Important Judgments of Bombay High Court (2023) - Legal Bites Year Update

Legal Bites brings you a roundup of Important decisions of the Bombay High Court (2023), which played a significant role. It will help the readers to remember all legal and current updates of 2023 pertaining to the Bombay High Court in the most efficient and easy way.

Important Judgments of Bombay High Court (2023) - Legal Bites Year Update

1. Merely stating that the wife refused to have the child's DNA tested during cross-examination is insufficient to draw negative conclusions

On 7th January 2023, in the case Namdeo S/O Digambar Giri v. Seema, (2023), the Bombay High Court denied a man's petition contesting his wife's maintenance award, noting that the wife's refusal to submit to a DNA test to determine the girl child paternity during cross-examination is insufficient grounds for drawing an unfavourable conclusion.

As a result, indeed even though there are solid grounds in this request expressing that the petitioner's spouse is ready for a DNA test, no separate application for a DNA test has been submitted.

Simply recognizing that the spouse was asked during cross-examination if she was prepared to undergo a DNA test, and her response was insufficient to support a negative conclusion about her, would not be adequate. The only remaining question is whether DNA tests can currently be ordered merely by request. The court dismissed the plaint.

2. The Court's Authority to Grant or Refuse Bail Cannot Be Taken Away by NALSA's Plan for Undertrial Prisoners

On 8 February 2023, in the case of Mahipati Antu Jadhav v. State of Maharashtra (2023), the Bombay High Court emphasized that the NALSA's plan to free undertrial inmates is intended to draw attention to the undertrial individuals who are incarcerated; nonetheless, it cannot supersede the court's authority to grant or deny bail to such inmates based only on the merits of the case.

The plan itself specifies the reason for its introduction. This strategy was created in continuation with the prior NALSA initiatives, given the high percentage of convicts awaiting trial. The Hon'ble Supreme Court issued several directives in this regard, which are mentioned in the plan itself. We can determine the plan's intention for framing. The Under Trial Review Committees have been assigned specific responsibilities, much as the District and Sessions Judges have. The authorities were expected to take action to free the detainees by that system.

But the matter cannot be abandoned now. Undoubtedly, there are times when the trial court will give instructions. The submission is that the trial has commenced already. Given that, the following directive is issued:

(i) The application is turned down.

(ii) The trial court assigned to handle the case is instructed to accelerate and wrap up the trial as soon as feasible.

(iii) The trial court should also consider that the prisoner in question is older than 65 and that the plan is set up to allow for their early release.

3. Recognition by the Bombay High Court: Daughter's Entitlement to Family Property

On 16th March 2023, In the Terezinha Martins David v. Miguel Guarda Rosario Martins (2023) case, the Bombay High Court rejected the mother and four brothers' argument that the four daughters had no claim to the family's properties because they received a dowry at their wedding. maintained that a daughter might still claim the family's assets even if she receives a dowry at the time of her marriage.

A woman filed a plea in the case asking for an injunction to prevent her mother and her four brothers from granting any third-party rights over the properties in her family. Despite being the oldest married daughter in the household, the appellant received no ownership part in the properties. She brought up the fact that a transfer deed in 1990 that was executed in favour of two of her brothers had the approval of the mother and the other sisters. The family's home and store were given to the two brothers under the terms of this transfer deed. She further argued that she didn't find out about it until 1994, at which point she filed a legal lawsuit.

4. The Bombay High Court overturns a man's conviction for assaulting his girlfriend under the POCSO Act

On 6th April 2023, in the case of Samir Rajesh Sathe @ Samir Hussain Shaikh v. State of Maharastra & Anr. (2023), a fellow who was given a two-year imprisonment sentence for manhandling his fiancée had his conviction set aside by a Bombay High Court single judge comprised of Justice Bharathi Dangre. Even though the single judge agreed that women's respect ought to be maintained at all costs. The prosecution's failure to prove the case beyond reasonable doubt doesn't excuse them from their burden. As they've significantly failed to meet this burden, the benefit must inevitably favour the accused.

The individual was charged under Section 354 and Section 354D of the Indian Penal Code. As the girl was 17 years old, the guy was additionally charged under the POCSO Act.

