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 ver 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., LD-VC-COMM-Arbitration Petition No. 30 of 2020, 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]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ujjal Bhuyan and Abhay Ahuja, JJ., while addressing an issue with regard to the Cooperative Societies, made an observation that,

We find it a bit perplexing that for a dispute having its genesis in charging or billing of an individual shareholder member, drastic steps, such as, dissolution of the managing committee and appointment of Administrator have been resorted to.

Petition challenges the Order passed by the Dy. Registrar i.e. respondent 2 directing the Shyamrao Vitthal Co-operative Bank — respondent 4 not to allow the petitioner to operate the Society bank account and challenging the order passed by respondent 2 also directing respondent 4 Bank to permit the administrator appointed by respondent 2 to operate the bank account of Viddhisha Shantiniketan CHS Ltd. i.e. Respondent 7 Society.

Bench on perusal of the facts and circumstances of the present case noted that the present matter is a very hotly contested dispute between the office bearers of the Society on the one hand and an individual of the Society on the other hand.

High Court declined to entertain the present petition as the appeal is still pending for the present matter.

Court directed respondent 3 to decide the pending appeal so that the day-to-day functioning of the Society is not hampered due to the dispute.

Till the disposal of the appeal is done Society shall be jointly managed under the Chairmanship of the petitioner and the Respondent 6 only for day to day affairs including payment of municipal taxes, light bills and other outgoings of Respondent 7 Society.

Bench added to its direction that respondent 4 shall unfreeze the account to allow the operation of the respondent 7 account.

Co-operative societies are now a part of the constitutional scheme as cooperative societies have been inserted in the Constitution of India as Part IX B by way of the Constitution (Ninety-seventh Amendment) Act, 2011 w.e.f 15-02-2012.

Therefore, in view of the above-stated position, co-operative societies should have the necessary space and autonomy to function and develop to its full potential. Also, interference in their matter should be avoided unless there is a serious statutory breach.

Court disposed of the present petition in view of the above terms. [Rambujarat Ramraj Chaurasia v. State of Maharashtra, 2020 SCC OnLine Bom 901, decided on 02-09-2020]

Hot Off The PressNews

Bombay High Court exempts Advocates from wearing gowns while appearing before the Courts in the course of physical hearing till further orders.  However, Advocates should wear a black coat and white band.

Read the notice here: NOTICE


Bombay High Court

[Notice dt. 31-08-2020]

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J., granted bail to an accused observing that his act by itself does not amount to recce.

Applicant sought release on bail for offence registered under Section 396 of the Penal Code, 1860.

Govind Tulshiram Surase in the FIR stated that his father was working as a watchman and on 26-03-2019, he had left to attend his duty at around 8.30 PM but did not return the next morning.

After searching for long Informant’s father was found dead in the cabin of a dumper parked on the highway with injuries on his person.

In view of the above FIR was lodged against unknown persons and applicant was arrested.

Applicant’s counsel submitted that there is hardly any evidence against the applicant. The informant’s statement mentioned that he had seen 3 persons come near the spot and left without any communication with anybody.

Applicant’s counsel further added that the case against the present applicant appeared that he had conducted Recce around the spot and therefore he was sought to be roped in as one of the offenders.

Circumstance being very weak, he deserves to be released on bail.

Decision

Bench on considering the submissions stated that the allegation against the applicant with regard to conducting reccee of the spot is not supported by any cogent evidence.

Further, the witnesses gave no description of the persons who had conducted recce.

In any case if some unknown person had come to the spot and left the spot that by itself may not amount to conduct of recce.

Court added that the statement is based on mere suspicion and subsequent identification of the applicant in the test identification parade is not of much importance.

Hence the applicant was granted bail with some conditions.[Akash R. Lokhande v. State of Maharashtra, 2020 SCC OnLine Bom 887, decided on 28-08-2020]

Case BriefsHigh Courts

Bombay High Court: M.G. Sewlikar, J., in reference to the judgment pronounced by this Court on 21-08-2020, with regard to the quashing of FIRs again foreign nationals who indulged in Tablighi Jamaat, stated that it agreed with the operative part of the Judgment but does not agree with some reasoning and the reasons has been given now.

In the present order, M.G. Sewilkar, J., lays down the reasons that were reserved.

Bench states that the material on record does not show that the foreign nationals were infected with COVID-19 when they landed in India, neither there is any material of visa conditions being violated.

Further, it adds that,

“Continuation of prosecution against the petitioners in these circumstances would be an abuse of process of Court.”

