Calcutta High Court Monthly Digest: February 2024

[S.125 CrPC] Maintenance Provisions Being Welfare Legislation Need Not Be Construed To Be Proven Beyond Reasonable Doubt: Calcutta High Court

Case: Paresh Chandra Ganguly (represented by LRs) v CBI

Citation: 2024 LiveLaw (Cal) 32

The Calcutta High Court has recently held that the provisions for maintenance under Section 125 of the CrPC are welfare legislations and that they need not be proven beyond reasonable doubt as their criminal law counterparts.

In refusing to quash a claim for maintenance against the petitioner, a single bench of Justice Ajoy Kumar Mukherjee held:

Conduct of wife/opposite party during her stay at her matrimonial house may not be the sole parameter to be considered before granting maintenance under 125 Cr.P.C. Said provision being a welfare legislation is not supposed to be construed what is likely to be construed to prove a case beyond reasonable doubt under section 498A I.P.C. or Under Section 406 of the IPC. I find that this is not a fit case where invoking jurisdiction under section 482 of the Code of Criminal procedure the present proceeding, can be quashed on the basis of the judgment passed in favour of the petitioner wherein criminal proceeding under section 498A/406/34 was quashed.

Misdirected Police Investigation: Calcutta HC Directs CID To Probe Death Of Wife Burnt Alive While Husband Showed Ordeal To Her Relative On Video Call

Citation: 2024 LiveLaw (Cal) 33

Case: Nilanjan Mitra v The State of West Bengal & Ors.

The Calcutta High Court on Wednesday took note of an unfortunate incident involving a husband, who video-called his wife's relative to show the sight of his wife burning to death, instead of intervening or saving her.

In observing that the police had fallen short in their investigation, a single bench of Justice Jay Sengupta transferred the investigation to the CID and held:

It appears that the call went on for at least one minute. If a person catches fire and her husband is in a position to save her, but chooses not to do so and do something else, it has to be explored whether this amounts to contributing to the death of the victim. At least, this circumstance should have inspired the Investigating Officer to find out whether the fire could have also been caused by the husband. These aspects have been given a total go-bye by the Investigating Officer. Non-seizure of relevant articles is another issue that cannot be satisfactorily explained by the Investigating Officer. In fact, he relies on the statement of the accused to provide an explanation. The investigations appears to have been totally misdirected.

"Misplaced Sympathy": Calcutta HC Sets Aside Direction For Fresh Viva & Aptitude Test Of TET Candidate Who Failed To Attend Due To Father's Illness

Citation: 2024 LiveLaw (Cal) 34

Case: Case: West Bengal Board of Primary Education & ors.- Versus - Md. Rafique & anr.

The Calcutta High Court has recently set aside the order of a single bench, which directed the West Bengal Board of Primary Education (Board) to conduct a fresh viva voce and aptitude test for a TET candidate, who was not able to appear for the same due to serious ailments suffered by his father.

A division bench of Justices Tapabrata Chakraborty and Partha Sarathi Sen held:

In the said conspectus and on humanitarian ground the appellants cannot be asked to conduct viva voce and the aptitude test afresh for the respondent no.1. Such direction would open a floodgate and may also affect the right of the candidates, who had already completed the viva voce and the aptitude test. We are of the opinion that the direction upon the Board to hold a arrange for viva voce and personality test/aptitude test afresh for the respondent no.1 would stand out to be an instance of misplaced sympathy. For the reasons discussed above, the order dated 26th September, 2023 passed in the writ petition being WPA 13347 of 2023, is set aside and the writ petition is dismissed.

Bar Association Elections | Calcutta High Court Intervenes In Plea Raising Concerns On Possibility Of Individual Votes Being Traced Back To Voters

Citation: 2024 LiveLaw (Cal) 35

Case: ANIMESH BHATTACHARYA v THE BAR ASSOCIATION HIGH COURT AT CALCUTTA AND ORS.

The Calcutta High Court intervened in a plea regarding the High Court Bar Association Elections, which were held recently. The plea alleged that while casting votes, members of the Bar association discovered that the serial number of the voter was depicted in the ballot paper, along with the name of the candidates.

In intervening to ensure secrecy was maintained in the voting process, a single bench of Justice Sabyasachi Bhattacharya directed the Election officer to deposit all ballot books to the Registrar General's office till further orders, immediately upon conclusion of the process, and held:

Election Officer is directed to take in his custody all the ballot books from which the ballot papers have been torn out for the purpose of the present ongoing election, which carry signatures of the individual voters along with the serial numbers, and retain the same with him in sealed cover/box. The said sealed box/cover containing the said counter foils of the ballot books, containing signatures of the voters against the serial nos. of the ballot papers, shall be deposited by the Election Officer to the Registrar General of this Court at the end of the election process, immediately after the completion of the polling process today, preferably by 7 p.m. this evening.

