150 Important Rulings Of Bombay High Court In 2023: Part III

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 417

Noting a lacuna in the law for mentally retarded persons, the Bombay High Court extended the scope of Section 7 of the Guardians and Wards Act 1980 to allow guardianship of an adult suffering from mental retardation.

Justice Riyaz Chagla observed that provisions of the Mental Health Act, both the repealed and the existing Acts, did not cover mental retardation under the definition of mental illness.

The court noted the existing Mental Healthcare Act, 2017 unlike the repealed Act doesn't have a provision for the District Court to appoint a suitable person as Guardian of a person suffering from mental illness and incapable of taking care of himself.

“Thus, in my view the only remedy available in such cases is for the Petitioner to apply under the Guardians and Wards Act, 1890 for the Petitioner to be appointed as Guardian of the person, despite he/she being a major, but suffering from mental retardation,” the bench said.

2. Denying Access To Own House Amounts To Denial Of Basic Amenities: Bombay High Court Revokes Gift Deeds After Son Fails To Maintain Mother

Case Title: Ashwin Bharat Khater v. Urvashi Bharat Khater

Citation: 2023 LiveLaw (Bom) 430

Observing that the denial of access to one's own house amounts to denial of basic amenities, the Bombay High Court upheld the Senior Citizens Maintenance Tribunal's order revoking two gift deeds executed by an elderly woman in favour of her son and directed the son and daughter-in-law to vacate the subject property.

Justice Sandeep V Marne held so upon finding that the son had failed to perform his duty to provide basic amenities and physical needs to his widowed mother.

“The Gifts were executed out of natural love and affection towards son, which was the only possible consideration for execution thereof. Inbuilt in such love and affection is the duty of the son to provide basic amenities and physical needs to the widowed mother. The events that have occurred post execution of gift deeds so indicate that such love and affection between the Mother and son no longer exists. Along with love and affection, the son has perhaps failed to perform the duty of providing the basic amenities and physical needs to his mother. It was never son's property. He had no right to seek gift thereof”, the court observed.

3. Comity Of Courts Not Weapon To Leave Litigant Remediless: Bombay High Court Stays Singapore Court Order Against Shaadi.com CEO Anupam Mittal

Case Title: Anupam Mittal v. People Interactive (India) Pvt. Ltd. and Ors.

Citation: 2023 LiveLaw (Bom) 434

The Bombay High Court temporarily stayed the enforcement of an anti-suit permanent injunction order issued by the Singapore High Court against Anupam Mittal, the founder and CEO of Shaadi.com.

The Singapore High Court order restrained Mittal from proceeding with his petition before the National Company Law Tribunal (NCLT) alleging oppression and mismanagement of People Interactive (India) Pvt. Ltd, the parent company of Shaadi.com.

Justice Manish Pitale observed that disputes regarding oppression and mismanagement are non-arbitrable in India and the principle of comity of courts cannot prevent a litigant from pursuing the only available legal remedy.

4. Delay Beyond 90 Days For Appeal Under NIA Act Can Be Condoned, Rules Bombay High Court; Disagrees With Views Of Kerala & Calcutta HCs

Case Title: Faizal Hasamali Mirza @ Kasib v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 437

The Bombay High Court held that an appeal against a trial court's order can be entertained by the appellate court even after the lapse of statutory period of 90 days under Section 21(5) of the National Investigating Agency(NIA) Act, 2008.

The division bench of Justices Revati Mohite Dere and Gauri Godse read down the 2^nd proviso to Section 21 (5) of the NIA Act and allowed an application filed by a terror accused seeking to condone the delay of 838 days in filing his bail appeal in HC.

“Courts exist to do justice. Access to justice is a fundamental right and cannot be diluted. If despite 'sufficient cause' being shown, if an appeal under Section 21(5), 2nd proviso cannot be entertained, this would lead to depriving an accused of his fundamental right guaranteed to him under Article 21 of the Constitution.”

“If the provision were to be held mandatory…the doors of justice will be shut, leading to travesty of justice, which cannot be permitted by Courts of Law,” the court added.

5. Bombay High Court Comes To Aid Of Woman Stuck With Ex-Husband's Name Wrongly Added To Child's Birth Certificate

Case Title: M v. Navi Municipal Corporation and Anr.

Citation: 2023 LiveLaw (Bom) 440

Expressing surprise at the Navi Mumbai Municipal Corporation's unwillingness to correct the father's name on the birth certificate of a 3-year-old, the Bombay High Court directed the Municipal body to immediately replace the woman's ex-husband's name with the child's biological father's name on the birth certificate.

“We confess we are unable to understand the approach of the Municipal Corporation and, for that matter, that of the JMFC,” Justice GS Patel and Kamal Khata observed regarding the mother's failed attempts before the NMMC and magistrate.

Supreme Court in ABC v. State (NCT of Delhi) said that whenever a single parent or an unwed mother applies for a birth certificate the only requirement should be that she should furnish an affidavit to that effect. The corrected birth certificate must then be issued.

The High Court observed these case laws couldn't have been overlooked by the NMMC and JMFC. “This is the binding law declared by the Supreme Court and the Bombay High Court. The Municipal Corporation is not at liberty to say “there is no law.” There is indeed a law.”, said the court.

6. Bombay High Court Upholds Constitutional Validity Of Goa Green Cess Act For 'Reduction Of Carbon Footprint'

Case Title: South Port Limited v. State of Goa

Citation: 2023 LiveLaw (Bom) 449

The Bombay High Court at Goa upheld the constitutional validity of the Goa's Green Cess Act which enables the state government to collect cess on the utilisation of pollution causing hazardous products and uses it to reduce the effects of carbon footprint in the State.

The Act is called The Goa Cess on Products and Substances Causing Pollution (Green Cess) Act, 2013 or the Green Cess Act 2013.

A division bench of Justices MS Sonak and Bharat P Deshpande dismissed a clutch of petitions filed by various companies including Goa Carbon Limited and Vedanta Ltd that challenged the Act citing the State's lack of legislative competence to enact such a statute.

The court rejected the petitioner's argument that the cess collected from them didn't specifically benefit the companies. Therefore, it wouldn't be a 'fee,' but a 'tax' beyond the legislative competence of the state.

