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While sources concerning specific subject matters exist, there exist few sources that allow practitioners to be aware of developments with respect to specific forums. The Bombay High Court Judgment Tracker intends to fill this gap by providing a monthly gist of all decisions of the Bombay Bench of the Bombay High Court.
Since the purpose of the column is to provide a brief snapshot of all decisions to practitioners, the authors have avoided undertaking an analytical critique of the decisions.
Here is a summary of all decisions of the Bombay Bench of the Bombay High Court for the month of January, 2021:
In Sanjay Ghodawat University v Commissioner of Income Tax, the Court held that an extension of due date granted by the CBDT for filing income tax returns and audit reports, does not imply an extension of the due date for filing applications seeking approval for exemption. Owing to heavy rainfall and flooding in parts of the country, the CBDT, through its powers under Section 119 of the Income Tax Act, 1961, issued an order extending the original due dates of filing returns and audit reports. The petitioners contended that the flooding prevented them from preparing their audit reports on the original due date, owing to which there was a delay in the filing of the exemption application under Section 10(23C)(vi) too. However, the Court held that the order of the CBDT could not be construed to extend the due dates for filing exemption applications too. The Court directed the petitioner to file a separate application with the CBDT under Section 119, for condoning the delay in filing the exemption application.
In Kiran Gems Private Limited v. Union of India and Ors., the Court held that in the case of a private tax assessee, the Commissioner or an officer authorized by the Commissioner may collect material for the purpose of an audit, but the audit would be performed only by the Chartered Accountant. Further, it held that the power of the CAG under the Comptroller and Auditor General’s (Duties, Powers and Conditions of Service) Act, 1971 extends only to audit offices and departments of the Government and do not extend to a private entity.
In M/s. Code Engineers Pvt. Ltd. v Union of India, the Court held that designated committees constituted under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 are mandated to independently assess dues payable by a declarant, on the basis of the information furnished by the declarant, as well as the records available with the service tax department. The scheme was introduced vide the Finance (No. 2) Act, 2019 and was aimed at resolving legacy disputes regarding central excise and services tax by providing amnesty in the payment of unpaid dues. In interpreting the meaning of the term ‘verify’ under Section 126 of the Finance (No. 2) Act, 2019, the Court held that it was wrong on the part of the designated committee to limit itself to the bounds of the order-in-original of the tax commissioner, and to refuse to conduct an independent assessment of the documents submitted by the declarant. The committee was ordered to decide the matter afresh and pass a speaking order for the same.
In Fork Media Private Limited v Union of India, the Court held that the designated committee established under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 was bound to follow principles of natural justice in its functioning. Under Section 127 of the Finance Act (No.2), 2019, the designated committee had been given the discretion to adjourn personal hearing for a declarant, for a maximum of one adjournment. In the present case, the declarant-petitioner could not appear even for the already-adjourned personal hearing, owing to the nationwide pandemic-induced lockdown. Consequently, the committee passed an adverse order without granting any hearing. Further, the committee placed reliance on certain materials for the order, which materials were not furnished to the declarant. Observing the behaviour of the committee to contravene principles of natural justice, the Court held firstly that in the interest of justice, fairness and judiciousness, a fresh date of hearing must be granted to the declarant. Second, it was held that the committee ought to furnish the declarant with copies of the documents that it relied on, so that the declarant may properly defend its case.
In M/s KN Rai through Kirit Kedarnath Rai v. Union of India, the Court, relying on Saksham Facility Services Pvt Ltd v Union of India, held that where the petitioner had, in a statement under Section 70 of the CGST 2017 agreed to the amount of service tax liability before the cut-off date, he could not be prevented from seeking protection under the Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019.
In Raju Shantaram Kakphale v State of Maharashtra, the Court held that a demand, as well as an acceptance of an amount as illegal gratification, is necessary to constitute an offence under the Prevention of Corruption Act, 1988. A mere recovery of tainted money from the accused is not enough to prove his guilt. In the present case, the accused was a district court peon who was alleged to have demanded a bribe from the complainant in return for supplying the complainant with certified copies of a court order. The prosecution was able to prove a recovery of tainted currency notes from the accused. However, it was not able to prove that the money was accepted as illegal gratification, or that the very demand for illegal gratification had ever been made by the accused to the complainant. In the absence of such evidence, the Court set aside the accused’s conviction.
In Prakash Harishchandra Mandalik v. State of Maharashtra, the Court held that the provisions of Section 7 of the Prevention of Corruption Act, 1988 would get attracted where public servant obtains or agrees to accept from any person any gratification other than legal remuneration as reward for doing or forbearing to it any official act. The Court further held that acceptance of money is not sufficient for convicting an accused under Sections 7 and 13 (1) (d) of the Prevention of Corruption Act, 1988 and there must be evidence on record that the accused obtained any amount by corrupt or illegal means other than remuneration for doing or forbearing to do any official act. The Court also relied on the judgment of the Supreme Court in State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede wherein it was inter alia held that under presumptive evidence in Section 20, the standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ and the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.
