Calcutta High Court Weekly Round-Up: August 14 - August 20 , 2023

1. Kobelco Construction Equipment India Private Limited vs. Lara Mining & Anr. 2023 LiveLaw (Cal) 222
2. M/S. Gammon Engineers And Contractors Pvt. Ltd. V The State Of West Bengal 2023 LiveLaw (Cal) 223
3. Prapti Chakraborty v State of West Bengal & Ors. 2023 LiveLaw (Cal) 224
4. Dr. Sujoy Biswas Vs. State of West Bengal & Anr 2023 LiveLaw (Cal) 225
5. Debarati Banerjee v The State of West Bengal & Anr. 2023 LiveLaw (Cal) 226
6. Sk. Reajul Hoque @ Sk. Riajul Vs The State of West Bengal 2023 LiveLaw (Cal) 227
7. HDFC Bank Limited & Anr. V The State Of West Bengal & Anr. 2023 LiveLaw (Cal) 228

Case: Kobelco Construction Equipment India Private Limited vs. Lara Mining & Anr.

Citation: 2023 LiveLaw (Cal) 222

The Calcutta High Court has recently dismissed applications for interim relief filed by Kobelco Construction Equipment India Private Limited under Section 9 of the Arbitration and Conciliation Act, 1996 (“Act”).

In dismissing the prayer for an interim injunction on the respondents, and holding that the petitioners could not be allowed to incorporate an arbitration clause by-reference from the ‘Master’ agreement to the ‘Settlement’ agreement in the absence of unambiguous intention of both parties, a single-bench of Justice Moushumi Bhattacharya opined:

The present case involves two arbitration clauses and the Court is being asked to hold that the arbitration clause of the first Agreement should be treated as being incorporated into the second Agreement by reference…there is no special reference indicating a mutual intention on the part of the petitioner, SREI and the respondent no. 1 to incorporate the arbitration clause from the Master Facility Agreement to the Settlement Agreement. A general reference to the Master Facility Agreement is not sufficient to incorporate the arbitration clause.

2. Application For Removal Of Arbitrator Must Be Made Before Same ‘Court’ As Envisaged In s.2 (i) (e) & s.42 Of Arbitration Act: Calcutta High Court

Case: M/S. Gammon Engineers And Contractors Pvt. Ltd. V The State Of West Bengal

Citation: 2023 LiveLaw (Cal) 223

The Calcutta High Court recently dismissed an application filed by M/S Gammon Engineers and Contractors Private Limited (“petitioners”) u/s 11(6), 14 and 15 of the Arbitration and Conciliation Act, 1996 (‘Act’), for removal of arbitrator while challenging their unilateral appointment.

In dismissing the application, a single-bench of Justice Shekhar B Saraf held that a challenge for withdrawal/removal of arbitrator would not be maintainable before the High Court, since an earlier Section 9 application for interim relief had been filed before the Jalpaiguri District court.

The understanding of ‘court’ under Section 42 is indisputably in terms of Section 2(1)(e) of the Act. The application under Section 9 is also made to a ‘court’ as understood under Section 2(1)(e) of the Act. Once such an application to a ‘court’ as understood under Section 2(1)(e) of the Act is made, all further applications under Part I to a ‘court’ must be to the ‘court’ to which the prior application has been made. This is the mandate of Section 42 of the Act. Therefore, the bar under Section 42 would lie and all applications to be made to a ‘court’ must be made to the District Judge at Jalpaiguri. In light of the above, A.P. 785 of 2022 is disposed of for not being maintainable before the High Court at this stage,” it held.

3. Teachers Can Claim Transfer On Fulfilment Of Criterion Under Service Conditions, Authority Must Take Steps To Fill Resultant Vacancy: Calcutta HC

Case: Prapti Chakraborty v State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 224

The Calcutta High Court has recently allowed an appeal, challenging the order of a single-bench dismissing the writ petition filed by a high-school teacher against refusal of her transfer application by the head of institution.

In directing the Commissioner of School Education to consider the petitioners transfer application in accordance with prevalent norms and students’ interest, a division-bench of Justice Soumen Sen and Justice Uday Kumar held:

We are not unmindful of the fact that in view of the Right of Children to Free and Compulsory Education Act, 2009 it is the obligation of the State to implement the provisions of the said Act. We cannot also lose sight of the fact that there is a need for rationalization of policy of transfers of the teachers. The service conditions gives right to claim transfer on fulfilment of certain conditions. An application for transfer has to be considered on the basis of existing and/or prevailing rules. We do not find any material to reject the said application of the petitioner by the Head of Institution and no sufficient material is produced before us to justify the said stand. 

4. Calcutta High Court Refuses To Quash Case Against ‘Doctor’ Accused Of Criminal Intimidation By 85 Yrs Old Advocate

Case: Dr. Sujoy Biswas Vs. State of West Bengal & Anr

Citation: 2023 LiveLaw (Cal) 225

The Calcutta High Court has refused to quash criminal proceedings against a ‘doctor’ accused of wrongful restraint and criminal intimidation by an octogenarian Advocate, residing in the same co-operative society as him.

