#Bombay HC Archives - Prime Legal

23 Mar

D K Basu guidelines on Protection and Arrest of Detenu restated; Supreme Court directs Police & Probe Agencies to strictly follow the norms on Arrest

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Blog # Supreme Court, #arrest, #Bombay HC, #D K Basu guidelines, #dignity of individuals

Case title – Somnath vs State of Maharashtra & Ors.

Case no. – Special Leave Petition (CRL.) NO.2600 OF 2019

Decision on – March 18th, 2024

Quoram – Justice Vikram Nath, Justice Ahsanuddin Amanullah

Facts of the case

The complainant filed an FIR as he lost Rs.30,000/- when he visited the Holy Nath Temple to attend the last rites of his brother-in law. The appellant was arrested in connection with the said crime on the basis of CCTV footage. Subsequently, the appellant was produced before the Magistrate and was handed over to the investigating agency. It prepared a memorandum under Section 27 of the Indian Evidence Act, 1872 showing recovery of Rs.30,000/- from the house of the appellant. Further, during the period of police custody, the appellant was allegedly taken out of the lock-up by the Police Inspector, who handcuffed and paraded him half-naked with garland of footwear around his neck. The Respondent 2 (R2) also verbally and physically assaulted him with reference to his caste.

Later, the appellant on being remanded to the judicial custody filed an application for bail in the Court of Judicial Magistrate, First Class. The Court granted a conditional bail. Consequently, instead of releasing him, the respondent captivated him in the Police Station.

One of the relatives of the appellant pleaded before the Judicial Magistrate, for issuance of Show-Cause Notice to the concerned police officer. Pursuant to the complaint filed by the appellant, the Sub Divisional Police Officer inquired into it and prepared the report. The Report affirmed the above allegations against the Respondent 2 and recorded that despite grant of bail to the appellant he was illegally detained by R2 for four hours.

The appellant, based on the actions of R2, filed a writ petition before the Bombay HC and pleaded for initiation of departmental inquiry and criminal proceedings under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against him and sought for compensation. The HC by the impugned Judgment, partly allowed the petition, wherein it awarded Rs.75,000/- compensation payable by R2 but declined to give any direction for initiating criminal action against him under the SC/ST Act.

Submission by the Appellant

The Counsel submitted that it would be a travesty of justice if such blatant violation of the personal liberty of the appellant and abuse of authority by the R2 is waived off with just “strict warning” without any real effective punishment. It was submitted that, while the appellant was in the custody of police, R2 failed to comply with the guidelines laid down in D K Basu v State of West Bengal and Sube Singh v State of Haryana and thus pleaded to inflict major punishment upon him.

Submission by the Respondent

The Counsel submitted that in terms of Section 161 of the Police Act, the prosecution against the police officer acting under colour of official duty after six months of the alleged act cannot be entertained and contended that the High Court had rightly declined the plea to direct any action on such prosecution.

Court’s Analysis and Judgement

The Supreme Court on perusal of the enquiry report of the Commission noted that there was sufficient material evidence to conclude that R2 committed excesses against the appellant. It observed that R2 being in a position of power, totally abused his official position.

The Court stated that there must be zero-tolerance approach towards such high-handed acts committed by persons in power against an ordinary citizen as the same would bring shame to the entire justice delivery system. The Court in the view of justice, though resorted to Article 142 to direct initiation of criminal proceedings, it refused to do so, considering the fact that respondent no.2 had retired and paid sufficient compensation in accordance with the order and judgement of the Commission and HC respectively. Hence, asserted that justice ought to be tempered with mercy.

Accordingly, the Court upheld the decision of HC and disposed of the appeal.

The Court however was saddened by the fact that it had to restate the principles and directions laid down in D K Basu case for the protection of detenu. It relied on various authorities and noted that the dignity of individuals must be protected in all circumstances and the police officers ought to be sensitive about the personal liberty of citizens and must refrain from excess use of force.

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Judgement Reviewed by – Keerthi K

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14 Mar

Assessing Officer not entitled to make additions again, when the same had been deleted by the CIT(A): Bombay High Court

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Blog #Additions, #Assessee, #Assessing Officer, #Assessment order, #Bombay HC, #CIT(A), #Commissioner of IT, #Income Tax, #ITAT, #Section 260A

Case title – CCIT (OSD)/Pr. Commissioner of Income Tax VS Bhupendra Champaklal Dalal

Case no. – Income Tax Appeal No.1491 OF 2019 (A.Y. 1989-1990)

Decision on – March 06, 2024

Quoram – Justice K. R. Shriram & Justice DR. Neela Gokhale

Facts of the case

The Respondent/Assessee, an individual, was carrying on business as sole proprietor in the name and style of M/s B.C. Devidas. Assessee, who was a registered broker of Bombay Stock Exchange, was also engaged in trading in securities and shares. In addition to the profit, assessee also received salary and commission from CIFCO Limited and Food and Inns Limited in which he was a director.

The Assessee having been involved in the multicrore securities transactions scam of 90’s infamously known as Harshad Mehta Scam, got labelled as notified party on 2nd July 1992 under the Special Court’s (TORTS) Act, 1992. The investigation of Assessee by CBI was followed by a search and seizure action by the IT Department.

