Bombay High Court Weekly Round-up: October 30 To November 05, 2023

Anandraj Manikam v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 506

Nikhil Ashokrao Waghmare and Ors. v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 507

Manik Chandru Deokar v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 508

Matrix Publicities and Media India Pvt. Ltd. v. Deputy Commissioner of Income Tax Circle- 16(1), Mumbai & Ors. 2023 LiveLaw (Bom) 509

Bapu Bajarang Patil v. State of Maharashtra 2023 LiveLaw (Bom) 510

Chandralok People Welfare Association v. State of Maharashtra 2023 LiveLaw (Bom) 511

Kiran P. Pawar v. Bata India Ltd. 2023 LiveLaw (Bom) 512

ABC v. XYZ 2023 LiveLaw (Bom) 513

Abhishek Pictures v. Abhishek Agarwal Arts LLP 2023 LiveLaw (Bom) 514

Amar S. Mulchandani vs State of Maharashtra 2023 LiveLaw (Bom) 515

Municipal Commissioner Pune Municipal Corporation and Anr. v. Ashish Laxman Chavan 2023 LiveLaw (Bom) 516

Reports/Judgments

S.304(A) IPC - Bombay High Court Quashes Death By Negligence Case Against Shopkeeper After 4-Yr-Old Victim’s Family Consents

Case Title: Anandraj Manikam v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 506

The Bombay High Court quashed an FIR registered against a shopkeeper and his employee for allegedly causing a 4-year-old’s death by negligence (304A IPC) after the child’s family consented to the quashing on humanitarian grounds.

A division bench of Justices AS Gadkari and Sharmila Deshmukh granted relief to shopkeeper Anandraj Manikam on the condition he would deposit Rs. 25,000 with the Advocate’s Association of Western India Generation Next Fund.

It was the prosecutions case that on 16th May 2023 when the complainant’s 4-year-old daughter visited the shop for purchasing chips, she clinged to the glass counter which collapsed and fell on her. She passed away while undergoing treatment.

CrPC Doesn’t Envisage One Sided Investigation: Bombay High Court Directs Police To Consider WhatsApp Chats Submitted By Accused

Case Title: Nikhil Ashokrao Waghmare and Ors. v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 507

Observing that the investigating officer’s role is not just to strengthen the prosecution's case but to unearth the truth, the Bombay High Court held that the investigating agency cannot refuse to go through material submitted by the accused if it is relevant to the case.

A division bench of Justice Vinay Joshi and Justice MW Chandwani sitting at Nagpur judgment directed the police to consider certain printouts of WhatsApp chats submitted by the accused during its investigation in a cruelty and suicide abetment case.

“No doubt, the investigating officer shall be given complete and full freedom to carry the investigation in accordance with law. The material which is sought to be produced by the accused may or may not help the investigating agency, but, it is totally unacceptable that he shall not look into the same. We do not see any provision of law which precludes the investigating officer to go through the material if he finds it relevant and germane to arrive at the truth”, the court held.

State Mandating Project Affected Persons To Construct House On Alternate Land Within A Year Of Allotment "Draconian": Bombay High Court

Case Title: Manik Chandru Deokar v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 508

The Bombay High Court held that project affected persons are allotted alternate land on humanitarian grounds and the State cannot impose any condition on the allotment that may lead to loss of the land. The court said that such a condition would violate Article 14 of the Constitution.

“The object and purpose in rehabilitating a person like the Petitioner by allotting him the alternate land in lieu of his land being acquired for a public project is purely on special and humanitarian considerations and not merely to compensate him as in a normal case of land acquisition…This would certainly not contemplate imposing of a condition which would take away the benefits of such rehabilitation, and in fact would subject such person to a coercive taking away of the alternate land allotted to him”, the court held.

A division bench of Justice GS Kulkarni and Justice Jitendra Jain set aside an order cancelling the allotment of alternate land to a 78-year-old project affected person on the ground that he did not fulfil the condition of constructing a house on the land within a year of the allotment.

System Default Is The Standard Excuse Of Department When It Comes To Giving Refunds: Bombay High Court

Case Title: Matrix Publicities and Media India Pvt. Ltd. v. Deputy Commissioner of Income Tax Circle- 16(1), Mumbai & Ors.

Citation: 2023 LiveLaw (Bom) 509

The Bombay High Court stated that system default is the standard excuse of the department when it comes to giving refunds.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that the excuse used is that the system under the control of the Centralized Processing Center (CPC), Bangalore, has some issues and, therefore, amounts are not being released to assessees. Interest is payable by law until the date of refund, and the Department does not realize that it is public money that is used to pay interest. That is a waste and a burden on the exchequer.

Trial Judge Went Overboard: Bombay High Court Alters Murder Convict's Sentence From 'Remainder Of Life' To 'Life Imprisonment'

Case Title: Bapu Bajarang Patil v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 510

The Bombay High Court modified the sentence of a man convicted of murdering his wife from “life imprisonment for the entire remaining of his life” to “imprisonment for life” citing the importance of adhering to the wording adopted in section 302 of the IPC.

