Salman Khan Case deferred to July 1, 2015

While hearing the criminal appeal filed by Bollywood superstar Salman Khan against his conviction in the hit-and-run case in which he has been awarded a five-year jail sentence, Bombay High Court has adjourned the appeal till July 1.

EarlierSessions Court convicted the Bollywood superstar Salman Khan in the hit-and-run case five-year jail term. A man was killed and four others were wounded when the Salman Khan’s Toyota Land Cruiser ran over them while they were asleep on a pavement outside a bakery in suburban Bandra on September 28, 2002.

In the present Criminal Appeal, Salman Khan has challenged the findings of the trial court that he was drunk and was driving under the influence of liquor. Salman Khan pleaded that the trial court had wrongly convicted him under the culpable homicide charge, because he had no knowledge that he would meet with an accident.

In the appeal, Salman Khan has argued that the trial court had failed to appreciate the fact that four prosecution witnesses, including the investigating officer, had maintained that there were four persons present in the Toyota Land Cruiser when the accident took place and that it was the family driver Ashok Singh who was at the wheel.

Apart from being convicted of culpable homicide, Salman Khan was also found guilty of offences under Section 279 of Indian Penal Code (rash and negligent driving) and Sections 337 and 338 Indian Penal Code(causing hurt by acts endangering life or personal property of others), which prescribe six months’ jail.

Besides, he was sentenced to undergo jail for six months under sections 181 (driving without licence) and 185 (drink driving) of Motor Vehicles Act. Salman was also found guilty under Section 66 (a) and (b) of the Bombay Prohibition Act for which he received two months imprisonment and fine of Rs 500. All sentences will run concurrently.

When the present case was called for hearing, Salman Khan’s lawyer submitted before Justice A.R. Joshi of Bombay High Court that, the ‘paper book’ was not complete. ‘Paper Book’ is nothing but the compilation of evidence and documents, which is served to both the sides by the court. Court directed that, said task shall be expeditiously completed and deferred the matter till July 1, 2015.

Offshore investors cannot seek legal recourse for assured return investments

Bombay High Court, in the case filed by IDBI trusteeship Services, on behalf of FMO, against Hubtown as the guarantor, while upholding the Foreign Direct Investment (FDI) in real estate can be made only by way of equity and not debt by way of any fixed return, held that, offshore investors cannot seek legal recourse for their assured return investments in India. These assured return investments typically happen through structured quasi debt instruments.

The ruling, for sure, will force many current and future transactions involving FDI into real estate to go for major restructuring. Court has observed that the structure of the deal was devised to circumvent restrictions imposed by the FDI regulations. This verdict can severely impact several foreign investors and their investments in Indian real estate projects.

This latest judgment of Bombay High Court complicates an issue that has been a cause of endless disputes in the past, with some Indian promoters trying to wriggle out of their commitments under the pretext that the foreign partners cannot claim a fixed return. However, the dust had somewhat settled with the government as well as the Reserve Bank of India endorsing such deals. Under the circumstances, it remains to be seen how regulators would view the court verdict.

Custody of girl child should be kept with mother

Division bench of Bombay High Court (Nagpur Bench) comprising Justice Vasanti Naik and Anant Badar, while dismissing the appeal filed by a man, who challenged the family court’s order refusing to grant him his daughter’s custody in August 2013, said that, “the custody of a girl child should be allowed to remain with her mother so that she could be looked after properly.

Court further opined that, “considering the fact that the custody of a girl child should ordinarily be allowed to remain with the mother as she could be better looked after by her, the family court was rightly of the opinion that the husband was not entitled for her custody.

Court added that, “the husband is a teacher and competent to provide education to the girl child, but the wife is also no less competent. She is an educated, working with the Geology and Mining Department and holds a diploma in education and child development.”

While considering husband’s plea for seeking the daughter’s custody under Section 6 of Guardian and Wards Act, 1890, Nagpur Bench of Bombay High Court ruled that, “the family court has appreciated the evidence on record in the right perspective while holding that the custody of the child should be retained by the wife, especially when she is a girl. It also has rightly considered the judgment of Supreme Court and the High Court’s while refusing to grant the girl child’s custody to the husband.”

Mere possession of counterfeit notes can’t be termed as offence

Justice Anuja Prabhudessai of Bombay High Court while hearing an appeal filed by one Munshi Mohammed Shaikh challenging a sessions court order of October 2013, convicting him under sections 489 (b)and 489 (c) of Indian Penal Code for possession of counterfeit notes and sentencing him to five years in jail observed that mere possession of counterfeit notes cannot be termed as an offence and prosecution is required to prove that the person had knowledge that the notes were fake, the Bombay High Court has set aside the conviction and five year sentence awarded to a man.

