Case BriefsHigh Courts

Bombay High Court: Convicting a person under Section 304 Part I of Penal Code, 1860 Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., held that,

On finding that there was no hope that his beloved wife would return to matrimonial abode, accused got enraged an lost self-control and assaulted his wife with whatever available just nearby.

Appellant was convicted for the offence under Section 302 of the Penal Code, 1860.

Factual Matrix

Appellant was married to the deceased Kamal in 2002, in 2015 PW 4 sister of Kamal lodged a report alleging that her sister had disclosed to her that her husband suspected her chastity and was harassing and ill-treating her.

Later, accused had called upon PW4 and enquired about the whereabout of his wife, however, PW4 had feigned ignorance about the whereabouts of Kamal and then a missing complaint was filed by him.

It was also stated that Kamal had refused to return her matrimonial abode and thereafter, she was assaulted by the accused with pestle.

Analysis, Law and Decision

Bench noted that the present case of the prosecution was that the accused was insisting upon his wife to return to her rightful matrimonial abode with a hope that the crises would be ironed. Though the deceased denied the offer. 

It was as if, there was no hope for the accused that his beloved wife would return with him and being enraged and deprived of self-control, had assaulted his wife with whatever available just nearby.

In view of the above, Court stated that it would be necessary to read the mind of the offender and not consider the offence devoid of emotions.

Therefore, the accused would fall under Section 304 Part I of the Penal Code, 1860 and accused deserved to be acquitted of offence punishable under Section 302 IPC.

Appeal was disposed of accordingly. [Ankush Krishna Chavan v. State of Maharashtra, Criminal Appeal No. 797 of 2016, decided on 22-09-2021]


Advocates before the Court:

Mr Lokesh Zade, Court Appointed advocate for appellant.

Ms G.P. Mulekar, APP for State.

Case BriefsHigh Courts

Bombay High Court: Reiterating the well-settled position that, contractual employees are not the employees of the principal employer, N.B. Suryawanshi, J., held that,

Contractual employees are engaged through contractors, their service conditions are governed by the contracts between them, hence in case of any grievance, they shall approach the contractor and not a principal employer.

Two Primary Questions:

  • Whether a complaint of contractual employees seeking to exercise their rights, as provided under the Maharashtra Industrial Relations Act, 1946 and Bombay Industrial Relations Rules, 1947, is maintainable under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971?
  • Whether contractual employees can file a complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 for challenging the impugned order, which is not passed by the Principal Employer?

Factual Matrix

Petitioner-Original Respondent Company had 806 permanent employees working. Petitioner outsourced its peripheral activities to several contractors and for that purpose registered itself as the principal employer under Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970.

Contracts of the petitioner have obtained license under Section 13 of the Act of 1970, there was no registered Trade Union in the local area of the petitioner establishment.

Respondent 16 – Government Labour Officer declared the election programme for conducting elections under Section 28 of the MR Act, for electing 5 representatives of the employees. 301 contractual workers submitted a representation stating to add their names to the voter’s list and to give them a right to vote.

For the above-stated representation, Management informed the contractual workers that the decision in the said regard cannot be taken by the Management and they may approach the Government Labour Officer or the Labour Commissioner. Some contractual workers submitted their representation to the Labour Commissioner seeking inclusion of their names to which the Commissioner rejected while citing the decision in Sunflag Iron & Steel Co. Ltd. v. State of Maharashtra, 2008 III CLR 983 contractual workers are not directly employed by the principal employer, and therefore, their names cannot be included in the voter’s list.

Respondents approached the Industrial Court and stated that the Labour Commissioner has committed unfair labour practice within the meaning of Item 9 o Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

Petitioner opposed the complaint stating the there was no employer and employee relationship between the complainants and the petitioner.

Industrial Court rejected the application but prima facie held that complaint is maintainable and it has jurisdiction to entertain it.

Petitioner submitted that Industrial Court has no power of superintendence over respondent 2 and therefore, the complaint is not maintainable and the same is liable to be rejected summarily.

Analysis, Law and Decision

Settled Legal Position

Contractual Employees are not employees of the principal employer.

In the decision of Supreme Court, Vividh Kamgar Sabha v. Kalyani Steel Ltd., (2001) 2 SCC 381, it was held that “the provisions of MRTU and PULP Act can only be enforced by persons who admittedly are workmen. If there is dispute as to whether the employees are employees of the Company, then that dispute must be first be gotten resolved by raising a dispute before the appropriate forum. It is only after the status as a workmen is established in an appropriate Forum that a complaint could be made under the provisions of MRTU and PULP Act”

In Central Labour Union (Red Flag) Bombay v. Ahemdabad Mfg. and Calico Printing Co. Ltd., 1995 Supp (1) SCC 175, the Supreme Court held that “where the workmen have not been accepted by the Company to be its employees, then no complaint would lie under the MRTU and PULP Act.”

High Court opined that for a complaint to be maintainable under the MRTU and PULP Act, admitted employer and employee relationship is a pre-condition. The provisions of the MRTP and PULP Act can be enforced only after the status of a workman is established before an appropriate forum.

In the present scenario, the contractual employees are the employees of the contractor and not of the petitioner. Hence they are not entitled to file a complaint against the petitioner claiming commission of unfair labour practice.

Therefore, the complaint filed under MRTU and PULP Act by the respondents/contractual employees, is not maintainable.

Under MIR Act, jurisdiction is conferred with the Labour Court and the Industrial Court are conferred with the power to decide the disputes on reference. For enforcing the rights under the MIR Act, forum is provided.

Bench opined that for enforcing the rights available under the MIR Act, a complaint cannot be filed under the MRTU and PULP Act.

Contractual employees are engaged through contractors, their service conditions are governed by the contracts between them. The appointment orders to the contractual employees are not given by the principal employer, but are given by the contractor. They work with the principal employer through contractor, only during the contract period. After the contract period is over, their contractor may enter into a contract with another establishment and shift them to work there. From that view of the matter also, they cannot be treated like permanent employees of the principal employer, and therefore, they cannot claim voting rights at par with the permanent employees.

Since the contractual employees are governed by the contract between contractors, their service conditions, wages, etc. are also governed by the same, hence in case of any grievance they shall approach the contractor and not the principal employer.

Misread and Misconstrued

Industrial Court had ignored the settled legal position that the complaint of unfair labour practice was maintainable only if there was admitted employer and employee relationship between the parties. The contractual employee, being the employee of the contractor and not of the principal employer, cannot file a complaint under the MRTU and PULP Act.

Therefore, Industrial Court’s decision was unsustainable.

While allowing the petition, Court concluded stating that complaint filed under the MRTU and PULP Act by the contractual employees for exercising their rights under the MIR Act is not maintainable and the Industrial Court has no jurisdiction to entertain it. [Mahindra and Mahindra Ltd v. Satish, WP No. 668 of 2020, decided on 20-09-2021]


Advocates before the Court

Shri. R. B. Puranik, Advocate for the Petitioner

Shri. S. B. Dhande, Advocate for the Respondent Nos.2 to 11 and 13 to 15

Ms. T. H. Khan, Asst. G. P. for the Respondent Nos. 16 to 17.

Case BriefsHigh Courts

Bombay High Court: While noting a case of false promise to marry Sandeep K. Shinde, J., refused to allow application wherein a man claimed the reason of astrological incompatibility valid for refusing marriage.

Application for discharge under Section 227 of the Code of Criminal Procedure, 1973 did not find favour with lower court, hence, this revision under Section 397 read with Section 401 of the CrPC.

Background

Complainant submitted that she and the applicant knew each other since 2012 and they both worked at the same place. Eventually, their friendship blossomed, and applicant assured the complainant that he would marry her.

In the complaint, it was submitted that the applicant promised to marry the complainant and then started exploiting her emotionally and mentally to have physical relations with her frequently. They both twice had physical intimacy.

They also established a sexual relationship and thereafter the complainant conceived.

In view of the above circumstances, the complainant told him that it would be better to get married instead of aborting the fetus. Though applicant promised to get married after 2 years and not immediately.

Complainant aborted the fetus by having pills as suggested by the doctor.

Further, though the complainant was not well, the applicant forced himself on her and started neglecting and avoiding her.

Later, complainant disclosed her relationship to her father who drove her out of the house and on approaching the applicant to marry her, he flatly refused to do so.

On being refused for marriage, the complainant filed a complaint with the Assistant Commissioner of Police who suggested counselling of the parties. Applicant in the presence of his parents unconditionally agreed for marriage and on being assured of the same, complainant withdrew the complaint. Surprisingly within 15 days applicant turned the table around and informed the counsellor that he won’t be able to marry the complainant.

Adding to the above, applicant stated that he never committed to marriage.

Senior Counsel for the applicant submitted that since the horoscopes of the applicant and complainant did not match and being a case of astrological incompatibility relations could not be furthered.

Analysis, Law and Decision

In the present matter, since the inception, applicant had no intention of upholding his promise to marry the complainant.

Applicant in the guise of astrological incompatibility of the horoscopes avoided the promise.

Hence, the present matter was a case of false promise to marry which apparently vitiates the complainant’s consent.

Settled Law

 While considering the question of framing of the charges under Section 227, the Court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out.

facts emerging from the material/documents on record taken at their face value, disclose the existence of all ingredients constituting alleged offence under Section 376 of the IPC.

Therefore, the application was rejected. [Avishek Asit Mitra v. State of Maharashtra, Revision Application No. 175 of 2020, decided on 20-09-2021]


Advocates before the Court:

Mr. Raja Thakare, Sr. Adv. With Mr. Shreeram Shirsat with Mr. Amandeep Singh Sra with Mr. Aakash Pathare, for the Applicant

Ms Sharmila Kaushik, APP for the Respondent-State

Case BriefsHigh Courts

Bombay High Court: Sexual violence knows no boundaries, it occurs in every country, across all parts of society, Bharati Dangre, J., while noting a case of sexual harassment caused to a child aged 17 years due to which she took the step of ending her life, rejected the bail of the accused.

Background

A young girl aged 17 years jumped from the balcony of a flat and succumbed to injuries.

After a span of 96 days of the said incident, mother of the girl lodged a complaint against the applicant attributing to him that he had abetted a commission of suicide by her daughter on a fateful day.

