘Gowari’ Community obtained between 14.08.2018 and this day.”

On 14.08.2018, Bombay High Court, Nagpur Bench had declared that tribe ‘Gowari’ was a part of Scheduled Tribe ‘Gond Gowari’ and that ‘Gond Gowari’ shown as item No.28 in Entry 18 of Scheduled Tribes Order, 1950, is not a sub-tribe of ‘Gond’.

On declaration that “Gond Gowari” is not a sub-tribe of “Gond”

The validity of caste certificate to ‘Gond Gowari’ has to be tested on the basis of affinity test as specified in the Government Resolution dated 24.04.1985. The Government of State of Maharashtra, Tribal Development Department has issued G.R. dated 24.04.1985 where the State Government has referred to “Gond Gowari” as small sub-Tribe of Gond and non-Scheduled Tribe caste was referred as Gowari.

“As per Article 342(1), tribes or tribal communities or parts or groups within tribes or tribal communities shall for the purposes of the Constitution be deemed to be Scheduled Tribes. There has to be some purposes for joining number of tribes together in one entry, but with regard to ‘Gond Gowari’ the affinity is more than apparent with ‘Gond’.”

The expression ‘Gond Gowari’ clearly expresses that the community ‘Gond Gowari’ has to do with tribe ‘Gond’. The entry of ‘Gond Gowari’ in Scheduled Tribes Order 1950 was as a sub-tribe of ‘Gond’ which is clear from a report of the Backward Classes Commission, 1955. When the inclusion of the entry ‘Gond Gowari’ was as (subtribe of Gond), its affinity with ‘Gond’ cannot be ignored on any basis.

On tribe ‘Gowari’ being declared a part of Scheduled Tribe ‘Gond Gowari’

When the State has expressly written to the Government of India on 06.11.1981 that ‘Gowari’ community does not fulfill the criteria of Scheduled Tribe and thereafter after 1984, several studies were conducted by Tribal department in State of Maharashtra including report dated 12.05.2006 which reaffirms that ‘Gond Gowari’ and ‘Gowari’ are distinct community and ‘Gowari’ is not Scheduled Tribe, the High Court could not have observed that it accepts the view of the Central and State Government that ‘Gowari’ community be included in the Scheduled Tribe Order

Further, the recommendation to include Gowari as a separate Scheduled Tribe was forwarded by the State of Maharashtra in the year 1979 which was withdrawn in 1981 and after 1981 the State’s stand has been that “Gond Gowari” and “Gowari” are two separate castes and Gowari is not entitled for the benefit of Scheduled Tribe certificate.

On extinction of tribe “Gond Gowari” prior to 1911 and only “Gowari” existed

The High Court itself in its judgment noticed and found the mention of “Gond Gowari” in Census of 1891 and 1901. However, the basis of Census in 1911 was changed, and classification was made on the basis of traditional occupation in which group IV was of Forest and Hill Tribes and Group V was of Graziers and Dairymen. The figures of 1911, 1921 and 1931 showed that in Group V Graziers and Dairymen, there was mention of Gowari.

However, mere fact that in Censuses of 1911, 1921 and 1931 figures were given only of Group V, i.e., Graziers and Dairymen and there was no mention of “Gond Gowari” cannot lead to conclusion that “Gond Gowari” have become extinct before 1911.

“A Scheduled Tribe which admittedly was in existence and had a distinct identity shall not be treated to have become extinct merely because the basis of Census has been changed in the subsequent years. The benefit given to a Scheduled Tribe cannot be taken away on the basis of figures given in Census operation only.”

The inclusion of sub-Tribe as “Gond Gowari” in the Constitution (Scheduled Tribes) Order, 1950 was on 29.10.1956 when sub-Tribe “Gond Gowari” was included in the Scheduled Tribe list it has to be presumed that the said inclusion was after consultation with the State and after considering the relevant materials. The High Court could not have questioned the inclusion of the Scheduled Tribe “Gond Gowari” in the Constitution (Scheduled Tribes) Order, 1950.

Further, when before the High Court Scheduled Tribe certificates of “Gond Gowari” were filed in large number and there were documents to support by the revenue entries some of which are prior to 1950 and which certificates were sought to be quashed in the writ petition, the existence of Scheduled Tribe “Gond Gowari” was very much found.

