Nominal Index [2022 LiveLaw (Cal) 177 To 2022 LiveLaw (Cal) 200]Rajinder Lohar v. The State of West Bengal 2022 LiveLaw (Cal) 177Aniruddha Prasad Singh @ Sinha v. The State of West Bengal 2022 LiveLaw (Cal) 178In the matter of: Parimal Sardar@Parimal Sikdar 2022 LiveLaw (Cal) 179Md Jamiruddin v. Union of India & Ors 2022 LiveLaw (Cal) 180Sova Rani Misra v. The State of West Bengal ...
Nominal Index [2022 LiveLaw (Cal) 177 To 2022 LiveLaw (Cal) 200]
Rajinder Lohar v. The State of West Bengal 2022 LiveLaw (Cal) 177
Aniruddha Prasad Singh @ Sinha v. The State of West Bengal 2022 LiveLaw (Cal) 178
In the matter of: Parimal Sardar@Parimal Sikdar 2022 LiveLaw (Cal) 179
Md Jamiruddin v. Union of India & Ors 2022 LiveLaw (Cal) 180
Sova Rani Misra v. The State of West Bengal 2022 LiveLaw (Cal) 181
Salema Bibi v. State of West Bengal & Ors 2022 LiveLaw (Cal) 182
Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 183
Narayan Chandra Maiti v. Union of India & Ors 2022 LiveLaw (Cal) 184
Ramabatar Rajbar @ Ramawatar Nimtar Rajwar v. The State of West Bengal 2022 LiveLaw (Cal) 185
Dr Santi Prasad Sinha v. Laxmi Tunga and other connected matters 2022 LiveLaw (Cal) 186
Laxmi Tunga v. State of West Bengal and Ors 2022 LiveLaw (Cal) 187
Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 188
Aditya Birla Finance Ltd v. Mcleod Russel India Ltd. and Ors Case Citation: 2022 LiveLaw (Cal) 189
Priyanka Tibrewal v. State of West Bengal and Ors 2022 LiveLaw (Cal) 190
Bhadrish Jayantilal Sheth Versus Income Tax Officer 2022 LiveLaw (Cal) 191
State of West Bengal v. Consideration of State Government Employee 2022 LiveLaw (Cal) 192
Smt Kalabati Mondal v. Union of India 2022 LiveLaw (Cal) 193
Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 194
Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 195
Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 196
Partha Chatterjee v Laxmi Tunga 2022 LiveLaw (Cal) 197
Alo Rani Sarkar v. Swapan Majumdar 2022 LiveLaw (Cal) 198
Kaniska Roy & Anr v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 199
New Eureka Travels Club v. South Bengal State Transport Corporation 2022 LiveLaw (Cal) 200
Orders/Judgments
Case Title: Rajinder Lohar v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 177
The Calcutta High Court has recently commuted the sentence of life imprisonment awarded to a man convicted of raping a 7 year old girl after taking into account that the convict had no criminal antecedents and that he had already suffered incarceration for about 18 years. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi opined that although in the instant case a minor victim had been raped, the accused was also a young person who was barely above 18 years of age at the time of the incident. Commuting the life sentence imposed, the Bench observed, "Although, the victim was a minor and was forcibly raped, appellant was also a young person who was barely above 18 years at the time of occurrence. He does not have criminal antecedents. Keeping in mind the aforesaid facts and as he has already suffered incarceration for about 18 years, I modify the sentence imposed upon the appellant and direct that he shall suffer imprisonment for the period already undergone in place of the maximum sentence of life imprisonment imposed upon him and pay the fine imposed upon him by the trial Court, in default, shall suffer rigorous imprisonment for one year."
2. S.313 CrPC | Accused Should Be Given Opportunity Of Personally Explaining Any Circumstances Appearing In Evidence Against Him: Calcutta HC
Case Title: Aniruddha Prasad Singh @ Sinha v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 178
The Calcutta High Court on Friday observed that while examining an accused under Section 313 of the CrPC, the prosecution is under a mandatory obligation to give the accused an opportunity to personally explain any circumstances appearing in the evidence against him. Justice Moushumi Bhattacharya also placed reliance on the Supreme Court judgment in Maheshwar Tigga v. State of Jharkhand wherein the Apex Court had held that the circumstances not put to an accused under section 313 of the CrPC cannot be used against him and must be excluded from considerations. "Section 313 of the Cr.P.C. mandates that the accused shall have the opportunity of personally explaining any circumstances appearing in the evidence against him. In Maheshwar Tigga vs State of Jharkhand; (2021) 1 SCC (Cri) 50 the Supreme Court reaffirmed that the circumstances not put to an accused under section 313 of the Cr.P.C. cannot be used against him and must be excluded from considerations. The Supreme Court further went on to hold that in a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his evidence, but also to explain the incriminating circumstances against him and further that a probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt", the Court underscored. The Court was adjudicating upon an appeal preferred against a judgment dated December 19, 1998, wherein the appellant had been convicted under section 7 (1) (a) (ii), of the Essential Commodities Act, 1955 and paragraph 12 of the West Bengal Kerosene Control Order, 1968.
Case Title: In the matter of: Parimal Sardar@Parimal Sikdar
Case Citation: 2022 LiveLaw (Cal) 179
The Calcutta High Court has recently, in exercise of its powers under Section 439 of the CrPC, granted bail to an accused after taking into account that he suffers from complete speech and hearing impairment and that he had suffered from various physical ailments while in custody. A Bench comprising Justice Moushumi Bhattacharya and Justice Kesang Doma Bhutia was adjudicating upon a bail application of the petitioner who had been accused for the commission of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court noted that the petitioner had been in custody for 440 days and had suffered from various ailments while in custody. Taking into consideration the physical disability of the petitioner, the Court noted further, "The petitioner admittedly suffers from 100% speech and hearing impairment. The petitioner has been in custody for 440 days and has suffered from various ailments while in custody. The petitioner has also been referred to the North Bengal Medical College for treatment." Reliance was also placed on the Supreme Court judgment in Rockysingh Jalindersingh Kalyani v. The State of Maharashtra wherein the Apex Court had allowed an application of bail after taking into account the physical disability of the accused. Allowing the bail application, the Court ordered, "Considering the physical condition of the petitioner and a recent order of the Supreme Court in Criminal Appeal No.176 of 2022 (Rockysingh Jalindersingh Kalyani vs. The State of Maharashtra), where the Supreme Court also took into account the physical condition of the person suffering from disability, we are inclined to allow the application for bail."
