Calcutta High Court Weekly Round-Up: August 21 To August 27

NOMINAL INDEX

1. Surojit Dasgupta Vs State Of West Bengal And Ors 2023 LiveLaw (Cal) 229
2. Dwaipayan Das Vs. State of West Bengal & Anr. & connected application. 2023 LiveLaw (Cal) 230
3. Sri X v State of West Bengal & ors 2023 LiveLaw (Cal) 231
4. Sanjoy Mondal Vs. The State of West Bengal 2023 LiveLaw (Cal) 232
5. Bishal Das & Ors. Vs. The State of West Bengal & Ors 2023 LiveLaw (Cal) 233
6. Subhas Chandra Patra Vs. The State of West Bengal & Ors. 2023 LiveLaw (Cal) 234
7. Rajib Samanta v The State of West Bengal & Ors. 2023 LiveLaw (Cal) 235
8. Manab Jati Kalyan Foundation and another Vs. The State of West Bengal and others 2023 LiveLaw (Cal) 236
9. Pritimoy Chakraborty Vs. Union of India & Ors. 2023 LiveLaw (Cal) 237
10. Nirmal Kumar Das @ Nirmal Das v The Kolkata Municipal Corporation & Ors. 2023 LiveLaw (Cal) 238
11. Uphealth Holdings Inc. v Glocal Healthcare Systems Pvt. Ltd. & Ors. 2023 LiveLaw (Cal) 239

1. Discipline Must Be Maintained By Devotees’: Calcutta HC Dismisses PIL For Guidelines On Visiting Jalpesh Shiv Temple, Directs DM To Consider

Case: Surojit Dasgupta Vs State Of West Bengal And Ors

Citation: 2023 LiveLaw (Cal) 229

The Calcutta High Court has dismissed a PIL seeking issuance of guidelines for regulation of pilgrims visiting the Jalpesh Temple shivmandir in North Bengal, on the grounds that the authorities were “depriving the petitioners of the fundamental right” to observe their age-old practise of offering holy water to the deity at the temple by entering its “garba griha.”

In ordering the District Magistrate and other officials to hold a public consultation/hearing looking into the suggestions placed by the petitioners “bearing in mind the convenience of the worshipping public,” a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya held:

“So far as regulating manner of worship in temple or any other place, it best be left with the district administration to take care of the same. There are several instances in West Bengal where the district administration has been proactively regulating the influx of the pilgrims in various places of worship as well as places of public importance. Therefore the petitioner and his co-signatories should bestow confidence in the district administration that they will do the best to ensure that the devotees offer their prayers in an appropriate manner.”

2. Misuse Of S.498A IPC By Women Unleashes “Legal Terrorism”: Calcutta High Court Quashes Domestic Violence Case Against Husband & In-Laws

Case: Dwaipayan Das Vs. State of West Bengal & Anr. & connected application.

Citation: 2023 LiveLaw (Cal) 230

The Calcutta High Court on Monday, quashed two criminal complaints filed by a wife (“opposite party no 2"), against her husband and in-laws (“petitioners”), on various counts of domestic violence, attempted murder, criminal intimidation, etc. under the IPC.

In noting that the medical evidence on record, as well as witness statements did not corroborate with the opposite party no 2’s version of events, a single-bench of Justice Subhendu Samanta quashed the criminal proceedings, and held:

“The allegation of physical and mental torture in both the cases appears to be general and omnibus. The ingredients of the offence specifically the statement of available witnesses does not disclose any specific prima facie materials by which the present petitioner can be entangled for the offences u/s 498A IPC. The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed.”

3.'Wishing The Best' To Minor Gang-Rape Survivor, Calcutta High Court Allows Termination Of 25+ Weeks Pregnancy

Case: Sri X v State of West Bengal & ors

Citation: 2023 LiveLaw (Cal) 231

The Calcutta High Court permitted medical termination of pregnancy of a minor gang rape survivor, which had exceeded the 24-week statutory limit under the Medical Termination of Pregnancy Act, 1971.

