Important Judgments of Bombay High Court (2022) - Legal Bites Year Update
Legal Bites brings you a roundup of Important decisions of the Bombay High Court (2022), which played a significant role.
Legal Bites brings you a roundup of Important decisions of the Bombay High Court (2022), which played a significant role. It will help the readers to remember all legal and current updates of 2022 pertaining to the Bombay High Court in the most efficient and easy way.
Important Judgments of Bombay High Court (2022) - Legal Bites Year Update
1. Can a girl be treated as property and given in donation? Bombay HC addresses in light of “Daanpatra” executed by the father of a daughter
On 3rd January 2022, the Bombay High Court, in the case 'Shankeshwar v. State of Maharashtra' (2022), Vibha Kankanwadi, J., while directing Child Welfare Committee, Jalna to hold an inquiry on an expeditious basis in respect of a girl and to find out whether she was a fit person to be declared as a child in need of care and protection as the father of the girl child had executed “Daanpatra” to give the daughter in a donation to a Baba.
2. Notice to a dead person under Section 148 of the Income Tax Act cannot be issued
On 15th February 2022, the Bombay High Court, in the case 'Raniben Khimji Patel v. Asst. Commr. Of Income Tax' (2022), The Division Bench of K.R. Shriram and N.J. Jamdar, JJ., reiterated that notice under Section 148 of the Income Tax Act, 1961 to a dead person cannot be issued. In the present matter, the petitioner was the legal heir of Khimji Karamshi Patel, who died on or about 2-3-2021. The death of the assessee, Khimji Karamshi Patel was communicated to the respondent. Yet, the respondent had issued a notice under Section 148 of the Income Tax Act, 1961 dated 30-6-2021 for A.Y. 2103-15, stating that there were reasons to believe that Khimji Karamshi Patel’s income chargeable to tax for A.Y. 2014-15 had escaped assessment. In another petition, an identical notice had been issued for A.Y. 2013-14. With the present decision, both petitions are disposed of. The crux of the matter was the petitioner’s challenge to the notice itself.
3. Gangubai Kathiawadi; Can after certification granted by Board, public exhibition of a film be prohibited?
On 24th February 2022, the Bombay High Court, in the case 'Hiten Dhirajlal Mehta v. Bhansali Production', (2022), In respect to petitions with regard to the release of the movie Gangubai Kathiawadi, Division Bench of Dipankar Datta, CJ and M.S Karnik, J., while expressing that “Once the film is granted a certificate by the competent statutory authority, i.e. the Board, the producer or distributor of the film has every right to exhibit the film in a hall unless, of course, the said certificate is modified/nullified by a superior authority/Court”, held that, there cannot be any obstruction for the exhibition of a film, which is certified unless the said certificate is challenged and Court stays its operation.
4. Whether the husband is entitled to claim alimony under Section 25 of the Hindu Marriage Act, 1955?
On 26th February 2022, the Bombay High Court in the case 'Bhagyashri v. Jagdish' (2022), Bharati Dangre, J., held that provision of maintenance/permanent alimony being a beneficial provision for the indigent spouse, Section 25 can be invoked by either of the spouses, where a decree of any kind governed by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or adversely affected by the such decree of the court. Petitioner-Wife, on being aggrieved by order of the Civil Judge, approached this Court.
Respondent-husband had filed a Hindu Marriage Petition claiming for grant of permanent alimony from the petitioner-wife at the rate of Rs 15,000 per month. The said application was filed under Section 25 of the 1955 Act, wherein it was pleaded that since the respondent-husband had no source of income and on the contrary, the petitioner-wife had acquired the educational qualification of M.A., B.Ed and was serving at Shri Datta Mahavidyalaya, Talni, Taluka Hadgaon.
It was stated that, in order to encourage the wife to obtain the degree, the husband managed the household affairs, keeping aside his own ambition. Respondent-husband pleaded that he suffered humiliation and harassment in the marital relationship as the petitioner-wife, with a malafide and dishonest intention, filed a petition that the respondent was neither doing any job nor does he possess any moveable or immovable property nor had any independent income. Respondent-husband claimed maintenance of Rs 15,000 per month from the wife.
