ORDERS/JUDGEMENTS1. UAPA Accused In Custody Since 3 Yrs, Only One Of 54 Witnesses Examined: Calcutta High Court Grants BailCase Title: In the matter of : Sk. Rejaul @ Kiran @ RutuCitation: 2023 LiveLaw (Cal) 6The Calcutta High Court granted bail to an accused in a case registered under the Unlawful Activities (Prevention) Act after observing that there has been an inordinate delay in...
ORDERS/JUDGEMENTS
Case Title: In the matter of : Sk. Rejaul @ Kiran @ Rutu
Citation: 2023 LiveLaw (Cal) 6
The Calcutta High Court granted bail to an accused in a case registered under the Unlawful Activities (Prevention) Act after observing that there has been an inordinate delay in conclusion of the trial, thereby infringing upon the accused's fundamental rights.
A division bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta took into consideration that the accused had spent three years in custody and that there is no certainty as to when the trial would conclude.
Case Title: Subhas Yadav v. The State of West Bengal and Other related petitions
Citation: 2023 LiveLaw (Cal) 15
The Calcutta High Court at circuit bench Jalpaiguri held that an accused who is under detention under provisions of NDPS Act (the Act), cannot be released automatically on statutory bail on the expiry of 180 days which is prescribed under section 36A(4) of the Act until and unless he makes an application either in written or oral form.
A Full bench comprising Justices Joymalya Bagchi, Suvra Ghosh and Krishna Rao observed that if an accused fails to apply for statutory bail either in written or even oral form, his right does not crystallize and the Court is empowered to remand him to custody under section 167(2) Cr.P.C. read with section 36A(4) of NDPS Act.
Case Title: Nanda Samanta @ Nanda Lal Samanta & Anr v. State of West Bengal
Citation: 2023 LiveLaw (Cal) 21
Setting aside the order of conviction and sentence against all accused in a culpable homicide case on the ground that one of the accused's statement under Section 313 of the CrPC had not been recorded, the Calcutta High Court remitted the matter back to the trial court.
A division bench of Justice Debangsu Basak and Justice Shabbar Rashidi adopted the procedure followed by the Supreme Court in Nar Singh vs. State of Haryana where the apex court had remitted the matter for recording the statement of the accused under Section 313.
Case Title: Shipra Dey v. The State of West Bengal & Ors
Case Citation: 2023 LiveLaw (Cal) 23
While adjudicating upon an alleged custodial death case, the Calcutta High Court recently ruled that the concerned police authorities had violated Article 21 of the Constitution by not abiding by the guidelines laid down by the Supreme Court in Lalita Kumari vs. State of Uttar Pradesh (2014) as well as provisions of the Code of Criminal Procedure (CrPC).
Accordingly, the Court ordered the concerned Magistrate to conduct an inquiry under Section 202 of the CrPC into the custodial death case. In the instant case, the deceased was called to the police station without serving him any notice, which, the court termed to be a violation of the Supreme Court's guidelines in the case of Lalita Kumar (supra).
Case Title: Julficar Sardar v. The State of West Bengal & Ors.
Case Citation: 2023 LiveLaw (Cal) 25
The Calcutta High Court upheld an order disallowing an accused from rejoining his post as a 'Home Guard' by underscoring that a volunteer of a disciplined force is required to have a clean antecedent with regard to his character.
In this case, the appellant was not allowed to join his service as a Home Guard on the ground that he was in judicial custody for 84 days after being implicated in a criminal case for the offence of murder under Section 302 of the IPC arising out of a family dispute. He had been deployed as a Home Guard prior to the initiation of the criminal proceedings.
Case Title: Shahbaz Ismail @ Shahbaz @ Md. Jamal v. The State of West Bengal
Case Citation: 2023 LiveLaw (Cal) 26
The Calcutta High Court upheld the life sentence awarded to a Pakistani national belonging to terrorist organization Al-Badar, who was found to have entered Indian territory illegally through Bangladesh and was proceeding to Srinagar, Jammu & Kashmir for the purpose of carrying out terrorist activities.
The convict was arrested by the Special Task Force (STF), Kolkata on March 19, 2009, after being intercepted and was found to be in possession of explosive substances and forged driving license and Voter ID card.
Case Title: Prasanta Bhatta v. Abdul Sk
Case Citation: 2023 LiveLaw (Cal) 30
Opining that the rights of a party should not be prejudiced due to an inadvertent mistake made by the advocate representing the party, the Calcutta High Court set aside an order of acquittal for the offence of dishonour of cheque under Section 138 of the Negotiable Instruments Act.
Justice Ananya Bandyopadhyay observed,
“A mistake on the part of the learned advocate representing any party beyond his/her knowledge should not act as a prejudice against his/her rights and contentions.”
Case Title: Rabi Saha @ Sarkar v. State of West Bengal
Case Citation: 2023 LiveLaw (Cal) 32
The Calcutta High Court has recently held that removing a minor victim's pants after she refused to do so herself amounts to an attempt to commit the offence of rape.
The Court was adjudicating upon an appeal passed against a trial court order convicting the appellant under Section 376 (punishment for the offence of rape) read with Section 511 (punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment) of the Indian Penal Code (IPC).
Case Title: HDFC Bank Limited v. The State of West Bengal and Anr
Case Citation: 2023 LiveLaw (Cal) 42
The Calcutta High Court quashed the criminal proceedings registered under Section 392 of IPC against HDFC Bank for taking repossession of the vehicle of the borrower by the financer-HDFC.
While quashing the criminal proceedings, the single judge bench of Justice Siddhartha Roy Chowdhury held:
“The lender or financer took repossession of the vehicle, pursuant to the agreement executed by and between the parties, it cannot be said that the lender committed offence within the meaning of I.P.C. with the requisite mens rea and dishonest intention. At best it could be a civil dispute which has been imbibed with the colour of criminality.”