Limited Judicial Intervention U/s 8 And 11 Of Arbitration Act, Presumption In Favor Of Arbitration: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 36

Case Title: Suresh Dhanuka vs Shahnaz Husain

The Calcutta High Court bench comprising Justice Krishna Rao held that while interpreting the arbitration agreements, the courts should have a presumption in favour of arbitration of the dispute and the court could only interfere if the party shows prima facie non-existence of valid arbitration agreement. It held that Sections 8 and 11 of the Arbitration and Conciliation Act, 1986 give the arbitrator or the tribunal the primary authority to determine the questions of non-arbitrability of the disputes. Further, it held that Section 16 confers significant powers upon the tribunal to determine any objections concerning the existence or validity of the arbitration agreement.

The Calcutta High Court has directed the insurance company to pay an additional compensation of Rs 40,08,687 at 6% per annum, to the relatives of a man who was killed after being thrown from the front gate of a bus he had boarded, due to the rash and negligent driving of the bus driver.

In allowing the appeal against the order of the Motor Accidents Claim Tribunal ("MACT") which had awarded a sum of approx 3.68 lakhs of compensation, due to the alleged contributory negligence of the deceased, a single bench of Justice Subhendu Samanta held:

The learned tribunal has not considered the evidences on record but has proceeded hypothetically and assessed the contributory negligence on the part of the deceased. The investigation of the police is ended in charge sheet accusing the driver of the offending vehicle to be 6 responsible for the accident. Charge-sheet is prima-facie evidence which can be disbelieved. Only on the version of the FIR, the observation of the learned tribunal, appears to me not justified and beyond the evidence on record.

Reasonable Measure To Avoid Chaos In Office Hours: HC Upholds Restriction On Non-Essential Heavy/Medium Goods Vehicles' Movement In Kolkata Between 6am-10pm

Citation: 2024 LiveLaw (Cal) 38

Case: Merlin Projects Limited and another v The State of West Bengal and others

The Calcutta High Court has recently upheld the validity of a Traffic Notification that restricted the movements of Heavy Goods Vehicles and Medium Goods Vehicles have been restricted to ply from 6 am to 10 am on all days throughout the city of Kolkata except the Port area.

The notification however, made certain exceptions for goods vehicles carrying essential and perishable items such as LPG, Petroleum, Oxygen, Milk, Fruits, Vegetables, etc., which were allowed to ply from 10 pm-8 am and 12 pm-4 pm.

In dismissing a challenge to the notification by real-estate developer Merlin Projects Ltd., a single bench of Justice Sabyasachi Bhattacharya held:

Restrictions imposed by the Notification are not disproportionate. The stipulations introduced by the Notification are quite appropriate and necessary to ensure free movement of traffic and in order to avoid chaos during office hours.

E-Way Bill Generated For Exporting Goods To Bangladesh Expired Due To Accident: Calcutta High Court Quashes 200% Penalty

Citation: 2024 LiveLaw (Cal) 39

Case Title: M/S Saraf Trexim Limited Vs Deputy Commissioner Of State Tax And Ors.

The Calcutta High Court has quashed the 200% penalty and held that the e-way bill generated for exporting goods to Bangladesh expired due to an accident.

The bench of Chief Justice T. S. Sivagnanam and Justice Supratim Bhattacharya has observed that unless and until it is established by the department that the transporter of the goods or the owner of the goods had an intention to contravene the provisions of the Act, the question of imposing a penalty under Section 129 of the WBGST Act that is too high would not be justified.

Re-Fixation Of Salary Only Possible Under Existing Rules, No Vested Right Of Teacher To Claim Enhanced Pay For Being Overqualified: Calcutta HC Larger Bench

Citation: 2024 LiveLaw (Cal) 40

Case: Utpal Kanti Karan v State of West Bengal & Ors & connected matters

In a 187-page order, a larger bench of the Calcutta High Court comprising Justices Harish Tandon, Soumen Sen, and Kaushik Chanda have held that teachers in the State of West Bengal cannot seek re-fixation of salary due to having attained higher educational qualifications during the course of their employment, in absence of any rules for such re-fixation of salary.

In deciding the reference arising out of common questions of law in multiple cases, the bench held:

Enhancement of pay on acquisition of higher qualification during the service career is dependent upon the relevant rules operating at the time of acquisition of higher qualification and cannot be claimed as a matter of right in absence of Rules. If a teacher has consciously applied for a post under the pass graduate category in spite of having an Honours Graduate/Post Graduate qualification he/she/they cannot claim as a matter of right higher pay scale [for being overqualified.] The claim of higher pay scale on acquiring higher degree cannot be considered to be a vested right and elevated to a legal right. It is no more than a reasonable expectation.

