Calcutta High Court Weekly Round-Up: October 16, 2023 To October 22, 2023

NOMINAL INDEX

Government of Maharashtra v Shrivin Pharma Pvt. Ltd. 2023 LiveLaw (Cal) 319

Manojit Basu vs. Shyamasree Basu (nee Ghosh) 2023 LiveLaw (Cal) 320

Dipali Mitra & Ors. V Coal India Limited & Ors. 2023 LiveLaw (Cal) 321

Probhat Purkait @ Provat v The State of West Bengal 2023 LiveLaw (Cal) 322

MSMED Act | Facilitation Council Must Adjudicate On Interest Component Itself- Cannot Delegate To Chartered Accountant: Calcutta High Court

Case: Government of Maharashtra v Shrivin Pharma Pvt. Ltd.

Citation: 2023 LiveLaw (Cal) 319

Calcutta High Court has held that the MSME Council could not ‘desert the task of decision making’ to a Chartered Accountant, who was not on the Council/arbitral tribunal under the MSMED Act, a single-bench of Justice Moushumi Bhattacharya observed:

Section 31(3) of the 1996 Act requires the arbitral tribunal to give reasons upon which the award is based subject to the parties agreeing otherwise. The reasons given by the Chartered Accountant in the present case for fixing the quantum of interest cannot be accepted to be the reasons of the Facilitation Council / arbitral tribunal in satisfaction of the mandate of section 31(3) of the 1996 Act. [By not completing the arbitral award] the Council would be undermining the very object of the MSMED Act and the legislative intent in enacting it.

Continued Abuse & Humiliation By “Insensible & Patriarchal” Husband Amounts To Cruelty: Calcutta High Court Upholds Divorce Decree

Case: Manojit Basu vs. Shyamasree Basu (nee Ghosh)

Citation: 2023 LiveLaw (Cal) 320

The Calcutta High Court has upheld a decree of divorce passed by the Trial court, dissolving the marriage between the appellant (husband) and respondent (wife) under Section 13 of the Hindu Marriage Act, 1955 (“HMA”).

Court further upheld the trial court's rejection of custody and dismissed an appeal by the appellant for custody of his son under Section 26 HMA due to non-payment of maintenance.

In upholding the verdict of the trial court and finding the appellant guilty of “cruelty” under the HMA, a division-bench of Justice Soumen Sen and Justice Sidhhartha Roy Chowdhury held:

The petitioner [wife] was physically abused by the opposite party husband. Instead of being supportive, he was instrumental in throttling her aspirations. He failed to accord her with dignity she deserved. The husband withdrew himself from the company of his wife and moved to the upper tier of the duplex. Such conduct is but expression of his intention to make the marriage dead. Sustained course of abusing and humiliating treatment by the husband should be considered as cruelty. There was absolute loss of affection. It would be detrimental for the mental and physical health of the respondent if she is asked to live with the appellant.

Differentiating Between Married And Unmarried Daughter In Compassionate Employment "Sexist": Calcutta High Court

Case: Dipali Mitra & Ors. V Coal India Limited & Ors.

Citation: 2023 LiveLaw (Cal) 321

The Calcutta High Court has found that the distinction between ‘married’ and ‘unmarried’ daughters for the purpose of compassionate appointment, as per Clause 9.3.3 of the National Coal Wages Agreement-VI is ultra vires and in violation of Article 14 and 15 of the Constitution.

In dismissing the plea of the petitioners for compassionate appointment upon noting that the most important factor for seeking the same was dependency on the deceased employee, and financial exigency, a single-bench of Justice Shekhar B Saraf held:

...addition of the word ‘unmarried’ before daughter is an arbitrary and sexist distinction under Clause 9.3.3 of NCWA-VI which is in violation of Article 14 and 15 of the Constitution of India...No application for compassionate appointment can be rejected solely on the ground of marital status of a daughter and the married daughter must be included within the category of direct dependents.

Court said the primary condition for consideration of application seeking compassionate appointment is to show dependency upon the deceased employee and financial exigency. It held assumption that marital status of a daughter changes her dependency from her father/mother to her husband is "misogynist".

[POCSO Act] Equating Consensual, Non-Exploitative Sexual Acts Between Adolescents With Rape Undermines Bodily Integrity & Dignity: Calcutta HC

Case: Probhat Purkait @ Provat v The State of West Bengal

Citation: 2023 LiveLaw (Cal) 322

The Calcutta High Court has exercised its jurisdiction under Article 226 of the Constitution, and Section 482 of the CrPC to set aside an impugned judgement and order of conviction against the appellant who had been sentenced to 20 years imprisonment on charges of kidnapping of a minor under IPC and aggravated penetrative sexual assault under POCSO Act.