Case Title: Md Jamiruddin v. Union of India & Ors
Case Citation: 2022 LiveLaw (Cal) 180
The Calcutta High Court set aside a notification issued by the concerned authority under Section 3(1) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in land) Act, 1962 (Act) for laying a Gas Pipeline below the surface in between the Barauni and Guwahati on the ground of violation of principles of natural justice. Justice Saugata Bhattacharyya was adjudicating upon a challenge against the steps taken by the concerned authority under the Act whereby a notification had been issued to acquire the right of user of the land of the petitioner for laying a Gas Pipeline below the surface in between the Barauni and Guwahati. Opining that the concerned authority is required to comply with the principle of natural justice, the Court further underscored, "On behalf of the competent authority attempt has been made to impress upon this Court that since the objection is not addressed to the competent authority the opportunity of hearing could not be granted. Such hyper technical approach on the part of the competent authority pales into insignificance keeping in view the fact that the concerned respondent authorities by issuing notification under Section 3(1) was required to acquire the right of user of the land of the petitioner, therefore, propriety demands forwarding of such objection by the respondent nos.2 & 3 to the competent authority for the sake of granting opportunity of hearing to the petitioner and to comply with the principle of natural justice". Accordingly, the Court set aside the impugned notification on the ground that the requirement of hearing as contemplated under Section 5(2) of the Act of 1962 has not been complied with.
Case Title: Sova Rani Misra v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 181
The Calcutta High Court set aside an order of acquittal in connection with a criminal case under Sections 147/380/427 of the IPC (punishment for rioting, theft in dwelling house, mischief causing damage). However, Justice Moushumi Bhattacharya was of the view that passing an order of conviction, after a gap of 36 years since the charges were framed, would disturb the balance of convenience and cause injustice, especially since the accused had not even been represented in the appeal. Accordingly, it remitted the matter to Trial Court for re-consideration. "Since the incident occurred and the Case was registered against the accused persons in May, 1980 and the impugned judgment is of 19th March, 1986, this Court is of the view that convicting the accused persons under the charges framed against them after a gap of 36 years would disturb the balance of convenience and result in more injustice being caused in the matter. It is not even clear whether the accused persons are still alive or available after 36 years. This information can only be provided by the local police station", the Court observed.
Case Title: Salema Bibi v. State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 182
The Calcutta High Court granted bail to an accused against whom proceedings under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) had been initiated after taking into account that he had suffered torture while in custody. The Court further directed the Superintendent of Police, Murshidabad to immediately enquire into the allegations of torture against the accused and submit a detailed report in this regard on the next date of hearing. Justice Rajasekhar Mantha was adjudicating upon a plea filed by the wife of the accused alleging that her husband had been a victim of custodial torture. Ordering for the release of the petitioner's husband from the Berhampore Central Correctional Home, the Court observed, "In view of the above, this Court is of the prima facie view that a certain degree of torture may have been inflicted on the husband of the petitioner. The matter requires a suitable investigation. The husband of the petitioner, namely, Azad Ali, shall be released forthwith from the custody of the Berhampore Central Correctional Home. The petitioner herself and on behalf of her husband undertakes before this Court and also on behalf of the husband, that she will report before the Judge, Special Court, N.D.P.S. Act, Berhampore, Murshidabad every Thursday at 11 a.m., commencing day after tomorrow." Directing an enquiry into the allegations of torture and extortion, the Court observed further, "The Superintendent of Police, Murshidabad, shall forthwith enquire into the allegations of torture against the petitioner's husband, and the allegation of extortion against the officer of the Lalgola P.S. submit a detailed report before this Court on or before the next day." The Court further directed the Lalgola Police Station, Murshidabad to preserve all the CCTV footage and other evidence in connection with taking into custody of the husband of the petitioner, and his detention thereafter.
Case Title: Babita Sarkar v. The State of West Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 183
The Calcutta High Court on Tuesday ordered a Central Bureau of Investigation (CBI) inquiry into the alleged irregularities in the recruitment of political science teachers for Class X1 and XII in the state-run schools of West Bengal. In an unprecedented move, the Court also advised Chief Minister Mamata Banerjee and Governor Jagdeep Dhankar to immediately suspend the minister for education, Paresh Chandra Adhikari, from his post since his daughter, Ankita Adhikari, was appointed without even figuring in the merit list or appearing for a personality test. Justice Abhijit Gangopadhyay passed the direction while adjudicating upon a plea filed by an aggrieved candidate who had alleged that she had been deprived of the job despite having secured higher marks than the Minister's daughter in the recruitment examination. Directing for a CBI enquiry, the Court observed, "This court has full faith upon the police force of this city and State. All the inhabitants of West Bengal know how efficient they are and everybody will admit the efficiency of the police force and it is also the experience of people that the hands of the police forces are always tied by the persons in power. Therefore, in my view inquiry by CBI is the only option here." Opining that the CBI should not waste any time to start any enquiry and further ordering the Education Minister to appear before the CBI by 8pm today, the Court underscored, "I direct the said Paresh Chandra Adhikary to go to the CBI by 8 p.m. today so that CBI can start interrogating him in every possible manner for knowing the facts."
