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Bombay High Court Weekly Round-up:...

Bombay High Court Weekly Round-up: July 01 - July 07, 2024

Amisha Shrivastava

8 July 2024 4:25 AM GMT

Reports/Judgments

"Members Of LGBTQ+ Community Vulnerable Within Jail": Bombay High Court Grants Bail To Man Accused Of Trafficking Child

Case Title: ABC v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 320

The Bombay High Court granted bail to a man belonging to the LGBTQ+ community booked for trafficking a one year and seven months old child observing that members of the community are vulnerable within prison.

Justice Manish Pitale allowed his bail application observing –

“This Court is of the opinion that a person belonging to the LGBTQ+ community, who is also HIV positive, can be said to be a person belonging to a category of persons, who are indeed vulnerable, particularly within the four corners of a jail.”

Bombay High Court Quashes Case Against Raj Thackeray For Abetting Violence And Public Property Damage In 2008

Case Title: Ritu Dinesh Maloo v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 321

No prudent person will ever drive a vehicle under the influence of alcohol, said the Nagpur bench of Bombay High Court while denying anticipatory bail to a female Human Resource (HR) professional accused of mowing down two young men while driving her Mercedes under the influence of alcohol.

Single-judge Justice Urmila Joshi-Phalke noted from the material on record, that the female professional had consumed "rum and vodka" from two different restaurants in the night of February 25, and within 5 minutes, covered a total of 3.8 kilometers distance, indicating that she was rashly driving the vehicle.

"A prudent person will not drive a vehicle under the influence of alcohol. The manner in which the applicant has driven the car, which appears from the CCTV Footage, caused death of two persons for which her knowledge can be attributed. The person who sat on steering wheel after consumption of alcohol and drove the vehicle in a rash and negligent manner can be attributed knowledge," the judge said.

Mere Filing Of FIR, Ongoing Probe Against Applicant Without Court's Cognizance Not Valid Grounds To Refuse Passport Renewal: Bombay High Court

Case Title: Kartik Vaman Bhatt v. Union of India & Ors.

Citation: 2024 LiveLaw (Bom) 322

The Bombay High Court observed that merely filing of an FIR or cases under investigation against a person is not a valid ground for refusal of passport renewal when no cognizance has been taken by a court.

A division bench of Justice BP Colabawalla and Justice Firdosh P Pooniwalla noted that merely filing an FIR or having cases under investigation does not constitute “pending” criminal proceedings under Section 6(2)(f) of the Passports Act.

“When we look at the Office Memorandum dated 10th October 2019, it clearly stipulates that merely filing of a FIR and cases under investigation do not come within the purview of the Section 6(2)(f) of Passport Act, 1967. For a criminal proceeding to be considered as “pending”, it is only when a case is registered before any Court of law and the Court has taken cognizance of the same. This Office Memorandum is certainly binding on the Passport Authorities”, the court observed.

Maratha Reservation Challenge Case: Bombay High Court Impleads Backward Commission

Case Title: Dr. Jaishri Laxmanrao Patil & Ors. v. Chief Minister, State Of Maharashtra & Ors

Citation: 2024 LiveLaw (Bom) 323

The Bombay High Court issued notice to the Maharashtra State Backward Class Commission (MSBCC) headed by former judge Justice (retd.) Sunil Shukre, on whose recommendation the Maharashtra government decided to grant 10 per cent reservation to the Maratha Community in public service and education through the Socially and Economically Backward Classes (SEBC) Act.

A three-judge bench led by Chief Justice Devendra Kumar Upadhyay made the MSBCC a respondent to the bunch of petitions challenging the SEBC Act which grants reservation to the Marathas.

"We allow impleadment of the Commission. We also issue notice to the Commission, made returnable on July 10," the bench also comprising Justices Girish Kulkarni and Firdosh Pooniwalla said in their order.

Bombay HC Sets Aside Stay On 'Exceptional' Transfer Of Indian Express Employee, Says Prior Dispute With Employer No Reason To Presume Malafides

Case Title: The Indian Express (P) Ltd. and Ors. v. Ganesh Gopinath Rane

Citation: 2024 LiveLaw (Bom) 324

The Bombay High Court observed that merely a transfer of an employee being exceptional and there being previous litigation between employer and employee is not a ground for the Industrial Court to stay the transfer.

