- Home
- /
- News Updates
- /
- Calcutta High Court Half Yearly...
Calcutta High Court Half Yearly Digest: January To June 2022 [Citations 1 - 261]
Aaratrika Bhaumik
20 Oct 2022 4:17 PM IST
![Calcutta High Court Half Yearly Digest: January To June 2022 [Citations 1 - 261]](https://www.livelaw.in/h-upload/2022/10/10/750x450_438515-calcutta-high-court-half-yearly-digest.jpg "Calcutta High Court Half Yearly Digest: January To June 2022 [Citations 1 - 261]")
Nominal IndexDr. Avinandan Mondal v. State of West Bengal & Ors 2022 LiveLaw (Cal) 1Bimal Bhattacharya v. State of West Bengal & Ors LiveLaw (Cal) 2Pratik Maitra v. State of West Bengal 2022 LiveLaw (Cal) 3Shri Aloke Singh & Ors v. Indian Statistical Institute & Ors 2022 LiveLaw (Cal) 4 Amit Kumar Das and Ors v. State of West Bengal 2022 LiveLaw (Cal) 5Bagaria Properties...
Nominal Index
Dr. Avinandan Mondal v. State of West Bengal & Ors 2022 LiveLaw (Cal) 1
Bimal Bhattacharya v. State of West Bengal & Ors LiveLaw (Cal) 2
Pratik Maitra v. State of West Bengal 2022 LiveLaw (Cal) 3
Shri Aloke Singh & Ors v. Indian Statistical Institute & Ors 2022 LiveLaw (Cal) 4
Amit Kumar Das and Ors v. State of West Bengal 2022 LiveLaw (Cal) 5
Bagaria Properties and Investment Pvt. Ltd. & Anr v. Union of India 2022 LiveLaw (Cal) 6
Sumit Roy v. The Union of India & Ors 2022 LiveLaw (Cal) 7
Raich Laskar v. State of West Bengal and Ors 2022 LiveLaw (Cal) 8
Durgabala Mandal v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 9
Radharani Saha v. The State of West Bengal and Ors 2022 LiveLaw (Cal) 10
Suhana Khatun v. State of West Bengal 2022 LiveLaw (Cal) 11
Pabitra Rajbanshi and Ors v. The Chief Secretary, Government of West Bengal and Ors 2022 LiveLaw (Cal) 12
Rama Prasad Sarkar v. Union of India 2022 LiveLaw (Cal) 13
Lindsay International Private Limited v. Laxmi Niwas Mittal 2022 LiveLaw (Cal) 14
Pawan Kumar Niroula v. Union of India 2022 LiveLaw (Cal) 15
Dr. Nazrul Islam v. Basudeb Banerjee & Ors 2022 LiveLaw (Cal) 16
Amirul Gazi v. State of West Bengal 2022 LiveLaw (Cal) 17
Biswanath Das v. State 2022 LiveLaw (Cal) 18
Md. Wasim v. The State of West Bengal 2022 LiveLaw (Cal) 19
Divyajot Singh Jendu v. Manikaran Analytics Limited 2022 LiveLaw (Cal) 20
Sumit Roy v. Union of India 2022 LiveLaw (Cal) 21
Lakshi Ram Hembram @ Laxmiram Hembram v. State of West Bengal 2022 LiveLaw (Cal) 22
Md. Israil v. The State of West Bengal 2022 LiveLaw (Cal) 23
Supratik Ghosh v. State of West Bengal & Anr 2022 LiveLaw (Cal) 24
Manik Das @Manik Chandra Das v. The Narcotics Control Bureau (NCB) 2022 LiveLaw (Cal) 25
Sumana Layek v. State of West Bengal & Ors 2022 LiveLaw (Cal) 26
Sukanya Mirbahar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 27
Uttam Saha & Anr v. State of West Bengal 2022 LiveLaw (Cal) 28
Anubrata Mondal v. Union of India 2022 LiveLaw (Cal) 29
West Bengal State Electricity Distribution Company Limited v. Sukanta Kumar Singha and Anr 2022 LiveLaw (Cal) 30
Union Of India and Others v. Ratna Sarkar 2022 LiveLaw (Cal) 31
Surojit Mandal v. National Investigation Agency (NIA) 2022 LiveLaw (Cal) 32
Ganesh Orang v. State of West Bengal & Anr 2022 LiveLaw (Cal) 33
Bimal Bhattacharya v. State of West Bengal 2022 LiveLaw (Cal) 34
Dabur India Limited v. Shree Baidyanath Ayurved Bhawan Pvt Ltd 2022 LiveLaw (Cal) 35
Tania Mukherjee & Ors v. State of West Bengal & Ors 2022 LiveLaw (Cal) 36
Tapan Saha v. State Election Commissioner & Ors 2022 LiveLaw (Cal) 37
Srimanta Ghosh & Ors v. Debabrata Ghosh 2022 LiveLaw (Cal) 38
Gaurav Purakayastha v. State of West Bengal 2022 LiveLaw (Cal) 39
Satya Narayan Banik & Ors v. Union of India & Ors 2022 LiveLaw (Cal) 40
Abu Sohel v. The State West Bengal and others 2022 LiveLaw (Cal) 41
Nivedita Basu v. State of West Bengal 2022 LiveLaw (Cal) 42
Sabita Roy v. State of West Bengal 2022 LiveLaw (Cal) 43
Ramaprasad Sarkar v. Union of India 2022 LiveLaw (Cal) 44
Rajib Chakraborty and Ors v. The State of West Bengal and Ors 2022 LiveLaw (Cal) 45
Manick Sardar v. State of West Bengal 2022 LiveLaw (Cal) 46
Manav Investment and Trading Co. Ltd v. DBS Bank India Ltd 2022 LiveLaw (Cal) 47
West Bengal School Service Commission v. Sandeep Prasad and Ors 2022 LiveLaw (Cal) 48
Rajib Paul v. The State of West Bengal and Anr 2022 LiveLaw (Cal) 49
Rakesh Kumar Singh v. Director, Alipore Zoological Garden & Ors 2022 LiveLaw (Cal) 50
Anindita Mandal v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 51
Md. Abdul Gani Ansari v. State of West Bengal & Ors 2022 LiveLaw (Cal) 52
Iti Pandit v. The Union of India and Ors 2022 LiveLaw (Cal) 53
Pratap Banerjee v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 54
Bharat Heavy Electricals Limited v. Optimal Power Synergy 2022 LiveLaw (Cal) 55
Chandan Jana & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 56
Ashoke Ghosh v. State of West Bengal 2022 LiveLaw (Cal) 57
Shueli Panda Mishra & Ors v. State of West Bengal 2022 LiveLaw (Cal) 58
Swadhin Kumar Sarkar v. Chandana Sarkar and Ors 2022 LiveLaw (Cal) 59
Dipak Singha v. State of West Bengal 2022 LiveLaw (Cal) 60
Nasrin Khatun v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 61
Ashok Kumar Sureka v. Assistant Commissioner State Tax, Durgapur Range, Government of West Bengal 2022 LiveLaw (Cal) 62
Zia Sharif Hussain @ Tushar Subash Roy 2022 LiveLaw (Cal) 63
Habibur Rahaman v. State of West Bengal 2022 LiveLaw (Cal) 64
Budhin Soren v. State of West Bengal 2022 LiveLaw (Cal) 65
Sashi Jain @ Shashi Jain v. Sandip Sarka 2022 LiveLaw (Cal) 66
Saptaparna Ray v. District Magistrate and Collector, North 24 Parganas and others 2022 LiveLaw (Cal) 67
Latika Ghosh v. The Commercial Tax Officer/Assistant Commissioner, West Bengal Goods & Service Tax, Raiganj Charge & ors 2022 LiveLaw (Cal) 68
Setab Uddin & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 69
Creative Museum Designers v. Income Tax Officer, Exemptions, Ward-1(1), Kolkata 2022 LiveLaw (Cal) 70
Dharanidhar Ghosh Vs. Union of India 2022 LiveLaw (Cal) 71
Unisource Hydro Carbon Services Private Limited Versus Union of India 2022 LiveLaw (Cal) 72
Sankar Mondal v. Swapan Debnath & Ors 2022 LiveLaw (Cal) 73
Piyali Tewari Dey v. Baidyanath Dey & Ors 2022 LiveLaw (Cal) 74
Ashlesh Biradar v. State of West Bengal 2022 LiveLaw (Cal) 75
In the goods of Mahesh Kumar Agarwal and Anr. v. Meena Agarwal and Ors 2022 LiveLaw (Cal) 76
Tushar Kanti Das v. Kajal Saha 2022 LiveLaw (Cal) 77
Anubrata Mondal v. Union of India & Ors 2022 LiveLaw (Cal) 78
In Re : Bhajagobinda Roy alias Bhajan Roy 2022 LiveLaw (Cal) 79
Galaxy Mechanical Engineering Equipments Private Limited Versus Assistant Commissioner 2022 LiveLaw (Cal) 80
Concast Steel and Power Limited v. Sarat Chatterjee and Co 2022 LiveLaw (Cal) 81
Sariful Sk. & Anr v. The State of West Bengal 2022 LiveLaw (Cal) 82
Anindya Sundar Das v. Union of India and other connected matters 2022 LiveLaw (Cal) 83
Precious Trade Link Private Limited Versus Assistant Commissioner of State Tax 2022 LiveLaw (Cal) 84
Alpine Distilleries Pvt. Ltd v. The State of West Bengal and others 2022 LiveLaw (Cal) 85
Ajoy Kumar Singhania v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 86
Naimuddin Laskar @ Naim v. The State of West Bengal 2022 LiveLaw (Cal) 87
Kabita Mondal (Gayen) v. West Bengal State Electricity Distribution Co. Ltd. and others 2022 LiveLaw (Cal) 88
Kamal Nath v. The Principal Commissioner of Income Tax, Kolkata 2022 LiveLaw (Cal) 89
The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum 2022 LiveLaw (Cal) 90
Malancha Mohinta v. Dipak Mohinta 2022 LiveLaw (Cal) 91
Ram Sevak Lohar v. State 2022 LiveLaw (Cal) 92
Dr. Kausik Paul v. Seacom Skills University and Others 2022 LiveLaw (Cal) 93
Anubrata Mondal v. Union of India & Ors 2022 LiveLaw (Cal) 94
Bharat Heavy Electricals Limited v. Optimal Power Synergy Ltd 2022 LiveLaw (Cal) 95
In Re : Guddu Mondal @ Guddu Ali Mondal & Anr 2022 LiveLaw (Cal) 96
Dr. Santi Prasad Sinha v. Md. Abdul Gani Ansari and others 2022 LiveLaw (Cal) 97
Abu Fazel Fakir & Ors v. The State of West Bengal 2022 LiveLaw (Cal) 98
Md. Abdul Gani Ansari v. State of West Bengal & Ors. 2022 LiveLaw (Cal) 99
Rajesh K.V. @ Rajesh Kaleerakath Venugopal v. Visva-Bharati & Ors 2022 LiveLaw (Cal) 100
Sabitri Bhunya v. The State of West Bengal and Others 2022 LiveLaw (Cal) 101
Central Bureau of Investigation v. Biman Kumar Saha & Anr 2022 LiveLaw (Cal) 102
Dr. Santi Prasad Sinha v. Laxmi Tunga & ors 2022 LiveLaw (Cal) 103
Irina Mullick v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 104
Purnima Kandu & Anr v. State of West Bengal 2022 LiveLaw (Cal) 105
Laxmi Tunga & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 106
Dr Santi Prasad Sinha v. Laxmi Tunga and ors 2022 LiveLaw (Cal) 107
Rajib Chakraborty and Ors v. The State of West Bengal and Ors 2022 LiveLaw (Cal) 108
Anindita Bera v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 109
The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum 2022 LiveLaw (Cal) 110
Dr. Kunal Saha v. The State of West Bengal & Anr 2022 LiveLaw (Cal) 111
Monirul Molla v. The State of West Bengal 2022 LiveLaw (Cal) 112
APL Metals Ltd. v. Mountview Tracom LLP & Ors 2022 LiveLaw (Cal) 113
Sona Karar & anr v. The Howrah Municipal Corporation & ors 2022 LiveLaw (Cal) 114
Sumitra Bhattacharyya v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 115
Shaista Afreen and Others v. The State of West Bengal and Others 2022 LiveLaw (Cal) 116
Purnima Kandu & Anr v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 117
Dr. Santi Prasad Sinha v. Laxmi Tunga and Ors 2022 LiveLaw (Cal) 118
Ramesh Co. v. Imperial Tubes Pvt. Ltd 2022 LiveLaw (Cal) 119
Suvendu Adhikari v. Hon'ble Speaker, WB Legislative Assembly and Ors and other connected matters 2022 LiveLaw (Cal) 120
Rohit Pal v. The State of West Bengal 2022 LiveLaw (Cal) 121
Azizur Rahaman v. The State of West Bengal & ors 2022 LiveLaw (Cal) 122
Sambhu Das v. The State of West Bengal & Anr 2022 LiveLaw (Cal) 123
M/s. Satyen Construction v. State of West Bengal & Ors 2022 LiveLaw (Cal) 124
Dr. Papiya Mukherjee versus Aruna Banerjea and Anr 2022 LiveLaw (Cal) 125
Debaki Nandan Maiti v. The State of West Bengal and Ors 2022 LiveLaw (Cal) 126
Anindya Sundar Das v. West Bengal Taxation Tribunal Bar Association and Others 2022 LiveLaw (Cal) 127
Dr. Sudipta Banerjee v. L.S. Davar & Company & Ors 2022 LiveLaw (Cal) 128
Rajib Chakraborty and Ors v. The State of West Bengal and Ors 2022 LiveLaw (Cal) 129
In the matter of : Ms. Minakhi Mukherjee & Ors 2022 LiveLaw (Cal) 130
Prafulla Mura v. The State of West Bengal & Anr 2022 LiveLaw (Cal) 131
Shaista Afreen and Others v. The State of West Bengal and Others 2022 LiveLaw (Cal) 132
The State of West Bengal v. Union of India & Anr 2022 LiveLaw (Cal) 133
Manav Investment and Training Company Ltd v. DBS Bank India Ltd 2022 LiveLaw (Cal) 134
Anindya Sundar Das v. Union of India and other connected matters 2022 LiveLaw (Cal) 135
Priyanka Tibrewal v. State of West Bengal and Ors 2022 LiveLaw (Cal) 136
Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 137
Pallabi Chatterjee and Ors v. State of West Bengal 2022 LiveLaw (Cal) 138
Haren Bagchi Biswas alias Harendranath Biswas v. Union of India 2022 LiveLaw (Cal) 139
Sukumar Ray v. M/s Indo-Industrial Services and Ors. 2022 LiveLaw (Cal) 140
Bengal State Table Tennis Association & Ors. v Malda District Table Tennis Association & Ors 2022 LiveLaw (Cal) 141
Soumendu Adhikari v. State of West Bengal 2022 LiveLaw (Cal) 142
In the matter of: Parimal Barui 2022 LiveLaw (Cal) 143
Madhu Singh v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 144
Indranil Mukherjee v. State of West Bengal and Ors 2022 LiveLaw (Cal) 145
Subrata Kumar Samanta v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 146
Bidyut Kumar Mondal v. Pankaj Sarkar & Anr 2022 LiveLaw (Cal) 147
Rupa Das v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 148
Snigdha Datta (Basu) v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 149
In the matter of Kapil Raj 2022 LiveLaw (Cal) 150
Sanat Kumar Ghosh & Ors. v. Rajesh Kumar Sinha & Ors 2022 LiveLaw (Cal) 151
Nur Afsar Mandal v. Visva Bharati and Ors 2022 LiveLaw (Cal) 152
Ideal Unique Realtors Private Limited & Anr. versus Union of India & Ors 2022 LiveLaw (Cal) 153
Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 154
Dipok Dinda v. State of West Bengal and Ors 2022 LiveLaw (Cal) 155
Future Market Networks Limited versus Laxmi Pat Surana & Anr 2022 LiveLaw (Cal) 156
In Re : State of West Bengal vs. Md. Younus @ Bilal & Ors 2022 LiveLaw (Cal) 157
Sekh Jamir and Others v. Central Bureau of Investigation and Others 2022 LiveLaw (Cal) 158
Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 159
Amrita Pandey v. The Union of India and others 2022 LiveLaw (Cal) 160
Kader Khan v. State of West Bengal 2022 LiveLaw (Cal) 161
Dr. Kunal Saha v. University of Calcutta & Anr 2022 LiveLaw (Cal) 162
In the matter of Dunlop India Ltd 2022 LiveLaw (Cal) 163
Damodar Valley Corporation versus Reliance Infrastructure Ltd 2022 LiveLaw (Cal) 164
Bhaskar Banerjee v. Central Bureau of Investigation & Anr 2022 LiveLaw (Cal) 165
Indian Jute Mills Association and Anr v. Union of India and Ors 2022 LiveLaw (Cal) 166
Sanghamitra Bhattacharya v. Sudeshna Kar & Ors 2022 Live Law (Cal) 167
Aminul Islam @ Amenur Molla v. The State of West Bengal 2022 LiveLaw (Cal) 168
Suraj Singh v. State of West Bengal & Anr 2022 LiveLaw (Cal) 169
The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum 2022 LiveLaw (Cal) 170
Ali Hossain Sk. @ Ali Hussain Seikh v. Narcotics Control Bureau 2022 LiveLaw (Cal) 171
Chitta Biswas v. The State of West Bengal & Anr 2022 LiveLaw (Cal) 172
Anita Nigam v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 173
Soma Sinha v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 174
Sanchita Kundu & Anr. Vs. The Assistant Commissioner of State Tax, Bureau of Investigation, South Bengal & Ors 2022 LiveLaw (Cal) 175
Govardhan Commodities Pvt. Ltd. Vs. Assistant/Deputy Commissioner of Income Tax 2022 LiveLaw (Cal) 176
Rajinder Lohar v. The State of West Bengal 2022 LiveLaw (Cal) 177
Aniruddha Prasad Singh @ Sinha v. The State of West Bengal 2022 LiveLaw (Cal) 178
In the matter of: Parimal Sardar@Parimal Sikdar 2022 LiveLaw (Cal) 179
Md Jamiruddin v. Union of India & Ors 2022 LiveLaw (Cal) 180
Sova Rani Misra v. The State of West Bengal 2022 LiveLaw (Cal) 181
Salema Bibi v. State of West Bengal & Ors 2022 LiveLaw (Cal) 182
Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 183
Narayan Chandra Maiti v. Union of India & Ors 2022 LiveLaw (Cal) 184
Ramabatar Rajbar @ Ramawatar Nimtar Rajwar v. The State of West Bengal 2022 LiveLaw (Cal) 185
Dr Santi Prasad Sinha v. Laxmi Tunga and other connected matters 2022 LiveLaw (Cal) 186
Laxmi Tunga v. State of West Bengal and Ors 2022 LiveLaw (Cal) 187
Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 188
Aditya Birla Finance Ltd v. Mcleod Russel India Ltd. and Ors Case Citation: 2022 LiveLaw (Cal) 189
Priyanka Tibrewal v. State of West Bengal and Ors 2022 LiveLaw (Cal) 190
Bhadrish Jayantilal Sheth Versus Income Tax Officer 2022 LiveLaw (Cal) 191
State of West Bengal v. Consideration of State Government Employee 2022 LiveLaw (Cal) 192
Smt Kalabati Mondal v. Union of India 2022 LiveLaw (Cal) 193
Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 194
Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 195
Babita Sarkar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 196
Partha Chatterjee v Laxmi Tunga 2022 LiveLaw (Cal) 197
Alo Rani Sarkar v. Swapan Majumdar 2022 LiveLaw (Cal) 198
Kaniska Roy & Anr v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 199
New Eureka Travels Club v. South Bengal State Transport Corporation 2022 LiveLaw (Cal) 200
Assistant Commissioner v. Ashok Sureka 2022 LiveLaw (Cal) 201
Piyarul Sk v. The State of West Bengal 2022 LiveLaw (Cal) 202
The Chairperson, West Bengal Commission for Protection of Child Rights v. Election Commission of India & Others 2022 LiveLaw (Cal) 203
Md. Firoz Ala @ Firoj Alam v. State of West Bengal 2022 LiveLaw (Cal) 204
Asansol Mini Bus Association and others v. Union of India and others 2022 LiveLaw (Cal) 205
SREI Equipment Finance Limited versus Additional/Joint/Deputy/Assistant Commissioner of Income Tax and Ors 2022 LiveLaw (Cal) 206
Shri Sadhan Roy v. Arvind Kumar Singh 2022 LiveLaw (Cal) 207
Mritunjay Singh v. Union of India & Ors 2022 LiveLaw (Cal) 208
M/s One Textile v. Umesh Bharech 2022 LiveLaw (Cal) 209
The State of West Bengal & Ors v. Gandhi Memorial Girls' High School & Ors 2022 LiveLaw (Cal) 210
Ajet Ali Baidya v. State of West Bengal 2022 LiveLaw (Cal) 211
Shukla Mondal @ Sumi v. State of W.B. & another 2022 LiveLaw (Cal) 212
Raju Mitra & Ors v. State of West Bengal 2022 LiveLaw (Cal) 213
NBCC (India) Ltd. v. The State of West Bengal and Ors. A.P.O No. 11 of 2022 2022 LiveLaw (Cal) 214
Kashinath Dey @ Kashi v. The State of West Bengal 2022 LiveLaw (Cal) 215
Sri Anish Loharuka v. The State of West Bengal 2022 LiveLaw (Cal) 216
Hafija Laskar v. The State of West Bengal and others 2022 LiveLaw (Cal) 217
Susmita Saha Dutta v. Avishek Bandyopadhyay 2022 LiveLaw (Cal) 218
Yes Bank Limited v. Malati Saha 2022 LiveLaw (Cal) 219
Sulogna Chowdhury v. State of West Bengal & Ors 2022 LiveLaw (Cal) 220
Pranesh Kumar Kar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 221
Abhishek Banerjee & Anr v. The Union of India & Ors 2022 LiveLaw (Cal) 222
Rajina Begam v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 223
In Re: Satyadeo Prasad Shaw 2022 LiveLaw (Cal) 224
State of West Bengal v. Purnima Kandu 2022 LiveLaw (Cal) 225
Goutam Saren v. Union of India & Ors 2022 LiveLaw (Cal) 226
Anup Gupta v. State of West Bengal and others 2022 LiveLaw (Cal) 227
Protima Dutta v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 228
Soumen Nandy v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 229
Mousumi Narayan (Nee Pal) v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 230
Usthi United Primary Teachers Welfare Association & Anr v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 231
Central Bureau of Investigation (Special Case No.04/99) v. Ms. S.R.Ramamani & Ors 2022 LiveLaw (Cal) 232
Suvendu Adhikari v. Abhishek Banerjee 2022 LiveLaw (Cal) 233
Nipika Agarwal Proprietress of S.N. Trading Versus Assistant Commissioner of State Tax 2022 LiveLaw (Cal) 234
Shri Adhir Ranjan Chowdhury v. State of West Bengal 2022 LiveLaw (Cal) 235
Niladri Saha v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 236
Ramesh Malik & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 237
M/S. Dunlop India Limited and Ors v. Mathai and Sons 2022 LiveLaw (Cal) 238
Abhisek Panda & Ors v. West Bengal National University of Juridical Sciences & Ors 2022 LiveLaw (Cal) 239
Electrosteel Castings Limited Versus The Assistant Commissioner 2022 LiveLaw (Cal) 240
Niladri Saha v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 241
Ramesh Malik & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 242
Mahendra Kumar Jain v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 243
Suresh Babu @ Arakkal Arjunan Suresh Babu v. State of West Bengal 2022 LiveLaw (Cal) 244
Pranati Aguan v. State of West Bengal and Ors 2022 LiveLaw (Cal) 245
Suvendu Adhikari and Ors v. Hon'ble Speaker, West Bengal Legislative Assembly 2022 LiveLaw (Cal) 246
Raj Kumar Singh & Anr. versus Assistant Commissioner 2022 LiveLaw (Cal) 247
In the matter of : Ved Prakash Arya v. State 2022 LiveLaw (Cal) 248
Ramesh Malik & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 249
Sk. Manowar Ali & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 250
Salem Khan v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 251
Ramesh Malik & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 252
Maleka Khatun v. The State of West Bengal and others 2022 LiveLaw (Cal) 253
Siliguri Jalpaiguri Development Authority v. Bengal Unitech Siliguri Projects Limited 2022 LiveLaw (Cal) 254
In the matter of : Kalu Sk. @ Kuran v. State 2022 LiveLaw (Cal) 255
Md. Safique Mallick v. The State of West Bengal & Anr 2022 LiveLaw (Cal) 256
Central Bureau of Investigation v. Sanjib Halder 2022 LiveLaw (Cal) 257
Sri Daksh Singhal & Ors v. The State of West Bengal and Others 2022 LiveLaw (Cal) 258
Ashok Jana v. The State of West Bengal & ors 2022 LiveLaw (Cal) 259
Dr. Kunal Saha v. West Bengal Medical Council (WBMC) and anothe 2022 LiveLaw (Cal) 260
Abdul Khalek Laskar & Anr v. Union of India & Ors 2022 LiveLaw (Cal) 261
Judgments/Orders
Case Title: Dr. Avinandan Mondal v. State of West Bengal & Ors
Citation: 2022 LiveLaw (Cal) 1
The Calcutta High Court modified certain conditions imposed earlier while allowing the State Government to hold this year's Gangasagar Mela amidst the fresh surge in Covid-19 cases in the State of West Bengal. It may be noted that every year, on Makar Sankranti, lakhs of Hindu devotees flock to the Sagar Island in West Bengal's South 24 Parganas district to take a holy dip and offer prayers at the Kapil Muni temple. This year, the Mela is scheduled to take place from January 8 to January 16, 2022. The Court modified and added certain conditions on the event, which is presently underway. The changes/additions made are as follows: Earlier, a three Member Committee comprising of (i) Leader of Opposition in the State or his representative, (ii) Chairman, West Bengal Human Rights Commission or his representative and (iii) representative of the State was constituted which will keep vigil in respect of compliance of the above directions as also measures suggested by the State in the affidavit dated 06th January 2022. - Now, this committee has been substituted by constituting a two-member Committee comprising Smt. Samapti Chatterjee, Retired Judge of the Calcutta High Court as Chairperson and Member Secretary, West Bengal Legal Services Authority as a member. This has been done in response to the submission of the State Government that the Committee formed by the Court should not only be an independent Committee but it should not have political members.