7. Section 4 Of The Fugitive Economic Offenders Act Cannot Be Bypassed By Taking Recourse To CrPC To Contend That Affidavit Was Not Proper: Bombay High Court

Case Title: Mehul Choksi v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 450

The Bombay High Court rejected an application filed by businessman Mehul Choksi challenging an application filed by the Enforcement Directorate (ED) to declare him a fugitive economic offender (FEO) in the Punjab National Bank fraud case.

Justice Sarang V Kotwal observed that the ED's application complied with the form and manner prescribed in the Fugitive Economic Offenders Act, 2018 (FEO Act) and FEO Rules.

The court held that the verification clause in ED's application satisfied the requirements of the criminal manual of the court as the deponent (deputy director of ED) clearly stated that the information in the application was based on his knowledge derived from records.

The court observed that the FEO Act provided its own special procedure which should be followed in this case, an no separate affidavit needs to accompany the application.

“section 4 of the FEO Act and Rule 3 of the FEO Rules are made to further the objective of this Act and they cannot be bypassed by taking recourse to the other provisions of Cr.P.C. to contend that the affidavit was not proper”, the court observed.

8. Capital Gain Tax, No Retrospective Applicability Of Amendment Restricting Investment In India: Bombay High Court

Case Title: Hemant Dinkar Kandlur v. Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 452

The Bombay High Court held that the amendment restricting investment in house property in India has retrospective applicability.

The bench of Justice K. R. Shriram and Justice N. K. Gokhale observed that the language of Section 54(F) of the Act before its amendment was that the assessee should invest capital gain in a residential house. It did not mention any boundaries. It is only after the amendment to Section 54(F) of the Act, which amendment came into effect on April 1, 2015, that the condition that the assessee should invest the sale proceeds arising out of a sale of a capital asset in a residential property situated "in India" within the stipulated period was imposed. The amendment is not merely a clarificatory or explanatory amendment, but a substantive one.

9. Magistrate Not Obligated To Provide Reasons For Amount Of Interim Compensation Awarded To Complainant In Cheque Dishonour Case: Bombay HC

Case Title: Guljama Shah Jahir Shah v. Shri Sadguru Kaka Stone Crusher

Citation: 2023 LiveLaw (Bom) 461

The Bombay High Court held that the trial court is not obligated to provide reasons for the amount of interim compensation in cheque dishonour cases, as long as the requirements provided in Section 143A of the Negotiable Instruments Act, 1881 (NI Act) are met.

Justice Anil Pansare of the Nagpur Bench observed that satisfaction of Section 143A is reason enough for awarding 20 percent interim compensation to the complainant and requiring trial court to give additional reasons for the amount would defeat the purpose of the section.

“To expect the learned Magistrate to assign additional reasons, in a way, will defeat the amendment for the reason that every order passed under Section 143A will then be challenged on the ground that there are no additional reasons assigned by the learned Magistrate and if additional reasons are assigned, the challenge will be that the reasons assigned are not adequate etc. thereby opening flood-gates of litigations”, the court observed.

10. Wynk v. TIPS | Internet Based Music Streaming Platforms Not Eligible For Compulsory Music Licences Available For TV, Radio: Bombay HC

Case Title: Wynk Ltd. v. Tips Industries Ltd.

Citation: 2023 LiveLaw (Bom) 464

The Bombay High Court held that online music streaming and downloading platforms would not be eligible for discounted compulsory licenses to their music under Section 31D of the Copyrights Act.

This means that internet-based platforms will have to negotiate contracts with big record companies to use their repertoire of music unlike radio and television networks.

A division bench comprising Justices Gautam Patel and Gauri Godse upheld an order passed by Justice SJ Kathawalla, now retired, in a dispute between Bharati Airtel Ltd's WYNK Ltd and Tips.

11. Bombay High Court Paves Way For Reconstruction Of Dainik Bhaskar Director's House Near INS Trata Without NOC From Naval Authorities

Case Title: Dolby Builders Private Ltd. and Anr. v. Municipal Corporation of Greater Mumbai and Ors.

Citation: 2023 LiveLaw (Bom) 465

The Bombay High Court directed BMC to process within four months the application for permission to reconstruct a three-storey house in Worli for Dainik Bhaskar director Girish Agarwal without requiring a No Objection Certificate from Naval authorities- due to the site's proximity with naval missile battery base INS Trata.

A division bench of Justice Sunil B Shukre and Justice MW Chandwani applied the Wednesbury principle of unreasonableness, and concluded that requiring an NOC for a building of the same height as the previous one, which did not pose security risks, is unreasonable.

The court also quashed four Defence Ministry circulars dated May 18, 2011, March 18, 2015, November 17, 2015 and December 23, 2022 imposing certain restrictions on use of land near “Defence Establishments” such as INS Trata.

12. Bombay High Court On Anticipatory Bail | POCSO Act Prevails Over Atrocities Act Only If Allegations Under POCSO Are Readily Apparent And Court Proven

Case Title: Dinanath Manik Katkar v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 470

The Bombay High Court held that provisions regarding anticipatory bail in the POCSO Act would not prevail over provisions of appeal in the SC and ST (Prevention of Atrocities) Act if the allegations under POCSO Act are not prima facie made out against the accused.

Justice NJ Jamadar, while dealing with an anticipatory bail application of a person accused under both POCSO Act and Atrocities Act, observed –

“Apart from a passing reference that there were girls in the procession and they were also video-graphed, there is no other allegation which would prima facie fall within the dragnet of section 12 of the Act, 2012. In the circumstances, it would be appropriate that the applicant prefers an appeal as envisaged by section 14A(4) of the SC and ST Act, 1989.”

13. Bombay High Court Calls For "Progressive" View On Obscenity, Says Wearing Short Skirts, Dancing Provocatively Not Per Se Obscene

Case Title: Lalit S/o Nandlal Bais v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 478

Women dancing provocatively in skimpy clothes or making gestures are not “obscene” or “immoral” acts which could annoy someone, the Bombay High Court's Nagpur bench held.

A division bench of Justices Vinay Joshi and Valmiki Menezes quashed an FIR against five men accused under Section 294 (obscenity) of the IPC and under sections of the Maharashtra Police Act for indecency in public and the Maharashtra Prohibition Act, 1949.

