Calcutta High Court Monthly Digest: June 2023

NOMINAL INDEX [Citations 148-179]

1. Decco Worldwide Post Harvest Holdings B.V & Anr. V The Controller of Patents and Designs & Anr 2023 LiveLaw (Cal) 148
2. Sujit Kumar Datta v The State of West Bengal & Ors 2023 LiveLaw (Cal) 149
3. Sutapa Adhikari & Ors v State of West Bengal & Anr 2023 LiveLaw (Cal) 150
4. Sekhar Kr Roy v Lila Roy & Anr 2023 LiveLaw (Cal) 151
5. Deepak Chatterjee @ Dipak Chatterjee & Ors. v. The State of West Bengal & Anr 2023 LiveLaw (Cal) 152
6. Homevista Décor & Furnishing Pvt. Ltd. v. Connect Residuary Pvt. Ltd. 2023 LiveLaw (Cal) 153
7. Blue Star Limited v. Rahul Saraf 2023 LiveLaw (Cal) 154
8. Pan Seeds Pvt. Ltd. v Ramnagar Seeds Farm Pvt. Ltd. and Ors. 2023 LiveLaw (Cal) 155
9. Atindra Nath Mondal v State of WB and ors 2023 LiveLaw (Cal) 156
10. Suvendu Adhikari & Ors v. WB State Election Commission 2023 LiveLaw (Cal) 157
11. Sri Santosh Saha and Anr vs The Managing Director, Calcutta State Transport Corporation 2023 LiveLaw (Cal) 158
12. Dinesh Kumar Birla v Institute of Cost Accountants of India and Anr 2023 LiveLaw (Cal) 159
13. Apollo Multispeciality Hospitals Limited & Anr. vs. West Bengal Clinical Establishment Regulatory Commission 2023 LiveLaw (Cal) 160
14. Abdul Maleque Molla & Ors. v. West Bengal State Election Commission & Ors 2023 LiveLaw (Cal) 161
15. Suvendu Adhikari & Anr vs State Of West Bengal & Ors 2023 LiveLaw (Cal) 162
16. Sunit Sarkar v. Commissioner, WB SEC 2023 LiveLaw (Cal) 163
17. State of West Bengal v Soumen Nandy 2023 LiveLaw (Cal) 164
18. Manoj Mishra v State of WB 2023 LiveLaw (Cal) 165
19. Spot Billing Meter Readers Welfare Association v State of WB & ors 2023 LiveLaw (Cal) 166
20. The State of West Bengal and Others v Sabita Roy and connected petitions. 2023 LiveLaw (Cal) 167
21. Professor Syed Haider Hassan Kazimi & Ors. vs State of West Bengal & Anr 2023 LiveLaw (Cal) 168
22. Kausik Ghosh & Ors. Vs. The State of West Bengal & Ors. 2023 LiveLaw (Cal) 169
23. Ranju Jha Vs Narendra Kharka And Ors 2023 LiveLaw (Cal) 170
24. Prakash Shaw v. State of West Bengal 2023 LiveLaw (Cal) 171
25. West Bengal State Election Commission and another vs. National Human Rights Commission and others 2023 LiveLaw (Cal) 172
26. Shree Gopal Tantia @ Gopal Prasad Tantia Vs. The State of West Bengal & another 2023 LiveLaw (Cal) 173
27. Beshaka Mondal & Ors v. The State of West Bengal & Ors 2023 LiveLaw (Cal) 174
28. Guha Roy Food Joint and Hotel Private Limited & Anr. v. Richa Singh & Ors 2023 LiveLaw (Cal) 175
29. Dr Sanat Kumar Ghosh V. The Chancellor, University of Kalyani And Others 2023 LiveLaw (Cal) 176
30. Dipak Kumar Mondal & Ors. v The State of West Bengal 2023 LiveLaw (Cal) 177
31. Ustor Ali Biswas v The Commissioner, The West Bengal State Election Commission & Ors 2023 LiveLaw (Cal) 178
32. Naju Bibi @ Narjina Bibi v The State of West Bengal 2023 LiveLaw (Cal) 179

1. Reasons Are The Foundation Of Any Order": Calcutta High Court Allows Decco's Appeal Against Rejection Of Patent Application.