Case Title: Bimal Bhattacharya v. State of West Bengal & Ors
Citation: 2022 LiveLaw (Cal) 2
The Calcutta High Court directed the State Election Commission to consider postponing the conduct of the upcoming municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol for a short period of 4 to 6 weeks in the wake of the 'galloping speed with which the COVID cases are increasing' in the State of West Bengal. A decision in this regard has to be taken by the State Election Commission within 48 hours, the Court directed further. The Court was adjudicating upon a Public Interest Litigation (PIL) petition seeking postponement of municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol which are due to take place on January 22, 2022 in the wake of the rising number of Covid-19 cases in the State of West Bengal.
A Bench comprising Chief Justice Prakash Shrivastava and Justice Ajoy Kumar Mukherjee observed, "We dispose of the present petition with a direction to the State Election Commission to consider the galloping speed with which the COVID cases are increasing and also to take into account the issue if holding of elections in such a situation will be in the public interest and if free and fair elections will be possible on the dates notified, and take a decision in respect of the postponement of date of elections of aforesaid four Municipal Corporations for a short period of 4 to 6 weeks. The respondent State Election Commission is directed to take a decision in this regard within a period of 48 hours. It will be open to the petitioner to submit all the relevant material relating to existing COVID situation before the Election Commission without any delay so that it can be considered by the Election Commission while taking the decision."
Case Title: Pratik Maitra v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 3
The Calcutta High Court directed the District Magistrate, Jhargram to consider postponing the upcoming Jangalmahal Utsav, scheduled to take place across 6 districts of West Bengal from January 17- January 19, 2022, in view of the rising number of Covid-19 cases in the State. The decision has to be taken within a period of 24 hours, the Court directed further. Earlier, the Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had directed the State government to file a report detailing the arrangements made to follow Covid-19 protocol during the conduct of the Jangalmahal Utsav. Considering the Covid-19 situation in Jhargram district where the Utsav is slated to take place, the Court directed, "We direct the respondent No. 2, District Magistrate, Jhargram to take a decision in respect of postponement of Mela within a period of 24 hours from this order".
Also Read: Plea To Postpone Jangalmahal Utsav Amid Covid Surge: Calcutta High Court Seeks State's Response
Case Title: Shri Aloke Singh & Ors v. Indian Statistical Institute & Ors
Citation: 2022 LiveLaw (Cal) 4
The Calcutta High Court came down heavily on the administration of the Indian Statistical Institute (ISI) for its decision to outsource the services rendered by a batch of contractual employees who had been working as gardeners since 2013 to a government contractor. The Court set aside the resolution dated January 3, 2022, which contained such a direction and further ordered that under no circumstances can the contractual employees be pushed to a Government contractor from the aegis of the ISI administration. Justice Abhijit Gangopadhyay minced no words in disapproving of the practice of governmental interference in the functioning of autonomous institutions. Directing the ISI administration to consider giving permanent employee status to the petitioners, the Court further observed, "I wholly set aside and quash the resolution taken in the meeting dated 03.01.2022 that ISI should procure the cooking and gardening services by following the due procedure on GeM. In no circumstances petitioners can be pushed to a Government contractor from the fold of ISI. On the contrary, ISI should consider with sincerity about giving permanent employee status to the petitioners as artificial breaks were given in their contractual periods from 2013 to 2021."
Case Title: Amit Kumar Das and Ors v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 5
The Calcutta High Court directed the District Magistrate, Purba Medinipur to conduct an enquiry into the alleged defalcation of funds allocated under the Pradhan Mantri Awaas Yojana and also the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) scheme. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a plea alleging misappropriation of funds allocated under the aforementioned schemes. Furthermore, the Bench was apprised that the funds had not only been misappropriated but that payments have been shown to be made to deceased persons and those who are in custody. "Hence, we dispose of the present petition by directing the respondent no.2/District Magistrate, Purba Medinipur to duly consider the petitioners' representation in accordance with law and conduct enquiry after giving opportunity of hearing to all the concerned parties and take an appropriate decision in accordance with law as expeditiously as possible preferably within a period of three months from the date of receipt of a certified copy of this order", the Bench directed.
Case Title: Bagaria Properties and Investment Pvt. Ltd. & Anr v. Union of India
Citation: 2022 LiveLaw (Cal) 6
The Calcutta High Court allowed a batch of writ petitions seeking quashing of impugned re-assessment notices issued post March 31, 2021 by the concerned Income Tax Authority under Section 148 of the Income Tax Act, 1961. Justice Md. Nizamuddin was adjudicating upon a batch of petitions challenging the impugned notices under Section 148 of the Income Tax Act, 1961 on the ground that the same are barred by limitation and that the concerned Income Tax Authority had not complied with statutory formalities under Section 148 A of the Income Tax Act as prescribed by the Finance Act, 2021 which are applicable with effect from April 1, 2021 before issuance of such notices. Setting aside the impugned re-assessment notices, the Court observed, "All the impugned notices under Section 148 of the Income Tax Act are quashed with liberty to the Assessing Officers concerned to initiate fresh re-assessment proceedings in accordance with the relevant provisions of the Act as amended by Finance Act, 2021 and after making compliance of the formalities as required by the law." The Court further observed, "Respectfully agreeing with the reasonings and views taken by the Allahabad High Court, Rajasthan High Court and Delhi High Court in the cases referred hereinabove, all these Writ Petitions herein are disposed of by allowing the same. Explanations A(a)(ii)/A(b) to the Notifications dated 31st March, 2021 and 27th April, 2021 are declared to be ultra vires the Relaxation Act, 2020 and are therefore bad in law and null and void."
Case Title: Sumit Roy v. The Union of India & Ors
Citation: 2022 LiveLaw (Cal) 7
The Calcutta High Court expressed displeasure at the manner in which the Enforcement Directorate (ED) is investigating a money laundering case linked to the alleged coal scam in West Bengal. The Court was adjudicating upon the plea of Sumit Roy, who is the secretary to All India Trinamool Congress MP Abhishek Banerjee.Roy had challenged the jurisdiction of the Enforcement Directorate to register a case in New Delhi when the offence has been allegedly committed within the territory of West Bengal and a specific case was registered by the CBI in the State. Justice Rajasekhar Mantha on Tuesday was apprised by the petitioner that although he is cooperating with the investigation, not a single summons has been issued to him till date. However, the counsel appearing for the Enforcement Directorate submitted that summons were issued initially asking the petitioner to appear for interrogation at New Delhi. Expressing reservation to such a submission, the Court remarked further, "This Court is unable to appreciate as to why the interrogation cannot be done at Kolkata at least in the interregnum." However, the Court observed that the interim order issued vide order dated November 9, 2021 would continue for a period of 2 months.
Case Title: Raich Laskar v. State of West Bengal and Ors
Citation: 2022 LiveLaw (Cal) 8
The Calcutta High Court directed the District Magistrate, South 24 Parganas to conduct an enquiry into the alleged misappropriation of funds allocated under the Pradhan Mantri Awas Yojana scheme and pass a reasoned order within a period of 3 months. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition alleging that the Facilitator of the Pradhan Mantri Awas Yojana had allegedly misappropriated funds allocated under the government scheme. "Hence, we dispose of the present writ petition directing the respondent No.2, District Magistrate, South 24 Parganas, to duly consider the petitioner's representation and conduct an enquiry in respect of the allegation made therein and pass a reasoned speaking order and in case if any defalcation is found, then to take an action in accordance with law without any delay. Let this exercise be completed within a period of 3 months from the date of receipt of a copy of this order", the Court directed.
Case Title: Durgabala Mandal v. The State of West Bengal & Ors.
Citation: 2022 LiveLaw (Cal) 9
The Calcutta High Court observed in a case that the daughter-in-law is bound by the undertaking given while obtaining a compassionate appointment to maintain and extend medical assistance to the mother-in-law. The Court was adjudicating upon a plea moved by an 80 years old widow (appellant) whose husband had passed away a long time back. Her son Bajadulal Mandal who was working as a Primary School Teacher had also unfortunately passed away on October 14, 2014. Thereafter, the daughter-in-law (respondent no.9) had applied for a compassionate appointment in the school and had also given an undertaking dated July 25, 2016, stating that she will bear the responsibility of maintaining and providing medical assistance to the appellant in the future. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "Once the respondent no. 9 had obtained the compassionate appointment by giving an undertaking as above to maintain and extend medical assistance to the appellant, then she is bound by that."
Case Title: Radharani Saha v. The State of West Bengal and Ors
Citation: 2022 LiveLaw (Cal) 10
The Calcutta High Court granted police protection to a senior citizen against the alleged harassment perpetrated by her son and daughter-in-law. Justice Rajasekhar Mantha was adjudicating upon a plea moved by a senior citizen, one Radharani Saha seeking the Court's intervention since her complaint of harassment against her son and daughter-in-law had not been addressed by the Dumdum Police Station. Taking cognisane of the grievance raised, the Court directed, "Considering the above, the Officer-in-Charge, Dumdum Police Station shall ensure that there is absolutely no breach of peace in the area and maintain strict vigil in the said premises and address any threat of peace immediately." In the instant case, the Court was informed that the son of the petitioner does not reside with her and further it was informed that there exists a serious matrimonial discord between the petitioner's son and daughter-in-law. It was further submitted that the daughter-in-law had forcefully occupied some portions of the petitioner's residential premises.
Case Title: Suhana Khatun v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 11
The Calcutta High Court referred to a larger bench the legal issue as to whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC) at the behest of a juvenile is maintainable. A Bench comprising Justice Arijit Banerjee and Justice Bivas Pattanayak was adjudicating upon an application for anticipatory bail sought by four minors accused of offences under the Indian Penal Code pertaining to wrongful restraint, causing grievous hurt, attempt to murder, and murder. The Bench ruled that sufficient safeguards have been provided to a child in conflict with the law should they be apprehended by the police under the Juvenile Justice Act of 2015 and thus an application for anticipatory bail is not maintainable. "Taking into consideration the safeguards provided under the 2015 Act and in the light of the legal position that a child in conflict with law cannot be arrested, the question of granting bail in anticipation of arrest of a child in conflict with law does not arise at all. In the 2015 enactment the legislature did not, consciously, empower the police to arrest a child in conflict with law. Accordingly, we are of the considered view that an application for anticipatory bail under section 438 of the Criminal Procedure Code at the instance of a child in conflict with law is not maintainable," the Bench observed.
Case Title: Pabitra Rajbanshi and Ors v. The Chief Secretary, Government of West Bengal and Ors
Citation: 2022 LiveLaw (Cal) 12
The Calcutta High Court directed the District Magistrate, Malda to conduct a probe into alleged irregularities and defalcations in the funds allocated under the Mahatma Gandhi National Rural Employment Guarantee Act 2005 (MGNREGA) scheme in the Gazole Development Block. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition wherein it had been alleged that there has been embezzlement of huge public money in respect of funds allocated under the MGNREGA scheme. "Having regard to the nature of allegation, we are of the opinion that the respondent No.6, District Magistrate, Malda should look into the matter. Hence, we dispose of the present petition with direction to the respondent No.6 to conduct an enquiry in respect of the allegations contained in legal notice dated 14.01.2021 and if the allegations are found to be correct, then to take an action against the erring officers/parties in accordance with law", the Bench directed.
Case Title: Rama Prasad Sarkar v. Union of India
Citation: 2022 LiveLaw (Cal) 13
The Calcutta High Court dismissed a Public Interest Litigation (PIL) petition filed against the decision of the Centre to reject the tableau of Netaji Subhash Chandra Bose as proposed by the West Bengal government for the ensuing Republic Day parade. The PIL filed by advocate Ramaprasad Sarkar sought the Court's interference to issue a direction to the Central Government to permit the State of West Bengal Tableau of Netaji Subhas Chandra Bose in the ensuing Republic Day parade scheduled to take place on January 26, 2022. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj expressed reservations to the delayed filing of the PIL and accordingly observed, "..the writ petitioner has belatedly approached this Court. As the Republic Day celebration is day after tomorrow, therefore, at this stage, no effective direction can be issued. Hence, no case for interference in the present writ petition is made out which is accordingly dismissed." The Bench further took note of the various defects in the filing of the instant PIL as pointed out by the Additional Solicitor General Y.J. Dastoor while dismissing the PIL.
Case Title: Lindsay International Private Limited v. Laxmi Niwas Mittal
Citation: 2022 LiveLaw (Cal) 14
The Calcutta High Court had the opportunity to expound on the issue as to whether Courts should consider the dictum of the Supreme Court as laid down in Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya regarding non-permissibility of bifurcation of subject-matter or causes of action in a suit while adjudicating upon an application filed under section 8 of the Arbitration and Conciliation Act, 1996 (Arbitration Act). Section 8 of the Arbitration Act as amended with effect from October 23, 2015, mandates a judicial authority to refer parties to arbitration 'unless it prima facie finds that no valid arbitration agreement exists. Justice Moushumi Bhattacharya ruled that 'without a doubt' the dictum as laid down in Sukanya Holdings is no longer a relevant factor for the Court to consider at the stage of reference in an application under section 8 of the Arbitration Act."The Court is not even under a mandate, post amendment, to adjudicate on the bifurcability of the causes of action or the presence of parties who are necessary parties to the action but not to the arbitration. The only brake in the momentum of reference is the court finding, prima facie, that no valid arbitration agreement exists", the Court emphasised.
15. POSH Act Applicable To Girl Students Of A School
Case Title: Pawan Kumar Niroula v. Union of India
Citation: 2022 LiveLaw (Cal) 15
The Calcutta High Court observed that the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act) is applicable to girl students of a school. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta placed reliance on the definition of 'aggrieved woman' as provided under Section 2 (a) of the 2013 Act and accordingly ruled, "As per Section 2 (a) an aggrieved woman means in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent. That being so, the provisions of the Act squarely apply to the students of the school." The petitioner, a teacher by profession, had been appointed by the Navodaya Vidyalaya Samiti on November 17, 1997, as a Trained Graduate Teacher (TGT), Nepali. On February 15, 2020, the principal of Jawahar Navodaya Vidyalaya, Ravangla, South Sikkim had filed a written complaint with the Officer-in-Charge of Ravangla Police Station stating that he had received several complaints from students of the school alleging that the petitioner had committed sexual harassment. In the complaint lodged with the police station, it had been further averred that around 67 students had complained of sexual harassment against the petitioner.
Case Title: Dr. Nazrul Islam v. Basudeb Banerjee & Ors
Citation: 2022 LiveLaw (Cal) 16
In a significant development, the Calcutta High Court on Thursday observed that a prior sanction for prosecuting public servants is required before setting in motion even the investigative process under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC). The Court was adjudicating upon an appeal moved by former IPS officer Nazrul Islam seeking initiation of criminal proceedings against Chief Minister Mamata Banerjee and other top officials of the State for purportedly forging a Supreme Court verdict in order to deprive him of his promotion. Justice Tirthankar Ghosh observed, "Having regard to the subject matter by way of which the petitioner has attempted to invoke the provisions of Section 156(3) of the Code of Criminal Procedure against the public servants this Court is of the opinion that as the provision of Section 197 of the Code of Criminal Procedure has been incorporated in the statute, the same has been for a meaningful purpose of allowing the public servants to discharge their duties without fear or favour or without any anticipation of being harassed because of the rigours of law. Therefore, ordinarily a valid sanction would be required in a proceeding where the provisions of Section 156(3) Cr.P.C. are invoked against public servants". The Court also noted that the issue in consideration as to whether prior sanction for prosecution qua allegation of corruption in respect of public servants is required before setting in motion the investigative process under Section 156(3) CrPC has been referred to a Larger Bench vide the Supreme Court judgment in Manju Surana v. Sunil Arora & Ors. Justice Ghosh opined that the Supreme Court in Manju Surana v. Sunil Arora & Ors had not declared the dictum laid down in two earlier judgments i.e. in L. Narayana Swamy v. State of Karnataka & Ors and Anil Kumar & Ors v. M.K. Aiyappa & Anr to be either per incuriam or a bad law.
Case Title: Amirul Gazi v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 17
The Calcutta High Court upheld the conviction of a man for the offence of rape after observing that the consent of the minor victim is immaterial as she was below 16 years of age at the time of the alleged incident. It was alleged that there was an ongoing love affair between the accused and the victim and that the alleged sexual intercourse was consensual. It may be noted that pursuant to the Criminal Law Amendment of 2013, the age of consent in India has been increased from 16 years to 18 years. A Bench comprising Justices Joymalya Bagchi and Bibhas Ranjan De observed, "With regard to the issue whether the victim was a consenting party, I note such plea is of little consequence. As discussed above, the prosecutor has established she was below 16 years at the time of the incident and her consent was immaterial in view of 6th clause of section 375 IPC. In the backdrop, even if we assume that sexual intercourse was with the consent of the victim, we cannot consider such consent as a valid one as the age of the victim as below 16 years. Hence, the offence of rape is proved beyond doubt."
Case Title: Biswanath Das v. State
Citation: 2022 LiveLaw (Cal) 18
The Calcutta High Court reduced the sentence awarded to a man charged under Section 489B and Section 489C of the IPC for forging currency notes after observing that he had undergone mental agony due to long pendency of criminal proceedings. The appellant had been convicted only on April 13, 1986 in criminal proceedings initiated against him on December 28, 1983. Thereafter, the instant appeal preferred by him has been pending since 1986. Justice Rabindranath Samanta noted that the appellant had already served out the sentence for one and half months and accordingly observed, "Owing to continuance of the appeal, the appellant/convict suffered worries, mental pains and agonies. As stated above, he has already served out the sentence for one and half months. Considering the long pendency of the criminal proceedings and the instant appeal and the mental pains suffered by the appellant/convict I feel that the sentence as imposed by the learned Trial Judge if reduced to the sentence already undergone by him would sub-serve the interest of justice." Accordingly, the Court reduced the sentence imposed to the period already served by the appellant which is only one and half months.
Case Title: Md. Wasim v. The State of West Bengal
Citation: 2022 LiveLaw (Cal) 19
The Calcutta High Court has recently upheld the life sentence awarded to a man for murdering his mother by dismissing his plea of legal insanity. A Bench comprising Justices Joymalya Bagchi and Kausik Chanda while dismissing the plea of legal insanity underscored, "I find it difficult to persuade myself that the appellant had discharged his onus to establish that he committed the crime while suffering from a bout of insanity. To fall within the general exception of legal insanity, it is incumbent on the part of the defence to establish that the accused was suffering from mental ailment of such degree at the time of commission of the offence that he was unaware of the consequences of his act. Appellant has singularly failed to discharge such onus. Vague reference to previous medical treatment by PW-6 without cogent materials like prescriptions or other medical evidence being placed on record to prove the nature and degree of mental impairment at the time of commission of the offence would not sustain the plea of legal insanity." In the judgment authored by Justice Joymalya Bagchi, it was further noted that the evidence on record discloses that the appellant had an inimical relationship with his mother. The Court observed that the appellant had been demanding money from his mother to run his business and on her refusal to lend any money, the appellant had murdered her in the middle of the night.