The assessment was originally completed after the search operations. Both assessee as well as Revenue filed appeals before the ITAT. The ITAT restored the matters to the file of the Assessing Officer for denovo assessments. Consequently, the assessment order was passed under Section 143(3) read with Section 254 of the IT Act 1961, wherein, certain additions to the income were made.

The Assessee aggrieved by the said order, filed an appeal before Commissioner of Income Tax (Appeals) [CIT(A)]. The CIT(A) partly allowed the appeal. The parties being discontented by the order preferred appeals before ITAT. The ITAT by a common order partly allowed the contentions of assessee for the AY-1989-1990.

The Revenue challenging this decision filed an appeal under Section 260A of the Act before the Bombay High Court.

Court’s Analysis and Judgement

The first issue relates to the disallowance of interest expenses incurred for non-business purposes. The AO disallowed interest of Rs. 12,19,181/- paid to banks and others on the ground that the assessee diverted interest-bearing funds for giving interest-free advances.

The ITAT came to a factual finding that the assessee had huge interest-free debts with him and the assessing officer has failed to recognize the same. The Court agreeing with the findings of ITAT opined that when interest-free funds and interest-bearing funds are mixed together, they lose their respective identities, and hence, the presumption should be that the assessee has used interest-free funds to give interest-free advances.

The ITAT order concluded that even for AY 1989–1990, interest-free funds available with the assessee were sufficient to take care of interest-free advances made. The Court held that ITAT right in concluding that the interest expenditure claimed by the assessee was allowable.

The final issue is related to the deletion of various additions aggregating to Rs. 10,89,30,545/. It is noted by the ITAT that various types of additions aggregating to this amount were made by the Assessing Officer in the original assessment proceedings, and in the appeal filed by the assessee, the CIT(A) deleted these additions.

The department did not prefer an appeal challenging the order of the CIT (A), and hence, the same has attained finality. Only the assessee challenged the additions confirmed by the CIT(A). The ITAT has also restored those additions, which were confirmed by the CIT(A), to the file of the Assessing Officer for fresh examination.

The Bombay High Court upholding the ITAT’s ruling held that the Assessing Officer could not have assessed additions again since the CIT (A) had deleted the same in the first round of proceedings and the concerned matters have attained finality. The Court re-affirmimg the ruling of ITAT held that Assessing Officer was not legally entitled to make these additions again in the second round of proceedings.

Judgement Reviewed by – Keerthi K

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5 Jan

Custodial interogation is necessary for advocates accused of serious crimes: Bombay High court

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Uncategorized #Bombay HC, #Forgery, #Law report, #Legal News, #murder

Title: Hiral Chandrakant Jadhav Vs The State of Maharashtra

Citation: ANTICIPATORY BAIL APPLICATION NO.3699 OF 2023

Coram: Justice SARANG V. KOTWAL

Date: 03/01/24

Facts

The Applicant, who is an Advocate, is seeking anticipatory bail in connection with a serious offense. The Applicant was approached by a person whose husband was arrested under IPC Section 302. The Applicant assured the release on bail for a fee of Rs.65,000.The Advocate claimed her husband was granted bail, accepted Rs. 25,000 more, handed over a sealed envelope with alleged documents, but the husband was not released. After receiving the payment, the Applicant claimed that the bail was granted, but the documents provided were incomplete. The Applicant repeated this process, even providing a fake bail order, and the person realized they were deceived, leading to the filing of the FIR. The Applicant is now anticipating arrest.

Laws Involved

Section 302 of IPC

Punishment for murder

Section 420

Cheating and dishonestly inducing delivery of property

Section 465

Punishment for forgery

Issues

Whether the Applicant, engage in fraudulent activities by allegedly taking money for securing bail, and deceiving the informant in connection with a criminal case?

Judgement

The accused, an advocate, has been found by the court to have committed major offenses, including violating Section 420 of the IPC, which have damaged the victim’s reputation and undermined the integrity of the legal system. The court highlights the seriousness of the crime and the necessity of questioning suspects while they are in custody in order to find possible accomplices and similar situations. Thus, as a result court rejects the application, stating that no mercy can be awarded at this time.

Written by:- Sanjana Ravichandran

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5 Jan

Dismissal of companies appeal in compensation case, commissioner Upholds penalty: Bombay High court.

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Uncategorized #Agreements, #Bombay HC, #law, #Legal Report, #workmen

Commissioner upholds penalty, dismisses company’s appeal in compensation case: Bombay HC

Title: Shipping Corporation of India Limited Vs Mr. Dasu M. Kutty

Citation: FIRST APPEAL NO. 708 OF 1996

Coram: Justice M.M. SATHAYE

Date: 05/01/24

Facts

The case involves a compensation claim by Mr. Dasu M. Kutty, who worked as a seaman for the Appellant since 1958. Mr. Kutty was employed by the Appellant from 1958 until his retirement. He filed a claim for benefits for injuries caused while working, claiming in particular 1991 chest problems that required by-pass surgery and rendered him unfit to serve in the maritime industry. The claimant contended that his hard work while serving on the ship affected his pre-existing heart disease. The claim was opposed by the employer, who denied the claim of a lifelong damage and denied any hard and stressful work. The Employer Shipping Corporation of India Limited has filed an appeal under Section 30 of the Workmen’s Compensation Act, 1923, challenging a judgment from 13.02.1996. In that decision, the company was directed to pay the deceased Claimant’s family compensation of Rs. 3,16,688/- with 6% interest from 14.07.1991. Additionally, a penalty of Rs. 75,000/- and costs of Rs. 1000/- were imposed. The widow and daughter of the deceased Claimant are now pursuing the case.

