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Bombay High Court Weekly Round-up:...

Bombay High Court Weekly Round-up: June 24 To June 30, 2024

Amisha Shrivastava

1 July 2024 4:00 PM IST

Reports/Judgments

Recording Unnatural Offence With Minor Boys | Bombay HC Grants Bail to POCSO Accused Without Prima Facie Sexual Intent

Case Title: Kapil Suresh Taak v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 311

The Bombay High Court granted bail to a man booked for allegedly stripping three teenagers, inserting fingers in the anus, abusing them and assaulting them with a leather belt.

Justice Anil S Kilor allowed the bail application of one Kapil Suresh Taak observing,

“After going through the FIR and the allegations made in the FIR against the Applicant coupled with the material collected during investigation, prima facie nothing is brought on record to show that there was any sexual intent. The case is of physical and mental torture meted out to the minor victims in the background that Applicant and other co-accused have considered them as thieves.”

Jurisdiction of High Courts Under Section 37 Of Arbitration Act Is Limited To Arbitrary, Capricious And Perverse Orders: Bombay High Court

Case Title: M/s Halliburton India Operations Private Limited v. Vision Projects Technologies Pvt. Ltd.

Citation: 2024 LiveLaw (Bom) 312

The Bombay High Court division bench of Justice A.S. Chandurkar and Justice Rajesh S. Patil held that the appellate jurisdiction under Section 37 of the Arbitration Act is limited to cases where the lower court's order was arbitrary, capricious, perverse, or ignored settled legal principles on interlocutory injunctions.

Section 37 of the Arbitration Act allows appeals against specific orders related to arbitration, including refusals to refer to arbitration, measures under Section 9, and decisions on arbitral awards under Section 34.

Bombay High Court Summons Patanjali Director In Trademark Infringement Case

Case Title: Mangalam Organics Ltd. v. Patanjali Ayurved Ltd. & Ors.

Citation: 2024 LiveLaw (Bom) 313

The Bombay High Court directed Patanjali Ayurveda director Rajnish Mishra to appear before it in connection with trademark infringement case filed by Mangalam Organics alleging that Patanjali infringed on packaging and trade dress of its camphor product.

Justice RI Chagla was dealing with a contempt application by Mangalam Organics Ltd. against Patanjali Ayurved Ltd. and others for alleged breach of an ad-interim order dated August 30, 2023.

Pune Porsche Accident | 'All Sympathies For Victims But Court Is Bound To Implement Law': Bombay HC While Releasing Minor Accused

Case Title: XYZ v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 314

The Bombay High Court, while ordering the release of the minor accused in the Pune Porsche car accident case, criticised the “haphazard manner” in which the prosecution and law enforcement agencies handled the situation, influenced by public outcry. The Court said:

“We can only express our dismay and perturbation by describing the whole approach as an unfortunate incident and hope and trust that the future course of action to be chartered, shall be in accordance with existing provisions of law, avoiding any haste. However, at this stage, while pronouncing upon the reliefs sought before us, in the Writ Petition we deem it necessary to discharge our solemn obligation, by adherence to the Rule of Law and we feel bound by it, though the respondents, the law enforcing agencies have succumbed to the public pressure, but we are of the firm opinion that the Rule of law must prevail in every situation, howsoever catastrophic or calamitous the situation may be.”

Calling the accident a “ghastly” incident, a division bench of Justice Bharati Dangre and Justice Manjusha Deshpande emphasized the importance of adhering to the rule of law, quoting Martin Luther King: "Injustice anywhere is a threat to justice everywhere."

The court added, “It is our bounden duty to prioritize justice above everything else, and definitely, we are not swayed away by the uproar created upon occurrence of the ghastly mishap, for which allegedly the CCL is personally responsible and which has resulted in loss of two innocent lives. We have all sympathies for the victim and their families but as a Court of Law, we are bound to implement the law as it stands. Law is an objective thing and there it stands, irrespective of whether it entails any hardship.”

The court said that the minor has to be treated like any other child in conflict with the law. It added:

“The outcry, as a knee jerk reaction to the accident, resulting into a clarion call of “see the accused's action and not his age”, will have to be overlooked upon assimilating that the CCL is a child under the Juvenile Justice Act, being under 18 years and regardless of his crime, he must receive the same treatment, which every other child in conflict with law is entitled to receive, as the purpose of the Act of 2015 is to ensure that children who come in conflict with law are dealt with separately and not like adults.”

Banning Hijab On College Campus Is In Larger Academic Interest, To Avoid Disclosure Of Religion: Bombay High Court While Dismissing Students' Plea

Case Title: Zainab Abdul Qayyum Choudhary & Ors. v. Chembur Trombay Education Society's NG Acharya and DK Marathe College and Ors.

Citation: 2024 LiveLaw (Bom) 315

The Bombay High Court observed that the dress code prohibiting students from wearing hijab, nakab, burka, stole, cap etc. on the campus of a Mumbai college is in students' larger academic interest.