The police filed an FIR after conducting a raid at the Banquet Hall of a Resort and Water Park where six women were allegedly found dancing in short skirts and the applicants were showering money on them. Both men and women were booked in the case.

“We are of the considered opinion that the acts of the Accused Nos.13 to 18 (female dancers) referred to in the complaint/FIR, namely wearing short skirts, dancing provocatively or making gestures that the Police Officials consider obscene cannot be termed to be per se obscene acts, which could cause annoyance to any member of the public.”

14. Bombay High Court Grants Relief To Minor's Father Booked After Failed Prosecution, Says Purpose Of POCSO Act Not To Discourage Victims

Case Title: ABC v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 479

The Bombay High Court observed that the Protection of Children from Sexual Offences Act, 2012 is not meant to discourage victims from registering complaints due to the fear that they may be prosecuted for false evidence if the prosecution fails to prove its case.

Justice MS Karnik, while quashing a complaint against father of a minor victim booked for giving false evidence, observed –

“The object of the POCSO Act is to ensure justice to the victims who have suffered the offence...The purpose is to obligate reporting of cases and recording of offences and not to discourage victims with a sword of a prosecution hanging over them in case the prosecution is not successful in establishing the offence against the accused person/s. Section 22 provides for punishment for false complaint or false information. The present is not a case of making false complaint or providing false information. This is a case where the prosecution failed to prove the offence against the accused.”

The court held that merely victim and her father turning hostile in a case under the POCSO Act does not mean that they gave false evidence and are liable to be prosecuted under section 22 (punishment for false complaint or false information) of the Act, as there can be many reasons for a victim's change in stance.

15. Bombay High Court Refuses To Reinstate College Student Who Submitted Caste Validity Certificate After Deadline Due To Delay By Scrutiny Committee

Case Title: Bhushan s/o. Sangappa Chaudhari v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 484

The Bombay High Court refused to reinstate the college admission of a student who failed to submit a Caste Validity Certificate on time due to a delay by the Caste Scrutiny Committee in processing his application.

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla explained that the fixation of specific dates as deadlines for students was a matter of policy, and the court could only direct authorities to relax the policy when necessary to protect fundamental rights or rectify illegalities. In this case, there was no such necessity.

“…it would be not appropriate on the part of this Court to direct the authorities to restore the admission of the Petitioner on the ground that there was no fault on his part in submitting the Validity Certificate on or before the last date fixed for that purpose”,

The court also held that time frame prescribed in Rule 18(5) of the Caste Certificate Rules, 2012 to process the applications is directory, not mandatory.

16. S. 141 NI Act | No Restriction On Making Unregistered Firm An Accused In A Cheque Bounce Case: Bombay High Court

Case Title: Satyaseelan Kuttappan v. PP Sudhakaran and Anr.

Citation: 2023 LiveLaw (Bom) 485

The Bombay High Court held that an unregistered partnership firm can be made an accused in a cheque dishonour case under the Negotiable Instruments Act, 1881 (NI Act).

Justice Anil Pansare of the Nagpur bench observed that the status of registration of the partnership firm is irrelevant on proceedings for cheque dishonour under the NI Act.

“registration or non-registration of the partnership firm will have no bearing insofar as Section 141 of the Act of 1881 is concerned. The provision under Section 141 of the Act of 1881 makes it mandatory to arraign the company or the firm, as the case may be, as party accused in the complaint. This provision or any other provision of the Act of 1881 does not put embargo on making unregistered partnership firm an accused”, the court held.

17. Bombay HC Dismisses Plea To Ban Engagement Of Pakistani Artists In India; Says Patriotism Is In Devotion To Country, Not Enmity Towards Another

Case Title: Faaiz Anwar Qureshi v. Union of India and Ors.

Citation: 2023 LiveLaw (Bom) 489

The Bombay High Court dismissed a petition seeking a complete ban on Indian citizens, companies, and associations from engaging Pakistani artists, including actors, singers, musicians, lyricists, and technicians.

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla observed that the petition is a “retrograde step in promoting cultural harmony, unity and peace, and has no merit in it.”

“A person who is good at heart would welcome in his country any activity which promotes peace, harmony, and tranquility within the country and across the border, Arts, music, sports, culture, dance and so on are the activities which rise above nationalities, cultures and nations and truly bring about peace, tranquility, unity and harmony in nation and between nations”, the court observed.

18. Judiciary's Role In Appointing Consumer Forum Members Can't Be Diluted: Bombay High Court Strikes Down Rule 6(1) Of Consumer Protection Rules 2020

Case Title: Dr. Mahendra Bhaskar Limaye v. Union of India

Citation: 2023 LiveLaw (Bom) 491

The Bombay High Court at Nagpur quashed Rule 6(1) of the Consumer Protection Rules, 2020 which prescribed two members from the State bureaucracy and only one member from the judiciary on the Selection Committee that recommends appointment of the President and member-judges to the State and District Consumer Commissions.

The division bench comprising Justices Atul Chandurkar and Vrushali Joshi observed the rule was “diluting the involvement of the judiciary” and the “lack of judicial dominance” was in “contravention of the doctrine of separation of powers and also an encroachment on the judicial domain.”

The court further quashed Rule 10(2) to the extent it prescribed only a four-year tenure for members instead of five and additionally found the advertisement issued by Maharashtra's Department of Consumer Affairs for recruitment to be without jurisdiction for one of the two written papers.

As Rule 6(1) was struck down, the court consequently set aside the notifications issued in June this year constituting the selection committees.

19. Sarpanch/Upa-Sarpanch Election Must Be Conducted Via Secret Ballot Instead Of Show Of Hands If Even One Panchayat Member Demands: Bombay High Court

Case Title: Aarti w/o Santosh Pawar v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 492

The Bombay High Court held that the election of Sarpanch/Upa-Sarpanch must be conducted by secret ballot even if just one panchayat member present at the meeting requests election through secret ballot election instead of show of hands.

Justice Kishore C Sant of the Aurangabad Bench held that the method of conducting election cannot be decided by the majority opinion.