The Appellant was acquitted of the charges levelled against him.

5. The Municipal Commissioner's decision to forbid providing hookah or herbal hookah at a restaurant with an eating house license is upheld by the Bombay High Court

On 24th April 2023, in the case of Sayli B Parkhi v. State of Maharashtra, (2023), in a petition filed by the petitioner, an entrepreneur operating a restaurant/lounge in Mumbai under the name and style of Parkhi Hospitalities, the petitioner challenged the contested order dated April 18, 2023, issued by the Medical Health Officer, directing the petitioner to restrict the activity of serving hookah/herbal hookah in the service area by using burnt charcoal; if the petitioner fails to comply, the petitioner's eating house license will be cancelled or revoked immediately.

A division bench made up of Judges G. S. Kulkarni and R. S. Laddha found that the decision in question was properly made by the judge using his discretion while also keeping in mind the licensing terms and the case facts and circumstances as well as the general context.

The Municipal Corporation argues that the petitioner would not be able to perform any hookah activities, such as serving herbal hookah, if an eating establishment licence under Section 394 of the Mumbai Municipal Corporation Act, 1888 were granted. Due to the petitioner's unacceptable practice of providing hookah as herbal hookah, two show-cause warnings were sent to the petitioner. In response, the petition was submitted and the contested order was issued. The Court stated that it cannot be expected that one of the menu items given in a restaurant or eating establishment frequented by women, children, and the elderly would be hookah, especially in the case of the petitioner's use of flame or burning charcoal. From the perspective of an eatery, this would be a complete inconvenience.

The Court concluded that the Municipal Commissioner had rightly used his discretion and power to stop the petitioner from engaging in the kind of smoking and hookah activities that the petitioner had been engaging in.

The question being considered is whether the petitioner would allow the serving of "Hookah," or what is purported to be "Herbal Hookah," by the requirements of the eating house licence that the Municipal Corporation awarded her.

6. The absence of wisdom tooth does not establish someone is younger than eighteen; the accused was acquitted

On 3rd May 2023, Maherban Hasan Babu Khan v. State of Maharashtra Anuja Prabhudessai (2023), acquitted the accused of offences under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 and Sections 376(2)(i) and 376(2)(j) of the IPC because the prosecution failed to illustrate the appellant's fault beyond a reasonable doubt.

Victimed alleged that the appellant avoided any mode of communication with her because she got pregnant. She wanted the appellant to the punished for offences.  She claimed that she was below 18 years old and a child under the POCSO Act. The Court found she was not below the age of 18 years during that time and sexual relationship with consent could not be termed as 'rape'.

7. The Bombay High Court has reinstated the case against Kirtankar for his remarks regarding having intercourse on even days to conceive a male child.

On 16th June 2023, in the case of Ranjana Pagar-Gawande v. Nivrutti Kashinath Deshmukh (Indorikar) & Ors. (2023), Kishore C. Sant, J. held that Section 6 and Section 22 (1) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT Act) cannot be only confined to diagnostic centres and must be expansive.

A public speaker known as a Kirtankar, who was purportedly able to influence people in rural and semi-urban areas, was the respondent in the current petition.

According to the allegations, on 04-01-2020, 2020, the respondent gave a speech to the group on "how to conceive a male child" using excerpts from Ayurvedic and religious texts. That same day, the speech was posted on YouTube. He stated that a kid born by physical touch during an unlucky time would damage the family name. His statement that "even after six months if a fetus in the womb takes a round on right side it turns to be a male child and takes round on left side then it turns to be a female child" was particularly disgusting.

The Trial Court's ruling was upheld, the other petitions were granted, and the petition for lack of locus standi was dismissed by the court. The Court also ordered the Trial Court to continue with the trial without letting the Court's observations or the Sessions Court while deciding the revision. 

8. The Bombay High Court has ordered the contractor who started many cases to deposit Rs. 7.50 lakh before the PIL can be heard, calling the situation "pending like the sword of Damocles."