Therefore, M.G. Sewlikar, J. accepted the reasons laid down in the earlier Judgment except for the following observations:

“35) There were protests by taking processionse holding Dharana at many places in India from atleast from prior to January 2020. Most of the persons participated in protest were Muslims. It is their contention that Citizenship Amendment Acte 2019 is discriminatory against the Muslims. They believe that Indian Citizenship will not be granted to Muslim refugees and migrants. They were protesting against National Registration of Citizenship (NRC). There were protests on large scale not only in Delhie but in the most of the States in India. It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for any thing can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countriese action will be taken against them. Thuse there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice is important consideration when relief is claimed of quashing of F.I.R. and the case itself.”

Hence, he opined that the above-stated observations are outside the scope of the petitions and quashed the FIRs and Chargesheets. [Konan Kodio Ganstone v. State of Maharashtra,  2020 SCC OnLine Bom 877, decided on 27-08-2020]


Also Read:

Bom HC “smells malice” in State action against Tablighi Jamaat foreign nationals; Quashes all FIRs; Makes scathing observations against “media propaganda”  

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and Madhav J. Jamdar, JJ., permitted the limited conduct of rituals of Muharram with the specified route and other restrictions.

Petitioner states that it is the oldest organization of the Shia Community.

Petitioner sought appropriate writ, order or direction to allow the rituals of Muhurrum to be performed during the present pandemic till 30-08-2020 daily for two hours.

Bench while pronouncing the order stated that since the present order is being passed as and by way of exception, is not intended to be used as precedent by other persons, to seek permissions, to hold any festivals which would involve by their very nature congregation of people.

General Secretary Shri Habib Nasir on behalf of the Shia Community gave the following undertakings:

  • There will be only one Taziya, which will be carried from Zainabia (Bhendi Bazar) Mumbai to Byculla Mazgaon, Shia Cemetry, situated at Mumbai, in the entire State. No other Taziya other than the one mentioned hereinabove will be carried anywhere in the State.
  • Aforestated Taziya will be carried from Zainabia (Bhendi Bazar) Mumbai to Byculla Mazgaon, Shia Cemetry, situated at Mumbai, via J.J. Hospital, Prince Ali Khan Hospital, Sales Tax Office circle in a truck i.e. transport vehicle large enough to accommodate it.
  • In no case whatsoever, any congregation of people at any point from the beginning till the end of the said journey of aforesaid one Taziya will be allowed.
  • One Taziya will be carried along the aforesaid route on Sunday 30th August 2020 from 4.30 p.m. to 5.30 p.m.
  • Not more than five persons will carry the aforesaid one Taziya on a truck, as aforesaid along with one videographer. However, after taking the aforesaid one Taziya down near the graveyard, it will be carried on foot, for a distance of not more than a hundred meter. The names, age and addresses of these five persons will be submitted with the office of the Police Commissioner, Mumbai by 5.00 p.m., on 29th August, 2020.
  • Petitioner and all its members will strictly abide by the rest of the guidelines issued by the Home Department, State of Maharashtra, regarding Muhurrum-2020, dated 19th August, 2020.

Further, the High Court also directed the State Government to impose a restriction over the gathering of people at the appropriate places by issuing appropriate orders including the point where aforesaid Taziya is to start its journey till the point where the journey will end.

To keep the traffic clear and escort the above-stated truck carrying Taziya, one pilot car shall also be provided by the State.

In view of the above, petition was disposed of.

[All India Idaara-E-Tahafuz-E-Hussainiyat v. State of Maharashtra, 2020 SCC OnLine Bom 881, decided on 28-08-2020]


Counsels for petitioner Rajendra Shirodkar, Senior Advocate Asif Naqvi, Jafer Nadeem, Archit Shirodkar i/b. Shehazad Naqvi.

A. A. Kumbhakoni, Advocate General a/w. Purnima Kantharia, Govt. Pleader, Geeta Shastri, Addl. Govt. Pleader, Akshay Shinde, B Panel Counsel for the Respondents.

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sunil B. Shukre and Anil S. Kilor, JJ., while addressing the present public interest litigation held that,

“…no insistence can be made by a person donating his money in his discretion upon making of public disclosures of utilization of the fund money on a public platform bypassing the proper platform provided under the Trust Act applicable to a charitable trust like the “P.M. CARES Fund”.

Petitioner makes it clear that the purpose of the present petition is not to challenge and dispute the creation of the P.M. CARES Fund, the only concern put forward by the petitioner is the presence of an element of seclusion in the fund in its functional and operational dynamics.

Right to know the exact position of the fund

Petitioner submits that as a citizen of India as well as a small donor to the P.M. CARES Fund, he has every right to know the exact position of the account of the fund and as to why all the trustees on the Board of Trustees as per the scheme of the fund have not been nominated by the Hon’ble Chairperson of the fund.

Transparency

Further, the petitioner contends that in the interest of transparency, it is necessary to direct the Board of Trustees to make public all the money received in the fund as of date and also disbursements made from the fund from time to time.