Justice Sandeep Marne allowed a writ petition filed by Indian Express (P) Ltd. seeking to set aside Industrial Court's order of interim stay on the transfer and promotion of an employee observing –

“Mere filing of earlier litigation is not a reason to infer existence of mala fides for interdicting the order of the transfer…It was not necessary for Petitioners to demonstrate past precedent for justifying the Respondent's transfer. Merely because the transfer is found to be exceptional, the same was not ground for learned Member to stay the same.”

Consensual Relationship Not License To Exploit Partner Sexually, Physically Or Financially: Bombay High Court

Case Title: Pritam Chandulal Oswal v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 325

Even if there is a consensual relationship between a man and a woman, it does not give one a licence to exploit the partner, the Bombay High Court said while denying bail to a man booked for outraging modesty, abduction, extortion, rape and unnatural sex.

Single-judge Justice NJ Jamadar noted from the statements of various witnesses that indicated how the applicant, who had an extra-marital affair with the victim, ill-treated the victim.

"The fact that the applicant has given threat to the informant while in custody and even made an attempt to escape from the custody cannot be lost sight of. Cumulatively it appears that the applicant had sexually, physically and financially exploited the first informant. Consensual relationship, even if the submission on behalf of the applicant is taken at par, does not give a license to exploit the partner, much less in the manner in which the material on record, in the instant case, indicates," Justice Jamadar said in the order.

Bombay High Court Grants Relief To Contractor Whose License Was Cancelled After He Barged Into Zilla Parishad Office Without Authorization

Case Title: Himalay Manohar Patil v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 326

The Bombay High Court granted relief to a contractor whose licence was terminated by the Palghar Zilla Parishad after he barged into the Zilla Parishad hall without authorization, where a meeting was going on.

A division bench of Justice MS Sonak and Justice Kamal Khata quashed the termination of his license observing that the action of the Zilla Parishad failed the Wednesbury test of reasonableness.

“This is a case where relevant considerations like the petitioner's consistent satisfactory performance as a licensed contractor for several years are ignored. Instead, irrelevant considerations, having no nexus with the discharge of contractual obligations, are the foundation. Even assuming that the Petitioner, on one solitary occasion, entered the meeting hall, this could hardly be the ground to terminate the Petitioner's license.”

Bombay High Court Extends Jet Airways Founder Naresh Goyal's Temporary Bail In Rs 538 Crores Money Laundering Case By Four Weeks

Case Title: Naresh Goyal v. Directorate of Enforcement and Anr.

Citation: 2024 LiveLaw (Bom) 327

The Bombay High Court extended by four weeks the temporary bail granted to Jet Airways founder Naresh Goyal in a money laundering case arising out of alleged loan default of Rs. 538 Crores given to Jet Airways by Canara Bank.

Justice NJ Jamadar passed the order after Goyal submitted an affidavit stating that his doctor has suggested him to undergo a Laparoscopic Fundoplication surgery, and that he proposed to undergo the same within four weeks, and as soon as his pre-operational surgical fitness is confirmed by his doctors.

"Having perused the medical reports and the situation in which the applicant finds himself, in the backdrop of the physical and psychological ailments, aggravated on account of the demise of his wife, I deem it appropriate to extend the interim bail on medical ground...", the court observed.

Goyal has filed the present application seeking bail on both merits and medical grounds. After extending his interim bail today, the court kept the matter pending for consideration on merits.

Bombay High Court Permits Woman Diagnosed With Cancer To Terminate 25-Weeks Pregnancy, Says She Has 'Reproductive Freedom'

Case Title: XYZ v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 328

The Bombay High Court allowed a married woman to terminate her over 25-weeks pregnancy so as to allow her to avail treatment against cancer.

A division bench of Justices Ajay Gadkari and Neela Gokhale noted that the woman was diagnosed with pancreatic cancer, while she was pregnant.

The judges noted that the medical report did not mention any risk to the life of the woman if she is permitted to under the Medical Termination of Pregnancy (MTP).

"There is nothing in the report to suggest that the procedure of MTP poses a risk to her health, save and except that she is anaemic requiring transfusion. We have considered the plea of the Petitioner No.1 as stated in the Petition. She states that she is suffering miserably from the ailment and having unbearable pain. She also states that palliative treatment might help her live longer and more comfortably," the judges recorded in their order.

"We are conscious of the right of the Petitioner No.1 to reproductive freedom, her autonomy over her body and her right of choice. In these circumstances, considering the opinion of the Medical Board, doctors of Tata Memorial Centre and the wishes of the Petitioners, we are inclined to permit her to medically terminate her pregnancy, if Petitioner No.1 continues to so desire," the bench said in the order.