In directing the case to proceed towards trial due to a prima facie case being made out, a single-bench of Justice Shampa (Dutt) Paul held:

The complainant is a 85 years old resident of the same co-operative society. The medical papers in respect of the opposite party/complainant in the case diary include an injury report dated 10.08.2019, which shows that on examination, the doctor found pain and swelling over the left cheekbone. It has been noted by the learned Mediator that the petitioner has failed to appear for mediation on two occasions, in spite of being duly served. The offences alleged are all compoundable. The mediation could not be taken up because of the absence of the petitioner in this case on two dates. The medical papers in this case diary and other materials show that there is prima facie materials in the present case against the petitioner to proceed towards trial. The revisional application being CRR 2365 of 2022 is accordingly dismissed.

5. Employee’s Transfer Based On Organisation’s Policy Does Not Amount To Criminal Intimidation/ Conspiracy Under IPC: Calcutta High Court

Case: Debarati Banerjee v The State of West Bengal & Anr.

Citation: 2023 LiveLaw (Cal) 226

The Calcutta High Court has quashed criminal proceedings initiated against the Human Resources Manager of IDBI Bank (“petitioner”), by an employee/opposite party No 2, against whom a female co-worker had earlier filed a complaint for sexual harassment at the workplace.

In holding that the petitioner could not be considered guilty of the offences of criminal intimidation or criminal conspiracy in the matter of the opposite party’s transfer, a single-bench of Justice Ajoy Kumar Mukherjee opined:

The petitioner herein according to complaint has only communicated the previous complaint to his higher authority. Transfer is an usual incident concerning service and does not generally require the consent of the employee. Under the Bank’s transfer policy an officer is liable to be transferred in different station and he cannot claim to remain in a particular place unless his appointment itself is to be specified non-transferable post. Ingredients of offence of criminal conspiracy suggests an agreement to commit an offence. There is nothing in the allegation that the present petitioner /accused no.2 has made any agreement with other accused persons to commit any offence. In fact in the present case there is absolutely nothing to establish that there was any agreement with the petitioner herein to commit any illegal act or any legal act by illegal means. If the bank authority decided to transfer any of its employee from one place of posting to another branch, may be in a distant state, which is permissible under the transfer policy, that must not constitute any offence punishable under section 506 of I.P.C, since it does not amount to threat to cause any “injury” to the complainant’s reputation or property.

6. Calcutta High Court Refuses To Quash FIR Against Teacher Booked For Creating 'Communal & Administrative Disturbance' Around School

Case: Sk. Reajul Hoque @ Sk. Riajul Vs The State of West Bengal

Citation: 2023 LiveLaw (Cal) 227

The Calcutta High Court has refused to quash criminal proceedings against a teacher of the Tehatta Balika Prathamik Vidyalaya, under various sections of the IPC for offences including unlawful assembly, rioting, causing injury to a public servant, etc. during ‘unauthorised’ celebrations by the school’s Muslim students on the occasion of ‘Nabi Diwas’.

In directing the case registered against the petitioner to proceed towards trial, a single-bench of Justice Shampa (Dutt) Paul held:

The alleged time of occurrence as shown in the formal FIR is between 6 hrs to 16:30 hrs. The petitioner has shown by documents that on 28.01.2017 he was not present from 10.30 am onwards till 7 pm but no explanation is there for the period from 6.00 hrs (am) to 10.30 am. Case diary contains injury report in respect of the Police personnel, who sustained injuries in due course of carrying out their official duty to maintain law and order. Considering the nature of the offences alleged and materials on record, there appears a prima facie case against the petitioner to proceed toward trial.

7. Car Loan | Bank Repossessing Vehicle Due To Borrower’s Default Does Not Tantamount To Robbery: Calcutta High Court

Case: HDFC Bank Limited & Anr. V The State Of West Bengal & Anr.

Citation: 2023 LiveLaw (Cal) 228

The Calcutta High Court has quashed criminal proceedings against employees of HDFC Bank Limited, initiated by one Sunil Kumar Sharma/opposite party no 2, who had availed a car loan from the aforesaid bank, to be repaid over 60 instalments, alongside taking another personal loan of Rs 90,000.

It was contended by the opposite party/complainant that he had fallen on extremely hard financial times in 2009 and could not repay further instalments of the loan, due to which the Bank and its agents had “forcibly and deceitfully repossessed” his vehicle.

In quashing the FIR filed against the Bank’s officials on counts of robbery, criminal intimidation, etc., a single bench of Justice Siddhartha Roy Chowdhury held:

From the attending facts of the case when it is found that the lender or financer took repossession of the vehicle, pursuant to the agreement executed by and between the parties, it cannot be said that the lender committed offence within the meaning of Penal Code with the requisite mens rea and dishonest intention. At best it could be a civil dispute which has been imbibed with the colour of criminality. In my humble opinion, this is the fit case to invoke the provision of Section 482 of the Code of Criminal Procedure to quash the proceeding of Jadavpur P.S. Case No. 657 of 2009 pending before the learned Additional Chief Judicial Magistrate, Alipore to avert abuse of process of law, which I accordingly do. The criminal revision is thus allowed.