Case Title: Narayan Chandra Maiti v. Union of India & Ors
Case Citation: 2022 LiveLaw (Cal) 184
The Calcutta High Court directed the Union government to grant the freedom fighters pension under the Swatantrata Sainik Samman Pension Scheme, 1980, within 3 months to a batch of petitioners after opining that possession of personal knowledge certificates although a form of secondary evidence would be sufficient to be eligible for benefits under the scheme. In the instant case, the petitioner had applied for the freedom fighter pension along with general Non-Availability of Record Certificate (NARC) issued by the District Magistrate of Midnapore and Personal Knowledge Certificate issued by Sushil Kumar Dhara, an eminent freedom fighter and eligible certifier of District - Midnapore for grant of the Swatantrata Sainik Samman Pension. Justice Krishna Rao observed, "This Court is satisfied that the certificate issued by Shri Sushil Kumar Dhara would make the petitioner eligible for being granted pension under the said scheme. None has disputed the authenticity of the certificate issued by Shri Sushil Kumar Dhara in favour of the petitioner. This is one of the modes of approving the claim of being a freedom fighter envisaged by the said scheme." Further, ordering the Union government to process the pension of the petitioners within a period of 3 months the Court observed, "Accordingly, the respondent authorities i.e. the Union Government is directed to pay the petitioners, Freedom Fighter's Pension under the liberalized "Swatantrata Sainik Samman Pension Scheme" with effect from the date when the petitioner made an application for grant of pension within 3 (three) months from the date of communication of the copy of this order."
Case Title: Ramabatar Rajbar @ Ramawatar Nimtar Rajwar v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 185
The Calcutta High Court observed that if the prosecution has failed to prove the charge of dacoity then the charge under Section 412 of the IPC of retaining the stolen articles of dacoity fails automatically. Referring to the provision of Section 412 of the IPC, Justice Rabindranath Samanta underscored, "The language employed in the Section clearly shows that the articles an accused retains shall be related to those articles captured or received during the commission of dacoity. While the charge of dacoity fails, the charge under Section 412, IPC automatically fails..Therefore, I hold that the prosecution has failed to bring home the charge under Section 412, IPC." Reliance was also placed on the Supreme Court decision in K. Venkateshwar Rao alias Venkatal alias I. Rao v. State Represented by Inspector of Police, A.P wherein the Apex Court had held that while the charge of dacoity has not been proved by the prosecution, the charge under Section 412 of the IPC of retaining the stolen articles of dacoity fails automatically.
Case Title: Dr Santi Prasad Sinha v. Laxmi Tunga and other connected matters
Case Citation: 2022 LiveLaw (Cal) 186
The Calcutta High Court upheld orders of a single bench that directed CBI to inquire into alleged irregularities in appointments of Group-C posts (non-teaching staff) in the state government-run schools in West Bengal on the purported recommendation of the West Bengal School Service Commission (WBSSC). A Bench comprising Justice Ananda Kumar Mukherjee and Justice Subrata Talukdar labelled the "irregularities" in the appointments made by the SCC as a "public scam" and accordingly upheld Justice Abhijit Gangopadhyay's prior orders directing a CBI probe into the alleged money trail involved in the recruitment scam. "This Court also does not find that the Hon'ble Single Bench erred in appointing the CBI to investigate the public scam inasmuch as no State agency could be appointed in a scenario involving high ranking Officials, including a senior State Minister", the Court underscored. Furthermore, the Court also accepted the recommendations put forward by the Court appointed committee calling for the prosecution of senior government officials connected to the scam. Opining further that such a scam has let down a generation of teachers, the Court observed, "It is a matter of shame that such abundant facts have emerged in the records of the Hon'ble Court and from the Bag Committee, whose integrity has not been impeached, prima facie establishing the role of white collared individuals in charge of Education in letting down a generation of teachers and the taught."
Case Title: Laxmi Tunga v. State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 187
The Calcutta High Court refused to hear an appeal filed by West Bengal Minister Partha Chatterjee challenging an order of a single Bench that directed him to appear before the CBI in connection with the alleged irregularities in appointments of Group-C and Group-D posts (non-teaching staff) in the state government-run schools in West Bengal on the purported recommendation of the West Bengal School Service Commission (WBSSC). The single Bench of Justice Abhijit Gangopadhyay directed Mr. Chatterjee, who was the State Education Minister when the alleged appointments were made, to appear before the Central Bureau of Investigation at its office here before 6 p.m. on Wednesday. He is now the Industry, Commerce and Parliamentary Affairs Minister of the Mamata Banerjee Cabinet. "In this matter and in other matters of similar nature as to giving appointment in the post of Group – C and Group – D employees the name of the then Education Minister Mr. Partha Chatterjee has come to light. I also direct said Mr. Partha Chatterjee to attend the C.B.I. office today by 6 P.M. and C.B.I. is directed to start interrogating him and if he does not cooperate in the interrogation, C.B.I. shall have liberty to take him in custody", Justice Gangopadhyay had recorded in the impugned order. Furthermore, in the impugned order, Justice Gangopadhyay requested Chief Minister Mamata Banerjee and also Governor Jagdeep Dhankhar to remove minister Partha Chatterjee from the cabinet in order to make the 'system cleaner'.