5. Employer setting big targets, not granting leave and not accepting resignation would be acting in the normal course of business: Bom HC grants anticipatory bail to an employer accused of abetting suicide committed by an employee.
On 28th February 2022, the Bombay High Court in the case 'Dr Surendra Manjrekar v. State of Maharashtra' (2022), Sarang V. Kotwal, J., addressed a matter wherein an employer was accused of abetting the suicide of an employee. The applicant sought anticipatory bail for an offence registered under Sections 306 read with 34 of the Penal Code, 1860 (IPC).
First Information Report was lodged by the wife of the deceased, whose suicide was the subject matter of the investigation. The applicant was the director of the company, for which the deceased was working. Later, the deceased approached the applicant with a resignation letter, but the applicant did not entertain him and told him that he was free to do whatever he wanted to. Also, the applicant told the deceased that he would see that the deceased would not get any other job and the deceased was threatened regarding the future of his career. On 30th September 2021, the deceased went to the office and there were allegations that during lunch hours he was sitting with the applicant and the applicant’s son and within a short time after that, he jumped from the office building. In view of the above, FIR was lodged.
High Court observed that while it is true that the deceased had written in the Notebook that the applicant was the main cause, the reason for this grudge is elaborated in the F.I.R. Bench remarked that the acts as mentioned like not providing a driver for the vehicle, deceased being asked to stand for a meeting daily, etc. were not things that could be covered under the meaning of Sections 107 read with 306 IPC.
6. When a Child in Conflict with Law is to be tried as an adult, an assessment under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is required to be done? Bomboay HC answers
On 16th March 2022, Bombay High Court in the case 'State of Maharashtra v. Shadab Tabarak Khan' (2022), An Officer-in-charge of the Anti-Terrorist Squad Unit had received secret information that some persons had engaged in terrorist activities in Mumbra and Aurangabad areas. Further, he secretly obtained the name, addresses and cell phone numbers of the suspects. The said suspects were put under surveillance and from the information received, it was revealed that one Mohsin Khan and his associates had established a group “Ummat E Mohammadia” and some trusted and like-minded persons were made members of the group. In view of the above an offence came to be registered under Section 120-B of the Penal Code 1860 read with Sections 18, 20, 38 of the Unlawful Activities (Prevention) Act, 1976 read with Section 135 of the Maharashtra Police Act. The respondent being a child in conflict with the law on his arrest was produced before the Juvenile Justice Board.
M.G. Sewlikar, J., held that, in terms of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Juvenile Justice Board has to make an assessment into heinous offences to determine whether CCL is to be tried to an adult. The present revision was preferred by the State of Maharashtra against the decision by the Additional Sessions Judge confirming the order of the Juvenile Justice Board, Aurangabad dismissing the application by its order.
7. When parents are alive, can a son claim his share in the property of his parents? Bombay HC answers
On 16th March 2022, the Bombay High Court in the case 'Sonia Fazal Khan v. Union of India' (2022), The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., held that Asif i.e. son has no rights in his father’s flats. As per the petition, Fazal Khan was living in a vegetative state for the last decade and he not only had dementia but has had multiple strokes also.
The crux of the petition was the appointment of Fazal’s wife, Sonia as the 1st petitioner, as the guardian of Fazal’s personal property. It was noted from their medical report of Fazal that he was totally dependent on his caregivers. In the present case, the Court was concerned with a Bank Account wherein Fazal was the first holder and Sonia, i.e. his wife the joint holder.
The second asset was a property which was a residential flat. An intervention application as pointed out by the Court was filed by Asif Fazal Khan, the “de facto” guardian of Fazal for many years and there was absolutely nothing in the said application to show that. Further, Asif submitted that although his parents were alive, there are two flats and both are what he describes as “a shared household” therefore he, the son, had some sort of enforceable legal right or entitlement to either or both of these flats. Therefore, the intervention application filed by the son was rejected.
8. Daughters and widows of a deceased would inherit properties of the deceased as tenants in common or joint tenants
On 31st March 2022, the Bombay High Court in the case 'Kamalabai v. Darubai' (2022), Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.