Case Title: Decco Worldwide Post Harvest Holdings B.V & Anr. V The Controller of Patents and Designs & Anr (AID 11 of 2021) Citation: 2023 LiveLaw (Cal) 148

The Calcutta High Court set aside an order passed by the Assistant Controller of Patents and Designs rejecting a Patent Application filed by agrochemical multinational UPL's postharvest division Decco Worldwide for their invention titled “A fungicidal treatment for black sigatoka,” to prevent leaf-disease.

In dealing with Section 10(4) of the Patent Act, the Court held that there was no opportunity for disclosure afforded to the applicants, since at the hearing before the Controller, “there was no whisper about any objection concerning the disclosure being insufficient.”

Justice Ravi Krishan Kapur remanded the respondent authorities to adjudicate the patent application afresh including the question of patentability, after giving an opportunity of hearing to the appellant; although the observations made by the single-judge bench would be non-binding for the re-appraisal of the application.

2. Calcutta High Court Dismisses PIL Against Softwares Like 'Pegasus' Allegedly Used For Privacy Infringement

Sujit Kumar Datta v The State of West Bengal & Ors [W.P.A(P) No. 239 of 2023]

Citation: 2023 LiveLaw (Cal) 149

The Calcutta High Court dismissed a PIL calling upon it to decide the issue of individual’s right to privacy allegedly being violated by spyware such as Pegasus, said to be installed on people’s personal electronic devices without their knowledge.

A bench of Chief Justice T.S. Sivagnaman and Justice Hiranmay Bhattacharya opined that such blanket directions against the use of modern technology for allegedly being violative of the fundamental right to privacy of individuals could not be passed. Further, according to the Chief Justice, due to the vague nature of the submissions and prayers of the petitioner, the Court could not arrive at the specific questions of law involved. However, the petitioner was directed to approach the appropriate authorities in case his own right to privacy was being affected.

3. Police Can't Misuse S.160 CrPC To Arrest Persons Unconnected With Alleged Offence: Calcutta High Court In Plea By Suvendu Adhikari’s Acquaintances

Case title: Sutapa Adhikari & Ors v State of West Bengal & Anr (CRR 2464 of 2022)

Citation: 2023 LiveLaw (Cal) 150

The Calcutta High Court has made it clear that Section 160 of the CrPC which empowers the police to require attendance of witnesses cannot be misused to take coercive steps against persons not connected with the alleged offence in a plea filed by relatives and acquaintances of Leader of Opposition in West Bengal, Suvendu Adhikari.

The bench protected the rights of the petitioner by holding that if any future notices under Section 160 CrPC were to be issued in relation to the investigation, and if the petitioners were needed to be interviewed pertaining to the same, then they must be given a sufficient notice period.

4. Husband Acquiring Property In Wife's Name Does Not Necessarily Imply Benami Transaction: Calcutta High Court

Case Title: Sekhar Kr Roy v Lila Roy & Anr (FA 109 of 2018)

Citation: 2023 LiveLaw (Cal) 151

The Calcutta High Court clarified that the mere transfer of money from a husband to his wife for the purchase of property would not qualify as a benami transaction. In other words, even if it is proved that husband paid the consideration money, it will have to be proved that the husband really intended to enjoy the full benefit of the title in him alone in order to imply the existence of a benami transaction.

It held that, to prove a benami transaction, the burden of proof would lay heavily on the party claiming the existence of such a transaction. In the absence of any proof regarding the same, the preponderance of probability shall rest in favour of the person in whose name the property was registered.

5. 'Never Resided With In-Laws, Question Of Cruelty Doesn't Arise': Calcutta High Court Quashes Woman's Complaint U/S 498A IPC

Case Title: Deepak Chatterjee @ Dipak Chatterjee & Ors. v. The State of West Bengal & Anr (CRR 261 of 2020)

Citation: 2023 LiveLaw (Cal) 152

The Calcutta High Court quashed a domestic violence complaint filed by a woman against her in-laws for allegedly trying to strangulate her, upon noting that the parties never resided together.