In State of Maharashtra v. Suresh Baliram Rane, the Court held that mere recovery itself would not prove the charge against the accused and a conviction could not be sustained in the absence of any evidence to prove payment of bribe or to show accused had voluntarily accepted the money knowing it to be a bribe. The Court further relied on the judgment of the Supreme Court in M.K. Harshan v. State of Kerala wherein it was held that demand of a bribe by itself is not sufficient to establish an offence, and acceptance is very important. The Court also relied on the judgment of the Supreme Court in B.Jayaraj v. State of A.P. which held that mere possession and recovery of currency notes from the accused without proof of demand will not bring home the offence under Section 7 and in the absence of any proof for demand of illegal gratification, the use of corrupt or illegal means or abuse of position as a “public servant” to obtain any valuable thing or pecuniary advantage, cannot be held to be established.
In Ajay Boraste v State of Maharashtra, the Court interpreted Section 31-A of the Maharashtra Municipal Corporation Act, 1949 to clarify the manner of determining the number of appointments from each political party to the standing committees of municipal corporations. It held that the total number of councillors must first be divided by the total number of seats in the committee. Thereafter, the number of councillors of each party must further be divided by the quotient of this division. The figures so arrived at shall be the relative strength of each party. The seats so determined shall be allotted to each party by first considering the whole number of their respective relative strengths. After allotting the seats in such manner, if any seat(s) remain to be allotted, the same shall be allotted one each, to each party in the descending order of the fraction number in the respective relative strength, till all the seats are allotted.
In Gorai Machhi Mar Sahakar Sanstha Limited. The Municipal Corporation of Greater Mumbai the Court considered the validity of the notice issued under section 354-A of the Mumbai Municipal Corporation Act and vacated the interim stay for refusing to restrain the corporation from enforcing notice, and held that upon perusal of the inspection report and photographs, the same distinctly indicate that the plaintiffs started construction without permission, which was neither extension of existing structure nor was it a work in the nature of repair and therefore, Appellant’s contention that notice under section 354-A of the MMC Act could not have been issued and acted upon has been rejected.
In Aniket SA Investments LLC v Janapriya Engineers Syndicate Private Limited, the Court held that a choice of seat of arbitration has the effect of conferring exclusive jurisdiction on the courts of that seat. It further held that Section 2(1)(e) of the Arbitration and Conciliation Act, 1996 does not allow for two courts as having concurrent jurisdiction, namely the court where the cause of action arises, and the court of the seat of arbitration. In the present case, the parties had contractually agreed to a clause providing exclusive jurisdiction to the courts at Hyderabad. However, this clause was made expressly subject to the arbitration clause that had provided for the seat of arbitration as Mumbai. Applying the principles discussed above, as well as the principle of plain language interpretation of contracts, the court held that the exclusive jurisdiction clause was subject to the arbitration clause. Therefore, the courts at Mumbai and not Hyderabad, were held to have exclusive jurisdiction over all disputes falling within the scope of the arbitration agreement.
In Valentine Maritime Ltd. Vs Kreuz Subsea PTE Ltd. and Anr., the Court upheld the decision of a single judge bench under section 9 of the Arbitration and Conciliation Act, 1996. This Court added that provisions under sections 9 and 17 of the Arbitration and Conciliation Act are meant for the purpose of protecting the subject matter of the dispute till the arbitration proceedings culminates into an award. Further, this Court relied on the decision of a division bench of this Court in Nimbus Communications Ltd. v/s. Board of Control for Cricket in India and held that in deciding an application under Section 9, the Court would while bearing in mind the fundamental principles underlying the provisions of the Code of Civil Procedure, at the same time, have the discretion to mould the relief in appropriate cases to secure the ends of justice and to preserve the sanctity of the arbitral process. In crux, the underlying basis of Order 38 Rule 5 therefore must be borne in mind while deciding an application under Section 9(ii) (b) of the Arbitration Act.
In Valentine Maritime Ltd v. Kreuz Subsea Pte Limited and ONGC Ltd., the Court, relying on Girish Mulchand Mehta and Anr. Vs. Mahesh S Mehta and Anr., held that while Section 9 of the Arbitration and Conciliation Act 1996 could be invoked only by parties to an arbitration agreement, it did not restrain the Court from using its powers in such a petition against any entity not party to the arbitration agreement to award reliefs falling under Section 9(1)(i) and 9(1)(ii)(a) to (e) of the Act.