The suit properties which included 4 agricultural lands and two-house properties, were the properties of Dajiba. The four daughters of Dajiba had filed the suit against their stepmother for partition and separate possession of their share in the suit properties. The stepmother has agreed to sell one of the suit properties Survey No. 42/B to respondent 2, which was arrayed as defendant 2. Trial Court decreed the suit awarding a joint 4/5th share to the daughters in all the suit properties.
The above-said judgment was challenged by the stepmother and the purchaser and further, the appeal was partly allowed. Except for Survey No. 42/B, the share allotted to the daughters in all the suit properties was confirmed. Further, the stepmother had agreed to sell it to the purchaser to meet the legal necessity of the family.
Aggrieved with the District Court’s decision, one of the daughters who was plaintiff 4 preferred the second appeal arraying her stepmother and the purchaser as also the remaining three sisters as respondents. High Court noted that there was no dispute with regard to the suit properties and after the demise of Dajiba, his widow i.e., defendant 1 and daughters, who were the plaintiffs simultaneously succeeded to his estate in view of Section 8 of the Hindu Succession Act. With regard to Section 19 of the Hindu Succession Act, all the above-stated heirs of Dajiba would inherit as tenants in common and not as joint tenants.
9. Son is not expected to brand his aged father a ‘swindler’ or allege that aged parents have lost mental balance
On 4th April 2022, Bombay High Court in the case 'Namdeo v. Geeta' (2022), The petitioners were the son and daughter-in-law of respondents 2 and 3 and assailed the order rendered by the Tribunal constituted under Section 7 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 whereby the petitioners were directed to vacate the self-acquired residential house of the respondents 2 and 3. The petitioners’ submission was that the Act does not envisage a remedy of eviction, and the Tribunal committed a jurisdiction error in virtually treating the application under Section 5 of the Act as a suit for eviction.
Respondents contended that they had constructed a residential house from self-earning and that petitioner 1 illegally and forcibly took possession of part of the said house and was conducting himself in a manner as would pose a serious threat to the safety and security of respondents 2 and 3. Further, the respondents submitted that if the petitioners vacate the portion illegally occupied, the said portion can be let out and the rental income would enable respondents 2 and 3 to better maintain themselves. Significantly, respondents 2 and 3 accused their son and daughter-in-law of physical assault and further prevented the well-wishers and other sons of respondents 2 ad 3 from entering the residential house.
High Court expressed that the safety and security of respondents 2 and 3 shall be in jeopardy unless the petitioners are evicted. The Bench stated that the emotional and physical well-being of the aged respondents 2 and 3 could not be ensured unless the petitioners vacate the self-acquired residential house of respondent 2.
10. Motor Accident Case; Determination of just compensation cannot be equated to a bonanza
On 18th April 2022, the Bombay High Court in the case 'Akshay v. Kailas Vitthalrao Shinde' (2022), Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of just compensation cannot be equated to be a bonanza. The Appellant was serving as a cleaner on the appellant’s vehicle which was punctured on a highway and hence parked by the side of the road.
When the appellant was replacing the tyre a truck drove in a rash and negligent manner and gave a dash to the Tata Tempo vehicle which was in stationary condition and caused the accident. Due to the above, the appellant was taken to the hospital for treatment. It was stated that the right leg of the appellant got crushed and it came to be amputated. Further, even his left leg was damaged badly. Hence, the owner of the vehicle lodged an FIR against the truck driver. The appellant filed an injury claim under Section 166 of the Motor Vehicles Act, 1988 and sought compensation assessed at Rs 60 lakhs. Though the claim was allowed partly. Aggrieved with the decision, the present appeal was preferred for the enhancement of compensation.
11. Article on a rift between police officers published in the newspaper: Will the reporter be punished under section 505 IPC?
On 6th May 2022, the Bombay High Court in the case 'Amol Kashinath Vyavhare v. Purnima Chaugule Shrirangi' (2022), Two news articles were published, one on 8-10-2017 and another on 22-5-2018. High Court noted that, in the two articles, the petitioner had said about a rift between the staff of the Office of Deputy Police Commissioner and staff attached to the Crime Branch of Solapur Unit. The bench added that, on reading the said articles, any person from the society would certainly form an opinion that there was a rift between the police personnel of the two offices.
