Gujarat High Court Weekly Round-Up: March 7 To March 13, 2022

Nominal Index

State Of Gujarat v. Ugamsinh Dhanrajsinh 2022 LiveLaw (Guj) 70

Raghuversinh Chandrasinh Sarvaiya v. State of Gujarat 2022 LiveLaw (Guj) 71

Archana Mukesh Raval v. State Of Gujarat 2022 LiveLaw (Guj) 72

Mohsin Salimbhai Qureshi v. State Of Gujarat 2022 LiveLaw (Guj) 73

State Of Gujarat vs Natvarsinh Prabhatsinih Rathod 2022 LiveLaw (Guj) 74

Sunilkumar Rajeshwarprasad Sinha v. State Of Gujarat 2022 LiveLaw (Guj) 75

Sacha Adivasi Adhikar Trust v. State Of Gujarat 2022 LiveLaw (Guj) 76

Chandubhai Punjabhai Talpada v. Deputy Executive Engineer 2022 LiveLaw (Guj) 77

Judgments/Orders of the Week

1. Right Of Accused U/S 50 Of NDPS Act To Be Searched In Presence Of Magistrate Violated: Gujarat High Court Upholds Order Of Acquittal

Case Title: State Of Gujarat v. Ugamsinh Dhanrajsinh

Citation: 2022 LiveLaw (Guj) 70

The High Court dismissed the appeal of the Appellant-Authorities and confirmed the order of the acquittal by the lower Court on the grounds that the Respondent-Accused was not made aware of his right for being searched before the Magistrate, thereby breaching Section 50 of the NDPS Act.

The Bench comprising Justice SH Vora and Justice Sandeep Bhatt said,

"IO while acting on prior information and before making search of a person, it is imperative for him to inform the respondent-accused about his right to sub-section (1) of Section 50 of the NDPS Act for being taken to the nearest Gazetted Officer or the Magistrate for making search in their presence. It also appears that neither such procedure is followed..."

2. S.25B Industrial Disputes Act | Service Rendered Even Prior To Regularization Needs To Be Considered While Awarding Pensionary Benefits: Gujarat HC

Case Title: RAGHUVERSINH CHANDRASINH SARVAIYA Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 71

"While conferring benefits viz. pensionary benefits, calculation of the entire service rendered even prior to the benefit of the regular pay scale being conferred needs to be considered for the purpose of awarding pensionary benefits (from the date of initial appointment as a daily wager)," the High Court affirmed in reference to Section 25B of the Industrial Disputes Act.

The Bench comprising Justice Biren Vaishnav was hearing a Special Civil Application under Article 226 wherein the Petitioner sought direction to Respondent Authorities to consider him as permanent workman and clear arrears of monthly wages, revision of 6^th and 7^th Pay Commission pay-scale benefits along with 12% simple interest per annum.

3. 'Corruption Mothers Disorder': Gujarat High Court Rejects Anticipatory Bail Plea Of Sub-Inspector Allegedly Involved In Bribery

Case Title: Archana Mukesh Raval v. State Of Gujarat

Citation: 2022 LiveLaw (Guj) 72

"Corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance", the High Court reiterated.

In observing so, it has refused to grant anticipatory bail under Section 438 of CrPC to the Applicant accused of offences under Sections 384, 114 and 294B and 506(2) of IPC and Sections 7,12,13(1)(a) read with Section 13(2) of the Prevention of Corruption Act 1988.

4. Delay In Concluding Trial A Significant Consideration While Deciding Bail Applications: Gujarat High Court

Case Title: Mohsin Salimbhai Qureshi v. State Of Gujarat

Citation: 2022 LiveLaw (Guj) 73

The High Court affirmed that "in deciding the bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial."

Observing thus, the Bench comprising Justice Gita Gopi granted bail to an accused under the Central Goods & Services Act, 2017.

"Here, taking into consideration the course of investigation adopted by the Department, the evidence, so collected, the trial will take considerable time and it may happen, if denied bail, the judicial custody be prolonged beyond the statutory period of punishment which is for five years," it remarked.

5. First Version Of The Story Reliable; Exaggeration May Occur With Passage of Time: Gujarat High Court

Case Title: State Of Gujarat vs Natvarsinh Prabhatsinih Rathod

Citation: 2022 LiveLaw (Guj) 74

"In normal circumstances, we believe that, the first version is showing the true story of the complaint. If the version is changed at the time of deposition, it means there may be exaggeration in the version by passage of time," the High Court opined in connection with a challenge to the acquittal order of the Sessions Court.

It was the Complainant's case that Accused armed with an axe, stick, spear, sharp-edged weapon came to the house of the Complainant and tried to loot a water tanker worth INR 20,000 belonging to the Complainant. When the Complainant tried to prevent them, the Accused got provoked and demolished the household times, beat the family members of the Complainant and threatened to kill them. Accordingly, an FIR was filed under Sections 395, 427, 506(2) and 509 of the Indian Penal Code. Subsequently, during the trial, the prosecution presented 13 witnesses to bring home the charges. However, the trial court, after examining various evidence, acquitted the Accused.