On an earlier occasion, the Court had noted that the present case fell under the exception envisaged under the 1971 Act, wherein there could be a risk to the life of the mother in case the pregnancy was allowed to continue, and had directed the formation of a medical board to assess the viability of abortion for the minor girl who was 25+ weeks pregnant.

Upon perusing the report of the medical board, a single bench of Justice Sabyasachi Bhattacharya held:

The crux of the said report is that considering the circumstances and the physical and mental conditions of the patient, the Board Members have arrived at a decision that pregnancy should be terminated, but for the safety of the patient and to mitigate any complication, it should preferably be done at a higher centre than the one where the survivor is now located. Since an extremely fair stand has been taken by the respondent nos. 7 and 8, the respondent nos. 7 and 8 are directed to ensure that the survivor, whose pregnancy is to be terminated medically, is brought to the SSKM Hospital at Kolkata, taking due care that the said survivor is attended to medically during such transit.

4. Victim’s Statement Cannot Be 'Blindfolded Foundation Of Guilt': Calcutta HC Discharges Man Accused Of ‘Pouring Hot Oil’ On Octogenarian Lady

Case: Sanjoy Mondal Vs. The State of West Bengal

Citation: 2023 LiveLaw (Cal) 232

The Calcutta High Court on Wednesday 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.

5. Multiple Inmates Kept In Separate Cell Due To Threat Perception Of Jail Authorities Not Solitary Confinement: Calcutta High 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.

6. ‘Prima Facie Forgery, No Equity For Practising Fraud Before Court’: Calcutta High Court Proposes Perjury Action Against School Headmaster

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.

7. Level Playing Field For Political Parties: Calcutta High Court Allows Opposition Rally, Says S.144 CrPC Cannot Be Promulgated At The Drop Of A Hat

Case: Rajib Samanta v The State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 235

The Calcutta High Court recently set aside an order under Section 144(2) CrPC (apprehension of nuisance or danger), passed by Sub-divisional magistrate, Contai, preventing public gatherings, due to which the petitioner, an opposition party leader, was prevented from holding a political rally.

In setting aside the magistrate’s order, and laying down a comprehensive set of guidelines for the petitioners to hold their political rally, a single-bench of Justice Jay Sengupta held:

Promulgation of an order under Section 144 of the Code cannot be done at the drop of a hat. It has to be done by exercising more care and circumspection and with a better reasoning. Afterall, we are dealing with rights of the citizens of India. In view of the above, the impugned order passed under Section 144(2) of the Code cannot be sustained. Accordingly, the same is set aside. The duty of the Administration is to provide a level playing field to all political dispensations to hold rallies and processions. The law and order is a thing that the Administration would have to take care of. The circumstances do not appear to be such where a political rally or a meeting cannot be held.

8. Durga Puja Not ‘Mere Religious Offering’, Meeting Ground For People Of All Caste, Creed, Gender Or Religion: Calcutta High Court

Case: Manab Jati Kalyan Foundation and another Vs. The State of West Bengal and others

Citation: 2023 LiveLaw (Cal) 236

The Calcutta High Court has recently observed that Durga Puja, celebrated predominantly in West Bengal, is not merely a religious offering, but rather “much more secular in nature than a pure religious performance by a particular community.”

In allowing the petitioner’s plea for hosting their “Durga Utsab 2023” celebrations on the New Town Mela Ground, a single-bench of Justice Sabyasachi Bhattacharya opined:

Argument of the respondent-Authorities [New Town Kolkata Development Authority] regarding the petitioners not having any choice to hold worship or organize religious offerings wherever they wish, falls flat, in view of the implicit character of the Durga Puja Festival held in the State of West Bengal. As is public knowledge, the Durga Puja Festival is not confined merely to the worship or religious offerings component of the incarnation of feminine power but also a melting pot of different cultures. People from all over the state, the country and even from abroad, come to West Bengal purely for the purpose of observing the fanfare and the cultural milieu in the state during Durga Puja Festivals. Hence, there is as much an element of ceremony, cultural programmes, festival and fanfare involved as religious worship.