Laws Involved

Section 30 of the Workmen’s Compensation Act, 1923.

“An order awarding as compensation a lump sum whether by way of redemption of a half- monthly payment or otherwise or disallowing a claim in full or in part for a lump sum”. This means that instead of receiving compensation in regular installments, the injured worker or their dependents can opt to receive a one-time lump sum amount.

N.M.B. Agreement

It refers to the National Maritime Board Agreement, which typically governs terms and conditions of employment for seafarers in the maritime industry, including provisions related to compensation and benefits in case of injuries or disabilities.

Issues

Whether the Claimant’s entitlement to 100% disability compensation under the N.M.B. Agreement, is sustainable?

Judgement

After reviewing, The Appellant argued that a penalty should not have been imposed, citing the absence of such provision in the N.M.B. Agreement. However, the Commissioner for Workmen’s Compensation, while not contested for jurisdiction, justified the penalty and interest under the Act due to non-payment of compensation since 1991. The judgment upheld the Commissioner’s decision, pointing to laws allowing penalties for late compensation, and the appeal was rejected without any additional costs.

Written by:- Sanjana Ravichandran

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4 Jan

The Previous Order Which Is Correct In Law Can Not Be Modified By The Interim Application : Bombay HC

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Blog #Bombay HC, #CPC, #Indian Succession Act, #law, #Report

TITLE : Mangaka Sarosh Bana v Renuka alias Rekha Satish Narwankar

CORAM : Hon’ble Justice Milind N Jadhav

DATE : 3^rd January 2024

CITATION : Testamentary Petition No. 1996 Of 2022

FACTS

This Interim Application is filed by the Applicant – Original Respondent / Caveatrix for seeking modification of the order dated 04.07.2023 passed by the court. Petitioner, married younger daughter of deceased late Kamlakar Dattopant Abhyankar for seeking probate of last Will and Testament of the deceased. The Applicant Caveatrix is the married elder daughter of the deceased. Testamentary Petition 1996 of 2022 was filed on 06.04.2022. Petitioner is the sole executor in the Will. Along with the Petition notarized consent Affidavit dated 09.03.2022 was filed by the Applicant / Caveatrix giving her No- objection and free and full consent for grant of probate of the Will of the deceased in favour of the Petitioner justifying surety for legacy to be dispensed with and waiving service of citation upon her.

However subsequently after 10 months, on 18.01.2023 the Applicant / Caveatrix filed Caveat No. 89 of 2023 to oppose grant of probate in favour of original Petitioner by contending that she was not aware about the Testamentary Proceedings as also disowning her own consent affidavit which was executed and notarized by her. Assets of the deceased comprised of four movable properties and one immovable property. Learned Advocates informed the Court on 04.07.2023 that all movable assets were apportioned and distributed equally between the two legal heirs i.e. daughters of the deceased. They informed the Court that now the only property remains is the immovable flat belonging to the deceased situated at Mumbai Central. after taking instructions from the Caveatrix, learned Advocate agreed for apportionment / distribution of the said flat in equal proportion. Court passed the order in directing issuance and grant of Letters of Administration along with Will.

The present Interim Application is now filed on 28.08.2023 seeking a modification to the effect that if the parties had agreed to claim the legacy in equal proportion i.e. 50% each.

LAWS INVOLVED

Section 2(h) of Inidan Succession Act, 1925 :

(h) “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.Section 3(5) of The Maharashtra Recognition Of Trade Unions And Prevention Of Unfair Labour Practices Act, 1971.

Section 96 of Code Of Civil Procedure, 1908.: This allows an aggrieved party to appeal a decree passed by a court exercising its original jurisdiction to a higher authority designated for this purpose.

ISSUES

Whether the court needs to alter the older order of the court under section 96 of Code of Civil Procedure; Whether the modification can be granted by the interim application under Section 151 of the Civil Procedure Code of 1908.

JUDGEMENT

By analyzing the witnesses in the proceedings, it was observed that the present Application has been filed by the Applicant / Caveatrix since there is reluctance to communicate and respond by the original Petitioner who is the younger sister of the Applicant Caveatrix. Considering the order passed on 04.07.2023 and the consent recorded there is no error in the judgement passed by the court in the previous order. The said order can’t be corrected in the manner as it is impermissible in law to do so. Once the consent affidavit has been filed by the Applicant / Caveatrix and she having agreed before the Court to apportion the estate of the deceased and distribute the same to the extent of 50% each, modification sought for by the present Interim Application cannot be granted.

Written by- Sanjana Ravichandran

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