“The Caste Scrutiny Committee having validated the said certificates it was not open for the High Court to say that Scheduled Tribe “Gond Gowari” became extinct prior to 1911.”

The Court, hence, concluded that none of the reasons given by the High Court are sustainable to hold that ‘Gowari’ are entitled to Scheduled Tribes Certificate of ‘Gond Gowari’.

“The entire basis of the judgment of the High Court that tribe ‘Gond Gowari’ was completely extinct before 1911 having been found to be flawed, the entire basis of judgment is knocked out.”

[State of Maharshtra v. Keshao Vishwanath Sonone,  2020 SCC OnLine SC 1040, decided on 18.12.2020]


*Justice Ashok Bhushan has penned this judgment

Counsels heard

For State of Maharashtra: Senior Advocate Shyam Divan and advocate Ravindra Keshavrao Adsure,

For Union of India: Additional Solicitor General Sanjay Jain

For Zanaklal Bhaisaku Mangar: Senior Advocate C.U. Singh,

For Respondents: Senior Advocate Mukul Rohatgi and Advocate Bansuri Swaraj

COVID 19Hot Off The PressNews

Bombay High Court

Advocates and the parties appearing in-person that, considering the precautionary measures due to outbreak of COVID-19, Chief Justice nominated Judges to hear the matters physically at the Principal Seat at Bombay, on an experimental basis with effect from 1st December 2020 to 10th January 2020 (Excluding Vacation).

Standard Operating Procedure (SOP) for the resumption of physical hearing at the Principal Seat, High Court of Bombay has also been stated in the following notice below.

Read the detailed notice to know the Judges nominated, here: NOTICE


Bombay High Court

[Notice dt. 27-11-2020]

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., while setting aside the orders pronounced by the Courts below observed that,

“the law already gives a remedy to claim maintenance to a daughter under the provisions of Hindu Adoption and Maintenance Act even if she is a major by age and unmarried and dependent on her father.”

The instant application was moved by the applicant–father under the provision of Section 482 of the Code of Criminal Procedure, 1973 questioning the Judicial Magistrate’s Order allowing interim maintenance under Section 125 CrPC.

Applicant’s Counsel, Runwal invited the Court’s attention to Section 125 of CrPC, particularly clause (b) & (c) of sub-section 1.

According to the counsel, the father has an obligation to maintain the daughter who is not married, however, the said provision does not confer any right in major daughter to claim an interim after such daughter attains majority and if she is physically or mentally not suffering from any abnormality or injury.

Court’s attention to the provisions of Section 20 of the Hindu Adoption and Maintenance Act was also invited. Further, he relied on the decision of Supreme Court in Abhilasha v. Prakash, 2020 SCC OnLine SC 736.

Respondent — Daughter urged that the act of trial court of not deciding the application for maintenance for years together cannot be viewed or come to the help of the applicant particularly when Statute contemplates an obligation on the applicant-father to pay maintenance to a minor daughter pursuant to the provisions of Section 125(1) of CrPC.

Analysis and Decision

If the scheme of clause (c) of sub-section (1) of Section 125 of CrPC is considered, what is appreciated is, legitimate or illegitimate child (not being a married daughter) who has attained majority who by reason of any physical or mental abnormality or injury, if unable to maintain herself, can claim maintenance from father or a person who has sufficient means and who has neglected or refused to maintain.

What is required to be appreciated in the instant case is that even if the respondent — daughter who has attained majority and she is already getting expenses as was ordered in proceedings under the Hindu Marriage Act and interim maintenance.

In accordance with the Supreme Court decision in Abhilasha v. Prakash, 2020 SCC OnLine SC 736, it was made clear that under Section 20 of the Hindu Adoption and Maintenance Act, right of an unmarried daughter to claim maintenance from her father when she is unable to maintain herself is absolute. Such right is granted under the personal law which such daughter has every right in law to enforce against her father. As such, right under Sub-section 3 of Section 20 of the said provisions is recognized to be existing to claim maintenance after she attains majority till her marriage, from her father.