On 21st July 2023, in the case of Sharad Kulkarni v. State of Maharashtra & Ors. (2023), the petitioner in a public interest litigation was recently instructed by a division bench of the Bombay High Court in Aurangabad, consisting of Justices Ravindra V Ghuge and YG Khobragade, to deposit a pre-deposit of Rs. 7.5 lakhs for the matter to be heard. The court noted that the petitioner had filed several lawsuits against public officials and that these lawsuits were being held up like the "Sword of Damocles."

"Thus, ex-facie, we believe that the Petitioner's sole intention is to file lawsuits against Public Works or Irrigation Department officers and keep them pending like the 'Sword of Damocles,'" the bench stated.

A contractor filed a public interest litigation against six contractors and nine public officers, claiming that Rs. 3 crores had been misappropriated. The case was being heard by the high court. The petitioner requested a disciplinary investigation into each of them as well as instructions to follow the Maharashtra Civil Services (Discipline and Appeal) Rules.

The Court said,

"We make it clear that if the said amount under Rule 7A(i) of the Bombay High Court Public Interest Litigation Rules, 2010, is not deposited, this PIL petition shall not be entertained and shall be dismissed and we may consider whether, costs may be imposed on the Petitioner while passing the order of dismissal". 

9. Man Found Guilty of Killing a Two-and-a-Half-Year-Old Child by Trial Court is Cleared by Bombay High Court

On 11 August 2023, in the case of Shri Nitin Aganda Lade v. State of Maharashtra (2023), the Sessions Court had previously found a man guilty of killing a two-and-a-half-year-old kid. Still, the Bombay High Court division bench, made up of Justices Revati Mohite Dere and Gauri Godse, acquitted him. The guy filed an appeal with the high court contesting the Sessions Court's ruling, which had fined him Rs. 5000 and sentenced him to six months of harsh imprisonment. The boy vanished while playing in the courtyard, and an FIR was filed, which is where the case started.

The child's body was found in a 45-foot-deep well that had water up to 21 feet in it. The FIR was filed by the child's parents. The parents of the child, the complainants, were antagonistic during the trial court procedures. The testimony of a witness who had seen the youngster with the appellant was the main source of support for the prosecution.

Nevertheless, the witness was not subjected to a cross-examination because the appellant's attorney was not present. Consequently, the sessions court used the "last seen theory" to find the appellant guilty based only on the witness's main cross-examination.

The high court ordered that the witness be put through a cross-examination and returned the case to the sessions court. The witness denied seeing the child with the appellant and denied having any cause to visit the well where the child's body was found throughout the cross-examination.

As a result, the bench moved to overturn the sessions court's decision finding the appellant guilty.

The prosecution's case was based solely on circumstantial evidence, as already mentioned. The bench ruled that the contested judgment and order could not be upheld since the prosecution had not proven the aforementioned facts.

10. Students travelling to school in snake-infested backwaters must have access to boats with specialized operators and life jackets, under a directive from the Bombay High Court.

On 11th September 2023, In the case of the Registrar Judicial High Court of Bombay Bench at Aurangabad v. State of Maharashtra and Others, (2023), in a suo moto public interest lawsuit, the Bombay High Court's Aurangabad bench ordered the district collector of Aurangabad to furnish students utilizing thermocol boats to travel across backwaters infested with snakes with a suitable boat, a skilled operator, and life jackets.

The division bench consisting of Justice Ravindra V Ghuge and Justice YB Khobragade issued the directives. A suo moto PIL was filed by students in Bhiw Dhanora village, Aurangabad district, who used thermocol rafts to traverse a dam reservoir teeming with snakes to get to school. The division bench filed this complaint. The Suo Moto Cognizance was made by a TOI report. The bench mentioned the adage,

"Necessity is the mother of all inventions".

Can you imagine male and female students older than seven making a thermocol sheet to help them stay afloat and utilizing bamboo sticks with plastic square pieces tied to the edges for use as paddles to get through the choppy Jayakwadi Dam backwaters to the school to receive education?

The kids are to go to and from school by boat, per the bench's directive. In addition, pregnant women, the elderly, and sick people would have access to it during other hours. To have firsthand knowledge, the high court further congratulated Amicus Shri Shendurnikar for visiting the backwaters and travelling in a thermocol raft.