Case Title: Divyajot Singh Jendu v. Manikaran Analytics Limited
Citation: 2022 LiveLaw (Cal) 20
The Calcutta High Court held that before issuing summons to an accused under Section 204 of the CrPC, a Magistrate has to mandatorily hold an inquiry under Section 202 of the CrPC. Justice Ananda Kumar Mukherjee held that the scope of such enquiry under section 202 CrPC is limited to the ascertainment of truth or falsehood of the allegations made in the complaint: (i) on the materials placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defense that the accused may have. The Court therefore set aside an order of the concerned Magistrate issuing summons to the accused (residing outside its jurisdictional limits) after observing that the Magistrate had merely conducted an inquiry under Section 200 of the CrPC and not under Section 202 of the CrPC. "In the case under considering the learned Magistrate did not hold any inquiry under section 202 of Cr. P.C though it is apparent from the complaint that the accused resided outside the jurisdiction of the court where the complaint has been lodged. Learned Magistrate on the other hand held an inquiry under section 200 of Cr. P.C simpliciter and only examined the complainant and no other witness or document", the Court observed.
Case Title: Sumit Roy v. Union of India
Citation: 2022 LiveLaw (Cal) 21
The Calcutta High Court directed the Central Bureau of Investigation (CBI) to not arrest Sumit Roy, secretary to All India Trinamool Congress MP Abhishek Banerjee, during his appearance before the agency in the ongoing investigation the alleged coal scam in West Bengal. The CBI had issued a notice dated January 25, 2022 to Roy, directing him to appear before the investigating authorities on February 1 at 11 am. Justice Ravi Krishan Kapur observed, Justice Ravi Krishan Kapur observed, "I am inclined that upon the petitioner resuming the investigation before the Central Bureau of Investigation and cooperating with the Investigating Authorities in terms of the impugned notice, the petitioner shall not be arrested in terms of the impugned notice requesting the petitioner to appear on 1 February, 2022. I make it clear that no other issue is being decided in this petition. In view of the fact that the matter has been heard at a belated stage, this limited order is passed only in respect of the impugned notice dated 25 January, 2022." Further considering that the matter was being heard after the petitioner has practically complied with the impugned notice, the Court opined that there appears to be no immediate threat or apprehension of the petitioner being arrested on Tuesday in terms of the impugned notice.
Case Title: Lakshi Ram Hembram @ Laxmiram Hembram v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 22
The Calcutta High Court has recently held that the testimony of a sole eyewitness with respect to an accused cannot be ignored solely because her evidence with respect to the other co-accused persons has been found to be unreliable. A Bench comprising Justice Joymalya Bagchi and Justice Bibhas Ranjan De observed that the principal of 'falsus in uno, falsus in omnibus' (false in one thing, false in everything) is not applicable in India with respect to appreciation of evidence. Accordingly, the Bench upheld the sentence of life imprisonment imposed upon the appellant for the offence of murder under Section 302 IPC on the basis of the testimony of the sole eye witness (PW 5). The Court held, "In India, the principal 'falsus in uno, falsus in omnibus' does not apply in the matter of appreciation of evidence. When the Court is called upon to assess the evidence of a witness, it becomes its bounden duty to assess the evidence of the witness on the anvil of probability and separate the kernel of truth from the chaff of embellishment. The trial court has rightly assessed the evidence of PW 5 and upon ignoring her embellished effort to implicate other associates of the appellant in the crime, correctly relied on the role of the appellant as the sole assailant of the deceased."
Case Title: Md. Israil v. The State of West Bengal
Citation: 2022 LiveLaw (Cal) 23
The Calcutta High Court observed that there is existing social stigma associated with the offence of rape and accordingly held that a delay in lodging FIR in cases of such nature would not vitiate the prosecution case. The Court accordingly upheld the conviction of a man for raping a minor victim aged 14 years who had subsequently given birth to a still born child. A Bench comprising Justices Joymalya Bagchi and Bivas Pattnayak observed that it is apparent that the victim did not inform anyone about the crime due to continuous threats by the appellant and that she had proceeded to lodge the police complaint only after her pregnancy was discovered. "I am also not unmindful of social stigma attached to the nature of the offence which might have also attributed to the delay in lodging FIR. Even otherwise, the mere factum of delay in filing complaint in regard to an offence of this nature by itself would not be fatal so as to vitiate the prosecution case", the Court underscored. Further the Court observed that there is no evidence of concoction of a false version or embellishment and accordingly dismissed contentions pertaining to the delay lodging of an FIR.
Case Title: Supratik Ghosh v. State of West Bengal & Anr
Citation: 2022 LiveLaw (Cal) 24
The Calcutta High Court has recently held that a Magistrate while discharging an accused under Section 245(2) CrPC has to record reasons showing that no case has been made out and thus cannot simply order for such discharge on the ground that the complainant has failed to show cause by not verifying and affixing proper signature on the application. Justice Ananda Kumar Mukherjee observed, "In my considered view it would be a legal necessity on the part of learned Magistrate under section 245 (2) of the Cr. P.C to consider and record reasons that no case against the accused has been made out which, if unrebutted would warrant his conviction. In absence of such evidence the accused may be discharged. I do not find any such finding or observation made by the learned Magistrate in the impugned order. It appears that learned Magistrate has been swayed by the sole reason that he did not find the cause shown by the complainant to be in proper form."
Case Title: Manik Das @Manik Chandra Das v. The Narcotics Control Bureau (NCB)
Citation: 2022 LiveLaw (Cal) 25
While interpreting Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Calcutta High Court has recently opined that 'reasonable grounds' to believe that the accused has not committed an offence must be more than mere 'prima facie' grounds. Justice Bibhas Ranjan De observed, "It is axiometic that 'reasonable grounds' means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. It requires existence of such facts and circumstances as are sufficient to justify satisfaction that the accused is not guilty of the alleged offence. Section 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act. After careful scrutiny of section 37 of the NDPS Act 1985 we find that the exercise of power to grant bail is not only subject to the limitations contained in section 439 Cr.P.C, but is also subject to the limitations placed by section 37 which commences with non-obstante clause", the Court underscored further.
Case Title: Sumana Layek v. State of West Bengal & Ors
Citation: 2022 LiveLaw (Cal) 26
The Calcutta High Court has recently come down heavily on the former Chairman of the West Bengal Central School Service Commission (WBCSSC) while setting aside an order issued by the former Chairman depriving a candidate for the recruitment of assistant teachers in secondary and higher secondary classes in the State of her right to counselling. Justice Abhijit Gangopadhyay while referring to the rules for recruitment as envisaged under the West Bengal Central School Service Commission (Selection for Appointment to the Posts of Teachers for Classes IX and X in Secondary and Higher Secondary Classes) Rules, 2016 (2016 Rules) observed with dismay, "It is clear from the order that the order is an incomplete, suppressing and evasive one. The order is motivated to deprive the petitioner of her valuable accrued Right of counselling. The Commission is mandated under Rule 16 (1) of the above mentions Rules of 2016 to hold counselling. The order has deliberately tried to hoodwink the court and other persons, if possible, which has not been possible because of the scrutinizing eyes of the petitioners and of the court." Accordingly, the Court set aside the impugned order passed by the Commission and further directed the former Chairman of WBCSSC to pay costs to the tune of Rs 20,000 from his own pocket and not form the fund of WBCSSC.
Case Title: Sukanya Mirbahar v. The State of West Bengal & Ors.
Citation: 2022 LiveLaw (Cal) 27
In an interesting development, the Calcutta High Court directed an NGO to return a French Mastiff dog named 'Bruno' to its rightful owners after the dog had gone missing and was subsequently kept in the custody of the concerned NGO. The NGO was however allowed to visit and inspect the dog at least once in a month. The NGO Debasree Roy Foundation had deposed before the Court that the dog had not been treated well by the owners and was thus not in a very good state of heath. Accordingly, the NGO had opposed the plea of the petitioners to take back custody of the dog. Justice Rajasekhar Mantha observed, "Bruno shall be returned to its owners, i.e. the writ petitioner and her family in course of the day by the Debasree Roy Foundation. The writ petitioner unconditionally undertakes before this Court that she will take good care of the French Mastiff Dog, 'Bruno', physically and mentally".
Case Title: Uttam Saha & Anr v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 28
The Calcutta High Court has recently observed that powers under Section 311 of CrPC have been conferred upon the Court to serve the ends of justice and may be exercised at any stage of inquiry, trial or proceeding for reaching to a just decision. Accordingly, it proceeded to allow the petitioners in the present murder case to adduce evidence on their plea of alibi after closing of evidence. Justice Ananda Kumar Mukherjee observed, "One cannot be oblivious of the fact that when a substantial legal right is claimed by the litigants, the court has to consider its implication and to exercise its jurisdiction judiciously for meeting the ends of justice...their plea of alibi needs to be admitted in evidence if they are in a position to adduce substantive evidence on that count and stand the test of cross-examination. Denial of such right would lead to miscarriage of justice."
Case Title: Anubrata Mondal v. Union of India
Citation: 2022 LiveLaw (Cal) 29
The Calcutta High Court directed the Central Bureau of Investigation (CBI) to not take any coercive measures against Trinamool Congress Birbhum district president Anubrata Mondal without the leave of the Court. Mondal had moved the High Court seeking protection from arrest pursuant to the issuance of a CBI notice directing him to appear before its investigating team for the ongoing probe into the West Bengal post poll violence cases. He had been summoned by the CBI as a witness at the NIT camp office in Durgapur in neighbouring Paschim Bardhaman district at 11am on Thursday in connection with a murder case at Alambazar in Birbhum which is alleged to have a connection with the post-poll violence in West Bengal. Justice Rajasekhar Mantha directed the petitioner to appear before the CBI at its Durgapur office and corporate with the ongoing investigation and further observed, "In the event of any such fresh notice, the petitioner shall appear and cooperate in such investigation. However, no coercive measures shall be taken by the CBI against the petitioner without the leave of this Court."
Also Read: Territorial Limitations Of Section 160 CrPC Apply Even To CBI Investigations: Calcutta High Court
Case Title: West Bengal State Electricity Distribution Company Limited v. Sukanta Kumar Singha and Anr
Case Citation: 2022 LiveLaw (Cal) 30
The Calcutta High Court has directed the West Bengal State Electricity Distribution Company (WBSEDCL) to pay an amount to the tune of Rs.6,07,000 to a consumer for unauthorised disconnection of electricity supply due to which the consumer had suffered unnecessary harassment. Calling the conduct of WBSEDCL as 'deplorable', Justice Sabyasachi Bhattacharyya observed, "In cases such as the present one, it is the gross laches of the Distribution Licensee which compelled the respondent no.1, a consumer, to suffer unnecessary ignominy and harassment..As far as the conduct of the Distribution Licensee in the present case is concerned, the same is deplorable and the consumer was compelled to run from pillar to post at every point of time." Accordingly, the Court directed, "Hence, there was no scope of reducing the total amount of compensation at the rate of Rs. 500/- per day, as calculated by the Ombudsman. Rather, in exercise of this court's powers under Article 226 of the Constitution of India, the impugned order of the Ombudsman is modified to the effect that the Distribution Licensee shall pay compensation not to the tune of Rs.1,21,400/- as awarded but will pay a total amount of Rs.6,07,000/- to the consumer-respondent no.1 within a month from date, deducting any amount, if already paid pursuant to the impugned order of the Ombudsman."
Case Title: Union Of India and Others v. Ratna Sarkar
Case Citation: 2022 LiveLaw (Cal) 31
The Calcutta High Court observed that the benefit of family pension cannot be extended to a widowed daughter of a pensioner who was married at the time of the death of her father/mother. The Court held that a daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. The issue in consideration before a Bench comprising Justices Harish Tandon and Rabindranath Samanta was whether a daughter of a pensioner who was married, but became widowed after the death of the pensioner is entitled to family pension. Answering in the negative, the Court observed, "As the legislative intent is demonstrated, the scheme of family pension never included a daughter of a pensioner who was married at the time of the death of the pensioner..A daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. In the absence of any legislation in this regard, the benefit of family pension cannot be extended to a daughter of a family pensioner who was married at the time of the death of her father/mother. It will be unwise on the part of this Court to exercise its extraordinary or discretionary power to come to any inference contrary to the policy decision of the Government."
Case Title: Surojit Mandal v. National Investigation Agency (NIA)
Case Citation: 2022 LiveLaw (Cal) 32
The Calcutta High Court observed that Section 44 (3) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) mandate Courts to undertake measures to protect the identity of a protected witness and accordingly directed the concerned Trial Court to to redact the name, address and other particulars of the protected witness from the records immediately. A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak noted that in the instant case, the statement of the protected witness recorded under Section 164 CrPC discloses his indignity. Opining that such disclosure of indignity defeats the provision of Section 44 (3) of the UAPA, the Bench observed, "Sub-section (3) of section 44 of the Unlawful Activities (Prevention) Act, 1967, inter alia, provides the measures which the court may undertake to protect the identity of a protected witness which includes avoiding to mention the name and address of the witness in its orders or judgment and any record of the case accessible to public. Statement under section 164 Cr.P.C. of the witnesss is required to be served upon the accused. Hence, disclosure of identity of the protected witness in such statement clearly defeats the purpose of the aforesaid provision of law." The Court further directed the Trial Court to exercise more caution in ensuring that the indignity of protected witnesses are not divulged.
Case Title: Ganesh Orang v. State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 33
The Calcutta High Court observed that lacunae in the prosecution case due to patent contradictions or inherent improbabilities cannot be cured by resorting to statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak observed, "Glaring lacunae in the prosecution case undermines the credibility of the factual foundations which require to be prima facie established to attract the statutory presumption. When the primary facts relating to time, place and circumstances constituting the offence are not prima facie established due to patent contradictions or inherent improbabilities, such lacuane cannot be cured by resorting to statutory presumptions in law". Accordingly, the Court acquitted the appellant by observing, "In order to attract the statutory presumption under Section 29 of the POCSO Act the factual foundations with regard to the ingredients of the offence under Section 6 of the said Act require to be established in the first place..in the light of the contradictory and inconsistent versions with regard to the allegation of rape levelled against the appellant, the factual foundations of the prosecution case has not been laid on the basis of preponderance of probabilities so as to attract the statutory presumption and the appellant is therefore entitled to an order of acquittal."
Case Title: Bimal Bhattacharya v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 34
The Calcutta High Court has dismissed a contempt petition filed against the State Election Commission (SEC) alleging that it had failed to comply with an earlier order of the Court directing the SEC to consider postponing elections to four municipal corporations for a short period of 4 to 6 weeks in the wake of the rising number of Covid-19 cases. The Court vide order dated January 14 had directed the SEC to consider postponing the conduct of the upcoming municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol for a short period of 4 to 6 weeks in the wake of the 'galloping speed with which the COVID cases are increasing' in the State of West Bengal. Thereafter, the State Election Commission had decided to postpone the date of election by 3 weeks and had notified that elections to the four municipal corporation would take place on February 12. A Division Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "The period of 4 to 6 weeks mentioned in the order was only suggestive leaving it upon to the State Election Commission to take a decision in this regard within a time bound period..Having regard to the nature of the order passed by this Court and considering the fact that there was no positive direction in the order of this Court, we are of the opinion that there is no deliberate non-compliance or violation of the order of this Court by the respondents herein, hence no case for initiating the contempt proceedings is made out."
Case Title: Dabur India Limited v. Shree Baidyanath Ayurved Bhawan Pvt Ltd
Case Citation: 2022 LiveLaw (Cal) 35
The Calcutta High Court permanently injuncted four advertisements by the makers of Baidyanath Chyawanprash Special for being disparaging to all other brands of Chyawanprash including Dabur Chyawanprash. Justice Shekhar B Saraf was adjudicating upon a plea moved by Dabur seeking an injunction against the uploading of five advertisements that had allegedly disparaged the goodwill and reputation of its trademark. "Precedents cited by both parties make it clear that true statements can be made even if it denigrates the rival's product, but false and misleading statements cannot be allowed under the guise of free speech. In light of the same, this video advertisement is disparaging and an action from this Court would lie. In light of the reasons provided above, this video advertisement is permanently injuncted", the Court observed. The Court further underscored that the concerned advertisements are misleading and accordingly opined, "A misleading advertising, as the term implies, is one that deceives, manipulates, or is likely to deceive or manipulate the consumer. These commercials have the potential to influence consumer's purchase preference in the market and it also harms its rivals, hence, they must be used with caution. There should be a balance between the right of commercial speech and the interest of public and competitors. In the present case, the video advertisement is, to a large extent, misleading".
Case Title: Tania Mukherjee & Ors v. State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 36
The Calcutta High Court observed that service in Specialized Units would not amount to serving in "remote and/or difficult areas" for the purpose of qualifying for the stipulated 40% in-service quota in Post Graduate Medical counselling for seats in Government/private colleges in West Bengal. Justice Moushumi Bhattacharya was adjudicating upon a plea moved by 53 graduate doctors who are serving as Medical Officers in different hospitals in the State and had contended that they should be eligible for availing the 40% in-service quota for presently serving in Specialized Units. "This Court recognizes the commitment shown by the in-service doctors who render 24x7 service in these Specialized Units. However, to include service in such Specialized Units within the definition of "rural and/or difficult areas" would amount to making in-roads into the policy frame-work of the State Government which a Writ Court should normally hesitate to do unless compelling reasons exist. A policy decision is not a perpetual no-go area and a Writ Court can certainly interfere in fit cases including where the policy is not backed by legislative competence or where there is an excessive delegation of essential legislative functions or an infraction of the fundamental rights guaranteed under the Constitution of India", the Court observed.
Case Title: Tapan Saha v. State Election Commissioner & Ors
Case Citation: 2022 LiveLaw (Cal) 37
The Calcutta High Court while hearing a plea alleging issuance of fake Scheduled caste certificate to a candidate contesting from a scheduled caste constituency, imposed costs to the tune of Rs. 50,000 on the petitioner for suppressing the fact that he himself was also a contesting candidate in the concerned Bidhannagar municipal polls. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "The fact now revealed by the respondents shows that the petition is by one contesting candidate against another. This fact has changed the entire complexion of the case. Hence, we dismiss this writ petition by imposing costs of 50,000/- which is to be deposited by the petitioner with the Legal Services Authority within a period of two weeks from today." Opining that the conduct of the petitioner amounts to 'gross suppression of facts', the Court further underscored, "The petitioner has suppressed this fact in the petition that he is one of the candidates contesting election of concerned municipal corporation. This amounts to gross suppression of fact and the present writ petition is liable to be dismissed with costs on the sole ground of suppressing the fact."
38. Running Of Mill By Neighbour Causing Rattling Noise Amounts To Actionable Nuisance
Case Title: Srimanta Ghosh & Ors v. Debabrata Ghosh
Case Citation: 2022 LiveLaw (Cal) 38
The Calcutta High Court has observed that while it is acceptable that every little discomfort or inconvenience cannot be brought into the category of an actionable nuisance, however if such inconvenience or annoyance exceeds all reasonable limits then the same would amount to an actionable nuisance. A Bench comprising Justice Soumen Sen and Justice Ajoy Kumar Mukherjee was adjudicating upon a plea wherein the plaintiff had contended that the defendant had been running a mill in the adjoining plot which caused rattling noise and vibration thereby causing discomfort to him and his wife. Taking cognisance of the grievance raised, the Court observed, "While it is acceptable that every little discomfort or inconvenience cannot be brought on to the category of an actionable nuisance but if such inconvenience or annoyance exceeds all reasonable limits then the same would amount to an actionable nuisance. Frequent and loud noise has been proved to trigger stress and anxiety in both adult and children – more often affecting mental health. A constant cacophony in neighbour's land causing disquietude in one's own abode is beyond a common man's realm of expected endurance."
Case Title: Gaurav Purakayastha v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 39
The Calcutta High Court dismissed a Public Interest Litigation (PIL) seeking directions to ensure that conduct of physical classes for Class VIII students in the State should resume only for vaccinated children and that children who are below 15 years of age i.e. are born after the year 2007 should be permitted to attend online classes. It may be noted that the Central government had issued a notification stipulating that children aged 15 years or more i.e. all those whose birth year is 2007 or before shall be eligible for Covid-19 vaccination with effect from January 3, 2022. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj dismissed the plea on the ground that there arises 'serious question about the locus of the petitioner' and further observed that the plea filed is not supported by adequate materials and documents. The Bench further opined that since one PIL is already pending before the Court regarding the issue of reopening of schools, entertaining the instant petition would result in multiplicity of proceedings. However, liberty was granted to the petitioner to file a fresh application along with all relevant materials as so advised.
Case Title: Satya Narayan Banik & Ors v. Union of India & Ors
Case Citation: 2022 LiveLaw (Cal) 40
The Calcutta High Court observed that the provisions for disqualification of directors due to non-filing of balance sheets and annual returns as envisaged under Section 164(2) and Section 167(1) of the Companies Act, 2013 is aimed at ensuring probity and the highest standard of governance in both private and public companies. Justice Rajasekhar Mantha was adjudicating upon a case wherein the petitioners had been disqualified as directors of a company one M/s. Hahnemann International Pvt. Ltd pursuant to Section 164(2) of the Companies Act, 2013 for not filing balance sheets and annual returns for a continuous period of three years from the year 2014-15. Opining that such a conduct of the petitioners amounts to deliberate and wilful negligence, the Court underscored, "This Court is of the view that the object and purposes of Section 164 and 167, as amended is to ensure probity and the highest standard of governance in Companies both public and private. A failure to file balance sheet and the annual returns for three consecutive years amounts to deliberate and wilful negligence. The public at large dealing with such companies cannot be put to the uncertainty, whim and fancy of recalcitrant directors. After all the requirements and compliances mandated under the Companies Act, are not only for the benefit of the shareholders of a particular company but also for the public at large, which rely upon such compliances, in assessing the conduct of and in deciding their relations with such companies." The Court held further, "The object and purpose of Section 164(2) and 167(1) is indeed laudable. It is aimed at ensuring good governance and maintenance of high standards of probity and protection of the interest of Shareholders. Transparency in the activities of Companies is very vital for ensuring an enduring business atmosphere in an economy."
Case Title: Abu Sohel v. The State West Bengal and others
Case Citation: 2022 LiveLaw (Cal) 41
Opining on the established principle of availability of alternate remedy, the Calcutta High Court observed that a writ petition under Article 226 of the Constitution cannot be filed for adjudicating upon a grievance pertaining to the non-registration of FIR by police authorities on the basis of a complaint made. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed while dismissing a PIL, "The grievance is in respect of non-registration of FIR on the basis of the complaint made by the petitioner therefore it is a grievance of personal nature, which cannot be agitated in a PIL. That apart, the writ under Article 226 of the Constitution is not a proper remedy seeking direction to register an FIR or to carry out the investigation." The Court further underscored that if the petitioner has any grievance in respect of non- registration of the FIR or improper investigation, then the proper remedy available to him is to take recourse to the provisions of the Code of Criminal Procedure (CrPC).