The bench relied on the case of Prakash Singh Badal v State of Punjab AIR 2007 SC 124 and reiterated that the ultimate test would be whether allegations such as the one made by the respondent have substance. There being no merit to her claim due to have never resided with the petitioners, the respondent’s complaint was found to be baseless and thereby quashed.

6. Venue Would Not Be The Seat Of Arbitration When The Agreement Confers Exclusive Jurisdiction On The Courts At A Different Place: Calcutta High Court

Case Title: Homevista Décor & Furnishing Pvt. Ltd. v. Connect Residuary Pvt. Ltd. A.P.

Citation: 2023 LiveLaw (Cal) 153

The High Court of Calcutta has held that the venue would not become the seat of the arbitration when the agreement confers exclusive jurisdiction on the Court in a different place.

The bench of Justice Shekhar B. Saraf held that presence of a clause which confers exclusive jurisdiction upon a Court in a place other than the venue of arbitration is a ‘Contrary Indicia’ that prevents the venue of arbitration from becoming the seat.

The Court held that while interpreting two conflicting clauses in an agreement, the Courts should adopt harmonious rule of construction. It held that the Court should not declare the venue as the seat of arbitration when the agreement contains an exclusive jurisdiction clause conferring jurisdiction upon the Court in a different place as it is a ‘Contrary Indicia’.

7. Clause Making Arbitration An Option For Resolution Of Dispute Is Not A Valid Arbitration Agreement: Calcutta High Court

Case Title: Blue Star Limited v. Rahul Saraf, A.P. 852 of 2022

Citation: 2023 LiveLaw (Cal) 154

The High Court of Calcutta has held that a clause in an agreement that merely provides for a possibility of arbitration is not a binding arbitration agreement.

The bench of Justice Shekhar B. Saraf held that a clause which provides for resolution of dispute either by way of litigation or arbitration cannot be held to be a binding arbitration agreement as the clause makes arbitration a possibility which may unravel itself, if and only if the parties choose to opt for it, post occurrence of disputes.

The Court also reiterated that nomenclature of a clause is irrelevant and mere use of words like ‘arbitration’ would not make any clause a valid arbitration agreement.

8. Plant Varieties Protection & Farmers Rights Act | Civil Courts Has No Jurisdiction To Decide Validity Of Variety Registration: Calcutta High Court.

Case Title: Pan Seeds Pvt. Ltd. v Ramnagar Seeds Farm Pvt. Ltd. and Ors. FMAT 11 of 2023/ CAN 1 of 2023

Citation: 2023 LiveLaw (Cal) 155

The Calcutta High Court has held that jurisdiction of civil courts is barred by Protection of Plant Varieties and Farmers Rights Act, 2001 insofar as deciding validity of registration of a variety is concerned.

A division bench of Justice IP Mukherji and Justice Biswaroop Chowdhury observed Section 89 provides that the civil court would not have any jurisdiction over any matter which the Registrar of Plant Varieties has the power to determine.

According to the bench, once a plant variety has been registered under Section 24 of the Act it cannot be subjected to the test of validity by civil court even if such a test is made prima facie. It noted that only the Registrar under the Act would have the power to rectify, alter or cancel the registration of a plant variety on the grounds of invalidity.

9. Trial Courts Not Mute Spectators, Judicial Restraint Doesn't Disentitle Them From Taking Exception To Advocate's Extreme Conduct: Calcutta High Court

Case: Atindra Nath Mondal v State of WB and ors CRR 919 of 2023

Citation: 2023 LiveLaw (Cal) 156

The Calcutta High Court has observed that "judicial restraint and discipline" does not mean that even in extreme cases a Judicial Officer is not entitled to take exception against non-conforming acts of an Advocate representing a party.

A single-judge bench of Justice Bibek Chaudhuri observed that where the Counsel of any of the parties disturbs judicial function of a Court, the Judge has every right to pass an order by caution to the Advocate concerned.

Advocates for the petitioner attempted to stop the functioning of the trial court due to not getting an earlier date of hearing. The trial judge had warned the advocates of severe consequences if they continued to disrupt proceedings.

Apparently offended by the observations of the Trial judge, the advocates approached the High Court and complained of the ‘disgraceful’ observations of the trial judge.