Case Title: Babita Sarkar v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 188
In an unprecedented move, Justice Abhijit Gangopadhyay of the Calcutta High Court on Wednesday night directed the Central Bureau of Investigation (CBI) which is probing the alleged irregularities in the recruitment of teachers in West Bengal government schools, to seek assistance of central forces in securing the State's School Service Commission office. The Court also directed that no one should enter the building till 1 pm on Thursday without the leave of the Court and ensure that the CCTV footage of the office is available by Thursday noon. Justice Abhijit Gangopadhyay conducted a special hearing of the case from 10:40 pm onwards on Wednesday night after the incumbent SSC Chairperson Siddhartha Majumdar resigned from his post, four months after taking charge. Following the news of the Chairperson's resignation, two counsels of the petitioners met Justice Gangopadhyay and apprised him that there existed an apprehension that crucial evidence could be tampered with in the wake of the new SSC chairperson taking charge. Pursuant to the submissions, the Court ordered preservation of CCTV footage and accordingly observed, "The Secretary of the School Service Commission is directed to produce the CCTV footage before me at 12.30 a.m. tomorrow. The Secretary is to preserve all the digital information and the database if not already destroyed." The Court further ordered the deployment of Central Reserve Police Force in the office of the School Service Commission and also ordered that nobody should be permitted to enter the building till 1:00 pm on Thursday without the Court's leave. "As the matter is in the hand of the CBI and as CBI has been granted liberty to take help of the Central Reserve Police Force, I direct the petitioner to intimate CBI to take up the matter with Central Reserve Police Force immediately so that CRPF personnel can be deployed to protect the building being Acharya Sadan, Salt Lake and the CRPF personnel shall not allow anybody to enter into the said building till 1.00 p.m. tomorrow without leave of the Court. No employees including officers and no other persons shall be allowed to enter the said West Bengal School Service Commission at 11 & 11/1, Block EE, Acharya Sadan, Salt Lake City, Kolkata – 700091. The learned advocate of the petitioner is granted liberty to communicate, this order to CBI immediately so that Police Force is deployed by the CRPF forthwith by 2 (two) hours from the communication to CBI", the Court underscored.
Case Title: Aditya Birla Finance Ltd v. Mcleod Russel India Ltd. and Ors, AP/254/2022
Case Citation: 2022 LiveLaw (Cal) 189
The High Court of Calcutta has held that no direction can be passed to sell property to third party in Section 9 petition of the A&C Act. The Single Bench of Justice Moushumi Bhattacharya has held that a direction to sell the subject property to an outsider who was not a party to the arbitral proceedings would result in the property going out of the girdle of the arbitration and the purpose of a Section 9 application itself would be defeated. The Court further held that a party should not resort to the remedy under Section 9 to enforce a part of the award when it has a clean and unobstructed path for enforcing the award under Section 36 of the Act. The Court observed that the object of interim protection under Section 9 of the A&C Act is the preservation of the subject matter of the arbitration. The interim relief is granted to prevent the subject matter from being wasted or dissipated to ensure the execution of the award. Therefore, the relief can only be in aid of the arbitration. A relief that would take the subject matter out of the girdle of arbitration cannot be granted by the court exercising power under Section 9 of the A&C Act. The Court held that the relief claimed by the petitioner to direct the respondent to tender the subject shares for acquisition by a third-party would result in the subject shares getting out of the girdle of the arbitration and the proposed sale would be an antithesis to the object of the interim protection of the Act.
Case Title: Priyanka Tibrewal v. State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 190
The Calcutta High Court observed that the National Human Rights Commission (NHRC) has not violated an earlier order of the Court for constitution of a three member committee to look into the complaints of displaced post-poll violence victims in West Bengal by constituting a team of 11 officers to assist in ministerial work. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had earlier sought response from the NHRC on a plea moved by the State government against the constitution of a team of 11 members by the NHRC which is contrary to the Court's order. The Court noted, "The affidavit in opposition clearly states that supporting staff of 11 officials from NHRC is for ministerial purpose and that the Committee has not delegated its essential function to inquiry to the supporting staff. The supporting staff is only for the purpose of ministerial job so as to ensure that there is no repetition of complaints, taking note of the complaints received from the complainants, verifying documents such as identity cards etc., taking photographs of damaged houses and also videography of the statement made by the complainants and to work as translator etc". Accordingly, the Court dismissed the State government's plea by observing, "In the above circumstances, we do not find that the Committee is acting beyond the order of this Court. Since, an apprehension has been expressed by the State, therefore, we make it clear that though the Committee can taken the assistance of the supporting staff for ministerial work but the essential work of inquiry into the right of the displaced persons for rehabilitation etc. will not be delegated by the Committee constituted by this Court in other person or any group of persons."
15. Technical Issues In Income Tax Portal: Calcutta High Court Gives Fresh Opportunity To Assessee
Case Title: Bhadrish Jayantilal Sheth Versus Income Tax Officer
Case Citation: 2022 LiveLaw (Cal) 191
The Calcutta High Court bench of Justice Md. Nizamuddin has directed the assessing officer to do a new assessment proceedings as taxpayers could not furnish answers to the notice due to the technical glitches in the income tax portal. The petitioner/assessee has challenged the assessment order on the ground of violation of the principle of natural justice by not providing the petitioner an opportunity to file a reply to the show-cause-notice. By the show cause notice, the petitioner was asked to give his reply to the proposed draft assessment through the Department's registered e-filing account by 23:17:59 hours IST on March 30th, 2022. The assessing officer passed the assessment order on March 30th, 2022 at 15:17:08 IST. The court remanded the case back to the Assessing Officer to pass a fresh assessment order in accordance with the law after giving an opportunity to the petitioner to file a reply to the aforesaid show-cause-notice. The court directed the petitioner to file the reply within seven days from the date and directed the respondents to pass a reasoned and speaking order by observing the principles of natural justice.
Case Title: State of West Bengal v. Consideration of State Government Employee
Case Citation: 2022 LiveLaw (Cal) 192
In a significant development, the Calcutta High Court on Friday upheld an order of the West Bengal Administrative Tribunal and accordingly directed the State government to release the Dearness Allowance and Arrear Dearness Allowance to its employees as per the West Bengal Services (Revision of Pay and Allowance) Rules, 2009 ( ROPA Rules, 2009) within a period of 3 months. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta ordered, "The petitioners are directed to release the Dearness Allowance and Arrear Dearness Allowance to its employees at the rate to be calculated on the basis of All India Consumer Price Index average 536(1982=100) commensurate with their pay as per the ROPA Rules, 2009 as directed by the Tribunal within three months from date." Opining further that the legal right to get Dearness Allowance as a way to sustain livelihood has been elevated as a fundamental right under Article 21 of the Constitution, the Court observed, "What we feel, apart from acquiring the enforceable legal right to get Dearness Allowance using the methodology of All India Consumer Price Index, such right of the employees to sustain their livelihood with human dignity has been fructified or elevated as fundamental right as enshrined in Article 21 of the Constitution. Such right available to Government Employees who are the main workforce behind the functioning of a Government in right direction cannot be denied by the State. As observed by the Pay Commission, we are of the same view that to pay respect to the statutory rights of the Government Employees to get D.A Allowances at the rate as above, the Government must generate all its resources."