Decision

Bench states that even though the power has been conferred upon Chairperson to nominate three trustees, the power is of enabling nature only making it possible for the Authority to nominate three trustees to the Board, and that there is no further mandate that the power must also be exercised in order to fully constitute the Board of Trustees.

Hence the said submission was rejected by the Court in view of the above-stated reasons.

Transparency

Another point raised by the petitioner was with regard to the issuance of direction to the Authority of the fund to nominate at least two out of three Trustees in the category of eminent persons.

He submitted that it is an admitted fact that the fund so set up is a dedicated national endeavour to provide relief to the persons in a distressed situation, and so there would be a requirement of maintaining high transparency in the operation of the fund and this would be possible if at least from amongst three trustees of eminence, two trustees are nominated and appointed from opposition parties of national character.

Bench for the above-stated contention said that it has no mooring in law.

If there is no provision made in the Trust Deed for inducting some members of the opposition political parties into Board of Trustees by nomination, and there is also no such requirement of law, which is the case here without any dispute, there is no way that an outsider like the petitioner in person would knock at the doors of this Court to invoke the extraordinary jurisdiction of this Court to seek the direction to the trust to amend its Trust Deed.

Audit of the Fund

Issuance of a direction to quash and set aside the unilateral decision taken by the fund, without there being full Board of Trustees, to appoint SARC Associates as Chartered Accountant for conducting the audit of the fund.

Bench observed that it has already been established that the power of the Hon’ble Chairperson of the fund to nominate three eminent persons as trustees is enabling in its nature, not mandating. 

For the purpose of appointment of M/S SARC Associates, Court stated that,

“…an enabling provision confers a discretion on the enabled Authority and that being so, no writ can lie to compel the Authority to exercise the discretion and that too the way it is desired by a party.”

Ensure receipts into the fund are from proper sources and the outgoing from the fund are consistent with funds object.

Why the public disclosure rather than why not the public disclosure?

Court stated that the very object can be seen to be more than fulfilled in the present case by registration of the fund as a charitable trust under the Registration Act, 1908, and making of an appointment of a Chartered Accountant as Auditor who would be bound to balance and audit accounts of the fund in accordance with the provisions contained in the Trust Act.

Bench observed that various statutory provisions contained in the applicable Trust Act provide an effective mechanism to ensure that the working of the charitable trust does not go haywire and that its affairs and properties are managed in a way as to fulfill the objects of the trust.

Judicious use of public interest jurisdiction

Hallmark of public interest litigation is that a class of persons, unable to pursue individual rights, is indirectly before the Court through a person who moves the Court, having no personal interest in the outcome of the proceedings.

Court cited the decision of Supreme Court in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 for the purpose of public interest jurisdiction.

Through various decisions, Supreme Court has also held that, it is only when there is an injury to the public because of the dereliction of constitutional obligations on the part of the government, Court can perhaps scrutinize the impugned action.

Further, having considered the nature and purpose of the public interest litigation jurisdiction and also its perils and pitfalls, a doubt immediately arises whether or not a prayer asking for public disclosure of the receipts into and outgoings from the fund could be looked into even cursorily and on a deeper contemplation on the issue?

Court answered in negative for the above-raised question. It stated that in the Trust Act there is already a mechanism provided to achieve the purpose for which public disclosure has been sought.

Secondly, the Court noted that, the very matter of public interest or curiosity cannot be the subject matter of PIL and that the Constitutional Courts are not expected to conduct the administration of the country, or to be more precise, of a charitable trust.

“When statutory provisions comprehensively covering all aspects of the administration and management of the trust and its properties exist and they also provide a mechanism for effective redressal of grievances in a specific manner, there is no room left for hearing the very grievances by way of a PIL.”

In the case of invoking exceptional public interest jurisdiction, a case raising the points for gross violation of constitutional or statutory provisions must be made out.

While concluding, Court held that no insistence can be made by a person donating his money in his discretion upon making of public disclosures of utilization of the fund money on a public platform bypassing the proper platform provided under the Trust Act applicable to a charitable trust like the “P.M. CARES Fund”.

Hence in view of the above petition was dismissed. [Arvind K. Waghmare v. PM Cares Fund, 2020 SCC OnLine Bom 879, decided on 27-08-2020]


A.K. Waghmare, Advocate and petitioner in person; Anil Singh, Additional Solicitor General of India for respondent 1 to 8; N.P. Mehta, Addl. Government Pleader for Respondents 6 to 8 and S.M. Puranik, Advocate for Respondent 9.

Case BriefsHigh Courts

Bombay High Court: A Division Bench of T.V. Nalawade and M.G. Sewlikar, JJ. has quashed all FIRs filed against the foreign nationals who indulged in Tablighi Jamat. Justice Nalawade pronounced the Judgment authored by him, in which certain scathing observations were made which are quoted verbatim:

“There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading the Covid-19 virus in India. There was virtually persecution against these foreigners. A political Government tries to find the scapegoat when there is pandemic or calamity and the circumstances show that there is a probability that these foreigners were chosen to make them scapegoats. The aforesaid circumstances and the latest figures of infection in India show that such action against present petitioners should not have been taken. It is now high time for the concerned to repent about this action taken against the foreigners and to take some positive steps to repair the damage done by such action.”