“It is, therefore, provided necessary that even if one person asks for secret ballot instead of voting by show of hands, it needs to be held in that way. Whether to hold election by secret ballot or show of hands cannot be let to the will of the majority. The Presiding Officer in this case decided to take voting by show of hands by recording that the majority of the voters demanded voting by show of hands and has committed the error”, the court held.

The court upheld orders setting aside the Upa Sarpanch election of a village conducted by show of hands despite a panchayat member's request for a secret ballot.

20. Custodian Of Enemy Property Cannot Halt Project On Land Not Vested In Him: Bombay High Court

Case Title: M/s. Neelkamal Realtors Suburban Pvt Ltd v. Office of the Custodian of Enemy Property of India

Citation: 2023 LiveLaw (Bom) 499

The Custodian of Enemy Properties doesn't have the power to issue prohibitory orders against any land parcel suspected to be an 'enemy property' until the Custodian is vested with the property under the Enemy Properties Act, 1968 the Bombay High Court held.

Properties owned by Pakistani Nationals and acquired by the Indian government are known as 'enemy properties.'

A division bench comprising Justices Sunil Shukre and Rajesh Patil quashed all communications issued by the Assistant Custodian of Enemy Property directing the Tehsildar and Collector to Mira-Bhayander Municipal Corporation, to issue stop work notices to a development project undertaken by Neelkamal Realtors.

21. Tenants Can Reconstruct Demolished Premises Without NOC From Landlord, Recover Costs If Owner Fails To Redevelop: Bombay High Court

Case Title: Chandralok People Welfare Association v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 511

The Bombay High Court allowed tenants to reconstruct their demolished premises under Section 499 (6) of the Mumbai Municipal Corporation Act sans the landlord's permission, and recover costs from him in the absence of a redevelopment plan within a year of demolition.

However, the division bench comprising Justices Gautam Patel and Kamal Khata clarified that the tenants wouldn't be entitled to redevelop the premises and occupy flats on ownership basis. Meaning the tenants would continue to remain tenants after reconstruction.

“The [tenants] association must make its own arrangements for financing the reconstruction. We have only affirmed their statutory right to reconstruction and the MCGM (BMC)'s obligation to permit it without requiring the prior consent of [the landlord].”

22. Father Can't Be Accused Of Kidnapping For Taking Child Away From Mother In Absence Of Any Prohibition From Competent Court: Bombay High Court

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 513

The Bombay High Court held that a father cannot be held guilty of kidnapping for taking his minor child away from the mother unless there is an order of a competent court preventing him from taking custody of the child.

A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes sitting at Nagpur quashed an FIR registered under Sections 363 of the IPC by the biological mother of the child, accusing the father of forcibly taking away their 3-year-old son.

“The father of a child will not come within the scope of section of 361 of the IPC, even if he takes away the child from the keeping of the mother, she may be a lawful guardian as against any other except the father or any other person who has been appointed as a legal guardian by virtue of an order of the Competent Court. So long there is no divestment of the rights of the guardianship of a father, he cannot be guilty of an offence under Section 361 of the IPC”, the court held.

23. Merely Stating EVM Was Defective Would Not Invalidate Election Without Proof Of Material Impact On Outcome: Bombay High Court

Case Title: Meerabai W/o Dnyaneshwar Chatare v. Returning Officer to the Election

Citation: 2023 LiveLaw (Bom) 517

The Bombay High Court held that merely stating that the Electronic Voting Machine had a defect would not invalidate an election in absence of proof that this defect materially influenced the outcome of the election.

A division bench of Justice AS Chandurkar and Justice Vrushali V. Joshi sitting at Nagpur refused to quash election of a Sarpanch who won by one vote in a plea challenging the election on the ground that the EVM recorded one vote less than the number of votes cast.

24. An Arbitral Award Cannot Be Challenged In Appeal On Entirely New Grounds Which Were Not Taken Under Section 34 Of The A&C Act: Bombay High Court

Case Title: Azizur Rehman Gulam v. Radio Restaurant

Citation: 2023 LiveLaw (Bom) 518

The High Court of Bombay held that an appeal to challenge an arbitral award cannot be on entirely new grounds. It held that grounds which were not taken before the Court under Section 34 of the A&C Act cannot be taken in appeal.

The bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S. Doctor held that an arbitration award cannot be challenged on afresh grounds that were never taken before. It held that such a course would not just be in teeth of the settled position of law but would also disturb the entire scheme of the arbitration act.

The Court also held that under Section 37(1)(c) of the A&C Act, it is only the order of the Court under Section 34 against which the appeal is maintainable, therefore, the challenge must be to the order of the Court and not to mere award.

25. Amount Of Arbitration Award Received By Retiring Partner For Relinquishing Claim In The Firm Is Not Taxable: Bombay High Court

Case Title: Ramona Pinto v. Deputy Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 538

The High Court of Bombay held that an amount of arbitration award received by a retiring partner for relinquishing its claim in the firm is not a taxable income.

The bench of Justices K.R. Shriram and Dr. Neela Gokhale held that the amount received by a partner under a consent arbitration award for relinquishing its stake in the firm cannot be treated as an 'income from other sources' within the meaning of Section 56(1) of the Income Tax Act, 1961 to bring it within the rubric of taxable income. It held that to bring an amount within the fold of Section 56(1), it has to be first shown as income, however, an amount received upon retirement from a firm is not an income. It also held that such an amount also does not fall within the scope of 'capital gains'.

The Court also held that receipt of an amount in lieu of inheritance or pursuant to family arrangement cannot be charged with tax under the Act as arrangement is an agreement between the members of the same family for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family peace, honour, security and property of the family by avoiding litigation and amounts so received or not exigible to tax.

26. Maha Village Panchayats Act | No Confidence Motion Against Sarpanch Valid Sans Formal Proposal & Seconding If Passed By 3/4th Majority: Bombay HC

Case Title: Savita Shrimant Ghule v. Sangita Bibhishan Sanap & Ors.

Citation: 2023 LiveLaw (Bom) 547

The Bombay High Court held that a No Confidence Motion against Sarpanch and Upa Sarpanch would be valid even without being formally proposed and seconded as long as it was passed by the required majority and fulfilling all requirements under section 35 of the Maharashtra Village Panchayats Act.