Desire To Contest Election Not An Exceptional Circumstance To Stay Conviction: Bombay High Court

Case Title: Sunil s/o Late Chhatrapal Kedar v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 329

The Bombay High Court refused to stay the conviction of former Congress MLA Sunil Kedar in a bank scam case of over Rs. 153 Crores observing that just because he desires to contest the upcoming Assembly election that by itself is "not sufficient to stay the conviction mechanically".

Justice Urmila Joshi-Phalke of the Nagpur bench observed that mere disqualification from contesting election resulting from the conviction is not an exceptional circumstance to stay a conviction.

“merely because the accused has to represent his constituency, it could not be an exceptional circumstance for grant of stay to the conviction. An object of Legislatures in keeping away convicts from contesting elections is to be looked into while deciding such applications.”

“Incarcerated For More Than 7 Yrs, Longer Than Maximum Sentence”: Bombay HC Grants Bail To Conman Sukesh Chandrashekhar In 2015 Ponzi Scheme Case

Case Title: Shekhar Chandrashekhar v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 330

The Bombay High Court granted bail to alleged conman Sukesh Chandra Shekhar, booked in a cheating case lodged against him in May 2015 for duping investors in a Ponzi Scheme.

Single-judge Justice Manish Pitale noted that Chandreshkhar had already spent more than seven years in jail, which is nearly more than the maximum sentence he would have to undergo, if convicted.

The judge noted that initially he had been in custody from May 29, 2015 to September 10, 2016, when he was granted bail. However, his bail was subsequently cancelled as he failed to deposit certain amounts as mandated by the Supreme Court while granting him bail. He was later shown to be arrested in another case from April 16, 2017 and was then produced in a special court for his custody in the instant case on October 9, 2017 and since then he continues to be in custody.

"Hence, the second period of incarceration can be taken as the period between October 9, 2017 till date. A rough and ready calculation of the total period of incarceration suffered by the applicant, in the context of the present case, leads to the period of about seven years and ten months. The calculation of the period cannot be disputed," Justice Pitale noted.

Family Of Employee Having More Than Two Children Ineligible For Compassionate Appointment: Bombay High Court Dismisses Claim Of Deceased Cop's Son

Case Title: Vidya Sunil Ahire and Ors. v. Commissioner of Police, Thane

Citation: 2024 LiveLaw (Bom) 331

The Bombay High Court dismissed the claim for compassionate appointment for the son of a deceased policeman on the ground that the employee had more than two children, making his family ineligible for the benefit of compassionate appointment.

A division bench of Justice AS Chandurkar and Justice Rajesh S Patil dismissed a writ petition challenging a judgment by the Maharashtra Administrative Tribunal which upheld the rejection of the petitioners' claim for compassionate appointment.

“Having considered the rival submissions and having perused the judgment of the Tribunal, we do not find that there is any case made out to interfere in exercise of writ jurisdiction”, said the court.

Bombay High Court Dismisses Plea Challenging Election Of BJP Leaders Raosaheb Danve, Pritam Munde In 2019 Lok Sabha Polls

Case Title: Dr. Sharadchandra s/o Ganpatrao Wankhede v. Raosaheb S/o. Dadarao Danve and Ors.

Citation: 2024 LiveLaw (Bom) 332

The Aurangabad Bench of the Bombay High Court rejected the election petitions challenging the elections of Bharatiya Janata Party (BJP) leaders Raosaheb Danve and Pritam Munde in the 2019 Lok Sabha elections.

Single-judge Justice Sanjay Mehare noted that the prime contention in the two election petitions against Danve and Munde was that the two leaders in connivance with the respective Returning Officers tampered the Electronic Voting Machines (EVMs) and manipulated the results of the elections.

Bombay High Court Allows Student Who Missed HSC Improvement Exam Due To Depression, Internet Gaming Disorder Treatment To Re-Take Exam

Case Title: Aradhya Arvind Singh v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 333

The Bombay High Court permitted a student to appear for the Higher Secondary Certificate (HSC) improvement exam in July 2024 despite him being precluded from doing so by the relevant regulations.

A division bench of Justice AS Chandurkar and Justice Rajesh S Patil granted permission to the petitioner who could not take the exam in July last year as he was undergoing treatment for depression and Internet Gaming Disorder “in the interest of justice”.