Mother of the deceased got to know through the friend of her daughter that she had been receiving dirty messages from the applicant. On enquiring the same, daughter also showed her mobile phone which had the messages and a folder in the gallery, right after that the deceased barged out of the room. On inspecting, the screenshots were found in the mobile phone and immediately, by keeping mobile on the bed, informant followed her daughter, who by that time, jumped from the gallery of other bedroom.

On realizing the severity of the shocking incident, the informant became unconscious and she was informed that her daughter was taken to the hospital. The informant recollect that in the hospital, her daughter was little conscious and on being inquired as to why did she take the extreme step, she murmured that because of “Gaurav uncle”. She did not utter anything further and was administered treatment in the hospital.

A Chit which was found on the dressing table of the daughter was also given to police and then the CR was registered invoking Sections 306, 354A, 354-B of Penal Code, 1860 and Section 4 and 8 of the POCSO Act.

Following was written on the chit:

“Mummy, I have not told you about one person, Gaurav Uncle in our house. For no reason, he often come close to me and attempted to touch my private parts. I concealed the same from you, but that was my mistake. I kept mum because I thought if I disclose it to you, it would result into quibble. However, he messaged me. Before one week, he was talking to me about bad things. The screen shots of the said message are stored in my mobile in the folder ‘SS’. On receipt of the message, I have blocked him, but yesterday night, he texted me. I was unable to understand what should I do and how should I disclose it. After you come to know about this, please do not quarrel and let the things continue to remain as they are. You and Papa should not fight. Bye…. Take care ….. Because even if I blocked him on the mobile, I will have to face him some day. I carry no feelings for him in my mind, still he said so and further Kaki narrating it to aunt and no matter how much I tolerate, I will be blamed”

Analysis, Law and Decision 

Bench noted that the deceased was a young girl who was hesitant to disclose the ill-intentions of the applicant, who was her own uncle.

The present matter revolved around an intimate relationship of the deceased with her own uncle, which posed a barrier for the victim girl to report the said incident to anyone in the family, but she chose to disclose it to her close friend.

The chit which was scribed by the deceased referred to a message and screenshots of which were found in the mobile phone. From the screenshots, it was evident that, a message was forwarded by the applicant which was responded by the deceased by typing that she was not interested in talking to him. The unhappy tone was set and in the note which was scribed, the deceased had opened her mind to her mother where she spoke about his ill-deeds and also offered an explanation as to why she concealed it from her mother.

Court noted that the deceased had expressed her helplessness since she was apprehensive that even if she had blocked him, she would have to face him again and take the blame though, she no feeling in her mind.

“…screen shots from the mobile make it apparent that the applicant was harassing the deceased and inspite of her strong protest, was seeking something from her, leaving her in a despondent state.”

“The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who was abetted.”

“…abetment as contemplated under Section 107 of the IPC, may be by instigation, conspiracy or intentional aid and the words uttered in feet of anger or omission without any intention being attributed cannot be termed as instigation.”

High Court stated that the young girl felt cornered by the conduct and demeanor of her own uncle, which was unexpected since she held him on a high pedestal as her own father and was unable to vent her anguish on account of the close proximity of the family with that of the applicant.

Deceased suffered the consequences mutely for a year.

 While concluding the matter, Court made certain significant observations that, a child may be subjected to sexual abuse or exploitation at home too.

Unfortunately, we have not been able to create an atmosphere in the Society where parents, teachers and adults in company of the child can identify signs of abuse and make sure children received care and protection.

 In the present matter, the fear of stigma, not being believed and being blamed, found the deceased in a precarious situation and left her isolated and insecure and which persuaded her to end her life.

In view of the above stated discussion, the accused does not deserve liberty and another reason would be his close proximity with the family of the deceased and there would be every likelihood that on release he may pressurize them.[Gaurav v. State of Maharashtra, Criminal Bail Application No. 2687 of 2021, decided on 1-09-2021]


Advocates before the Court:

Mr Aabad Ponda, Senior Counsel with Advocate Sanket S. Kulkarni for the applicant.

Mr S.H. Yadav, APP for the State. Mr Kavyal P. Shah for respondent 2.

Case BriefsHigh Courts

Bombay High Court: While emphasizing the aspect of encroachment of public land, the Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., observed that,

“It is not new that valuable Government land on account of the negligent approach of the officers in charge by not protecting such lands from encroachment have stood extinguished from the Government’s holding, causing a serious cascading effect.”

Aggrieved by the public notice issued by respondent 1 – the Slum Rehabilitation Authority, petitioners were to be rehabilitated being affected by Pune Metro Rail Project.

Petitioners contended that under the State’s policy, being slum dwellers, they have a status of being protected occupiers, who would be required to be rehabilitated by allotment of a free of cost permanent alternate accommodation in case land below the slum is sought to be utilized for public purpose.

Further, the petitioners contend that the slum dwellers society had opposed the passing of the Pune Metro through the slum land, so did the developers. They also suggested realignment of the metro track, however, sans success.

High Court noted that the petitioners who had initially encroached on the Government land and remained on the same for some time to fall within the beneficial policy of the State Government of being protected slum dwellers, cannot elevate their protection to such an extent that such slum dwellers have to be rehabilitated either on the same land, if any remaining after the project work is completed within the vicinity.

Bench opined that any encroachment on public land at the threshold ought not to be tolerated and prompt action is required to be taken to remove such encroachment, more particularly when those who are custodians of the public land are well aware that encroachments for long periods will clothe the encroachers with rights to seek rehabilitation at public costs under the prevalent Government policies.

Violation of Public Trust Doctrine

Government on account of negligent approach by not protecting public lands from encroachment is later required to acquire the same from private holdings, causing an unwarranted burden on the public exchequer and a sheer waste of taxpayers money.

Despite the might machinery, Government doesn’t protect its valuable land resulting into the grossest violation of public trust doctrine as a result of patent abuse of powers vested in such Government machinery is not protecting public property.

Accountability

Court added that it wonders as to whether at any point of time an audit in regard to encroached government land in State of Maharashtra was undertaken. As to how many such lands have vanished due to encroachment and whether any steps to preserve the same have been taken – these are certain questions to be answered to “we the people” and accountability fixed for negligence.

Bench hoped that the Government awakens on such issues before it is too late and restores all the encroached Government lands for public benefit.

The above would certainly require a genuine political will and consciousness towards larger public benefit.

Coming to the present matter, High Court expressed that,

Mere right of rehabilitation cannot be recognized to be equivalent to a right of ownership or as if it is some compensation being offered to the slum dwellers for their encroachment and occupation of Government land.

 In the present matter, the petitioners were not denied the benefit of rehabilitation, infact they were called upon by several notices for allotment of premises, but they took an unreasonable adamant stand and refused the benefit.

Opining that the present petition was not filed bonafide, Court stated that the petition appeared to be a patent abuse of process of law.

While imposing costs of Rs 5,000 the petition was dismissed. [Abdul Majid Vakil Ahmad Patvekari v. Slum Rehabilitation Authority, WP No. 3983 of 2021, decided on 31-08-2021]


Advocates before the Court:

Mr. Nikhil Wadikar i/b. Mr. Rajesh Katore for the petitioners.
Mr. Deepak R. More for respondent no. 1.
Mr. B.V. Samant, AGP for the State.
Mr. S.K. Mishra, Senior Advocate a/w. Mr. Pralhad D. Paranjape and Mr. Kaustubh Deogade for respondent nos. 4 and 5.

Case BriefsHigh Courts

Bombay High Court: Pained to record that the Court doors being knocked after completion of 75 years of independence seeking direction for the provision of regular water supply, Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., stated that,

State Government by providing water to its citizens only twice a month, and that too for a mere two hours, is not only depriving its people of their fundamental right, but in doing so is inviting criticism and tarnishing its image, especially when such is the scenario after 75 years of independence.

In the instant matter, petitioners who were being provided only two hours of water twice a month sought direction for a regular supply of water.

They alleged that from reliable resources, they came to know that officers of respondent 7 were supplying water illegally to political leaders especially councilors, tanker lobbies, industries, sizing companies/industries, warehousing complexes and construction sites, thereby earning lakhs of rupees against illegal supply of water. Further, it was submitted that the officials of respondent 7 were not interested in removing the illegal water tapping/connection and valves fixed on the main pipeline.

Deputy Engineer of respondent 7 informed the Court that they were making attempts to supply water to the petitioners on a daily basis but they were unable to do so due to various technical reasons.

Decision

High Court stated that it is the fundamental right of the petitioners to get regular water supply as sanctioned by the Authorities and if the water supply is provided to them only twice a month for two hours, the same amounts to a blatant mockery of their fundamental right.

Hence, Managing Director of respondent 7 company as well as Jai Jeet Singh, Commissioner of Police were directed to be present before the Court to inform the steps to be taken to resolve the problem along with the steps proposed to be taken to disconnect the illegal 300-400 water connections.

On 9th September, the Advocate General referred to the affidavit filed by respondent 7 wherein two types of measures to fulfill the increased demand for water due to the rise in population in village Khambe was proposed.

The long term measure proposed, is to change the 36 years old pipeline which currently supplies 11 MLD water to 34 villages ; after the old pipeline is changed, the 34 villages will receive additional 31 MLD water. For this purpose, the Respondent No. 7 is in the process of preparing a Detailed Project Report (‘DPR’) ; and to meet the technical and procedural compliances, the long-term measure proposed will take about three to four years. 

short-term measure proposed, is to lay “a new pipeline of around Rs.4 Crores bypassing or bifurcating from village Khoni directly to village Khambe …”. According to the Respondent No. 7, the short-term measure can be achieved within a period of one year.

High Court informed the Advocate General that the State cannot expect the poor villagers to wait for one year for laying a separate pipeline by-passing village Khoni and supplying water directly to village Khambe, and certainly not for a period of three to four years for providing an additional supply of 31 MLC to the 34 villages.

With respect to illegal water connections, High Court stated that,

State machinery or any Statutory Authority cannot tolerate any illegal activity to commence / continue only because a group of wrongdoers / antisocial elements / hooligans make an unlawful attempt to prevent legal action being taken against such illegal activity. It is the duty of the State to ensure that such unlawful activities are nipped in the bud.

 Court informed Advocate General to constitute a committee for the removal of every illegal water connection.