A division bench of Justice AS Chandurkar and Justice Rajesh S Patil while dismissing a writ petition against the dress code by nine female students NG Acharya and D. K. Marathe College of Art, Science and Commerce observed –

“The object behind prescribing the dress code is evident from the Instructions since they state that the intention is that a student's religion ought not to be revealed. It is in larger academic interest of the students as well as for the administration and discipline of the College that this object is achieved. This is for the reason that students are expected to attend the educational institution to receive appropriate instructions for advancement of their academic careers. The insistence for following the dress code is within the college premises and the petitioners' freedom of choice and expression is not otherwise affected.”

The court referred to the Full Bench decision of the Karnataka High Court in Resham v. State of Karnataka, which upheld a government order prescribing a dress code excluding hijabs. In that case, the Karnataka High Court had held that such a dress code aimed at treating students as a homogeneous class to serve constitutional secularism and was not violative of any fundamental rights.

Discrepancies Between Dates Of Creation And Signing Assessment Order; Bombay High Court Quashes MVAT Order Passed Beyond 4 Years

Case Title: Karvy Innotech Limited v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 316

The Bombay High Court, while noting the discrepancies between the dates of creation and signing of the assessment order, quashed the Maharashtra Value Added Tax Act (MVAT) Order, which was passed beyond the limitation period of 4 years.

The bench of Justice K.R. Shriram and Justice Jitendra Jain observed that the return related to 1st April 2015 to 31st March 2016 and, therefore, a four-year period would expire on 31st March 2020, and the digital signature on the order served on the petitioner has been put on 23rd June 2020. In the order filed with the reply, the date typed is March 19, 2020.

Intimate Relationship Between Adults Does Not Justify Sexual Assault On Partner: Bombay High Court While Refusing To Quash Rape Case

Case Title: Amol Bhagwan Nehul v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 317

“A relationship between two adult individuals does not justify sexual assault by one on his partner”, the Bombay High Court observed while refusing to quash a rape case filed by a woman against her boyfriend.

A division bench of Justice AS Gadkari and Justice Dr. Neela Gokhale dismissed a petition seeking the quashing of an FIR and the subsequent charge sheet filed against the petitioner observing –

“The Complainant has clearly alleged that, the Petitioner had established sexual intercourse forcibly with her and without her consent, despite a relationship…it is trite that a relationship may be consensual at the beginning but the same state may not remain so for all time to come. Whenever one of the partners show their unwillingness to indulge in a sexual relationship, the character of the relationship as 'consensual' ceases to exist. The allegations in the present F.I.R. do not demonstrate a continuous consent on the part of the complainant.”

The petitioner is booked for offences under Sections 376, 376(2)(n), 377, 504, and 506 of the IPC, registered at Karad Taluka Police Station, Satara.

Transportation Of Machinery From JNPT To Factory Doesn't Constitute Supply, GST Not Payable: Bombay High Court

Case Title: Fabricship Pvt. Ltd. v. UoI

Citation: 2024 LiveLaw (Bom) 318

The Bombay High Court held that transportation of machinery from Jawaharlal Nehru Port Authority (JNPT) to the factory of the assessee does not constitute supply, and hence GST is not payable.

The bench of Justice KR Shriram and Justice Jitendra Jain observed that the first limb of Section 129(1)(a), which provides for a penalty equal to one hundred percent of the tax payable, cannot be invoked in the present case. The State GST Authority in the impugned order has erroneously applied the rate of GST without first satisfying itself whether the transportation to one's own factory can at all fall within the charging section. The applicability of the rate of tax would get triggered only if a transaction falls within the meaning of the term “supply” as per Section 7 of the Maharashtra Goods and Service Tax Act (MGST Act).

GST Regime At Nascent Stage; Bombay High Court Quashes Order Rejecting IGST Refund

Case Title: Sanjeev Suresh Desai v. UoI

Citation: 2024 LiveLaw (Bom) 319

The Bombay High Court quashed the order rejecting Integrated Goods and Service Tax (IGST) on the grounds that the order was passed without any reason and without application of mind.

The bench of Justice KR Shriram and Justice Jitendra Jain have observed that the CGST Commissioner does not have the power to condone the delay, but the writ court does.

The bench further observed, “Our judicial conscience does not permit us to reject this cause shown as bogus, particularly in view of the fact that the petitioner was an individual and the GST regime was at a nascent stage. Moreover, in both orders impugned in the petitions, there is no whisper about the merits of the application.”

Other Developments

Robust System Needed To Prevent Deaths Of Mumbai Local Train Commuters: Bombay High Court

Calling upon the railways to address the alarming number of deaths (5 to 7 per day) occurring on the Mumbai Suburban railway system, the Bombay High Court said that it may establish a committee of experts to conduct a high-level study on the matter.

The court also requested Additional Solicitor General Devang Vyas to assist in the matter on behalf of the Union of India - Railways.

A division bench of Chief Justice Devendra Upadhyaya and Justice Amit Borkar called for accountability of officers at the highest level and stressed that railways has to find effective solutions rather than using the large number of commuters as an excuse.

The court ordered the General Managers of Western and Central Railways to nominate high-level officers to file affidavits addressing the issues raised in the petition. The General Managers must personally vet the affidavits before submitting them to the court. These affidavits should detail existing measures and suggest new solutions to mitigate these fatalities.