Gujarat High Court Weekly Round Up: August 22 To August 28, 2022

Chandrikaben Hargovinddas Parmar W/O Jayprakash Nareshkumar Joshi v. Jaiprakash Nareshbhai Joshi 2022 LiveLaw (Guj) 341

Paavanbhai Jagdishbhai Panchal v. State Of Gujarat 2022 LiveLaw (Guj) 342

Century Tiles Through Director Ganpatbhai Dahyabhai Patel v. The Deputy Collector & 2 other(s) 2022 LiveLaw (Guj) 343

Ibrahim Ahmed Patel v. Vinodkumar Bhanabhai Parmar 2022 LiveLaw (Guj) 344

Gangaben Parbatbhai Vaza v. State Of Gujarat 2022 LiveLaw (Guj) 345

State Of Gujarat v. Pratap Prabhuram Devasi 2022 LiveLaw (Guj) 346

Hirabhai Kanchanlal Modi & 8 Other(S) V/S Registrar, Cooperative Societies & 1 other(s) 2022 LiveLaw (Guj) 347

Premnarayan Mewalal Giri V/S State Of Gujarat 2022 LiveLaw (Guj) 348

Mansi Jimit Sanghav V/S State Of Gujarat 2022 LiveLaw (Guj) 349

Sonal Aashish Madhapariya V/S Aashish Harjibhai Madhapariya 2022 LiveLaw (Guj) 350

Savitaben Mangalbhai Harijan V/S Superintendent 2022 LiveLaw (Guj) 351

Dajabhai S/O Lumbabhai V/S Mancharam Dwarkadas Sadhu 2022 LiveLaw (Guj) 352

Yakubbhai Ibrahimbhai Shanker V/S State Of Gujarat 2022 LiveLaw (Guj) 353

Manishkumar Rameshchandra Parekh V/S State Of Gujarat 2022 LiveLaw (Guj) 354

JUDGMENTS/ORDERS OF THE WEEK

Gujarat High Court Refuses Custody Of 2-Yr-Old To Mother Citing Voluntary Desertion, Child's Attachment To Father, Her Busy Work Schedule

Case Title: Chandrikaben Hargovinddas Parmar W/O Jayprakash Nareshkumar Joshi V/S Jaiprakash Nareshbhai Joshi

Citation: 2022 LiveLaw (Guj) 341

The Gujarat High Court declined custody of a minor son to his mother on the ground that her work schedule did not permit her to take care of the child as compared to the work schedule of the father.

Further, Justice Umesh Trivedi, while applying the principle of paramount interest of child, opined that the Appellant-mother had a step-mother and it was doubtful whether she would take care of the minor son.

'Allegations Of General Nature': Gujarat HC Quashes FIR Against Husband's Distant Relative Accused Of Taunting Complainant For Not Bringing Dowry

Case Title: Paavanbhai Jagdishbhai Panchal V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 342

The Gujarat High Court quashed proceedings for the offence of dowry harassment against a distant relative of the complainant's husband, observing that no specific incidents were alleged in the entire FIR and the allegation against him was purely "general in nature".

"Considering the fact that the applicant happens to be the distant relative of the husband of the complainant, it seems that the impugned order is nothing but an attempt to falsely implicate the applicant as accused just with a view to harass the applicant. The allegation against the applicant is purely of general in nature and considering the fact that the applicant stays at a different place, the registration of impugned FIR against the applicant is nothing but an abuse of process of law," Justice Nirzar Desai said.

Impounding Of Instrument Sine Qua Non For Imposing Duty Under Bombay Stamp Act: Gujarat High Court

Case Title: Century Tiles Through Director Ganpatbhai Dahyabhai Patel V/S The Deputy Collector & 2 other(s)

Citation: 2022 LiveLaw (Guj) 343

The Gujarat High Court has clarified that only after an instrument is lawfully impounded that the jurisdiction would vest in Stamp authorities to proceed under Section 33 and 39 of the Bombay Stamp Act for the purpose of charging document and assessing the same for stamp duty.

Justice AS Supehia, while relying on Tata Tele Services Limited Vs State of Gujarat, reiterated:

"Impounding of the instrument is sine qua non for exercise of the powers."

Motor Accident Death | Compensation Must Balance Fiscal Conditions Of Country Where Deceased Earned & Place Where Kin Live: Gujarat High Court

Case Title: Ibrahim Ahmed Patel v. Vinodkumar Bhanabhai Parmar

Citation: 2022 LiveLaw (Guj) 344

The Gujarat High Court enhanced the compensation granted by the Motor Accident Claims Tribunal to the kin of a deceased victim, who was earning in foreign currency prior to his death.