10. WB Panchayat Elections: Calcutta High Court Says Can't Issue Mandamus To Extend Date For Filing Nominations, SEC Should Exercise Discretion

Case Title: Suvendu Adhikari and Ors v. WB State Election Commission

Citation: 2023 LiveLaw (Cal) 157

In petitions concerning the upcoming Panchayat elections in West Bengal, the Calcutta High Court refused to direct the State Election Commission to extend the deadline for filing nominations.

The division bench of Chief Justice Sivagnaman and Justice Hiranmay Bhattcharya had earlier said that five days’ time provided for filing nomination papers is prima facie inadequate. However, in its order it said writ of Mandamus cannot be issued for extending the date for filing of nominations.

The development came in petitions filed by Congress leader Adhir Ranjan Chowdhury and BJP's Suvendu Adhikari. The writ petitioners had raised several points of contention such as lack of reasonable notice period for filing nominations, deployment of central reserve forces to maintain law and order, employment of contractual workers as polling officers, among others.

11. Claimant Not Required To Establish Negligence Of Offending Vehicle U/S 163A Motor Vehicles Act: Calcutta High Court

Case title: Sri Santosh Saha and Anr vs The Managing Director, Calcutta State Transport Corporation FMA 3357 of 2015

Citation: 2023 LiveLaw (Cal) 158

The Calcutta High Court has directed the West Bengal State Transport Corporation (WBSTC) to pay about Rs. 2 lakh compensation to the family of a minor girl who was killed in a road accident with WBSTC bus in 2007.

The victims' parents had approached the Court against an order of the Motor Vehicles Accident Claim Tribunal, wherein it only awarded them Rs 15,000 in compensation. They argued that strict interpretation of Section 163A was needed and that the negligence of the offending vehicle would be immaterial in such cases however, the Tribunal proceeded to decide the aspect of negligence.

Justice Bivas Pattanayak modified the order of compensation and held that in a proceeding under Section 163A of the Act, claimant shall not be required to plead or establish that the death in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or of any other person.

The tribunal having gone into the prima facie negligence of the offending vehicle was taken to have committed an error-in-law, and its verdict was overturned.

12. "Can't Interdict Election Process: Calcutta High Court Refuses To Entertain Writ Petition Against Rejection Of Nomination In ICAI Elections

Case Title: Dinesh Kumar Birla v Institute of Cost Accountants of India and Anr

Citation: 2023 LiveLaw (Cal) 159

The Calcutta High Court dismissed a Writ Petition filed by a member of the Institute of Cost Accountants of India (ICAI), Ahmedabad chapter, contesting the rejection of his nomination for elections to the Council of the ICAI.

In dismissing the appeal, a division bench of Chief Justice Sivagnaman and Justice Hiranmay Bhattacharya allowed the petitioner liberty to approach the Election Tribunal of the Institute of Cost Accountants and upon his request also observed that in case the grievances of the petitioner were genuine, the Tribunal may attempt to conclude such proceedings within three months.

The Bench observed that if the petition is allowed, then all the dates as fixed for the election, from the stage of nomination, scrutiny and even the dates for polling would have to be rescheduled. Justice Sivagnaman held that such a direction would amount to interdicting of an election process, which is not within the powers of a Writ Court as it would tantamount to the court calling into question the process of election carried out by the ICAI.

13. Violates Fundamental Right To Trade: Calcutta High Court On State Commission's Order Fixing Treatment Rates For Private Hospitals

Case Title: Apollo Multispeciality Hospitals Limited & Anr. vs. West Bengal Clinical Establishment Regulatory Commission WPA 3858 of 2022

Citation: 2023 LiveLaw (Cal) 160

The Calcutta High Court has held that a number of Advisories and an Order issued by the West Bengal Clinical Establishment Regulatory Commission (“Commission”) for fixation of rates and charges by Clinical Establishments (“CEs”) from patients in the State, were without any statutory backing and thereby violated the Fundamental Right to Trade of the CEs under Article 19(1)g of the Constitution.

While allowing a writ petition by Apollo Multispeciality Hospitals and directing the respondent Commission to rescind their advisories, a bench of Justice Moushumi Bhattacharya observed that on a reading of the provisions of the West Bengal Clinical Establishments (Registration, Regulation and Transparency Act, 2017 (“the 2017 Act”), it became clear that the power to issue Advisories of such a nature was not available to the respondent Commission.

