#bombayhighcourt Archives - Page 2 of 10

6 Dec

Complaint Seeking An Action Under Sub-Section (3) Of Section 156 Of Cr.P.C., The Learned Magistrate Cannot Act Mechanically: High Court of Bombay

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Title : Satish Panchariya v The State of Maharashtra

Citation : WP-1009-2012

Decided On: 4th November, 2023.

Coram: Justice A. S. Gadkari And Justice Shyam C. Chandak.

Introduction:

The Petitioners have invoked jurisdiction of the Court under Article 226 of Constitution of India read with Section 482 of the Criminal Procedure Code [for short “Cr.P.C.”] for quashing of M.E.C.R. No. 2 of 2012, registered with Malad Police Station, Mumbai, in furtherance of Order dated 9th January, 2012 passed by the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai in C.C. No.04/SW/2012.

Facts:

The learned Magistrate by its impugned Order dated 9th January, 2012, while directing the Police to conduct investigation under Section 156(3) of Cr.P.C., has himself admitted that without applying judicious mind to the case, he has passed the said Order by relying on the decision of the Hon’ble Supreme Court in the case of Shrinivas Gundluri and Ors v/s. SEPCO Electric Power Constructions Corporation & Ors. It is the settled position of law and as has been enunciated by this Court in the case of Sayed Anwar Ahmed & Anr. vs. The State of Maharashtra & Anr., reported in 2017 SCC OnLine Bom 3972, while dealing with the complaint seeking an action under Sub-Section (3) of Section 156 of Cr.P.C., the learned Magistrate cannot act mechanically. He is required to apply his mind to the contents of the complaint and the documents produced along with the complaint. That, an Order passed on the said complaint must record reasons in brief which should indicate application of mind by the Magistrate. However, it is not necessary to record detailed reasons.

There is another facet to the present Petition. In the complaint the Respondent Nos. 3 and 4 have represented themselves to be the authorized representatives of the Respondent No.2, Company for filing the said complaint and persuading the learned Magistrate in passing the impugned Order dated 9th January, 2012. The Authorised Representative/Director of Respondent No.2, Company, namely Retired Wing Commander Ajai Sharma has filed an Affidavit on behalf of Respondent No.2 dated 3rd April, 2012, duly affirmed before the Assistant Registrar of this Court.

he Respondent No.2 has not filed any complaint against any person and has also not authorised any person to file any complaint. That, the complaint bearing C.C. No. 04/SW/2012 filed before the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai, is without the knowledge of the Company and the Board of Respondent No.2 never passed any resolution to file any complaint or authorized Respondent No.3 to file any such complaint. That, the said complaint is filed without any authorization and without knowledge, consent or assent of the Board of Directors.

Court’s Analysis and Judgement:

The court held that a priori that, it is apparent that the Respondent Nos.3 and 4, has filed the said complaint without having any lawful authority. It is clearly a sheer sheer abuse of process of law adopted by Respondent Nos. 3 and 4 in the name of Respondent No.2 and as continuation of the said proceedings, would cause undue harassment and agony to the Petitioners for no illegal act committed by them.

The Court also did not appreciate the mode and manner in which the impugned Order dated 9th January, 2012 is mechanically passed by the learned Magistrate, which is in utter disregard to the settled principles of law. Hence the order dated 9^th January 2012 is quashed and set aside by the Court.

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Written By : Sanjana Ravichandran

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1 Dec

Termination of a workman cannot be done without proper evidence : Bombay HC upholds the decision of Labour Court

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TITLE : Emerson Climate Technologies v Shirish Ramchandra Pawar

CITATION : Writ petition no 12995 of 2015

CORAM : Hon’ble Justice Milind N. Jadhav

DATE: 28^th November 2023

INTRODUCTION :

A writ petition was filed under Article 226 and 227 of the Constitution of India challenging the orders of Presiding Officer, Labour Court at Satara on a matter pertaining to termination of an workman by the petitioner company.

FACTS :

The respondent, a Mr. Shirish Ramchandra Pawar, a welder was terminated by the petitioner company whose registered office is in Pune. Shirish was working in the company for a period of 21 years and has clean and unblemished work record.