Interestingly, however, it is to be noted that the brief of the Judgment which follows is based on the observations and reasoning of Justice Nalawade only. As Justice Sewlikar has agreed only with the operative part of the Judgment but has “disagreed with some reasoning”. It has been stated that the reasoned Judgement of Justice Sewlikar will follow.

Also, after the Judgment was pronounced, M.M. Nerilkar, APP, requested the Court to put a stay on the order. This request was, however, not acceded to by the Court.

Case against the petitioners

The prosecution case was that the petitioners-foreign nationals had come to Ahmednagar in groups with some Indian nationals and they had visited many places, they were living in masjids (mosques) during their stay. On 14-3-2020, Covid-19 lockdown was declared by the Maharashtra State Government and by the notification dated 23-3-2020 direction was given to close the religious places. Powers were given to District Authorities by the Government to exercise powers under the Epidemic Diseases Act, 1897. By exercising these powers, District Magistrate had issued prohibitory orders and directions were given to close all public places. In spite of prohibitory orders and conditions of visa, the petitioners indulged in Tablighi activity. Announcements were made at public places to ask the persons who had attended Markaz Masjid to come forward voluntarily for testing them in respect of Covid-19 virus, but they did not come forward voluntarily and they had created threat of spreading Covid-19 virus. It was necessary for them to give necessary information to the local authority in Form ‘C’, but they had given incorrect addresses in Form ‘C’ and they were actually living in Masjids. Visa conditions prohibited Tablighi work by foreign national tourists. Therefore, charge-sheets were filed against the petitioners under Sections 188, 269, 270 and 290 of the Penal Code and various provisions of the Maharashtra Police Act, 1951; the Epidemic Diseases Act, 1897; and the Disaster Management Act, 2005.

It is noticed that people are afraid of test taken for detection of virus. That is why the infected persons are brought very late to the hospitals and they die. In the present matter, it is not the case of the State that the petitioners were hiding in Masjid or other place in Ahmednagar to avoid the test.

Petitioners’ case

It is the contention of the petitioners, who are mainly foreign nationals, that they came to India on a valid visa issued by the Government of India and they have come to experience Indian culture, tradition, hospitality and Indian food. On their arrival at the airport, they were screened and tested for Covid-19 virus and only when they were found negative for virus, they were allowed to leave the airport. They were visiting various places of India and particularly Ahmednagar to observe the religious practices of Muslims. After their arrival in Ahmednagar district, they had informed to District Superintendent of Police about their arrival and that was done much prior to the date of registration of the crime against them. Due to the lockdown, the vehicular moment was stopped and the persons were not allowed to leave the residential places to prevent the spreading of Covid-19. The masjid had given shelter to them as due to lockdown order, hotels and lodges were closed. Some order was issued by the Collector, but that was not actually prohibitory order and they were not involved in illegal activity including the breach of order of District Collector. Even at Markaz, they had observed norms of physical distancing. While granting visa, they were not asked to inform local authorities about their visit to those places, but they had informed local officers. Under the conditions of visa, there was no prohibition to visit religious places like masjids and there was prohibition to visit containment areas and the connected areas with regard to defence matter. They were not involved in a breach of orders or in propagating Muslim religion.

In view of the Articles of Indian Constitution like Articles 25 and 21, when visa is granted to foreigners, such foreigners cannot be prevented from visiting masjids, if they go there to observe religious practices or to offer only namaz.

What is Tablighi Jamat

As noted by the Court, Tablighi Jamat movement was founded by Maulana Mohammad Iliyas in 1927 in Delhi and this movement is popular in villages and peasants. This movement is focused on religion rather than political aspects of Islam and this movement spread throughout Muslim world from 1950 onwards. Muslims from all over the word come to India as they are attracted to the reform movement of Tablighi Jamat and they visit Markaz Masjid from Delhi. It is a continuous process and it appears that there are arrangements of the stay also made by the Muslims at Markaz Delhi. Considering the dates of arrival of the petitioners to India and their departure from Delhi also shows that there was no particular day fixed for the congregation or any function. Initially, the Court thought that for some function arranged by Tablighi Jamat at Markaz, the foreigners had come, but the record shows that there was no function and it is a continuous activity. From so many years Muslims from various countries have been coming to India to visit that place and they have been coming on a tourist visa. The visits of these foreigners to masjids from India were not prohibited and even discourse was not prohibited. The activity of Tablighi Jamat got stalled only after declaration of lockdown in Delhi and till then it was going on. There is nothing on the record to show that this activity is prohibited permanently by the Government. These things needs to be kept in mind while considering the cases filed against the petitioners.