“Unmarried daughter is entitled to claim maintenance from her father till she is married even though she has become major which right is recognized under Section 20 (3) of the Hindu Adoption and Maintenance Act.”

Court stated that a daughter can claim maintenance under the Hindu Adoption and Maintenance Act even if she is major by age and unmarried and dependent on her father.

Magistrate failed to appreciate the above-stated intricacies of the provisions of Section 125(1)(c) of CrPC and right of a daughter under Section 20(3) of the Hindu Adoption and Maintenance Act.

Further, the Bench observed that the Courts below committed an error in awarding interim maintenance to major daughter in the exercise of powers under Section 125 CrPC.

Hence, in view of the above, the present application needs to be allowed.[Sanjay J. Phagnekar v. State of Maharashtra, 2020 SCC OnLine Bom 3382, decided on 23-11-2020]

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., allowed an application seeking waiver of the cooling-off period on an urgent basis in light of woman carrying pregnancy from another person.

Parties to the instant matter tendered the joint petition for divorce by mutual consent pursuant to the provisions of Section 13B of the Hindu Marriage Act, 1955.

The above-stated proceedings were initiated before the Family Court and accompanied with the application for waiving statutory period provided under Section 13B (2) of the Hind Marriage Act, 1955. But the same was rejected by the impugned order dated 09-9-2020.

Petitioners Counsel submitted that the parties stayed separately since December 2018 till date and are unable to live together.

Another significant point to that was brought before the Court was that the petitioner was carrying pregnancy from another person with whom she intends to settle by performing marriage and that being so, there is an urgency in the matter.

Respondents Counsel consented to the submissions made by the Petitioner Counsel and submitted that he is equally supporting the Petitioners case for waiving the statutory period.

Bench perused the Supreme Court’s decision in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, wherein it was observed that:

“…Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.”

In the present matter, Court opined that in the present matter it will be appropriate in the fitness of things, particularly having regard to the medical/health condition of the petitioner, to allow the joint application moved for waiving the period as specified under Section 13B of the Hindu Marriage Act.

High Court directed the Family Court to decide the divorce application expeditiously. [Kovelamudi Kanika Dhillon v. Kovelamudi Surya Prakash Rao,  2020 SCC OnLine Bom 2054, decided on 26-10-2020]

Case BriefsHigh Courts

Bombay High Court: Prithviraj K. Chavan, J., while addressing the present matter throws light on the aspect of indulging in prostitution and the purpose and object of the Immoral Traffic (Prevention) Act, 1956.

PROSTITUTION

Petitioners are victims of a crime registered by the Police under the Immoral Traffic (Prevention) Act, 1956, alleged to have been compelled to involve themselves in prostitution, their identity, therefore, needs to be concealed. Hence the petitioners are to be referred to as “victims (A), (B) and (C)”.

BACKGROUND

A police constable approached the office of Social Service Branch, Mumbai informing that he was informed by P.I. Mr Revle that a person by the name of Nijamuddin Khan, a pimp provides women for prostitution at a gues house in Malad.

On receiving the above-stated information, a trap was arranged and the raiding team left for the spot after which victim girls were arrested and taken into custody.

The victim girls were produced before the Metropolitan Magistrate. Intermediate custody of the girls was given to Navjeevan Mahila Vasti Griha, Deonar, Mumbai, and were allowed to contact their family members/parents.

In the report filed by the Probation officer, it was revealed that the victim girls belonged to the “Bediya” community.

BEDIYA COMMUNITY

A custom prevails in the community wherein a girl, after attaining puberty is sent for prostitution.

The parents of the victims were aware that the victims are engaged in prostitution, meaning thereby, the parents themselves are allowing to indulge in prostitution as a profession for their daughters’ and, therefore, the learned Magistrate observed that it would not be safe to hand over the custody of the victims to their mothers.

Since the victims were not safe with their parents as the parents have no objection for the victim girls to live their life as prostitutes, the victims were directed to be detained in the shelter home wherein the Counsellor would counsel the victims to restrain from prostitution.

Magistrate observed that the victim girls need to sent to their native place Kanpur.

Magistrate had passed a detaining order for a period of one year for the care, protection, shelter and vocational training in the subject of their liking, in the Navjeevan Mahila Vastigruha, Deonar, Mumbai or with any other institution, which has been challenged in the present petition.