A division bench of Justice VV Kankanwadi and Justice Abhay S Waghwase sitting at Aurangabad observed that the trial judge went overboard in sentencing the convict to life imprisonment for the entire remaining of his life.

“It is rightly pointed out by the learned Counsel for the appellant that learned Trial Judge has gone overboard by imposing sentence of suffering life imprisonment till natural death. Very recently, the Hon’ble Apex Court in the case of Narendra Singh @ Mukesh @ Bhura v. State of Rajasthan; 2022 LiveLaw (SC) 247 has held that “Sessions Court is not empowered to extend tenure of imprisonment beyond what is provided in the Statute”. Punishment prescribed for offence punishable under Section 302 of the IPC has not been amended or enhanced. Wordings used in the Statute are required to be adopted”, the court stated.

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].”

Bombay High Court Grants Compensation To BATA Salesmen Fired For Opposing Showrooms Opening 7 Days A Week With Extended Hours

Case Title: Kiran P. Pawar v. Bata India Ltd.

Citation: 2023 LiveLaw (Bom) 512

The Bombay High Court awarded compensation ranging from 19.5 lakhs to 33 lakhs to seven former salesmen of shoe company Bata who were terminated in 2007 after refusing to adhere to modified roster for operating showrooms seven days a week with extended hours.

Justice Sandeep V Marne observed that they were terminated without any enquiry but refused to reinstate them observing that 16 years have elapsed since their termination, and they may not be able to discharge duties as salesman effectively. The court awarded a compensation of 75 percent of the back wages for last 16 years.

The court considered the various duties and responsibilities outlined in the standing orders and regulations formulated by Bata, outlining the diverse tasks assigned to the salesmen, including customer service, preparation of cash memo, stock management, cash handling, administrative duties, quality control, and other shop-related responsibilities. The court concluded that these multifaceted duties indicate that the salesmen can be considered "workmen" under the provisions of the ID Act.

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.

A Party Cannot Be Allowed To Take Advantage Of Inartistic Drafting Of Arbitration Clause As Long As The Intention To Arbitrate Is Clear: Bombay High Court

Case Title: Abhishek Pictures v. Abhishek Agarwal Arts LLP

Citation: 2023 LiveLaw (Bom) 514

The High Court of Bombay held that a party cannot be allowed to take advantage of inartistic or poor drafting of an arbitration clause as long as the clause contains the necessary ingredients and the intention to arbitrate is clear.

The bench of Justice Manish Pitale also held that a Court exercising power under Section 9 of the A&C Act would be within its power to scrutinize and decide as to whether the arbitration clause is valid in law.

The Court also held that while interpreting terms of an agreement, the Court has to adopt a view that supports all the covenants of the agreement and not one that renders one or more clauses nugatory.

S.438 CrPC | Accused In Custody Not Precluded From Seeking Anticipatory Bail In Another Case: Bombay High Court

Case Title: Amar S. Mulchandani v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 515

An accused in custody in one case can seek anticipatory bail in another case under Section 438 of the CrPC, the Bombay High Court held and granted pre-arrest bail to an accused in a forgery case.

“I am impelled to hold that the fact that the applicant is already in custody in one case does not preclude him from seeking prearrest bail in connection with another case in which he apprehends arrest,” Justice NJ Jamadar held.

The judge relied on the High Court’s views in Alnesh Akil Somji V/s. State of Maharashtra which held that an earlier judgement of the SC in Narinderjit Singh Sahni and Anr. V/s. Union of India and Ors. does not hold in very clear terms that a person arrested in one offence was barred from seeking anticipatory bail in another offence.

Octroi Department Employees Of Municipal Corp Have No Vested Right To Commission On Fee Collected From Evaders: Bombay High Court

Case Title: Municipal Commissioner Pune Municipal Corporation and Anr. v. Ashish Laxman Chavan

Citation: 2023 LiveLaw (Bom) 516

The Bombay High Court held that employees posted in the Octroi department of a Municipal Corporation do not have any right to receive commission (Mushahira) on compromise fee collected by the department from Octroi evaders.

Justice Sandeep V Marne observed that the employees cannot demand commission for performing their duties of apprehending evading vehicles and collecting Octroi.

“The employees of Octroi Department perform their duties in apprehending vehicles evading Octroi. For performing their duties, they cannot demand any incentives in the form of commission on the Octroi so collected…no right is vested in the employee of Octroi Department of the Municipal Corporation to claim any amount towards Mushahira from the Municipal Corporation”, the court held.

Other Developments

Disclosure Would Endanger Life Of Judges: Bombay High Court Denies RTI Information On Structural Audit Report Of Its Building

The Bombay High Court refused to provide a report of its structural audit sought under the Right to Information Act citing danger to its judges.

“…the disclosure of the same would endanger the life or physical safety of Hon'ble Judges and Officials of the Hon'ble Bombay High Court,” the reply stated.

Environmentalist Zoru Bhathena said he had sought a copy of the Structural Audit Report of the Victorian Gothic structure built in 1878 to understand how old heritage structures are audited.

The reply stated that the information sought was exempted from disclosure under Section 8(1)(a) of the Right to Information Act 2005, for security purposes.