OTHER DEVELOPMENTSI

1. IT KGP Student Death | Law Doesn't Envisage Appointment Of Amicus Curiae To Assist Experts/ Investigating Officers: Calcutta High Court

Case: The Indian Institute Of Technology, Kharagpur And Anr Vs The State Of West Bengal And Ors.

The Calcutta High Court has partly allowed the appeals moved by the State of West Bengal and IIT Kharagpur, in a case pertaining to the death of a student under allegedly suspicious circumstances at the IIT.

Upon hearing the various contesting claims of the IIT, State as well as the parents of the student, a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya admitted the appeals, and ordered:

Single-judge also appointed an amicus curiae to assist the officer who carried out the second post-mortem and gave liberty to the new investigation team to approach the amicus for assistance. In our opinion an amicus is appointed to assist the court, and it may not auger well, if a member of the Bar is assisting an investigating officer, or expert who carried out post-mortem, as practise of legal profession would not envisage such directions from a Court. It may be well open to anyone to seek services of members of the Bar to seek advice in legal aspects. We are of the view that the role of the amicus is completed, and the advocate shall have no role in further proceedings of this issue. Accordingly the appeals are partly allowed.”

2. Calcutta HC Gives "New Lease Of Life" To 11-Yr-Old Gang Rape Victim, Orders Medical Board To Examine Feasibility Of Terminating Pregnancy

Case: Sri X Vs. The State of West Bengal and others

The Calcutta High Court recently upheld the right of a minor rape survivor to seek medical termination of pregnancy, even when such termination was sought for outside the statutory limit of 24 weeks as prescribed in the Medical Termination of Pregnancy Act, 1971 (“Act”).

A single-bench of Justice Sabyaschi Bhattacharya directed the formation of a medical board to ascertain the viability of terminating the minor-survivors “in-the-circumstances unfortunate pregnancy” and held:

Only 25+ weeks, as opposed to the statutory 24 weeks, of pregnancy have elapsed. It is not yet too late. Science is not yet fool proof as to when the embryo becomes a ‘human’ but an eleven-year old child’s humanity is undisputed. The right of the victim which will be violated, if the prayer in the present writ petition is refused, is on the exalted plane of nothing less than her right to life, as enshrined in the Constitution of India. Thus, the facts of the present case leave no manner of doubt that law should be relaxed to the utmost to accommodate yet another minor daughter of ours, an unfortunate victim of social apathy, who should at least be given a new lease of life by being permitted to have medical termination of her in-the-circumstances unfortunate pregnancy.

3. Democratic Values Can Only Be Protected If Citizens Have Access To Speedy Justice: Calcutta High Court Chief Justice TS Sivagnanam

“Independence Day is not just another symbolic occasion; it is a vivid reminder of an important part of our self-identity as citizens in the worlds largest democracy and the sacrifices made by our freedom fighters. On this day, we remember our heroes of the freedom struggle and pay homage to them for sacrificing their lives,” Calcutta High Court Chief Justice TS Sivagnanam said at the flag hoisting ceremony on the occasion of India’s 77^th Independence Day, held on the Calcutta High Court premises.

In discussing India’s constitutional goals, vis-à-vis its status as an independent nation, the Chief Justice emphasised on the various shortcomings that continue to persist in the implementation of independent India’s constitutional objectives.

“Though we have achieved independence and become citizens of independent India, but the constitutional goal for extending free, speedy and effective legal dispute redressal forums to our citizens is in the process of being achieved. There is no doubt that democratic values can be protected only if we ensure that our citizens have access to basic amenities. These places special duty upon lawyers and judges who often play a role in matters on resource allocation,” said the Chief Justice.

4. ‘Jadavpur University Admin Gone To Rocks’: Urgent Plea Before Calcutta High Court In Light Of Student’s Death Due To Ragging

Senior Advocate Kalyan Bandopadhyay mentioned a PIL before the Calcutta High Court regarding recent events which unfolded in Jadavpur University, culminating in the death of a first-year BA student due to alleged ragging.

“I am not on the murder/suicide of the student, but the entire JU administration has gone to the rocks…there is no CCTV anywhere. Earlier it was installed, it has been broken, and all outsiders are staying there. Ex-students who passed out 8-10 years ago are staying in the hostel. There is no administration, everything is in dark, one after another students are subjected to ragging, and it has gone to a horrible place,” the Senior counsel told a division-bench of CJ TS Sivagnanam and Justice Hiranmay Bhattacharya.

Upon hearing the contentions raised, the Bench directed for notices to be served upon the University and posted the matter for tentative hearing on Monday, 21^st August upon completion of service.