17. Forced Religious Conversion In Bengal's Malda District: Calcutta High Court Orders CBI-NIA Probe
Case Title: Smt Kalabati Mondal v. Union of India
Case Citation: 2022 LiveLaw (Cal) 193
The Calcutta High Court ordered the Central Bureau of Investigation (CBI) and the National Investigation Authority (NIA) to probe an alleged case of forced conversion in West Bengal's Malda district. Justice Rajasekhar Mantha was adjudicating upon a plea moved by two women who had claimed that their husbands, brothers by relation and residents of Kaliachak area of the district, were converted from Hinduism to Islam by force as part of a punishment for working for a political party which lost the last assembly election. Accordingly, the Court sought inputs from the agencies with regard to allegations of forced conversions, cross-border infiltration, threats and intimidation by accumulation and storage of huge quantities of arms and ammunition, and counterfeit currency. "Since the NIA and the CBI are the party respondents to the instant proceeding, appropriate inputs may be given from their side as regards the allegations made in the writ petition", the Court directed. Furthermore, the Superintendent of Police (SP), Malda was also asked to cooperate with the two agencies.
Case Title: Babita Sarkar v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 194
The Calcutta High Court directed the Police Commissioner of Bidhannagar Police Commissionerate to be present at the Netaji Subhash Chandra Airport, Kolkata on Thursday evening so that Minister of State for School Education Paresh Chandra Adhikari can be directly taken from the airport to the CBI office at Nizam Palace in Kolkata for questioning over the alleged illegal appointment of his daughter as a teacher in a government-aided school. Justice Abhijit Gangopadhyay earlier in the day on Thursday had directed the Minister to appear before the CBI at 3pm today for questioning despite vehement opposition from the Minister's counsel on the ground that the Minister is currently at Cooch Bihar and thus would take time to appear before the office of the CBI. The counsel for the Minister apprised the Court that the Minister shall be unable to attend the CBI office at 3pm today since he was in Cooch Bihar and is now flying to Calcutta though a Spice Jet flight which is scheduled to reach Calcutta today in the evening at 18:30 hours. Accordingly, Justice Gangopadhyay directed the Police Commissioner of Bidhannagar Police Commissionerate to immediately get in touch with the airport authorities so that as soon as Adhikari comes out from the flight, he can be take by the police authorities to the CBI office at Nizam Palace directly. "If Mr. Adhiakri is not found in the said flight which will start from Bagdogra at 17:00 hours it will be treated as a hoax created to save himself from the Court and the CBI", Justice Gangopadhyay further warned.
Case Title: Babita Sarkar v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 195
The Calcutta High Court directed the Central Bureau of Investigation (CBI) which is probing the alleged irregularities in the recruitment of teachers in West Bengal government schools to take possession of the data room in the head office of the West Bengal School Service Commission (SCC) at Salt Lake, Kolkata and put in their own padlock in order to avoid any tampering of crucial evidence. Justice Gangopadhyay ordered the CBI to take possession of the data room at the head office by putting their own padlock and accordingly observed, "I hope and expect that CBI will be able to take over the possession and control of data room and will keep a hawk's eye on the said important room in the head office of the school service commission namely Acharya Sadan".The Secretary of the Commission was also instructed to go back to the head office and identify the date room to the concerned CBI officer and such a process of identification was directed to be completed by 6:30 pm on Thursday. The Court further observed that if the data room is to be opened for any purpose, the Commission shall have liberty to approach the Court by disclosing the purpose for such opening. The programmer officer of the Commission namely Parna Bose along with the Secretary of the Commission was also ordered to open the door of the data room and show the concerned CBI officers the computers and other machines that are kept by 7pm on Thursday evening in order to facilitate the process of securing the room. In the meantime, the Court ordered that the deployed CRPF will continue guarding the building of the Commission until tomorrow and shall not allow any person except the Chairman of the Commission, the Secretary, Assistant Secretary and not more than 2 stenographers to access the building.
Case Title: Babita Sarkar v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 196
The Calcutta High Court on Friday ordered that the daughter of West Bengal minister of state for school education Paresh Chandra Adhikari should not be allowed to enter the concerned school premises until further orders and must also deposit the total salary received so far during her tenure as an assistant school teacher with the Registrar General of the High Court. The directions were issued while adjudicating upon a plea filed by an aggrieved candidate who had alleged that she had been deprived of the job despite having secured higher marks than the Minister's daughter in the recruitment examination. Coming down heavily on such an illegal appointment, Justice Abhijit Gangopadhyay ordered that the Minister's daughter namely Ankita Adhikari shall not be allowed to be treated as a teacher recommended by the West Bengal School Service Commission (SCC) and appointed by the West Bengal Board of Secondary Education until further orders passed by the Court. The Court further underscored that Adhikari or any other person on her behalf shall not be allowed to enter the concerned school premises and also restrained Adhikari from introducing herself as a teacher of the school recommended by the Commission until further orders. "If any such report comes to this Court that she has introduced herself as a teacher of the school, the Court will take appropriate steps against her", the Court warned further. Furthermore, the Court ordered Adhikari to deposit the total salary received by her till date during her tenure with the Registrar General of the High Court in two instalments. The first instalment was ordered to be paid by June 7, 2022 and the second instalment was ordered to be paid by July 7, 2022.