The Bench comprising Justices AJ Desai and Mauna Bhatt relied on Supreme Court's decision in United India Insurance Co. Ltd. & ors. vs. Patricia Jean Mahajan & Ors. [(2002) 6 SCC 281] where it was held:

"Where there is so much of disparity in the economic conditions and affluence of the two places viz. The place to which the victim belongs and the place where the compensation is to be paid, a golden balance must be struck somewhere, to arrive at a reasonable and fair mesne."

Revisional Power Can't Be Invoked With Unclean Hands: Gujarat HC Upholds Rejection Of Caste Abuse Complaint In Counterblast To Electricity Theft Case

Case Title: Gangaben Parbatbhai Vaza V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 345

The Gujarat High Court has affirmed the decision of the Sessions Court rejecting the complaint under the SC/ST (Prevention of Atrocities) Act on the ground that the Petitioner had not approached the court with 'clean hands' and was accused of theft of electricity.

Justice Samir Dave opined:

"It is settled law that the revisional powers of the High Court can only be exercised to prevent the abuse of the process of law and to secure the ends of justice. The process of law can be invoked by a principled and really aggrieved person who approaches the court with clean hands."

It added,

"The process of law cannot be allowed to be abused by a person who is facing trial for theft of Electricity and who himself avers such facts in his application under Section 156 (3) Cr.P.C., as indicate that he is guilty of committing theft of Electricity; by making baseless allegations against the officials of a PGVCL without any supporting material or evidence. Apparently, the revisionist has filed that complaint in order to put a counter pressure on the officials for taking undue advantage in plural cases of theft of electricity lodged against the complainant."

'No Shout For Help': Gujarat High Court Upholds Acquittal Of POCSO Accused, Disbelieves Prosecutrix's Birth Certificate

Case Title: State Of Gujarat V/S Pratap Prabhuram Devasi

Citation: 2022 LiveLaw (Guj) 346

The Gujarat High Court has upheld the acquittal of an accused under the POCSO Act on the ground that the victim's allegations were unreliable and contained several omissions and contradictions.

While dismissing the State's appeal, a bench of Justice SH Vora and Justice Rajendra Sareen noted that at the time of alleged incident, both brothers of the prosecutrix were at home but, she did not shout for help. "Not only that, she did not disclose to any of her relatives, who came at her home despite she was asked."

Show Cause Notice U/S 93 Gujarat Cooperative Societies Act Can't Be Issued For Transactions Prior To 5 Yrs From Date Of Inquiry: High Court

Case Title: Hirabhai Kanchanlal Modi & 8 Other(S) V/S Registrar, Cooperative Societies & 1 other(s)

Citation: 2022 LiveLaw (Guj) 347

The Gujarat High Court, while exercising its extraordinary jurisdiction, has held that the show cause notice issued by the Registrar, Cooperative Societies under Section 93 of the Gujarat Cooperative Societies Act is not maintainable against the writ applicants on grounds of delay.

The Bench comprising Justice Vaibhavi Nanavati noted that the writ-applicants were Chairman/ Managing Directors in the Ankleshwar Nagrik Sahakari Bank Limited in 2004. Since then, the Bank came to be closed and liquidated in November 2004 and all the relevant transactions pertained to a period before 2004. The impugned show cause notice was issued in July 2011 for transactions older than five years. Accordingly, the Single Judge Bench opined:

"The show cause notice which came to be issued by the respondent authority is also an undisputedly dated 26.07.2011. Therefore, all the transaction alleged against the writ applicants are beyond the period of five years from the date of show cause notice i.e. 26.07.2011 and also from the date of inquiry report i.e. dated 07.06.2011."

Licensing Authority Cannot Discriminate Between Co-Accused Persons In Renewal Of Their Arms Licenses: Gujarat High Court

Case Title: Premnarayan Mewalal Giri V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 348

The Gujarat High Court has held that a licensing authority under the Arms Act cannot discriminate between two persons, who were co-accused in the same matter, by renewing the license of one of them and refusing the same treatment to the other citing criminal antecedents.

Justice AS Supehia held so while deciding the case of a Petitioner whose renewal application under the Act was declined citing criminal offence registered against him under Sections 323, 294B, 506(1) and 114 of IPC.

High Court Can Grant "Transit Anticipatory Bail" To Person Apprehending Arrest Even In Absence Of FIR: Gujarat HC

Case Title: Mansi Jimit Sanghav V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 349

The Gujarat High Court has made it clear that a person apprehending arrest can seek "transit anticipatory bail" so as to obtain time to approach the competent Court having territorial jurisdiction in the matter, even in the absence of registration of FIR.