Deputy Commissioner of Police ensured full cooperation to all concerned in removing all illegal water connection from village Khoni.

Court informed the Advocate General that in the interest of the State, the orders pertaining to the subject matter will be forwarded to the Chief Minister of Maharashtra so that the problems of the citizens of Maharashtra can be looked into seriously. [Shobha Vikas Bhoir v. State of Maharashtra, WP No. 5256 of 2021, decided on 9-09-2021]


Advocates before the Court:

Mr R.D. Suryawanshi for the Petitioners.

M A.A. Kumbhakoni, AG a/w. Mr A.I. Patel, Addl. G.P., Mr. R.S. Pawar, AGP for the State.

Mr A.S.Gaikwad a/w. Mr B.R.Khichi, Mr Anjalai Kolapkar for Respondent 7. Mr Yogesh Chavan, DCP, Zone-II, Bhiwandi, present.

Dr Bahusaheb Bansi Dangade, Managing Director of Respondent 7, present.

Case BriefsHigh Courts

Bombay High Court: Addressing a matter pertaining to the widow’s right of inheritance on the property of the deceased husband, S.M. Modak, J., observed that,

Both wife and mother will have an equal share in light of Section 24 of the Hindu Succession Act, which was in existence at the time of the dispute.

Substantial Question of Law:

Whether a widow can claim the estate of the husband after re-marriage?

High Court referred to the decision of Supreme Court in Kasturi Devi v. Deputy Director of Consolidation, AIR 1976 SC 2595. In the said decision, “the effect of re-marriage on her right to claim share in the property” was considered, though the status of the woman in the said decision was not of a widow but of a mother. Hence the claim pertained for inheritance not as a widow but as a mother. To this issue it was held that there won’t be any effect on her share of inheritance from a son even after she re-married.

Issue in the present matter was:

What is the effect on widow’s right of inheritance (not in the property of a son) on the property of the deceased husband?

Deceased was married to respondent 1 and the present appellant is the mother of the deceased.

It was stated that deceased had nominated his wife for the dues that he was entitled to from the Indian Railways, though it came on record that the deceased and wife were not living together due to the existence of a dispute between them.

After the death of the husband, defendant-wife re-married.

In view of the above events, the plaintiff claimed dues from Indian Railways and informed Indian Railways about the re-marriage of defendant. On non-provision of marriage certificate, the employer disbursed the dues in favour of the wife.

Trial Court favoured the plaintiff and decreed the suit in toto.

Hence, Indian Railways was directed to pay all the due to the plaintiff, though the Appellate Court recognized the share of defendant and directed the employer to disburse the amount to plaintiff and defendant.

Appellate Court’s decision has been challenged before this Court.

Provisions of Law

It was stated that the dues of employer are nothing but the self-acquired property of the deceased and as per Hindu Succession Act, Section 24, the widow loses rights if she remarries on the date when succession opens. It is also true that the said Section was omitted from the Act o 1956 w.e.f 9th September, 2005.

Since the deceased had expired on 19-04-1991, so we have to see what the position in force at that time was. Section 24 was in existence at that point of time, hence as per the said provision, whether it can be said that defendant can be excluded from succeeding the property of the deceased?

Section 14 of the Act of 1956 makes the female Hindu being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries.

A very pertinent fact that was noted by the Bench was that, if the widow had not re-married when the succession opened, the disqualification under Section 24 of the Act of 1956 wouldn’t be applicable.

Defendant-Sunanda re-married in May, 1991 (i.e. after opening of succession on 19-04-1991).

Furthermore, the Court stated that since the plaintiff and defendant were class 1 heirs, they were entitled to get equal share in the property of the deceased and as contemplated under Section 10 of the Act of 1956, the widow and the mother of the intestate takes one share each.

Therefore, both the wife and mother were entitled to get 50% from the property of the deceased.

Doctrine of enrichment

Since the wife is not solely entitled to get the whole amount, she was bound to return 50% of the amount to the plaintiff.

Respondent 1 was to refund the amount with 6% interest.

Appeal was disposed of in view of the above discussion. [Jaiwantabai v. Sunanda, Second Appeal No. 144 of 2007, decided on 23-08-2021]


Advocates before the Court:

Shri Ved Deshpande h/f Shri A.S. Mardikar, Senior Advocate for the Appellant Shri J.B. Gandhi, Advocate for Respondent 1.
Shri N.P. Lambat, Advocate for Respondent 2.

Cyril Amarchand MangaldasExperts Corner


Introduction


Personal liberty and the rule of law find their rightful place under Articles 21 and 22 of the Constitution of India, which include measures against arbitrary and indefinite detention. Even with the option of an elaborate judicial procedure to deal with matters regarding grant of bail, the system is somehow unable to meet the parameters of an archetypal system, giving rise to the notion that the bail system is unpredictable[1].

 

Recently, the Bombay High Court in Sameer Narayanrao Paltewar v. State of Maharashtra[2] (Paltewar judgment) has reiterated the mandate of the law to protect accused persons against the “incalculable harm to the reputation and self-esteem of a person”[3] caused by an arrest.

 

A peculiar provision of law dealing with the grant of anticipatory bail under Section 438 of the Code of Criminal Procedure Code, 1973 (CrPC) allows the State to make an application requesting the presence of the accused applicant seeking anticipatory bail at the time of final hearing of the Anticipatory Bail Application (‘ABA’) and passing of final order by the relevant court. The same law also authorises the court to compel the presence of such accused if the court considers it “necessary in the interest of justice”. The obvious problem with this provision is that if the ABA is rejected, the police not only can locate, but may also arrest  the accused.

 

While interpreting the powers under Section 438(4) of the CrPC (as exercised by the Sessions Court), the Bombay High Court has now directed that while orders mandating physical presence at final hearing may be passed, the Sessions Court should also ensure that should the ABA be rejected at such final hearing, the applicant shall be protected against arrest for a stipulated period to allow him/her time to approach the High Court and re-agitate a request for anticipatory bail.

 


Backdrop


Prior to 1973, criminal procedure in India[4] did not envisage the concept of ‘anticipatory bail’/’bail apprehending arrest’. The Law Commission of India in its 41st Report on the CrPC first identified the necessity for provisions regarding grant of anticipatory bail as:

 

“[…] sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. […] Apart from false cases, where there are reasonable grounds […], there seems no justification to require [an accused person] first to submit to custody, remain in prison for some days and then apply for bail.”[5]

 

The initial idea of providing for anticipatory bail was to avoid the situation where a person needed to obtain a bail after being arrested, even while reasonable grounds existed for the same prior to arrest. In 1973, Sections 436, 437 and 439 of the CrPC dealing with the grant of bail were streamlined and the new provision of Section 438 of the CrPC for anticipatory bail was introduced.

 

It is only through judicial interpretation that the law in relation to anticipatory bail (and bail in general) was thereafter developed to align itself with the constitutional objectives of protecting personal liberty and to strike a fine equilibrium between the “freedom of person” and “interest of social order”.

 

While Section 438 of the CrPC originally read to allow the High Court or Sessions Court to grant anticipatory bail at their discretion, it intentionally did not prescribe standards or thresholds for the same. The law on anticipatory bail has since been modified to provide for various aspects, with the State of Maharashtra amending the CrPC (as it applies to Maharashtra) in 1993 to include sub-section (4) to Section 438, which states as follows:

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the court, if on an application made to it by the Public Prosecutor, the court considers such presence necessary in the interest of justice.

 

For the rest of India, Section 438 of the CrPC has since been amended[6] to include sub-section (1-B) which incorporates the identical language as above.

 


Paltewar judgment – Brief overview


The case arises out of a dispute between the applicant and the original complainant, who were directors of a company operating a hospital. The original complainant filed a complaint against the applicant for offences punishable under Sections 406, 409, 420, 465, 467, 468 and 471 of the Penal Code, 1860 (IPC) and Section 66-C of the Information Technology Act, 2000.

 

During the investigation into such complaint, the applicant had filed an ABA before the Sessions Court, Nagpur. In such an ABA, the Public Prosecutor moved an application seeking presence of the applicant in the Sessions Court at the time of final hearing of the anticipatory bail application and the same was allowed.

 

Aggrieved by the order of the Sessions Court in granting the request of the prosecution and compelling his personal presence at the final hearing, the applicant accused filed an application under Section 482 of the CrPC before the Bombay High Court invoking its inherent jurisdiction.

 

The main issue that arose for determination before the Bombay High Court was in relation to the fate of an accused in the State of Maharashtra who is directed to remain present in the Sessions Court pursuant to a direction under Section 438(4) of the CrPC (as it applies to Maharashtra), and the consequences that may arise if such application for anticipatory bail is rejected.

 


Interim protection


While the applicant had been granted interim protection under Section 438(1) of the CrPC by the Sessions Court, the Bombay High Court further granted interim protection stating that if the ABA before the Sessions Court is rejected during the pendency of the High Court proceedings, then the interim protection granted against arrest would extend for a further period of 72 hours to allow the applicant to approach the High Court.

 

However, while such interim order effectively protected the applicant, the Bombay High Court proceeded with the hearing in the matter as a substantial question of law was involved.

 

In its analysis of Section 438(4) of the CrPC (as applicable in Maharashtra), at the outset, the Bombay High Court reiterated that an order directing an accused person to appear at the final hearing can be passed only when interim protection is already operating in favour of an accused[7].

 

The Paltewar[8] judgment recorded that in case the applicant is not granted interim protection in an ABA and the Sessions Court still directs him/her to remain present in the court on the date fixed for final hearing, by virtue of proviso to sub-section (1), it is open for the investigating officer to effect arrest of the applicant. The direction under sub-section (4), if considered as an independent and irrespective of interim protection, will prove to be a mouse trap and not a protection of personal liberty of the citizen. Being under the directions of the court, the applicant would be obliged to proceed towards the court while the investigating officer can wait at the entrance gate of the court premises.[9]

 


Analysis on Section 438(4) of the CrPC


At the outset, the Bombay High Court has clarified that Section 438(4) of the CrPC has already passed constitutional muster inter alia in Vijaya Ramesh Ramdasi v. State of Maharashtra[10] and Goyappa Jalagiri v. State of Maharashtra[11]. While dealing with the same, however, the Bombay High Court clearly observed that applications seeking personal presence of an accused cannot be moved callously by the prosecution neither can it be routinely allowed by the Sessions Court. It was further observed that a direction under Section 438(4) of the CrPC can be issued seeking the presence of the accused before the court at the stage of final hearing of the application but only if the accused’s interim order of protection from arrest was in operation.