In observing that the appellant, and victim were both adolescent residents of the same village, and had engaged in a consensual sexual relationship, a division bench of Justices Chitta Ranjan Dash and Partha Sarathi Sen noted from the victim that she had voluntarily proceeded to the appellant’s home to assume the role of his wife, and subsequently given birth to a child.

In quashing the ongoing criminal cases against the accused, the Court noted:

The victim stated before us that she and her husband belongs to a rural area and they do not have knowledge that their relationship and marriage constitute an offence. By equating consensual and non-exploitative sexual acts with rape and (aggravated) penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents. While the ostensible objective may be to protect all children below 18 years from sexual exploitation, the law’s unintended effect has been the deprivation of liberty of young people in consensual relationships. The POCSO Act lumps all persons below 18 years together without consideration for their developing sexuality, evolving capacity, and the impact of such criminalisation on their best interests.

OTHER DEVELOPMENTS

‘Media Bound By Higher Standards Of Accuracy Than Ordinary Citizens’: Calcutta HC Issues Guidelines For Coverage Of Recruitment Scam Case

Case: Rujira Banerjee v Union Of India & Ors

Case No: WPA/22990/2023

The Calcutta High Court has issued a set of guidelines for various media houses as well as investigative agencies, in particular, the Enforcement Directorate (“ED’”) in a plea by Rujira Banerjee, wife of TMC-MP and Recruitment-scam accused Abhishek Banerjee, seeking the Court’s intervention against ‘incessant media coverage’ of the case.

Earlier, the Court had expressed disinclination to ‘gag’ the media, and noted the Union’s objections that Banerjee’s wife being a foreign citizen could not enforce her Article 21 rights while stifling a citizen’s right to free speech.

Through the present order, a single-bench of Justice Sabyasachi Bhattacharya set guidelines for both the media, and ED pertaining to the recruitment-scam investigation, and held:

“News”, presented as news, has to be objective, shorn of opinionated barbs and jibes. Cardinal pre-requisites of responsible journalism are accuracy in presenting facts and objectivity. When a news item is presented as a news item, in whatever medium – audio, visual or print – the same has to be utterly truthful and be able to be corroborated by concrete materials and sources. Not only do the media not have any extra freedom of speech and expression, I would go one step further and say that in view of the immense impact of media on the society at large, they are bound by additional and higher standards of accuracy than an ordinary citizen

Protect Dignity & Self-Worth, Control Sexual Urges By Maintaining Right To Autonomy Of Body And Privacy: Calcutta HC Advises Adolescent Girls

Case: Probhat Purkait @ Provat v The State of West Bengal

Case No: CRA (DB) 14 of 2023

he Calcutta High Court has recently issued a slew of recommendations to adolescent boys and girls in a case concerning the appeal of young boy, who had been sentenced to 20 years in prison for engaging in sexual relations with a his romantic partner, who was a minor.

In acquitting the appellant, while recognising that the POCSO Act does not account for consensual, non-exploitative sexual relations between children aged 16-18 years, a division bench of Justices Chitta Ranjan Dash & Partha Sarathi Sen cited salutary legal principle of Mahabharata “Dharmo Rakshyati Rakshyita” (one who protects law is protected by law).

In laying down certain duties to be followed by adolescent boys and girls, the bench held:

It is the duty/obligation of every female adolescent to:

(i) Protect her right to integrity of her body.

(ii) Protect her dignity and self-worth.

(iii) Thrive for overall development of her self-transcending gender barriers.

(iv) Control sexual urge/urges as in the eyes of the society she is the looser when she gives in to enjoy the sexual pleasure of hardly two minutes.

(v) Protect her right to autonomy of her body and her privacy.

It is the duty of a male adolescent to respect the aforesaid duties of a young girl or woman and he should train his mind to respect a woman, her self-worth, her dignity & privacy, and right to autonomy of her body.

Calcutta High Court Aids Vishva-Bharati University Prof Ousted From CERN Project, Says VC Acting Against University’s Interests Should Be Removed

Case: Manas Maity Vs Visva-Bharati & Ors.

Case No: WPA 9029 of 2023

The Calcutta High Court has provided relief to the Physics Head of Department of Vishva-Bharati University (“petitioner”) who had been initially selected by the University for a research project entitled “ Indian Participation in the CMS experiment at CERN: Maintenance, Operation and Upgradation.”