Case Title: Dr. Raunak Hajari & Anr. v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 50
The Calcutta High Court has refused to quash the criminal proceedings initiated against a medical professional (Resident Medical Officer (RMO)) under Section 377 of IPC for allegedly forcing anal intercourse on a 1st year medical student at the hospital of his residency.
While the medical examination of the complainant-victim did not evidence complete anal intercourse, the single judge bench of Justice Shampa Dutt (Paul) observed "penetration, however little is an offence".
Case Title: Binod Banik v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 52
The Calcutta High Court recently acquitted a person, convicted by trial court for the offence of rape, on the ground that the victim being fully grown up lady voluntarily consented to having sexual intercourse with the accused and it cannot be said to be a case of consent under misconception due to false promise of marriage.
The division bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta observed:
“No doubt it is morally reprehensible for the appellant to desert the victim lady with whom he had entered into an informal marriage after she had become pregnant. But moral indignation cannot take the place of legal proof that the cohabitation of the parties was on the basis of a dishonest representation of the appellant...The circumstances clearly indicate that the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was in love, not because he promised to marry her, but because she also desired it.”
Case Title: Susma Kumari v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 55
The Calcutta High Court has restored the rape case filed against a man who, after being in a relationship with the complainant for about six years, married another woman during the subsistence of such relationship and hid this fact from the complainant.
Justice Rai Chattopadhyay observed:
"The most relevant is the accused person to have suppressed the said facts from the defactocomplainant. These materials are sufficient to find prima facie that the accused might had a guilty mind or culpable intent to procure complainant's consent to sexual acts by misrepresentation and induced her to misconceive about his intent to sexually exploit her and not to have any serious thoughts for their relationship."
13. Calcutta High Court Grants Bail To Accused Under NDPS Act Citing Non-Compliance Of S.41B CrPC
Case Title: Md. Mirmoizuddin Rahaman & Anr. v. State
Citation: 2023 LiveLaw (Cal) 63
The Calcutta High Court recently granted bail to two accused persons in a NDPS case on the grounds that Section 41B of CrPC was not complied with, there were discrepancies in the documents of seizure.
While allowing the bail application of the accused persons the division bench of Justice Sabyasachi Bhattacharyya and Justice Rai Chattopadhyay held:
“The provisions of Section 41B of the Code of Criminal Procedure have to be complied with and that there cannot be any discrepancy inherent in the seizure list in order to raise a proper presumption under Section 37 of the N.D.P.S. Act, we are of the opinion that the petitioners are entitled to bail.”
Case Title: The State of West Bengal v. Sahadeb Barman & Ors. with related criminal appeal
Citation: 2023 LiveLaw (Cal) 66
The Calcutta High Court at Jalpaiguri recently commuted the death sentence awarded by the trial court to the convicts in a triple-murder case, to life imprisonment without remission for a period of 30 years,.
A division bench of Justice Joymalya Bagchi and Justice Subhendu Samanta observed:
“Presence of mitigating factors like lack of criminal antecedents play an important role to opt for a more humanistic approach of imposition of life imprisonment without remission. Appellants are first time offenders. Though the three persons have been murdered, evidence on record do not show appellants had come to the spot armed or the murders were pre-planned.”
15. Calcutta High Court Refuses To Quash Rape Case Against Man Accused Of Raping 15-Yr-Old In 2016
Case Title: BB v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 71
The Calcutta High Court has refused to quash a POCSO case against a man who is accused of raping a minor girl in 2016. The accused and the victim - who is now a major, are stated to have been in love when the alleged incident took place.
The single judge bench of Justice Shampa Dutt (Paul) observed:
“The fact of them (accused and victim) being married to other persons does not lessen the offence alleged, considering the prima facie materials on record.”
Case Title: Kamal Ghosh & Anr. v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 76
The Calcutta High Court held that under Section 167(5) of CrPC, there cannot be an automatic order issued by a magistrate, without anything else, to stop further investigation on expiry of six months from the date of arrest.
The single judge bench of Sugato Majumdar observed:
“Section 167 (5) of CrPC unequivocally states that the Magistrate can stop investigation on contingency that the Investigating Officer has failed to satisfy the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. There cannot be any automatic order without anything else on expiry of a period of six months from the date of arrest.”
Case Title: State of West Bengal v. Sovan Sarkar
Citation: 2023 LiveLaw (Cal) 78
The Calcutta High Court commuted a death row prisoner's sentence to life imprisonment till natural life without remission. The man last year was awarded a death sentence by the trial court for murdering his parents.
The division bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi said:
“The Constitutional Court can award a life sentence without any remission. This aspect has to be considered in light of the report of Pavlov Hospital taken note of by the learned Trial Judge where, such hospital had done psychometric assessment of the convict by clinical psychologist who reported that there was a possibility of the convict committing future crime and becoming a danger to the society.”
Case Title: Anirudha Halder & Anr. v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 86
The Calcutta High Court directed the State Government to release two life convicts who were languishing in jail for 18 years, on premature release, after the same was denied by the government on the ground that it did not receive the opinion of the Presiding Judge of the court before or by which the conviction was held.
The single judge bench of Justice Bibek Chaudhuri observed that under Section 432(2) CrPC, opinion of Presiding Judge of the court before or by which the conviction was held or confirmed is necessary. Since the same was absent in this case, the High Court perused the judgment itself and said,
“On perusal of the judgment passed by this Court in appeal it is found that the entire case was based on circumstantial evidence. The petitioners are presently aged about 73 years and 84 years respectively. There is no reason in favour of petitioners' prayer for refusal of premature release. At the fag end of life they will get mental peace if they are allowed to lead last few years of their life with their family members.”
Case Title: Sunil Bharti Mittal & Anr. v. State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 95
The Calcutta High Court quashed criminal proceedings in a private complaint alleging offences under Sections 465 and 468 of IPC against Bharti Enterprises Chairman Sunil Bharti Mittal and another senior company official on the ground that allegations made in the complaint do not disclose any prosecutable case against them.