Case Title: Partha Chatterjee v Laxmi Tunga
Case Citation: 2022 LiveLaw (Cal) 197
The Calcutta High Court on Friday dismissed an appeal moved by West Bengal Minister Partha Chatterjee challenging an order of a single Bench that had directed him to appear before the CBI in connection with the alleged irregularities in appointments of Group-C and Group-D posts (non-teaching staff) in the state government-run schools in West Bengal on the purported recommendation of the West Bengal School Service Commission (WBSSC). A Bench comprising Justice Ananda Kumar Mukherjee and Justice Subrata Talukdar observed that the issue of CBI investigation in these matters has already been discussed threadbare in a series of appeals and has been upheld previously by the Bench in its order dated May 18, 2022. Dismissing the appeal filed by the Minister, the Court on Friday observed, "First, the issues connected to the nature of the investigation have been already discussed threadbare by this Court in a series of appeals being MAT 490 of 2022 (Dr. Santi Prasad Sinha –Vs- Laxmi Tunga & Ors.) with other similar appeals by a common Judgment and Order of this Court dated 18th May, 2022. This Court therefore finds no reason to sit either in appeal or judicial review of its own Order dated 18th May, 2022 presented in the guise of a separate appeal. This appeal accordingly cannot be argued by the appellant on points already decided by the common and detailed Judgement and Order of this Court dated 18th May, 2022." During the proceedings, the counsel appearing for the Minister further sought expungement of Justice's Gangopadhyay observation in the order wherein he had requested Chief Minister Mamata Banerjee and also Governor Jagdeep Dhankhar to remove minister Partha Chatterjee from the cabinet in order to make the 'system cleaner'. Taking cognisance of the grievance raised, the Court ordered the observations of Justice Gangopadhyay in this regard to be treat as an 'obiter dicta' and accordingly ruled, "However, with regard to the expression of the expectation by the Hon'ble Single Bench in its Order dated 18th May, 2022, this Court holds the same to be an obiter and hence not binding at this stage."
Case Title: Alo Rani Sarkar v. Swapan Majumdar
Case Citation: 2022 LiveLaw (Cal) 198
The Calcutta High Court rejected the election petition of TMC leader Alorani Sarkar challenging the Bangaon Dakshin Assembly result in the 2021 Assembly elections on the ground that she has dual citizenship as her name also appears in the voters' list in neighbouring Bangladesh. The Court further directed the Election Commission of India for taking necessary action in respect of the Sarkar's status in this country and accordingly directed the Registrar General of the High Court to send a copy of the order to the Election Commission. Justice Bibek Chaudhuri observed, "In the instant case the petitioner admitted that she acquired citizenship of Bangladesh mistakenly. However, the name of the petitioner still exists in the Electoral Roll of Bangladesh. I am in agreement with the learned advocate for the respondent that the principle of 'Dual Citizenship' is not applicable in India. Therefore, the petitioner cannot claim to be a citizen of India when her name appeared in the Electoral Roll of Bangladesh. The relevant date is the date of filing nomination paper by the petitioner. It is admitted from the documents filed by the petitioner that on the date of filing of the nomination paper by her she was a Bangladeshi national." Directing the Election Commission to take action, the Court further observed, "In view of the peculiar facts and circumstances of this case, a copy of this order be sent to the Election Commission of India for information and taking necessary action in respect of the petitioner's status in this country as on this date, through the learned Registrar General, High Court, Calcutta."
Case Title: Kaniska Roy & Anr v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 199
The Calcutta High Court directed students of a university who had been found to have engaged in ragging to pay for the medical treatment of the injured students and also participate in community service by teaching school students in a bid to deter the repetition of such acts. Justice Moushumi Bhattacharya came down heavily on the errant students by observing, "The petitioners have admittedly disturbed and disrupted the peaceful environment of the University. The petitioners and some others have acted like a bunch of philistines and conducted themselves in a manner which is directly contrary to what should be expected from a student. Ragging, in all its forms, is antithetical to equality and the dignity and self-respect of students, particularly when it takes on a physical and abusive form. It epitomises regressive behaviour with a perceived right to violate the bodily integrity of a fellow-student. There can be no possible excuse for acts of violence and vandalism in an academic institution." Directing the petitioners to engage in community service, the Court observed further, "The petitioners shall also do community service by teaching students in Sadaipur Prathamik Vidyalay and Subhasnagar FP School, Kokapur schools in Barasat, two days in a week for four hours each day for 12 weeks. The community service shall start from the 1st day of the last paper of 8th semester examination and continue for 12 weeks thereafter without interruption."
Case Title: New Eureka Travels Club v. South Bengal State Transport Corporation
Case Citation: 2022 LiveLaw (Cal) 200
The Calcutta High Court while adjudicating upon an application under Section 11 of the Arbitration and Conciliation Act, 1996 (Act) held that it a settled law that neither an interested party can be appointed as an arbitrator nor can the said interested party appoint an arbitrator to decide the disputes between the parties. Justice Shekhar B. Saraf observed, ".. a sole arbitrator is required to be appointed as per the parties and under such circumstances the law is very clear that it is the Court that is to decide the sole arbitrator. The persons that have been nominated by the respondent cannot be accepted and this Court without going into the merits of the persons so nominated, should appoint an independent sole arbitrator." Reliance was also placed on a host of Supreme Court judgments in TRF Limited v. Energo Engineering Projects Ltd, Perkins Eastman Architects v. HSCC (India) Limited and Central Organisation for Railways Electrification v. ECI-SPIC-SMO- MCML (JV) A Joint Venture Company to rule, "..it is clear that neither an interested party can be appointed as an arbitrator nor can the said interested party appoint an arbitrator to decide the disputes between the parties."