Justice Madhav Jamdar upheld the No Confidence Motion passed against the Sarpanch and Upa-Sarpanch of Gram Panchayat Ukkadgaon in Solapur District observing that it was passed meeting all statutory requirements.

“the requirement of Rule 17 in the matter of proposing and seconding the motion cannot impinge upon the validity of the motion of no confidence which has otherwise been passed by fulfilling the requirement of Section 35(3) of the said Act as the said infraction does not affect the merits of the case”, the court held.

Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959 provides that a member who has given notice of a motion shall either state that he does not wish to move the motion, or formally move the motion, after the motion is duly seconded.

The court dismissed two writ petitions filed by the Sarpanch and Upa-Sarpanch against an order dated October 13, 2023, wherein the Collector, Solapur, dismissed their Dispute Applications challenging the validity of the Motion of No Confidence.

27. Victim Or Guardian In POCSO Case Not Obligated To Appear Before Court In Appeals And Application For Sentence Suspension: Bombay High Court

Case Title: Rohit s/o Chandrakant Bhagat v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 549

The Bombay High Court clarified that the child victim of offenses under the Protection of Children from Sexual Offences (POCSO) Act or their guardians are not obligated to appear before the court in appeals or applications for suspension of sentence by the convict.

Justice Anil Pansare of the Nagpur Bench observed that confusion has arisen among advocates, investigating agencies, and court officials regarding the necessity of the presence of a child victim, through parents or guardians, in appeals under Section 374 or applications for suspension of sentence under Section 389 of the CrPC.

The court emphasized that the child's or the guardian's presence is not obligatory except in bail applications, as per directions given by the court in Arjun Kishanrao Malge v. State of Maharashtra.

The court admitted an appeal against conviction and directed the appellant to delete the victim's name from both the appeal and the application for suspension for sentence.

28. Tenants' Limited Right To Seek Building Repair Can't Obliterate Landlord's Right To Redevelop It: Bombay High Court

Case Title: Anandrao G Pawar v. Municipal Corporation of Greater Mumbai & Ors.

Citation: 2023 LiveLaw (Bom) 551

The Bombay High Court held that tenants cannot stretch their limited right to reconstruct or repair a dilapidated building in order to obstruct the property owner/landlord from redeveloping his property.

Ruling in favor of the petitioner/landlord, division bench of Justice GS Patel and Justice Kamal Khata set aside the no-objection certificate ("NOC") and subsequent repair permissions granted to tenants w.r.t. a building in Worli.

The court observed that the petitioner/owner was desirous of redeveloping the property and was willing to re-accomodate tenants free of cost on basis of ownership. As such, he was entitled to “enjoy the fruits of development of that property to the fullest possible extent.”

It was added that when an owner does not exercise his rights, "and stands idly by doing nothing to the prejudice of the tenants", the tenants are not without a remedy. They can have the building repaired or rebuilt to its original condition, but no more.

29. Confession Made To Police Patil Admissible In Court: Bombay High Court

Case Title: Vishwas S/o Pitambar Patil v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 552

Confession made to Police Patil is admissible in court as Police Patil is not a “Police Officer” for the purpose of Section 25 of the Evidence Act, Bombay High Court held.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase while upholding a man's conviction for murdering his own daughter, observed that his advocate relied on an outdated judgment to challenge the testimony of a prosecution witness.

The advocate representing the appellant had relied on the Single Judge decision in Ram Singh v. State of Maharashtra (1999) wherein it was held that the Police Patil is a Police Officer and therefore, confession made before him is not admissible in evidence. Based on this case, he challenged the testimony of a Police Patil who testified that the appellant confessed to him.

However, the court pointed out that subsequently, a Full Bench (three judge bench) of the Bombay HC in Rajeshwar s/o Hiraman Mohurle v. State of Maharashtra (2009) held that Police Patil appointed under the Maharashtra Village Police Act, 1967 is not a “Police Officer” for the purpose of Section 25 of the Evidence Act.

30. S.138 NI Act | Offence Can Be Compounded At Initial Stage Without Complainant's Consent, Provided They Are Duly Compensated

Case Title: Anuradha Kapoor and Ors. v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 555

The Bombay High Court held that a court can compound the offence in check bounce cases without the complainant's consent provided that the accused applied for compounding in the initial stages of the case and the complainant was adequately compensated.

Justice Anil Pansare of the Nagpur bench quashed a cheque bounce case against six out of twelve accused subject to the accused depositing the cheque amount along with interest and litigation costs as compensation to the complainant.

“when the application for compounding offences u/s 138 of the NI Act is made at the initial stage of the case and if the complainant is duly compensated, the trial Court will be fully justified in compounding the offence without consent of the complainant”, the court held.

31. Electricity Connection On Particular Address Not Proof Of Ownership, Legality Of Construction: Bombay High Court

Case Title: High Court On Its Own Motion v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 557

A division bench of Justices Gautam S Patel and Kamal Khata of the Bombay High Court held that an electricity bill or connection on a certain address is not proof of ownership or legality of construction.

An electricity distribution licensee cannot possibly assess questions of title of the property and check if the apartment or units have the necessary planning permissions, the court said.

“An electricity connection application and a bill cannot be used to prove ownership because that is not even the demand of the distribution licensee... It is impossible to expect a distribution licensee to act beyond the remit of the statute to assess questions of title to the property in question let alone assess questions of whether the structure or structures or apartments or units do or do not have the requisite planning permissions.

32. Bombay High Court Dismisses Petition Filed By Serum Institute Of India Challenging 2016 Amendment To Income Tax Act

Case Title: Serum Institute of India Private Limited v. Union of India

Citation: 2023 LiveLaw (Bom) 568

The Bombay High Court dismissed a petition filed by Serum Institute of India Pvt. Ltd. challenging a 2016 amendment to the Income Tax Act.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that the amendment to Section 2(24) by insertion of the impugned sub-clause that includes various subsidies and concessions only indicates the well-established jurisprudential path ensuring that the income tax laws remain attuned to the economic realities and continue to serve as a vital cog in the nation's fiscal machinery. It is the duty of the legislature to ensure that taxation policy reflects a balance between incentivizing economic activity and ensuring the equitable distribution of fiscal resources.

