Calcutta High Court Weekly Round-Up: July 24 - July 30

NOMINAL INDEX

1. Auroma Coke Limited v Coal India Limited and others 2023 LiveLaw (Cal) 192
2. The State of West Bengal & Ors. Vs. M/s. BBM Enterprise 2023 LiveLaw (Cal) 193
3. Tanushree Hazra Vs State of West Bengal And Ors. 2023 LiveLaw (Cal) 194
4. Shreekant Sharma Vs. The State of West Bengal & Anr 2023 LiveLaw (Cal) 195
5. Somnath Gupta Vs. State of West Bengal & Orr 2023 LiveLaw (Cal) 196
6. Shagufta Sulaiman v State of WB and ors 2023 LiveLaw (Cal) 197
7. Shivani Mishra Vs. The Union of India and others 2023 LiveLaw (Cal) 198
8. Rabin Tudu vs. State of West Bengal & ors and connected applications 2023 LiveLaw (Cal) 199
9. Biresh Poddar and another v State of West Bengal and others 2023 LiveLaw (Cal) 200

1. Calcutta High Court Criticizes "Indefinite" Ban On Bidder Pending Criminal Trial

Case: Auroma Coke Limited v Coal India Limited and others

Citation: 2023 LiveLaw (Cal) 192

The Calcutta High Court has allowed a writ petition for the lifting of a ban imposed on Auroma Coke Ltd (“petitioners”) from taking part in the Non-regulated Sector (“NRS”) Linkage auctions organised by Coal India Limited (“CIL”).

The petitioners were blacklisted by CIL in the year 2011 upon a communication by the Central Bureau of Investigation (“CBI”) regarding alleged mis-utilisation of coal carried out by the petitioners. The CBI had since filed a chargesheet in the matter in 2012 and an ongoing criminal trial had since ensued before a sessions court in Dhanbad.

Upon purposively constructing the “Scheme Document of November 2022”, released by CIL, in order to interpret the sections on blacklisting in NRS Linkage auctions, a single-judge Bench of Justice Sabyasachi Bhattacharya held that the tender document itself stipulated a maximum blacklisting period of 5 years, even if there existed an ongoing criminal investigation or order of conviction against the petitioner.

2. Court May Permit Award-Holder To Withdraw Security Deposited By Award-Debtor Pending Challenge To Arbitral Award U/S 34: Calcutta High Court

Case: The State of West Bengal & Ors. Vs. M/s. BBM Enterprise

Citation: 2023 LiveLaw (Cal) 193

The Calcutta High Court has recently allowed an application filed by the State of West Bengal, as an award-holder in AP 808 of 2022, under the Arbitration and Conciliation Act, 1996 (“1996 Act”) to withdraw a security of Rs 9 crore furnished by BBM Enterprises (“award debtor”) in lieu of the arbitral award, during the pendency of setting aside proceedings on the impugned award, initiated by the award-debtor.

In holding that an award-holder required no statutory sanction or a separate application in the stay proceedings for withdrawing the secured amount, a single-bench of Justice Moushumi Bhattacharya directed the State to furnish a bank guarantee of an equivalent amount to the Registrar, Original Side, Calcutta High Court, before withdrawing the amount, and opined that withdrawal of the amount would not prejudice the rights of the award-debtor, during the pendency of the setting-aside proceedings.

3. Calcutta High Court Directs Pollution Control Board To Conduct Surprise Inspection On Rice Mills Allegedly Discharging Toxic Effluents

Case: Tanushree Hazra Vs State of West Bengal And Ors.

Citation: 2023 LiveLaw (Cal) 194

The Calcutta High Court directed the West Bengal Pollution Control Board (“PCB”), to carry out surprise inspections on certain rice-mills in Arambagh allegedly discharging toxic effluents into a kuchha ‘drain’ along the side of a busy National Highway.

Upon noting that the PCB had previously ordered the closure of the aforesaid rice mills due to their illegal and polluting actions, a division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya observed:

“As long as the order of PCB has not been revoked, altered or modified, the private respondent rice mills are not entitled to carry on their actions It is not clear as to why the PCB has not made any further inspection in the matter. Therefore, there will be a direction to the appropriate authority of the WB PCB to conduct an immediate surprise inspection of all the respondent rice mills. If it is found that despite the order of closure, or in non-compliance with any directions issued by PCB, the mills are operating, then immediate action must be taken against them. If they are complying with direction by establishing effluent treatment plant among other conditions, then only will the PCB be entitled to permit them to carry on business. The surprise inspection shall be carried out not later than ten days from the communication of the server copy of this order.”