Calcutta HC Closes Contempt Case Against Doctors Who Terminated Pregnancy Without Court's Orders Upon Being Told Patient Went Into Pre-Term Labour

Citation: 2024 LiveLaw (Cal) 41

Case: X vs State of West Bengal

The Calcutta High Court has closed a contempt case against a group of government doctors who medically terminated the pregnancy of a minor rape survivor, without the leave of the Court, and only after the Court had asked for the formation of a medical board to ascertain the feasibility of termination of pregnancy.

A single bench of Justice Sabyasachi Bhattacharya had called for an explanation from the doctors detailing why they needed to carry out the termination of pregnancy with such 'hot-haste'.

On this occasion, upon being told that the pregnancy had to be terminated on an emergency basis due to the patient suffering from labour pain, and bleeding, the Court noted:

In view of the tremendous pain being suffered by the petitioner at the relevant juncture, who was having labour pain and severe bleeding, the doctor was compelled in order to give relief to the patient, to terminate the pregnancy immediately.

Sluggishness Intolerable: Calcutta High Court Slams CBI's Conduct For Failing To File Appeal Within Limitation Period

Citation: 2024 LiveLaw (Cal) 42

Case: CBI v Binod Kr Maheshwari

The Calcutta High Court has heavily criticized the conduct of the Central Bureau of Investigation (CBI) and its Director for failing to file an appeal within the statutory period of limitation.

A single bench of Justice Bibhas Ranjan De, in a plea for condonation of delay in filing the special leave to appeal, allowed delayed filing in the interest of justice and held:

I am astounded by the conduct of the CBI in such important matters how such delay could take place. The CBI ought to have been careful in filing the special leave (to appeal) within the period of limitation. CBI ought to be guided by its latest updated manual. In the instant case, sluggishness on its part is intolerable. Director of CBI being responsible should look into the matter and saddle the responsibility on a person concerned. The Director CBI cannot escape the responsibility for delay in such cases which is to be termed as deliberate one, which is intolerable.

Splitting Of An Arbitral Award For Publication Is Unnatural And Unsupported By Law, Calcutta High Court Allows Extension Of Arbitrator's Mandate

Citation: 2024 LiveLaw (Cal) 43

Case Title: R S Fuel Pvt Ltd vs Ankit Metal And Power Ltd

The Calcutta High Court bench comprising Justice Moushumi Bhattacharya held that neither the Arbitration and Conciliation Act, 1996 nor the Insolvency and Bankruptcy Code, 2016 allows a party's request to halt the publication of an arbitral award to the extent of its reliance on another party's counter-clam. The bench noted that the notion of splitting an arbitral award for this purpose is unnatural and unsupported by law.

Calcutta High Court Quashes Complaint Against Director As Prosecution Failed To Implead Company Importing Liquors Not For Sale

Case Title: Mr. Raj Sahai vs. the State of West Bengal & Anr.

Citation: 2024 LiveLaw (Cal) 44

The Calcutta High Court has quashed the complaint against the director as the prosecution failed to implead the company importing liquors not for sale.

The bench of Justice Shampa Dutt (Paul) has observed that the company has not been made an accused. The petitioner, a director of the company, has been made an accused. The place of seizure and the seized articles on which the case has been initiated is the registered office of the company. The petitioner has also been arrested from the office of the company. The complaint was in clear violation of Section 46B of the Bengal Excise Act, 1909, which relates to offences by companies.

The Calcutta High Court on Thursday granted bail to journalist Santu Pan, who was arrested while reporting live from Sandeshkhali, in West Bengal for Republic TV on 19th February.

According to reports, the state authorities had alleged that the journalist was arrested for outraging the modesty of a woman by entering her home while reporting. These charges were however denied by the journalist, who claimed that his arrest came since he was 'exposing the truth' in Sandeshkhali.

The bail was granted by a single bench of Justice Kaushik Chanda. Republic TV has hailed the decision of the Court as a 'vindication' on their official YouTube channel.

The Calcutta High Court on Thursday, directed for the reclassification of a plea moved by the Vishwa Hindu Parishad as a public interest litigation, and for it to be placed before the regular bench having determination over PILs.

The Court also orally called on the State to consider renaming the lioness called 'Sita' who was a worshipped goddess among Hindus, to avoid controversy. Upon being told that the lioness at Alipore zoo was called 'Sruti', the bench orally remarked:

"These are the uncontroversial names. Will you name a lion after a Hindu deity, a Muslim prophet or Christian god or freedom fighter or nobel laureate? Generally anyone who is revered or respected by the people of our country?"