Justice Rai Chattopadhyay said the complainant has not been able to project in his written complaint any prima facie material against the petitioners.
Case Title: Jafar Ali v. State of West Bengal
Citation: 2023 LiveLaw (Cal) 101
The Calcutta High Court directed all the Superintendents of Police and Commissioners of Police in West Bengal to ensure that the police officers diligently fill in all the columns in the respective memo of arrests by stating the actual situation.
The division bench of Justice Shampa Dutt (Paul) and Justice Rajarshi Bharadwaj further directed:
“The concerned SPs and CPs will take up the matter in the monthly crime conference and will supervise these cases seriously and also take all updates in such cases on regular basis. The matter be also brought to the notice of Director General of Police, West Bengal, who shall issue appropriate directions as per our observations in this order.”
Case Title: The State of West Bengal v. Nandita Saha @ Mou & Anr.
Citation: 2023 LiveLaw (Cal) 102
The Calcutta High Court commuted the death sentence awarded to a convict by the trial court in a double murder case to life imprisonment without remission for a period of 40 years from the date of commission of offence.
The division bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi observed:
“In the facts of the present case, the state has neither at the stage of the trial nor before us in appeal provided any materials to show that the convict was beyond reformation and rehabilitation. Failure of the state to provide such information has been held in 2011 volume 13 Supreme Court Cases 706 (Rajesh Kumar versus State) to be a mitigating circumstance.”
Case Title: Manogya Loiwal v The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 108
Staying an FIR filed against a TV journalist for giving an alleged "provocative speech", the Calcutta High Court said that the media is an equally vital pillar of a democracy which cannot be curtailed or intimidated.
Justice Rajasekhar Mantha said the court is prima facie satisfied that the registration of the FIR against the journalist Manogya Loiwal is seriously questionable.
"The media is the fourth and an equally vital pillar of any democracy. The Fourth Estate cannot be curtailed or intimidated. The prima facie illegal FIR will hang as a sword of damocles on the petitioner and may prevent her from pursuing her work."
Case Title: Idrish Ansary v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 110
The Calcutta High Court set aside the conviction of an accused under Section 302 of IPC on the ground that the verdict was based on the alleged written confession made by the accused before the police while in custody.
The division bench of Justice Joymalya Bagchi and Justice Partha Sarathi Sen noted:
“Since PW7 is a police official, such writing which according to the prosecution is a confession of the present appellant is not admissible in the eye of law and therefore the learned trial court while passing the impugned judgement ought to have discarded the oral testimony made by PW7 and in course of trial, the said trial court ought not to have admit the alleged written confessional statement of the present appellant into evidence by marking the same as Exhibit. It may be relevant to emphasize merely because the purported confession was in writing it would not escape the exclusion clause engrafted in Section 25 of the Evidence Act.”
Case Title: Sk. Farid @ Fariduddin v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 113
The Calcutta High Court upheld an order of cancellation of bail passed by the Sessions Court on the ground that the accused supressed the fact before the Sessions Court that his earlier bail prayer was turned down by the High Court.
The single judge bench comprising Justice Subhendu Samanta observed:
“The power of granting bail u/s 439 Cr.P.C. is within the concurrent jurisdiction of High Court and Court of Sessions. Thus, to maintain the judicial discipline as well as to avoid difference of finding of opinion, the applicant is duty bound to mentioned whether his earlier bail prayer was either pending or rejected by the High Court or not. Its solemn authority of the Sessions Judge, to consider the bail prayer of an accused u/s 439 Cr.P.C. independently. At the same time the applicant has to inform the Learned Sessions Judge, regarding the fate of his earlier application of bail.”
Case Title: Parimal Sarkar v. State of West Bengal
Citation: 2023 LiveLaw (Cal) 118
The Calcutta High Court recently set aside the conviction of a murder accused on the ground that the dying declaration was doubtful.
The division bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta noted:
“Dying declaration can be the sole basis of conviction provided the same is consistent. When the contents of the dying declaration as per the prosecution witnesses are at variance to one another vis-a-vis the role of the appellant, it would be hazardous to rely on such evidence to come to a finding of guilt against him
Case Title: Farmuj Ali @ Farmiz Ali v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 126
The Calcutta High Court set aside the conviction under Section 376 of IPC of a rape accused, on the ground that physical relationship between the appellant and the victim was consensual and the age of the victim was not conclusively established by the prosecution before the Trial Court.
While setting aside the conviction of the appellant-accused, the division bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi observed:
“Evidence of P.W.1, the victim, establishes a relationship between her and the appellant. It is plausible to take a view that the physical relationship which developed between the appellant and the victim, was consensual in nature. Age of the victim was not conclusively established. We are not in a position to conclusively say that the appellant entered into a physical relationship with a minor.”
27. Calcutta High Court Orders State To Pay Rs 7 Lakh Compensation To Trafficking And Rape Victim
Case Title: X v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 127
The Calcutta High Court recently directed the West Bengal government to pay a compensation of Rs. 7 Lakh to a minor victim of trafficking and rape.
The single judge bench of Justice Moushumi Bhattacharya observed that the victim cannot be asked to wait until the funds are sanctioned by the State Government and reach the Judicial Department.
Case Title: Gobinda Bag (Buro) v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 128
The Calcutta High Court has set aside the conviction of an accused in a case under POCSO Act on the ground that the prosecution failed to prove the 'sexual intent' being involved in the act of the accused as referred under Section 11 of the Act.
The single judge bench of Justice Tirthankar Ghosh observed:
“In cases under the POCSO Act and related offences the statement of the victim assumes importance. Considering the evidence of the victim which lays the foundational facts of this case, I am unable to satisfy myself as to whether any case is made out from the touch or physical contact which would attract the basis of “sexual intent” as is referred to in the explanation to Section 11 of the POCSO Act and also elaborated by the judgment of [Attorney General for India –Vs. – Satish & Anr]”.