 

Understanding the lacunae from the point of view of an accused, the Bombay High Court relied on State of Maharashtra v. Kachrusingh Santaramsingh Rajput[12] and catena of other Supreme Court judgments to state that the very purpose of introducing Section 438 in the CrPC, and the new form in which it was brought into force in the State of Maharashtra, was to strike a balance between the interest of the State to investigate through police into offences according to established procedure of law and the individual liberties of a person accused of serious crimes.[13]

 

In the Paltewar[14] judgment, the Bombay High Court also observed that when the Sessions Court allows an application that seeks the presence of the accused, it should provide sufficient reasons for allowing the same. The Sessions Court’s reasons must elaborate why the presence of the accused was important in the “interest of justice”, for example, specifying if there was possibility of absconding by the accused, etc.

 

The court further threw light on the expression “in the interest of justice” by stating that it has to be construed in the interest of both the prosecution as well as the accused and the court is obliged to strike a balance between the interests of the two. As the same was not done in the Paltewar[15] judgment, the Bombay High Court had quashed and set aside the order allowing the applicant’s presence.

 


Right to approach the High Court


It is well settled now that both the High Court and the Sessions Court have concurrent jurisdiction to deal with ABAs for directions under Section 438 of the CrPC and it is open to a person to move either of these two courts. It is, however, a generally accepted practice, as recorded in the Paltewar[16] judgment, to approach first the Sessions Court and thereafter the High Court for such relief.

 

Where a person chooses to move the Sessions Court in the first instance, a revision will lie in the High Court against the order of the Sessions Court on the application for issue of directions under Section 438 of the CrPC.

 

It is in light of this statutory intention, that the Bombay High Court stated that in the absence of any interim order of protection operating in favour of the accused during pendency of the application for anticipatory bail before the Sessions Court, the right available to the accused to move the High Court will stand frustrated if he/she is arrested and such arrest will obviously be facilitated by the direction of the Sessions Court under Section 438(4) of the CrPC[17]

 

In light of the above, even though the order under Section 438(4) of the CrPC (as applicable in Maharashtra) in the Paltewar[18] judgment was set aside, the Bombay High Court put down the following guidelines for Sessions Courts to follow when passing such orders:

 

(a) While filing the application under Section 438(4) of the CrPC (Maharashtra Amendment), the prosecutor has to state cogent reasons while seeking the obligatory presence of the accused before the Sessions Court at the time of final hearing of the ABA.

(b) The Sessions Court shall consider the application by the prosecutor and pass a reasoned order as to why the presence of the accused is necessary “in the interest of justice” at the time of final hearing of an ABA.

(c) If the Sessions Court rejects the application, it shall mandatorily extend the interim protection operating in favour of the accused for a minimum period of three (3) working days on the same conditions on which interim protection was granted during pendency of an ABA or on such further conditions as the Sessions Court may deem fit, in the interest of justice.

(d) If the Sessions Court considers it appropriate to grant extension of protection for more than three (3) working days, it shall record the reasons for the same, but in any event, it should not be more than seven (7) days.

(e) The accused should abide by the conditions imposed by the Sessions Court while granting extension of interim protection, failing which such interim protection shall cease to operate instantly.

 


Conclusion


The Paltewar[19] judgment expands on a very important point under the jurisprudence in relation to bails, specifically anticipatory bails. It is seen in a lot of cases that the accused, who is facing a potential arrest, is not provided with a protective order for a reasonable period of time when the presence under Section 438(4) of the CrPC is sought by the Sessions Court. With freedom jeopardised, the accused is pushed closer to a probable arrest.

 

The Paltewar[20] judgment has now made it mandatory to protect the applicant against any untoward impact of such requirement to be personally present, which would give a lot of security to the public at large.

 


† Partner, Cyril Amarchand Mangaldas.

†† Principal Associate, Cyril Amarchand Mangaldas.

††† Associate, Cyril Amarchand Mangaldas.

[1] Government of India, Law Commission of India, Report No. 268 Amendments to Criminal Procedure Code, 1973 Provisions Relating Bail, 23-5-2017.

[2] 2021 SCC OnLine Bom 2192.

[3] Joginder Kumar v. State of U.P., (1994) 4 SCC 260.

[4] Under the Code of Criminal Procedure, 1898.

[5] Government of India, Law Commission of India, 41st Report, The Code of Criminal Procedure, 1898 – Volume I, dated 24-9-1969 at Para 39.9.

[6] Code of Criminal Procedure (Amendment) Act, 2005, S. 38, with effect from 23-6-2006.

[7] Vijaya Ramesh Ramdasi v. State of Maharashtra, Bombay High Court, Criminal Application No. 569 of 2001,

decided on 20-3-2001 .

[8] 2021 SCC OnLine Bom 2192.

[9] 2021 SCC OnLine Bom 2192.

[10] Criminal Application No. 569 of 2001.

[11] Criminal Application No. 4370 of 2004.

[12] 1994 SCC OnLine Bom 73 : (1994) 3 Bom CR 348.

[13] 2021 SCC OnLine Bom 2192, para 17.

[14] 2021 SCC OnLine Bom 2192.

[15] 2021 SCC OnLine Bom 2192.

[16] 2021 SCC OnLine Bom 2192.

[17] 2021 SCC OnLine Bom 2192, para 26.

[18] 2021 SCC OnLine Bom 2192.

[19] 2021 SCC OnLine Bom 2192.

[20] 2021 SCC OnLine Bom 2192.

News

Resignation


Justice Dama Seshadri Naidu has tendered his resignation from the office of Judge, Bombay High Court, in pursuance of proviso (a) to clause (1) of Article 217 of the Constitution, with effect from is 18th August, 2021 afternoon.


Ministry of Law and Justice

[Notification dt. 3-09-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ. addressed whether prior to the decision on divorce petition, creating a matrimonial profile expressing the will and consent, would be a ground for divorce.

Factual Background

Respondent and appellant started developing discord in their relations.

Appellant submitted that, after some time in the company of the respondent he found that by nature she was aggressive and would speak utter lies and had an extreme affinity towards her parents and particularly for parents’ residence.

Further, it was also added that the respondent would insist the appellant leave the job and shift to Akola with her and take some new assignment.

The job of the appellant was a permanent job in the High Court. He, therefore, did not agree with the suggestions made by the respondent to quit the job. According to the appellant, this was the trigger point to escalate the conflict between him and the respondent.

Questions for determination 

  • Whether the appellant has proved that the respondent after the solemnization of their marriage had treated him with cruelty?
  • Whether the Judgment and decree passed by the learned Judge of the Family Court rejecting the decree of divorce is sustainable?

Appellant’s Advocate submitted that the arrogant and cantankerous nature of the respondent not only made the life of the appellant miserable but also made the life of his parents miserable.

Further, during the pendency of the petition, the respondent had made her intention of parting ways with the appellant clear, by uploading her profile on two marriage bureau websites.

Respondent had made her intention writ large to get rid of the appellant and begin her life afresh with someone else.

Analysis, Law and Decision

In the decision of Supreme Court in Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640, it was held that false allegation by one spouse against the other amounts to mental cruelty, It is held that mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from individual to individual, from society and also depends upon the status of the person.

In another decision, of Supreme Court in Vishwanath v. Sarla Vishwanath Agrawal, Civil Appeal No. 4905 of 2020, it was held that the mental torture caused by one spouse to the another by making wild and false allegations in a report lodged to the authority as well as in the electronic and print media constitute mental cruelty and as such the ground for divorce.

The decision of V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, had considered as to what constitute mental cruelty and what should be the parameters while deciding the cruelty.

Family Court had found that the appellant established the case of cruelty at the hands of respondent in as much as the respondent made unfounded and unsupported allegations against the appellant. Despite the said finding of fact, Judge did not deem it appropriate to grant a divorce decree.

Bench stated that on a plain reading of Section 14 Court has no reason to reject the submissions advanced by the Advocate for the appellant.

In Court’s opinion, the documents produced on record in the form of matrimonial profile uploaded by the respondent on 22-10-2020 can be taken into consideration for deciding the question in controversy in this appeal.

Further, the High Court expressed that on perusal of matrimonial profile uploaded by the appellant it would show that even before decision in the divorce petition she had made up her mind to perform the second marriage. In the said profile she had clearly mentioned that she was awaiting the divorce in pending case.

“…respondent by uploading her profile on two matrimonial websites made her intention writ large.”

In view of the above document, it was inferred that she wanted to get rid of the appellant and wanted to perform the second marriage.

Adding to the above, Court stated that in the written statement, respondent contended that as an obedient wife and daughter-in-law she performed her duties sincerely, but the appellant and his parents did not like her and wanted to get rid of her from the life of the appellant.

In Court’s view, the above statement in the written statement if read in the context of the documents would seriously reflect upon the conduct of the respondent.

Appellant in his evidence stated that due to the false and frivolous complaints and reports made by the respondent to the various authorities, she has caused immense mental stress, depression, pain and agony to him and his parents.

High Court opined that if the Judge of the Family Court had taken into consideration the documents produced on record before Judgment, whereby the respondent had uploaded her marriage profile on two websites, the learned Judge would not have recorded such a finding.

Emphasizing that the evidence clearly indicated that the respondent had no wish and desire to remain in company of the appellant.

If the respondent had sincere wish and desire to save her marriage she would not have taken a conscious decision to perform the second marriage even before the final outcome of the divorce petition.

Further, it was proved that the mental cruelty was such that it would in all probability cause injury to the health of the appellant.

 “…conduct of the respondent to perform the second marriage and not to lead the life with the appellant is writ large from the fact that she did not apply for restitution of conjugal rights.”

 Appellant successfully made out the case that he was made to suffer mental cruelty of a high degree and therefore, he took a conscious decision to get separated.

Hence, family court appeal was allowed.

Hindu Marriage Petition filed by the appellant is allowed. It was declared that the marriage between the appellant and the respondent is dissolved by decree of divorce on the ground of cruelty. [Premdeep v. Bhavana, Family Court Appeal No. 24 of 2020, decided on 27-8-2021]


Advocates before the Court:

Shri Hemant Surve, Advocate for appellant

None for the respondent

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and M.S. Sonak, J., observed that,

“Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to punish for its contempt.”