In Manju Ramesh Jaiswal v State of Maharashtra and Ors., the Court held that howsoever good the cause for invoking the writ jurisdiction of a court may be, if the petitioner approaches the court with unclean hands, the writ petition will be liable to be dismissed. In the present case, the petitioner prayed the Court to quash the irregularly-obtained approvals of an educational trust, and to order the state government to comply with the law in granting such approvals in the future. However, the petitioner had failed to disclose her true identity as that of the treasurer of a rival educational trust, that competed in the same trade as the respondent educational trust. Considering the present petition to be a deliberate attempt by the petitioner to push her rival out from the trade, the Court dismissed the petition on the basis of suppression of material facts and lack of bona fides.
In Municipal Corporation of Greater Mumbai Through Its Commissioner Vs The Bombay Environmental Action Group And 22 Ors., the Court relied on its own decision in The Bombay Environmental Action Group (BEAG) & Anr. Vs. State of Maharashtra to issue a writ of Mandamus and rule in favour of public interest as the proposed work to be carried by Municipal Corporation of Greater Mumbai (for short ‘MCGM’) was highly of public interest and since no destruction was to be caused to the mangrove plants as proposed and stated by MCGM, hence, this Court allowed the petitioner to carry on the proposed upgradation work of design, fabrication, installation and commissioning of heavy duty back rake type mechanical screening for Irla Nalla at Irla storm water pumping station in K/ West Ward. Further, this Court also ordered that work could only commence after necessary permission is obtained from Maharashtra Coastal Zone Management Authority and State Environment Impact Assessment Authority.
In Nilesh Navalkha & Ors. v. Union of India & Ors., the Court noted the adverse impact a media trial could have on a pending investigation and that an accused is entitled to Constitutional protections. The Court further proceeded to issue directions to the press and the media to exercise restraint and refrain from printing or displaying any news item and/or initiating any discussion/debate/interview vis-à-vis depicting the deceased as a weak character and intruding the privacy of the deceased in matters of suicide; matters that causes prejudice to an ongoing investigation/ enquiry; acting in a manner so as to violate the provisions of the Programme Code as prescribed under Section 5 of the Cable Television Networks (Regulation) Act, 1995 and Rule 6 of the Cable Television Network Rules, 1994, thereby inviting contempt of court and; indulging in the character assassination of an individual and thereby marring his reputation.
In Sahaj Impex v/s Balmer Lawrie & Co Ltd & Anr, the Court considered a petition filed under Article 226 of the Constitution of India, vide which the petitioner sought a direction to respondent no. 1, a customs cargo service provider, to release his container, containing imported goods, without paying rent, demurrage and other charges, for re-export, as per the customs order dated 28.11.2018. The container had been kept in the freight station by the Special Investigation and Intelligence Branch of the customs department for the purpose of investigation. The petitioner relied upon the Handling of Cargo in Customs Areas Regulations, 2009, which stipulates that the custodians of container freight stations should not charge any rent or demurrage on goods seized / detained / confiscated by the proper officer. The petitioner had complied with the conditions imposed by the adjudicating authority for the re-export of the imported goods. However, respondent no. 1, a government enterprise, refused to release the goods of the petitioner and demanded rent and demurrage charges. The Court directed respondent no. 1 to release the goods imported by the petitioner, without imposing any rent / demurrage, in line with the customs letter dated 28.11.2018.
In Goodmatric Export Pvt. Ltd. and Anr Vs Union of India and Ors., the Court relied on the decision of the apex Court in M/s. Boxster Impex Pvt. Ltd. Vs. Union of India and the High Court in Samyak Jewels Pvt. Ltd. Vs. Union of India and held that the freezing of the bank accounts under section 110(5) of the Customs Act, 1962 cannot extend expiration of the outer limitation period of one year.
In Dimension Data India Pvt. Ltd. v. Commissioner of Customs and Anr., the Court held that under Section 17 of the Customs Act 1962, if the proper officer finds that the self-assessment was not done correctly, he may order the re-assessment of duty leviable on such goods. If the importer does not confirm his acceptance of such re-assessment, the proper officer shall pass a speaking order on the same. Further, under Section 149, the amendment of Bill of Entry is permissible even when the goods are cleared for home consumption. However, such amendment shall be allowed on the basis of the documentary evidence in existence at the time of clearance. Combining this provision with Section 154, the Court ruled that customs authorities have the power to correct any clerical or arithmetical errors arising in a decision due to accidental slip or omission.
In Mr Gopichand Kundalik Padalkar v. The State of Maharashtra, the Court held that where a legislator could not nominate a person for Deputy Chairmanship of the Legislative Council as he was Covid positive and was prevented from attending the session of the Legislative Council, the selection of such Deputy Chairman could not be set aside. As the Deputy Chairman was chosen by majority, and the legislator had no intention of nominating himself, and was not prevented from having other members of his party nominate him, he could not be granted relief by setting aside the selection.