Based on such observation, Bombay High Court has set aside the conviction and five year sentence awarded to Munshi Mohammed Shaikh. Court further observed that, mere possession of counterfeit notes cannot be termed as an offence and prosecution is required to prove that the person had knowledge that the notes were counterfeit. While considering the facts and circumstances of the case, court was of the opinion that the prosecution had not adduced any evidence to prove that the accused had knowledge or that he had reason to believe that the notes were counterfeit.

Court noted that, the evidence adduced by the prosecution does not indicate that the colour and texture of the notes were different or that the difference was so apparent that a mere look at the notes would convince a lay man that it was counterfeit. In the absence of any such evidence, it cannot be presumed that the accused had knowledge that the notes were counterfeit.

Quick Reference

Section 489 B: Using as genuine, forged or counterfeit currency notes or bank notes —Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency note or bank note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 489 C: Possession of forged or counterfeit currency notes or bank notes — Whoever has in his possession any forged or counterfeit currency note or bank note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Interim Stay on Release of Film ‘Phir Se’

Justice S C Gupte of Bombay High Court while hearing a suit filed by writer Jyoti Kapoor alleging copyright infringement and breach of confidence against Kohli and production house Bombay Film Company, found prima facie similarities between the script of ‘Phir Se’ and another movie ‘R.S.V.P’. Subsequently Bombay High Court has put an interim stay on the release of movie ‘Phir Se’. The movie ‘Phir Se’ is directed by Kunal Kohli.

Jyoti Kapoor in her petition contented that, in the year 2010, she had written a script for movie titled ‘R.S.V.P’ and registered it with the Film Writers Association and in 2013, and she met the director Kunal Kohli who showed an interest in her script. However, both of them could not arrive at an agreement following which Kapoor approached another production house which agreed to make her film.

Jyoti Kapoor, after coming across newspaper articles about Kunal Kohli launching a new film ‘Phir Se’, and realised that Kohli had used her screenplay, lodged a complaint with the FWA and Indian Motion Pictures Producers Association (IMPPA) and also issued a notice to Kohli, Subsequently, a Joint Dispute Settlement Committee of IMPPA issued notice to Kohli directing him to stop shooting of the movie ‘Phir Se’ till the matter is resolved.

Kohli however claimed that, the setting, the treatment and the climax of the film ‘Phir Se’ are completely different from ‘R.S.V.P.’. He further claimed that in the past, several movies have been made similar to ‘R.S.V.P’ and hence, Kapoor’s script was not novel. However, after perusing the script of both the movies, Court observed that the script of ‘R.S.V.P’ can be appropriately termed as ‘novel’ or ‘unique’.

Court further noted that, the essential elements of the screenplay of ‘R.S.V.P’ appear to have been used in the defendants’ film ‘Phir Se’. The bench, while granting an interim injunction on release of the movie observed that, the uncanny similarities of characteristics of the protagonists of the two films, the overall plot, the approach of society to their divorces, their quest for partners, their coming together only to develop doubts, later, then drifting apart and once again coming together makes an arguable case in favour of Kapoor.

Breaking: Every breach of promise to marry is not rape

Bombay High Court while hearing an application for anticipatory bail ruled that every breach of promise to marry is not rape and pre-marital sex between couples is no longer shocking in India’s big cities. Being a society in transition, it could be treated as one of the most significant verdict.

Complainant claimed that, she was pregnant with accused’s child, claimed that, despite promising to marry her, he had married another girl. Accused claimed the relationship was consensual, and they could not marry as they belonged to different religions. However, Court observed that, “Nowadays keeping (a) sexual relationship while having an affair or before marriage is not shocking as it was earlier. A couple may decide to experience sex. Today especially in metros like Mumbai and Pune, society is becoming more and more permissive.

Court further noted that, “unlike western countries, we have social taboo and are hesitant to accept free sexual relationship between unmarried couples or youngsters as their basic biological need; the court cannot be oblivious to a fact of changing behavioural norms and patterns between man and woman relationship in society.” Court opined that, “a major and educated girl was expected to know the demands of her body and the consequences of sexual relationships, and in a case it would have to be tested independently if her decision to have sex with a man was a conscious one or not?”