Petitioner pointed out that respondent 1 by making false and scurrilous allegations against some judicial officers of the District Judiciary and uploading the said content on YouTube and WhatsApp committed criminal contempt as defined under Section 2(c) of the Contempt of Courts Act, 1971.

Further, he added that he obtained consent under Section 15 of the said Act from the Advocate General.

In view of the above background, the petitioner urged action against respondent 1.

Analysis, Law and Decision

Petitioner pointed that respondent 1 who was possibly based in the UK was in the habit of uploading videos on YouTube and WhatsApp Groups alleging that some of the members of the District Judiciary in Goa are corrupt.

Prima Facie, the content allegedly uploaded by respondent 1 was quite contumacious and might, if established, constitute criminal contempt.

Whether we ought to proceed any further in this matter or it is better to proceed with confidence in our institutions and our judicial officers who function to the best of their abilities without fear or favour?

Bench stated that the shoulders of this institution are broad enough to shrug off the scurrilous allegations.

“Dignity and authority of our judicial institutions are neither dependent on the opinions allegedly expressed by respondent 1 nor can the dignity our institution and its officers be tarnished by such stray slights or irresponsible content.”

High Court observed that inquiries made on the administrative side revealed the irresponsibility of the comments and the possible use of the uploader as a front by some disgruntled litigants.

Therefore, Court opined that to take this matter further might only serve to feed the publicity craze of those who uploaded the content to provoke rather than out of some concern to bring to fore some genuine grievance concerning the administration of justice in Goa.

Lord Denning summed up the above-stated approach in R V. Metropolitan Police Commr., (1968) 2 QB 150, Judge refused to be provoked by the scathing article by a Lawyer:

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”

In the decision of Haridas v. Usha Rani Banik, (2007) 14 SCC 1, Court held that the majesty of law continues to hold its head high notwithstanding any scrullious attacks made by persons who feel that the law Courts will absorb anything and everything, including attacks on their honesty, integrity and impartiality. The Courts generally ignore irresponsible statements which are anything but legitimate criticism. This magnanimity is not its weakness but its strength.”

Another reference was made stating that the Chief Justice of the UK, deposing before the Phillimore Committee gave evidence to the following effect:

“Judges” backs have got to be a good deal broader than they were thought to be years ago.”

Lord Atkin also once said, “Courts are satisfied to leave to public opinion, attacks or comments derogatory or scandalous to them.”

Elaborating the above, Court stated that it is the people that have a vital stake in the free and effective administration of the Justice.

Concluding the matter, relying on the decision of Supreme Court in Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406, it was held that the power to punish for contempt is to be only sparingly exercised, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the people so that the administration of justice is not perverted, prejudiced, obstructed, or interfered with. [Kashinath Jairam Shetye v. David Clever, 2021 SCC OnLine Bom 2235, decided on 18-08-2021]

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., expressed that,

“The law on the principle of Torts that an action dies with the person, in a defamation proceedings is required to be appreciated.”

Restraining the movie Gangubai Kathiawadi

Instant suit was initiated against the respondent/defendant seeking decree of permanent injunction restraining them from publishing, printing, advertising, selling, alienating, assigning and/or creating any third-party rights and/or holding any press meets, promoting the Novel namely “The Mafia Queens of Mumbai” and/or writing any other story of the life of mother of the plaintiff.

Defendants 5, 3 and 4 took out Notice of Motion under Order VII, Rule 11 Code of Civil Procedure after the respondents were served with suit summons. The said notice of motions were allowed. As a consequence, plaint came to be rejected. Hence the first appeal was filed.

Analysis, Law and Decision

High Court while expressing that the law on the principle of Torts that an action dies with the person, in a defamation proceeding is required to be appreciated, held that the contents of defamatory nature against so-called adoptive mother of appellant dies with her death.

Further, the Bench stated that appellant had to demonstrate that he was the adoptive son of deceased Gangubai Kathiawadi, which he prima facie failed to as he suffered a legal injury.

The said principle is based on the Supreme Court decision in Melapurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair,  (1986) 1 SCC 118, and Bombay High Court decision in Luckumsey Rowji v. Hurbun Nursey, 1881 SCC Online Bom 39 was rightly considered by the City Civil Court while passing the order of rejection of plaint.

Merely because the appellant is claiming to be son of such person cannot be prima facie inferred to have the legal right to show indulgence.

In view of the above, temporary injunction was not granted.[Babuji Rawji Shah v. S. Hussain Zaidi, First Appeal (ST) No. 9761 of 2021, decided on 30-07-2021]


Advocates before the Court:

Mr Narendra Dubey for Applicant in both IA.

Mr Madhu Gadodia and Sujoy Mukherji i/by Naik Naik & Co. for Respondent Nos. 1 and 2.

Mr Mayur Khandeparkar a/w Mr Parag Khandhar & Ms Prachi Garg, i/by DSK Legal for Respondent Nos. 3 to 5.

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., expressed while addressing the present application that,

“Second marriage cannot come within the definition of domestic violence.”

By the instant application, applicants sought quashing of criminal proceedings filed by sole respondent under the provisions of the Protection of Women from Domestic Violence Act, 2005.

Further, the applicants also prayed for setting aside the orders passed by the Court of Judicial Magistrate.

Applicant 1 got married to the sole respondent and soon after the marriage, there was matrimonial discord between the two, because of which, applicant 1 filed a divorce proceeding on the ground of cruelty.

The divorce decree granted was confirmed upto the Supreme Court and the rejection of the application for restitution of conjugal rights filed by the respondent also stood confirmed.

Bench stated that the contentions raised on behalf of applicant 1 on ground of cruelty were accepted by all the Courts and hence the said findings attained finality.

Question for consideration:

  • Whether respondent is entitled to rely upon incidents pertaining to the same time period and relatable to the allegation and contentions raised to claim that she had suffered domestic violence at the hands of the applicants, as defined under the DV Act.
  • Whether the act of applicant 1 preforming a second marriage after the grant of divorce decree can be said to be an act of domestic violence under the provisions of the DV Act?
  • Whether the proceedings initiated by respondent under provisions of the DV Act can be said to be an abuse of process of law?

Analysis, Law and Decision

High Court stated that on perusal of Sections 12 to 23 of the D.V. Act, respondent has indeed raised the very issues and contentions that she had relied upon during the initial round of litigation pertaining to the divorce petition filed by applicant 1 and application or restitution of conjugal rights filed by respondent.

Hence, respondent cannot be permitted to reiterate the same by filing application under the provisions of the DV Act, 3 months after the Supreme Court dismissed her Special Leave Petition and confirmed the findings rendered by the Family Court and this Court on identical issues.

Second Marriage

 Court rejected the contention that the second marriage performed by applicant 1, after grant of divorce decree amounted to domestic violence.

Section 3 of the D.V. Act defines ‘domestic violence’ in an elaborate manner and it refers to physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. This is in the context of a domestic relation shared between the aggrieved person and respondent.

Family Court granted divorce on the ground of cruelty cannot eb denied in the present matter.

Merely because applicant 1 performed second marriage cannot come within the definition of domestic violence under Section 3 of the D.V. Act.

The manner in which the proceedings were sought to be initiated under the provisions of DV Act was nothing but an abuse of process of law.

Court noted that the respondent appeared to be interested in initiating and continuing the proceedings as a tool of harassment against the applicants.

Prayers pertaining to monthly maintenance, compensation, residence order, etc., have all been made of the contentions raised in the earlier round of litigation.

In view of the above background, High Court held that continuance of the proceedings would amount to permitting abuse of the process of law, hence the same cannot be permitted. [Bhushan v. Nilesha Bhushan Deshmukh, Criminal Application (APL) No. 164 of 2017, decided on 9-08-2021]


Advocates before the Court:

S.A. Mohta, Advocate for applicants

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ujjal Bhuyan and Madhav J. Jamdar, JJ., while explaining the provisions under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 also elaborated upon the concept of shared household and remanded the matter back to the Tribunal for Maintenance and Welfare of Parents and Senior Citizens.

In the present matter, the legality and validity of the order passed by the Deputy District Collector, acting as the Presiding Officer of the Tribunal for Maintenance and Welfare of Parents and Senior Citizens as challenged.

Respondent 1 was the mother-in-law of the petitioner. Petitioner alongwith her husband and minor daughter used to reside in a Flat along with respondent 1.

The above referred flat originally belonged to Anandlal Jasani who during his lifetime made nomination in respect of the said flat whereby 20% share of the flat was granted in favour of petitioner’s husband.

Since her marriage, the petitioner was living in the above-stated flat along with respondent 1 and the father-in-law till his death.

Petitioner claimed that the said flat is her matrimonial home as well as her shared household. Petitioner, her husband, daughter, and respondent 1 were residing in the said flat.

Further, the petitioner submitted that her husband was suffering from mental illness and depression because of which he required regular treatment and counselling and could not contribute to the earnings of the family.

Petitioners Allegation

Petitioner alleged that respondent 1 wanted to sell the stated flat and thereafter retain the sale consideration to herself to enable her to lead an affluent lifestyle. Petitioner and her husband were opposed to selling the flat.

Adding to the above, petitioner submitted that the said flat was not self-acquired property of respondent 1, rather it was an ancestral property of the family of the petitioner’s husband wherein petitioner’s husband, petitioner and their minor daughter had equal rights, title and interest.

Further, it was added that respondent 1 had the motive of ousting the petitioner, her husband and minor daughter from the flat and that was the reason why she filed a complaint before the Tribunal for Maintenance and Welfare of Parents and Senior Citizens for eviction of the petitioner and her husband from the flat to allow her to reside in the flat all by herself.

This Court had issued an order dated 15-04-2021 stating that no coercive steps should be taken against the petitioner.

Analysis, Law and Decision

Bench noted that Tribunal held that the flat was an ancestral property and that both respondent 1 and petitioner along with her husband had joint rights. In so far sale of the flat was concerned, it was beyond the jurisdiction of the tribunal.

In Tribunal’s opinion, as per Sections 4(2) and (3) of the 2007 Act, it was the obligation of the children or the relatives to maintain a senior citizen to the extent of the needs of such senior citizen.