Case Title: Nivedita Basu v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 42
In a significant development, the Calcutta High Court allowed termination of 34 weeks 6 days old foetus of a woman after taking into consideration that there are remote chances of the child surviving or leading a normal life. The Court also underscored that there are risks to the health of both the mother and the child if medical termination of the pregnancy is not permitted. Justice Rajasekhar Mantha was adjudicating upon a plea moved by the petitioner seeking medical termination of the pregnancy on the ground that a large number of medical complications have been detected by three medical practitioners which are affecting the health of the petitioner as well as the foetus. "The medical report it is clear and explicit, that there are remote chances of the child being born out of the instant pregnancy surviving or leading ay normal life. The risks to the mother as well as the child are also highlighted in no uncertain terms. Considering the entire gamut of facts and circumstances, this Court permits the petitioner to medically terminate her pregnancy at an authorized hospital and/or medical facility", the Court observed.
Case Title: Sabita Roy v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 43
The Calcutta High Court expressed displeasure at the conduct of the police authorities of Alipurduar Police Station in not registering an FIR despite receipt of complaint with regards to non-payment of compensation under Land Acquisition Act, 1894. Justice Rajasekhar Mantha observed, "This Court, therefore, takes exception to the conduct of the Alipurduar Police Station in not registering FIR." The Court further underscored, "Having heard the rival contentions of the parties, this Court is of the considered view that since after receipt of a complaint as regards the commission of a cognizable offence, the Alipurduar Police Station was bound to register FIR and commence investigation, as per the dicta of the Hon'ble Supreme Court in the case of Lalita Kumari vs Govt. Of U.P. & Ors reported in (2014) 2 SCC 1."In the instant case, the petitioner had preferred a complaint dated September 3, 2021 addressed to the Alipurduar Police Station with regards to the non-payment of compensation under the Land Acquisition Act, 1894. A complaint in this regard had also been filed by the office of the District Magistrate, Alipurduar on September 4, 2021 with the Kotwali and Alipurduar Police Stations.
44. Calcutta High Court Dismisses PIL Seeking Removal Of WB Governor Jagdeep Dhankhar
Case Title: Ramaprasad Sarkar v. Union of India
Case Citation: 2022 LiveLaw (Cal) 44
The Calcutta High Court dismissed a PIL praying for a direction to the Central government to remove Jagdeep Dhankhar as the Governor of West Bengal, claiming that he was acting as the 'mouthpiece of the Bharatiya Janata Party'. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj on Friday placed reliance on Article 361 of the Constitution which stipulates that a Governor cannot be made answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The Bench also referred to Article 156 of the Constitution which states that the Governor shall hold office during the pleasure of the President for a term of five years. "We find that the writ petition is based upon some tweets, one letter of the Governor and the publications made by one newspaper. We are not satisfied that the material placed along with the petition furnishing any ground to entertain the petition or to issue any such direction to the respondent No. 1 as prayed in the petition. Hence, the petition is dismissed", the Court ruled.
Case Title: Rajib Chakraborty and Ors v. The State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 45
The Calcutta High Court held that considering the abatement in the Covid-19 pandemic and the reopening of schools across the State, its earlier direction stipulating 20 percent reduction in fees charged by private schools would cease to exist from February 16, 2022 onwards with regards to physical classes. The Court observed that schools and other educational institutions shall be permitted to charge fees according to their policy and arrangement with the students from February 16, 2022 onwards. A Bench comprising Justice IP Mukherji and Justice Moushumi Bhattacharya was adjudicating upon a bunch of PILs filed by aggrieved parents seeking a partial remission of school fees for the session 2021-2022 due to the ongoing pandemic owing to which students are attending schools only through virtual mediums. The Bench vide its order dated October 13, 2020, had slashed the fees charged by private schools in the State by 20% due to the ongoing pandemic." "Till 31st March, 2022 or until further orders, whichever is earlier, no coercive action like expulsion of any student from the school, withholding of admit card to sit for any Board or school examination, withholding of mark-sheets or certificates on the ground of default in payment of school fees, shall be taken by the schools or other educational institutions covered by this litigation against any student", the Court directed further.
Case Title: Manick Sardar v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 46
The Calcutta High Court has recently upheld the conviction of a man for raping a 7 year old girl by observing that mere penetration is sufficient to prove the offence of rape and that presence of injuries on the body of the victim is not necessary. A Bench comprising Justices Bivas Pattanayak and Joymalya Bagchi observed, "It has also been strenuously argued that the allegation of rape on a seven year old minor is improbable as no injuries were found on the body of the victim including her private parts. Her hymen was intact. It is trite law mere penetration is sufficient to prove the offence of rape. It is not necessary that penetration must be of such nature that it would cause injuries or rupture the hymen..In the aforesaid factual matrix, it is clear that there was a slight penetration into the private parts of the victim, which though sufficient to constitute rape, did not result in rupture of hymen." "Thus, I am of the opinion that the prosecution case has fully been proved beyond doubt and cannot be rendered improbable due to absence of injuries being noted on the body of the victim", the Court opined further.
Case Title: Manav Investment and Trading Co. Ltd v. DBS Bank India Ltd
Case Citation: 2022 LiveLaw (Cal) 47
The Calcutta High Court observed that a notice of sale by a pawnee under Section 176 of the Indian Contract Act, 1872 (Act) must contain a 'positive assertion' indicating the intention of the pawnee to dispose of the security. Justice Shekhar B. Saraf observed while enumerating on the requirements of such a notice of sale under Section 176 of the Act, "A notice of the character contemplated by Sec. 176 cannot be implied. Such notice has to be clear and specific in language indicating the intention of the pawnee to dispose of the security. What is contemplated by Sec. 176 is not merely a notice but a 'reasonable' notice, meaning thereby a notice of intended sale of the security by the creditor within a certain date so as to afford an opportunity to the debtor to pay up the amount within the time mentioned in the notice." Opining on the nature of statements envisaged in the notices of sale, the Court further observed, "It is noticeable that in both of the clauses, the respondent bank states that they shall have the right to enforce the pledge. However, I don't find an unequivocal statement stating that the shares shall be sold. In my view, there is a clear distinction between having a right of sale and intention to sell. The very philosophy of Section 176 and 177 is that a protection is given to the pawnor with regard to having an opportunity to redeem the shares upon a proper and reasonable notice being given to him."
Case Title: West Bengal School Service Commission v. Sandeep Prasad and Ors
Case Citation: 2022 LiveLaw (Cal) 48
The Calcutta High Court extended the time granted to the Court appointed inquiry committee to submit its report in respect of the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the West Bengal Board of Secondary Education (WBBSE) on the purported recommendation by the West Bengal Central School Service Commission (WBSSC). A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta observed on Monday, "We extend the time by 4 months from date to complete the enquiry" The Division Bench took into account that substantial progress had been made by the inquiry committee and that a good number of people were left to be interrogated by the committee for disclosure of facts. Hence, the Bench extended the time granted to the committee for filing of the inquiry report by 4 months. The Bench further expunged the adverse remarks made by Justice Abhijit Gangopadhyay in its order dated February 9 against the inquiry committee pursuant to the request made by the concerned counsels. The Bench ordered that the adverse remarks should not form a part of the record and shall be treated as expunged.
Case Title: Rajib Paul v. The State of West Bengal and Anr
Case Citation: 2022 LiveLaw (Cal) 49
The Calcutta High Court ordered the Central Bureau of Investigation (CBI) to probe into alleged extortion of truckers at Haldia Port and observed that "syndicates" have a stranglehold on most businesses and commerce in the state. The Court thus stayed the ongoing investigation by the State police and furthermore rejected the State's plea to allow a Special Investigation Team (SIT) to be entrusted with the investigation. Justice Rajasekhar Mantha observed, "The investigation is being carried out in a perfunctory manner. The faith of the public at large in such investigation could be eroded. There is therefore strong and prima facie case made out for transfer of the case from the State to the CBI. " The Court directed the CBI to collect all the case material including case diary and all evidence from the Haldia Police and commence investigation. However, the Court ordered that final report shall not be filed by the CBI without the leave of this Court.
Case Title: Rakesh Kumar Singh v. Director, Alipore Zoological Garden & Ors
Case Citation: 2022 LiveLaw (Cal) 50
The Calcutta High Court disposed of a plea pertaining to the alleged entry of outsiders inside the Kolkata Alipore Zoo premises by directing the concerned police authorities to investigate into the matter and submit a report to the concerned jurisdictional Magistrate within a period of one month. The Court was adjudicating upon a plea moved by BJP leader Rakesh Kumar Singh alleging that on January 24 about 600-700 persons had forcefully entered the Zoo premises even though the premises were not open to the public due to the ongoing Covid-19 pandemic. Justice Mantha opined that the claims of the petitioner cannot be adjudicated under writ jurisdiction and accordingly observed, "This Court is of the view that the claims and grievances of the petitioner as recorded hereinabove, cannot be dealt with under Article 226 of the Constitution of India." The Court further directed the concerned police authorities to investigate into the complaints lodged in an impartial manner and submit a report to the concerned jurisdictional Magistrate within a period of one month. "The Zoo Administration and police are ordered not to take sides and be impartial in dealing with any situation inside or outside the Zoo premises. The complaint filed by the police shall be investigated and suitable report be submitted to the jurisdictional Magistrate within a period of one month from date. The complainants may take appropriate steps against such final report as they may be advised in accordance with law", the Court directed.
Case Title: Anindita Mandal v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 51
The Calcutta High Court dismissed a plea seeking compassionate appointment by observing that the mother of the petitioner is a teacher of a school and thus there is no immediate crisis faced by the family members. The petitioner one Anindita Mandal had sought compassionate appointment on the ground that her father had passed away when she was ten years old. The mother of the petitioner is working as a teacher in a school. Justice Abhijit Gangopadhyay observed, "The compassionate appointment is given to tie over immediate crisis faced by the family members for untimely death of the bread earner. It is not a case where the family is facing crisis to arrange even two square meals as the mother of the petitioner is working". The Court ruled that the instant case would not come within the the policy of the State for compassionate appointment. Accordingly, the petition was disposed of.
Case Title: Md. Abdul Gani Ansari v. State of West Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 52
The Calcutta High Court ordered the cancellation of appointment of six assistant teachers in the Murshidabad district after noting that they had been illegally appointed pursuant to the illegal recommendation of the West Bengal School Service Commission (WBSSC). The Court was adjudicating upon a plea alleging illegal appointments pertaining to the West Bengal State Level Selection Test (SLST) for Class 9 and Class 10 mathematics teachers. Justice Abhijit Gangopadhyay observed that the illegally recruited candidates do not have any 'legal right' to o work as assistant teachers in the schools pursuant to the letter written by the District Inspector of Schools (S.E.), Murshidabad dated February 8, 2021 to the President of West Bengal Board of Secondary Education. Furthermore, the Court noted that the WBSCC had stated that the illegally recruited candidates had been recommended by the Commission due to a 'mistake'. Opining that this was a 'deliberate illegal action' on the part of the Commission and not a mistake, the Court further remarked, "Though the School Service Commission has taken shelter under the expression 'mistake', this court wholly disbelieves such shroud of the Commission now placed on its face. This cannot be a mistake. These are deliberate illegal action otherwise the wait-listed candidates in serial nos. 229, 242, 250, 265, 289 and 302 could not have been recommended selectively by the Commission."
Case Title: Iti Pandit v. The Union of India and Ors
Case Citation: 2022 LiveLaw (Cal) 53
In a significant development, a victim girl who had been trafficked to Rangpur, Bangladesh has been rescued and reunited with her parents back in India. The Court had earlier directed the Central government to take concrete measures to ensure immediate repatriation of the victim to India. Justice Rajasekhar Mantha recorded his appreciation and gratitude towards the efforts put in by the High Commission of India at Dhaka and High Commission of Bangladesh at Kolkata in helping with the recovery of the victim girl. He further appreciated the efforts of other stakeholders by observing, "In the present case as well, this Court had attempted to employ all the faculties available to it, to rescue the victim, a little girl, from her traffickers, and to reunite her with her parents. Its efforts were complemented by a host of individuals and institutions, and the Court expresses its immense gratitude to the all those involved in the rescue efforts." The Court further averred that the writ jurisdiction of Constitutional Courts under Article 32 and Article 226 forms the life- blood of the Constitution as it effectuates and enforces the Fundamental Rights of citizens, in the absence of which, the existence of those rights would be in vain. "This case has proven that territorial and other limitations are easily defeated in the face of an overwhelming determination of find suitable solutions. This Court hopes that this will set a precedent for future cases where Courts or other authorities feel helpless and tied down by such similar difficulties. In the words of two famous people, "It always seems impossible until its done.", and "Perseverance is not a long race: it is many short races one after the other", the Court further underscored.
Case Title: Pratap Banerjee v. State of West Bengal and other connected matters
Case Citation: 2022 LiveLaw (Cal) 54
The Calcutta High Court directed the State Election Commission (SEC) to hold a joint meeting with the officials of the West Bengal government within 24 hours and decide as to whether deployment of central paramilitary forces will be required for the peaceful conduct of the upcoming elections to the remaining 108 municipalities which is scheduled to take place on February 27. The Court underscored that in the event it is decided that central forces will not be deployed then the State Election Commissioner would be held personally liable to ensure that no violence takes place and there is peaceful conduct of elections. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed, "We direct that the Commissioner, State Election Commission will collect information in respect of the conditions prevailing in each of the Municipalities where the elections are scheduled and will hold the joint meeting with the Home Secretary of the State and the Director General and Inspector General of the Police within 24 hours and will examine the ground situation of each of the 108 Municipalities and take a decision in writing in respect of deployment of paramilitary forces by mentioning the relevant circumstances in support of his decision to deploy/not to deploy the paramilitary forces". The Court noted that although it has been alleged that BJP candidates have been prevented from filing their nomination papers however neither the names of those candidates have been disclosed nor have their supporting affidavits been filed. It was further averred that in respect of the already concluded elections to 4 municipalities, conflicting material has been placed on record about the alleged violence.
Also Read: Calcutta HC Reserves Judgment In BJP's Plea Alleging Large Scale Violence During WB Municipal Polls
Case Title: Bharat Heavy Electricals Limited v. Optimal Power Synergy
Case Citation: 2022 LiveLaw (Cal) 55
The Calcutta High Court had the opportunity to expound on the requirements that need to be fulfilled before a Court can revisit a judgment under Order XLVII Rule 1 of the Code of Civil Procedure, 1908. Justice Moushumi Bhattacharya observed that 'an error apparent on the face of the record' is an error which would be self- evident and obvious even at first glance. It was further enumerated that Order XLVII does not permit reappraisal of the merits of the matter and thus determination of such an error should not involve a long-drawn process of reasoning on points requiring a contested hearing. "The sub-text of Order XLVII Rule 1(1) is that the error can be corrected without clamour; the parties being on the same page that the correction of the error would not alter the decree, subject to the importance and the new-ness of the evidence which is subsequently discovered", the Court averred further.
Case Title: Chandan Jana & Ors v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 56
The Calcutta High Court dismissed a petition filed by BJP candidates contesting in the upcoming West Bengal Municipal elections, seeking police protection from the State so that they get a fair chance to compete in the elections. The Court noted that several discrepancies had been found in the allegations levelled and further labelled such allegations to be an 'election gimmick'.Justice Sabyasachi Bhattacharyya observed, "There is a fair chance that the representation, at least in respect of some of the candidates, might very well be an election gimmick more than a genuine grievance being expressed before a Court of Law". Opining that there are several discrepancies in the complaints filed by the BJP candidates, the Court observed further, "Looking into the specific allegations made by the writ petitioners in the representation given in pursuance of the order of the coordinate Bench, as compared to their initial complaints and allegations made in the writ petition, several discrepancies are noted."
Case Title: Ashoke Ghosh v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 57
The Calcutta High Court has recently held that non-examination of a minor child who was in the control and custody of an accused would not adversely affect the prosecution's case as it is natural for her to be subjected to undue influence or tutoring by the accused. In the instant case, the appellant had been convicted of murdering his wife and their 5 year old minor child was deemed to be a vital witness. It was alleged by the defence that non-examination of the minor child by the prosecution casts an adverse inference on the prosecution's case. Rejecting such a contention, a Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak observed, "It is trite law a child is ordinarily prone to tutoring. When a minor witness was in the control and custody of an accused it is all but natural that she would be subjected to undue influence and/or tutoring by the accused and, therefore, the prosecution may consider it unsafe to examine her. It is for the prosecution chose its own witnesses to prove the case". Opining further that non-examination of a vulnerable witness would not draw an adverse inference, the Court further stated, "If circumstances in a case like the present one give rise to an impression that a vulnerable witness is under the malefic influence of an accused, it would give sufficient justification to the prosecution not to examine her. Such course should not cast an adverse influence on its case."
Case Title: Shueli Panda Mishra & Ors v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 58
The Calcutta High Court directed the State government to extend police protection to BJP candidates contesting in the upcoming West Bengal Municipal elections by providing one Armed Police Officer to each candidate subject to payment of costs by the candidates themselves. The BJP candidates had preferred an appeal before the Division Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj against the decision of a Single Bench that had dismissed such a prayer seeking police protection on the ground that there were several discrepancies in the allegations of intimidation and threats levelled by the BJP candidates. The Division Bench directed, "..we direct that all the appellants will be extended police protection by the respondent State by providing one Armed Police Officer each subject to payment of cost by the appellants in accordance with law. While assessing the cost the authority concerned will keep in mind that the protection has been extended to for safety of the candidates in the election, therefore, the cost at the minimum will be assessed".
Case Title: Swadhin Kumar Sarkar v. Chandana Sarkar and Ors
Case Citation: 2022 LiveLaw (Cal) 59
The Calcutta High Court dismissed an election petition of a BJP candidate after reprimanding him for his lackadaisical approach in handling the matter and further observing that it is essential that expeditious disposal of trial of election petitions take place for the smooth functioning of the legislature. Justice Amrita Sinha was adjudicating upon an election petition moved by a BJP candidate who had contested elections from 54-Baishnabnagar Assembly Constituency in the General Assembly Elections of West Bengal which took place in May 2021. Opining that the time period prescribed under Section 86(7) of the Representation of the People Act, 1951 (Act) is extremely essential for the purpose of conclusion of trial in an election petition, the Court underscored, "Time limit as prescribed in the Act is extremely essential for the purpose of conclusion of trial in an election petition, otherwise the returned candidate and the members of the constituency will remain in suspense with regard to their elected candidate and the smooth functioning of the legislature will suffer. Showing any leniency to the petitioner will be against the every object and purpose of expeditious disposal of trial of election petition. Spending any further time for trial of the present petition will amount to sheer wastage of valuable judicial hours which the Court ought not permit to do."
Case Title: Dipak Singha v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 60
The Calcutta High Court has recently observed that penetration even of the slightest degree is necessary to establish the offence of rape and accordingly held that the appellant should be convicted for the offence of attempt to rape instead of the offence of rape. A Bench comprising Justices Bivas Pattanayak and Joymalya Bagchi was adjudicating upon a case wherein the appellant had been convicted for raping a victim girl aged around 11 years. The Division Bench observed that the evidence on record shows that no case of penetration has been deposed either by the victim or other witnesses and accordingly held, "It is settled law penetration even of the slightest degree is necessary to establish the offence of rape. An analysis of the evidence on record shows no case of penetration has been deposed either by the victim or other witnesses. Although absence of injuries or non-rupture of hymen is not a sine qua non to prove the offence of rape, in the factual matrix of the case where the victim herself states that the appellant attempted to rape her absence of injuries in her private parts corroborate the conclusion that the case was one of attempt to commit rape."
Case Title: Nasrin Khatun v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 61
The Calcutta High Court directed the Central Bureau of Investigation (CBI) to probe into the alleged illegal appointment of assistant teachers pertaining to the West Bengal State Level Selection Test (SLST) for Class 9 and Class 10 teachers. The Court had earlier ordered the cancellation of appointment of six assistant teachers in the Murshidabad district after noting that they had been illegally appointed pursuant to the illegal recommendation of the West Bengal School Service Commission (WBSSC). Justice Abhijit Gangopadhyay on Monday handed over the investigation into the matter to the CBI and directed that the probe should be conducted under the supervision of an officer not below the rank of a Joint Director and accordingly observed, "I direct the Director, Central Bureau of Investigation to constitute a committee, headed by an officer not below the rank of a Joint Director, with officers not below the rank of DIG to initiate the enquiry. It is expected that no person connected with the matter will be left out of this enquiry." Opining that the police authorities are controlled by the State machinery and that an independent agency is required to impartially probe into the allegations, the Court further noted, "It is not that, I do not have any confidence upon the Police of this State. But the Police is controlled by the State and in effect they are chained by orders from different quarters. Otherwise I have the belief that the Kolkata Police or the Police of the State is fully capable to inquire into the matter. Therefore, I am directing the CBI to hold this enquiry which has happened in this State, by statutory authority of this state, as an agency outside the control of this State."
Case Title: Ashok Kumar Sureka v. Assistant Commissioner State Tax, Durgapur Range, Government of West Bengal
Case Citation: 2022 LiveLaw (Cal) 62
The Calcutta High Court has quashed the order imposing penalty for expiry of e-way bill as there was no intention to evade tax. The single bench of Justice Md. Nizamuddin has set aside the impugned order of the appellate authority as well as the order of the adjudicating authority and consequently, the petitioner will be entitled to get the refund of the penalty and tax paid on protest subject to compliance of all legal formalities. The petitioner/assessee has challenged the impugned order of the appellate Commissioner confirming the original order passed by the adjudicating authority under section 129 of the West Bengal Goods and Services Act, 2017 for detention of the goods in question on the grounds that the e-way bill relating to the consignment in question had expired one day before, and that the goods was detained on the grounds that the e-way bill has expired which is even less than one day and extension could not be made.
Case Title: Zia Sharif Hussain @ Tushar Subash Roy
Case Citation: 2022 LiveLaw (Cal) 63
The Calcutta High Court refused to interfere in a dispute over the citizenship of a Hindu man, claiming to have converted his religion from Islam, by observing that no relief can be granted under Article 226 of the Constitution. The petitioner had challenged a show cause notice dated January 27, 2022 issued by the UIDAI stipulating that his Aadhar Card would be deactivated if he fails to provide any decision authenticating his citizenship or residence in India. Dismissing the plea, Justice Rajasekhar Mantha observed, "In the above circumstances, the petitioner is not entitled to any relief under Article 226 of the Constitution of India with regard to his Aadhar Card or its proposed de activation." Upon a perusal of the submissions, Justice Mantha noted that a statutory authority had found discrepancies in the petitioner's passport and accordingly remarked, "This Court notes that there is a finding by an authority constituted statute of discrepancies in the petitioner's passport based on which it has been revoked. There is also charge sheet filed against the petitioner under the appropriate penal laws referred to herein above."