In Shubham S. Suryawanshi v/s State of Maharashtra Ors, the Court considered a writ petition filed under Article 226 of the Constitution of India, impugning an order passed by the Scheduled Tribe Certificate Scrutiny Committee, invalidating the scheduled caste certificate of the petitioner, for admission to MBBS, and allied courses from the scheduled tribe category. The petitioner relied upon the fact that the scrutiny committee had approved the caste claim of his other family members and had issued caste validity certificate. The respondent submitted that the findings of the scrutiny committee could not be interfered with by the court under Article 226. The Court observed that the scrutiny committee had totally overlooked large number of documents produced by the petitioner to prove his caste claim. The Court further held that the rejection of the claim on the ground that though caste was mentioned as “thakur” in pre-independence documents, it was not mentioned as “thakur scheduled tribe”, is nothing but an endeavour to defeat the claim of the persons belonging to the said caste. The Court further observed that with migrations, modernization, and contact with other communities, communities tend to develop and adopt new traits, which may not essentially match with the traditional characteristics of a tribe, and therefore, the affinity test may not be regarded as a litmus test for establishing the link of the applicant with a scheduled tribe. The Court relied on a Supreme court decision that observed that the affinity test can only be used to corroborate the documentary evidence and should not be the sole criteria to reject the claim. The Court, while observing that the scrutiny committee had invalidated the tribe claim solely on the ground of the affinity test, held that: (a) the Court had ample power to set aside the order of the scrutiny committee; (b) the order passed by the scrutiny committee, invalidating the caste claim of the petitioner is totally perverse and unsustainable, and thereby quashed; (c) the scrutiny committee is directed to issue a caste validity certificate in favour of the petitioner, within two weeks from the date of the order, on the basis of which the petitioner must be given admission in the MBBS college.
In Smt. Jayshree d/o Subhash Suryawanshi @ Smt. Jayshree w/o Nitin Thakur v/s. The State of Maharashtra & Ors, the Court considered a petition filed under Article 226 of the Constitution of India, against a decision of the Scheduled Tribe Certificate Scrutiny Committee, invalidating the claim of the petitioner seeking declaration that the petitioner belongs to the “Thakur Scheduled Tribe”. The scrutiny committee had rejected the petitioner’s claim on the count of prevailing legal position, area restriction, validity certificate issued in favour of maternal uncle, and affinity test. The said decision was challenged before this court in an earlier petition, wherein the court quashed the decision of the scrutiny committee and directed them to consider the claim afresh on the ground that there was no serious consideration of the issue of affinity test. The scrutiny committee once again rejected the claim of the petitioner on the same ground of affinity test, without giving any reasons. The petitioner submitted that the scrutiny committee ought to have considered that validity certificates issued to close blood relatives of the petitioner. The Court held that the scrutiny committee has erred in not considering certain supporting documents submitted by the Petitioner, and erroneously concluded that the petitioner had failed to succeed the affinity test. The Court further held that it is unfathomable to believe that prior to enactment of the Scheduled Tribe Order of 1950, any entries would have been recorded as “Thakur Scheduled Tribe”. This expectation of the committee was excessive, and the reasoning adopted by the committee was therefore completely fallacious. The Court held that once a particular community is declared as Scheduled Tribe, then it is to be treated as Scheduled Tribe throughout the State. The Court held that the decision of the scrutiny committee invalidating the claim of the petitioner was perverse and unsustainable, and thereby quashed. The Court further directed the scrutiny committee to issue caste validity certificate in favour of the Petitioner within two weeks from the date of the order.
In The State of Maharashtra v/s Balu Bhagu Vashivle & ors, the Court considered an appeal under Sections 120B, 302, 324, 147 and 148 of the IPC, against an order of the lower court, acquitting all the accused. Based on the post-mortem reports, the Court observed that the deceased had died a homicidal death.The Court opined that the prosecution witnesses’ testimony was not in consonance with the contents of the FIR and falls short of acceptance. The Court further observed that the testimony of the material witnesses materially differs from each other, and their respective versions are inconsistent with each other, and not in consonance with the medical evidence. In light of the above, the Court held that the prosecution had failed to prove its case beyond reasonable doubt and extended benefit of doubt in favour of the respondents – accused. Therefore, the appeal was dismissed.
In State of Maharashtra v/s. Sachin Appasaheb Gaikwad & Ors., the Court considered an appeal filed by the State under Sections 498-A, 306 and 304B read with 34 of the IPC, challenging the acquittal of the accused granted by the lower court. The court laid down the elements required to satisfy an offence under Section 304B of the IPC: (a) death of the woman (wife) within 7 years of marriage; (b) death must be caused by any burns or bodily injury OR occur otherwise than under normal circumstances; (c) must be established that soon before her death, she was subjected to cruelty or harassment; (d) cruelty or harassment may be by her husband / relative of husband; (e) cruelty of harassment by husband / relative of husband must be for / in connection with any demand for dowry.