14. WB Panchayat Elections: Calcutta High Court Says Police To Render Assistance If Candidates Complain Of Being Prevented From Filing Nominations

Case Title: Abdul Maleque Molla & Ors. v. West Bengal State Election Commission & Ors WPA 13986 of 2023 Citation: 2023 LiveLaw (Cal) 161

A single-judge bench of Justice Rajasekhar Mantha of the Calcutta High Court allowed a petition on behalf of prospective candidates in the forthcoming three Panchayat elections, praying for police protection to file nomination papers.

The petitioners, who are members of the Indian Secular Front, complained that on 13^th June 2023, when they were in the process of filing their nominations to the aforesaid election process, they were allegedly prevented from doing so by members of the ruling party. They submitted that only one person was able to file her nomination after considerable opposition.

Noting that the last date for filing nominations was 15^th June, the bench directed the Bhangar Police Station and Kashipur Police Station to render all assistance to the petitioners to file their nominations for the aforesaid elections before the last date.

15. WB Panchayat Elections: Calcutta High Court Directs State Election Commission To Requisition Central Forces For All Districts Within 48 Hours

Case: SUVENDU ADHIKARI AND ANR VS STATE OF WEST BENGAL AND ORS WPA(P)/298/2023

Citation: 2023 LiveLaw (Cal) 162

The Calcutta High Court has directed the West Bengal State Election Commission to requisition central forces for all districts in West Bengal for the 2023 Panchayat Elections.

A division bench of Chief Justice Sivagnaman and Justice Uday Kumar passed the order in a plea filed by Leader of Opposition in West Bengal, Suvendu Adhikari.

The bench noted that a direction for earmarking sensitive areas and deploying forces was passed earlier, but no appreciable steps were taken in this regard.

The SEC was thus directed to immediately requisition the deployment of central forces for all districts in West Bengal. The costs for the same would be borne by the central government and no costs would be charged from the State of West Bengal.

16. WB Panchayat Elections: Calcutta High Court Directs SEC To Grant One More Day To 'Shiksha Bandhus' To File Nomination

Case Title: Sunit Sarkar v. Commissioner, WB SEC

Citation: 2022 LiveLaw (Cal) 163

The Calcutta High Court ordered the State Election Commission to grant one more day to the 'Shiksha Bandhus' to file their nominations for the upcoming panchayat elections in West Bengal. The polling is slated to be held on July 8. 15^th June was the last day to file nominations.

Shiksha Bandhus are contractual teachers under the erstwhile Sarva Shiksha Abhiyan. A division comprising Chief Justice Sivagnaman and Justice Uday Kumar said Shiksha Bandhus will be allowed to file nominations till June 16.

The order comes in a petition filed by Sunit Sarkar alleging that Shiksha Bandhus were declared ineligible for filing nominations and it was only on the evening of 14th June that the SEC issued a notification declaring otherwise.

17. Allegations Indicate Complicity Among Ministers': Calcutta High Court Dismisses State’s Appeal Against CBI Probe In Municipality Recruitment Scam

Case Title: State of West Bengal v Soumen Nandy Citation: 2023 LiveLaw (Cal) 164

The Calcutta High Court has dismissed an appeal filed by the West Bengal government against CBI investigation into the infamous municipality recruitment scam wherein government jobs were given out to those who were unqualified, without following the processes laid down. The State had appealed against a decision of Justice Abhijit Gangopadhyay handing over the investigation for this matter to the CBI on the contention that Justice Gangopahdyay did not have jurisdiction over such matters.

A Division Bench of Justice Tapabrata Chakroborty and Justice Partha Sarthi Chatterjee observed that the instances of corruption wherein government jobs were given out in exchange of monetary compensation, were the reason behind “widespread dejection and disillusionment among masses.”

In concluding, the Bench upheld the order of Justice Gangopadhyay’s decision to hand over the probe from the ED, which had been investigating the aforesaid scam since 2022, to the CBI and opined that the State government cannot stop an investigation into such large-scale instances of ministerial collusion and corruption on mere technicalities.