9. Too Much To Ask ED To Record Reasons At Every Stage, Even While Issuing Summons Under PMLA: Calcutta High Court

Case: Pritimoy Chakraborty Vs. Union of India & Ors.

Citation: 2023 LiveLaw (Cal) 237

The Calcutta High Court recently dismissed a plea for no coercive measures and quashing of summons moved by one Pritimoy Chakraborty against the Enforcement Directorate (“ED”) under the Prevention of Money Laundering Act (“PMLA”).

In holding that the petitioner failed to show any patent illegality in the ED’s summons, or to make out a case for “the extraordinary relief of no-coercive action,” a single-bench of Justice Jay Sengupta held:

In exercise of powers under Section 50 of the PMLA Act, it was specifically directed that the petitioner should attend in person. It will be too much to ask the authorities to record reasons at every stage even while issuing summons in terms of Section 50 of the PMLA Act. Therefore, I do not find any reason as to why the petitioner could not co-operate with the proceeding. The petitioner also could not show any patent illegality in the summoning of the petitioner by the Enforcement Directorate. No case is made out either to seek the exceptional relief of ‘not to take coercive action’. In fact, such relief could be granted only in very exceptional cases.

10. Illegal Constructions Menace To Society: High Court Upholds Demolition Order, Raises Concerns On Kolkata Municipal Corporation's Efficacy

Case: Nirmal Kumar Das @ Nirmal Das v The Kolkata Municipal Corporation & Ors.

Citation: 2023 LiveLaw (Cal) 238

The Calcutta High Court recently upheld a demolition order by the Kolkata Municipal Council (“KMC”) issued under Section 400(8) of the KMC Act against an unauthorised construction made by the petitioner who had ignored previous ‘stop-work’ notices and even an FIR filed by KMC in that regard.

A division-bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray expressed its objections on the extent of illegal constructions being initiated within the jurisdiction of the KMC without their immediate intervention.

"When a stop work notice was issued from the side of the KMC, the person responsible should have stopped the construction work and approached the KMC authority. Admittedly he was carrying on the construction without sanctioned plan in violation of the provisions as laid down in Sections 392 and 393 of the KMC Act. If the person responsible thinks that whatever be the nature and extent of his erection work, he can raise construction defying the stop work notice and defying the allegations made against him in the FIR only because that there are certain beneficial provisions for regularizing unauthorized constructions, he has committed a grave mistake and the KMC authority certainly has powers to demolish the unauthorized structure…in societal interest…even without giving him any opportunity of hearing."

11. Holistic, Common-Sense Approach Required To Interpret Arbitration Clause: Calcutta HC Grants Interim Relief To US-Based Healthcare Company

Case: Uphealth Holdings Inc. v Glocal Healthcare Systems Pvt. Ltd. & Ors.

Citation: 2023 LiveLaw (Cal) 239

The Calcutta High Court while exercising its admiralty jurisdiction, recently allowed an application for interim relief by Uphealth Holdings Inc. a wholly owned subsidiary of Uphealth Inc., a US-based healthcare company under section 9 of the Arbitration & Conciliation Act, 1996.

Justice Ravi Kishan Kapur observed that the applicant had made out a prima facie case for interim relief regarding an arbitrable dispute over its Share-Purchase Agreement (“SPA”) with the respondent.

"There is no question of non-arbitrability of any of the disputes raised in this proceeding. All the disputes raised in this proceeding are covered under the SPA and are ex facie contractual disputes. There is also no merit in the contention that the SPA is confined only to the purchase and sale of shares. This argument is misconceived and ignores the entire scope, purport and ambit of the SPA. All the reliefs sought for are in aid of and to protect the subject matter of the arbitration and to preserve the rights of the parties under the SPA. The Arbitral Tribunal is fully competent to consider and decide all other issues. For the foregoing reasons, the petitioner has been able to demonstrate a strong prima facie case on merits. The balance of convenience and irreparable injury are also in favour of orders being passed as prayed for herein."