The Court observed that the evidence of the informant was inconsistent with his own FIR. The Court further held that on analysing the entire evidence, the Court was of the firm view that on merits, the prosecution had not succeeded to establish that harassment of deceased was with a view to coercing her or any person related to her to meet any unlawful demand. In light thereof, the Court upheld the acquittal of the accused, and dismissed the appeal.
In The State of Maharashtra Vs Vishnu Dagadu Gaikwad and Ors., the Court upheld the decision of acquittal by the Sessions Judge, for the offences punishable under Sections 302 and 451 read with 34 of the IPC. The Court added that the trial Judge has rightly appreciated the evidence on record and no fault can be found in the findings of acquittal as the same are neither perverse nor illegal.
In Dhananjay Vithal Gawade Vs The State Of Maharashtra, the Court rejected and dismissed nine anticipatory bail application and a writ petition filed by the applicant for quashing all the FIRs and complaints registered against it for offences under Sections 120-B, 409, 420 of IPC and 13(2) read with Section 13(1)(a). This Court held that Powers under Section 438 being discretionary are to be exercised in the light of the circumstances of each case after evaluating the material facts and circumstances. And after relying on the case in hand, the material clearly suggests and points out his complicity in the offences alleged against him which are serious in nature and the same warrants custodial interrogation.
In Suresh Damodar Kagane Vs State of Maharashtra, the Court set aside the judgment of the trial Court convicting the Appellant (deceased) for the offences punishable under Sections 120-B, 409, 420, 468, 471, 477-A read with Section 109 of the IPC and under Sections 5(2) read with Section 5(1) (d) and 5(1)(c) of the Prevention of Corruption Act, 1947. The Court further ordered for the refund of all such fines as had been paid by the deceased appellant. The Court in doing so heavily relied on the evidence of the approver, on whose statements the trial court had convicted the deceased. This Court relied on the decision of the apex Court in Babuli alias Narayan Bahera Versus. The State of Maharashtra, to held that since approver was tendered pardon after examining 93 witnesses and since the approver’s evidence has been discarded, being worthless, by the Court in the appeal filed by the co-accused, the approver’s evidence is to be kept out of consideration even while deciding the appeal. Hence, upon excluding the approver’s evidence, the remaining evidence was not sufficient to establish beyond reasonable doubt that the deceased had committed the offences for which he was charged and tried, the Court found.
In Satish Chandrakant Dixit Vs The State Of Maharashtra, the Court reaffirmed the decision of the trial Court for conviction of accused no.3 under Section 304 Part II of the IPC and sentenced him to suffer rigorous imprisonment for 10 years. However, since he had already undergone the sentence imposed on him, this Court ordered his immediate release provided his presence was not required in any other case. On the other hand, the Court set aside the order convicting accused no. 1 under Section 323 of the IPC on the ground that the prosecution at trial stage had failed to establish the fact that the accused shared common intention. Also, there was no clear, cogent and clinching evidence to satisfy this Court that accused no.1 had assaulted by any weapon or means, the deceased.
In The State of Maharashtra Vs Taramati Tukaram Mhadgut and Anr., the Court upheld the decision of acquittal of the trial Court for offences under Sections 498 (A), 306 read with section 34 of Indian Penal Code, 1860. This Court relied on the decision of the apex Court in Murlidhar & Ors. V/s. State of Karnataka, and held that there is nothing palpably wrong, manifestly erroneous or demonstrably unsustainable in the findings of the trial Court. Further, the Court also added that since the presumption of innocence is the fundamental principle of criminal jurisprudence and since the accused having secured acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the Trial Court. Therefore, it re-enforced the opinion of the Trial Court that for acquitting the accused, the prosecution had failed to prove its case beyond reasonable doubts.
In State of Maharashtra v. Fatima Mahamad Shaikh & Ors., the Court held that the dying declaration of the deceased was in direct conflict with the oral evidence that had been adduced by the other prosecution witnesses and that it was not the case that the dying declaration had been obtained under threat, duress or coercion. In this case, the Court did not interfere with the decision of the trial court, which had held that the prosecution had failed to prove its case beyond reasonable doubt.
In Shivpujan Harishankar Yadav v. State of Maharashtra, the Court relying on the judgment of the Supreme Court in State of U.P. v. Lakhmi held that the defence of the accused under Section 313 of the CrPC is not on oath and the onus is not on the accused to prove his case beyond reasonable doubt, and with regards to proving an exception, the accused only has to demonstrate the preponderance of probabilities. The Court further relied on the judgments of the Supreme Court in Jayprakash v. State (Delhi Administration) and Kesar Singh & Anr. v. State of Haryana and held that the case of the accused would squarely fall under Section 304 Part I of the IPC as the accused was deprived of self-control and had on spur of the moment achieved the desired consequences.