18. In Folklore Lord Jagannath Travels In Chariot, Police Prohibiting Rath Yatra Amounts To Interference With Religious Practice: Calcutta High Court

Case Title: Manoj Mishra v State of WB

Citation: 2023 LiveLaw (Cal) 165

The Calcutta High Court took up a matter concerning the Jagannath Rath Yatra festival being celebrated in West Bengal.

A single-bench of Justice Rajasekhar Mantha held that the Howrah Police’s directives in not allowing a chariot procession to take place by devotees of Lord Jagannath, would be unreasonable and amount to an “interference with religious practice.”

Earlier, the Petitioner had approached the Court for permission to hold a Rath Yatra parade in a certain area. The Court had directed him to approach the appropriate police authorities for requisite permission. Aggrieved by the response of the Police, the petitioner moved this petition.

While disposing of the petition, Justice Mantha opined:

"The petitioner shall as already directed earlier, maintain peace and harmony in the procession of the Rathyatra…if there is any anticipation of any vested interest or elements to disrupt the religious function, appropriate and stern procedural measures shall be taken by the police.”

19. Calcutta High Court Dismisses PIL Against Smart-Electricity Meters Filed Over "Baseless Apprehension" That It Would Affect Thousands Of Jobs

Case: Spot Billing Meter Readers Welfare Association v State of WB & ors

Citation: 2023 LiveLaw (Cal) 166

The Calcutta High Court dismissed a PIL filed on behalf of the Spot Billing Meter Readers Welfare Association, seeking directions against the installation of smart-billing electricity meters over apprehension that they would jeopardise the jobs of thousands of meter-readers.

While petitioner acknowledged that technology should not be resisted, he expressed concern that a wide-scale use of technology in meter-reading would render the jobs of most manual meter-readers irrelevant, thereby affecting their lives and livelihood.

The PIL was dismissed with the bench opining, “We are of the view that such apprehension is absolutely baseless. There has been no material placed by the petitioner to show that meter-readers job would be rendered irrelevant by smart-meters.”

While the Writ petition was dismissed, the Court gave the petitioners liberty to approach any appropriate forums if their own rights were being affected in any way.

20. Unmarried/ Widow Daughter Of Employee Who Superannuated Or Died Prior To DCRB Scheme Entitled To Family Pension: Calcutta High Court Full Bench

Case: The State of West Bengal and Others v Sabita Roy and connected petitions.

Citation: 2023 LiveLaw (Cal) 167

A Full bench of the Calcutta High Court held that family pension can be extended to unmarried/ widowed daughter of an employee who superannuated or died prior to coming into force of the Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981, which came into effect on and from 1st April, 1981.

The bench comprising Justice Harish Tandon, Justice Shampa Sarkar and Justice Rabindranath Samanta made the observation while answering a reference in connection with three petitions relating to grant of family pension to (i) widowed daughter of a deceased Assistant Teacher, (ii) widowed daughter of a retired (now deceased) high school clerk and (iii) unmarried and handicapped daughter of a retired (now deceased) Assistant Teacher.

21. “Writ Of Certiorari And Quo Warranto Can Peacefully Coexist”: Calcutta High Court Allows Amendment For Addition Of Prayer In Writ Petition

Case: Professor Syed Haider Hassan Kazimi & Ors. vs State of West Bengal & Anr.

Citation: 2023 LiveLaw (Cal) 168

The Calcutta High Court recently allowed a plea seeking to insert prayer for writ of Quo Warranto in a Writ petition filed seeking a writ of Certiorari for quashing a Notification issued by the Minority Affairs and Madrasah Education Department of the State.

A single-judge bench of Justice Moushumi Bhattacharya held that it would be within the powers of a Writ Court under Article 226 of the Constitution to allow for the amendment of prayers in a writ petition, and that a writ of certiorari and one of quo warranto are not mutually destructive. “Certiorari and Quo Warranto may be independent, space-hugging bedfellows but are not warring or destructive of each other,” it remarked.