There is nothing on the record to show that the Indians were prevented from accommodating persons in the Masjid or from supplying meals to the persons including the foreigners. The statements of the witnesses recorded by police are stereotype and it can be said that word to word, line to line and para to para of the statements are copied.

Court’s opinion and decision

The main thrust of the prosecution was on breach of so-called conditions of the visa. The other main contention was in respect of breach of orders issued by the authorities created under the Disaster Management Act, 2005 and the orders issued under Epidemic Diseases Act, 1897.

(i) On violation of Visa Conditions

If there is breach of visa conditions, it can be said that offence under Section 14(b) of the Foreigners Act is committed by the foreigners. To make out this offence, it needs to be shown that there was some visa condition in existence at relevant time and the foreigners have acted in breach of that condition.

Perusing the latest updated Visa Manual, the High Court noted that “there is no restriction on foreigners for visiting religious places and attending normal religious activities like attending religious discourses”.

Discussing the evolution of Tablighi Jamat and the meaning of “discourse”, the Court observed:

Every religion has evolved over the years due to reformation as reformation is always necessary due to the changes in the society and the development achieved in the material world. In any case, even from the record, it cannot be inferred that the foreigners were spreading Islam religion by converting persons of other religion to Islam.

The Court also noted that the record showed that the foreigners were not talking Indian languages like Hindi or Urdu and they were talking languages like Arabic, French, etc. It was concluded that it can be said that the foreigners may have the intention to know the ideas of Tablighi Jamat about the reformation. It was stated that unless a particular programme of a foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in religion or society, one cannot prevent the foreigner from expressing his ideas about reformation. There is no such specifc allegation also against the foreigners. Nothing is said as to which ideas the foreigners were propagating.

The record shows that there is allegation that they were reading Quran and religious books of Muslims and delivering lectures to Muslims in Masjid. The allegations are very vague in nature and from these allegations inference is not possible at any stage that they were spreading Islam religion and there was intention of conversion. It is also not the case that there was element of persuasion on any point from these foreigners.

Having noted that freedoms under Article 19 are not available to foreigners, the Court stated that it needs to be kept in mind that when the permission is given to the foreigners to come to India under visa, at least Article 25 comes in to play. Then there are Articles 20 and 21 which are also available to foreigners.

Record shows that it was not made known to the holders of visa that they were prohibited from visiting Masjids or staying in Masjid. On the contrary, in the past and in updated guidelines instructions were issued to the effect that they were allowed to visit the religious places.

Considering the schedule of petitioners’ arrival in India and the dates when they were taken in custody, the Court said that there is more possibility that they got infected in India and they were not already infected when they arrived in India. Further, admittedly screening at the airport was done of these petitioners before allowing them to leave the airport. The Court reiterated that criminal cases cannot be tried on suspicion.

“Reformation is continuous process in every religion and such process is necessary for peaceful co-existence. Unless a particular programme of such foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in that religion or society, one cannot prevent the foreigner from expressing his ideas about reformation”

Noting India’s culture and tradition of “Atithi Devo Bhav” which means that our guest is our God, the Court said that the circumstances of the present matter create a question as to whether we are really acting as per our great tradition and culture. During the situation created by the Covid-19 pandemic, we need to show more tolerance and we need to be more sensitive towards our guests particularly like the present petitioners. The allegations made show that instead of helping them we lodged them in jails by making allegations that they are responsible for violation of travel documents, they are responsible for spreading of virus, etc.

Finally, noting provisions of the Constitution, the Court concluded:

“Article 20 of the Constitution of India shows that the acts which were not prohibited at the time when they were committed cannot be treated as offence and violation of law subsequently. In view of the record which is already discussed, it was not possible to go with the presumption that there was a violation of visa conditions.”

In such circumstances, the Court held that the material was not sufficient to make out prima facie case for the offence punishable under Section 14(b) of the Foreigners Act.

(ii) On “Smell of Malice”

Discussing what must have tempted the authorities to issue such directions against the foreigners like the petitioners,  the Court noted that the action of Central Government was taken mainly against Muslim persons who had come to Markaz Delhi for Tablighi Jamat. Similar action was not taken against other foreigners belonging to other religions. Due to these circumstances, the background of the action and what is achieved needed to be considered by the Court. IT was observed:

“There were protests by taking processions, holding dharana at many places in India from atleast prior to January 2020. Most of the persons participated in protest were Muslims. It is their contention that the Citizenship Amendment Act, 2019 is discriminatory against the Muslims. They believe that Indian citizenship will not be granted to Muslim refugees and migrants. They were protesting against National Registration of Citizenship (NRC). There were protests on large scale not only in Delhi, but in most of the States in India. It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countries, action will be taken against them. Thus, there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice is an important consideration when relief is claimed of quashing of FIR and the case itself.”