He was working in the second shift and completed his duty at 12.30 AM and thereafter sat in a bus for departure. He then fell asleep and subsequently when Mr. K.B More was inspecting the bus to check to find 3kg of copper material under the respondent’s seat in his bag. He was then later accused of stealing those materials. An enquiry was set up and the respondent informed him that the charges were not accepted. The enquiry officer found the workman guilty. An award was given by the presiding officer at labour court and held that there was no sufficient evidence to prove the respondent had stolen the copper materials. The same is impugned in the current writ petition.

COURT’S ANALYSIS

The labour court had held that the enquiry officer had failed to record proper reasons as to how he had come to the conclusion that the property which was seized was due to an act committed by the Respondent – workman. The cross examination done by the enquiry officer was said to be corroborated and unreliable as the witnesses statements most likely to be fabricated.

The court agreed with the labour court and upheld its decision and the award was held to be proper and perverse.

Written by- Sanjana Ravichandran

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2 Nov

Condition to construct a house within a year of allotment under the Maharashtra Resettlement of Project Displaced Persons Act is unreasonable and arbitrary under Article 14 : HC of Bombay

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Citation : Writ Petition No. 4022 of 2021

Coram : Justice G. S. Kulkarni, Justice Jitendra Jain

Order date : 30th October, 2023

Introduction :

The petitioner has approached the appellate high court of Bombay under Article 226 of the constitution to quash the order which cancelled the appropriate land which is ought to be allotted to him.

Facts:

The petitioner, coming from a family of 15, under the Maharashtra Resettlement of Project Displaced Persons Act, 1976, was entitled to 8000 sq,ft of land after being displaced because of the Ujjani Dam Project. The subject matter, that is the land is divided into 3 individual lands measuring 2500 sq. Ft, 4000 sq. ft and the last 1500sq.ft.
In 1976, the petitioner was allotted the first plot but possession was handed over in the year 1989. There was a condition imposed that the petitioner must construct a house within a period of one year. In the year 1996, the petitioner was allotted the second plot measuring 4000 sq.ft. The pending 1500sq.ft still remains to be allotted.
One of the respondents filed a complaint on November 2015 claiming that the petitioner has not constructed a house in the first plot within a year and the subsequent allotment should be cancelled. The appropriate authority upon hearing the complaint had cancelled the allotment who are respondents 4 to the case.
The petitioner filed for a review of the order on 2019 in front of the Divisional Commissioner, Pune and directed the respondent to make an inquiry and the previous order was upheld. The petitioner had appealed challenging the 2019 order in the appellate court of Bombay.
The contentions of the petitioner were that, firstly, the condition imposed on the property is arbitrary, unconstitutional and without jurisdiction under the Act. Secondly, since the petitioner’s family consisted of more than 15 persons, a house under 2500sq.ft would not be sufficient and lacked civic amenities to sustain life. Thirdly, it was contended that the petitioner had only been allotted 6500 sq.ft of land out of the 8000sq.ft and was deprived of 1500sq.ft of land.
The respondents argued that the cancellation of the allotment of land was justified as it violated the conditions imposed and due to the non-issuance of notice for not constructing a house on the land, the state was justified to not allot the remaining land.

Courts Analysis and Judgement:

The court analysed the object of the condition to revoke the land and stated that the primary objective was to provide humanitarian assistance to the people under the project. The court stated that the condition does not fulfill the test of reasonability under Article 14 of the constitution. The court also stated that it is merely not reasonable to construct a house in 1 year and it is a subjective aspect. In furtherance, the court also stated that the Collector was out of jurisdiction and such revocation is draconian, arbitrary, unreasonable and contrary to the Resettlement Act.
The postponement of allotting the rest 1500sq.ft of land without a just reason was said to be unfair and unreasonable. The petitioner, on the basis of doctrine of legitimate expectation can seek allotment of the balance land of 1500sq.ft.
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Written by- Sushant Kumar Sharma

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5 Oct

Bombay High Court’s Landmark Wynk vs. Tips Judgment: A Game-Changer for Digital Music Platforms

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Wynk Ltd v. Tips Industries Ltd

CORAM : G.S.Patel & Gauri Godse, JJ

Decided on: 20th October 2022

Introduction

The Bombay High Court ruled down a major judgement in the case of Wynk vs. Tips, which has enormous consequences for the Indian music business. The court found in favour of Tips Industries Limited, a well-known record label, stating that online music streaming and downloading platforms are not eligible for reduced obligatory licences under Section 31D of the Copyrights Act. This blog will provide a description of this landmark decision and its potential implications for the music streaming business.