22. High Court Slams Kolkata Municipal Corporation For Engaging Contractual Employees To Permanent Posts, Restrains Their Termination As One Time Measure

Case: Kausik Ghosh & Ors. Vs. The State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 169

The Calcutta High Court has pulled up the Kolkata Municipal Corporation (“KMC”) for its practice of engaging contractual workers to carry out the tasks of permanent employees against the settled position of law in various rules of recruitment, as well as precedents laid down by the Supreme Court from time to time.

A division Bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray partly allowed an appeal preferred by such contractual workers, seeking regularisation of appointment due to apprehension of losing their contractual jobs, after a decade of service.

The Court, in an exceptional finding, which it did not want to become a precedent, held that while an order for regularisation of service could not be passed due to the dictum of the Supreme Court on this issue, the petitioners would be protected from losing their jobs till their age of superannuation.

23. Coal-Cattle Scam: Calcutta High Court Directs Single Judge To Decide Afresh Plea For CBI Probe Into Murder Of Trader Raju Jha

Case: RANJU JHA VS NARENDRA KHARKA AND ORS

Citation: 2023 LiveLaw (Cal) 170

In an appeal against an order for transfer of investigation to CBI in a case concercing a murder investigation linked with the infamous coal and cattle scams in West Bengal, the Calcutta High Court has said that the powers of a Court to transfer an investigation from one investigative agency to another, particularly a central investigative agency, must be exercised “sparingly” and only along parameters as laid down in multiple decisions of the Supreme Court.

A division bench of Chief Justice Sivagnaman and Justice Ajay Kumar Gupta set aside the order for transfer of investigation and held that there must be a “proven live link” between the investigation sought to be transferred and related investigations being carried out by the Central Bureau of Investigation (“CBI”).

24. [POCSO Act] When “Ring Of Truth” Found In Victim's Story, Her Non-Examination By Police Is Of No Consequence: Calcutta High Court

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."

25. 'Intrusion Into Exclusive Domain Of SEC': Calcutta High Court Sets Aside NHRC Order Appointing Observer To Oversee Panchayat Polls

Case: West Bengal State Election Commission and another vs. National Human Rights Commission and others

Citation: 2023 LiveLaw (Cal) 172

The Calcutta High Court set aside an order of the National Human Rights Commission (“NHRC”) deputing the Director General (Investigations) of the Commission as a Special Human Rights Observer for the upcoming panchayat polls, slated to held on July 8.

A single-bench of Justice Sabyasachi Bhattacharya observed that panchayat elections are held by the State Election Commission (“SEC”) and "intrusion by the NHRC into the exclusive domain of the SEC" is not justified. 

Court said exception to such powers has been made only with regard to law enacted by the Parliament as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission.

The Bench noted that the NHRC erred in passing orders, directing the SEC to curb instances of violence during the WB Panchayat Elections 2023, since it did not have any authority to do so over a Constitutional body such as the SEC; thus acting outside the Constitution as well as its parent statute, the Protection of Human Rights Act, 1993. (“NHRC Act”)

26. No Specific Allegation Or Privity Of Contract: Calcutta High Court Sets Aside Criminal Proceedings Against Company Director

Case: Shree Gopal Tantia @ Gopal Prasad Tantia Vs. The State of West Bengal & anotherCitation: 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.

27. Panchayat Elections: Calcutta High Court Directs SEC To Reconsider Names 'Abruptly' Dropped From Contesting Candidates List, Verify Claims Of Violence

Case: Beshaka Mondal & Ors v. The State of West Bengal & Ors

Citation: 2023 LiveLaw (Cal) 174

The Calcutta High Court has observed that election of candidates uncontested has a detrimental impact on the right to choice afforded to voters of an electorate.

A single-judge bench of Justice Amrita Sinha thus directed the State Election Commission to reconsider its decision declaring certain candidates as 'elected uncontested', after abruptly dropping the names of other candidates from the final list of contesting candidates in Bhangore district. The names were dropped citing delay in filing the nomination papers.

Aggrieved candidates said their nominations were filed beyond the scheduled time in view of rampant election violence.

The Court said there is no provision in law to drop the names of prospective candidates from the list of validly nominated candidates if the said candidates did not withdraw their nominations.