Subsequently, the petitioner had been taken off the project due to a letter signed by the VC of the University, addressed to the Department of Science & Technology, Govt of India, intimating them of alleged suspension of the petitioner due to being involved in activities vitiating the academic environment of the University.

In expressing strong disapproval of the conduct of the VC, and providing relief to the petitioner, a single-bench of Justice Abhijit Gangopadhyay held:

The letter written by the Vice-Chancellor has a tone as appears to this court that suspension for some reasons has already been proved. Not only nothing has been proved against him till date, the suspension order has also been set aside by order of this court. Vice Chancellor not only acted against the petitioner who was the Head of the Department of Physics but also acted against the interest of the University. The Ministry of Education is not a party in this matter but because of such damaging letter from his own University, I am of the view that this Bidyut Chakrabarty should be removed from the post of Vice-Chancellor.

Calcutta High Court Defers Demolition Of Illegal Building Till ‘After Festive Season’ On Humanitarian Grounds, Cites Tenants’ Economic State

Case: Panchibala Polley vs The Bidhannagar Municipal Corporation & Ors.

Case No: WPA 11753 of 2023

The Calcutta High Court has kept in abeyance an order for the demolition of an illegal building under the jurisdiction of Bidhannagar Municipal Corporation (“BMC”). Earlier, the BMC had been directed to demolish the building forthwith.

Acknowledging the plight of those who had invested considerable sums of money in acquiring either shops or houses in the building, a single-bench of Justice Abhijit Gangopadhyay kept the demolition order in abeyance “till after the festive season.”

The demolition order passed yesterday is kept in abeyance as of now. I have found that the co-sharers and also the purchasers of flat who are separate group have been duped either by the co-sharers or by the developers or by both. After talking to them I have found that none of them comes from a rich family. Therefore, on humanitarian ground I do not pass any demolition order today. This order may be passed after the festive season, it held.

Calcutta High Court Refuses FIR Against Suvendu Adhikari For ‘Spat’ With Police, Says Leader’s Public Use Of Slangs Was ‘In Poor Taste’

Case: Suvendu Adhikari v The State of West Bengal & ors.

Case No: WPA 25522 of 2023

The Calcutta High Court has refused a plea for registration of an FIR against BJP Leader of Opposition Suvendu Adhikari under Sections 341 and 353 of the IPC for the offences of criminal use of force to prevent a public servant from discharging his duty and wrongful restraint.

Adhikari allegedly had an altercation with the police during protest over an issue, and was found having a spat with a police officer, allegedly calling him a stooge of the establishment and even using intemperate language.

In refusing to allow registration of an FIR since there was no prima facie cognizable offence made out after a video-clip of the incident had been viewed by Court, a single-bench of Justice Jay Sengupta held:

It is made clear that even under grave provocation, utterance of slang language in public, is an act done in poor taste and is not expected of a political leader of some stature or, for that matter, any public figure. At the same time, a mere usage of slang language even in public discourse would not amount to a cognizable offence, except if the same amounts to obscenity in terms of Section 294 of the Penal Code or is similarly proscribed under a special law, which is not the case here. The purported acts of the petitioner on the particular date prima facie did not amount to assault or use of criminal force to deter a public servant from discharging his duty. If such incidents are construed as amounting to offences under Section 341 or 353 of the Penal Code, then it will sound a death knell for a citizen’s right to protest. The framers of our Constitution would have shuddered in fear to think about such interpretation.

Calcutta HC Chief Justice Inaugurates VC System Between Courts & Correctional Homes At Kolkata, In-Camera Test-Identification Parade

The Calcutta High Court hosted the inauguration of the video-conferencing system between courts and correctional homes at Kolkata and in-camera test-identification parade. The facility was inaugurated by Chief Justice TS Sivagnanam.

The Chief Justice pointed at the foundational features of the Nirbhaya Project, and the need for having VC facilities between Courts and Correctional homes, laying emphasis on the importance of prisoner safety, preventing escape and seamless production of under-trials before the various sessions courts.

Following the tragedy of December 2012, the Nirbhaya fund was set up to protect the women of this country. The project has four features. First the safety and security of women, optimum use of existing infrastructure, innovative use of technology, and avoiding repetition of earlier government programs. Approved cost under this project for WB was more than 2.99 crore, which was utilized by the police to set up this VC system. As pointed out, this ensures safety of prisoners, prevent their escape, and reduce vehicular costs 20 VC systems have been set up in 3 correctional homes, and 33 courtrooms in various court complexes across the State, it was stated.