Important Developments
Case Title: Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters
The Calcutta High Court on Tuesday directed IPS officer Amit P. Javalgi to enquire into allegations pertaining to fabrication of signatures of seizure witnesses pertaining to the Moynaguri sexual assault case and further granted liberty to him to change the concerned Investigating Officer if required in accordance with law. The directions were passed in a case of death by suicide by a class eight girl at Moynaguri, West Bengal following the commission of the offence of attempt to rape upon her. The minor victim girl who had set herself ablaze following a threat to withdraw a police complaint regarding a rape attempt on her, succumbed to her injuries in a state-run hospital on April 25. Consequently, a renewed prayer for a CBI probe had been made by the concerned petitioner. A Bench comprising Chief Justice Prakasha Shrivastava and Justice Rajarshi Bharadwaj opined that the truthfulness or falsity of the allegations pertaining to the seizure witnesses is the subject matter of trial. However, it was opined that since the allegations have come on record, the Court directed IPS officer Amit P. Javalgi to duly consider these allegations and ensure that the investigation is carried out in a fair manner.
Case Title: Priyanka Tibrewal v. State of West Bengal and Ors
The Calcutta High Court on Tuesday sought response from the National Human Rights Commission (NHRC) on the allegation levelled by the State government that contrary to the Court's earlier order for constitution of a 3 member committee to look into the complaints of displaced post-poll violence victims in West Bengal, the NHRC had constituted a team of 11 members. On Tuesday, Advocate General S.N Mookherjee appearing for the State government submitted before a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj that although the Court vide order dated April 20, 2022, had formed a 3 member committee to enquire into the rights of displaced persons, however a communication received from the Under Secretary of the NHRC by the Chief Secretary of Government of West Bengal dated May 10, 2022, shows that a team of 11 members has been included by expanding the mandate of the committee constituted by the Court. On the contrary, the counsel appearing for the NHRC submitted that the committee constituted pursuant to the Court's order comprises of 3 members as directed and that the team of 11 officers has been formed for carrying out ministerial work as a large number of complaints have been received so far by the committee. The Court was further apprised that the Court constituted 3 member committee had itself taken such a decision to have a team of 11 officers to aid in the ministerial work as is evident from the minutes of the meeting held on May 11, 2022. Pursuant to the rival submissions, the Court ordered the counsel appearing for the NHRC to file a reply to the application filed by the State government regarding the aforementioned allegations by tomorrow i.e. May 18.
Case Title: Anindya Sundar Das v. State of West Bengal
The Calcutta High Court on Tuesday sought response from the State government on a Public Interest Litigation (PIL) petition alleging that State-owned public transport buses are being allowed to ply without proper documentation such as certificate of registration, certificate of fitness, insurance policy and others. The PIL filed by petitioner Anindya Sundar Das had made a reference to a recent incident wherein after a bus owned by the South Bengal State Transport Corporation met a disastrous fate on May 2 at Kanaidanga crossing in Memari on the NH-19 highway. The speeding bus fell into a ditch after hitting the railing of a bridge injuring seven passengers. The bus bearing registration number WB – 39B/4590 was plying on Karunamoyee (Kolkata) – Asansol route. Taking cognisance of the grievance raised, a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed the respondent authorities to file an affidavit-in-opposition within a period of 4 weeks. Furthermore, the exception to the affidavit-in-opposition was ordered to be filed within 2 weeks thereafter. https://www.livelaw.in/news-updates/pil-filed-in-calcutta-hc-on-state-owned-public-transport-buses-plying-without-valid-registration-fitness-certificate-198579
The Calcutta High Court on Tuesday while adjudicating upon a plea moved by a Lashkar-e-Taiba (LeT) terrorist to argue in person his appeal against the order of conviction and death sentence imposed upon him, directed that he should ordinarily access Court proceedings through video linkage from the correctional home and appear in person before the Court only on dates that he wishes to advance oral arguments. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi on the last date of hearing had ordered that the convict should be kept in Presidency Correctional Home in Kolkata during the hearing of the appeal. Furthermore, the Bench had requested the Member Secretary, State Legal Services Authority to provide the services of a junior empanelled lawyer to interact with him for filing pleadings and advancing arguments in the matter. Directing that the convict should ordinarily appear through before the Court through video proceedings, the Court observed, "It is made clear Sk. Abdul Nayeem will ordinarily access the proceedings through video linkage from the correctional home where he is presently kept. Only on those dates Sk. Abdul Nayeem advances oral arguments, he shall be produced physically before this court under proper security arrangements."
Case Title: Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters
The Calcutta High Court on Tuesday ordered IPS officer Damayanti Sen to submit a status report on the next date of hearing pertaining to the probe into the Namkhana rape case wherein a 40-year-old woman was reportedly gang-raped on April 8 by five men in West Bengal's Namkhana village and an attempt had also been made to pour kerosene inside the victim's private parts and set her ablaze. On Tuesday, the counsel appearing for the petitioner apprised the Court that the investigating authorities had not complied with the requirements enumerated under Section 164A CrPC (medical examination of victim of rape) and further submitted that although the undergarments, saree, blouse and ornaments of the victim had been seized no further step has been taken by the investigating authorities. It was further alleged that the seized blood stained garments of the rape victim had not been sent for a chemical examination. A Bench comprising Chief Justice Prakasha Shrivastava and Justice Rajarshi Bharadwaj directed IPS officer Damayanti Sen to look into the allegations and ensure that the investigation is carried out by covering all relevant aspects which need to enquired into in such offences. She was further ordered to submit a report detailing the progress of the investigation on the next date of hearing. The matter is slated to be heard next on June 20.