"The fact that the names of the petitioners were enlisted in the list of validly nominated candidates implies that the nomination papers of the petitioners were in order and accordingly accepted by the Returning Officer. The same could not have been rejected and the name of the candidate could not have been abruptly dropped from the list of validly nominated candidates only on an objection filed by the opponent candidate," it observed.

28. ECLGS Scheme: Calcutta High Court Pulls Up Govt Company For Defying Its Directions

Case: Guha Roy Food Joint and Hotel Private Limited & Anr. v. Richa Singh & Ors

Citation: 2023 LiveLaw (Cal) 175

The Calcutta High Court has recently slammed the National Credit Guarantee Trustee Company Ltd. set up by the Union Finance Ministry for its "contumacious conduct" to defy Court's order requiring consideration of petitioner, a food and lodging business, for the benefit of an Emergency Credit Line Guarantee Scheme (ECLGS).

A single-judge bench of Justice Moushumi Bhattacharya sternly remarked,

The conduct is clear, the alleged contemnors sat by and waited for the time to pass so that the judgment and order became infructuous and the petitioners deprived of its right even to contest the appeal on merits. The power of the Court in contempt jurisdiction to pass orders is an inherent power…the Court can exercise the power to vindicate its own dignity and to shield those who are entrusted to its care...”

29. 'When Minister Takes Rigid View, Consultation Is Wasted Effort': Calcutta High Court Upholds Appointments Of Interim-VCs By Governor.

Case: Dr Sanat Kumar Ghosh V. The Chancellor, University of Kalyani And Others

Citation: 2023 LiveLaw (Cal) 176

The Calcutta High Court has dismissed a petition filed by a retired Professor, seeking directions to annul the appointments of thirteen interim Vice-Chancellors in State Universities, which were made by the Governor of West Bengal acting as Chancellor of the said Universities. The petitioner had challenged these appointments on the ground that they were bad in law for being made without consulting the relevant state ministry, as was statutorily required.

While dismissing the plea, a Bench of Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta held that the petitioner had failed to show any public cause in their PIL and that the State’s support of the same may give rise to connotations that the petitioner was being used as a “tool” to indirectly challenge the orders of the Governor. It opined:

“The writ petitioner has miserably failed to point out as to what is the public interest which has been affected and curiously enough the State of West Bengal which did not raise any objection to the orders passed by the Hon’ble Chancellor has now toed the line of the writ petitioner and outrightly supporting the case of the writ petitioner and virtually stepped into the shoes of the writ petitioner. Therefore, we are well justified in forming an opinion that the writ petitioner has been used as a tool with a view to indirectly challenge the orders issued by the Hon’ble Chancellor. However, we do not wish to go deep into this matter and we leave it as such as we are satisfied that there is no illegality in the orders issued by the Chancellor in favour of the private respondent herein and a writ of quo-warranto would not lie.”

30. S.362 CrPC | No Court Can Alter Judgement After It Has Attained Finality, Except To Correct Clerical Error: Calcutta High Court Reiterates

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.”

31. Panchayat Elections: Calcutta High Court Orders Re-Scrutiny Of Nomination Papers Filed By Two Candidates

Case: Ustor Ali Biswas v The Commissioner, The West Bengal State Election Commission & Ors

Citation: 2023 LiveLaw (Cal) 178

The Calcutta High Court directed the West Bengal State Election Commission to re-scrutinise nomination papers of two candidates for the upcoming Panchayat Elections, after a plea was filed alleging inaction during the scrutiny process by a Returning Officer from Karimpore-II block in West Bengal. A single-judge Bench of Justice Amrita Sinha ordered:

“Without going into the merits of the allegation of the petitioner, the instant writ petition is disposed of by directing the Commission to re-scrutinize the nomination papers of the respondent nos. 4 and 5 by treating the writ petition as the affidavit of the petitioner…at the earliest but positively by 5th July.”

The petitioner, a contesting candidate himself, alleged that the private-respondents had pending criminal cases, which would disqualify them from contesting the elections. It was the contention of the petitioner that he had filed an objection with the relevant Block development officer, but the complaint had not been taken cognizance of. The petitioner prayed for the cancellation of nomination of the private-respondents.

32. Calcutta High Court Suspends Sentence Of Woman Convicted For Murder Of 6-Year-Old Step Daughter

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.