ANALYSIS & DECISION

Bench observed that, there were no charges qua the victims that they were carrying prostitution in public.

The inquiry as contemplated under Section 17(2) of the said Act appeared to have been carried in a very casual manner.

Section 17(4) implies that an order under the said Section can only be passed subject to the provision of sub-section (5) of Section 17 of the said Act. Sub-section (5) contemplates that while discharging the function under sub-section (2), the Magistrate will have to summon a panel of 5 respectable persons, 3 of whom shall, wherever practicable, be women to assist him in that regard.

Purpose and Object of the Act is not to abolish the prostitution or the prostitute.

There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.

What is punishable under the Act is sexual exploitation or abuse of person for commercial purpose and to earn the bread thereby, except where a person is carrying on prostitution in a public place as provided in Section 7 or when a person is found soliciting or seducing another person in view of Section 8 of the said Act.

BROTHEL

Bench added in regard to the present matter that there is nothing on record to show that the petitioners were seducing any person for the purpose of prostitution nor there is any material to show that they were running a brothel.

Magistrate has been swayed away while passing the impugned order by the fact that the petitioners belong to a particular caste.

Hence before passing the impugned order magistrate ought to have considered the willingness and consent of the victims before ordering their detention in the protective home.

Therefore, the same needs to be quashed.

“…victims being major, their fundamental rights to move from one place to another place or to reside at a place of their choice and choose their vocation has to be considered. They cannot be subjected to unnecessary detention contrary to their wish.”

The present matter is also not something where setting the victim free would cause some danger to society. It is nearly one year that the victims have been detained in the corrective home against their wish and, therefore, for the reasons stated herein, they need to be released. [Kajal Mukesh Singh v. State of Maharashtra, 2020 SCC OnLine Bom 954, decided on 24-09-2020]

Case BriefsHigh Courts

Bombay High Court: Anil S. Kilor, J., decided an appeal wherein the claim petition was rejected by the Motor Accident Tribunal on certain grounds.

FACTS

Deceased Baby was traveling in a jeep owned by respondent 1. It has been stated that the vehicles’ driver was driving at a high speed and in a negligent manner resulting in a violent dash to a tree.

In view of the above incident, the husband of the deceased Baby and her two sons filed a claim petition under Section 166 of the Motor Vehicle Act claiming Rs 5,00,000 towards compensation.

Insurance Company |Breach of Condition of Insurance Policy

Respondent 2 i.e the Insurance Company resisted the claim by filing a written statement on the grounds that the driver of the offending vehicle was not holding a valid motor driving license on the date of the accident and the jeep was insured for private use but it was used for commercial purpose in breach of a condition of the Insurance policy.

Since the claim petition was rejected by the tribunal, the present appeal was filed.

Counsel for the appellants, P.R. Agrawal; K.B Zinjarde, Counsel for the legal representatives of respondent 1 owner of the offending vehicle and S.K. Pardhy, Counsel for the Insurance Company.

Analysis and Decision

Bench on perusal of the grounds of rejection by the tribunal examined the correctness and legality of the same.

Ground 1:

Claim is based on falsity

Registration of births, those who born in remote areas like the deceased Baby or the appellant 1, have a lesser likelihood of registration of their birth and possessing a birth certificate.

In absence of schools in remote tribal areas till the recent past, it was not possible to take education for many. Hence no school record in respect of date of birth is also available.

Therefore, there is a practice of mentioning the approximate age.

The Court found no ill-intention of the claimants in mentioning the age of the deceased as 38 years.

Hence, the rejection of the claim petition by the Tribunal on the ground that the case of the claimant is based on falsity is erroneous.

Ground 2:

Husband of the deceased Baby, being an earning member, cannot claim compensation for death of his wife in the accident

The deceased was a housewife, therefore, claimants have lost personal care and attention given by the deceased.

A housewife holds the family together. She is a pillar support for her husband, a guiding light for her child/children and harbor for the family’s elderly.

In regard to the importance of the role of a housewife, High Court referred to the decision of the Supreme Court in Arun Kumar Agrawal v. National Insurance Company Ltd., (2010) 9 SCC 218.