Consumer Forum Cannot Assume Jurisdiction When Special Statue Prescribes Arbitration; Calcutta High Court Set Aside West Bengal State Commission Order

Citation: 2023 LiveLaw (Cal) 52

Case Title: The Secretary, E & NF Railway Junior Co-operative Credit Society Limited, Eastern Railway vs Sri Jyotish Chandra Sarkar & Anr.

The Calcutta High Court single bench of Justice Prasenjit Biswas held that consumer forum cannot assume jurisdiction when a special statue prescribes for arbitration and designates a forum for adjudication of disputes. It held that a special law takes precedence over a general law.

The Calcutta High Court on Monday, allowed a plea by BJP MP and Leader of Opposition, Suvendu Adhikari to visit the affected area in Sandeshkhali, West Bengal, from where there have recently been reports of alleged violence and assault on women.

Live Law had earlier reported on a suo moto motion taken up by the Calcutta High Court regarding the aforesaid violence, as well as an order staying the declaration of Section 144 CrPC in the area.

In the present plea, a single bench of Justice Kausik Chanda, allowed the plea moved by Adhikari and permitted him to visit the area subject to certain conditions. It held:

The petitioners will be allowed to visit Sandeshkhali Gram Panchayat under Sandeshkhali Block –II on February 20, 2024. The petitioners, within 9:30 p.m. of this date, shall submit their proposed plan of visit along with the route map before the local police station. The petitioners shall also file an undertaking before the local police station not to engage in any activities that may lead to deterioration of the law and order situation in the locality. The State may deploy required number of security personnel to ensure that no untoward incident takes place during their visit.

The Calcutta High Court has recently held that it is impermissible and violative of the Right to Equality under Article 14 of the Constitution, to differentiate between contractual employees and permanent employees for the purpose of extending maternity leave.

A single bench of Justice Raja Basu Chowdhury held:

On the question of a woman's right to child birth and maternity leave no differentiation is permissible between regular and contractual employees of the respondent no.2. Denial of grant of maternity leave to the petitioner constitutes a discriminatory would tantamount to compel an employee to work during her advanced pregnancy, notwithstanding the same may ultimately endanger both her and her foetus. If the same is permitted, the object of social justice would stand deviated.

[Arbitration & Conciliation Act] S.29A Preserves Arbitral Efficacy, Guards Against Those Who Put Making Of Award On Back-Burner: Calcutta HC

Citation: 2024 LiveLaw (Cal) 57

Case: Praxair India Pvt. Ltd. v Steel Authority of India Ltd

The Calcutta High Court has recently held that Section 29 of the Arbitration & Conciliation Act, 1996, ensures that the arbitral tribunal acts in consonance with the stakeholders to ensure that an award is made within the prescribed timelines.

A single bench of Justice Moushumi Bhattacharya held that in the present case, the arbitrator had informed the parties about the prescribed time for declaration of the award, and rejected the respondents contention that arbitration had to commence de novo due to expiration of mandate under Section 29A.

Calcutta High Court Allows Premature Release Of Prisoner Incarcerated For 23 Yrs, Says Refusal Would Amount To 'Social Crime'

Citation: 2023 LiveLaw (Cal) 58

Case: Afzal Khan @ Fazo and another v State of West Bengal and others

The Calcutta High Court has recently ordered the release of a prisoner who had been incarcerated for more than 23 years upon being convicted of kidnapping a minor and being part of organized crime.

Upon noting the reformed state of the prisoner after his prolonged incarceration, a single bench of Justice Sabyasachi Bhattacharya held:

What the petitioner no. 1 did in his 20's at the time of his conviction cannot be sufficient basis for assuming what he will do after his release, more so, since an alternative source of income by agriculture has been clearly portrayed. Our society cannot cast a double stigma on the petitioner no. 1 by punishing him again in refusing premature release and refusing him an opportunity to reintegrate in main-stream society. Such refusal, if comes about, will also be a social crime against the petitioner no. 1 and cannot be approved by a court of law.

High Court Allows BJP To Hold Protest Against Unrest In Sandeshkhali, Sets Aside Kolkata Police's Order

Citation: 2024 LiveLaw (Cal) 59

Case: Pranoy Roy v State of West Bengal

The Calcutta High Court has allowed a plea moved by the office secretary of the West Bengal wing of the Bharatiya Janata Party to hold a protest against the unrest that has recently unfolded in Bengal's Sandeshkhali on 28th and 29th February 2024.

A single bench of Justice Kausik Chanda imposed certain conditions in allowing the plea and capped the attendance at a maximum of 150 people. It held:

Needless to mention that right to assemble peaceably, freedom to speech and expression are guaranteed under Article 19 of the Constitution of India. Such rights, however, may be subject to reasonable restrictions imposed by the State. The number of demonstrators should be restricted within 150. The demonstrations shall be conducted between 10 a.m. to 6 p.m.