A transit bail is a bail granted by a Court not having jurisdiction over the place where offence was committed. A "transit anticipatory bail" therefore is when a person is apprehending arrest by police of a State other than the State where he/she is presently situated. As the word "transit" suggests, it is an act of being moved or carried from one place to another.

Contempt Proceedings Would Not Lie In Absence Of Positive Act For Wilful Disobedience: Gujarat HC Declines Plea Against UK-Based Litigant

Case Title: Sonal Aashish Madhapariya V/S Aashish Harjibhai Madhapariya

Citation: 2022 LiveLaw (Guj) 350

The Gujarat High Court has recently reiterated that the Court must confine itself in contempt jurisdiction to the four corners of the order alleged to have been disobeyed. It cannot travel beyond the order alleged to have been flouted.

Further, to determine whether an act is contumacious, the Courts cannot apply a 'mechanical' mind and should determine whether 'positive' steps were taken to show wilful disobedience of a judicial order.

Chief Justice Aravind Kumar and Justice Ashutosh Shastri stated:

"…while dealing with the contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. The said principle has to be applied with more vigour when disputed questions of facts have arisen and the documents produced are true and genuine being in the realm of adjudication ought to have been taken up for adjudication…"

Reinstatement A Normal Course When S.25(F) ID Act Is Violated, Not Compensation: Gujarat HC Grants Relief To State-Employed Sweeper

Case Title: Savitaben Mangalbhai Harijan V/S Superintendent

Citation: 2022 LiveLaw (Guj) 351

In a recent order, the Gujarat High Court has held that the benefits of reinstatement would be a 'normal course' that ought to follow once there is a violative of Section 25(F) under the Industrial Disputes Act.

Keeping in view this principle, the High Court reinstated, without backwages, the Petitioner who working as a 'sweeper' under the State for 6 years. The Labour Court's award only granting lumpsum compensation to the tune of Rs. 54,000 as was modified to that extent. Justice Biren Vaishnav stated:

"Having therefore found that the Labour Court having positively held that there was violation of Sec.25(F) of the Act, for no fault of the petitioner, the Labour Court proceedings having been prolonged at the instance of the respondents, the petitioner could not have been then deprived of the benefits of reinstatement which is a normal course that ought to have been followed once violation of Sec.25(F) is otherwise proved."

Statement Recorded U/S 161 CrPC Only For Confrontation In Cross Examination, Cannot Replace Evidence: Gujarat HC Upholds Murder Acquittal

Case Title: Dajabhai S/O Lumbabhai V/S Mancharam Dwarkadas Sadhu

Citation: 2022 LiveLaw (Guj) 352

The Gujarat High Court, while reiterating that the statement of a witness recorded by the investigating officer under Section 161 of CrPC does not fall within the ambit of evidence, has upheld the acquittal of a Murder accused.

The Bench comprising Justices SH Vora and Rajendra Sareen explained in the context of the statement recorded by the investigating officer:

"Such evidence is only for confrontation in the cross examination. Statement of witnesses recorded under section 161 of the Code of Criminal Procedure being wholly inadmissible in evidence and cannot be taken into account. As per the settled proposition of law, statement recorded under section 161 of the Code of Criminal Procedure can be used only to prove the contradictions and/or omissions."

No Material To Suggest Conversion By Use Of Force: Gujarat HC Grants Bail To 8 Accused In Bharuch Mass-Conversion Case

Case Title: Yakubbhai Ibrahimbhai Shanker V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 353

The Gujarat High Court has allowed 6 bail pleas filed by 8 persons accused of forcing tribals from Amod town in Gujarat's Bharuch district to convert their religion, upon a prima facie finding that there is no material to conclusively prove that the conversion was caused by the use of force.

"While there is existence of material suggesting allurement, there does not appear to be existence of any material which would suggest conversion by use of force."

Past Service Of Transferred Employees To Be Included For Assessing Promotions, Other Benefits: Gujarat High Court

Case Title: Manishkumar Rameshchandra Parekh V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 354

In a recent order, the Gujarat High Court has affirmed that when a person is transferred on his own request, his past service is counted while granting promotion or higher pay scale, particularly when the same department is involved.

Thus, Justice Biren Vaishnav allowed the petition of workmen who were challenging a resolution of 2017 passed by the Finance Department stating that incumbents who had worked for five years would be considered for seniority, promotion, higher pay and terminal benefits from the initial date of engagement but not from the date of regularisation as was the case of the Petitioner. The bench reiterated:

"In the case before the Supreme Court and of the Division Bench of this Court, the Court held that if the petitioners were transferred to a new department, they may not get seniority but the past experience would count for the purposes of promotion and higher pay scale etc."