33. Tax Can't Be Imposed Presuming Possible Order Of The Small Causes Court: Bombay High Court

Case Title: TV Patel Pvt. Ltd. v. Dy. Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 570

The Bombay High Court held that one cannot tax the amount that has not accrued to the assessee and has not been received by the assessee on the assumption and presumption that in the future, the small Causes court will at least order the said sum in favour of the appellant or assessee.

The bench of Justice GS Kulkarni and Justice Jitendra Jain observed that the determination of the amount payable by the IDBI to the appellant as prayed for by the appellant in its suit is to be determined by the Small Causes Court, and it is only when the Court passes a final decree that one can say that the right to receive the sum decreed by the Small Causes Court has accrued to the appellant. Till then, the right to receive any sum by the appellant is in jeopardy and subjudice before the Small Causes Court.

34. Court Can Extend Period Of Arbitral Tribunal Even If Application Is Made After Time Limit: Bombay High Court

Case Title: Nikhil H Malkan v. Standard Chartered Investment and Loans (India) Ltd.

Citation: 2023 LiveLaw (Bom) 573

The High Court of Bombay held that Section 29A permits the court to extend the mandate of the arbitral tribunal even when the application is made after the expiry of time limit provided therein.

The bench of Justice Manish Pitale clarified that Section 29A(4) allows the Court to extend the arbitrator's mandate either before or after the specified period's expiry, provided sufficient grounds are demonstrated. The purpose is to ensure the completion of arbitral proceedings, and a rigid time limit is not intended by the legislature.

35. Period Of House Arrest Can Be Taken Into Consideration While Calculating Total Period Of Custody: Bombay High Court

Case Title: Mohammed Farooq Mohamemed Hanif Shaikh @ Farooqe Shaikh v. The Deputy Director & Anr.

Citation: 2023 LiveLaw (Bom) 576

The Bombay High Court held that house arrest is a form of arrest, and the period of house arrest can be taken into account while calculating the total period of custody of an accused.

A division bench of Justice AS Gadkari and Justice Shyam C Chandak granted bail to one Mohammed Farooq Shaikh, who has been in custody for over 5 years and 8 months, including over 4 years of house arrest.

“Mr. Venegavkar, learned counsel for the Respondent No.1-ED submitted that, the period of house arrest cannot be taken into consideration for computing the total period of custody of the Petitioner and it needs to be excluded. We are not in agreement with the learned counsel, as according to us house arrest is ultimately arrest of person, whereby his liberty to be a free person is ultimately curtailed by operation of law”, the court observed.

36. High Court Denies Protection To Vithal-Rukumai Temple In South Mumbai Citing Lack Of Declaration As Monument Of National Or State Importance

Case Title: Shaila Madhukar Gore and Ors. v. Union of India and Ors.

Citation: 2023 LiveLaw (Bom) 582

The Bombay High Court held that it cannot issue direction for protection of a site as a monument of historical importance in the absence of a formal declaration of the site as a monument of State/National importance or a heritage site under a Central or State law or the Development Control and Promotion Regulations for Greater Mumbai (DCR).

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor refused to order protection of Vithal – Rukumai/Rukhmini Temple in South Mumbai observing –

“we are unable to grant the prayers in this Writ Petition in absence of declaration or inclusion of the temple site in question as an ancient monument of National / State importance or as a heritage site.”

The court dismissed a writ petition by four persons seeking protection and preservation of the temple, situated in Girgaum, Mumbai, claiming it to be an ancient temple over 200 years old, associated with historical events.

The court, however, permitted the petitioners to approach authorities in the Central and State Governments, or the MCGM, to seek formal declaration of the temple site as an ancient and historical monument or for inclusion in the list of heritage buildings and precincts.

37. People Cannot Go Unrepresented, Not For ECI To Decide Effectiveness Of Candidate's Term: Bombay High Court Directs ECI To Conduct Bye-Election for Vacant Pune Lok Sabha Seat

Case Title: Sughosh Joshi v. ECI and Anr.

Citation: 2023 LiveLaw (Bom) 585

The Bombay High Court ordered the Election Commission of India (ECI) to conduct a bye-election immediately for the Pune Lok Sabha constituency, which has been vacant since the death of MP Girish Bapat on March 29, 2023.

A division bench of Justice GS Patel and Justice Kamal Khata criticized the ECI's reasoning for not conducting the by-election, claiming that it has been too busy since March 2023 with preparations for the 2024 Lok Sabha elections.

“In any parliamentary democracy, governance is by elected representatives. Those elected to Parliament are the voice of the people. If the representative is no more, another must be elected in his place. The people choose their representatives. A constituency cannot go unrepresented beyond the time prescribed in the statute. An indefinite period of an entire constituency remaining unrepresented is wholly unconstitutional and is fundamentally anathema to our constitutional structure”, the court observed.

The court quashed ECI's certificate stating that bye-elections will not be held as it is busy with preparation for 2024 General Elections and the candidate elected in the bye-election will have a very short tenure.

38. S.125 CrPC | Woman Who Married Man Under Misrepresentation That He Was Divorced Is Entitled To Maintenance As His 'Wife': Bombay High Court

Case Title: Alka Bhausaheb Bhad v. Bhausaheb Ramrao Bhad

Citation: 2023 LiveLaw (Bom) 589

A woman who married a man under the misrepresentation that he was divorced would be treated as his 'wife' under Section 125 CrPC, and she is entitled to maintenance, the Bombay High Court held.

Justice Rajesh Patil ruled "that respondent cannot be allowed to deny the maintenance claim to the Petitioner, taking advantage of his own wrong. I am of the opinion as held in Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit reported in (1999) at least for the purpose of Section 125 of CrPC, Petitioner would be treated as the 'wife' of the respondent."

According to the judgement, if the claimant woman can establish that she and the respondent have lived together as husband and wife, the court can presume them to be legally married spouses. Especially since the standard of proof to claim maintenance is more relaxed than what would be required in trials under IPC.