Case: Prakash Shaw v. State of West Bengal
Citation: 2023 LiveLaw (Cal) 171
The Calcutta High Court has recently upheld the conviction of a boy who allegedly “pawed” at a minor girl while she was accompanied by her mother in a public area. A single-judge bench of Justice Siddhartha Roy Chowdhury upheld the conviction on the basis on the minor's testimony and noted that non-examination of the victim by the Police would be of no consequence in such circumstances.
The bench was hearing an appeal against conviction. It was submitted by the respondents that while the both of them were walking back home from a marketplace in Howrah, the minor was assaulted by a boy approaching them from the opposite side.
In upholding the conviction, the Bench noted, “The testimony indicates that after the boy touched her breast, he was nabbed by her as well as her mother and he was slapped. The place was crowded and soon after the incident police arrived there. The accused person did not utter anything indicating his lack of intention to commit offence."
Case: Shree Gopal Tantia @ Gopal Prasad Tantia Vs. The State of West Bengal & another
Citation: 2023 LiveLaw (Cal) 173
The Calcutta High Court recently allowed a petition seeking revision of a Trial Court order which initiated criminal proceedings against the director of “GPT Infra Projects Limited”, finding no privity of contract with the complainant M/s Vinayak Construction.
A single-bench of Justice Bibhas Ranjan De observed that Vinayak Construction was hired by B2R, a partnership firm, to complete a portion of certain contract work for GPT Infra. As per the complaint, the persons employed by Vinayak Construction to oversee the work misappropriated the payments in conspiracy with B2R and GPT Infra.
The bench noted that the entire complaint filed by Vinayak Constructions under 156(3) CrPC was against B2R and their own agents, and only in the last part of the complaint does it allege any illegality on part of GPT.
There being no privity of contract, the director of GPT Infra was discharged from any criminal proceedings against him.
Case: Dipak Kumar Mondal & Ors. v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 177
The Calcutta High Court recently dismissed a criminal application for modification of Judgement, and held that no judgement or final order pronounced by a Court can be altered or reviewed, once it has been signed, except to correct a clerical or arithmetic error.
Relying on Section 362 of CrPC, a single-judge bench of Justice Bibek Chaudhuri held:
“The above provision is abundantly clear that a clerical or arithmetical error can only be corrected after pronouncing of a judgment. Once judgment is pronounced, even the High Court has no jurisdiction to entertain application for grant of permission to compound the offence. In view of the clear provision of Section 362, the High Court has no jurisdiction under Section 482 of the Code of Criminal Procedure to alter the earlier judgment after it has been signed. No criminal court can review its own judgment after it is signed. It is an accepted principle of law that when a matter has been finally disposed of by a Court, the court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent.”
Case: Naju Bibi @ Narjina Bibi v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 179
The Calcutta High Court recently suspended the sentence of a woman who was sentenced to life imprisonment by the trial court for killing her six-year-old step daughter with poison.
Taking note of the fact that the woman has already spent over six years in prison and that her appeal against conviction is still pending, a division-bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray said this is not a case where it could be said that she has absolutely no chance of succeeding in her appeal.
"Since the appeal is pending, her conviction has not attained finality. She has spent about six and a half years in incarceration. Nobody can say with any certainty when the appeal will be finally decided. If the appeal succeeds at whatever future point of time, indeed, no one will be able to compensate the applicant for the time lost in jail by reason of conviction for a crime that she has not committed," said the court.
Case: Shreekant Sharma Vs. The State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 195
The Calcutta High Court has refused to quash the criminal proceedings under the Protection of Children from Sexual Offences Act (“POCSO Act”) initiated by a minor girl against her grand-uncle, a priest, accusing him of committing various acts of sexual assault upon her, when she was 15-16 years old.
In refuting the contentions raised by the petitioners, including the delay in filing of FIR, a single-judge bench of Justice Bibek Chaudhuri noted that the social stigmatisation of rape and sexual assault survivors often leads to them being unable to report such crimes, and held:
“There are a plethora of reasons why victims of sexual assault do not come forward with allegations. Firstly, they are discouraged from filing F.I.R. and are not believed by the authorities. This is coupled with the social stigma that a woman and her family face from society when such an act is committed against her. More importantly, sexual harassment and rapes are crimes which can cause lifelong trauma to the victims and it is impossible to mathematically calculate or prescribe a time limit as to when a person would recover and would be comfortable with filing a complaint.
Case: Sushil Kr. Gupta v The State of West Bengal & connected applications
Citation: 2023 LiveLaw (Cal) 207
The Calcutta High Court has refused to quash three separate criminal proceedings initiated under Sections 272/273 (Adulteration of food or drink intended for sale), 420 (Cheating) and 120B (Criminal Conspiracy) of IPC, against manufactures of allegedly spurious food items.
In refuting the petitioner's argument that the provisions under the Food Safety and Standard Act 2006 (“FSSAI Act”) impliedly debar the police from being able to conduct their own investigation into instances of food adulteration under the IPC, a single bench of Justice Subhendu Samanta held:
“The police is not specifically debarred to conduct investigation over the offence mentioned in Section 272/273 of IPC. It is true the police not being Food Safety Officer under FSS Act 2006 are not empowered to investigate into the offences mentioned specially in FSS Act. But nothing can debar police to investigate an offence punishable under IPC. The argument of implied repeal of Section 272/273 IPC appears to me not satisfactory or justified. Considering the same I am of a clear view that though a separate, specific, distinct procedure has been laid down in FSS Act 2006 to initiate/launch a proceeding against the offender of Food Laws that does not ipso facto debar the police to initiate/register a case u/s 272 or 273 of IPC. Thus in my view the investigation conducted by the police according to the provisions of Cr.P.C for the offence punishable u/s 272/273 IPC is maintainable.”
Case: Raja Paul & Ors. v State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 213
The Calcutta High Court recently quashed the criminal proceedings initiated against officials of the Eastern Coalfields, who had, in accordance with directions of the Court, undertaken a raid to crack down on the “terror and running of parallel administration of illegal [coal] mining within the Eastern Coalfield area in Burdwan.”