Further, the said articles may not give a good message about the overall functioning of the Police Commissionerate Office and it’s true that it would create an alarm amongst the members of the society, that whether the Police of Solapur were in a position to protect their interest in case of need. The bench while stating that without going into the issue of whether the news article caused defamation or not, it is true that the procedure under Section 199(2) nor under Section 199(4) of the Code of Criminal Procedure was followed. Hence, pertaining to offences under Sections 500, 501 and 502 of OPC also does not stand the scrutiny of law. Lastly, the Court added that the petitioner-accused could make out a case under the exception to Section 499 of IPC, but the same was only possible when the prosecution would have initiated validly by filing a proper complaint.
12. Dying declaration is by itself sufficient to convict an accused of an accusation levelled against him provided the dying declaration is found to be voluntary, truthful and hence, could inspire the confidence of the Court
On 6th May 2022, Bombay High Court in the case 'Satish Mahadeo Kale v. State of Maharashtra' (2022), the Appellant was married to Manisha and in the year 2009, Manisha was admitted to a hospital with a history of burn injuries. It was disclosed by Manisha to the Police that her husband used to be always under the influence of alcohol and insisted upon her paying money for the alcohol and if she refused to oblige, he used to assault and abuse her.
On the night, when Manisha refused to give money to her husband for liquor while sleeping the appellant was dowsing kerosene on her and in order to rescue herself, she tried to flee from the house and at that juncture, her husband lit the matchstick and threw at her, setting her ablaze. Later she raised a hue and cry, after which her sister-in-law tried to rescue her and her husband who had fled from the house came and pretended to extinguish the flames. In view of the above, a charge sheet was filed for the offence punishable under Section 302 IPC.
While addressing a matter with regard to a husband setting ablaze his wife, the Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ., made an observation with respect to dying declaration that, It is by itself sufficient to convict an accused for the accusation levelled against him provided the dying declaration is found to be voluntary, truthful and hence, could inspire the confidence of the court. The appellant was convicted for the offence punishable under Section 302 of the Penal Code, 1860 by the Additional Sessions Judge.
13. Whether the compensation granted under chapter X of the Motor Vehicle Act forfeits the right of the employee to claim compensation under Section 3 of the Employees Compensation Act? Bombay HC answers
On 6th June (2022), the Bombay High Court in the case 'Narayan v. Sangita', (2022), S.G. Mehare, J. allowed an appeal against the order passed by the Commissioner for Workmen’s Compensation and Judge Labour Court dated July 30, 2001. The appellant was a driver with respondent 1 who owned a truck which was insured with respondent 2. He met with a vehicular accident on April 13, 1997, and sustained the injury to his femur and toe of the left leg. He sustained 35% physical disability. He was employed with respondent 2 on the day of the accident.
He could not work as before the accident. He served the notices to both respondents. However, none of the respondents paid him the compensation. Thus, he filed an application under Sections 3 and 22 of the Workmen’s Compensation Act 1923 (now Employees Compensation Act 1923) where Commissioner rejected his Claim for the reason that the appellant had already approached the Motor Accident Claims Tribunal and had received the compensation under section 140 of the Motor Vehicles Act 1988 (hereinafter ‘M.V. Act’) making the claim barred under section 167 of the M.V. Act. Hence, the instant appeal.
14. Does DRT have the power to restrain a person from travelling abroad? Does Art. 21 include the right to travel abroad? Bom HC discusses
On 7th June 2022, in the Bombay High Court in the case 'Anurag v. Bank of India' (2022), the petitioner challenged the order passed by the Debt Recovery Tribunal refusing to grant permission to travel abroad for a limited time to attend the marriage of the petitioner’s sister-in-law. Expressing that the right to travel abroad has been spelt out from the expression “personal liberty” in Article 21 of the Constitution, A.S. Chandurkar and Amit Borkar, JJ., observed that, the provisions under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, do not impliedly confer such powers on the Debt Recovery Tribunal to restrain a person from travelling abroad.