In State of Maharashtra v. Hajimalang Lalasaheb Mulla, the Court held that the substantive evidence of the informant was at loggerheads vis-à-vis the FIR as there was no satisfactory evidence as to how and under what circumstances the informant had identified the unknown persons as the accused and the evidence of both investigating officers were silent as to how the accused came to be identified during the course of the investigation. The Court upheld the verdict of the trial court which had held that the prosecution had failed to prove its case beyond reasonable doubt.
In Suyash@Joy Satish Chandrakant Dixit v. State of Maharashtra & Ors. the Court, relying on the judgments of the Supreme Court in State of Andhra Pradesh v. Rayavarapu Punnaya and Anr., Arumugam v. State and Surain Singh v. State of Punjab held that if it is only a case of knowledge and not intention to cause murder and bodily murder and bodily injury, then it would fall under Section 304 Part II of the IPC. It was further held by the Court that if the incident took place out of grave and sudden provocation, the accused is entitled to the benefit of Section 30, Exception 4, of the IPC.
In Pramod Anandrao Dhumalv. State of Maharashtra the Court held that since the applicant sent images and the link with material which tends to excite lust, but it was not the material containing ‘sexually explicit act’ , the case attracted the provision of section 67 and not 67-A of the Information Technology (IT) Act, 2000. In order to satisfy the provisions of section 67-A the material must be of the nature describing sexual activity in a direct or detailed way. The Court further held that the applicant also committed the offence of stalking which is punishable under section 354-D of the Indian Penal Code but the same is cognizable, bailable and triable by Magistrate. The Court held since the offence was committed for the first time under section 67 of the IT Act, the same prescribes imprisonment of either description and may extend up to three years along with a fine of five lakh rupees and the applicant was granted pre-arrest bail.
In The State of Maharashtra v Ravindra Ananda Mhatre, the Court held that the mere fact of a victim being last seen with the accused, was not enough evidence to sustain a conviction. In the present case, the victim was seen leaving his house with the accused persons, and was brought back home by the accused persons in an injured condition. The act of bringing the victim back to his home was in fact seen as an instance of good conduct that was held to be consistent with the innocence of the accused. In the absence of any other direct incriminating evidence, the trial court’s acquittal was upheld.
In The State of Maharashtra v Eknath Rajaram Pawar and Ors., the Court held that if an appellate court were to find nothing palpably wrong or manifestly erroneous with an order of the trial court, then the appeal court need not even re-appraise the evidence to arrive at its own conclusions. In the present case, the Court was dealing with a revision application against an order of acquittal by the trial court. Neither did the Court find sufficient evidence to substantiate the charges, nor did it find anything manifestly wrong or erroneous in the trial court’s judgement. It was further observed by the Court that a double presumption of innocence was available to the accused. Firstly, by the fundamental principle of ‘innocent until proven guilty’, and second, by the very acquittal by the trial court, which further reinforced the presumption. The appeal was thus dismissed by the Court.
In Chandrakant Bhikaji Walawalkar v The State of Maharashtra, the Court held that a conviction may be based solely on circumstantial evidence only when the chain of circumstances is complete and the circumstantial evidence is incapable of any explanation other than the guilt of the accused. In the present case, the Court noted several lapses in the circumstantial evidence presented by the prosecution. First, the prosecution had failed to prove the motive of the commission of the offence. Second, there were material contradictions in the evidence of the witnesses. Finally, there was no evidence to prove that the accused and the complainant were last seen together. The accused were thus acquitted of the offence.
In State of Maharashtra v. Vishnu Dagadu Gaikwad the Court upheld the trial Judge’s opinion which had rightly appreciated the evidence on record and acquitted the accused on proper appreciation of material on record. It was held by the Court that there is no satisfactory evidence at all to prove that it were accused who after dousing deceased with kerosene set her ablaze. The Court relied on the admission on the part of this witness which unequivocally goes to show that, the deceased indeed got herself drenched with kerosene. Thus, this negates the theory of prosecution that it were accused who had poured kerosene on the person of deceased.
In State of Maharashtra v. Bhagwan Sukhadeo Bhandalkar the Court held that the trial judge has given convincing reasons to pass an order of acquittal and has rightly disbelieved the 4 dying declarations. While scrutinising the 4 dying declarations, the Court followed the governing principles as expounded in the case of Sudhakar v State of M.P. wherein the apex Court has held that in cases involving multiple dying declarations made by the deceased, it is the duty of the court to consider each one of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. Each dying declaration has to be considered independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. Keeping in mind, the aforesaid governing principles, the Court scanned and scrutinized the dying declarations and gave cogent reasons for disbelieving the case of the prosecution.
In The State of Maharashtra v. Balu Valu Chaudhari even after throwing ample light on the evidence produced and the dying declaration, the Court held that the prosecution has not been able to prove satisfactorily that the deceased was in a fit state of mind to give a statement and also, there is a failure to prove the contents of the dying declaration. There has been absolutely no evidence as to the kind of dimensions of ill-treatment to which the deceased was subject to and rather even after on an independent evaluation of the prosecution evidence, no substantial case has been established by the prosecution and hence, the order of acquittal was reaffirmed.