Eastern Coalfields Limited is a subsidiary of Coal India Limited and is a government company.
A single-bench of Justice Bibhas Ranjan De held:
Raid by the officials of Eastern Coalfield Ltd. by virtue of repeated directions of this Hon'ble Court cannot be said to be an illegal in any way. Therefore, the allegation made in the F.I.R in my opinion, is absurd and cannot be believable that security officers of Eastern Coalfield committed the offence of theft and outrage of modesty. After careful perusal of the all documents produced before this court, I have no hesitation to exercise jurisdiction under section 482 CrPC…in coming to the conclusion that proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice.
Case: Bithika Sil v. Kartick Paik & Ors.
Citation: 2023 LiveLaw (Cal) 217
The Calcutta High Court recently took exception to a Sessions Court order solely relying on prosecutor's failure to raise objections to grant of bail to accused in a case of grievous hurt and rejecting the complainant's plea for cancellation of bail, without calling for an injury report.
A single bench of Justice Shampa (Dutt) Paul held:
It is unfortunate that considering the nature of offences alleged, the Court relied upon the submission of the APP, without calling for the injury report. It is the duty of the Court to ensure justice and not rely totally on the submission of either party. Though at that stage there has been prima facie abuse of the process of law/Court before the Trial Court as discussed, but considering the present circumstances, this Court is not inclined to grant the relief prayed for at this stage in the interest of justice.
Case: Debarati Banerjee v The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 226
The Calcutta High Court has quashed criminal proceedings initiated against the Human Resources Manager of IDBI Bank (“petitioner”), by an employee/opposite party No 2, against whom a female co-worker had earlier filed a complaint for sexual harassment at the workplace.
In holding that the petitioner could not be considered guilty of the offences of criminal intimidation or criminal conspiracy in the matter of the opposite party's transfer, a single-bench of Justice Ajoy Kumar Mukherjee opined:
The petitioner herein according to complaint has only communicated the previous complaint to his higher authority. Transfer is an usual incident concerning service and does not generally require the consent of the employee. Under the Bank's transfer policy an officer is liable to be transferred in different station and he cannot claim to remain in a particular place unless his appointment itself is to be specified non-transferable post. Ingredients of offence of criminal conspiracy suggests an agreement to commit an offence. There is nothing in the allegation that the present petitioner /accused no.2 has made any agreement with other accused persons to commit any offence. In fact in the present case there is absolutely nothing to establish that there was any agreement with the petitioner herein to commit any illegal act or any legal act by illegal means. If the bank authority decided to transfer any of its employee from one place of posting to another branch, may be in a distant state, which is permissible under the transfer policy, that must not constitute any offence punishable under section 506 of I.P.C, since it does not amount to threat to cause any “injury” to the complainant's reputation or property.
Case: Sk. Reajul Hoque @ Sk. Riajul Vs The State of West Bengal
Citation: 2023 LiveLaw (Cal) 227
The Calcutta High Court has refused to quash criminal proceedings against a teacher of the Tehatta Balika Prathamik Vidyalaya, under various sections of the IPC for offences including unlawful assembly, rioting, causing injury to a public servant, etc. during 'unauthorised' celebrations by the school's Muslim students on the occasion of 'Nabi Diwas'.
In directing the case registered against the petitioner to proceed towards trial, a single-bench of Justice Shampa (Dutt) Paul held:
The alleged time of occurrence as shown in the formal FIR is between 6 hrs to 16:30 hrs. The petitioner has shown by documents that on 28.01.2017 he was not present from 10.30 am onwards till 7 pm but no explanation is there for the period from 6.00 hrs (am) to 10.30 am. Case diary contains injury report in respect of the Police personnel, who sustained injuries in due course of carrying out their official duty to maintain law and order. Considering the nature of the offences alleged and materials on record, there appears a prima facie case against the petitioner to proceed toward trial.
Case: HDFC Bank Limited & Anr. V The State Of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 228
The Calcutta High Court has quashed criminal proceedings against employees of HDFC Bank Limited, initiated by one Sunil Kumar Sharma/opposite party no 2, who had availed a car loan from the aforesaid bank, to be repaid over 60 instalments, alongside taking another personal loan of Rs 90,000.
It was contended by the opposite party/complainant that he had fallen on extremely hard financial times in 2009 and could not repay further instalments of the loan, due to which the Bank and its agents had “forcibly and deceitfully repossessed” his vehicle.
In quashing the FIR filed against the Bank's officials on counts of robbery, criminal intimidation, etc., a single bench of Justice Siddhartha Roy Chowdhury held:
From the attending facts of the case when it is found that the lender or financer took repossession of the vehicle, pursuant to the agreement executed by and between the parties, it cannot be said that the lender committed offence within the meaning of Penal Code with the requisite mens rea and dishonest intention. At best it could be a civil dispute which has been imbibed with the colour of criminality. In my humble opinion, this is the fit case to invoke the provision of Section 482 of the Code of Criminal Procedure to quash the proceeding of Jadavpur P.S. Case No. 657 of 2009 pending before the learned Additional Chief Judicial Magistrate, Alipore to avert abuse of process of law, which I accordingly do. The criminal revision is thus allowed.
Case: Sanjoy Mondal Vs. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 232
The Calcutta High Court allowed a criminal appeal, setting aside the appellant's Trial court conviction under Section 324 IPC (voluntary hurt by dangerous means) for allegedly 'pouring hot oil on an octogenarian lady' after a brief argument on previous dues owed by the appellant,
Based on witness statements it noted that although the victim did suffer oil-burns, the same was not due to the fault of the appellant. A single-bench of Justice Rai Chattopadhyay held,
All questions that may arise reasonably in the mind of a prudent man, must receive answer from the evidence that has been brought on record. Merely that the victim has spoken in the trial Court would not be sufficient and safe to rely on the same blindfolded, as a foundation of his guilt. There are missing links [in victim's statement] raising strong doubt as regards reasonability for what the victim has stated before the trial Court.