Based on Sections 4,5,9, 13 and 23 of the 2007 Act, Tribunal decided and directed the petitioner and her husband to vacate the flat and to hand over the possession to respondent 1.

Whether the flat in question is a shared household and that petitioner has a right to reside in the shared household?

Supreme Court in S. Vanitha v. Deputy Commissioner, 2020 SCC OnLine SC 1023 concluded that claim of the appellant that the premises constitute a shared household within the meaning of the 2005 Act would have to be determined by the appropriate forum. The claim cannot be simply obviated by evicting the appellant in the exercise of the summary powers entrusted by the 2007 Act.

Question for consideration:

Whether the Tribunal under the 2007 Act can order eviction of a person from tenement in which he has ownership right to the extent of 20%?

Whether having regard to the mandate of Section 4 of the 2007 Act read with other provisions of the said 2007 Act, Tribunal can direct or order eviction of children or relative at the first instance itself or at a later stage to enforce an order of maintenance passed at the first instance?

Supreme Court in S. Vanitha v. Deputy Commissioner, 2020 SCC OnLine SC 1023 took the view that Tribunal under the 2007 Act may have the authority to order an eviction if it is necessary and expedient to ensure maintenance and protection of the senior citizen or parent.

Single Judge in Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, 2018 SCC OnLine Bom 2246  took the view that the Tribunal can order eviction under the 2007 Act, as noticed above, such order was in the context of the tenement being the exclusive property of the parent/senior citizen which was not so in the present case.

Therefore, Court held that without expressing any opinion at this stage on the questions formulated by this Court above, it is essential for the Tribunal to first conclude, though summarily, as to whether the flat in question was an ancestral property or exclusively owned by respondent 1.

Further, the Court expressed that in terms of Section 9 of the 2007 Act, Tribunal must be satisfied that the parent has suffered neglect at the hands of the children or relatives or that they have refused to maintain the parent.

Under Section 5(3) of the 2007 Act, the Tribunal is mandated upon receipt of an application for maintenance to provide an opportunity of hearing to both the parties and to hold an enquiry for determining amount of maintenance.

Further, the procedure contemplated under the 2007 Act is summary in nature nonetheless Tribunal is required to find out as to whether the flat in question belongs exclusively to respondent 1 or it is an ancestral property where petitioner has also a right to ownership and/or residence through her husband.

Tribunal is also required to deal with the contention of petitioner that the flat in question is her shared household wherefrom she cannot be evicted.

As the Supreme Court had pointed out in S. Vanitha v. Deputy Commissioner2020 SCC OnLine SC 1023, both parents / senior citizens and the daughter-in-law are vulnerable groups in the Indian context and for protection of their rights the 2005 Act and the 2007 Act have been enacted.

In the above backdrop, the claims of the contesting parties would have to be decided which unfortunately does not appear to be the case in the instant proceeding. 

Hence, the High Court set aside the Tribunal’s order and remand the matter back to the Tribunal for fresh decision.[Ritika Prashant Jasani v. Anjana Niranjan Jasani, 2021 SCC OnLine Bom 1802, decided on 13-08-2021]


Advocates before the Court:

Mr. Kishor Maru for Petitioner. Mr. Anoshak Daver a/w. Ms. Kausar Banatwala, Ms. Neuty Thakkar and Ms. Tanishka Desai i/b. Mr. Tushar Goradia for Respondent No.1.
Ms. Anjana N. Jasani, Respondent in person.
Ms. Ritika Jasani, Petitioner in person.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sunil B. Shukre and Rohit B. Deo, JJ., expressed its view that,

The principle “Equal Pay For Equal Work” is not a fundamental right but a constitutional goal and entitlement to parity in Pay Scale would depend on several factors such as educational qualifications, nature of the job, duties to be performed, responsibilities to be discharged and experience.

Seminal Issue

 Whether the Minimum Competency Vocational Course (MCVC) Instructors are justified in claiming Pay Scale at par with the Full-Time Teachers in MCVC on the principle of “Equal Pay For Equal Work” which was enshrined in Articles 14 and 39(d) of the Constitution of India.

Analysis 

Bench referred to the Supreme Court decision in SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122, wherein it was held that the burden to prove and establish discrimination was on the employee seeking parity of pay and that the equality clause can be invoked in the matter of Pay Scales when there is “wholesome/wholesale identity between the holders of two posts.”

In State of Haryana v. Jasmer Singh, (1996) 11 SCC 77, it was observed that even if the designation of the job is same, there may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job and that the evaluation of such jobs for the purposes of Pay Scale must be left to expert bodies and in absence malafides, the evaluation should be accepted.

In Delhi Transport Corporation Security Staff Union (Regd.) v. Delhi Transport Corporation, (2018)16 SCC 619, Supreme Court emphasized that grant of Pay Scale is a highly technical and complex matter, which requires consideration of a host of factors, such as the qualifications, the method of recruitment and the nature of duties and therefore, the Court are loathe to interfere in matters with regard to grant of Pay Scale.

High Court expressed that the consistent judicial view has been that the doctrine of “Equal Pay For Equal Work” is not abstract and does not operate in a vacuum.

Entitlement to Parity

Considering that evaluation of posts is a complex exercise which must consider several factors, unless the decision of the executive is demonstrably malafide or irrational, the Courts must observe restrain and avoid treading on unsure grounds.

The burden to prove and establish entitlement to parity on the touchstone of Articles 14 and 39(d) of the Constitution of India is that all the employees claiming such parity and unless, a wholesale identity between the holders of the two posts is established, interference in the evaluation done by the executive would be inappropriate.

Conclusion

High Court while concluding the matter, held that in the light of the oral and documentary material on record, the only and irresistible conclusion which could have been arrived at, is that the nature of duties performed and the responsibilities discharged by Full Time Instructors are not comparable with those performed and discharged by Full Time Teachers.

“…the decision of the State Government not to grant to Full Time Instructors parity in Pay Scale with the Full Time Teachers does not suffer from the vice of arbitrariness or irrationality, and we would be loathe to interfere with a legitimate exercise of executive power, in exercise of writ jurisdiction.”

In view of the above discussion, petitions were dismissed. [Gajanan v. State of Maharashtra, WP No. 366 of 2002, decided on 2-08-2021]


Advocates before the Court:

Mr. R.L. Khapre, senior counsel with Mr. F.T. Mirza,

Mr. R.G. Kavimandan, Mr.T.S. Deshpande and

Mr. R.M. Ahirrao, for petitioners.

Mr. N.S. Rao, AGP for respondents in WP 366/2002 & 3229/2011 & for respondents 2 to 4 in WP 496/2012.

Mr. Anand Parchure, counsel for respondent 5 in WP 496/2012. Mr. S.B. Ahirkar, counsel for respondent 6 in WP 496/2012.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., while addressing the petitions challenging the IT Rules, 2021 expressed that

Dissent in democracy is vital.

People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles.

Challenge

Instant petitions challenged the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on the ground that they were ultra vires the Information Technology Act, 2000 and the provisions of Articles 14, 19 (1)(a) and 19(1)(g) of the Constitution.

Background

First petition was filed by the petitioner 1 company known as “The Leaflet”.

The second Petition was a Public Interest Litigation filed by Nikhil Mangesh Wagle who was stated to be in the field of journalism since the year 1977.

Contention

Petitioners contended that the 2021 rules were ex-facie draconian, arbitrary and patently ultra vires the provisions of the IT Act and the provisions of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution, which guarantees fundamental rights to the petitioners.

Petitioners in the first petition

Petitioners in the first petition were aggrieved by Rules 9, 14 and 16.

9. Observance and adherence to the Code.—

(1) A publisher referred to in rule 8 shall observe and adhere to the Code of Ethics laid down in the Appendix annexed to these rules.

(2) Notwithstanding anything contained in these rules, a publisher referred to in rule 8 who contravenes any law for the time being in force, shall also be liable for consequential action as provided in such law which has so been contravened.

(3) For ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India, and for addressing the grievances made in relation to publishers under this Part, there shall be a three-tier structure as under—

(a)  Level I – Self-regulation by the publishers;

(b)  Level II – Self-regulation by the self-regulating bodies of the publishers;

(c) Level III – Oversight mechanism by the Central Government.

……..

14. Inter-Departmental Committee.—

(1) The Ministry shall constitute an Inter- Departmental Committee, called the Committee, consisting of representatives from the Ministry of Information and Broadcasting, Ministry of Women and Child Development, Ministry of Law and Justice, Ministry of Home Affairs, Ministry of Electronics and Information Technology, Ministry of External Affairs, Ministry of Defence, and such other Ministries and Organisations, including domain experts, that it may decide to include in the Committee:

Provided that the Authorised Officer designated under sub-rule (2) of rule 13 shall be the Chairperson of such Committee.

(2) The Committee shall meet periodically and hear the following complaints regarding violation or  contravention of the Code of Ethics by the entities referred to in Rule 8 –

(a) arising out of the grievances in respect of the decisions taken at the Level I or II, including the cases where no such decision is taken within the time specified in the grievance redressal mechanism; or

(b) referred to it by the Ministry.

(3) Any complaint referred to the Committee, whether arising out of the grievances or referred to it by the Ministry, shall be in writing and may be sent either by mail or fax or by e-mail signed with electronic signature of the authorised representative of the entity referring the grievance, and the Committee shall ensure that such reference is assigned a number which is recorded along with the date and time of its receipt.

(4) The Ministry shall make all reasonable efforts to identify the entity referred to in Rule 8 which has created, published or hosted the content or part thereof, and where it is able to identify such entity, it shall issue a duly signed notice to such entity to appear and submit their reply and clarifications, if any, before the Committee.

(5) In the hearing, the Committee shall examine complaints or grievances, and may either accept or allow such complaint or grievance, and make the following recommendations to the Ministry, namely:—

(a) warning, censuring, admonishing or reprimanding such entity; or

(b)  requiring an apology by such entity; or

(c)  requiring such entity to include a warning  card or a disclaimer; or

(d) in case of online curated content, direct a publisher to—

(i) reclassify ratings of relevant content; or (ii) edit synopsis of relevant content; or
(iii) make appropriate modification in the  content descriptor, age classification and parental or access control;

(e) delete or modify content for preventing incitement to the commission of a cognisable offence relating to public order;

(f) in case of content where the Committee is satisfied that there is a need for taking action in relation to the reasons enumerated in sub-section (1) of section 69A of the Act, it may recommend such action.