Case Title: Habibur Rahaman v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 64
The Calcutta High Court has recently observed that if the evidence of official witnesses inspire confidence then the absence of corroboration by independent witnesses who have turned hostile will not make a dent in the prosecution case. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi was adjudicating upon a case involving the seizure of fake currency notes. The Court underscored, "It is settled law if the evidence of the official witnesses are clear, convincing and inspire confidence, lack of support from the independent witnesses who have been won over and had turned hostile would not make a dent in the prosecution case. Hence, I am of the opinion, seizure of counterfeit notes suspected to be forged valued at Rs. 8 lakhs from the appellant and Rs. 2 lakh from the juvenile accused has been proved."
Case Title: Budhin Soren v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 65
The Calcutta High Court has recently observed that poverty even if acute cannot be a justification for a husband to perpetrate torture upon his wife thus compelling her to commit suicide. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi upheld the conviction of the husband for abetment of suicide by observing that the deceased wife named Bimali had been subjected to torture at her matrimonial home which had compelled her to commit suicide within six years of marriage. "Evidence on record shows a pitiable condition in the matrimonial home of Bimali where she was tortured for non-availability of food. Poverty, though acute, cannot be a justification for the husband to perpetrate torture upon his wife and compelling her to commit suicide", the Court underscored. Opining that the prosecution evidence in this regard is further strengthened by the statutory presumption under Section 113A of the Evidence Act, the Court remarked further, "It is, therefore, crystal clear that life of Bimali at her matrimonial home was a bed of thorns. Her husband, Shyamal inflicted inhumane torture upon her. Unable to bear such torture, she decided to take her own life. I am convinced the live link between torture meted out by Shyamal upon his wife and her ultimate act of self-extermination is clearly established. Ample evidence has come on record that the housewife was subjected to torture and was compelled to commit suicide within six years of marriage. Prosecution evidence in this regard is also fortified by the statutory presumption under Section 113A of the Evidence Act."
Case Title: Sashi Jain @ Shashi Jain v. Sandip Sarka
Case Citation: 2022 LiveLaw (Cal) 66
The Calcutta High Court observed that when an agreement of sale is entered into by a landlord and a tenant, the nature of the existing relationship changes and thus parties cannot go back to their old relationship and seek relief in terms of such relationship. Opining that the appellant had consciously surrendered her right as a tenant, a Bench comprising Justice Soumen Sen and Justice Ajoy Kumar Mukherjee observed, "The parties who have acted in terms of the agreement for sale and altered their relationship consciously cannot now go back to their old relationship and seek relief in terms of such relationship. There is a clear and conscious act on the part of the appellant to surrender her right as a tenant to acquire a superior right of an owner of the second floor of the suit premises." Reliance was also placed on the Kerala High Court judgment in Velu v Lekshmi & Ors to observe that two sets of mutually contra relationships cannot co-exist and accordingly it was further underscored, "Whenever a certain relationship exists between two parties in respect of a subject-matter and a new relationship arises as regards the identical subject-matter the two sets of mutually contra relationships cannot co-exist as being inconsistent and incompatible, that is to say, if the latter can come into effect only on termination of the earlier that would be deemed to have been terminated in order to enable the latter to operate."
Case Title: Saptaparna Ray v. District Magistrate and Collector, North 24 Parganas and others
Case Citation: 2022 LiveLaw (Cal) 67
The Calcutta High Court observed that only the Supreme Court under Article 142 of the Constitution can clarify whether the orders passed under the repealed legislation, the West Bengal Housing Industry Regulation Act, 2017 (WBHIRA), are saved and the execution thereof can be continued. The Supreme Court in the case of Forum for People's Collective Efforts (FPCE) and another v. State of West Bengal had declared the WBHIRA Act, 2017 as being ultra vires the Constitution of India and repugnant to the provisions of Real Estate (Regulation and Development) Act, 2016 and thus struck down the legislation. Justice Rajasekhar Mantha observed while declining to entertain the plea, "..this Court is of the view that it is only the Hon'ble Supreme Court under Article 142 of the Constitution of India, that can clarify as to whether the orders passed under the erstwhile WBHIRA, are saved and the execution thereof can be continued post the decision in the Forum for People's Collective Case or whether the execution should be carried out under the Real Estate Regulation Authority Act, 2016." The Court further averred, "It is clear and evident from the aforesaid paragraph that what has been saved by the Supreme Court under Article 142 under the Struck Down Act, are legislation, sanction and permission already granted. The orders already passed under the said Repealed Act, have not been specifically mentioned to have been saved", the Court averred.
Case Title: Latika Ghosh v. The Commercial Tax Officer/Assistant Commissioner, West Bengal Goods & Service Tax, Raiganj Charge & ors.
Case Citation: 2022 LiveLaw (Cal) 68
The Calcutta High Court has ordered for the restoration of the appellant's certificate of registration under the provisions of both West Bengal Goods & Service Tax Act and Central Goods & Service Tax Act within one week after noting that the order for cancellation of registration is in violation of principles of natural justice. A Bench comprising Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya observed, "The authorities are directed to restore the appellant's certificate of registration under the provisions of both West Bengal Goods & Service Tax Act and Central Goods & Service Tax Act within one week from the date of receipt of the copy of this order. We grant liberty to the authorities to issue show cause notice to the appellant." The Court further noted that the order of cancellation of the registration made by the state authorities as well as central authorities is unsustainable and the order rejecting the application for revocation dated October 6, 2021 is also not tenable.
Case Title: Setab Uddin & Ors v. The State of West Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 69
The Calcutta High Court again ordered for a Central Bureau of Investigation (CBI) probe in another matter pertaining to the alleged illegal appointment of assistant teachers in State run schools in West Bengal. The Court was adjudicating upon a batch of pleas alleging the illegal appointment of assistant teachers for Class 9 and Class 10 in State run schools pertaining to the West Bengal State Level Selection Test (SLST) on the purported recommendation by the West Bengal School Service Commission (WBSSC). The Court had earlier ordered for a CBI probe in a similar matter after observing that such a scam with regards to public employment could not have taken place without the complicity of people in power in the State machinery. Thereafter, the West Bengal government had moved a Division Bench of the High Court challenging the Single Bench order.
Justice Abhijit Gangopadhyay directed the Director, Central Bureau of Investigation to constitute a Committee immediately headed by an officer not below the rank of Joint Director with officers not below the rank of D.I.G. to initiate the enquiry. "..in this matter also, I direct the C.B.I. enquiry, as the C.B.I. is an expert agency which is not under the control of State Government, in a scam where a Committee has been formed with the important officers of the State Government by the School Education Department. Therefore, I direct the Director, Central Bureau of Investigation to constitute a Committee immediately, headed by an officer not below the rank of Joint Director with officers not below the rank of D.I.G. to initiate the enquiry. It is expected that all the persons named in the said order of the Government including the "competent authority‟ with whose concurrence the order was issued and any other person from whom CBI want to gather facts for inquiry of the matter should come under the umbrella of the enquiry", the Court underscored.
Case Title: Creative Museum Designers v. Income Tax Officer, Exemptions, Ward-1(1), Kolkata
Case Citation: 2022 LiveLaw (Cal) 70
A Bench of Calcutta High Court, consisting of Justices T.S. Sivagnanam and Hiranmay Bhattacharyya, has ruled that when a Company has been established as a non-profit organization under the Companies Act, and its profits are applied solely for the promotion of its objects, its activities would by necessary implication fall under the definition of a "charitable purpose" under the Income Tax Act, 1961. Holding that the Assessee Company was a non-profit organisation that was engaged in imparting education and the advancement of general public utility, the High Court held that its activities would fall within the definition of a "charitable purpose" as defined under Section 2 (15) of the Act. "Thus, when the assessee has not been established for the purpose of earning profit and the income it generates has to be applied for promoting the objects as spelt out in the memorandum and no portion of the income can be directly or indirectly paid by way of dividend or bonus etc, it has to be necessarily held that the assessee is a not for profit organisation but public utility company and the activities of the company for which it has been established would undoubtedly show that the company by establishing knowledge parks, engaged in imparting education and also undertakes advancement of other aspects of general public utility to fall within the definition of charitable purpose as defined under Section 2 (15) of the Act", the Court observed.
71. Calcutta High Court Quashes Penalty Imposed By Customs Dept. Without Enquiry & Adjudication
Case Title: Dharanidhar Ghosh Vs. Union of India
Case Citation: 2022 LiveLaw (Cal) 71
The Calcutta High Court consisting of Justice Md. Nizamuddin, has quashed the penalty which was imposed by the customs department without initiating any enquiry or adjudication. The petitioner/assessee has challenged the order passed by the Commissioner of Customs which imposed several punishments including Punishment No. V, imposing a penalty of Rs.1 crore under Section 112 (b) of the Customs Act on account of some past offences without initiating any proceeding and any adjudication order. The court while criticising the act of the department said that how an authority like a Commissioner can pass order without initiating any proceeding and any adjudication order and it shows total non-application of mind on his part since order of punishment on the offence is not a part of subject matter of the adjudication proceeding. The court has held that the impugned order is bad, in total non-application of mind and on the face of it, is not sustainable in law; and accordingly, punishment order imposing penalty for alleged past offence without any enquiry and adjudication, is set aside.
Case Title: Unisource Hydro Carbon Services Private Limited Versus Union of India
Case Citation: 2022 LiveLaw (Cal) 72
The Calcutta High Court has ruled that the power of an Appellate Authority is much wider than that of a Revisional Authority and the Commissioner, in the exercise of his discretionary power of revision under Section 264 of the Income Tax Act, cannot act as an Appellate Authority and go into the merits of the assessment by re-appreciating the facts and evidence. The single bench of Justice Md. Nizamuddin has observed that the petitioner/assessee has not filed any statutory appeal before the Commissioner of Income Tax (Appeals) with the sole intention of avoiding the payment of a huge amount of tax determined in the assessment order. The court stated that the High Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, cannot act as an Appellate Authority over the assessment order on merits, facts, and evidence involved in an assessment proceeding. The court noted that the petitioner has deliberately chosen the forum of revision under Section 264 of the Income Tax Act with a view to making out a case to come up before the Court again under Article 226 of the Constitution of India tactfully indirectly to get interference in the assessment order which the Commissioner in exercising the power under Section 264 of the Income Tax Act has refused.
Case Title: Sankar Mondal v. Swapan Debnath & Ors
Case Citation: 2022 LiveLaw (Cal) 73
The Calcutta High Court imposed a stay on an ex-parte injunction issued by a trial Court in favour of the elder son of renowned illustrator Late Narayan Debnath against a publisher claiming infringement of copyright of several works of his deceased father. A Bench comprising Justice Ajoy Kumar Mukherjee and Justice Soumen Sen was apprised by the appellant publisher that the injunction application was moved ex parte on February 24, 2022 with the oblique motive to prevent the appellant from selling books authored by Late Narayan Debnath just before the commencement of the International Kolkata Book Fair, 2022. The Bench observed that the concerned trial Court should not have issued the ex parte ad-interim order without giving an opportunity of hearing to the publisher especially considering the fact that the Book Fair was to commence shortly and that such an order of injection would cause irreparable injury to him. However, taking into consideration that the appellant is obligated to pay royalties to the legal heirs of the deceased illustrator unless their inter se disputes are settled, the Court ordered the appellant to pay an amount of Rs 7 lakhs by March 14, 2022. Imposing a stay on the impugned order of injunction, the Court observed further, "The order of stay of operation of the impugned order shall remain stayed unconditionally till 14th March, 2022 and in the event the said amount is deposited within the aforesaid period, the stay of operation of impugned order shall continue till the disposal of the appeal."
Case Title: Piyali Tewari Dey v. Baidyanath Dey & Ors
Case Citation: 2022 LiveLaw (Cal) 74
The Calcutta High Court directed a daughter to allow her aged parents to reside with her in a residential flat which had been gifted to her by her parents and further restrained her from alienating the disputed flat during the life time of both her parents. She was also ordered to pay a monthly maintenance of Rs 10,000 to meet the basic needs and medical expenses of her aged parents. Justice Kesang Doma Bhutia observed at the outset that the instant case represents how dynamic human relationship can be in the present socio economic condition. She further observed while directing the daughter, "The petitioner is hereby directed to provide shelter to her parents in the flat where they are residing with her but in different mess during their lifetime and to see they live peacefully their remaining days in the house which originally belonged to them. She is further restrained from alienating the disputed flat during the life time of her both parents. She is further directed to pay Rupees Ten Thousand per month towards their maintenance to meet their basic needs and medical expenses." Pertinently, the Court observed that once a gift deed in respect of the transfer of any immovable property has been executed in favour of a child, such a gift deed cannot be cancelled or declared void under Section 23 in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act) unless the deed in question is conditional in nature.
Case Title: Ashlesh Biradar v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 75
The Calcutta High Court on imposed a stay on an order dated March 3, 2022 issued by the State government temporarily suspending internet services in eight districts of West Bengal between March 7 and March 16. The decision was purportedly taken by the State in order to prevent mass cheating in the upcoming Class 10 State board (Madhyamik) examination.Pursuant to the perusal of the record, the Court noted that the impugned order for suspension of internet service in specified districts has been issued by the Additional Chief Secretary, Home & Hill Affairs Department, Government of West Bengal under Section 144 of the Cr.P.C. The Court opined that such an order under Section 144 CrPC can be issued only by a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate empowered by the State Government. Reference was also made to the Supreme Court judgment in Anuradha Bhasin v. Union of India wherein the Apex Court had considered the scope of Rule 2(2) of the 2017 Rules by holding that such an order must be a reasoned order and reasoning of the authorities and officers should indicate unavoidable circumstances necessitating passing of such an order. In this regard, the Court observed that although the impugned order had made reference to 'intelligence inputs', the report of the Review Committee had made no such mention of intelligence inputs. The Bench held that no material had been placed by the State government to show that such an order suspending internet services was require on account of a 'public emergency' or 'public safety'. Reliance was also placed on the Supreme Court judgment in People's Union For Civil Liberties (PUCL) v. Union of India and Another in this regard.
Case Title: In the goods of Mahesh Kumar Agarwal and Anr. v. Meena Agarwal and Ors
Case Citation: 2022 LiveLaw (Cal) 76
In an unprecedented development, Justice Shekhar B. Saraf of the Calcutta High Court on Friday recused from hearing a matter after alleging that a lawyer representing one of the parties had approached him personally to issue a favourable order. Calling the incident 'extremely unfortunate' Justice Saraf indicated to senior advocate Harish Salve who was appearing through video conferencing that the errant lawyer also belonged to the party the he was appearing for i.e. the petitioner. Consequently, senior counsel Salve underscored that he was returning the brief immediately by terming the entire incident to be 'obnoxious'. He also highlighted that unfortunately, this was not the first time that he was being made aware of such a complaint alleging corrupt practices. Recusing from hearing the matter, Justice Saraf recorded in the order, "Due to circumstances which are quite unfortunate, I release this matter on my personal ground".
Case Title: Tushar Kanti Das v. Kajal Saha
Case Citation: 2022 LiveLaw (Cal) 77
The Calcutta High Court has recently overruled its prior decision in a case by granting the custody of a four and a half years old girl child to her biological father instead of a family friend of her deceased mother. The Court issued the direction by relying upon the report of a clinical psychologist who had personally interacted with the child. The Court had earlier refused to grant custody of the minor girl to her biological father and had instead permitted the child to be in the care and protection of the family friend of her deceased mother. The biological father had however been granted visitation rights. Overruling the Court's prior direction, a Bench comprising Justice Ajoy Kumar Mukherjee and Justice Soumen Sen opined that the family friend, Julie Roy, is incapable of taking care of the minor child in question and further remarked, "we were of the view that Julie Roy was unfit for the custody of the child. Her conduct does not make her fit to become a guardian of the child. She is neither financially capable of rearing of the child nor can provide the child with education. She has her own family along with grown up son. On the contrary, the biological father is an engineer and is financially sound. He also had an attachment towards his child, and over a period of time as the report would suggest a bonding has developed between the father and the child."
Case Title: Anubrata Mondal v. Union of India & Ors
Case Citation: 2022 LiveLaw (Cal) 78
The Calcutta High Court on Friday dismissed a petition moved by Trinamool Congress (TMC) leader Anubrata Mondal seeking relief from appearing before the Central Bureau of Investigation (CBI) in Kolkata for questioning in the ongoing cattle smuggling probe. Mondal had moved the High Court pursuant to the issuance of a CBI notice under Section 160 of CrPC directing him to appear before its investigating team for questioning in the CBI office at Nizam Palace, Kolkata. He had declined to appear before the CBI on three prior occasions citing various medical ailments. Mondal had also requested for the questioning to take place at a place nearer to his residence considering the ongoing pandemic.Justice Rajasekhar Mantha on Friday dismissed the plea of Mondal after noting that he had travelled outside Bolpur on several occasions and that his aliments as examined by the Medical Board are not that serious that would requirement confinement to his home or a hospital. "Having carefully heard the submissions of the parties, this Court notes that indeed the petitioner has been traveling outside Bolpur and on a couple of instances traveled all the way to Howrah. He has appeared in Kolkata before the Medical Board, the ailments referred to by the Medical Board are not as serious as to require the petitioner to remain confined to his home or a hospital", the Court recorded. The Court further observed that the instant case does not warrant an interference under Article 226 of the Constitution of India as an alternate remedy is available under Section 438 of CrPC.
Case Title: In Re : Bhajagobinda Roy alias Bhajan Roy
Case Citation: 2022 LiveLaw (Cal) 79
The Calcutta High Court came down heavily on a lawyer for having procured anticipatory bail before the concerned Sessions Court through 'fraud' and by making a 'brazen incorrect submission' that no such similar relief had been previously turned down by the same Sessions Court or the High Court. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi expressed displeasure at the conduct of the lawyer by underscoring that members of the legal profession are expected to perform their duties with utmost honesty. "Legal profession is a noble profession. Its members are expected to perform their duties with responsibility and honesty and uphold the high and moral ideals of the profession. The present case is one which exposes the unfortunate and deplorable sharp practices resorted to by a member of the said profession to procure an order of anticipatory bail in favour of his client by misleading the Court by making false submissions that no earlier prayer to an anticipatory bail had been turned down earlier either by the session court or the high court", the Court averred.Opining that the conduct of the concerned counsel was motivated to avoid any judicial scrutiny, the Court enumerated further, "In fact subterfuge and/or sharp practice resolved to procure the impugned order of bail is evident from the fact that the pleadings regarding rejection of similar prayer has not been pleaded in the body of the application but is surreptitiously couched in the affidavit accompanying the application so as to avoid judicial scrutiny by the presiding judge."
Case Title: Galaxy Mechanical Engineering Equipments Private Limited Versus Assistant Commissioner
Case Citation: 2022 LiveLaw (Cal) 80
The Calcutta High Court bench consisting of Justice ​​Md. Nizamuddin has suspended the order cancelling GST registration on the grounds that the allegations contained in the show cause notice were vague. The petitioner/assessee challenged the show-cause notice for cancellation of the GST registration of the petitioner and suspended the registration of the petitioner by the show-cause notice itself. The petitioner challenged the impugned show-cause notice on the ground that the show-cause notice was passed without providing any opportunity for hearing to the petitioner. The court was convinced that the allegation of the petitioner was correct since no reason has been given in the impugned order of cancellation, which was a non-speaking order, which was not sustainable in law. The order of cancellation of registration of the petitioner is set aside and all legal consequences will follow. "So far as part of the impugned show-cause notice for cancellation of registration, where registration of the petitioner has been suspended, this part of the impugned order will remain suspended since the allegation in the impugned show-cause notice is very vague and a one-line allegation without any basis, and for the ends of justice, a person against whom a show-cause notice has been issued should be at least provided in brief the basis of such an allegation so that the person can meet the allegations in the show-cause notice," the court said.
Case Title: Concast Steel and Power Limited v. Sarat Chatterjee and Co
Case Citation: 2022 LiveLaw (Cal) 81
The Calcutta High Court recently had the opportunity to expound on the principles pertaining to abatement of a suit under Order 22 Rule 8 of the Code of Civil Procedure, 1908 (CPC) involving a corporate entity that had been declared as insolvent by the National Company Law Tribunal. Justice Shekhar B. Saraf was adjudicating upon an application seeking dismissal of the instant suit on the grounds of abatement and further direction upon the Special Officer appointed by the Court to restrain him from carrying out the valuation and sale of the concerned goods (10,000 Metric Tons of "Metallurgical Coke" hereinafter referred to as "Met Coke"). Justice Saraf observed that since in the instant case, the liquidator has rendered appearance in meeting held by the Receiver and has made a constant effort to protect the interests of the plaintiff, it cannot be said that the liquidator has declined to continue the suit. It was further underscored that a mere delay on the part of the liquidator to implead himself in the instant proceedings cannot be in any manner be presumed to be an abatement of the suit. "..it is crystal clear that the liquidator is fighting tooth and nail with regard to this litigation and a mere delay in making an application for substituting his name in the records of the suit would not in any manner lead to an abatement of the suit. In fact, in my view the liquidator has never stopped acting in the suit but has continued diligently to act in the suit for the protection of the goods in the suit which the plaintiff claims to have title on. The very fact of the presence of the liquidator in the meetings held by the Receiver indicate a constant endeavour to protect the interest of the plaintiff in this case", the Court opined.
Case Title: Sariful Sk. & Anr v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 82
The Calcutta High Court has recently observed that a delay of a few hours in lodging of the FIR by a victim of gang rape will not vitiate the prosecution case since it is natural for the victim to remain disoriented and confused after having gone through such a traumatic experience thereby justifying such a delay. A Bench comprising Justice Joymalya Bagchi and Bivas Pattanayak was adjudicating upon an appeal against a judgment of the concerned Sessions Court convicting the appellants for the offence of gang rape under Section 376(2)(g) of the IPC. Acknowledging that it is natural for a victim of gang rape to be disoriented and confused thereby causing a delay in lodging the FIR, the Court underscored further, "The victim underwent a traumatic experience of sexual assault and was panic stricken. She was confused and disoriented as to what would bring succour to her and naturally she waited for arrival of her husband who was in his office. After the arrival of her husband and on giving a cool thought she went to the police station to lodge complaint in the evening around 8.30/9PM. This obviously has led to delay of few hours in lodging of the FIR. There is no case of embellishment or concoction of facts in the FIR due to such delay." Reliance was also placed on the Supreme Court judgment in State of Chhattisgarh v. Derha to hold that even otherwise, the mere factum of delay in filing complaint in regard to an offence of this nature by itself would not be fatal so as to vitiate the prosecution case.