Case Title: Amrita Pandey v. The Union of India and others
The Calcutta High Court on Thursday directed the State government to apprise the Court about the findings of the report of the Central Forensic Science Laboratory (CFSL), Kolkata on the next date of hearing pertaining to the death of Bharatiya Janata Party (BJP) West Bengal youth leader Arjun Chowrasia who was found hanging inside a building in North Kolkata's Ghosh Bagan area. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition seeking judicial intervention into the incident of unnatural death on allegations of foul play. On Thursday, advocate Priyanka Tibrewal appearing for the petitioner submitted that the viscera report is necessary to ascertain the nature of the crime and determine the case of death. Furthermore, Advocate General S.N Mookherjee appearing for the State apprised the Court that on May 13, the viscera sample had been received by the investigating agencies from the Command Hospital, Kolkata which was subsequently handed over to CFSL, Kolkata for the conduct of an analysis.Accordingly, the Court directed the Advocate General to apprise the Court about the report of the CFSL, Kolkata pertaining to the viscera sample on the next date of hearing which is slated to take place on June 14. Furthermore, an intervening application filed by the mother of the deceased seeking inter-alia a CBI probe into the case was also mentioned before the Bench on Thursday. Thus, the Bench directed the State government to file a response to the intervening application if required before the next date of hearing.
Case Title: Babita Sarkar v. The State of West Bengal & Ors
The Calcutta High Court on Thursday modified its earlier order for sealing of the office of the State's School Service Commission till 1pm on Thursday by granting liberty to the Chairman, Advisor to the Chairman, Assistant Secretary and stenographers of the Commission to enter the office without any hinderance caused by the central forces deployed there. Justice Abhijit Gangopadhyay in an unprecedented move had directed the Central Bureau of Investigation (CBI) which is probing the alleged irregularities in the recruitment of teachers in West Bengal government schools, to seek assistance of central forces in securing the State's School Service Commission office. On Thursday morning, Justice Gangopadhyay opined that he is modifying his earlier order in the 'interest of justice' by permitting the Chairman of the Commission, Advisor to the Chairman, Assistant Secretary and stenographers of the Commission to enter the office without any obstruction. The Court however underscored that nobody apart from the aforementioned officials should be allowed the enter the office premises till 1pm without the leave of the Court.
A Division Bench of the Calcutta High Court on Thursday recused from hearing an appeal preferred by the State government against a Single Bench order directing the Central Bureau of Investigation (CBI) to take assistance of central forces to secure the West Bengal School Service Commission (SCC) building in Kolkata over claims of evidence tampering pertaining to the case of alleged illegal recruitments in West Bengal government schools. Justice Abhijit Gangopadhyay had passed the impugned order by conducting a special hearing of the case from 10:40 pm onwards on Wednesday night after the incumbent SSC Chairperson Siddhartha Majumdar resigned from his post, four months after taking charge. Following the news of the Chairperson's resignation, two counsels of the petitioners had met Justice Gangopadhyay on Wednesday night and had apprised him that there existed an apprehension that crucial evidence could be tampered with in the wake of the new SSC chairperson taking charge. Accordingly, the Judge had ordered for the preservation of CCTV footage and had further observed, "The Secretary of the School Service Commission is directed to produce the CCTV footage before me at 12.30 a.m. tomorrow. The Secretary is to preserve all the digital information and the database if not already destroyed." He had further directed that no one should enter the building till 1 pm on Thursday without the leave of the Court and ensure that the CCTV footage of the office is available by Thursday noon. On Thursday, a Division Bench of Justice Harish Tandon and Justice Rabindranath Samanta recused from hearing the appeals filed preferred from Justice Gangopadhyay's order on personal ground.
Case Title: Babita Sarkar v. The State of West Bengal & Ors.
The Calcutta High Court on Thursday directed Minister of State for School Education Paresh Chandra Adhikari to appear before the Central Bureau of Investigation (CBI) by 3pm today over the alleged appointment of his daughter as a teacher in a government-aided school. The direction was issued on a petition by a candidate who had alleged that she was deprived of the job despite having secured higher marks than the minister's daughter in the recruitment examination. Justice Abhijit Gangopadhyay issued the direction despite vehement opposition from the Minister's counsel on the ground that the Minister is currently at Cooch Bihar and thus would take time to appear before the CBI office in Kolkata by 3pm today. "The minister is very powerful why he cannot come?", Justice Gangopadhyay orally remarked during the proceedings. Accordingly, on Thursday, Justice Gangopadhyay observed that it was granting one last opportunity to the Minister to appear before the CBI by 3pm today. "At 3pm he has to present himself before the CBI, if he fails, I will pass other order", Justice Gangopadhyay orally remarked further while addressing the Minister's counsel.
Case Title: Suvendu Adhikari v. The State of West Bengal & Ors.
The Calcutta High Court on Thursday directed the Superintendent of Police, Purba Medinipur to file a report on the alleged search conducted by police authorities at the office of BJP MLA and Leader of Opposition of West Bengal Suvendu Adhikari last Sunday. Adhikari had contended that a police team had raided his office situated in Nandigram in West Bengal's Purba Medinipur district, allegedly without any prior intimation and without a search warrant. This had prompted West Bengal Governor Jagdeep Dhankhar to seek an urgent report from the state chief secretary H K Dwivedi over an "attack by the police" on the BJP MLA's office. The counsel appearing for Adhikari submitted before Justice Rajasekhar Mantha on Thursday that a huge contingent of police personnel numbering about 100 odd had forcibly entered into the petitioner's premises under the guise of search and seizure. It was further contended that despite repeated requests, the leader of the search party had not indicated as to the case under which the petitioner's house was being searched and the purpose thereof. Pursuant to the submissions, the Court ordered, "This Court directs the Superintendent of Police, Purba Medinipur to file a report indicating the circumstances under which the petitioner's house was raided on 15th May 2022 at 04:15 pm. The report of the Superintendent of Police, Purba Medinipur should indicate the entire chain of events and facts and circumstances relating to the raid." Justice Mantha further ordered that the Court's leave should be sought if the police authorities require the participation of Adhikari in any form pertaining to the criminal case in the future.