  (iii) On violation of District Authority’s orders

Perusing the record and discussing the alleged offences against the petitioner, the Court was not inclined to accept that there was any violation of the order passed by District Authorities. The Court went on to observe:

“It is a fact that many foreigners of other countries are sent back by the Central Government without making any inquiry. Social and religious tolerance is a practical necessity for unity and integrity in India and that is also made compulsory by our Constitution. Through hard work over the past years after independence, we have reconciled religion and modernity to a great extent. This approach helps participation of most in developing process. We have been respecting both religious and secular sensibilities since independence and by this approach, we have kept India as united.”

The Court concluded that Maharashtra police acted mechanically. It appears that the State Government acted under political compulsion and police also did not dare to exercise powers given to them under provisions of procedural law like CrPC and substantive laws. The record shows that there was non-application of mind by police and that is why even when no record was available to make out prima facie case, charge sheets are filed by police.

Therefore, it was held that it will be abuse of process of law if the petitioners are directed to face the trial in aforesaid cases. As a result, all FIRs filed against the petitioners were quashed by the Court.

[Konan Kodio Ganstone v. State of Maharashtra, 2020 SCC OnLine Bom 869, decided on 21-08-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and R.I. Chagla, JJ., quashed and set aside the unreasonable restriction placed by the State of Maharashtra on prohibiting the actors, crew members, etc. who are above the age of 65 years from being present at the site of the shooting of films/television series/Over The Top Media (OTT) in light of the same being discriminatory.

Petitioner is an actor by profession who had challenged the condition imposed by the Government of Maharashtra’s Resolution according to which persons above the age of 65 years are prohibited from remaining present at the site of the shooting of films/television series/Over The Top Media (OTT).

Discriminatory and Arbitrary

The government resolution is discriminatory, arbitrary and violative of Article 14 of the Constitution of India because at the time the same was issued, Central, as well as the Maharashtra Government, had relaxed the general prohibition on the movement of persons above the age of 65 years.

Right to Carry on Trade and Occupation

As against this, a prohibition on the movement of persons above the age of 65 years continued to operate in the film and television industry. It is also submitted that the impugned condition is an unreasonable restriction on the petitioners’ right to carry on their trade and occupation, as also the impugned condition deprives the petitioner of his right to earn a livelihood with dignity.

Government Pleader for the Respondent State, Purnima H. Kantharia submitted that the Government of Maharashtra’s Resolution is based on Centres’ order passed under the DM Act.

Further, he added that, the restrictions are in the interest of persons with low or weak immunity as the disease is easily communicable.

The restriction is not absolute. Persons above the age of 65 years may work from home, over video conferencing, email, video sharing etc.

Until the Central and State Governments relax the guidelines, the Respondent is bound to strictly implement the aforesaid Orders issued under the DM Act, as the MHA Orders specifically provide for strict enforcement of the Lockdown Orders by the respective State Governments.

“…though the Impugned Condition reads as a prohibition, no coercive action will be taken against anyone above the age of 65 years who chooses to remain present at the site of the shooting of films/television series / OTT. The prohibition is issued in the interest of the health and safety of persons who are above the age of 65 years and is to be read as such.”

Analysis and Decision

Bench while analysing the facts and circumstances of the case, started while stating that Sections 38 and 39 of the DM Act empower the State Government to take measures to deal with the disaster at hand, which in this case is the Covid-19 pandemic.

Keeping the above in mind and being fully conscious of the hardship and risks posed by the Covid-19 pandemic, Court first considered the challenge to the impugned condition under Article 14 of the Constitution of India.

Intelligible Differentia

In Court’s opinion, impugned condition was not based on any intelligible differentia.

Whilst there may be a nexus with the object sought to be achieved, i.e. to protect vulnerable people from the Covid-19 pandemic, there is no intelligible differentia between persons who are 65 years of age or above in the cast/crew of films and TV shootings on the one hand and persons who are 65 years of age or above in other sectors and services, permitted under prevailing lockdown orders.

Thus, there is discrimination in the disparate treatment of persons who are 65 years of age or above in the film or television industry and in the other permitted sectors and permitted activities and no explanation on the said aspect has been given by the State Government.

Hence, Impugned Condition, therefore, cannot be sustained in view of the well-settled principles enunciated under Article 14 of the Constitution of India.

Further, the said impugned condition also failed to take into consideration the relevant material, namely the relaxation contained in orders dated 30th May 2020 and 31st May 2020 issued by MHA and the Government of Maharashtra respectively, which reads as an advisory for persons above the age of 65 years.

Impugned Condition in light of Article 21 of the Constitution

Citing the decision of Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545, it was stated that the Righto Earn a livelihood and the Right to Live with Dignity are well-established facets of the Right to Life guaranteed under Article 21 of the Constitution.