Court further said that, “today the law acknowledges live-in relationship(s). The law also acknowledges a woman’s right to have sex, a woman’s right to be a mother or a woman’s right to say no to motherhood. Thus, having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no straightjacket formula or any kind of labelling can be adopted.

Court said that, “a couple in love may be having sexual relationship and realize they are not compatible, and sometimes love between the parties is lost and their relationship dries gradually, then earlier physical contacts cannot be said as rape. A marriage cannot be imposed.” The court also pointed out that a couple may fall out of love and questioned if the physical relationship they had before could be termed as rape. However, Court opined that, if “an uneducated poor girl is being induced into a sexual relationship after promise of marriage or a man suppressing his first marriage to have sexual relations with a girl, then such an act will amount to rape under Section 376 of the Indian Penal Code.

While granting anticipatory bail to the accused, Court opined that, “the Complainant is an educated girl and it shows it was her conscious decision to keep sexual relations. Prima facie at this stage, possibility of non-committal, consensual relationship cannot be denied.” However, Court pointed that, in case the complainant chooses to have the baby, she could adopt legal proceedings against the accused to secure the child’s rights.

Supreme Court lifted the ban on sale and use of Hookah in smoking zones

A bench headed by justice Ranjan Gogoi of the Apex Court held that smoking prohibition only extended to public places and not spaces earmarked for smoking. In a landmark judgment, the Apex Court on Monday lifted a three-year-old ban on hookah smoking holding that prohibition on ‘facilitating’ Hookah smoking in strictly smoking spaces is impermissible in law.

However, the court said ashtrays, match sticks, lighters and other things designed to facilitate smoking are not to be provided in public places. The judgment came on three separate appeals filed against the decisions of the High Courts of Bombay, Gujarat and Madras in 2011. The order could have implications in Delhi also. Supreme Court while setting aside judgments passed by three High Courts struck down the ban on sale and use of hookahs in hotels, restaurants and even airports where smoking is otherwise legally permitted.

First appeal was against the Bombay High Court’s judgment which upheld the validity of an administrative circular issued in 2011 and opined that, smoking areas meant exclusively for the purpose and cannot have any “apparatus designed to facilitate smoking.” In the same year Gujarat High Court endorse a similar circular which prohibited hookah bars and hookah smoking in hotels and restaurants. Similarly, Madras High Court upheld a circular dated July 5, 2011 prohibiting owners of restaurants from providing tobacco to adults.

While delivering the judgment, apex court clarified the Rule 3 of the Prohibition of Smoking in Public Places Rules, 2008 and explained that it is incumbent for owners of a public place to ensure that no person smokes there. Court further opined that ban on hookah smoking in smoking areas is outside the purview of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003 or the Cigarettes Act.

Unfair dismissal: Supreme Court dismisses Appeal of Cimco Birla Ltd

Supreme Court while dismissing the appeal of Cimco Birla Ltdhas severely criticised the company for harassing a woman employee by “dragging her from one court to another from 1987 till date, nearly 27 years”, and imposed costs on it directing it to comply with the order within a month.

Upon hearing both the parties Court was of the view that the concluded lis between the parties with regard to the wrongful termination of the respondent from services in the earlier round of litigation and passing of an award of reinstatement with full back wages and continuity of service from the date of termination till the date of reinstatement since the said award was not deliberately implemented by the appellant, therefore, the respondent-workman rightly approached the Industrial Court by filing a complaint in the second round of litigation seeking for implementation of the same. The award passed in favour of the respondent by the Labour Court has attained finality, hence, the judgment and orders passed by the learned single Judge and the Division Bench of the High Court in not interfering with the order passed by the Industrial Court dated 16.4.2007 in the complaint filed by the respondent for implementation of the award by way of execution of the award do not call for interference by this Court in exercise of its appellate jurisdiction.

Over the years the management had lost in several forums including the Bombay High Court over the years, but it did not stop the litigation against her at any stage. Supreme Court, “in this process”, observed that, “the legitimate right of receiving monetary benefits was denied by taking untenable contentions, putting her and her family members to great hardship and mental agony.”

The labour court had found Cimco Birla guilty of unfair practice in dismissing Rowena Lewis. The industrial court had directed the company to pay her back wages and benefits with 12 per cent interest. While dismissing the appeal of Cimco Birla, the court imposed costs on it and directed it to comply with the order within a month.