Case Title: Anindya Sundar Das v. Union of India and other connected matters
Case Citation: 2022 LiveLaw (Cal) 83
The Calcutta High Court has granted police protection to 303 alleged victims of violence that had taken place post the declaration of the West Bengal assembly elections in May 2021. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj took on record a detailed affidavit filed by petitioner Priyanka Tibrewal appearing in person wherein the names and contact details of 303 alleged victims of post-poll violence had been enumerated.Taking cognisance of the grievance raised, the Court directed the petitioner to serve a copy of the affidavit filed to the Advocate General as well as the DG & IG of Police, West Bengal so that necessary action could be taken. Furthermore, the DG & IG of Police was directed to ensure that the 303 alleged victims are not harassed by police authorities or local goons. During the hearing, the petitioner also averred that a Committee should be constituted comprising 2 members- one from the National Human Rights Commission (NHRC) and another from the West Bengal Human Rights Commission (WBHRC) so that the affidavit containing the names of the 303 alleged victims can be placed before the Committee in order to ascertain the real ground position. Accordingly, the Court allowed the petitioner to implead the NHRC as a party to the instant proceedings.
Case Title: Precious Trade Link Private Limited Versus Assistant Commissioner of State Tax
Case Citation: 2022 LiveLaw (Cal) 84
The Calcutta High Court bench of Justice Md. Nizamuddin, has quashed the detention order passed by the Goods and Service Tax Department (GST) on the grounds that the opportunity of hearing was not accorded to the assessee. The petitioner/assessee has challenged the order passed by the Deputy Commissioner of State Tax on the ground that the order was bad in law for the reason that the goods of the petitioners were detained without giving any opportunity of hearing to the petitioners under the relevant provision of Section 129 of the West Bengal Goods and Service Tax Act,2017 (WBGST Act). The court ordered that the detained goods shall be released on making payment as per the amended provision of Section 129(1) of the WBGST Act and directed the petitioner to make payment within seven days from the date. On receipt of such payment, the department shall release the detained goods in question within 72 hours from receipt of payment. The court quashed the detention order passed by the Deputy Commissioner of State Tax and remanded it to the authority concerned to consider afresh and pass a reasoned and speaking order in accordance with the law after giving an opportunity of hearing to the petitioners or their authorised representative.
Case Title: Alpine Distilleries Pvt. Ltd v. The State of West Bengal and others
Case Citation: 2022 LiveLaw (Cal) 85
The Calcutta High Court has recently restrained the concerned Block Land and Land Reforms Officer from interfering with the possession of the land under Section 14T(3) of the West Bengal Land Reforms Act, 1955 (Act) after noting that a person is entitled to land in excess of the ceiling area defined under Section 14M of the Act if the same is intended to be used for commercial purposes. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta observed, "Accordingly, the respondents shall remain restraint from interfering with the possession of the land, which has/have been passed by an order of the relevant Block Land and Land Reforms Officer." However, the petitioner was restrained from creating any third party interest in respect of the land or change the nature and character thereof without obtaining prior leave of the West Bengal Land Reforms and Tenancy Tribunal. "Since it is alleged that the petitioner is holding the excess land beyond the ceiling limit provided under Section 14M of the said Act, the petitioner is restrained from creating any third party interest in respect of the same nor shall change the nature and character thereof without obtaining prior leave of the tribunal", the Court directed. It was further ordered that the correction of the record of rights shall not be made without obtaining the prior leave of the Tribunal.
Case Title: Ajoy Kumar Singhania v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 86
The Calcutta High Court has recently directed the District Registrar to ensure that legible copies are always provided when certified copies of a registered document is applied for otherwise the intervention of the Court will always be required for the supply of such legible copies. In the instant case, the petitioner had applied for obtaining the certified copy of a sale deed however the copy of the sale deed which had been provided to the petitioner was illegible. Subsequently, the petitioner had applied to the District Registrar to furnish a legible copy of the concerned document, however such no action had been taken on such a request. Thereafter, the instant plea had been filed. Justice Amrita Sinha observed it is evident from the photocopy of the deed supplied to the petitioner that it is absolutely illegible and accordingly remarked, "The copy of the deed which was supplied to the petitioner is absolutely illegible. Not a word from the said deed can be read." Taking into consideration the grievance raised, the Court directed, "The District Registrar is directed to ensure that when certified copy of a registered document is applied for, then legible copy should always be provided to the applicants; otherwise, the applicants will be required to approach Court for obtaining order for supplying legible copy of the document(s) they require." The order was also directed to be communicated to the District Registrar and the other Sub-Registrars within the jurisdiction to ensure compliance.
Case Title: Naimuddin Laskar @ Naim v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 87
The Calcutta High Court has recently granted default bail after noting that no notice of the application seeking extension of time in filing of chargesheet under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) had been served upon the accused thereby violating principles of natural justice. A Bench comprising Justice Debangsu Basak and Justice Bibhas Ranjan De observed, "In an adversarial proceeding, the requirement to adhere to the principles of natural justice is imbedded in a statute governing the adjudicating process unless the same is expressly excluded by statute. The right to a fair trial is fundamental to the rule of law. Right to fair trial is recognized as a part right to life enshrined in Article 21 of the Constitution of India. Compliance with the principles of natural justice ensures a fair trial. Audi alteram partem or hear the other side is one of the fundamental pillars of the principles of natural justice. The principle audi alteram partem needs to applied at every stage of an adversarial proceeding to ensure fair trial, unless its applicability is expressly ousted by statue." The Court further underscored that Section 36A(4) of the NDPS Act does not expressly exclude the application of principles of natural justice and thus an accused is entitled to notice of an application seeking extension of time to submit a chargesheet under Section 36A(4) of the NDPA Act so that he is in a position to oppose the same if need be.
Case Title: Kabita Mondal (Gayen) v. West Bengal State Electricity Distribution Co. Ltd. and others
Case Citation: 2022 LiveLaw (Cal) 88
The Calcutta High Court called upon the legislature to immediately introduce specific provisions in the Electricity Act, 2003 (2003 Act) regarding payment of compensation to victims of injury, death or damage to property caused by electrocution or to their next of kin. The Court also observed that the legislature should also consider providing for a dedicated hierarchy of forums to decide such cases and that Rules may also be formulated by the Central or State Electricity Regulatory Commissions for effective implementation of such provisions. Justice Sabyasachi Bhattacharyya observed, "It is desirable that the legislature considers the immediate introduction of specific provisions in the Electricity Act, 2003 itself, regarding payment of compensation to victims of injury, death of damage to property caused by electrocution or their next of kin and, if deemed fit, to also consider providing for a dedicated hierarchy of forums to decide such cases. Rules in that regard may also be formulated by the Central and/or State Electricity Regulatory Commissions for effective implementation of such provisions." The Court further noted that relegating such matters of compensation to a Civil Court would aggravate the misery of the victim's kin and accordingly remarked, "The option of relegating such matters of compensation to a civil court, considering the usually sorry plight of the victim's dependants, would involve much time and resources which the applicants in such matters mostly cannot afford to spend. Civil suits, by their implicit nature and statutory structure, require oral and documentary evidence to be led and considered in detail before final disposal."
Case Title: Kamal Nath v. The Principal Commissioner of Income Tax, Kolkata
Case Citation: 2022 LiveLaw (Cal) 89
Justice Md Nizamuddin of the Calcutta High Court on Tuesday recused himself from hearing a petition by former Madhya Pradesh Chief Minister Kamal Nath against the Income Tax authorities in connection with the IT department's decision to transfer his case from Kolkata to Delhi. The matter arose from income tax raids in multiple states, including West Bengal, in the premises of people allegedly linked to Nath in April 2019, when he was the chief minister of Madhya Pradesh. The raids were conducted in connection with a notice issued to the senior Congress leader by the IT authorities. On Tuesday, Justice Nizamuddin recused from hearing the matter and further ordered for the case to be placed before Chief Justice Prakash Shrivastava. "On my personal ground, this matter is released from my list. Let it be placed before the Hon'ble the Chief Justice", the order read. In the instant case, Kamal Nath had moved the Principal Commissioner of Income Tax, Kolkata-9, challenging the IT summons against him asking him to appear in New Delhi, and not in Kolkata, under which he is a tax assessee.
90. Birbhum Massacre| Calcutta HC Orders CBI Probe, SIT Asked To Stop Investigation
Case Title: The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum
Case Citation: 2022 LiveLaw (Cal) 90
The Calcutta High Court on Friday transferred to the Central Bureau of Investigation (CBI) the investigation into the violence in Birbhum district of West Bengal, in which 8 persons were killed allegedly in retaliation to the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Friday observed that in the interest of justice and considering the circumstances of the instant case, the ongoing probe should be transferred to the CBI. "Having regard to the aforesaid we are of the opinion that facts and circumstances of the case demand that in the interest of justice and to instill confidence in the society and to have fair investigation to dig out the truth it is necessary to hand over the investigation to the CBI. Accordingly, we direct the State Government to forthwith hand over the investigation of the case to CBI. We also direct the State authorities to extend full cooperation to CBI in carrying out the further investigation", the Bench ordered. The State constituted Special Investigating Team (SIT) which had been carrying on its investigation till now was further ordered to not carry out any further investigation in the matter from the time the same is handed over to CBI. "In view of this order the State police authorities or SIT formed by the State will not carry out any further investigation in the matter from the time the same is handed over to CBI. CBI will not only be handed over the case papers but also the accused and suspects who were arrested in the matter and in custody", the Court ordered further. The CBI has been ordered to submit a progress report on the next date of hearing that is to take place on April 7.
Also Read: Birbhum Massacre| Calcutta HC Reserves Order, Takes On Record Case Diary
Case Title: Malancha Mohinta v. Dipak Mohinta
Case Citation: 2022 LiveLaw (Cal) 91
The Calcutta High Court on Wednesday observed that writing a letter to the husband's superior at work in good faith intimating him about a criminal case lodged against the husband for inflicting torture would not amount to criminal defamation under Section 499 of the IPC. In the instant case, the wife (petitioner) had written a letter dated May 24, 1997 to the Manager, Indian Overseas Bank intimating him that her husband who was the Assistant Manager of Overseas Bank had tortured her and driven her out of the matrimonial home and that a criminal case under Section 498A CrPC (cruelty) had been initiated against him following which he had been arrested and subsequently released on bail. The petitioner had enclosed a certified copy of the order and had requested the Manager to take such action as may be deemed fit under the facts and circumstances. Justice Ananda Kumar Mukherjee noted that the petitioner in her letter had made representation of facts which were consistent with the incidents relating to filling of cases for alleged torture. He further opined that there had been no 'embellishment of facts' and that no coercive action had been sought by the petitioner against her husband vide the letter. "There remains little to be said that the letter in question was a statement of fact instead of any imputation to harm the reputation of the opposite party", the Court observed. Opining further that the the ingredients of offence of defamation are not attracted by the contents of the letter as they are covered by the Eighth Exception laid down under Section 499 IPC, the Court underscored, "..preferring an accusation against any person to any of the persons who have lawful authority over that person, would not amount to defamation. In the instant case the petitioner wife made accusation against the opposite party before his superior in office in good faith and consistent to her accusation made in the petition of complaint. Therefore, the same would not amount to any defamation as the same is excepted in the 8th exception."
Case Title: Ram Sevak Lohar v. State
Case Citation: 2022 LiveLaw (Cal) 92
While opining that the sole evidence of a victim of sexual assault is enough to secure a conviction, the Calcutta High Court on Friday observed that the evidence of a victim need not be tested with the same amount of suspicion as that of an accomplice. A Bench comprising Justice Shekhar B. Saraf and Justice Kesang Doma Bhutia observed that the Supreme Court in various decisions have held that barring serious exceptions, the evidence of victim of sexual assault is enough for conviction. Opining that the evidence of a victim of sexual assault need not be tested with the same amount of suspicion as that of an accomplice, the Court underscored, "A girl, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. Maintaining that the sole and trust worthy evidence of a woman, who is a victim of a sexual offence, is enough to find her assailant guilty. An accused guilty for committing of offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality." The Court further observed that the testimony of a minor sexual assault victim must be appreciated taking into account the facts and circumstances of the case. It was also noted that even if the mother of the victim turns hostile. the sole evidence of the victim if found reliable can be enough to secure a conviction. "..it has been held rape is not mere physical assault but instead destroys the whole personality of the victim. The rapist degrades the very soul of the helpless female and therefore, the testimony of the prosecutrix must be appreciated on the background of the entire case, even if the mother turns hostile", the Court observed further.
Case Title: Dr. Kausik Paul v. Seacom Skills University and Others
Case Citation: 2022 LiveLaw (Cal) 93
The Calcutta High Court has recently observed that the perceived unfairness of a 'hire and fire policy' or a clause of summary dismissal is substantially diluted if an employee is given sufficient opportunity to respond to the charges levelled. Opining that Courts intervene only if the principles of natural justice is found to have been violated, Justice Moushumi Bhattacharya observed, "The perceived unfairness of a "hire and fire" policy or a clause of summary dismissal is substantially diluted where sufficient notice is given to the employee to respond to the charges made against the employee. Courts usually intervene and rectify a situation where a clear breach of the rules of natural justice is established on fact or where the notice of termination is opaque and indecipherable in failing to disclose reasons for the sudden dismissal." The Court further opined that in several sectors, such conditions of summary dismissal may be necessary for maintaining disciplinary standards and also for ensuring the competence levels of employees. "The words "hire and fire" carry a sense of an inherent and abrupt injustice. The underlying imputation is one of summary dismissal without an opportunity of a meaningful say in the decision of dismissal. There are also several sectors where the persons are employed under the condition of a summary dismissal on the happening of certain events. In other spheres, these conditions may be seen as necessary for maintaining disciplinary standards and the competence levels of employees", the Court opined further.
Case Title: Anubrata Mondal v. Union of India & Ors
Case Citation: 2022 LiveLaw (Cal) 94
The Calcutta High Court upheld a Single Bench order refusing to grant protection from arrest to Trinamool Congress (TMC) leader Anubrata Mondal in the ongoing cattle smuggling case, probed by the Central Bureau of Investigation (CBI). A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed that the order of the Single Bench does not suffer form any error. Furthermore, the Court dismissed the plea of the appellant that he is suffering from various medical ailments due to which he is being unable to appear before the CBI for the purpose of investigation by observing that sufficient material has been placed on record to show that Mondal has been travelling to different places and had even come down to Kolkata, near the place where he was asked to appear for questioning by the CBI. "..this Court also finds substance in the arguments of learned Counsel for respondents that the plea of the appellant that he is suffering from various ailments due to which he is unable to appear for the purpose of investigation, is unsustainable as material has been placed on record to show that the appellant is travelling to different places and had even come to Kolkata, near the place where he is required to appear in pursuant to notice. Appellant is seeking the interim protection to the effect that no coercive steps should be taken against him but there is no material on record showing that any such steps are intended by the respondent", the Court observed.
Case Title: Bharat Heavy Electricals Limited v. Optimal Power Synergy Ltd
Case Citation: 2022 LiveLaw (Cal) 95
The Calcutta High Court has recently observed that the discretion conferred upon a Court to stay an award or a decree under Section 19 of the Micro, Small and Medium Enterprises Development Act, 2006 (MSME Act) is broader in scope compared to Section 36(3) of the Arbitration and Conciliation Act, 1996 (Arbitration Act) where the discretion is limited to granting stay of an award subject to appropriate conditions. Justice Moushumi Bhattacharya noted that the rights of an award holder are enhanced under Section 19 of the MSME Act compared to Section 36(3) of the Arbitration Act with the object to not hasten the death of the enterprise under the weight of financial pressures aggravated by initiation of proceedings for realization of its dues from supply of materials to a buyer. "The object is to ensure that the small or medium scale enterprise survives; the object is not to hasten the death of the enterprise under the weight of financial pressures aggravated by initiation of proceedings for realization of its dues from supply of materials to a buyer. Section 19 of the MSME Act matches the object of the Act and strengthens its core by broadening the contours for stay of an award / decree compared to section 36(3) of The Arbitration and Conciliation Act, 1996 where the discretion is limited to granting stay of an award subject to appropriate conditions. There is no mandate to allow withdrawal of the amount deposited by the Award-holder", the Court observed.
Case Title: In Re : Guddu Mondal @ Guddu Ali Mondal & Anr
Case Citation: 2022 LiveLaw (Cal) 96
The Calcutta High Court directed the Registrar (IT) of the High Court to prepare a list of appeals where the appellants are in jail for 14 years or more and list those matters before the Court for consideration of bail within 2 weeks. The direction was issued while suspending the sentence and granting bail to two accused persons who were found to have suffered inordinate incarceration for about 20 years. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi ordered, "A large number of appeals are pending in this High Court too where the appellants-convicts are incarcerating in jail for a protracted period of time. Taking judicial notice of such fact, we are of the view similar exercise ought to be undertaken in this Court also. Accordingly, we direct the Registrar (IT) to prepare a list of appeals where the appellants are in jail for 14 years or more and list those matters before this Bench for consideration of bail within a fortnight."
Case Title: Dr. Santi Prasad Sinha v. Md. Abdul Gani Ansari and others
Case Citation: 2022 LiveLaw (Cal) 97
The Calcutta High Court has upheld a Single Judge's order directing former West Bengal School Service Commission (SSC) advisor S.P. Sinha to furnish details about his properties to the Court while adjudicating upon a plea pertaining to the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the West Bengal Board of Secondary Education (WBBSE) on the purported recommendation by the WBSSC. Justice Abhijit Gangopadhyay in the impugned order had directed S.P. Sinha, the Advisor of the School Service Commission and the Convenor of the Five-Member Committee constituted by the Education Department to disclose in an affidavit details about his assets after suspecting corruption during the recruitment of staff in different schools by the SSC in recent years. A Division Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta ordered, "Taking into account the thought process behind the direction passed upon the appellant to file affidavit of assets, we do not find any element warranting interference at this stage. However, we make it clear that such affidavit of assets shall remain in a sealed cover and shall not be divulged or circulated to the litigating parties or the Counsels and shall be appropriately dealt with at the time of final decision to be taken on the issues involved therein." The time for filing such an affidavit was also extended by 5 days.
Case Title: Abu Fazel Fakir & Ors v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 98
The Calcutta High Court has reduced the sentence awarded to persons concurrently convicted under Section 324 read with Section 34 of the Indian Penal Code after noting that they are mostly agricultural labourers who had fallen prey to the hands of political powers without having any knowledge about politics. Justice Bibek Chaudhuri noted that the incident had occurred in the year 2008 and that the appellants had been facing trial for the last 14 years. Opining that the appellants had suffered mental agony due to the long pendency of the instant criminal proceedings, the Court underscored, "The appellants are facing trial before the learned court below and also in this court for last 14 years. They have suffered tremendous mental agony during these years with pendency of a criminal case on their head. All the appellants are villagers, mostly maintain their livelihood as agricultural labourer. Some of the convicts are village housewives. The appellants do not know the intricacies of political ideology they become supporters of different political parties without having any knowledge about politics. They are practically preys and pawns in the hands of political powers."
Case Title: Md. Abdul Gani Ansari v. State of West Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 99
Justice Abhijit Gangopadhyay of the Calcutta High Court passed a scathing order against the observations made by a Division Bench in a case pertaining to the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the West Bengal Board of Secondary Education (WBBSE) on the purported recommendation by the West Bengal School Service Commission (WBSSC). Justice Gangopadhyay in an order dated March 25 had directed S.P. Sinha, former Advisor of the School Service Commission and the Convenor of the Five-Member Committee constituted by the Education Department to disclose in an affidavit details about his assets after suspecting corruption during the recruitment of staff in different schools by the SSC in recent years. Against this order, an appeal had been filed before a Division Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta seeking a stay. Although the Division Bench had declined to issue a stay on the impugned order and had directed Sinha to file the required affidavit, it had underscored that such an affidavit of assets should be filed before the Court in a sealed cover and should not be divulged or circulated to the litigating parties or their counsels. Recording serious displeasure against such an order by the Division Bench, Justice Gangopadhyay observed, "I do not know what this court will do with a sealed cover in this proceeding when the hand of this appeal court has been tied by the above observation. I have been prevented from taking any consequential step on going through the said affidavit of assets."
Case Title: Rajesh K.V. @ Rajesh Kaleerakath Venugopal v. Visva-Bharati & Ors
Case Citation: 2022 LiveLaw (Cal) 100
The Calcutta High Court set aside a showcase notice and the subsequent suspension of a Visva Bharati University assistant professor after observing that the Registrar (Acting) did not have the power to initiate disciplinary action against the professor. The Visva Bharati authorities had on February 24, 2021, showcaused Rajesh Kaleerakath Venugopal, assistant professor of Rabindra dance and drama at the varsity's Sangeet Bhavana, asking him to clarify why action would not be taken against him for negligence in duty and misconduct. Justice Moushumi Bhattacharya directed, "This Court is of the view that since the Registrar (Acting) did not have the power to initiate disciplinary action against the petitioner, who is an Adhyapaka of the University, the defect of jurisdiction goes to the root of the matter and nullifies all subsequent steps taken thereafter. The Charge-sheet and the order of suspension are hence without authority and should be quashed on that basis. In other words, to quote the legal maxim sublato fundamento cadit opus, if the foundation of the action is removed, the superstructure must fall".
Case Title: Sabitri Bhunya v. The State of West Bengal and Others
Case Citation: 2022 LiveLaw (Cal) 101
The Calcutta High Court ordered that every order of acquittal must be forwarded to the District Magistrate and the District Legal Services Authority (DLSA) for due intimation to the victim as per Section 2(wa) of the CrPC. The Court further directed that in every order of acquittal, the concerned trial court at the foot of the judgment must endorse the right of the victim to prefer an appeal as per the proviso to Section 372 CrPC and if necessary, to avail free legal assistance through the legal services authorities concerned to prefer such an appeal. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi directed, "(a) Copy of the judgment of acquittal be forwarded to the District Magistrate and DLSA concerned for due intimation to the victim as defined under section 2(wa) of the Code of Criminal Procedure. (b) In every copy of the judgment which ends in acquittal, the trial court shall at the foot of the judgment endorse the right of the victim to prefer an appeal under proviso to Section 372 of the Code of Criminal Procedure and if necessary, to avail free legal assistance through the legal services authorities concerned to prefer and prosecute such appeal (c) Necessary steps be taken to amend the Criminal Rules and Orders and incorporate such requirement in the aforesaid Rules."
Case Title: Central Bureau of Investigation v. Biman Kumar Saha & Anr
Case Citation: 2022 LiveLaw (Cal) 102
The Calcutta High Court has recently refused to grant relief under Section 5 of the Limitation Act to the Central Bureau of Investigation (CBI) for condonation of delay of about 302 days in filing an appeal. Justice Bibek Chaudhuri remarked that the government agency is not a privileged litigant and no explanation is forthcoming as to why the heads of various offices of CBI took such an unusual time to release the record of the case for the purpose of filing the appeal. "..the Government or a Government agency is not a privileged litigant. The Government agency is required to explain the delay in the same manner like that of an ordinary litigant to get the relief of condonation of delay under Section 5 of the Limitation Act", the Court underscored. Further opining that it has not been explained why the CBI took such an unusual time to file the appeal after the expiry of almost 302 days of limitation, the Court observed, "The petitioner has stated in the said paragraph different dates when the file was sent to different offices of CBI. It has not been stated why the office of various heads of office of CBI took unusual time to release the record and finally allowed the appeal to be filed after expiry of 302 days of Limitation."