We are deeply moved by the kind act of the learned Amicus Shri Shendurnikar, who has personally travelled to the backwaters of the Jayakwadi Dam, boarded a thermocol raft, and made the journey with a parent of a girl attending school, to gain firsthand knowledge of how dangerous it is to travel through the backwaters to get to the school. The bench expressed its appreciation to the learned advocate Shri Shendurnikar for his extraordinary gesture.

The bench further issued notice to the state government and wanted active action from the collector within 12 hours.

11. The Code of Criminal Procedure does not support a one-sided investigation that supports the prosecution's case alone

On 18th October 2023, in the case of Nikhil Ashokrao Waghmare & Ors v. State of Maharashtra & Anr, (2023), the Hon'ble Bombay High Court held that the Code of Criminal Procedure does not provide for a one-sided probe to support solely the prosecution's case. A fair investigation is a prerequisite for a fair trial, and an investigation cannot be fair if the investigating officer ignores any material that is pertinent and desirable to the investigation. The Code of Criminal Procedure does not call for a biased investigation with the sole goal of gathering evidence to support the prosecution's case, the bench noted. The Nagpur High Court division bench, consisting of Justice Vinay Joshi and Justice MW Chandwani, considered an application that Nikhil Waghmare and his family submitted.

The family was charged under Section 306 (abetting suicide) and Section 498A (husband or relative of a woman subjecting her to cruelty) of the Indian Penal Code. The victim's father filed a complaint against Waghmare and his family. In December 2021, Waghmare and the victim exchanged vows, but because of unjust demands, the victim endured abuse in the married home. The victim was discovered dead in February 2022, having hanged herself to death. Waghmare and his family were alleged for her death. 

12. Startling Situation: Five years after filing a formal complaint, the Bombay High Court grants bail while the charges are still pending

On 8th November 2023, In the case of Ajay @ Bedkya Kamble v. State of Maharashtra, (2023),  a man was recently granted bail by the Bombay High Court, which noted the "shocking state of affairs" resulting from the lack of formal charges in the case, even though the FIR was registered five years ago and the arrest took place four years prior.

The bench stated,

"The shocking state of affairs would reveal that charge is not yet framed four years after his arrest and nearly five years after the date of registration of the C.R. dated 16/12/2018."

The High Court's Single Judge (Justice Bharathi Dangre) was hearing the second bail application of a man who was alleged to have caused grievous hurt by scythe. He has caused grievous injury in the form of CLW over the left parietal region, CLW over the left ear and trauma over the right arm, as per the statement of the complainant and other witnesses.

The candidate had a criminal history, and two of the FIRs were recorded against him. Thus, the applicant assured the court that he would remain beneath the purview of the Hingoli Gramin police station and wouldn't move into the Chinchwad police station until the trial was over.

13. Employer's Expertise should be used to determine a position's qualifications and the judiciary should not make this decision.

On 5th December 2023, Dadaso Balaso Awad & Anr. v. State of Maharashtra & Ors., (2023), the main question that the High Court addressed was whether or not the requirements for the employment of a sports coach might be subject to judicial scrutiny under Article 226 of the Indian Constitution. It was underlined that the court's decision cannot be used to replace the employer's in assessing qualifications, nor can the power of judicial review. It was said that an employer's choice governs the credentials for a certain position.

The Court recognized that when determining credentials for posts relating to sports, sports authorities are regarded as experts. It emphasized that the court lacked the necessary experience to replace these authorities' policy judgments with its own and rejected the notion that it should get involved in their decision-making.

The Court took into account prior rulings in the law, including rulings made by the Supreme Court in related matters. It highlighted the Anand Yadav case that how important it is to prioritize educationists' opinions and expert bodies' in matters about education.

The Court emphasized that administrative authorities are in the greatest position to establish credentials by citing the Dilip Kumar Garg case. It was reaffirmed that the employer has the final say over policy decisions about qualifications. It emphasized that unless there are accusations of dishonesty, and illegalities in the decision-making process, the court cannot get involved in the selection process.