15. Unmarried major daughter entitled to maintenance from her father; glossy life on Instagram does not prove independent and sufficient income
On 16th June (2022), the Bombay High Court in the case 'Anil Chandravadan Mistry v. State of Maharashtra', (2022), Bharati Dangre, J. rejected a writ petition which was filed by the husband, being aggrieved of the order passed by the Family Court wherein petitioner-husband had sought some modifications in an earlier order dated 01-09-2018 pleading that his daughter was major and had completed her education and working and earning sufficiently for her own maintenance which came to be rejected.
Marital discord among the couple led to the filing of an application under Section 24 of the Hindu Marriage Act, 1955 for maintenance pendente lite by the respondent-wife which was allowed, and the husband was held liable to pay an amount of Rs.25,000/- per month towards the maintenance of his daughter, who was major from 17-07-2015. The Court considered the reasoning recorded by the Family Court that the settled position of law is to the effect that even when a daughter becomes major, she is entitled to maintenance from her father till her marriage and as far as a second ground for modification was concerned, it is to the effect that she on her own, earns a handsome income from her modelling career which is just mentioned in her Instagram biography is not sufficient to hold that she has independent and sufficient income.
16. Right to reproductive choice: Minor sexual assault victim lodged in observation home for murder allowed to terminate the pregnancy
On 27th June 2022, the Bombay High Court in the case 'A v. State of Maharashtra' (2022), A.S. Chandurkar and Urmila Joshi-Phalke, JJ. allowed a writ petition which was filed by a minor victim of sexual abuse requesting to terminate her pregnancy. The petitioner contended that she is in the custody of Observation Home, Amravati as she had committed an offence under Section 302 of the Penal Code, 1860. A crime was also registered as the petitioner was not traceable on the basis of the report lodged by her mother under Section 363 of the IPC. During the investigation, it was revealed to the Investigating Officer that the petitioner is pregnant and, therefore, the offence was registered under Section 376 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012. She is also a victim of sexual assault and, therefore, another crime was registered on the basis of a report lodged by her mother.
The Court noted that in the present case, the petitioner is unmarried and she is not only a victim of sexual abuse but also lodged in an observation Home. The Court opined that she has already undergone trauma due to the sexual assault on her and she is also suffering mentally as she is also charged with the offence punishable under Section 302 of the IPC. The Court agreed that she cannot be forced to give birth to a child. The Supreme Court has also observed several times that it is the right of women to have a reproductive choice. She has a choice to give birth to the child or not. The Medical Board also opined that the pregnancy could be terminated if the petitioner is a minor girl. She is subjected to sexual assault. It is difficult for her to carry said pregnancy under the above circumstances.
17. Independent non-executive Director not liable for acts of the company when not involved in day-to-day business
On 8th July 2022, Bombay High Court in the case 'Meena Anand Suryadutt Bhatt v. Union of India' (2022), the Division Bench of K.R. Shriram and Milind N. Jadhav, JJ. took cognizance of a petition which the wife of late Shri filed. Anand S. Bhatt (‘Mr. Bhatt’) who was a practising advocate and partner of Wadia Ghandy & Co., Advocates and Solicitors. He, unfortunately, was a victim of the terrorist attack on 26-11-2008 at Hotel Oberoi, Mumbai. After the demise of Mr Bhatt, the petitioner had come across a file relating to the orders passed by respondent 2 and on legal advice decided to approach this court challenging nine orders all passed by respondent 2 by which penalty had been imposed on one TPI India Ltd (‘TPI’), its directors and ex-directors because Mr Bhatt’s name also appeared in the impugned orders.
The petition alleged that prior to 10-03-1999, Mr Bhatt was an independent non-executive director of TPI and then he had resigned as an independent director of TPI and a copy of the resignation letter was submitted with the Registrar of Companies intimating to the public about his resignation. It is important to note that TPI has been declared a sick industrial company under the provisions of the 1985(“SICA”) by the Board of Industrial and Financial Reconstruction (“BIFR”), New Delhi. It was also not in dispute that Mr Bhatt was an independent non-executive director and had nothing to do with the day-to-day management and business of TPI.
18. Section 14 of the SARFAESI Act empowers the Designated Authority only to assist secured creditors in taking possession of secured assets and nothing more.
