#bombayhighcourt Archives - Page 3 of 12

9 Jan

Bombay High court passes judgement through video conference, considering petitioner’s unique circumstance.

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Case Title: Ashwini Kumar Sharma Mansotra vs State Of Maharashtra And Anr

Case No: WP ST. NO. 134 OF 2024

Decided on: 08.01.2024

CORAM: Hon’ble Ms. Justice Karnik

Facts of the Case

The present Writ Petition is filed being aggrieved by an order dated 30/10/2023, passed by the Special Court for CBI.

Accused in a CBI case pending since 2013, the petitioner, due to a recent accident, is bedridden and suffers memory issues related to his brain injury. As his health impedes travel, he opposes the court’s directive to visit AIMS Hospital in Delhi for a medical assessment. Instead, he proposes recording his evidence remotely through video conferencing available at the Mumbai court. Recognizing jurisdictional limitations, the High Court urges the Panipat Principal District Judge to consider allowing video conferencing for the petitioner’s evidence recording in Mumbai. The Mumbai court will inform Panipat of the scheduled date. The AIMS Hospital visit is deemed unnecessary and the order is quashed. The petitioner’s lawyer can be present during the remote evidence recording. With these conditions, the petition is granted. Section 313 statement has been recorded through video conferencing and now the case is posted for judgment.

Legal provisions

Section 353 of CrPC –

This section details the pronouncement of judgments in criminal trials. It states that judgments must be announced in open court by the presiding officer, either through full reading, reading only the operative part and explaining the rest in understandable language, or delivering the entire judgment.

This section emphasizes transparency and accessibility of judgments for all parties involved.

Issue

Whether a judgment can be pronounced remotely through video conferencing, even though Section 353 of the CrPC mandates the accused’s physical presence?

Court Decision and analysis

Chapter XXVII of the CrPC, covering judgments, in response to the petitioner’s absence, the trial court issued a non-bailable warrant.

While the accused is normally expected to be present in court for judgment, considering the petitioner’s unique circumstances, the court allowed him to attend through video conferencing.

Reasons for this exception:

The petitioner has an 83% physical disability and has consistently attended previous hearings remotely since 2010.
Medical evidence supports his limited mobility.
He promises to abide by any judgment and offers no risk of absconding.

Conditions for remote attendance:

The petitioner’s son will arrange his video conference presence at the Panipat District Court.
CBI officers escorting him will ensure no tampering.
The petitioner accepts any potential consequences of the judgment.

This decision prioritized justice over technical requirements, recognizing the individual’s situation while upholding legal procedures.

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Written by- Bhawana Bahety

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20 Dec

In a case where the offence is charged in both POCSO and SCST Act, The jurisdiction to try the offence lie with POCSO : Bombay HC

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TITLE : Aniket v State of Maharashtra

CORAM : Hon’ble justice Mangesh S Patil, Hon’ble Justice Smt. Vibha Kankanwadi and Hon’ble Justice R.G Avachatt

DATE : 19^th December, 2023

CITATION : Criminal Application no 2173 of 2023

FACTS

A crime was registered against Aniket, petitioner for offences punishable under Section 363, 376 and 376(3) of IPC and Sections 3 and 4 of the POCSO Act. Additionally, Section 3 of the SCST (Prevention of Atrocities) Act, 1989 came to be invoked. He appeared in front of Section 483 of CrPC was turned down by sessions judge. He appealed in front of this court under the same section. The mother of the victim raised objections as to maintainability of the said application. According to her, in view of Section 14-A(2) of the S.C & ST act, remedy of appeal under special court is already provided and thus is not maintainable.

LAWS INVOLVED

Section 14-A(2) states that of the SCST Act states that :

Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.

Section 483 of CrPC states that :

Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates. Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates.

Section 42-A of the POCSO Act states that If there is any law or act in derogation with POCSO Act, it will subside as POCSO Act has overriding effect on the provisions of any such law to the extent of inconsistency.

Section 28(2) While trying an offence under this Act, a Special Court shall also try an offence {other than the offence referred to in sub-section (j), with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.

ISSUES

Whether interpretation that Section 42-A of POCSO Act shall prevail over Section 14-A of Atrocities Act, in the matter of grant or refusal of bail, would result into abrogating right of victim, to prefer an appeal under Section 14-A of Atrocities Act against grant of bail to accused ?

JUDGEMENT

The court held that Special court constituted under POCSO Act has jurisdiction to try offences under any other Act including SCST Act. The reverse is not the same, by virtue of Section 42-A of POCSO Act as SCST act being inconsistent with Section 28(2) of the POCSO Act.

The court stated that :

“We fail to understand as to why the provision, “Notwithstanding anything contained in sub-section (3) of Section 378 of the Criminal Procedure Code, 1973” has been prefixed to the further provision of sub-section (2) of Section 14-A.”

In a case wherein the accused is charged with offences under both, S.C. & S.T. Act and POCSO Act, the jurisdiction to try the said offence would exclusively be with a Special Court constituted under Section 28 of the POCSO Act.

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Written by- Sanjana Ravichandran

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16 Dec

Bombay HC held appeal not maintainable because it did not fulfill the provisions of the Commercial Courts Act

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TITLE : Bank of India V Maruti Civil Works

CITATION : Appeal Form Order No. 362 of 2021

CORAM : Hon’ble chief justice Devendra Kumar Upadhyaya And Hon’ble justice Arif S, Doctor.

DATE: 15^th December, 2023

INTRODUCTION :

The appeal was filed under 13(1A) of the Commercial courts Act, 2015 to challenge the order passed by the District Judge. The current appeal is filed under Order VII Rule 10 and Rule 11(d) of the Code of Civil Procedure, 1908.

FACTS :

the plaintiff is a partnership firm engaged in the business of builders and contractors since 1987. It was alleged that the Defendants fraudulently invoked the measures under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to grab the property of the partner of the Plaintiff.

The question that was in consideration for the court is the maintainability of the appeal before the division bench keeping in view the proviso appended to Section 13(1) of the Act of 2015 which provides that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court which are enumerated specifically under Order XLIII of the CPC and Section 37 of the Arbitration and Conciliation Act, 1996.

COURT’S ANALYSIS

The court analysed between the amended and unamended Section 13 of the Act and held that earlier, an appeal was provided against a “decision” of a Commercial Court or Commercial Division of a High Court to the Commercial Division of that High Court, whereas, after the amendment the expression “decision” has been substituted by the expression “judgment or order”.

Sub Section 1A of Section 13 provides that a person aggrieved by a judgment or order can file an appeal. The court thus held that an appeal under Section 13(1A) of the Act of 2015 would lie only against the judgment and orders which are enumerated or enlisted under Order XLIII of the CPC. An order rejecting an Application moved under Order VII Rule 10 or Order VII Rule 11(d) of the CPC is not enumerated or enlisted in Order XLIII of the CPC is snot appealable.

Written by- Sanjana Ravichandran

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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.

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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