103. Calcutta High Court Stays Single Judge Order For CBI Probe In SSC 'Group D' Recruitment Scam
Case Title: Dr. Santi Prasad Sinha v. Laxmi Tunga & ors
Case Citation: 2022 LiveLaw (Cal) 103
The Calcutta High Court stayed a Single Judge's order directing the Central Bureau of Investigation (CBI) to conduct a probe into the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the West Bengal Board of Secondary Education (WBBSE) on the purported recommendation by the West Bengal School Service Commission (WBSSC). A Division Bench comprising Justice Soumen Sen and Justice Ajoy Kumar Mukherjee was informed by the concerned counsels that an inquiry Committee headed by Justice Ranjit Kumar Bagh, former judge of the High Court is looking into the issue of illegal appointments of group-D employees and that the Committee has directed Sinha to appear before it on April 5. Opining that there is a likelihood of conflicting findings if two parallel proceedings are allowed to proceed simultaneously, the Court directed the CBI to not register any FIR against Sinha or interrogate him any further until the next date of hearing that is slated to take place on April 4. "..if these two parallel proceedings are allowed to run simultaneously there is likelihood of conflict of findings and also having regard to the fact that the original documents relating to such alleged illegal appointments are presently lying in the custody of the learned Registrar General of this court in terms of the order passed by the Regular Bench, the Central Bureau of Investigation shall not register any first information report against the present appellant nor they will put appellant for further interrogation, if any, till Monday next, that is, April 4, 2022", the Court observed.
Case Title: Irina Mullick v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 104
The Calcutta High Court directed the State Bank of India (SBI) to process the loan application of a third-year law student who had applied for an education loan under the 'West Bengal Student Credit Card Scheme' notified by the State government on June 30, 2021. The West Bengal Student Credit Card Scheme was framed by the State Higher Education Department for providing Credit Cards to students for pursuing higher education. Justice Moushumi Bhattacharya was adjudicating upon a plea moved by Irina Mullick, a third year law student whose loan application of Rs 2,50,000 was rejected by the SBI because of the low CIBIL score of her father. CIBIL is a measure of the credit- worthiness of an applicant. Opining that the State government should ensure that no student in need of money is compelled to sacrifice his or her education, the Court underscored, "The State Government is thus requested to ensure that no student who is in need of money, is forced to sacrifice his/her education or future career aspirations for want of timely financial intervention." Directing the petitioner to make a fresh loan application under the State government scheme, the Court ordered SBI to process such an application within 2 weeks thereafter.
Case Title: Purnima Kandu & Anr v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 105
The Calcutta High Court transferred to the Central Bureau of Investigation (CBI) the investigation into the death of former Congress councillor of Jhalda Municipality in Purulia, Tapan Kandu who was reportedly shot dead by miscreants on March 13. Justice Rajasekhar Mantha was adjudicating upon a plea moved by the widow of the deceased Councillor seeking a CBI probe on the ground that no progress in the investigation has been made by the State investigating authorities. Expressing deep concern, the Court also noted that the Inspector-In-Charge of the Jhalda Police station, Sanjib Ghosh who is set to have facilitated the crime has not yet been taken into custody. The Court observed that it is 'surprising' that the mobile phone of Ghosh has not yet been seized and that vital data may have been lost by now. Accordingly, while ordering a CBI probe, the Court underscored, "..there is need for instilling faith of the public at large in any investigation, relating to the crime of this nature. The public at large, need to see that the Rule of Law is still prevalent, given the gravity and politically sensitive nature of the crime. Justice must be seen to be done. Satisfaction of the de facto complainant, petitioners' family members and persons associated with them also needs to be addressed."
Case Title: Laxmi Tunga & Ors v. The State of West Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 106
Justice Abhijit Gangopadhyay of the Calcutta High Court ordered the Deputy Commissioner of Police (Central) and the Commissioner of Police of Bidhan Nagar Police Commissionerate to ensure the presence of 4 members of the High Powered Committee which had been constituted by the State to oversee the recruitment of close to 13,000 non-teaching staff in government-aided schools in the office of the Central Bureau of Investigation (CBI) by 4 pm on Monday. The direction was issued while adjudicating upon a batch of petitions pertaining to the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the West Bengal Board of Secondary Education (WBBSE) on the purported recommendation by the West Bengal School Service Commission (WBSSC). Directing the police authorities to ensure the presence of 4 members of the High Powered Committee before the CBI, the Court ordered, "..I find that Sri S. Acharya and Sri P. K. Bandyopadhyay are working in Shilpa Sadan, 6th floor, 4, Abanindranath Tagore Sarani, Kolkata-700016 and as Sri A. K. Sarkar is residing in Falguni Abasan, Block-FB, Sector-III, Salt Lake and Sri T. Panja is working now as the Senior Law Officer in School Education Department, Government of West Bengal, Bikash Bhawan, 5th Floor, I direct the Deputy Commissioner of Police (Central) Kolkata Police to ensure the presence of Mr. S. Acharya and Mr. P. K. Bandyopadhyay before CBI by 3 p.m. today and I direct the Commissioner of Bidhan Nagar Police Commissionerate to take steps for ensuring the presence of Sri A. K. Sarkar and Sri T. Panja who are residing and working, respectively in Salt Lake, which is under the Commissioner of Police, Bidhan Nagar Commissionerate. Their presence are also to be ensured by the Commissioner of Police of Bidhan Nagar Commissionerate by 4 p.m. today."
Case Title: Dr Santi Prasad Sinha v. Laxmi Tunga and ors.
Case Citation: 2022 LiveLaw (Cal) 107
The Calcutta High Court allowed the CBI to interrogate S.P. Sinha, former chairman of the School Service Commission's advisory committee, and former education secretary Alok Sarkar pertaining to the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in State aided schools but barred the agency from taking them into custody. A Division Bench comprising Justice Subrata Talukdar and Justice Krishna Rao was adjudicating upon an appeal moved against a Single Judge order which had allowed the CBI to conduct custodial interrogation of the aforementioned members of the State appointed recruitment panel if the need arises. Four other division benches of the court had refused to hear cases related to the recruitment scam before the matter came up before Justice Talukdar's bench. Partially modifying the impugned order, the Division Bench observed, "This Court is of the view that the order of the Hon'ble Single Bench requires to be modified at this stage only to the extent that the appellant shall present himself for interrogation as directed and the CBI would act in terms of the order of the Hon'ble Single Bench without however taking recourse to custodial interrogation of the appellant." The Court further clarified, "Needless to dilate this order will axiomatically cover, if and as applicable, other identically circumstanced persons as the appellant." The Court further underscored that in the event the appellant fails to present himself for interrogation before the CBI as directed by the Single Judge Bench, the CBI shall be entitled to take recourse to steps in accordance with law.
Case Title: Rajib Chakraborty and Ors v. The State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 108
The Calcutta High Court ordered that private unaided schools whose names had come up with regard to allegations of arbitrary fee hike during the pandemic could not deny promotion to any student or withhold report cards for non-payment of fees. The Court further directed two joint special officers designated by the Court to look into any complaint of arbitrary increase in school fees during the pandemic and take a decision in the matter with regard to fee actually payable by those guardians/ students. A Bench comprising Justice IP Mukherji and Justice Moushumi Bhattacharya was adjudicating upon a bunch of PILs filed by aggrieved parents seeking a partial remission of school fees for the session 2021-2022 due to the ongoing pandemic owing to which students are attending schools only through virtual mediums. The Bench vide its order dated October 13, 2020, had slashed the fees charged by private schools in the State by 20% due to the ongoing pandemic. Restricting schools from withholding promotion or report cards on account of non-payment of fees, the Court directed on Wednesday, "None of the 145 schools/teaching institutions shall deny promotion to any student to the next session or withhold their report card till further orders. All students shall be allowed to join the higher class in the new session and shall be provided the normal educational facilities"
Case Title: Anindita Bera v. The State of West Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 109
The Calcutta High Court ordered for a Central Bureau of Investigation (CBI) probe in another matter pertaining to the alleged illegal appointment of assistant teachers in State run schools in West Bengal. The Court was adjudicating upon a batch of pleas alleging illegal appointment of assistant teachers for Class 9 and Class 10 in State run schools pertaining to the West Bengal State Level Selection Test (SLST) on the purported recommendation by the West Bengal School Service Commission (WBSSC). Justice Abhijit Gangopadhyay directed the Regional Head of CBI to start investigation in the matter after registering a case in course of the day itself. "Therefore, this matter is also required to be investigated by CBI by registering a new case in this matter as it relates to appointment of Assistant Teachers in classes IX and X", the Court directed. Opining that he is 'extremely surprised' by the revelation and the dishonest statement of Sinha, the Court remarked, "This notice shows, by which I am extremely and extremely surprised, that there were at least two or more than two meetings of the said committee. Whereas before this court Dr. Santi Prasad Sinha, the advisor of the Commission and convenor of the five member committee in other matters having similar allegations of corruption, here in the appointment in the posts of assistant teachers by the School Service Commission said time and again that there was no meeting of the said 5 member committee. The other members of the committee have also given their reply to similar questions before CBI".Therefore, the CBI was ordered to investigate the matter and also interrogate Sinha specially and other members of the committee again.
110. Birbhum Massacre| Calcutta High Court Orders CBI To Probe Into Murder Of TMC Leader Bhadu Sheikh
Case Title: The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum
Case Citation: 2022 LiveLaw (Cal) 110
The Calcutta High Court ordered the Central Bureau of Investigation (CBI) to investigate the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh that was followed by arson in Bogtui village, Rampurhat, Birbhum, that killed eight people, including two children. The Court had earlier transferred to the CBI the investigation into the incident of violence in Birbhum district of West Bengal that had allegedly taken place in retaliation to the murder of Sheikh. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Thursday had taken on record the preliminary report submitted by the CBI as per the Court's earlier directions. Pursuant to the perusal of the report, the Court observed that the report prima facie suggests that the brutal incident of burning and killing at Bogtui village is the direct fall out of the murder of Bhadu Sheikh at 8.30 P.M. on the same day. It was further noted that the CBI report suggests that the incident is the outcome political rivalry amongst members of two groups in the village and that the burning of houses resulting in the death of 8 persons was a retaliatory plan. Ordering a CBI probe into the murder, the Court underscored, "The object of issuing the necessary direction in the suo motu petition is to ensure appropriate action against the person responsible for the incident. On the basis of the material which is available before us, we are of the opinion that the said object can be more appropriately achieved if the incident of murder of Bhadu Sk is also investigated by the CBI along with the incident of burning of houses and murder of villagers of Bogtui which took place shortly thereafter. The second incident prima facie seems to be the fall out of first incident".
Case Title: Dr. Kunal Saha v. The State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 111
The Calcutta High Court while exercising its power under Order 7 Rule 11 of CPC allowed an application for rejection of a plaint seeking compensation of Rs 100 crore against the State of West Bengal on account of vicarious liability for an alleged act of defamation committed by a High Court Judge. Justice Shekhar B. Saraf observed that the plaint lacks any cause of action as there exists no vicarious liability on the State for the judicial actions of the Judge. "The misplaced notion of the plaintiff that the State is liable and is required to take action against orders passed by the High Court is absolutely unfounded and finds no place in the law. Secondly, it has to be noted that there is no master-servant relationship between the State and a High Court Judge, and accordingly, there is no question of any vicarious liability on the State for the judicial actions of the Judge", the Court observed. The Court further opined that the plaint fails to indicate any law that creates an obligation on the State to take action against a Judge for an order passed by the Judge in his judicial capacity. It was further noted that the Judge's Protection Act, 1985 clearly provides protection to the concerned Judge and that the State is required to obey and comply with the orders of the Court.
Case Title: Monirul Molla v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 112
In a significant ruling, the Calcutta High Court issued a directive to trial courts in West Bengal stipulating that a sentence of life imprisonment till death, without any scope of remission, can only be passed in rape cases. A Bench comprising Justice Joymalya Bagchi and Justice Bivas Pattanayak observed that such a sentence of life imprisonment till one's death can only be imposed by the higher judiciary that is the Supreme Court or the High Court when commuting death sentences. Relying on Supreme Court decisions in Union of India v. V Sriharan Alias Murugan and Others and Gauri Shankar v. State of Punjab, the Court issued the following directions to all trial Court judges in the State, "Except in cases where the law provides for a sentence of imprisonment for life which shall mean imprisonment for the remainder of the person's natural life (e.g., sections 376A, 376AB, 376D, 376DA, 376DB and 376E of I.P.C.), trial Courts while imposing a sentence of life imprisonment as provided under section 53 of I.P.C. shall not qualify the said sentence by directing that the sentence shall continue till the death of the convict or without remission as prescribed in law.".
Case Title: APL Metals Ltd. v. Mountview Tracom LLP & Ors
Case Citation: 2022 LiveLaw (Cal) 113
The Calcutta High Court has observed that S.37 of the Arbitration & Conciliation Act (Arbitration Act) and S.13 of the Commercial Courts act exclude the applicability of Clause 15 of Letters Patent. The Division Bench of Justice I.P. Mukerji and Justice Aniruddha Roy relied on the decision of the Apex Court in Union of India v. Simplex Infrastructures, (2017) 14 SCC 225, to hold that the Arbitration Act is a self-contained code and no appeal lies against an order which does not fall within the four corners of S. 37 of the Arbitration Act. The Court held that an order passed under Sections 36(2) and (3) of the Arbitration Act is not an order contemplated under Section 37 of the Arbitration Act r/w S. 13 of the Commercial Courts Act. The Court also held that an order which is not appealable under S. 37 of the Arbitration Act, is also not appealable under S. 13 of the Commercial Courts Act and that S. 13 expressly excludes the applicability of Clause 15 of Letters Patent to orders which are not appealable under S. 13, therefore, there is an express exclusion against the exercise of power under the provisions of Letters Patent to hear appeals against an order not appealable under S. 37 of the Arbitration Act.
Case Title: Sona Karar & anr v. The Howrah Municipal Corporation & ors.
Case Citation: 2022 LiveLaw (Cal) 114
The Calcutta High Court has recently observed that unless an order of demolition specifically indicates the nature of the deviation and the extent of unauthorised construction which is to be demolished, such an order cannot be implemented. Justice Shampa Sarkar observed, "In the opinion of the Court unless the order of demolition specifically indicates the nature of the deviation and the extent of unauthorised construction which is to be demolished, such order cannot be implemented. The order is also unreasoned and arbitrary." Pursuant to the perusal of the rival submissions, the Court opined that the order of demolition does not point out the details of the deviation from the sanction plan. "..this Court is of the opinion that the order does not point out the nature, extent and details of the deviation from the sanction plan. There are no allegations of extension of floors, during the pendency of the revised plan", the Court observed.
Case Title: Sumitra Bhattacharyya v. State of West Bengal and other connected matters
Case Citation: 2022 LiveLaw (Cal) 115
The Calcutta High Court asked IPS officer Damayanti Sen to oversee the probe in Deganga, Matia, Ingrejbazar and Banshdroni rape cases. A division bench comprising Chief Justice Prakash Srivastava and Justice Rajarshi Bharadwaj observed that considering the nature of the incidents and the allegations made, a responsible senior lady police officer should be appointed to supervise the investigation. The Court's remarks are believed to have been made in the wake of an investigation into the Park Street rape case a decade ago. "..considering the material pointed out to us, we direct that the investigation of the incidents at village Nehalpur, Nandipara, incident on Dol Purnima noted above as also the incident of rape at English Bazar will be done under the supervision of Smt. Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police. If Smt. Sen has any difficulty in supervising the investigation, she will be at liberty to indicate the same to this court on the next date of hearing", the Court directed. On the last date of hearing, the Court had granted leave to the petitioners to suggest the name of a high ranking police officer under whose supervision, the investigation can be carried out.
Case Title: Shaista Afreen and Others v. The State of West Bengal and Others
Case Citation: 2022 LiveLaw (Cal) 116
The Calcutta High Court ordered a CBI investigation into the Hanshkhali gangrape and murder case. According to reports, a 14-year-old girl belonging to the scheduled caste community died on April 5 after she was allegedly gangraped by the son of a panchayat member owing allegiance to the Trinamool Congress (TMC) and others in West Bengal's Nadia district. She was bleeding profusely when she returned home and died later that night, according to her parents who lodged a police complaint on April 10. Opining that a fair investigation is required to instil confidence in the family members of the victim and also the residents of the locality and the State, the Court underscored, "..we are of the opinion that in order to have fair investigation in the matter and to instill confidence in the family members of the victim and also the residents of the locality and the State, the investigation should be carried out by the CBI instead of the local police. Hence, we direct the State Investigating Agency to hand over the investigation to the CBI with immediate effect. The State Investigating Agency will hand over all the papers relating to the investigation along with the custody of the accused persons to the CBI forthwith."
Case Title: Purnima Kandu & Anr v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 117
The Calcutta High Court ordered a CBI investigation into the unnatural death of Niranjan Baishnab, who was believed to be an eyewitness to the murder of Congress councillor Tapan Kandu in the Purulia district. The Court had earlier directed the CBI to probe into the the death of former Congress councillor of Jhalda Municipality in Purulia, Tapan Kandu who was reportedly shot dead by miscreants on March 13. Some motorcycle-borne persons had reportedly shot Tapan dead when he had gone for a walk near his residence. Justice Rajasekhar Mantha ordered that the case papers in the matter to be handed to the central agency, which is already probing the councillor's killing pursuant to the Court's earlier orders. "This Court as of now cannot find any fault with the investigation conducted by the State police. However, given the fact that the deceased Niranjan Baishnab, was an eye witness to a murder which has already been transferred to and investigated into by the CBI, in the fitness of things and for the purpose of comprehensive investigation, this Court is of the view that the investigation into the death of Niranjan Baishnab being, F.I.R. No.50 of 2022 dated 7th April, 2022, of Jhalda Police Station must also be transferred to the C.B.I. for the purpose of further investigation", the Court ordered.
Case Title: Dr. Santi Prasad Sinha v. Laxmi Tunga and Ors
Case Citation: 2022 LiveLaw (Cal) 118
In a temporary relief to senior West Bengal minister Partha Chatterjee, a Division bench of the Calcutta High Court extended a stay for five weeks on an earlier order that directed him to appear before the CBI in connection with a petition alleging irregularities in appointment of assistant teachers in state government-aided schools. In the impugned order, Justice Abhijit Gangopadhyay had directed the then Education Minister Partha Chatterjee to appear before the CBI for interrogation by Tuesday evening. He had further granted liberty to the CBI to interrogate Chatterjee by taking him into custody if the CBI thinks that Chatterjee is not co-opertaing with the CBI. On Wednesday, a Division Bench comprising Justice Subrata Talukder and Justice A K Mukherjee extended a stay on the impugned order for a period of 5 weeks. "Since the Committee has been now requested to complete the enquiry into the Group-C appointments and submit its Report within four weeks, the Order of stay as granted by this Court on the 12th of April, 2022 shall continue for a period of five weeks from this date", the Court ordered.
Case Title: Ramesh Co. v. Imperial Tubes Pvt. Ltd
Case Citation: 2022 LiveLaw (Cal) 119
The Calcutta High Court has recently held that the grant of leave for dispensation of the mandatory requirement of pre-institution mediation as prescribed under section 12-A of the Commercial Courts Act, 2015 would constitute a judicial act. Section 12-A of the Commercial Courts Act provides that a suit which does not contemplate any urgent interim relief, shall not be instituted unless the plaintiff exhausts the remedy of pre- institution mediation under the prescribed rules. Justice Moushumi Bhattacharya was adjudicating upon an application for the recalling of two orders passed by the Master under the Original Side Rules of the High Court granting leave to the plaintiff under section 12-A of the Commercial Courts Act. "It must be recognized that the practice adopted and continued is that of a Single Judge sitting in the Commercial Division passing a judicial order for grant of leave for dispensing with the statutory requirement of exhausting the remedy provided under section 12A of the Act. This practice is being followed from the time the courts familiarized themselves with the new regime under the Commercial Courts Act. Granting leave under section 12-A has now been accepted as judicial business within the exclusive domain of the Court / Commercial Division", the Court underscored
Case Title: Suvendu Adhikari v. Hon'ble Speaker, WB Legislative Assembly and Ors and other connected matters
Case Citation: 2022 LiveLaw (Cal) 120
The Calcutta High Court set aside West Bengal Assembly Speaker Biman Banerjee's order dismissing a petition by Leader of Opposition Suvendu Adhikari which sought disqualification of TMC lawmaker Mukul Roy as a member of the House on the ground of defection and restored the matter for fresh consideration. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj set aside the impugned order after coming to the conclusion that it is perverse. "..the impugned order of the Speaker is clearly a perverse order and perversity being one of the grounds of judicial review available against such an order, this Court finds that the order impugned cannot be sustained", the Court ordered. The Court noted that the Speaker had refused to admit electronic evidence by stating that it was not accompanied by certificate in terms of Section 65-B of the Evidence Act. The Court underscored that it is necessary for the Speaker to duly take into account the certificate given by the petitioner under Section 65-B of the Act before rejecting the electronic evidence as inadmissible which he has failed to do in the present case.
Case Title: Rohit Pal v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 121
The Calcutta High Court has recently held that it is immaterial whether the breasts of a 13 year old girl are developed or not for the commission of the offence of sexual assault under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) as long as it is proved that the accused had touched the specific part of the body of the girl with sexual intent. During the proceedings, it was alleged on behalf of the appellant that since the the concerned Medical Officer had deposed that the breasts of the victim girl was not developed, the question of touching breasts by the accused did not arise at all. Dismissing such a contention, Justice Bibek Chaudhuri observed, "In the instant case, the victim girl stated in clear term before the Learned Magistrate as well as during trial that the accused touched her breasts and kissed her. It is absolutely immaterial whether breasts of a 13 years old girl were developed or not. The specific part of the body of a girl of 13 years of age shall be held and term as breast for the purpose of Section 7 of the POCSO Act even if her breasts are not developed due to certain medical grounds".
Case Title: Azizur Rahaman v. The State of West Bengal & ors
Case Citation: 2022 LiveLaw (Cal) 122
The Calcutta High Court has observed that policy decisions of the State are not to be disturbed unless they are found to be grossly arbitrary or irrational. While examining the scope of judicial review of an administrative action, Justice Shampa Sarkar observed, "The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or is manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review."
