Bombay High Court Weekly Round Up: June 6 To June 12, 2022

Nauman Suleman Khan v State of Maharashtra & anr 2022 LiveLaw (Bom) 200

Dr. Lekha Rajesh Visaria v The State of Maharashtra and Ors. 2022 LiveLaw (Bom) 201

D.K. Infrastructure Pvt. Ltd versus Kishore Agarwal and Anr. 2022 LiveLaw (Bom) 202

Becharabhai B. Chauhan v Mumbai International Airport Pvt. Ltd. and Anr. And connected matters 2022 LiveLaw (Bom) 203

Anurag S/o. Padmesh Gupta vs Bank of India 2022 LiveLaw (Bom) 204

Suresh Ladak Bhagat v The State of Maharashtra 2022 LiveLaw (Bom) 205

Nawab Malik vs UOI 2022 LiveLaw (Bom) 206

Gautam Kamlakar Pardeshi and anr v The State of Maharashtra 2022 LiveLaw (Bom) 207

Seema Jagdish Patil v The National Hi-Speed Rail Corporation Ltd. 2022 LiveLaw (Bom) 208

D.K. Infrastructure Pvt. Ltd versus Kishore Agarwal and Anr. 2022 LiveLaw (Bom) 209

Suresh Ladak Bhagat v The State of Maharashtra 2022 LiveLaw (Bom) 210

Judgments/Orders

1. Bombay High Court Quashes Sexual Assault FIR Under POCSO Act As Victim (Now A Major) & Accused To Marry

Case Title – Nauman Suleman Khan v State of Maharashtra & anr

Citation : 2022 LiveLaw (Bom) 200

The Bombay High court quashed an FIR under Protection of Children from Sexual Offences Act (POCSO Act) for penetrative sexual assault, as the victim girl (now a major) said that she and the accused were allegedly in love and are now to be married.

The court observed it was "inclined to accept the request for quashing the FIR, only by considering their future. If the prosecution still remains, it will come in their peaceful life."

2. [SC/ST Act] Can't Seek "Extra-Judicial Remedies" To Pressurize Prosecution: Bombay HC Grants Pre-Arrest Bail To Principal After Teacher Puts Arrest Banner

Case Title : Dr. Lekha Rajesh Visaria v The State of Maharashtra and Ors.

Citation : 2022 LiveLaw (Bom) 201

The Bombay High Court pulled up the complainant teacher for putting up banners seeking the principal's arrest, while granting anticipatory bail to the principal accused of hurling casteist remarks, a punishable offence under the SC/ST Act, at an "under-performing" teacher.

"Once the complaint is lodged, FIR registered, the publication of the banner is uncalled for. Complainant cannot seek extra judicial remedies to pressurize the prosecution. Prosecution will carry out the investigation on the basis of cogent material on record and its investigation process. Parties should desist from such acts and allow the prosecution to do its duty in accordance with law."

3. A Reference To Arbitration Can Be Declined By The Court If The Dispute Is A Deadwood: Bombay High Court

Case Title: D.K. Infrastructure Pvt. Ltd versus Kishore Agarwal and Anr.

Citation - 2022 LiveLaw (Bom) 202

The Bombay High Court held that once the Court is satisfied regarding the existence of an arbitration agreement between the parties, the Court can decline to make a reference to arbitration only if it is satisfied that the dispute is non-existent or that it has become a deadwood.

The Single Bench reiterated that the scope of enquiry under Section 11(6) of the Arbitration and Conciliation Act, 1996 (A&C Act) is extremely limited and that the arbitrability of the dispute is required to be determined by the Arbitral Tribunal.

4. Retaining Possession Post Land Acquisition Is Trespass: High Court Upholds Eviction Of Unauthorised Occupants From Mumbai International Airport

Case Title : Becharabhai B. Chauhan v Mumbai International Airport Pvt. Ltd. and Anr. And connected matters

Citation : 2022 LiveLaw (Bom) 203

The Bombay High Court upheld the eviction orders passed against a group of unauthorized occupants, claiming tenancy rights on the premises of Mumbai International Airport.

A Single bench of Justice Sandeep K. Shinde observed that the land in question was acquired by the State in 1947 and hence, even if the owner himself tries to retain possession thereof, he will become a trespasser. Reliance was placed on Indore Development Authority vs. Manoharlal and others.

4. DRT Not Empowered In Law To Restrain A Debtor's Fundamental Right To Travel Abroad: Bombay High Court

Case Title: Anurag S/o. Padmesh Gupta vs Bank of India

Citation : 2022 LiveLaw (Bom) 204

The Debt Recovery Tribunal (DRT) cannot restrain a citizen from travelling abroad since there is no specific or implied provision empowering it under the Recovery of Debts Due To Banks and Financial Institutions Act 1993, the Nagpur bench of the Bombay High Court held.