On 3rd August 2022, Bombay High Court in the case 'Phoenix ARC Pvt. Ltd. v. State of Maharashtra' (2022), in September 2014, the borrowers approached one Religare Finvest Limited for Rs.6 crore loan and the same was issued by the Religare on 30-09-2014. Subsequently, borrowers committed defaults in repayment of the said loan and hence, Religare declared the borrowers’ account as a Non-Performing Asset. Thereafter, they issued a notice on 31-03-2018 under Section 13(2) of the SARFAESI Act, entreating borrowers to pay the amount within sixty days. Later, in September 2018, Religare assigned all its rights to Phoenix ARC (P) Ltd., (the petitioner) by a deed of assignment.
A second SARFAESI notice was sent to the borrowers. However, the borrowers, in reply, denied their liability. Petitioner filed an application under Section 14 of the SARFAESI Act seeking the assistance of the Additional District Magistrate, Nashik for taking physical possession of the secured assets. On 10-08-2020, the second respondent who was a tenant at the secured asset premises of the company intervened in the proceedings. The ADM via his Order dated 27-08-2021, declined to assist the petitioner and ordered that further orders regarding possession and mortgage would be decided after the termination of tenancy rights of the second respondent.
While deciding the instant writ petition wherein the issue was regarding transgression of the Additional District Magistrate’s jurisdiction under Section 14 of the SARFAESI Act; the Division Bench of A.S. Doctor and K.R. Shriram, JJ., observed that the jurisdiction of the Designated Authority under Section 14 of the SARFAESI Act is purely ministerial and limited only to assisting secured creditors in taking possession of secured assets and nothing more. “Section 14 of the SARFAESI Act does not contemplate much less empower the DA to even consider much less adjudicate upon any objections raised by Borrower or anybody else”.
19. Bombay HC invokes principles of repatriation and restoration and grants bail to a juvenile accused of gang rape
On 22nd August 2022, Bombay High Court in the case 'Sandeep Ayodhya Prasad Rajak v. State of Maharashtra' (2022), The applicant along with five adults, were arrested for gang-raping a 7-year-old girl and were charged under Sections 376-D, 376(1)(n), 354, 354-D, 114, 509, 506 of IPC and Sections 6, 8 and 12 of the Protection of Children from Sexual Offences Act (POCSO Act). Upon the applicant’s arrest, he was produced before the Juvenile Justice Board constituted under the Juvenile Justice Act, 2015 and was placed in the Observation Home.
The applicant filed two bail applications before the Juvenile Justice Board, but both applications were rejected. The Board observed that the adult accused persons are the family members of the applicant, and if the applicant is released on bail, he may again come in contact with these people or other people with similar criminal tendencies. The Board held that the applicant’s safety can only be ensured if he is inside the Observation Home.
In deciding the instant bail application filed by a juvenile applicant by invoking Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the Bench of Bharati Dangre, J., while invoking the principles of repatriation and restoration, granted bail to the applicant. It was observed that since the applicant had positively responded to the rehabilitative efforts during his stay in the Observation Home, he, therefore, deserves to be reunited and restored with his family and it would be in his best interest so that he can develop himself with full potential.
20. Can seized goods be released in favour of an ‘owner’ or an ‘importer’ under Section 110-A of the Customs Act? Bom HC answers.
On 8th September 2022, the Bombay High Court in the case 'Commissioner of Customs (Import) v. Dinesh Bhabootmal Salecha' (2022), In an appeal filed by Commissioner of Customs (Import) (‘appellant’) challenging an order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (CESTAT), directing the provisional release of the seized goods in the shape of iPhones in purported exercise of powers under Section 110-A of Customs Act, 1962, a Division Bench of Dhiraj Singh Thakur and Abhay Ahuja JJ. set aside the impugned order as Dinesh Bhabootmal Salecha (‘respondent’) seeking the release of the seized goods, was found to be an ‘importer’ and not an ‘owner’ of the goods.