(6) The Ministry may, after taking into consideration the recommendations of the Committee, issue appropriate orders and directions for compliance by the publisher:

Provided that no such order shall be issued without the approval of the Secretary, Ministry of Information and Broadcasting, Government of India (hereinafter referred to as the “Secretary, Ministry of Information and Broadcasting”).

16. Blocking of information in case of emergency.—

(1) Notwithstanding anything contained in rules 14 and 15, the Authorised Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the relevant content and consider whether it is within the grounds referred to in sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit a specific recommendation in writing to the Secretary, Ministry of Information and Broadcasting.

(2) In case of emergency nature, the Secretary, Ministry of Information and Broadcasting may, if he is satisfied that it is necessary or expedient and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing, as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons, publishers or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.

(3) The Authorised Officer, at the earliest but not later than forty-eight hours of issue of direction under sub- rule (2), shall bring the request before the Committee for its consideration and recommendation.

(4) On receipt of recommendations of the Committee under sub-rule (3), the Secretary, Ministry of Information and Broadcasting, shall pass the final order as regard to approval of such request and in case the request for blocking is not approved by the Secretary, Ministry of Information and Broadcasting in his final order, the interim direction issued under sub-rule (2) shall be revoked and the person, publisher or intermediary in control of such information shall be accordingly, directed  to unblock the information for public access.”

Primary grievance of the petitioners for interim reliefs is qua the application of Rules 7, 9, 14 and 16 of the impugned rules.

Analysis, Law and Decision

High Court opined that as far as Rule 14 was concerned, there was no immediate urgency inasmuch as inter-departmental committee was yet to be constituted. It was required to be noted that, no material had been brought to Court’s notice that the authorized officer as contemplated under Rule 13(2) had been appointed.

Therefore, petitioners were at liberty to approach the Court as and when the inter-departmental committee was constituted.

Rule 16 provides for blocking of information in case of emergency

The stated Rule provided was pari materia to Rule 9 of the 2009 Rules which were still in operation. Also, it was not the petitioners case that they were at any time aggrieved by Rule 9 of the 2009 Rules. Hence, Court found no case to be made to stay Rule 16 of the 2021 Rules.

Blocking of information in case of emergency as provided by Rule 16 was on the grounds traceable in Section 69A (1) of the IT Act which was a provision failing in line with the restrictions as imposed by Article 19(2) of the Constitution of India, namely, when the authority finds that blocking of public access of any information is in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to commission of any cognizable offence in relation to such issues.

Therefore, prayer to stay Rule 16 was rejected.

Rule 9

Bench stated that that said Rule was severely criticized by the petitioners as noted by the Court to be an affront on the guarantee of right of freedom of free speech and expression conferred by Article 19(1)(a) of the Constitution.

What peculiar under Rule 9?

Publishers of news and current affairs content and publishers of online curate content are under a mandatory obligation to observe and adhere to the Code of Ethics laid down.

Petitioners submitted that the IT Act does not seek to censor the content on internet; secondly, it is impermissible for the Centre to have a subordinate legislation in the form of Rule 9 inasmuch as it provides for restrictions which travel beyond the provisions of Section 69A of the IT Act ; and thirdly, the rule making power itself, as exercised in framing the impugned rules, namely, the power under Section 87 sub-section (1) and clauses (z) and (zg) of sub- section (2) itself does not provide for imposition of such restrictions.

In the opinion of the Court, Rule 9 prima facie suffers from two illegalities:

  • It imposes an obligation on the publishers of news and current affairs content and publishers of online curated content, to observe the Code of Ethics under a completely different statutory regime alien to the IT Act.

One who violates the code does so at his own peril and would expose himself/itself to more rigorous action than what the PCI Act envisages.

If a writer/editor/publisher has to adhere to or observe the Programme Code in toto, he would necessarily be precluded from criticizing an individual in respect of his public life [see: Rule 6(1)(i)].

Bench expressed that it is the checks and balances that make a democracy work. There can be no two opinions that a healthy democracy is one which has developed on criticism and acceptance of contra views.

Opinion based on criticism reinforces its acceptance in a democratic society.

With the existence of 2021 Rules in place, one would have to think twice before criticizing any such personality, even if the writer/editor/publisher may have good reasons to do so without resorting to defamation and without inviting action under any other provision of law.

Allowing the operation of the 2021 Rules in its form and substance to operate would result in the writer/editor/publisher standing the risk of being punished and sanctioned, should the inter-departmental committee be not in favour of criticism of any public figure.

Adding to the above, Court stated that,

The indeterminate and wide terms of the Rules bring about a chilling effect qua the right of freedom of speech and expression of writers/editors/publishers because they can be hauled up for anything if such committee so wishes.

The 2021 Rules are, thus, manifestly unreasonable and go beyond the IT Act, its aims and provisions.

A democracy would thrive only if the people of India regulate their conduct in accordance with the preambular promise that they took while giving to themselves the Constitution.

Liberty of thought is one of such promises. Exercising this liberty, expressions take shape.

Should at least a part of Rule 9 of the 2021 Rules be not interdicted even at the interim stage, it would generate a pernicious effect.

Further, it was stated that constant fear of being hauled up for contravention of the Code of Ethics is a distinct possibility now.

Prima facie, in Court’s opinion, Rule 9 appeared to be ultra vires the provisions of the IT Act being beyond the delegated power.

Elaborating more, Bench stated that Rule 9 prima facie appeared to be infringing the constitutional guarantee of Freedom of Speech and Expression as conferred by Article 19(1)(a) in subjecting the publishers of news and current affairs content and publishers of online curated content subject to action under the statutory regime of the PC Act and the CTVN Act, which provided for an independent mechanism for any violation of the provisions of such legislation.

Therefore, transgression of powers occupied by different legislation cannot be disrupted by a subordinate legislation.

Lastly, Court held that the present challenge would be required to be regarded as an exception to the general rule of presumption in favour of the constitutionality of Rule 9. Also, Rule 9 does not conform to the statute, namely, of the Information Technology Act as also it is an intrusion into the fundamental rights guaranteed under Article 19(1)(a) of the Constitution of the publishers.

Court denied to propose to stay Rule 7 of the 2001 Rules in the absence of clear satisfaction that the petitioner in the second petition, who is himself a journalist and has sufficient personal interest in the subject matter of the dispute, has not been able to satisfy us that he is an ‘intermediary’ within the meaning of Section 2(w) of the IT Act.

Hence, the High Court directed stay f operation of sub-rules (1) and (3) of Rule 9 of the 2021 Rules.

Matter stood over to 27th September, 2021for final hearing. [Agij Promotion of Nineteenonea Media (P) Ltd. v. Union of India, WP (L) No. 14172 of 2021, decided on 14-08-2021]


Advocates before the Court:

Mr Darius Khambata, Senior Advocate with Mr Mihir Desai, Senior Advocate, Mr Karan Rukhana and Mr Ammar Faizullabhoy and Mr Varun Thomas Mathew, Advocates i/b. Ms Meenaz Kakalia, for the Petitioner in Writ Petition (L) no.14172 of 2021.

Mr Abhay Nevagi with Mr Amit Singh and Mr Vivek Patil, Advocates i/b. Abhay Nevagi & Associates for the Petitioner in PIL (L) no. 14204 of 2021.

Mr Anil C.Singh, ASG with Mr Aditya Thakkar, Mr D.P.Singh and Ms Smita Thakur, Advocates for the Respondents in both petitions.

Case BriefsHigh Courts

Bombay High Court: G.S. Patel, J., held that the reporter or any other commentator should not deliver for public consumption a view on the quality of evidence before judgment is pronounced. Only the Court can do that and that is firmly and exclusively the prerogative of the Court.

High Court noted that the 2nd respondent had gone beyond what was legitimately permissible in its reportage of a part of the cross-examination in the present matter.

Further, the Court stated that, in proceedings, in an Open Court System fair reporting cannot be restrained, except perhaps in the most extraordinary circumstances, or where there are valid issues of privacy and security.

“…with modern communications technology, the nature of reporting — often from the well of the Court itself — has radically changed: we often now see updates going out every few minutes on digital media.”

Expressing more on the said matter, Bench stated that there is a limit to what a news report can say and do.

“…fair reporting of court proceedings does not extend to comments on the quality of evidence or arguments before a Court before judgment is delivered. Assessing those — finding them good or bad —is no part of a reporter’s job. It is the work of a Court and only a Court.”

Elaborating the above, High Court remarked that Judges and lawyers are trained in the matter of appreciation of the entire body of evidence in a trial. It is often described as an art. A reporter or commentator, whether a journalist, columnist or a lay person, is certainly entitled to critically examine the resultant judgment. He or she is perfectly at liberty to critique or criticize that judgment, in terms that may even be fierce, harsh and unsparing.

What assessment can reporter do?

High Court added that simply noting a particular question and answer might also be acceptable, or at least not objectionable. But the line is crossed when such reproduction is accompanied by what is effectively a judgment on merits, a statement that purports to assess the evidentiary value and weight of the cross-examination in a matter yet pending before Court; for instance, by suggesting that some part of the cross-examination was repetitive or ineffective or futile. That is an assessment that no Court reporter can do.

An editorialising of yet-to-adjudged evidence, when communicated publicly, directly affects the decision-making process and, more importantly, clouds the perception of necessary neutrality in the decision-making process.

“…a fleeting impression by a journalist of the value of evidence is entirely beyond his or her legitimate scope. Such a journalistic pronouncement becomes unacceptable when it is conveyed to the reading audience or public as something already decided, or about which no other view is possible.”

Stating that the understanding of the process of appreciation of evidence, with which lawyers and judges are familiar not to be obvious to others who watch or follow a trial, Court held that the Udaipur Times was an advertent error.

“…the press and courts each have their roles to play. Each must respect the other’s duties and responsibilities, always careful not to cross the dividing lines. If courts should not gag or silence the press, then, equally, the press must be reasonably circumspect about entering a territory that is exclusively the preserve of a court.”