Case: Bishal Das & Ors. Vs. The State of West Bengal & Ors
Citation: 2023 LiveLaw (Cal) 233
The Calcutta High Court has recently rejected a transfer petition from three inmates at the Chinsurah District Correctional Home, Hooghly upon holding that keeping them in the same prison cell, away from the main population due to jail authorities' perception of violence from other inmates, did not tantamount to solitary confinement, or a violation of their human rights.
On an earlier occasion, a single-bench of Justice Sabyasachi Bhattacharya had taken on record the State's report on the facilities extended to the petitioners in their time as inmates.
Petitioners had submitted that their incarceration had led to several human rights violations, on counts of solitary confinement, lack of medical assistance, denial of visitation rights from their relatives and advocates, etc.
During the present hearing, the Bench noted the petitioner's response to the report filed by the State, and held that, while the confinement of the petitioners could not be construed to be solitary confinement, the jail authorities would be under a duty to provide them with necessary medical facilities during their incarceration.
Case: Subhas Chandra Patra Vs. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 234
The Calcutta High Court has dismissed a writ petition filed by the headmaster of Bora Junior High School (“school”) and directed for a criminal investigation and trial against him, upon perusing expert evidence which prima facie indicated that signatures in one of the main documents relied upon by him, were forged.
Court also directed initiation of perjury proceedings in case the petitioner was found to be guilty of forging the aforesaid signature.
In dismissing the petition, and refusing to exercise equitable jurisdiction in favour of the petitioner due to the alleged fraud perpetrated by him, a single-bench of Justice Aniruddha Roy held:
The moment a cloud is created in the mind of the Writ Court as to the authenticity and existence of a document, which is the sole basis of the writ petition and that too with the allegation of fraud against the petitioner practiced on Court, no equity shall be exercised in favour of the petitioner. It is settled that he who seeks equity must apply before the Court of equity with clean hands. The Court of equity cannot and should not indulge the applicant who, prima facie, applies with unclean hands.
Case: Abdul Rakib v The State of West Bengal
Citaiton: 2023 LiveLaw (Cal) 249
The Calcutta High Court's Circuit Bench at Jalpaiguri recently granted bail to an accused under the NDPS Act, who had been charged with possession of commercial quantities of YABA Tablets.
At the outset, a division bench of Justice Moushumi Bhattacharya and Justice Prasenjit Biswas observed that the commercial truck in which the contraband was being transported being owned by an individual would not be a 'public place' and hence rigour of Section 42 NDPS Act would apply.
Section 42(1) casts a mandate on the designated officer to record his “reason to believe” with reference to personal knowledge or information received, before entering and searching. Section 42(2) continues the statutory mandate on the officer to intimate his immediate official superior the information recorded in writing and the grounds for his belief.
The Bench observed that while the petitioner's vehicle was for commercial purposes, it remained under individual ownership, not meant for public use or transportation and thus, section 42's mandate would apply to the present case, but the police had not complied with the same.
Case: Asgar Ali Vs. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 256
The Calcutta High Court has dismissed the appeal of a man accused of committing unnatural offences (under Section 377 of the IPC) on his 3-year-old neighbour, upon the prosecution having established his guilt beyond a reasonable doubt.
Justice Shampa Dutt (Paul) observed that the evidence rendered by the child's mother would be the 'best evidence' in such cases.
"A mother's evidence in a case of this nature is the best evidence before the Court. As truthful and sacred as the love in her heart for her tender helpless child of 3 years. A mother is the shield which protects her child against any harm that may befall upon the child. Cases of such nature do not come with eyewitness/eyewitnesses and one should not expect the same, as such acts are done in private, being against nature and the law. The act of the appellant herein constitutes the ingredients required to constitute the offence under Section 377 of the Indian Penal Code and the same has been proved by the prosecution beyond reasonable doubt by way of evidence both oral and documentary evidence. The appellant is directed to surrender before the Trial Court within a week from the date of this order to serve out his sentence in default, Trial Court shall proceed in accordance with law."
Case: Rajiv Kumar Sing alias Chotu Sing v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 265
The Calcutta High Court has refused to quash criminal proceedings against the petitioner, who along with 4 other accused, was charged with offence of abetment of suicide under Section 306 IPC, based on a complaint filed by the opposite party no 2, accusing them of causing “severe mental trauma” to her husband, leading to him taking his own life.
In directing for the matter to proceed towards trial, a single-bench of Justice Subhendu Samanta held,
On perusal of the case diary, it appears that police has collected sufficient materials during the course of investigation. This revisional court has no power to determine the correctness, validity and probative value of the evidences collected by the I.O. during the course of investigation. This court is obliged in law to exercise jurisdiction u/s 482 Cr.P.C to quash a proceeding where there is no prima facie case. The fishing and roving inquiry regarding plausible defence is not acceptable at this stage. Thus, I am of a specific view that the instant criminal proceeding cannot be quashed at this stage.
Case: Animesh Biswas Vs. State of West Bengal
Citation: 2023 LiveLaw (Cal) 271
The Calcutta High Court has dismissed the appeal preferred by a man convicted under Section 9 of the POCSO Act, for committing rape on a 9-year-old girl at her school.
In holding that the testimony of the minor, as well as medical evidence regarding the accused's stable mental state could not be ignored merely because appellant was referred to as 'pagol'/'mad' by local persons, a single-bench of Justice Bibhas Ranjan De held:
On overall evaluation of the evidence, I find that consistent evidence of victim was supported by her parents and also by the Doctor of Nadia Sadar Hospital. I cannot disbelieve the evidence of victim, a nine-year-old girl only on the plea of defence that accused was called as 'Pagol' in the locality ignoring the evidence of Dr. Poulami Ray Chowdhury as well as a report of Medical Board. From the evidence of Dr Chowdhury, called for at the instance of this Court, we cannot, in any manner, suggest that at the time of incident accused was insane or abnormal. To show such abnormality/insanity defence did not adduce any evidence in spite of having enough opportunity to rebut the presumption under Section 29 of the POCSO Act. This Court thus upheld the conviction and dismissed the appeal.