Court added that coming to the conclusion that the impugned condition cannot be sustained on account of it being discriminatory and arbitrary, stated 

“we are satisfied that the absolute prohibition as regards persons above the age of 65 years who earn their livelihood from the film industry (which is allowed to operate), is a measure that violates the Petitioner’s right to live with dignity under Article 21 of the Constitution and the restriction imposed by the Impugned Condition in relation to a specific sector or industry that is now allowed to operate, cannot constitute a valid procedure established by law.”

Hence, on perusal of the above observations, the Court held that if there are no general prohibitions on persons above the age of 65 years from working or practicing their trade in those sectors and businesses which are allowed to operate, an age-based prohibition in only one industry namely the film industry/television / OTT, without any material to support its differential classification, would constitute an unreasonable restriction.

The stated impugned condition was quashed and set aside in view of being an unreasonable restriction. [Pramod Pandey v. State of Maharashtra,  2020 SCC OnLine Bom 846, decided on 07-08-2020]


Also Read:

Bom HC | How a physically fit person of 65 years age or above is expected to live a dignified life if not allowed to go out & earn livelihood? Maharashtra Govt to respond

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ, and A.S. Gadkari, JJ., deferred the hearing for PIL’s filed in view of the unnatural death of Sushant Singh Rajput, a film actor.

In the present two Public Interest Litigations, it has been sought that CBI should be entrusted with the investigation into the unnatural death of a film actor, Sushant Singh Rajput.

Advocate General for the State, A.A. Kumbhakoni informed the Court that a petition with similar relief was moved before the Supreme Court, but the same was dismissed.

The petitioner on being asked for the copy of the petition stated answered in negative and added that the Supreme Court while dismissing the petition granted liberty to approach this Court.

Another significant point that the Court noted was the Supreme Court’s order dated 5-08-2020 wherein a status report has been called for from the State of Maharashtra in regard to the stage of investigation by Mumbai Police.

Hence, the Advocate General for the State states that the Court may not pass any order on the present petition and may await the Supreme Court’s decision.

Additional Solicitor General, Anil Singh submitted that on acceptance of the request of the deceased father, the CBI has already registered an FIR, inter alia, under Section 306 of the Penal Code, 1860. He has also questioned the approach of the Mumbai Police in quarantining an IPS officer of the Bihar cadre, who had come to Mumbai for the purpose of ascertaining facts, although four other officers of Bihar Police who had earlier visited Mumbai were not meted out such treatment.

Hence in view of the above stated, Court while deferring the hearing till 21-08-2020, stated that CBI has registered an FIR and it would not be appropriate, at this stage, to express any opinion either way.

It would be just and proper to await the orders of the Supreme Court in the pending Transfer Petition, referred to above. [Priyanka Tibrewal v. UOI, 2020 SCC OnLine Bom 848, decided on 07-08-2020]


Also Read:

Sushant Singh Rajput death case| SC asks Mumbai Police to submit status of investigation so far; says truth must come out

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and M.S. Karnik, JJ., partly allowed an appeal by reducing the sentence of the accused in light of the sentencing policy.

In the present matter, the lower Court’s decision was challenged.

Appellant faced trial for alleged commission of the offences punishable under Sections 307 along with 341 of the Penal Code, 1860.

Prosecution Version

Victim used to reside with her brothers at her maternal uncle’s house and worked as a babysitter. Appellant-Accused and the victim were residing in the same area and eventually from acquaintance they turned into lovers.

Victim’s uncle objected the affair, after which the victim stopped meeting the appellant-accused. Later, she expressed her clear refusal to continue the relationship.

On victim’s refusal, appellant-accused kept threatening her and on one occasion he had beaten her up too as he wanted her to marry him.

Day of the incident

Appellant- accused suddenly entered the rickshaw in which the victim was seated. The victim was pulled out of the rickshaw. The appellant-accused threatened the rickshaw driver and forced him to leave. The appellant-accused assaulted the victim with his fists and pulled her to the footpath.

On her refusal, the appellant-accused took out a knife from the right side pocket of his pant and inflicted injuries on her neck.

At that time, one police vehicle arrived. The appellant-accused ran away from the spot. The victim was taken to the hospital and on the basis of her statement, the offences under Section 307 and 341 of the IPC came to be registered.

Submissions

Appellant-accused’s counsel submitted that the cardinal principle of sentencing policy is that the sentence imposed on the offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence.

APP on behalf of the respondent-State submitted that the sentence imposed by the trial Court in the facts and circumstances of this case cannot be said to be unjustified. In support of his submission that the appellant-accused deserves no leniency, he relied on the Supreme Court’s decision in State of M.P. v. Kashiram, (2009) 4 SCC 26.