Facts of the case

Wynk filed a claim under Section 31D of the Copyright Act of 1957. Wynk acknowledged that the Copyright Board/Intellectual Property Appellate Board (which was still in existence at the time) had not yet established rates. Acknowledging this, Wynk consented to pay the first installment of royalties of Rs.10 lakhs. It appears to have concluded (on its own, by all accounts) that royalty should be paid at 10 paise per stream, totaling approximately Rs.1.41 crores from September 2016 to November 2017. Wynk issued Tips an demand draft for this sum.

Courts analysis and Decision

The Wynk vs. Tips case revolved around accusations of copyright infringement filed by Tips Industries against Wynk Music, a famous music streaming network operated by Bharti Airtel. Tips Industries claimed that Wynk Music was selling copyrighted music without legal licencing and demanded monetary damages for copyright infringement. The court had to decide whether Wynk Music was entitled to the benefits of a discounted compulsory licence under Section 31D.

The Copyright Act’s Section 31D addresses the statutory licencing of audio recordings and musical compositions for broadcasting organisations. It enables broadcasting organisations to make sound recordings and musical works available to the public for a charge without the need for specific licences from copyright holders. This provision aims to make it simpler for broadcasting organisations to use copyrighted music and sound recordings while additionally guaranteeing that copyright holders are fairly compensated.

The following are the key findings and major impact to the industry:

No Discounted obligatory Licences: The court ruled that online music streaming and downloading sites, such as Wynk Music, are not qualified for discounted obligatory licences under Section 31D of the Copyrights Act. Section 31D allows broadcasters to communicate copyrighted works to the public for a price without obtaining individual licences, but it excludes internet platforms from this benefit.
The importance of licencing agreements between music streaming companies and copyright owners was emphasised by the court. It was noted that Wynk Music had not obtained the required licences for the music it was offering, and hence could not benefit from Section 31D.
Copyright Protection for owners: The Bombay High Court’s decision strengthens the rights of copyright holders, such as record companies like Tips Industries. It states that online music platforms must secure adequate licences and are not permitted to use cheap compulsory licences to decrease their licencing expenses.
Compliance with Licencing Agreements: This judgement emphasises the significance of strict compliance with licencing agreements for music streaming companies. It serves as a reminder that platforms must follow legal standards and get licences in order to prevent claims of copyright infringement.
The decision may cause changes in the business models of streaming music services in India. Platforms may need to rethink their music acquisition and licencing policies, which could have an influence on their activities and price structures.

Written by: Shivanshi Singh

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5 Sep

The Bombay High Court at Goa grants bail to two accused convicted of kidnapping, based on the grounds of prolonged trial, lack of criminal precedents and no flight risk.

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The Bombay High Court at Goa grants bail to two accused convicted of kidnapping, based on the grounds of prolonged trial, lack of criminal precedents and no flight risk.

Title: Vijay and Anurag Kumar v. Police Inspector

Decided on: July 10, 2023

Citation: 2023 SCC OnLine Bom 1369

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa grants bail to two accused convicted of kidnapping for ransom, based on the grounds of prolonged duration of trial, lack of criminal precedents and flight risk.

Facts of the Case

This is an application for bail by each of the applicant for the offence registered vide FIR No. 18/2021 of Vasco Police Station. They have been charged with offences punishable under Sections 365, 364(A), 465, 471, 394, 120(B) read with Section 34 of IPC. The victim was kidnapped by the accused, who are 12 in number and was detained in a villa for ransom on pretext of providing visa to go to Canada. It is alleged by the victim that he was held as a hostage for ransom and was tortured. Due to alertness and smartness of the victim, an Afganistani national, who gave a clue to his fiancee, that the culprits could be apprehended.

Court Analysis and Judgement:

After taking into account the facts of the case, the Court considered the possibility of a long, stretched trial process. The Court said that the trial is likely to take a long time to conclude. The Court also found that the applicants did not appear to be flight risk and there were no criminal antecedents reported against them. Based on these grounds, the Court saw no reason to withhold their bail and granted both the applicants bail on a bond each costing rupees 25000.

Written by- Reema Nayak

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