OTHER DEVELOPMENTS

1. 'Desecration Of National Flag A Disgrace': Calcutta High Court Issues Notice To State In Plea Over Communal Violence On Independence Day

Case: Suvendu Adhikari v State of West Bengal & ors

The Calcutta High Court today issued notice on a PIL filed by BJP's Leader of Opposition in West Bengal, Suvendu Adhikhari alleging incidents of stone-pelting, communal violence and “desecration of the national flag by members of a certain community” at a government school in Bansaberia.

In taking serious exception to the incidents being alleged, a division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya directed the State to file affidavits in the matter, and orally remarked:

Forget about who has filed this PIL, but, isn’t it a disgrace that the desecration of the flag has happened? The flag code has been amended so that everyone who hoists it has to respect it according to the norms as laid down. It is not permissible to give every issue a political colour. It was a public occasion and many people would’ve seen the incident. Merely because you close your eyes it cannot become dark. State needs to make a proper statement. The problem is, when any cause is brought out, the focus appears to be on the person who has brought the cause and not the cause itself.

2. ‘Public Interest Or Political Interest Litigation?’: Calcutta High Court In Plea For FIRs Against Suvendu Adhikari Over Panchayat Election Comments

Case: Suman Singh v State of West Bengal & ors

The Calcutta High Court today took up a PIL upon directions of the Supreme Court, pertaining to registration of FIRs and initiation of criminal proceedings against BJP's Leader of Opposition in West Bengal, Suvendu Adhikari.

A CJI-led bench of the Supreme Court had set aside an order of a division-bench presided over by Justice I.P. Mukherji, which had lifted a stay on coercive action against Adhikari, and directed the West Bengal police to register an FIR for his comments during the Panchayat elections, on the basis of the PIL.

The Supreme Court had also directed for the matter to be placed before the Chief Justice of the Calcutta High Court for fresh consideration, without being influenced by any earlier orders passed in the matter.

Upon taking up the matter, a bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya orally remarked,

“We have to first decide whether it is a public interest litigation or political interest litigation. We are not concerned about who comes as a petitioner…yesterday the concern of the state was who is the petitioner not what is the cause…we have made an observation, you please read the newspaper today. In a PIL the court doesn’t need to hear the petitioner, he only brings it to the attention of the court. In the election matters we have observed that you are turning court into a political battlefield.”

3. Live-Streaming Truly Enables ‘Open Court’: Calcutta High Court Commences Live-Streaming Of Proceedings From Circuit Bench At Port Blair

The Calcutta High Court has commenced live-streaming of Court proceedings from its Circuit Bench at Port Blair in the Andaman and Nicobar Islands, further extending its distinction of having the highest number of live-streamed courts across all High Courts in the country.

The inauguration ceremony was presided over by Chief Justice T.S. Sivagnanam, who emphasised on the importance of live-streamed proceedings. He said:

“It is always said, that live-streaming has opened the doors of the Court virtually, making it truly an open court. We had to learn this technique during difficult COVID pandemic times, but this project has remained thanks to the efforts of the CJI, who has always insisted that this project should not be disbanded, because substantial revenue was spent over this facility. Therefore, Calcutta High Court has always been proactive with VC systems in all courtrooms including circuit benches and district courts.”

4. Provide Check List To Police On Power Of Arrest, No Automatic Arrests U/S 498A IPC: Calcutta High Court Issues Guidelines

The Calcutta High Court has recently issued a notification, framing guidelines for all criminal courts in West Bengal and Andaman & Nicobar Islands, pertaining to arrest by police officials, in pursuance of directions of the Supreme Court of India, in the case of Md. Asfak Alam vs The State of Jharkhand & Anr.

It said: “The endeavour of the Hon’ble Supreme Court in the above-mentioned judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically.”

Notably, in the aforesaid case, the Supreme Court had asked for the guidelines on arrest laid down in the case of Arnesh Kumar v State of Bihar to be scrupulously followed.