Further, the Court stated that,

“…the loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife and further for loss of gratuitous and the multifarious services rendered by the housewives for managing the entire family.”

Hence, the claim of the claimants on the ground that the husband and the major sons are not entitled to claim compensation on the death of the wife or mother, appears to be in ignorance of the well-established principals of law.

In Court’s opinion, the deceased being a woman and mother of two children would have also contributed her physical labour for the maintenance of the household and also taking care of her children. Therefore, being a labourer and maintaining her family, her daily income should be fixed at Rs 200 per day and Rs 6000 per month.

Ground 3:

The private vehicle was used for commercial purposes in breach of conditions of the Insurance Policy moreover the driver was not holding a valid licence.

In view of the Supreme Court decision in S. Iyyapan v. United India Insurance Company Ltd., 2013 (6) Mh. L.J. 1 and this Court’s decision in Dnyaneshwar v. Raju, 2020(1) Mah. Law Journal 377, wherein it was held that it is the vicarious liability of the owner of the vehicle to pay compensation even if due to rash and negligent driving of the driver, the accident had occurred.

Thus, in view of the above-stated position, ground 3 was also rejected.

DECISION

High Court held that it is the statutory duty of the Insurance Company to pay the amount of compensation even in breach of a policy condition.

Court directed the Insurance Company to pay the compensation amount in three months.

In view of the aforesaid terms, the appeal was allowed. [Rambhau v. Shivlal, 2020 SCC OnLine Bom 935, decided on 17-09-2020]

Hot Off The PressNews

Due to an acute shortage of staff because of heavy rains in Mumbai today, the Benches are unable to take up the matters on their respective boards.

Judicial Proceedings for the day have been suspended. Those matters on the board today will be taken up tomorrow, i.e. 24th September, 2020.

Please refer the notice here: NOTICE


Bombay High Court

[Notice dt. 23-09-2020]

Case BriefsHigh Courts

Bombay High Court: G.S. Patel, J., while addressing a petition observed in the context of sealed cover submissions that,

“…it is not possible for any party to unilaterally decide to put material into a sealed cover. Since I have made it clear that I am not permitting any sealed cover submissions, there is no question of any party arrogating itself any such right or privilege of any such in any circumstance.”

Bench noted that a large number of identical matters have been filed and the list grows daily. Anugrah Stock and Brokers Pvt. Ltd. a ‘Trading Member’ on the National Stock Exchange is the sole respondent in some cases and 1st respondent in four or five cases. It is being represented by Mr Cama.

Wherever Anugrah is the  1st respondent, 2nd respondent is Teji Mandi Analytics Pvt Ltd. a sub-broker.

The said petitions are under Section 9 of the Arbitration and Conciliation Act 1996 invoking an arbitration provision mandated by the Rules of the NSE.

Petitioners Claim | Promising very high returns, Anugrah lured investors

Anugrah caused the petitioners extensive financial and monetary loss. Accusations of illegal and unauthorised trades are accompanied have also been placed.

Court notes that the collective losses when computed would somewhere appear to be in the double-digit crores and probably in hundreds of crores.

Curiously the financial securities said to be held by Anugrah are almost worthless. Though bench states that it seems unreasonable to accept that a company that was doing such a high volume of business and acquiring so many expensive assets, would have itself keep so very little in such financial investments.

Sealed Cover

Some additional material by the clients of Mr Cama has been placed in a sealed cover.

In the context of sealed cover, Court stated:

In any case, I am making it abundantly clear that at least in my Court there is no question—and there will never be a question—of anything being done ‘in sealed cover’.

Anything that I can see, all parties before me are entitled to see as this is the only method that I know of to ensure an open and transparent decision-making process.

All the details in the sealed cover are to be placed on affidavit.

To the above, Mr Cama apprehends that the material will find its way into the press to which the bench stated that the said is not its concern.

I decide matters before me on the basis of the papers filed in Court, not newspapers delivered to my doorstep. The press exists for a reason. It has a purpose, one that it serves. I cannot and will not curtail the rights of the free press at the instance of this or that party. I refuse to proceed on the basis that the press is always irresponsible.