While dismissing the present appeal, Court held that, the appellant-employer has been litigating and dragging the workman from one court to another from 1987 till date which is nearly about 27 years. In this process the legitimate right of receiving the monetary benefits awarded in favour of the respondent is being denied by the appellant by taking untenable contentions thereby the respondent and her family members have been put to great hardship and mental agony. Therefore, it is a fit case for awarding the costs towards engaging the lawyers and hardship which has been facing by the workman from 1987.

Steamer agent to pay demurrage and port charges

If the consignee of a shipment does not take delivery of the cargo, then the liability to pay demurrage and port charges for warehousing will fall on the agent of the ship owner or the steamer agent. The Supreme Court clarified this position last week in a batch of appeals against Bombay and Calcutta High Court judgments in the case, Forbes Campbell & Co v. Board of Trustees.

Supreme Court in Forbes Campbell & Co v. Board of Trustees clarified that when the consignee of a shipment does not take delivery of the cargo the liability to pay demurrage and port charges for warehousing will fall on the agent of the ship owner or the steamer agent.

In one typical case, the consignee of the goods did not clear it nor responded to any of the notices issued by the port authorities. Therefore, authorities sold the goods by public auction after a few years. Normally, the amount due is recovered from the sale by auction. But in these cases, the amounts fetched fell short of the total charges payable, leading to litigation. The port authorities filed a suit against the steamer agent for the balance amount. However, he suit was dismissed.

Port authorities appealed to the High Court, which subsequently held that the steamer agent was liable to the amounts fetched fell short of the total charges payable. The agents moved the Supreme Court arguing that under the provisions of the Major Port Trust Act and the bylaws no liability is cast either on the ship owner or his agent for payment of demurrage and port charges. The Supreme Court rejected this contention and dismissed the appeals.

Bombay High Court orders the doctors to release the detained patients

Sai Manoj Reddy

There is a petition filed at the Bombay high court by Mr. Sanjay Prajapati stating that his brother was detained by seven hills hospital and this case was heard by the division bench of Justice V.M. Kanade and P.D. Kode. Mr. Sanjay Prajapati’s brother was admitted in the seven hills hospital, andheri, after having a head injury. He was treated and operated and the bill was given as Rs. 4.56 lakhs and Mr. Prajapati deposited a sum of amount 2.76 lakhs and he should pay 1.8 lakhs more according to the bill. Prajapati later wrote to the CEO of the hospital alleging improper treatment and bogus billings, but got no response. Finding no improvement in his brother’s condition, he decided to shift him elsewhere, but the hospital refused to discharge the patient till the disputed bills were cleared. Then Mr. Prajapati filed a petition in the Bombay High Court. According to the petition, the visiting fee was charged even when the surgeon was on leave. The staff also behaved badly with them as they were poor. The petitioner also said that he was charged additional 1 lakh rupees for the sugar tests and others even the patient is not a diabetic and daily physiotherapy charges are also added even there is no such thing happened. The petitioner has urged the Court to issue direction to MIDC Police, Andheri (East) to take action against the Hospital authorities for the detention and allow him to admit his brother to a suitable hospital.

Then the Bombay high court on august 21 asked the medical council of India to inform whether it can frame the rules to have control over the hospitals in the cases where patients are detained and bodies are not released by the hospitals. The high court turned the petition as public interest litigation in order to decide on a mechanism to help the hospitals in recovering their dues and prevent them from resorting to practises such as detaining patients or keeping back bodies for non-payment of bills. To the request of the High Court MCI said that it has control over doctors but not over the hospitals.

The Association of Medical Consultants and Hospitals, which has 8,000 specialist doctors and 1,500 hospitals under its fold, opined that detaining patients or not releasing bodies due to non-payment of bills was an unfair practice. Counsel for the Association Rui Rodrigues said some foreign countries have a Debt Recovery Act which has a provision of Medical Insurance wherein hospitals can recover their legitimate dues. Such a provision can also be made in India in accordance with the laws of this country, he said. Rodrigues said that both the doctors and the hospitals do not want to detain patients in case of non-payment of dues and a mechanism needs to be worked out to strike a balance between the needs of patients and recovery of medical bills.

On considering all the above things Bombay High Court observed that hospitals are running like shops now a days and doctors have forgotten their duty. There is over commercialisation of hospitals in India. The Courts throughout the country have been taking a serious note of such instances and making an attempt to ensure health services for everybody in the country, whether rich or poor.

On the above issue justice Manmohan observed that, “just because someone is poor the state can’t allow them to die. In fact government is bound to ensure that poor and vulnerable sections of the society have access to the treatment to the rare and chronic diseases. After all health is not a luxury and should not be the sole possession of a few privileged people.