4. Calcutta High Court Refuses To Quash POCSO FIR Against ‘Priest’ Grand-Uncle, Says No Time Limit Can Be Prescribed For Filing Such Complaints

Case: Shreekant Sharma Vs. The State of West Bengal & Anr

Citation: 2023 LiveLaw (Cal) 195

The Calcutta High Court has refused to quash the criminal proceedings under the Protection of Children from Sexual Offences Act (“POCSO Act”) initiated by a minor girl against her grand-uncle, a priest, accusing him of committing various acts of sexual assault upon her, when she was 15-16 years old.

In refuting the contentions raised by the petitioners, including the delay in filing of FIR, a single-judge bench of Justice Bibek Chaudhuri noted that the social stigmatisation of rape and sexual assault survivors often leads to them being unable to report such crimes, and held:

“There are a plethora of reasons why victims of sexual assault do not come forward with allegations. Firstly, they are discouraged from filing F.I.R. and are not believed by the authorities. This is coupled with the social stigma that a woman and her family face from society when such an act is committed against her. More importantly, sexual harassment and rapes are crimes which can cause lifelong trauma to the victims and it is impossible to mathematically calculate or prescribe a time limit as to when a person would recover and would be comfortable with filing a complaint.

5. Can't Order Further Investigation For Second Time If Relevant Materials Already On Record: Calcutta High Court

Case: Somnath Gupta Vs. State of West Bengal & Orr

Citation: 2023 LiveLaw (Cal) 196

The Calcutta High Court dismissed the revision petition filed by film director Somnath Gupta against Sessions Court order dismissing his prayer for second further investigation into alleged ‘piracy’ of his film “O-Kay…? At Night in the Forest”.

The criminal case was registered in 2015 under various provisions of the IPC and the Indian Copyright Act, 1957. Gupta claimed the initial probe into the origin of pirated CD was not proper and alleged that police were unwilling to investigate even after the first order for further investigation.

However, a single-bench of Justice Shampa (Dutt) Paul held that further investigation could not be ordered for the second time, if sufficient relevant material had already been placed on record.

6. Continuous Drum Beating Impermissible, No Religious Tenet Says You Do This: Calcutta High Court Issues Directions Ahead Of Muharram

Case Title: Shagufta Sulaiman v State of WB and ors

Citation: 2023 LiveLaw (Cal) 197

Ahead of Muharram, the Calcutta High Court issued directions to the West Bengal Police and the State's Pollution Control Board to regulate instances of public nuisance caused by alleged drum-beating and open-air kitchens.

A division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya said the State ought to counterbalance the right to enjoyment of religion under Article 25(1) of the Constitution with the Right to Life under Article 19(1)(a). "On proper construction, it cannot be said that a citizen should be coerced to hear something he does not like or require," it orally remarked.

Court said drum beating cannot go on continuously and directed the police to immediately issue public notice, regulating the timing for beating of drums. It suggested that permission should be given for two hours in the morning and two hours in the evening. "[Drum beating] should not start before 8am. There will be school going children, exams are there, old and ill people...normally you give permission for two hours in the morning, two hours in the evening. But after 7pm it shouldn’t happen," the Chief Justice said.

7. Passport | Police Verification Only To Ascertain Genuineness Of Documents, Applicant Cannot Suffer Indefinitely For Its Inaction: Calcutta High Court

Case: Shivani Mishra Vs. The Union of India and others

Citation: 2023 LiveLaw (Cal) 198

The Calcutta High Court has held that during the ‘police verification’ process for the issuance of passport, the responsibility of the police is limited to ascertaining the genuineness of documents produced for verification by the applicant, and that the applicant should not be made to suffer indefinitely for inaction by the police authorities.

In allowing a writ-petition, directing the police authorities to expeditiously conclude the verification process of the petitioner’s birth certificate, a single-bench of Justice Sabyasachi Bhattacharya held:

"It transpires from the annexure at page-17, regarding Passport Verification Status that the list of documents to be submitted at the Police Station for police verification only requires two of the documents, as stated therein, to be produced as citizenship proof. Since the petitioner has already submitted more than two such documents, no further documents are required to be furnished by the petitioner with the police authorities. The lookout of the Police is only to ascertain whether the documents produced by the petitioner are genuine. The petitioner cannot suffer indefinitely for such inaction on the part of the Police authorities. Accordingly, WPA No. 16452 of 2023 is allowed, thereby directing the respondent no.2-authorities to immediately ascertain as to the outcome of the e-mail allegedly sent to the respondent no.3-authorities, with regard to the verification of the birth certificate produced by the petitioner.”

8. Transferring School Teacher Not Violation Of Right To Life, Dignity: Calcutta High Court Upholds Provision Under WBSSC Act

Case: Rabin Tudu vs. State of West Bengal & ors and connected applications

Citation: 2023 LiveLaw (Cal) 199

The Calcutta High Court has upheld the constitutional validity of Section 10C of the West Bengal School Service Commission Act, 1997 (“1997 Act”) which was introduced vide an amendment in the year 2017 enabling transfer of a teacher from one school to another.