In Kumar Builders thr. Its Proprietor Mr. Lalitkumar Kesarimal Jain and Ors. Vs Kumar City Residents Co-Operative Housing Society Ltd. thr. Chairman Mr. Divender Kumar Dhamija And, the Court reversed the decision of the Civil judge and held that on meaningful reading of the plaint as a whole, it is found that the plaint is barred under Order XXIII Rule 3A of the CPC. The Court further relied on the decision of the apex Court in Triloki Nath Singh vs Anirudh Singh (D) Thr. Lrs. to hold that the finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3A of Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties.
In Bhagyashree Mahadeo Gaikwad and Ors. v/s The State Election Commission and Ors., a three-judge bench of the Court considered the fundamental question of whether a writ petition under Article 226 of the Constitution of India would be maintainable if a petitioner seeks to challenge an order of rejection of his nomination paper (to contest a Gram Panchayat election) by the competent authority, having regard to the provisions in Article 243-O of the Constitution, read with Sections 15 and 15-A of the Maharashtra Village Panchayats Act, 1959. The Court held that Article 243-O(b) of the Constitution is a bar for entertaining a writ petition under Article 226, against an order passed by the Returning Officer, rejecting nomination papers.
In Kiran Daulat Gosavi vs Election Returning Officer the Court held that unless the Act itself provides that the amendment would apply with retrospective effect or the legislative intent is clear, the amendment has to be read with prospective effect. In view of the same, the Court held that the Maharashtra Village Panchayats (Amendment) Act, 2017 by amendment Act, 54 of 2018 is prospective in nature, effective from, 19th July, 2017 and cannot be applied with retrospective effect, unless specified clearly.
In Vilas Vitthal Sakhare And Ors vs State Of Maharashtra the Court held that the irregularities pointed out by the petitioner in the voters list prepared for the purpose of Hinajwadi Gram Panchayat Election was duly considered by the Sub-Divisional Officer and only thereafter proceeded with the final publication of the voters list on December 14, 2020. Since, the voting was scheduled to be held on January 15 2021, it was held that it isn’t desirable to stall the election process. Further, in several decisions like in the case of Anugrah Narain Singh V/s. State of U.P. the Supreme Court has advised the High Courts about the importance of holding elections at regular intervals and not to stall the election process by utilising their powers under Article 226 of the Constitution of India. The Court also held the petitioners are always at liberty to pursue the alternate remedies available under Rule 23 of the Registration of Electors Rules, 1960 and also under Section 15 of the Maharashtra Village Panchayats Act, 1959 and if the same is/are pursued it will be open for the parties to raise all their contentions.
In Shri Atul Bhaskar More v. State of Maharashtra & Ors., the Court, relying on its own judgment in Jadhav Shankar Dyandeo & Anr. v. Collector, Satara & Anr. and the Supreme Court’s judgement in State of Uttar Pradesh v. Pradhan Sangh Kshettra Samiti, held that the delimitation of panchayat area or the formation of the constituencies in the panchayat area, as well as allotment of seats to such constituencies could not be entertained by the Court. The Court, also reiterated the judgment of the Supreme Court in Anugrah Narain Singh & Anr. v. State of U.P. & Ors. wherein it was held that if any election is imminent or well underway, the Court should not intervene to stop the electoral process.
In Shrikant Ankush Sawant & Anr. v. State of Maharashtra through its Department of Rural Department & Ors. the Court, relying on its own judgment in Jadhav Shankar Dyandeo & Anr. v. Collector, Satara & Anr. and the Supreme Court’s judgement in State of Uttar Pradesh v. Pradhan Sangh Kshettra Samiti, held that the delimitation of panchayat area or the formation of the constituencies in the panchayat area, as well as allotment of seats to such constituencies could not be entertained by the Court. The Court, also reiterated the judgment of the Supreme Court in Anugrah Narain Singh & Anr. v. State of U.P. & Ors. wherein it was held that if any election is imminent or well underway, the Court should not intervene to stop the electoral process.
In Sopan Kishanrao Narwade & Anr. v. State of Maharashtra through its Principal Secretary & Ors. the Court held that disputed questions of facts cannot be decided in exercise of jurisdiction under Article 226 of the Constitution of India. The Court, further relying on its own judgment in Jadhav Shankar Dyandeo & Anr. v. Collector, Satara & Anr. and the Supreme Court’s judgement in State of Uttar Pradesh v. Pradhan Sangh Kshettra Samiti, held that the delimitation of panchayat area or the formation of the constituencies in the panchayat area, as well as allotment of seats to such constituencies could not be entertained by the Court. The Court, also reiterated the judgment of the Supreme Court in Anugrah Narain Singh & Anr. v. State of U.P. & Ors. wherein it was held that if any election is imminent or well underway, the Court should not intervene to stop the electoral process.