39. Section 91 CrPC | During Framing Of Charges Accused Can Seek Production Of Documents Submitted To IO Even If He Possesses Them: Bombay High Court

Case Title: Dr. Sublendu Prakash Diwakar v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 596

The Bombay High Court held that under section 91 of the CrPC, an accused at the stage of framing of charges, can seek production of potentially exculpatory documents voluntarily submitted to investigating officer (IO) even if he has the documents in his possession and submitted copies to the IO.

Justice Bharati Dangre set aside a sessions court order refusing to direct the IO to produce documents submitted by the accused on the ground that the accused already had possession of documents and could produce them during trial.

The court reasoned that the documents produced through the IO as being received by him during the investigation would be significant instead of the accused producing them before the court in defence as there can be a clarification at the stage of framing of charges itself as to what documents were furnished by the accused during the investigation.

40. Victim Can't Appeal U/S 14-A SC/ST Act Against Acquittal/Bail In Cases Involving Offences Under Both POCSO & SC/ST Acts: Bombay High Court (FB)

Case Title: Aniket s/o Shahadev Labade v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 601

The Bombay High Court held that in cases involving offences under both the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), a victim does not have the right to file an appeal under Section 14-A of the Atrocities Act against acquittal or bail.

A Full Bench of Justice Mangesh S Patil, Justice Vibha Kankanwadi and Justice RG Avachat sitting at Aurangabad while answering a reference by a Single Judge in an anticipatory bail application held –

“in a case involving offences under both, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Protection of Children from Sexual Offences Act, a victim thereof does not have a right to prefer appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.”

The court said that provisions of the CrPC apply to cases involving offences under both Acts, and the victim can appeal against acquittal or conviction for lesser offence as per proviso to section 372 of the CrPC.

41. POCSO Cases| Bombay HC Directs State Govt To Formulate Guidelines For Conducting Test Identification Parades, Ensure Victim's Confidentiality

Case Title: Parvej Khan v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 602

The Bombay High Court directed the state government to frame guidelines for conducting test identification parades (TI parades) in cases under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase sitting at Aurangabad also directed the state to come up with a standard operating procedure (SOP) to keep details of the victim confidential while participating in the TI parade.

Astonished at the handling of a POCSO case in which a 6-year-old victim was subjected to the identification process within the jail premises, the court criticized the special executive magistrate for not adhering to the stipulated procedures under the POCSO Act, specifically designed to prevent confrontation between the accused and the victim.

42. Maratha Candidates Who Applied For Govt Jobs Under SEBC In 2019 Can Be Considered Under EWS Category: Bombay High Court

Case Title: Akshay Ashok Chaudhari and Ors. v. Government of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 604

The Bombay High Court set aside the Maharashtra Administrative Tribunal's (MAT) February 2023 order barring candidates from the Maratha community from being considered for government jobs under the Economically Weaker Sections (EWS) category in the recruitment processes of 2019.

A division bench of Justice Nitin Jamadar and Justice Manjusha Deshpande upheld the state government's decision to allow candidates who initially applied under the Socially and Educationally Backward Class (SEBC) in 2019, to switch to the EWS category during the ongoing recruitment process.

The court highlighted the one-time situation created after the Supreme Court struck down the Maharashtra State Reservation for Socially and Educationally Backward Class Act, 2018 (SEBC Act), leading to government resolutions extending the EWS quota to candidates who had initially applied under through SEBC category.

The court noted that no alteration occurred in EWS reservation and the original EWS candidates had not been disqualified, they just had to compete with a larger pool of candidates when the state allowed SEBC candidates to apply under EWS. The SEBC candidates still had to produce due EWS certificates to be eligible under EWS category, the court said.

43. Borrower Receiving Loan In Cash Liable For Cheque Dishonour Even If Loan Amount Was Beyond Limit For Cash Transactions Under IT Act: Bombay HC

Case Title: Arti Rajesh Karangutkar v. Anna Rocky Fernandes and Anr.

Citation: 2023 LiveLaw (Bom) 608

The Bombay High Court held that a borrower who received loan in cash is liable for dishonour of cheques issued towards repayment even if the loan amount was beyond the permissible limit for cash transactions under the Income Tax Act.

Section 269-SS of the IT Act bars receipt of loan or deposit of more than Rs. 20,000 in cash.

Justice PK Chavan convicted a woman in a cheque bounce case, rejecting her defence that there is a violation of Section 269-SS as the amount given in cash exceeded Rs. 20,000.

“The penalty for taking such advance or deposit in contravention of provisions of Section 269-SS was to be suffered by the taker who accepts the advance. It is thus clear that no person should accept any loan or deposit of a sum of Rs.20,000/- or more otherwise than by an account payee cheque or account payee bank draft. The provision does not say that a person cannot advance more than Rs.20,000/- in cash to another person. The learned Magistrate has wrongly invoked the aforesaid provisions while dismissing the complaint. As such, the provisions of Section 269-SS and 271D of the Income Tax Act have absolutely no bearing over the case in hand…”, the court said.

44. Debt Owed To Financial Institutions Under SARFAESI Is Arbitrable, Not Debt Under RDDB Act: Bombay High Court

Case Title: Tata Motors Finance Solutions Ltd v. Naushad Khan

Citation: 2023 LiveLaw (Bom) 610

The High Court of Bombay held that a debt owed to a financial institution covered only under the SARFAESI Act is arbitrable, however, a debt owed to a financial institution to which the provisions of RDDB Act also applies is non-arbitrable.

The bench of Justice Manish Pitale while distinguishing both the acts held that the proceedings under RDDB Act contains exhaustive provisions for the determination as well as the recovery of the determined debt, however, SARFAESI Act contains provisions only for the enforcement of the debt and no provision for the determination/crystallization of the debt.

The Court held that since the RDDB Act contains an exhaustive provision, the debts covered under the ambit of the Act are non-arbitrable.

The court held that the remedy under the SARFAESI Act is not a bar to the arbitration proceedings. It held that both the remedies are for different stages of debt recovery and work in tandem.

SARFAESI Act does not contain any provision for the crystallization of the debt and all the proceedings under the Act is only for the purpose of the enforcement of the crystallized debt, therefore, the financial institution covered therein can take recourse to the A&C Act for the purpose of crystallisation of the debt, the court said.