Case: Prashant Bothra and another Vs. Bureau of Immigration and others
Citation: 2023 LiveLaw (Cal) 272
The Calcutta High Court has observed that the mere paranoia of Authorities whenever a person against whom any allegations are levelled seeks to leave the country, cannot be sufficient grounds for issuance of a lookout circular (“LOC”), which curtails the individual's liberty to travel abroad.
Quashing the LOCs issued against the two petitioners, a single-bench of Justice Sabyasachi Bhattacharya held,
It has to be kept in mind that the high grounds which are required to be made out for restraining the personal liberty of a person as guaranteed under Article 21 of the Constitution and the right of a person to move within the country under Article 19, a necessary corollary of which is the right to travel abroad, have to be on a much elevated footing than mere pendency of an investigation or allegations of financial frauds against the concerned person. The mere paranoia of the authorities whenever a person against whom allegations are levelled seeks to leave the country cannot be sufficient for issuance of LOCs and curtailing the person's personal liberty to travel abroad.
However, at the request of the investigating authorities for time to prefer an appeal, the Court stayed the operation of this order for two weeks
Case: Samsuddin Sk. & Ors. Vs. State of West Bengal
Citation: 2023 LiveLaw (Cal) 273
The Calcutta High Court has upheld the conviction of four persons under Section 302 and 376(2)(g) of the IPC, for the rape and murder of a minor girl in 2004.
However, refusing to impose punishment of death penalty, a bench of Justices Joymalya Bagchi and Gaurang Kanth referred to Supreme Court's decision in Bachan Singh's case and held:
It is true the appellants have perpetrated the most brutal act of rape and murder of a minor child. The offence is a heinous one and needs strongest condemnation from society. However, nature and gravity of offence is not the only criteria on which imposition of death penalty depends…the Court must satisfy its conscience that the possibility of reformation and rehabilitation of the convict is completely ruled out and the sentence of life imprisonment is thereby rendered inadequate. Reports have been filed before us. All the reports show that their conduct in jail is satisfactory. In these circumstances after lapse of 17 years I do not find any justification to enhance the life sentences of the appellants to the extreme and irreversible sentence of death.
Case: G. Venkatesh Babu & Anr. V The State Of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 274
The Calcutta High Court's Circuit Bench at Jalpaiguri has recently quashed criminal cases against the MD and Director of Lanco Infratech Limited, who had been accused of inter alia cheating, by one of their industrial oxygen suppliers, who alleged that in the course of business, the accused had failed to return back empty cylinders, thereby misappropriating approx. Rs 38 lakhs worth of oxygen cylinders.
In allowing the petitioners' application, a single-bench of Justice Siddhartha Ray Chowdhury held:
Upon considering facts and circumstances of the case, I am of the view that the criminal proceeding being C.R. Case No. 11 of 2019 is attended with malafide as the complainant initiated the proceeding suppressing the material fact knowing fully well that the company and the accused persons no. 2 and 3 being the alter ego of the company had no authority to deal with the fund of the company to transfer the same. That apart the agreement was entered into by and between the companies. Therefore, at all any offence was committed, it was committed by the company. Therefore, criminal proceeding cannot be allowed to survive without the company being arrayed as an accused.
Case: Hemanta Barman V The State Of West Bengal
Citation: 2023 LiveLaw (Cal) 275
The Calcutta High Court's Circuit bench at Jalpaiguri has recently held that the actions of a girl in voluntarily leaving her home with the accused person did not give the accused any right to invade upon her privacy or commit sexual offences upon her.
A single-bench of Justice Siddhartha Roy Chowdhury upheld the appellant's Trial court conviction for rape under Section 376 IPC and held:
If it is assumed that the victim was not abducted or kidnapped she left her house with accused person on her own, that does not give the accused person the right to invade upon the privacy of the victim girl or to commit any penetrative sexual offence within the meaning of rape as defined under Section 376 of the Indian Penal Code. In her evidence-in-chief the victim stated that the accused person kept her confined for three days in a house and committed rape upon her. Here in this case nothing has come out from the cross-examination of the victim to shake her credibility, therefore, there is no reason to seek corroboration as it would amount to add an insult to the injury already suffered by the victim.
Case: Pawan Kumar Agarwal -VsThe State of West Bengal & Anr. & connected applications
Citation: 2023 LiveLaw (Cal) 279
The Calcutta High Court has recently held that before the issuance of process, in cases where a Magistrate comes to a prima facie conclusion regarding the reasons for summons to be issued against the accused, and if the order shows compliance and application of mind vis-à-vis holding of inquiry under 202 CrPC, then such an order could not be set aside on technical grounds.
A single-bench of Justice Bibek Chaudhuri in answering a common question in multiple criminal revision applications on whether an inquiry under Section 202 of the Code of Criminal Procedure is mandatory before issuance of process in a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act when the accused resides outside the territorial jurisdiction of the magistrate, held:
While issuing process the learned Magistrate adverted to the petition of complaint, evidence of the complainant affirmed under Section 145(1) of the N.I Act and the documents filed by the complainant. Thus, before issuance of process, the learned Magistrate obviously came to the conclusion that there are prima facie reasons to issue process against the petitioner and lastly, if the impugned order prima facie proves application of mind by the learned Magistrate in respect of compliance of mandatory provision under Section 202 of the Cr.P.C, the order cannot be set aside only on technical ground for absence of the magic words that inquiry under Section 202 was held and the learned Magistrate was satisfied that process should be issued against the accused.
Case: Amit Polley Vs. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 284
The Calcutta High Court has refused to quash criminal proceedings initiated against a man accused of abetting the suicide of a minor girl whom he was “in love” with, by allegedly inflicting physical and mental torture upon her, as well as demanding money from her.