Decision

In view of the facts and circumstances of the case, bench stated that it would be profitable to refer to the decision of the Supreme Court in State of Punjab v. Bawa Singh, (2015) 3 SCC 441, in the context of duty of the Court to award proper sentence, wherein the following was stated:

“16. ………… undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.”

In the present case, Court opined that the sentence imposed by the trial court required to be reduced.

The aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court.

Court stated that in view of the dicta of the Supreme Court, “we are conscious of the social impact of the crime against women cannot be lost sight of and per se require exemplary treatment.”

Hence, considering the totality of circumstances, the imposition of sentence of imprisonment for life by the trial court appears to be harsh and hence the same needs to be reduced by maintaining the conviction.

Therefore, sentence of 10 years would meet the ends of justice. [Arumugum Arundatiyar v. State of Maharashtra, 2020 SCC OnLine Bom 844, decided on 05-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of T.V. Nalawade and M.G. Sewlikar, JJ., directed that the persons who are aggrieved with regard to the care and treatment amidst the COVID-19 Pandemic can approach the Court directly.

Court has taken suo moto cognizance to see that all the authorities from all the districts which are under Court’s jurisdiction become active and they remain active till the virus is active.

Bench further observed that, the Court had earlier in of the orders directed the authorities to supply information with regard to the steps taken by them to contain the spread of virus in the village area.

“…on one hand the number of infected persons in city area is coming down on the other hand the number of infected persons from rural area is going up and the trend is still in upward direction.”

Though the inter-district travel has been prevented till 31-08-2020, yet, persons from cities like Pune, Mumbai, Mumbai Metropolitan Region (MMR), etc. returned to their native places also some have bought properties in smaller cities and shifted themselves due to the virus spread.

In the line with the observations, another observation by the Court was when Justice T.V. Nalawade went for Court inspection to Jalna. He went with necessary pass and at the entry point of Jalna, he noticed that there was no strict checking and police force posted there were not asking to show pass to anybody. Casual inquiry was being made with the travellers and they were allowing the vehicles from Aurangabad side to Jalna side. This approach must have helped in spreading of the virus in the parts of this region.

Strict vigil needs to be kept and unless that is done, the authorities will not be in a position to control the things.

Further with regard to public servants, Court stated that,

“…in the situation which is created by the virus the public servants need to be tested and the servants who are useless need to be removed from the service by fling complaints against them in police station under the special Enactments like Epidemic Disease Act, 1897, Disaster Management Act, 2005 etc.”

Further, the Court expects that every order made by this Court is communicated to the authorities from all the districts which are under the jurisdiction of this Court. These orders need to be communicated to the private institutions like private hospitals as action can be taken against them under the provisions of Special Enactments.

Another complaint that the Court noted was of an infected person who had no supply of oxygen and was complaining about breathlessness, but nobody was there to supply oxygen to him. Eventually, he died that night.

Culpable Homicide not amounting to Murder

Bench stated that, when such grievance as stated above are present, it becomes the duty of the authorities concerned to fix the responsibility and give the complaint to police as such conduct is not less offence of than culpable homicide not amounting to murder.

CCTV System

Court wants affidavit of all the authorities or concerned officers to show that there is an installation of a CCTV system in isolation centers. CCTV systems should be installed in private hospitals also where the treatment is being given to infected persons.

Court added that, in our society, there are many who cannot afford to pay charges of private hospitals. It is learned that many poor persons and the persons who have no influence are not able to get admissions in hospitals even when they are infected.

Hence, in view of the above circumstances, the Court allows all those persons who have a grievance with regard to the care and treatment of infected persons to approach the Court directly.

State to supply information in respect of reservation of beds in designated hospitals and use of those beds. Information about the availability of ventilators and the deaths due to the non-availability of ventilators also needs to be supplied.

Information on action taken against negligence shown in treatment to be given to the Court.[Registrar (Judicial) v. UOI, 2020 SCC OnLine Bom 836, decided on 31-07-2020]

Hot Off The PressNews

Due to acute shortage of staff because of heavy rain today, the Benches are unable to take up the matters on their respective boards. Judicial Proceedings for the day, thus, stand suspended. Those matters on the board today will be taken up tomorrow, i.e. 05th August 2020, through Video Conference.

Read the notice here:

NOTICE


Bombay High Court 

[Notification dt. 04-08-2020]

Appointments & TransfersNews

SC Collegium approves appointment of 4 Additional Judges of Bombay HC as Permanent Judges

Supreme Court Collegium has approved the proposal for appointment of following Additional Judges of Bombay High Court as Permanent Judges of that High Court:

  • Justice S.M. Modak,
  • Justice Jamadar N. Jahiroddin,
  • Justice Vinay G.Joshi, and
  • Justice Avachat R. Govind

STATEMENT


Supreme Court Collegium

[Collegium Statement dt. 21-07-2020]