45. College Principal's Chamber A Public Place, Uttering Abusive Words To Colleagues Inside It An Obscene Act: Bombay High Court

Case Title: Nitin Shivdas Satpute v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 615

The Bombay High Court's Nagpur bench restored an order passed by a Magistrate Court in Murtizapur, Maharashtra, issuing process against a college principal for offences under Sections 294 (obscenity), 504 (intentional insult to provoke breach of peace) and 506 (criminal intimidation) of the IPC.

Justice Anil Pansare held that the words allegedly uttered by the Principal asking his colleagues “Whether your wives had come to me for sleeping to tell you that I am of bad character” inside his chamber in front of three other professors would amount to an obscene act.

The college Principal's chamber was a 'public place' as contemplated under Section 294 of the IPC, the court said, adding, “The Sessions Court, however, took an erroneous view that the Principal's Chamber is not a public place.”

46. Dispute Can't Be Referred To Arbitration By One Partner Of The Firm In Absence Of The Others: Bombay High Court

Case Title: Shailesh Ranka and Ors v. Windsor Machines Ltd.

Citation: 2023 LiveLaw (Bom) 616

The High Court of Bombay held that a dispute related to the business of the firm cannot be referred to arbitration by a partner in absence of other partners.

The bench of Justice Manish Pitale held that the implied authority granted to a partner does not extend to referring the dispute to arbitration in view of the bar under Section 19(2)(a) of the Partnership Act, 1932.

The Court also held that an arbitration notice issued by one of the partners without the consent of the remaining partners is invalid which renders the petition for the appointment of the arbitrator also invalid.

47. Domestic Violence Case Can Be Transferred From Magistrate To Family Court: Bombay High Court

Case Title: A v. B

Citation: 2023 LiveLaw (Bom) 620

The Bombay High Court held that an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) before a Magistrate seeking reliefs under Sections 18 to 22 can be transferred to a Family Court under Section 24 of the Code of Civil Procedure, 1908.

Section 12 under the DV Act empowers an aggrieved party or any person on their behalf to file an application to the Magistrate seeking protection orders, residence, monetary reliefs, custody and compensation under Sections 18-22 of the Act.

Justice Kamal Katha held the reliefs under the above Sections are meant to redress the breach of civil rights and even the proceedings in Family Courts are civil in nature.

"In my view, the High Court would have power to transfer the case from the Magistrate to the Family Court whether or not it has jurisdiction to try it to meet the ends of justice, to convenience the parties and more importantly to lead evidence before one Court, specially when the issues may be common, and between the same parties, to save both energy and expense, to save the precious time of Court and prevent conflicting views and multiplicity of proceedings.”

Therefore, the Family Court has the jurisdiction to entertain and decide reliefs sought under Sections 18 to 22 of the DV Act by virtue of Section 7(2) and Section 26 of the DV Act read with the provisions of the Family Courts Act, 1984, the court held.

48. Following, Abusing Woman Few Times Wouldn't Shock 'Sense Of Decency', No Offence U/S 354 IPC: Bombay High Court

Case Title: Mohammed Ejaj Shaikh Ismail v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 621

Following a woman a couple of times, abusing and pushing her with the bicycle can be 'annoying' acts but wouldn't constitute an offence under 354 of the IPC, the Nagpur Bench of the Bombay High Court recently held.

The court added that the woman failed to state if the accused touched her inappropriately or pushed a specific body part, embarrassing her.

“As regards following and abusing P.W. 1 (victim), the said act cannot be said to be capable to shocking the sense of decency of a woman. The act may be annoying but definitely would not shock the sense of decency of a woman,” it held.

Accordingly, the court acquitted a man who was convicted under Section 354 of the IPC which is the use of assault or criminal force on a woman with intent to outrage her modesty).

49. Wildlife Protection Act | Cancer Drug Camptothecin Not Forest Produce – Bombay High Court Quashes Cases Against Pharma Company After 16 Yrs

Case Title: Fresenisu Kabi Oncology Ltd. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 622

The Bombay High Court held that Camptothecin - a cancer drug, cannot be considered a "forest produce" under the law as it undergoes extensive chemical processing from the original raw material obtained from Narkya trees.

The court observed, "It is well known, there is a difference between physical change and chemical change. Physical change can be brought about easily and at the same time, the original material can also be brought back easily, but it is not possible in the case chemical change."

The Bench of Justices AS Gadkari and SC Chandak also held that a pharmaceutical company in possession of Camptothecin, without knowledge or evidence that the original raw material was illegally procured - cannot be prosecuted under wildlife and forest conversation laws.

The court allowed all the writ petitions filed by Fresenisu Kabi Oncology Ltd, formerly known as Dabur Pharma and its manager and quashed all criminal cases against them under the Wildlife Protection Act, Indian Forest Act, Indian Penal Code and Bombay Forest Rules.

50. Abetment Of Suicide Charge Can't Be Converted To Murder Charge Based On 'Stray Observations' Of Medical Officer: Bombay High Court

Case Title: Gurudas Balasaheb Raut And Ors. v. State Of Maharashtra

Citation: 2023 LiveLaw (Bom) 623

The Bombay High Court quashed a Sessions Court order directing addition of murder charge against three accused in a 2014 dowry death case in Pune observing that accused couldn't be convicted based on stray observations of the medical officer.

“Imagination cannot be taken to such an extent to prosecute the Accused for [such a] serious offence. All throughout it's the case of the prosecution that the victim has committed suicide. On stray observations of the medical officer the Accused cannot be convicted for an offence under Section 302 of IPC.”

Justice Prakash D. Naik allowed a criminal revision application filed by the accused - Gurudas Raut, Anita Raut and Archana Raut - who were charged for abetment of suicide of a married woman, Sonal. Her father had lodged a dowry harassment complaint in November 2014 after she was found dead in a well.

Initially, police had filed chargesheet under IPC Sections 306 (abetment of suicide), 498A (cruelty) and others. The Sessions Court framed charges of abetment to suicide and cruelty in December 2015.

During trial in 2017, the prosecution examined a medical officer who deposed that it takes 8-12 hours for a body to float if the person dies by drowning. Based on this, the complainant sought addition of murder charge under Section 302 IPC.

The Sessions Court allowed addition of 302 charge in August 2022, holding that the medical opinion and other material constituted sufficient ground.