“The documents on record including the medical reports from the Bhabha Atomic Research Centre Hospital indicate that the petitioner was undergoing treatment for Internet Gaming Disorder at-least till the end of December, 2023…In the peculiar facts of the case, we find that an opportunity deserves to be granted to the petitioner to seek improvement in his marks since he was precluded from doing so earlier for medical reasons”, the court held.

[POCSO] Bombay High Court Grants Interim Relief To Man Booked For Allegedly Making Child Record Sexual Activity Between Him And The Child's Mother

Case Title: Umesh Radhai Saroj v. State of Maharashtra and Anr.

Citation: 2024 LiveLaw (Bom) 334

The Bombay High Court granted interim anticipatory bail to a man booked under the Protection of Children from Sexual Offences (POCSO) Act, 2012 for allegedly making a child record sexual activity between him and the child's mother.

Justice Manish Pitale expressed shock that these allegations were made against the mother of the child as well and decided to grant interim bail to the man so long as he does not contact the child.

“It is indeed shocking that such allegations are made against the mother of the child also. There is nothing to indicate that the mother of the child i.e. co-accused No.1 (victim's mother) has been taken into custody or that efforts are being made to take her into custody…prima facie, it appears that the applicant alongwith co-accused No.1, may have together undertaken the activities that have led to registration of the present FIR. As long as the applicant does not contact the victim child and co-operates with the investigation, this Court is inclined to consider granting interim protection.”

Other Developments

Centre Argues in Bombay High Court: IT Rules 2021 Crucial in Upholding Right to Truth Against Fake News

The central government in pleas challenging the 2023 IT Amendment Rules told the Bombay High Court that not preventing fake or false news would violate the fundament right of the recipient of such news to know correct information and not be misled, which also flows from Article 19(1)(a) of the Constitution.

Solicitor General Tushar Mehta contended that right to know and right to not be misled are equally important as right to freedom of speech and expression under Article 19(1)(a).

“Unless and until you exercise your right of speech and expression in such a way that you communicate the truth and you are prevented from communicating what is utterly false and fake, the recipient's right under Article 19(1)(a) is violated”, Mehta submitted.

Bombay High Court Slams Maharashtra Govt. Over Prisoner's Premature Release Policy Violation

The Bombay High Court pulled up the Maharashtra government for failing to adhere to its own guidelines for providing premature release to prisoners.

A division bench of Justices Bharati Dangre and Manjusha Deshpande expressed displeasure over the State government flouting its own policy while denying premature release to prisoners, otherwise entitled for the same.

"Time and again this Court and also the Supreme Court has said that the State has to adhere to its guidelines and cannot exercise any prerogative. Yet we are coming across so many matters wherein you are not adhering to your own policy. So let's rest the issue now. Either you (State) adhere to your policy or just do away with it," Justice Dangre orally remarked.

The bench, therefore, ordered the Additional Chief Secretary of the State's Home Department to file an affidavit clarifying the stand of the State.

Bombay HC Judge Neela Gokhale Recuses from Abu Salem's Prison Transfer Plea

Bombay High Court judge Justice Neela Gokhale recused from hearing the plea filed by 1993 Mumbai Bomb blast convict Abu Salem, who sought to assault the decision of the jail authorities to shift him to some other prison from the Taloja Central Prison.

"Consider Long-Term Impact On Mental Health": Bombay HC To State On German Bakery Blast Convict's Plea Against Alleged Solitary Confinement

The Bombay High Court asked the jail authorities of Nashik Central Prison to reconsider the request of Mirza Himayat Baig, a convict in the 2010 German Bakery Blast in Pune, to shift him out of the Anda Cell in Nashik, where he is allegedly kept in solitary confinement.

A division bench of Justices Revati Mohite-Dere and Shyam Chandak asked the jail authorities to consider the "long-term impact" of such confinement on the convict.

Bombay High Court Seeks Response From Centre, State On Plea To Ban Plastic Flowers

The Bombay High Court ordered the Maharashtra and the Central governments to file their affidavits in response to a writ petition seeking to ban the use of plastic or artificial flowers meant for decoration and other purposes.

A division bench of Chief Justice Devendra Kumar Upadhyay and Justice Amit Borkar was hearing a petition filed by Association of Natural Flower Growers, Pune, which sought a direction to ban the use of plastic flowers citing they are covered under the notification issued by the State in 2022, banning all plastic items meant for single-use.