A division-bench of Justice Harish Tandon and Justice Prasenjit Biswas were assigned to decide the common question of constitutional validity that had arisen in several writ petitions, pending before different benches.

Section 10C had been challenged in a slew of writ petitions filed by teachers of various state aided schools, against their alleged “illegal transfers” by the State under the aforesaid provision. The Division bench held,

“Every service in the public employment unless forbidden by law is transferable. A teacher which is placed in a school if transferred to another school, it does not affect the right to life as he or she is conscious that the service is transferable. In every transferable service, if a person is transferred from one place to another he may contend that his dignity is impaired as steadiness and he is entitled to live a life in stress-free atmosphere; and in such event none of the employee in the public employment would be transferred from one place to another. We do not find any substance in the stand that the transfer of teacher from one school to another offends the constitutional guarantee of right to life under Article 21 of the Constitution. We, thus, do not find that Section 10C can be declared ultra vires to the constitution.”

9. Calcutta High Court Directs Sentence Review Board To Reconsider Plea For Remission Of Man Who Has Spent 23 Yrs In Jail

Case: Biresh Poddar and another v State of West Bengal and others

Citation: 2023 LiveLaw (Cal) 200

The Calcutta High Court has recently directed the West Bengal State Sentence Review Board (“the Board”) to reconsider the plea of a petitioner, who has spent 23 years in incarceration, for remission of sentence, upon noting that the Board which had considered the plea was not only improperly constituted, but had also failed to consider the National Human Rights Commission (“NHRC”) Guidelines on early-release of prisoners.

In finding that not only did the Board lack the presence of a District judge, as was statutorily mandated, a single-bench of Justice Sabyasachi Bhattacharya also observed that it had failed to consider crucial tests for early release of prisoners, such as behaviour during incarceration, likelihood of committing similar crimes, etc.

OTHER DEVELOPMENTS

1. Calcutta High Court Directs Police To Escort Poll Violence Victims Back To Their Homes

Case: Priyanka Tibrewal v State of WB and ors & connected matters

Those who were molested and assaulted shall be provided escort by the local police to go back to their home, the Calcutta High Court directed in the aftermath of post poll violence in West Bengal.

A division-bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya further directed that those complaints, if already registered, must be investigated and the Police Superintendent of the concerned district shall monitor the restoration and the probe.

The direction was issued in a petition filed by Advocate Priyanka Tibrewal alleging large-scale violence "at the behest of the ruling dispensation"

During the hearing, the bench also took stern exception to a party filing intervention application, bearing averments identical to an independent writ petition filed by them, concerning the Panchayat Elections. The application was filed in a petition moved by Congress leader Adhir Ranjan Chowdhury.

2. Teacher Recruitment Scam: Calcutta High Court Judge Withdraws From Hearing Abhishek Banerjee's Plea After ED's Objection

Case: Abhishek Banerjee v The Directorate of Enforcement (ED)

Justice Tirthankar Ghosh of the Calcutta High Court had released a quashing petition moved by AITC MP Abhishek Banerjee in connection with the West Bengal Teachers Recruitment “cash-for-jobs” scam.

The development comes after ED objected to his court hearing the matter. ASG SV Raju cited Supreme Court's direction dated April 28 based on which the matter concerning Recruitment Scam was reassigned to single bench of Justice Amrita Singh. ASG also cited the Assignment Order dated May 1, passed by the High Court Chief Justice

Later, Chief Justice T.S. Sivagnanam reassigned the matter to Justice Tirthankar Ghosh.

3. Calcutta HC Orders Suspension Of IO, Inspector-In-Charge For Making Arrest In POCSO Case Without Material, Disclosing Victim's Identity

Case: Anil Sardar v State of West Bengal & Anr 

The Calcutta High Court directed the Commissioner of Police, Bidhannagar, to suspend the Inspector-in-charge and Investigating Officer in a POCSO case, while expressing serious objections over the ‘appalling lack of awareness’ regarding investigation procedure.

A division bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta held:

“The police officers concerned appear to have flagrantly ignored the mandate of [settled] law in the investigation of the case and prima facie caused harm both to the victim by exposing her identity as well as to the petitioner by depriving him of the liberty though materials spoke otherwise. We are of the prima facie view that the police officers have derelicted in the discharge of their official duties during investigation of the case. Accordingly, we direct the Commissioner of Police, Bidhannagar Police Commissionerate to suspend the police officers and initiate disciplinary proceedings against them for dereliction of duty during investigation.”