Dr Saraf assured the Court that the above has been explained to the staff concerned at the Udaipur Times and stated that no repetition of such would be committed.[Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2021 SCC OnLine Bom 1579, decided on 27-07-2021]


Advocates before the Court:

Mr Anand Desai, with Mr Chirag Mody, Mr Samit Shukla, Mr Nausher Kohli, Ms Saloni Shah & Ms Shivani Khanwilkar, i/b DSK Legal, for the Plaintiff in Suit and for Respondent No. 1 in IA/1152/2021 in S/337/2014.

Mr Iqbal Chagla, Senior Counsel, with Mr Fredun DeVitre, Senior Counsel, Mr Pankaj Savant, Senior Counsel & Mr Murtaza Kachwalla, i/b Argus Partners for the Applicant/Original Defendant.

Dr Birendra Saraf, Senior Advocate, with Dipesh Siroya, i/b Dipesh Siroya, for Respondent 2.

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., while upholding the decision of Special Judge elaborated on the Sections of POCSO Act in light of a minor being induced to be involved in the sex trade.

Instant appeal was filed under Section 374 of the Code of Criminal Procedure against the conviction of the appellants for offences punishable under Section 370 read with Section 34 of the Penal Code, 1860, under Section 5 and 6 of the Immoral Traffic Prevention Act (PITA) and under Section 4 read with Section 17 of Protection of Children from Sexual Offences Act (POCSO).

Appellants are mother and daughter.

PW 4 had received information that the appellants were running a brothel.

During the raid conducted, respondent 2 who was then 17 years of age was found in a room with constable Bahirwal. A specified denomination currency note of Rs 500/- was found in possession of the appellant 2. Five to six used condoms and 200 pieces of unused condoms in a packet were found.

Respondent 2 (victim) and appellants were taken to the Police Station for the offences punishable under Section 366A, 370 372 read with Section 34 of the Penal Code, 1860, Section 3, 4,5, 6 and 7 of the PITA and Section 12 and Section 4 read with Section 17 of the POCSO Act.

Further, appellants were acquitted of the offences punishable under Section 366A and 372 of the Penal Code, 1860, of Section 12 of the POCSO Act and Section 7 of the PITA.

Analysis, Law and Decision

Age of the Victim

 Bench observed that when there is ample evidence in the form of school record which duly stands corroborated by the medical age determination test, though the latter is only an approximation, the former being concrete is sufficient to determine and conclude, as has been rightly done by the Special Court that the victim was less than 16 years of age at the relevant time and was, therefore, a child under POCSO Act as also under the PITA.

It was also noted in view of the circumstances and evidence that the victim (PW 1) had apparently willingly succumbed to the sexual exploitation.

Further, at no point of time, the victim seemed to have made any attempt to escape.

Even according to the victim, she was lodged in the house of the appellants for a period of about a month and was subjected to sex twice a day. Not only this but even while narrating the history to the Medical Officer Dr Shahane (PW 6) she disclosed that she was willingly working as a sex worker for a month.

 On noting the fact that she was a child within the meaning of Section 2(d) of the POCSO Act and Section 2(aa) of the PITA, her consent became irrelevant, and it was not a consent in the eye of law.

In view of the provisions of Section 29 of the POCSO Act, a presumption regarding commission of the offences under the Act needed to be raised as has been rightly done by the Special Judge. Appellants miserably failed to displace the burden cast upon them.

Coming to the ingredients for the individual offences for which the appellants have been convicted, so far as Section 370 of the Penal Code is concerned, i.e. for trafficking of person, even if it is concluded that since Shantabai had not been arrayed as an accused and therefore there was no evidence in respect of actual sale by her and purchase by the appellants of the victim on overall appreciation of the evidence it is quite apparent that the victim was induced into trade for the obvious monetary gain which is nothing but a trafficking as defined in Clause Sixthly of Sub Section 1 of Section 370 of the IPC.

As per the provisions of Section 5 and 6 of PITA, the former punishes procurement or inducement or taking a person for the sake of prostitution whereas Section 6 is concerned obviously the victim (PW 1) was detained in the house of the appellants with intent that she may have sexual intercourse with the persons who were not her spouse which is sufficient to constitute the offence.

Turning to the offence punishable under Section 17 read with Section 4 of the POCSO Act, Section 17 provides for punishment for abetment of any offence under the POCSO Act. Whereas Section 4 provides for punishment for penetrative sexual assault. Section 3 defines penetrative sexual assault to mean the different acts provided for therein.

Since the victim was made to succumb to the penetrative sexual assault by various customers and the appellants had induced her into that trade, it could easily be concluded that they committed an offence punishable under Section 17 and were rightly convicted and sentenced by the Special Judge.

Therefore, no illegality was found in the impugned judgment and order convicting and sentencing the appellants.

In view of the above discussion, appeal was dismissed. [Sunita v. State of Maharashtra, 2021 SCC OnLine Bom 1631, decided on 9-08-2021]


Advocates before the Court:

Advocate for the Appellants: Mr Aniket Vagal.

APP for Respondent No. 1/State: Mr S. N. Morampalle.

Advocate for Respondent 2: Mrs Rashmi S. Kulkarni.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., held that,

Mere dishonour of cheque and refusal to pay remaining balance amount involved in the transaction does not amount to abetment to commit suicide.

Factual Scenario

Dnyanoba Shinde (deceased) was the father of first informant. Deceased had agreed to purchase a plot from the applicant and had given the earnest money in 3 installments.

The said transaction came to be cancelled for want of clearance from the town planning department. Late Dnyanoba Shinde requested the applicant to repay the earnest money. Part of the amount of earnest money was paid to Late Dnyanoba Shinde. For the remaining balance amount, the applicant had issued the cheque.

Further, it was alleged that the applicant avoided making payment of balance amount and the cheque given by the appellant was dishonoured.

Due to the avoidance of making the above-stated payment, the mental condition of the father of the first informant was disturbed.

Suicide

Eventually the deceased left the house and committed suicide by hanging and on the suicide note the name of the applicant and others were mentioned making them responsible for suicide.

Applicant has approached this Court for quashing of the FIR and consequent filing of charge sheet filed against him.

Analysis

According to the provisions of Section 306 of the Penal Code, 1860 in order to bring a case of suicide, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing certain act to facilitate the commission of suicide.

“…instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no option except to commit suicide.”

Further, it was noted that the allegation levelled against the applicant in no way suggested that there was an active role on the part of the applicant, which led to the suicidal death of the deceased.

Bench stated that the prosecution case was based upon the suicide note, wherein the name of the applicant was figured. There was a big question mark on the genuineness of the suicidal note.

During the investigation it was disclosed that one Sopan Nagorao Mandale resident of Rahul Nagar, Latur had written that note and handed over to the deceased. Thus, it was clear that the very foundation of the prosecution case was shaky.

Therefore, allowing the criminal proceedings against the applicant to continue would be an abuse of the process of the Court and the ends of justice require that the proceedings ought to be quashed.

The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.

Concluding the matter, Court stated that there was no propriety to continue the criminal proceedings against the applicant and put him on trial. [Balaji v. State of Maharashtra, 2021 SCC OnLine Bom 1597, decided on 5-08-2021]


Advocates before the Court:

Mr. N.D. Kendre, Advocate for the Applicant

Ms. Preeti V. Diggikar, A.P.P. for Respondent No.1 / State Mr. S.S. Panale, Advocate for Respondent No.2

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D. Dhanuka and R.I. Chagla, JJ., addressed a petition revolving around the Right to Education Act, 2009.

In the instant petition, petitioner sought directions against respondents 1 and 2 to forthwith grant admission to his son as per the allotment letter issued to the petitioner by the competent authorities under Right to Education Act, 2009 in Standard I during the academic year 2020-21 and 2021-22.

Petitioner’s son was issued a certificate of disability of persons with autism by Nair Hospital and sometime in the year 2019, he applied for online admission of his son under the RTE Act, 2009.

Later, respondents 3 and 4 granted admission to petitioner in the respondent 1 school. The admission was granted after verification of the documents submitted before the committee.

Further, the petitioner made a representation to the Education Department informing that though the petitioner had visited the respondent 1 school in the month of August, 2019, the Administrative Officer refused to grant admission to the petitioner in spite of the letter of allotment issued by the authority. Hence the petitioner filed the present petition.

Analysis, Law and Decision

It was noted that respondent 2 had been granted a certificate of ‘minority education institution’ within the meaning of Section 2(g) of the National Commission for Minority Educational Institution Act, 2004 on 17-02-2020 and respondents 1 and 2 were issued a letter in favour of the petitioner for granting admission to the son of the petitioner in the respondent no.1 school much prior to the date of such certificate.

Hence, respondents 1 and 2 were thus required to comply with the said directives issued by the competent authority within the time prescribed therein which was much prior to the said date of certificate.

Upon raising a query upon the learned counsel for respondents 1 and 2 whether any other students had been admitted by respondents 1 and 2 prior to the date of obtaining such certificate dated 17-02-2020 under the provisions of the Right to Education Act, 2009, learned counsel fairly on instructions states that four students were admitted prior to 17th February, 2020 based on the directives issued by the Education Department under the provisions of the Right to Education Act, 2009.

Counsel for respondents 1 and 2 could not dispute that the respondents could not have cancelled the admission once granted to the petitioner on the ground of minority status granted subsequently.

Bench opined that respondents 1 and 2 cannot be allowed to take advantage of such certificate obtained after committing default in complying with the directives which were already issued prior to the date of such certificate.

The disobedience of the directives issued by the Education Department cannot be condoned by obtaining certificate as minority education institution subsequently.

Medical certificate by the petitioner indicated that the recommendation made by the Department of Psychiatry were that the petitioner’s son should continue in a regular school with various further advise.

Therefore, Court directed the respondent 1 and 2 to comply with the directives issued by the Education Department and to grant admission to the son of the petitioner in respondent 1 school within one week.

In view of the above, petition was disposed of. [Ashish Patel v. Edubridge International School, 2021 SCC OnLine Bom 1587, decided on 5-08-2021]


Advocates before the Court:

Mr C. R. Sadasivan, a/w. Mr Anup Dhannawat for the Petitioner.

Mr Pradeep Bakhru, a/w. Ms Upasana Vasu i/b. M/s.Wadia Ghandy & Co. for the Respondents 1 and 2.

Mr Milind More, Additional Government Pleader for the State – Respondents 3 and 4.