The bench of Justices AS Chandurkar and Amit Borkar observed that a citizen's right to travel abroad forms part of "personal liberty" defined under Article 21 of the Constitution. Therefore, to restrain a person from travelling abroad, it was necessary to have such a provision under the Act.

"The State has not made any law or provision in the said Act seeking to deprive or regulate the right of a person to travel abroad. The order is, therefore, liable to be set aside."

5. S.106 Evidence Act | Husband Can't Be Asked To Explain Wife's Death In Their House Unless Prosecution Establishes Prima Facie Case: Bombay High Court

Case Title : Suresh Ladak Bhagat v The State of Maharashtra

Citation : 2022 LiveLaw (Bom) 205

The Bombay High court set aside the conviction of a man in connection with the murder of his wife, even though her body was found in their home and he was found near the deceased.

A Bench reasoned that the accused has a right to maintain silence and it is for the prosecution to first prove its case beyond reasonable doubt, before the accused can be asked to explain the circumstances in his defence.

It noted that as per section 106 of the Indian Evidence Act, the initial burden is on the prosecution to prove its case beyond reasonable doubt. If the prosecution is unable to conclusively prove that the accused harmed his wife, the onus would not shift upon the accused to explain the circumstances in which his wife has died, and her dead body is found in the house occupied by the accused and the deceased.

6. RS Polls: Bombay High Court Refuses Immediate Relief To Nawab Malik To Cast Vote, Asks Him To Approach Appropriate Bench

Case Title – Nawab Malik vs UOI

Citation : 2022 LiveLaw (Bom) 206

Bombay High Court refused immediate relief to Maharashtra Cabinet Minister Nawab Malik to cast his vote in the Rajya Sabha elections today with liberty to approach the appropriate bench.

The court said that the petition under Article 227 and 482 CrPC was not maintainable and Malik was at liberty to approach the bench hearing bail applications.

"From the tenor of the application before special court and this Court, the primary prayer is for releasing petitioner for casting his vote on execution of a bond. The bond which can be referred to, can only be a bail bond under 439,437 of the CrPC. The petitioner is an undertrial and subject matter is to be decided by the appropriate bench. He should have moved the application before the bench for relief," the court said.

7. Last Seen Theory Must Be Proximate With Time Of Death: Bombay High Court Acquits Two Accused Of Murdering Deranged Man Mistaking Him For Demon

Case Title : Gautam Kamlakar Pardeshi and anr v The State of Maharashtra

Citation : 2022 LiveLaw (Bom) 207

The Bombay High Court held that the "last seen theory," whereby the accused is the last person spotted with the victim, is not enough to hold him guilty of the crime in the absence of a correlation with the time of the victim's demise.

The prosecution must establish the time when the deceased was last seen with the accused and the time of death, the court added. "Unless there is proximity in the time of last seen and the time of death, the evidence cannot be taken into consideration to convict the accused."

8. Compensation Awarded For Property Voluntarily Acquired For Bullet Train Project Not Taxable: Bombay High Court

Case Title : Seema Jagdish Patil v The National Hi-Speed Rail Corporation Ltd.

Citation: 2022 LiveLaw (Bom) 208

Compensation or income received by certain land-owners on account of the property acquired by the National Hi-Speed Rail Corporation Ltd (NHSRCL) for the Mumbai-Ahmedabad bullet train project through private negotiations and sale deed is exempted from tax, the Bombay High Court held.

A division bench observed that merely because the compensation amount to the land-owner is agreed upon, it would not change the character of acquisition, from that of compulsory acquisition to the voluntary sale under the Act.

9. A Reference To Arbitration Can Be Declined By The Court If The Dispute Is A Deadwood: Bombay High Court

Case Title: D.K. Infrastructure Pvt. Ltd versus Kishore Agarwal and Anr.

Citation: 2022 LiveLaw (Bom) 209

The Bombay High Court has held that once the Court is satisfied regarding the existence of an arbitration agreement between the parties, the Court can decline to make a reference to arbitration only if it is satisfied that the dispute is non-existent or that it has become a deadwood.

The Single Bench of Justice N.J. Jamadar reiterated that the scope of enquiry under Section 11(6) of the Arbitration and Conciliation Act, 1996 (A&C Act) is extremely limited and that the arbitrability of the dispute is required to be determined by the Arbitral Tribunal.

10. S.106 Evidence Act | Husband Can't Be Asked To Explain Wife's Death In Their House Unless Prosecution Establishes Prima Facie Case: Bombay High Court

Case Title : Suresh Ladak Bhagat v The State of Maharashtra

Citation : 2022 LiveLaw (Bom) 210

The Bombay High court recently set aside the conviction of a man in connection with the murder of his wife, even though her body was found in their home and he was found near the deceased.

A Bench of Justices Sadhana S. Jadhav and Milind N. Jadhav reasoned that the accused has a right to maintain silence and it is for the prosecution to first prove its case beyond reasonable doubt, before the accused can be asked to explain the circumstances in his defence.