In Vikrant Halkandar v. Principal, Pravin Gandhi College of Law, a Division Bench of the Court held that where an institution is imparting education, as the respondent college was, then a writ would be maintainable against it as providing education is a public duty. The Court also ruled that where the Mumbai University and College Tribunal in its order provided that if enquiry was not conducted and completed within a year, then the petitioner would be entitled to back wages, there was no bar on the conduct of such enquiry beyond a year as long as the tribunal grants an extension. The Court also ordered the payment of backwages and a cost of Rs. 15,000/- to the petitioner.
In The State of Maharashtra through the Secretary, Medical Education & Drugs Department v. Dr Ashok Ramachandra Anand, the Court held that having regard to the Scheme of the Epidemic Diseases Act 1897, there was no power to transfer or assign an officer on deputation in breach of other statutory provisions governing the terms and conditions of such officer. The Court also held that unless a case of mala fide transfer of an officer is proved, the Court may not review the expediency and propriety of an administrative order to transfer a government servant from one post to the other.
In Reliance General Insurance Co. Ltd. v. Colonial Life Insurance Company (Trinidad) Ltd. & Anr., the Court held that the mandatory timeline of 120 days to file a written statement in commercial suits was not applicable to suits originally filed as ordinary suits and which were subsequently transferred as commercial suits to be heard by the commercial division of the High Court under Section 15(1) of the Commercial Courts Act.
In Malti Parmanand Chatpar v. Puran Jethanand Jattani, the Court, relying on Vishnu Ramkrishna v. Nathu Vithal, held that where the deponents were present at the time of execution of a will, have signed on the registration page along with their photographs as witnesses, merely because they have not signed on the will itself will not lead to invalidity of the will.
In Suruna Bothra Associates & Others v/s. Rakesh Motilal Sharma & Others, the Court considered an appeal under Order 43 Rule 1 of the CPC, 1978, from an order of injunction passed against the defendants (appellants / original owners) in a suit brought by the plaintiffs. The plaintiffs claimed exclusive possession in property based on “actual settled possession”. The cause of action was that the defendants (original owners) tress-passed into the property and attempted to erect structures over it. The plaintiffs filed an application for temporary injunction, which was granted by the lower court. Aggrieved by the order of the lower court, the defendants have preferred this appeal. The Court observed that settled possession means such possession over the property which has existed for a sufficiently long period of times and has been acquiesced by the true owner. However, mere stray or intermittent acts of trespass do not give right against the true owner. Settled possession means such possession over the property which has existed for sufficiently long period of time and has been acquiesced too by the true owner. Casual act of possession does not have the effect of interrupting possession of the rightful owner. Settled act of trespass / possession which has not matured into settled possession can be obstructed or removed by the true owner, even by using necessary force. The three key ingredients of settled possession must be: (a) effective; (b) undisturbed; and (c) to the knowledge of the owner or without any concealment by the trespasser. The following tests may be adopted for determining attributes of settled possession: (a) trespasser must be in ‘actual physical’ possession of the property over the sufficiently long period; and (b) possession must be to the knowledge (either expressed or implied) of the owner or without any attempt of concealment by the trespasser. The Court while vacating the order of injunction, held that the acts of the plaintiffs (respondents) was traceable to ‘encroachment’ and therefore plaintiffs could not seek an injunction against the defendants / true owners.
In Smt. Chanashri Chambayya Swami (Name After Marriage Smt. Dhanashri Ajaykumar Swami Vs The State Of Maharashtra Through Secretary Social Justice Dept. And Ors, this Court relied on the judgment of the apex Court in Anand vs. Committee for Scrutiny and Verification of Tribe Claims & Ors. and held that while dealing with documentary evidence, greater reliance may be placed on pre-Independence documents. Based on the same, the report of the Caste Scrutiny Committee was upheld as the documents of the petitioner's father reflected that his caste was ‘Hindu Lingayat’, and not ‘Beda Jangam Scheduled Caste’. It is also imperative to note that the handwriting on Page No.1 of service-book of petitioners, where words ‘Beda Jangam Scheduled Caste’ appeared/written was different and appeared to be tampered and false.
In Shrikrishna Bhikaji Bondge v State of Maharashtra and Ors., the Court held that it is a cardinal principle of construction of statutes that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. It is further held that unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective. As a logical corollary of general rule, retrospective operation is not taken to be intended unless that intention was manifested by express words or necessary implication. Another principle flowing from presumption against retrospectivity is that one does not expect rights conferred by the statute to be destroyed by events which took place before it was passed.
The authors are Rahil Mehta, Partha Mansukhani, Rahul Kumar, Mahi Mehta, Parinaz Bharucha, and Abhinav Hansaraman.