Court asked Mr Cama if his clients were willing to deposit their passports to which the counsel stated that his clients will not leave the country without prior permission of the Court and the passports are already with the Economic Offences Wing.

Further, Court Receiver accordingly will proceed to take symbolic possession of all the assets noted in the Affidavit in Reply.

For the properties in Ahemdabad, private receiver will be appointed as the Court Receiver cannot visit that city.

The director of Teji-Mandi (which is now going to be the 2nd Respondent in all matters) and who has affirmed the Affidavit on behalf of Teji-Mandi, is directed not to leave the country without prior permission of this Court obtained after at least four clear working days’ notice to the Advocates for the Petitioner.

Matter to be listed on 05-08-2020.[Raveej Kumar (HUF) v. Anugrah Stock & Brokers Pvt. Ltd., 2020 SCC OnLine Bom 946, decided on 18-09-2020]

Case BriefsHigh Courts

Bombay High Court: Anil S. Kilor, J., while addressing the present petition observed that,

“Unless and until the lapse on part of the trustee is proved to be actuated by dishonestly, the drastic action under Section 41-D of the Bombay Public Trust Act, 1950 may not be warranted.”

The present appeal questions the dismissal of proceeding under Section 41-D(5) of the Bombay Public Trust Act, 1950 upholding the removal of appellants from posts of President, Secretary and Trustees of the Trust by the Joint Charity Commissioner, Nagpur.

Respondents 1 to 7 are claiming to be trustees whereas the appellants dispute the same. An application was filed under Section 41-D against the appellants and respondent 8 for removal of them from their respective posts.

Allegations against appellants and respondent 8 were of misappropriation of non-salary grant and amount of fees of the students and procurement of hand loan without any resolution of the Managing Committee and in violation of Section 36(A) of the Act, 1950.

Counsel for the appellants Shambharkar, Counsel for respondent’s 1, 2, 5 and 7 Jibhkate, Senior Advocate R.L. Khapre, assisted by D.R. Khapre, counsel for the respondent 3 and 4, A.G.P for respondent 9.

Analysis and Decision

Section 41D(1)(c) makes it clear that the Charity Commissioner may either on the application of a trustee or any person interested in the trust, or on receipt of a report under Section 41B or suo motu suspend, remove or dismiss any trustee of public trust, if he, continuously neglects his duty or commits any mal-feasance or misfeasance, or breach of trust in respect of the trust under clause (c) of Sub-Section 1 of Section 41-D of the Act, 1950.

Bench had considered the scope of inquiry under Section 41D of the Bombay Public Trust Act in the case of Mukund Waman Thatte v. Sudhir Parshuram Chitale, 2012 SCC OnLine Bom 392.

Court states that “Misfeasance” as used in Clause (c) of Section 41D is more than mere negligence of the trustee to perform his duty.

“Misfeasance” includes breach of duty by the trustee which would result into loss to the trust or would cause unlawful gain to such a trustee, charged with the act of misfeasance.

Further, the above Judgment makes it clear that imputation reflecting on the integrity of trustees has to be fortified by proof of high degree which will have to be higher than the standard of proof required in civil proceedings.

Unless and until the lapse on part of the trustee is proved to be actuated by dishonestly, the drastic action under Section 41-D of the Act, 1950 may not be warranted.

Courts below have committed error in holding that the appellants have committed malfeasance and misfeasance or breach of trust in respect of Trust.

Bench also held that the orders and judgments passed against appellant 2 by both Courts below are without jurisdiction.

Hence, the Court does not want to go into the issue raised by the counsel for the appellants that the respondents 1 to 7 are removed from the trusteeship of the Trust, as an answer, either way to the said issue will not change the result of the present proceeding because even if they are held to be removed as trustees, they are ‘persons having an interest in the Trust’ which is sufficient to maintain the application under Section 41-D of the Act, 1950. [Eknath Tukaramji Pise v. Rama Kawaduji Bhende, 2020 SCC OnLine Bom 934, decided on 17-09-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., directs railways to allow Advocates to travel by local trains for physical hearings on an “experimental basis”.

Possibility as to whether lawyers who are appearing in the High Court before the Benches which are taking physical hearing, permission to travel by local trains to be discussed.