The clear mandate of Section 110-A Customs Act, 1962 states that goods could be permitted to be released only in favour of an owner and the respondent failed to establish his ownership over the seized goods during the proceedings. Based upon an intelligence input, the consignment (under challenge) was supposed to contain a Memory Module of 4GB, 8GB and 32GB D-RAM valuing Rs. 80 Lakhs approximately, but on inspection was found to contain 3800 iPhones valuing approximately Rs. 42 Crores. Since the goods were mis-declared, the goods were seized under Section 110-A of the Customs Act.
The Court further noted that on a careful reading of Section 110-A of the Customs Act, it is abundantly clear that goods seized may be released to the owner. The said section does not include or envisage the release of goods provisionally in favour of an ‘importer’ of goods much less does it envisage, a release in favour of ‘any person’, in addition to the ‘owner’ as mentioned in Section 124 of Customs Act, who has been served a notice under the said section. The Court held that the Tribunal has committed an error in importing the definition of an ‘importer’ as defined under Section 2(26) of the Customs Act and reading the same in Section 110-A of the Customs Act.
21. Mere use of the word harassment mentally and physically is not sufficient to attract ingredients of Section 498-A IPC
On 21st October 2022, the Bombay High Court in the case 'Sarang Diwakar Amle v. State of Maharashtra' (2022), in an application filed under Section 482 of the Criminal Procedure Code (CrPC) for quashing the FIR for the offences punishable under Sections 498-A, 323, 504, 506 read with Section 34 of Penal Code, 1860 (IPC), a Division Bench of Vibha Kankanwadi and Rajesh S Patil, J., quashed and set aside the FIR and the proceedings thereto, on the ground that the allegations made, and the evidence collected is not prima facie sufficient, to attract the ingredients of an offence punishable under Section 498-A of IPC. As far as Section 323, 504, 506 read with Section 34 of IPC is concerned, unless the other offences are proven to amount to “cruelty”, an offence under Section 498-A of IPC cannot be made out and, therefore, it would be a futile exercise to ask the applicants to face the trial.
22. Bombay High Court grants bail to a woman accused of throwing her newborn child from the top of the building
On 28th November 2022, the Bombay High Court, in the case 'Dimple Sunil Warthe v. State of Maharashtra' (2022), In an application filed seeking bail against FIR registered for the offence punishable under sections 317, 302, 201 of the Penal Code, 1860, M.S. Karnik J., granted bail to the petitioner on furnishing P.R. bond for Rs 10,000/- with one or more sureties of the like amount. The applicant is working as a housemaid and has been in custody for more than 2 years and 1 month after throwing her newborn baby from the top of the building. It was alleged that the applicant threw her newborn baby from the top of the building as she was upset with her husband for having illicit relations with another woman.
The Court noted that no purpose would be served by prolonging the custody of the applicant, a woman, any further. The possibility of the trial commencing any time soon is remote. Thus, the Court granted bail to the mother on furnishing a personal recognizance bond in the sum of Rs 10,000/- with one or more sureties of the like amount for a period of 4 weeks in lieu of surety.
23. Whether electromagnetic radiation from a mobile tower would cause irreparable harm to children with disabilities? Bombay HC answers in negative.
On 14th December 2022, the Bombay High Court, in the case 'Indus Towers Ltd. v. State of Goa' 2022 SCC OnLine Bom 6863”, Whether the electromagnetic frequency (EMF) radiation emitting from a mobile connection tower would cause irreparable harm to the children with disabilities such as intellectual disability, mental illness, autism spectrum disorder, cerebral palsy, muscular dystrophy, chronic neurological condition, specific learning disabilities and other disabilities, is the moot question to be considered in this petition. The Court noted that the Commissioner working under the Rights of Persons with Disability Act, 2016, is certainly not covered under the definition of ‘authority’ found in Rule 2(b) quoted above.
Hence, the Court held that the Commissioner had acted outside his jurisdiction while passing the impugned order. Considering that a complainant produced no specific material to establish that electromagnetic radiations are having adverse effects on the special children studying in the said school, the Court opined that the Commissioner had acted in clear violation of principles of natural justice. The Court noted that there were absolutely no reasons to issue such directions since there was no justification for accepting the contentions of the complainant to conclude that radiations would harm the special children who are studying in the said school.
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