Accused is booked under Section 306 IPC. Single-bench of Justice Shampa (Dutt) Paul directed the Trial Court to be mindful of Section 305 IPC (Abetment of suicide of child or insane person) during framing of charges. It observed,
In the present case, it is prima facie on record that the victim was a minor on the date of incident (alleged suicide). Thus the offence alleged prima facie has the ingredients required under Section 305 IPC, on record. Accordingly, the learned Trial Judge shall consider the said materials on record at the time of consideration and framing of charge or at the relevant stage, in accordance with law. The present case has to thus proceed towards trial to be decided in accordance with law as there is prima facie materials in this case against the petitioners to go to trial and quashing a case of such a nature will cause miscarriage of justice.
Case: Dilip Adhikary Vs. Basanta Nath
Citation: 2023 LiveLaw (Cal) 299
The Calcutta High Court has observed that offences under Section 138 of the Negotiable Instruments Act (“N.I. Act”), cannot be compounded without the complainant's consent, in violation of Section 320 CrPC.
In dismissing two criminal revisions, a single-bench of Justice Subhendu Samanta held:
It is clear that the prayer of compromise at the stage of criminal revision before this High Court is not possible without consent of the complainant. Nothing prevented the petitioner to make the proposal before the Magistrate or the appellate court. However, the law of the land is well established to the fact that the compounding cannot be held violating the principle enumerated in Section 320 of the Cr.P.C, thus I am of a view that the offences as proved against the petitioner cannot be compounded.
Citation: 2023 LiveLaw (Cal) 309
Case: In Re: Madhav Agarwal & Ors.
The Calcutta High Court has refused to grant bail to the petitioners, accused of gang-rape by the victim who alleged that she was attacked at the birthday party of one of the accused.
Victim had alleged that she was forced to consume alcohol at the party, after which she found herself unconscious and with the petitioners forcing themselves upon her.
Earlier, a division-bench of Justice Joymalya Bagchi and Justice Gaurang Kanth had taken serious exception to the police's actions in harassing the victim, and the petitioner's attempts to influence her during the ongoing investigation.
At the present hearing, the Bench denied the petitioners' application for bail upon noting that the gravity of the offence of gang-rape, along with the petitioners' earlier attempts to influence the investigation.
Citation: 2023 LiveLaw (Cal) 310
Case: Bhola Naskar @ Bholanath Naskar Vs. State Of West Bengal
The Calcutta High Court has commuted the death sentence of some of those accused in the brutal gang-rape and murder of a 20-year-old girl in Kamduni, in June 2023. The Court further acquitted another accused who had also been sentenced to death by the trial court.
A division-bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta held:
Trial Court held the murder and rape was a pre-planned one. Victim had scoffed at the appellants. Hence, they brutally raped and murdered her. The Court noted the brutality of the offence by referring to the injuries in the private parts of the victim. Prior concert of the appellants to avenge on the purported snub by the victim has not been proved. The post-mortem report does not mention any internal injury on the abdominal part of the victim. No injury on the external pelvic part was noted and depth of the tear in the posterior fourchette, hymen and vaginal tissues is not noted…the injuries on the victim cannot be compared with the extensive and brutal injuries noted in Mukesh (2016) which was one of the prime considerations for upholding death sentence in that case.
Citation: 2023 LiveLaw (Cal) 324
Case: Ashish Kumar v State of West Bengal & Anr.
The Calcutta High Court's Circuit Bench at Jalpaiguri has refused to quash criminal proceedings against a tour operator who had been accused of duping his clients by taking large sums of money from them, without utilising the same for their hotel or cab bookings.
Complainants, a group of 18 tourists from Maharashtra, alleged that they had booked a package for hotel and cab services with the petitioner for a tour of Darjeeling & Sikkim, for which they had already paid a huge sum to the petitioner, only to discover that he had not paid any of that money to the hotel or cab operators.
Citation: 2023 LiveLaw (Cal) 332
Case: Amzed Ali Vs. State of West Bengal
The Calcutta High Court recently acquitted an individual who, in 1990, was found guilty by the trial court under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (“EC Act”) for violation of the WB Cloth and Yarn Order 1960, and sentenced to undergo imprisonment for one month along with fine.
In holding that the trial judge had erred in appreciating the guidelines framed by the Enforcement authorities under the EC Act, while convicting the appellant, a single bench of Justice Subhendu Samanta held:
Only by not mentioning the licence No. in the Sign board or in the cash memo does not constitute any mens rea on behalf of the appellant. Department guidelines indicate that if any person during the course of normal transaction forgets to mention either the licence number or the date on the bill or memo, such type of mistake and omission is not obligatory upon the directorate to launch a prosecution. In this case Learned Special Judge has failed to appreciate guidelines of the said department and passed the erroneous order.
Citation: 2023 LiveLaw (Cal) 336
Case: Balbina Tandon & Ors. v The State of West Bengal & Ors.
The Calcutta High Court has dismissed a Section 482 CrPC application filed by a wife, for quashing criminal proceedings initiated against her under Section 306 IPC for abetment to suicide of her deceased husband.
The younger brother of the deceased, upon his suicidal death in 2015, approached the jurisdictional police station and filed an FIR, alleging that the victim had ended his life due to the "severe mental torture" perpetrated by the present petitioners. The police as well as the complainant relied heavily on a "suicide note" left behind by the deceased, allegedly implicating the petitioners.
In refusing to quash the proceedings upon observing that a cognizable case had been prima facie made out against the petitioners, a single bench of Justice Rai Chattopadhyay held:
A person, immediately before his death would only let his genuine perceptions to reveal to the world after his death and so he writes. Though the [deceased] mentioned no other person [is] responsible for his death, at the same time he mentions that his wife or child should not be allowed to see his dead body. All these are triggering to the only fact that a cognizable case [has] been prima facie made out against the petitioners. [Thus] not enough ground is available for quashing the criminal case.