Advocate General, as well as Additional Solicitor General, had fairly consented to consider the said request on an experimental basis.

Advocate General after taking instructions has placed on record a brief note which would set out the arrangements that can be made for lawyers who are attending the physical hearing before the High Court.

Further, Additional Solicitor General has also taken instructions from the railways and would state that in principle, the railways are also agreeable for this arrangement to be set into motion as suggested on behalf of the State.

Bench stated that in view of the present situation Court can only consider the request in regard to the advocates and no one else.

Accordingly, the Court accepts the arrangement as suggested on behalf of the State and as agreed on behalf of the railways which would be in effect from 18-09-2020.

In view of the above, Court passed the following order:

  • Advocate concerned intends to physically appear before the Benches of this Court at its principal seat at Mumbai shall apply to the designated Registrar of the High Court seeking a day’s pass relating to the particular date only on which his/her matter is listed for hearing before one of the four Benches of this High Court.
  • The designated Registrar only after confirming the correctness of the claim so made in the application in terms of the present arrangement via email will issue a certification of the requirement for a particular day to the advocate concerned.
  • Upon receipt of such certification from the designated Registrar, the advocate concerned will approach the railway authorities to obtain appropriate pass/document for travel or ticket permitting him/her to avail the local train services, for the particular day for which travel permission is required.
  • Railway authorities after verifying the pass so issued will issue appropriate travel documents/tickets etc., as the case may be, permitting travel by local train services to the advocate for the particular day.

The above-stated arrangement will be available to the advocate only who satisfies all the above conditions.

Bench states that in case the certification issued by the Registrar is misused, it would be open for the Bar Council of Maharashtra and Goa to take appropriate actions.

All the proceedings adjourned to 06-08-2020. [Chirag Chanani v. Union of India, 2020 SCC OnLine Bom 929, decided on 15-09-2020]

Appointments & TransfersNews

President appoints Justices (1) Shriram Madhusudan Modak, (2) Jamadar Nijamoddin Jahiroddin, (3) Vinay Gajanan Joshi, and (4) Avachat Rajendra Govind, Additional Judges of the Bombay High Court, to be the Permanent Judges of the Bombay High Court.

Read the notification, here: NOTIFICATION


Ministry of Law and Justice

[Notification dt. 09-09-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of A.A. Syed and S.P. Tavade, JJ., addressed the grievance of a petition with regard to the conduct of examinations in its College Campus which has been requisitioned as a COVID Centre.

Petitioner made a pint that in the college campus belonging to the petitioner-trust, it is running various educational courses which was requisitioned by an order dated 27-03-2020 by invoking the provisions of the Disaster Management Act and is being used as a Corona Care Center.

Submission has been made that the above-said premises is now required, as it is an examination center for the 2nd-year P.B.B.Sc Nursing Course.

Adding to the above, it was stated that the said premises is being used as COVID Care Center, the patients who are admitted to the said COVID Care Center are asymptomatic and they can be shifted elsewhere so that the said premises can be used for conducting the examination.

Petitioner hence sought the directions to release the said premises from the requisition and further directions to shift the COVID patients admitted in the said premises to alternate premises.

Decision 

High Court stated that it will not pass any mandatory orders considering the paucity of time and risk involved in the health and safety of the students to write the examination in said premises which is presently being used as COVID care center.

Further, it was added that there appears to be a substantial risk involved in transferring the COVID positive patients.

In case the said patients are transferred, then the premises will have to be deeply sanitized and made virus-free.

Therefore, respondents-authorities shall ensure that for 80 students who are to write the examination of the 4th year, either at St. Jyotiprasad School, Daund (which is stated to have 40 rooms) or St. Sebastian High School Daund (which is stated to have 35 rooms) shall be made available from 8th September, 2020 to 16th September, 2020.

For students travelling from the outstation, necessary arrangements shall be made.

Court also directed the SDO, Purandar to oversee the aforesaid arrangements to ensure that the examination is conducted smoothly. 

Matter to be listed on 23-09-2020. [Daun Medical Foundations’ Sushrusha v. State of Maharashtra, WP (ST) No. 92378 of 2020, decided on 04-09-2020]