6. 'Active Role' In Instigating Commission of Suicide Essential U/S 306 of IPC: Gujarat High Court Grants Anticipatory Bail To In-Laws

Case Title: Sunilkumar Rajeshwarprasad Sinha v. State Of Gujarat

Citation: 2022 LiveLaw (Guj) 75

"It is settled law that, in order to bring a case within provisions of Section 306 of the IPC, there must be a case of suicide and in commission of the offence, person who is said to have abetted the alleged suicide, must have played an active role by an act of instigating or by doing a certain act to facilitate commission of suicide", the High Court held.

The Bench of Justice Ilesh Vora was hearing an application under Section 438 of CrPC praying for anticipatory bail in connection with an FIR for offences under Sections 306, 498-A and 114 of IPC and Sections 3 and 7 of the Dowry Prohibition Act.

7. Caste Certificate Issued By Taluka Development Officer Is Valid, Not Violative Of Gujarat SC/ST Act 2018: High Court Dismisses PIL

Case Title: Sacha Adivasi Adhikar Trust v. State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 76

The High Court dismissed a PIL challenging a government order which permitted Taluka Development Officer, who is an officer under the Panchayat Department, to issue caste certificates under the Gujarat Scheduled Castes and Scheduled Tribes and other Backward Classes (Regulations of Issuance and Verification of Caste Certificates) Act, 2018.

The petitioner-Trust had challenged the GO stating that caste certificate can be issued only by the Revenue Authorities not below the rank of Mamlatdar. It was argued that by way of the impugned order of the State authorities, there was a dilution of the stringent provisions of law in issuing caste certificates.

8. 240 Days Of Work Essential In Preceding Year Of Termination: Gujarat High Court Denies Relief U/S 25F Of ID Act

Case Title: Chandubhai Punjabhai Talpada v. Deputy Executive Engineer

Case Citation: 2022 LiveLaw (Guj) 77

The High Court has affirmed the order of the Labour Court determining that the Petitioner-workman was not entitled to reinstatement on the ground that there was discrepancy in his deposition and the documents produced by him.

The Petitioner herein had claimed that he had joined the services of the Respondent in 1983 and was performing the duties of the labourer/table work as a daily wager. Since he possessed educational qualifications, he was also given office table work. However, it was alleged by him that he was terminated orally in September 1988 without due process under the Industrial Disputes Act 1947. Aggrieved, he approached the Labour Court which dismissed his application in December 2007.

Important Weekly Updates From High Court

1. Gujarat High Court Grants Interim Relief To Lawyers Against Service Tax/ GST Payment Notices

Case title - GUJARAT HIGH COURT ADVOCATES ASSOCIATION v. UNION OF INDIA

Granting interim relief to Lawyers, the Gujarat High Court has stayed coercive actions against the lawyers in connection with demand notices by the CGST (Central Goods and Services Tax) Department with regard to the levy of GST/Service tax.

The bench of Justice J. B. Pardiwala and Justice Nisha M. Thakore passed this ad-interim order as it took note of an order of the Orissa High Court that was passed last year directing the Commissioner GST to issue clear instructions to all the officers in the GST Commission rates in the state not to issue any notice demanding payment of service tax/GST to practising lawyers.

2. "Don't Leave Jamaica Without Informing Court": Gujarat HC Directs Sisters Who Fled India Allegedly Under Nithyananda's Influence

Case title - JANARDHANA RAMKRISHNA SHARMA Versus STATE OF GUJARAT

The High Court asked the two sisters, who fled India after going missing from Rape Accused and self-styled Godman, Nithyananda's ashram in 2019, not to leave Jamaica without intimation to the Court.

This order came from the bench of Justice Sonia Gokani and Justice Mauna M. Bhatt which is presently hearing a Habeas Corpus plea filed by the father of two sisters seeking their custody alleging that they fled the country under the influence of Nithyananda.

3. [Plea Against Exception 2 To S. 375 IPC] Gujarat High Court To 'Wait' For Delhi HC's Verdict In 'Marital Rape' Matter

Case Name: Jaideep Bhanushankar Verma vs Union of India

Before hearing the PIL challenging the constitutionality of Exception 2 to Section 375 of the Indian Penal Code pending before it any further, the Gujarat High Court has decided to wait for Delhi High Court Judgment on this issue.

Essentially, the Delhi High Court is expected to deliver its verdict in a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape. It may be noted that a bench of Justice Rajiv Shakdher and Justice C. Hari Shankar of Delhi HC had reserved the verdict in the matter last month after hearing the matter for several days.

4. Ahmedabad Serial Blasts Case: Gujarat High Court Issues Notice To 38 Convicts On State's Plea To 'Confirm' Death Sentence

Case title - STATE OF GUJARAT PUBLIC PROSECUTOR v. JAHID @ JAVED KUTUBUDDIN SHAIKH

The Gujarat High Court on Wednesday issued notice to the 38 convicts who were sentenced to death by a special court last month in connection with the 2008 Ahmedabad serial blast case.

The Bench of Justice Sonia Gokani and Justice Mauna Bhatt issued the notice on a plea moved by the State Government to confirm their death sentence in accordance with Section 366 of CrPC, which says that when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court and it can't be executed unless confirmed by the HC.