Case Title: Sambhu Das v. The State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 123
The Calcutta High Court has recently set aside the conviction for the offence of rape under Section 376 of the IPC after observing that since no marks of injury had been found on the body or private parts of the victim, the allegation of 'forcible rape' is not sustainable. Justice Bibek Chaudhuri noted that the victim had been examined by the concerned Medical officer after 12 days of the occurrence of the incident. Noting that no marks of violence had been found on the body of the victim, the Court remarked, "The prosecutrix was examined by the Medical Officer after 12 days of occurrence. She did not find any marks of violence in her private part or any portion of her body. Had it been a case of forcible rape where the prosecutrix tried her best to resist the accused, there is every possibility of having some kind of injury on different parts of her body. The medical officer did not find any injury in any part of the body of the prosecutrix.". Opining further that it would be 'highly risky' to sustain the conviction of the accused in the absence of medical evidence, the Court underscored, "..the evidence of the prosecutrix is not supported by the medical evidence and in such a case it would be highly risky to sustain conviction of the accused. For the reasons stated above, this Court is of the view that the accused is entitled to get benefit of doubt."
Case Title: M/s. Satyen Construction v. State of West Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 124
The Calcutta High Court has ruled that the scope of Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) cannot be extended to enforcement of the arbitral award or granting the fruits of the award to the award holder as an interim measure. The Single Bench of Justice Ravi Krishan Kapur held that the right to withdraw the amount deposited by the award debtor, pursuant to an application filed for stay of operation of the award under Section 36(2), does not constitute as an interim protection under Section 9 of the A&C Act since it transgresses into the domain of enforcement of the award. The Court held that the scope of Section 9 of the A&C Act cannot be extended to enforcement of the arbitral award or granting the fruits of the award to the award holder as an interim measure. The Court ruled that the relief sought by the petitioner of withdrawal of the amount deposited by the respondent/ award debtor went beyond the scope of Section 9. The Court added that even under Section 9(ii)(e) of the A&C Act, where the court is guided by purely equitable considerations, the Court cannot permit withdrawal of the amount deposited by the award debtor. "Accordingly, even after the amended Section 36 of the Act, the right to withdraw the deposited amount by the judgment debtor cannot be stretched as an interim protection under Section 9 of the Act. The order sought for in this petition transgresses beyond the pale of protection in aid of enforcement into the exclusive domain of enforcement of an award. Thus, the prayer sought for cannot be granted in an application under Section 9 of the Act", the Court ordered.
Case Title: Dr. Papiya Mukherjee versus Aruna Banerjea and Anr
Case Citation: 2022 LiveLaw (Cal) 125
The Calcutta High Court has ruled that an arbitration agreement will not be discharged by the death of a party and it will be enforceable by or against the legal representatives of the deceased party. The Single Bench of Chief Justice Prakash Shrivastava held that though the legal representatives were not signatories to the arbitration agreement, but being the legal representatives of the signatory to an arbitration agreement, they were bound by the agreement. The Court noted that the respondents were the legal heirs / successors of the deceased co-partner. The Court held that Section 40 of the A&C Act clearly provides that an arbitration agreement will not be discharged by the death of a party and it will be enforceable by or against the legal representatives of the deceased party. The High Court ruled that though the respondents were not signatories to the arbitration agreement executed between the applicant and the deceased co-partner, but being the legal representatives of the co-partner, they were bound by the arbitration agreement. The Court thus held that an arbitration agreement in the form of partnership deed existed and after the death of the co-partner, who was a signatory to the agreement, the respondents being his legal representatives were bound by the agreement to the extent provided by law.
Case Title: Debaki Nandan Maiti v. The State of West Bengal and Ors.
Case Citation: 2022 LiveLaw (Cal) 126
The Calcutta High Court has recently upheld an eviction order wherein the daughter-in-law was directed to vacate the residence belonging to her father-in-law after noting that she is a medical practitioner and is thus not in a poor financial condition. Justice Rajasekhar Mantha observed, "The applicant, Swati Das, is admittedly a medical practitioner. She is neither destitute nor in a poor economic or financial condition, and there is no averment to that effect in the application. Apart from the questions of law raised by the applicant daughter-in-law, she has not able to make out any case for restoration with possession of her father-in-law's house." The Court noted that the applicant had never claimed any right of residence or share of the household against the father-in-law or her husband under the provisions of the the Domestic Violence Act, 2005. It was also noted that the applicant had not asserted any domestic violence or torture perpetrated by either her father-in-law or her husband. Thus, the Court opined that it can exercise its extraordinary jurisdiction of this court under Article 226 of the Constitution of India to protect the life and liberty of the senior citizen under Article 21 of the Constitution. "In respect of a discomfort expressed by a senior citizen towards his children, a single complaint is good enough evidence. Further, there are no disputed questions of fact in the instant case i.e., that the house admittedly belongs to the father of the writ petitioner", the Court underscored further.
Case Title: Anindya Sundar Das v. West Bengal Taxation Tribunal Bar Association and Others
Case Citation: 2022 LiveLaw (Cal) 127
The Calcutta High Court set aside an order whereby the tenure of the existing Technical Member of the West Bengal Taxation Tribunal has been extended until formal appointment of Technical Member by the Government. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed, "..the impugned order passed by the learned Single Judge is set aside, however by making it clear that if a fresh prayer for stay is made before the learned Single Judge, then the same will be duly considered in accordance with law and appropriate order will be passed taking into account the aforesaid relevant aspects of the matter." The Court however clarified that since the Administrative Member of the Tribunal has continued by virtue of the impugned interim order, therefore, the orders passed by him in the meanwhile are saved from challenge on the ground of his continuance as such. The Bench noted that no facts or legal provisions had been referred to in the impugned order passed by Justice Rajasekhar Mantha and was thus liable to be set aside.
128. Time To Re-Look At S.27 Of Indian Contract Act To Protect 'Trade Secrets': Calcutta High Court
Case Title: Dr. Sudipta Banerjee v. L.S. Davar & Company & Ors
Case Citation: 2022 LiveLaw (Cal) 128
The Calcutta High Court has recently upheld an injunction order passed against former employees of a law firm restraining them from divulging confidential information and trade secrets gathered during the course of their employment. The Court further opined that sharing of such information and communication would not only be unethical but would also constitute a breach of the confidentiality clause in the service contract causing serious prejudice to the law firm. A Bench comprising Justice Soumen Sen and Justice Ajoy Kumar Mukherjee observed, "The plaintiff as a professional body may not have any trade secrets per se but the persons who were/are in employment of the plaintiff would certainly be privy to privileged information and any sharing of such information and communication would not only be unethical but also a breach of the confidentiality clause which may result in serious prejudice and harm that may be caused to the clients of the plaintiff firm and may expose the plaintiff firm to civil and criminal consequences." Opining that a balance needs to be maintained between the right to freedom of trade and protection of trade secrets, the Court remarked, "The time has possibly come to have a re-look at Section 27 of the Indian Contract Act since times have changed and there is a necessity to impose some restrictions and recognize negative covenants in service contracts especially where it involves specialized knowledge as it must live up to the present needs. While freedom of contract and trade need to be upheld, they must also be balanced. No one should be allowed to take advantage of the trade secrets and confidential information developed by an individual and uses it for their own gain and when confronted, take the shelter of this section. Confidential information and trade secrets are required to be protected by law."
Case Title: Rajib Chakraborty and Ors v. The State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 129
The Calcutta High Court reiterated that private unaided schools whose names had come up with regards to allegations of arbitrary fee hike during the pandemic cannot deny promotion to any student or withhold report cards for non-payment of fees. The Court further instructed such schools to put up the Court's earlier interim orders stipulating such a direction in a suitable place in their notice boards for the appreciation by all concerned. A Bench comprising Justice IP Mukherji and Justice Moushumi Bhattacharya was adjudicating upon a bunch of PILs alleging that schools in particular G.D Birla Centre For Education have prevented students who have failed to clear their outstanding dues from attending classes or being promoted. Directing G.D Birla Centre for Education to immediately withdraw the impugned notice, the Court observed, "G.D. Birla Centre for Education will immediately withdraw its notice dated 9th April, 2022 and allow the students to attend classes in the usual course immediately. All other schools will also follow the directions in this order."
Case Title: In the matter of : Ms. Minakhi Mukherjee & Ors.
Case Citation: 2022 LiveLaw (Cal) 130
The Calcutta High Court granted anticipatory bail to prominent youth leader and president of West Bengal Demorcatic Youth Federation of India (DYFI) Meenakshi Mukherjee in a case pertaining to the incident of alleged violence during a march in Howrah on February 26 to protest the murder of youth leader Anis Khan. Meenakshi and 16 others were arrested and slapped with attempt to murder charges for allegedly inciting violence during the protest to condemn student activist Anis Khan's murder. Khan was found dead at his home in Amta block in Howrah district in the early hours of February 19, 2022. Alleging that four persons had come to their house on Friday night donning police and civic volunteer uniforms, Khan's father has claimed that his son was pushed off the third floor of their house in Amta. A Bench comprising Justice Debangsu Basak and Justice Bibhas Ranjan De ordered, "Considering the nature of injuries suffered and considering the gravity of the offence and the involvement of the petitioners therein, we are inclined to grant anticipatory bail to the petitioners."
Case Title: Prafulla Mura v. The State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 131
The Calcutta High Court issued practice directions in order to ensure that the identity of victims of sexual offences including minor victims under the POCSO Act are not disclosed in the pleadings and other records of the Court. The directions were issued while adjudicating upon an appeal filed challenging an order of conviction under Section 6 of the POCSO Act wherein the appellant had arrayed the minor victim as a respondent describing her by name and also disclosing her father's name. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi observed that such a disclosure in the petition of appeal runs contrary to the provisions of Section 33(7) of the POCSO Act as well as Section 228A of the IPC. Opining that necessary amendments are required to be made to the rules of this Court to avoid such disclosure of identity of victims, the Court underscored, "In order to avoid illegal publication of identity and other particulars of victim of offences under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E of the Indian Penal Code as well as minor victims in the pleadings and/or documents filed before this Court, necessary amendments are required to be made to the rules of this Court." Thus, the Court also ordered the Registrar General to place the matter before the Rule Committee of the Court for considering the issue of amendments of the rules of the Court so that the identity of victims of sexual offences including minor victims under POCSO Act are not disclosed in the pleadings and other records of the Court.
132. Hanskhali Gangrape & Murder: Calcutta HC Issues Orders For Witness Protection At State Expense
Case Title: Shaista Afreen and Others v. The State of West Bengal and Others
Case Citation: 2022 LiveLaw (Cal) 132
The Calcutta High Court vide order dated April 20 has allowed for the filing of a witness protection application before the competent authority as specified under the Witness Protection Scheme, 2018 to protect the family members of the victim in the Hanskhali gangrape and murder case wherein a probe by the Central Bureau of Investigation (CBI) had been ordered into a week back. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj ordered, "Having regard to the nature of allegation which have been made in the application it is necessary to extend protection to the members of the family as also witnesses of the incident. Hence, we permit the filing of the witness protection application before the competent authority as specified in Witness Protection Scheme, 2018 and on receipt of such application the competent authority is directed to take a decision and pass appropriate order for witness protection, proportionate to the threat perception, in accordance with the Scheme, without any unnecessary delay." Opining that the State government should bear the expenses of the witness protection as may be directed by the competent authority, the Court ordered, "Considering the peculiar facts of the case we direct respondent State to bear the expenses of witness protection as may be directed by the competent authority."
Case Title: The State of West Bengal v. Union of India & Anr.
Case Citation: 2022 LiveLaw (Cal) 133
The Calcutta High Court has recently ordered the transfer of investigation into explosions in Birbhum district to the National Investigation Agency (NIA) from the Crime Investigation Department (CID) of State of West Bengal by holding that the central agency has precedence in the investigation of scheduled offence. A Bench comprising Justice Joymalya Bagchi and Justice Bivas Pattanayak vacated an earlier stay by a Single Judge on the NIA probe and directed the CID to cooperate with NIA and to transfer all documents related to its probe into the 2019 explosion in two residential houses in Birbhum if required. The Court ordered, "..we are inclined to vary the interim order passed earlier and direct subject to the result of the petition and without prejudice to rights and contentions of the parties, investigation of the aforesaid case be transferred and conducted by N.I.A. State Agency is directed to cooperate with N.I.A. in that regard and if required to transfer all documents pertaining to its investigation to the Central Agency in accordance with law." Opining that the powers of the Central agency are much wider than the State agency, the Court remarked, "Furthermore, investigation by Central Agency, whose powers are much wider than the State Agency, would be more effective and enure to the ends of justice. Hence, balance of convenience also lies in favour of variation/vacating of the interim direction."
Case Title: Manav Investment and Training Company Ltd v. DBS Bank India Ltd.
Case Citation: 2022 LiveLaw (Cal) 134
The Calcutta High Court has recently underscored that the Court should not be used to prevent a loan giver from exercising his rightful legal claim against the borrower. Justice Shekhar B. Saraf was adjudicating upon an interlocutory application seeking injunction against the respondent bank from giving any effect to letters dated 23rd February, 2022 vide which the bank had invoked the pledge and had expressed its intention as a pawnee to dispose of the security under Section 176 of the Indian Contract Act, 1872 (Act). The Court had earlier passed an order in favour of the petitioner by opining that the notices dated July 17, 2021 previously issued by the respondent bank did not adhere to the requirements laid down under Section 176 of the Act. The Court had averred that the notices did not provide the petitioner with a clear intent of sale as is required under Section 176 and had further held that the phrase 'right to sale mentioned in the notices was insufficient and did not convey an intention to sale. Opining that the petitioner cannot be allowed to nitpick on the notices being issued by the respondent bank, Justice Saraf underscored, "The undisputed fact in the present case is that the petitioners have failed to pay back the amounts due to the respondent bank and is now thwarting each and every step being taken by the bank to obtain its legitimate outstanding dues. In my view, the attempts being made by the petitioner by nitpicking on the notices being issued by the respondent bank is only a ploy to avoid the harsh reality that loans are required to be paid back. The resultant consequences of failure to pay will have to necessarily follow and this court should not be used, rather abused, to prevent the loan giver from exercising his rightful legal claims against the borrower. The balance of convenience and inconvenience is also in favour of the respondent bank, and accordingly, I do not find this to be a fit case to interfere in any manner whatsoever."
Case Title: Anindya Sundar Das v. Union of India and other connected matters
Case Citation: 2022 LiveLaw (Cal) 135
The Calcutta High Court directed the State government to expeditiously decide an application for compensation moved by the family members of deceased BJP worker Abhijit Sarkar who was allegedly killed by TMC members during the violence that had allegedly taken place post the declaration of the West Bengal assembly elections in May 2021. The Court vide order dated August 19, 2021 had handed over to the CBI the investigation of cases related to murder, rape and crime against women whereas a SIT had been constituted to investigate other criminal cases related to post-poll violence. The parents of Sarkar had moved a plea before the Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj seeking compensation from the State as per the Court's earlier directions. The counsel appearing for the petitioner apprised the Court that a representation dated March 11, 2022 had been made before the Chief Secretary, Government of West Bengal and the Secretary, Department of Home and Hill Affairs regarding payment of compensation. However, it was averred that no response has been received on such a representation. Accordingly, the Court directed the State government to take a decision on such an application seeking compensation as expeditiously as possible preferably within a period of 2 months.
Case Title: Priyanka Tibrewal v. State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 136
The Calcutta High Court constituted a three member committee to conduct an enquiry into the allegation that over 303 victims have been displaced due to the post-poll violence in West Bengal that had allegedly taken place post the declaration of the West Bengal assembly elections in May 2021. The Court vide order dated August 19, 2021 had handed over to the Central Bureau of Investigation (CBI) the investigation of cases related to murder, rape and crime against women whereas a Special Investigation Team (SIT) had been constituted to investigate other criminal cases related to post-poll violence. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition by petitioner Priyanka Tibrewal wherein it had been submitted that over 303 victims had been displaced due to the alleged violence and had been subsequently prevented from returning to their respective houses and workplaces. On Wednesday, pursuant to the rival submissions, the Court constituted a three member committee comprising of the following persons, (i) a member/ nominee of the National Human Rights Commission; (ii) a member/ nominee of State Human Rights Commission; and (iii) Member Secretary, State Legal Services Authority. The Court further directed the Committee to ensure that appropriate opportunity of hearing is given to the State government before it reaches to any conclusion. The Committee was further instructed to address the complaints of the alleged victims and conduct an enquiry into their right to return to their houses and workplaces.
137. Calcutta High Court Directs IPS Officer Damayanti Sen To Oversee Probe In Namkhana Rape Case Of WB
Case Title: Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters
Case Citation: 2022 LiveLaw (Cal) 137
The Calcutta High Court asked IPS officer Damayanti Sen to oversee the probe in the Namkhana rape case wherein a 40-year-old woman was reportedly gang-raped on April 8 by five men in West Bengal's Namkhana village and an attempt had also been made to pour kerosene inside the victim's private parts and set her ablaze. A Bench comprising Chief Justice Prakasha Shrivastava and Justice Rajarshi Bharadwaj on Friday took on record the status report as well as the case diary pertaining to the investigation into the rape case. Pursuant to the perusal of the case diary and also the status report, the Court directed, "Having examined the case diary and considering the report in the form of the affidavit and also taking note of the allegations made and progress of investigation, we deem it proper that investigation in this case be carried out under the supervision of Damyanti Sen, Special Commissioner of Police." The Court however observed that in case the IPS officer has any difficulty in supervising the investigation, she will be at liberty to intimate the same to the Court on the next date of hearing. The Court also directed the State government to submit a further status report on the next date of hearing which is slated to take place on May 2.
Case Title: Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters.
Case Citation: 2022 LiveLaw (Cal) 138
The Calcutta High Court directed IPS officer Parul Kush Jain to oversee the probe in the Pingla rape case wherein an alleged attempt to rape was made on a differently-abled woman by a local panchayat member said to have affiliation to the Trinamool Congress at Pingla in West Midnapore district on April 11. The IPS officer is currently posted as the Inspector General of Police (IGP) of the Traffic department of West Bengal. The direction was issued while adjudicating upon a Public Interest Litigation (PIL) petition seeking a CBI probe into 5 recent rape cases that are reported in various districts of West Bengal this month. Incidents of rape have been reported to have taken place at Netra and Namkhana villages in South 24 Parganas district, at Pingla in West Midnapore district, at a village near Santiniketan in Birbhum district and at Mainaguri of Jalpaiguri district in West Bengal in the last few weeks. A Bench comprising Chief Justice Prakasha Shrivastava and Justice Rajarshi Bharadwaj on Friday took on record the status report as well as the case diary pertaining to the investigation into the rape case. Pursuant to the perusal of the case diary and the status report, the Court observed that the considering the nature of allegations made, the investigation into the rape case should be supervised by a senior lady police officer. Furthermore, the Chief Justice during the proceedings also orally remarked, "We feel that a local influential person is involved" while underscoring the need for the investigation to be overseen by a senior IPS officer.
Case Title: Haren Bagchi Biswas alias Harendranath Biswas v. Union of India
Case Citation: 2022 LiveLaw (Cal) 139
The Calcutta High Court recently dismissed a Public Interest Litigation (PIL) plea seeking directions to print images of Netaji Subhash Chandra Bose on Indian currency notes. The plea had been moved by 94-year-old freedom fighter, one Haren Bagchi Biswas. The bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj took into account the decision of the Madras High Court in the case K.K. Ramesh v. Union of India and Ors., wherein, finding no fault in Central Government and RBI's decision to retain only the image of Mahatma Gandhi and of no other personality in the currency notes, the High Court recently had dismissed a plea challenging Centre's rejection of a representation for printing the image of Nethaji Subash Chandra Bose on currency notes. "This Court is not underestimating the fight and the sacrifice made by Nethaji Subash Chandra Bose and other great leaders for freedom moment of this Country. There are many known heroes and unsung heroes. If everybody starts making such a claim there will not be an end", a Bench comprising Justices N. Kirubakaran and M. Duraiswamy of the Madras High Court had observed. Having regard to the above, the Court came to an opinion that no case for issuing the direction as prayed for in the present case was made out. The writ petition was accordingly dismissed.
Case Title: Sukumar Ray v. M/s Indo-Industrial Services and Ors. A.P No. 70 of 2022
Case Citation: 2022 LiveLaw (Cal) 140
The High Court of Calcutta has held that a subsequent agreement entered into between the parties need not contain a separate arbitration clause if it is made only to extend the validity of the original agreement that contained an arbitration clause. The Single Bench of Justice Shekhar B. Saraf has held that if the new agreement provides for a specific reference to the terms of the earlier agreement and does not contain any clause other than the extension of the validity of the original agreement then there is no requirement to have an arbitration clause in the new agreement. The Court further held that the arbitration clause contained in the original agreement would not come to an end due to efflux of time merely because the subsequent agreement does not have an arbitration clause.
141. Calcutta High Court Imposes ₹25K Cost On Party For Seeking Repeated Adjournments
Case Title: Bengal State Table Tennis Association & Ors. v Malda District Table Tennis Association & Ors
Case Citation: 2022 LiveLaw (Cal) 141
The Calcutta High Court imposed costs to the tune of Rs 25,000 on a party for seeking repeated adjournments. A Bench of Justices Moushumi Bhattacharya and Kesang Doma Bhutia noted that the appellants had sought several adjournments. But despite the accommodating orders the Court had passed, they again sought an adjournment for the fourth time. "This is the fourth occasion when adjournment has been sought for by the appellants. We have passed several orders from 18.04.2022 to accommodate the appellants. At the time of third call today, adjournment is again sought for on behalf of the appellants. Since today is the last date of the Circuit bench, we are unable to keep the matter after recess owing to our respective Single Bench lists," the Court observed. Accordingly, the Bench imposed costs and ordered the appellants to pay Rs 25,000 to the District Legal Services Authorities, Jalpaiguri within a period of seven days.
Case Title: Soumendu Adhikari v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 142
The Calcutta High Court directed Central Forensic Science Laboratory (CFSL), New Delhi to conduct a forensic audit of the CCTV cameras that were used during the recently concluded Contai Municipality elections. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj while reading out the operative portion of the order on Tuesday observed that notwithstanding the constitutional bar under Article 243-ZG (b) of the Constitution of India, such a direction is required in the 'larger public interest' and to uphold democratic principles."..we are of the opinion that not only to ascertain the compliance of earlier orders of this Court but in the larger public interest and to uphold democratic principles, it is necessary to get forensic audit of CCTV footage of Contai Municipal Election done", the Court underscored. Accordingly, the Court directed the State Election Commission to send the CCTV footage of Contai Municipal Election for forensic audit to CFSL, Delhi within 10 days
Case Title: In the matter of: Parimal Barui
Case Citation: 2022 LiveLaw (Cal) 143
The Calcutta High Court came down heavily on an Investigating Officer while adjudicating upon an anticipatory bail application in connection with a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). A Bench comprising # expressed strong reservations over the conduct of the concerned Investigation Officer after being apprised that the officer had refused to examine the petitioner in response to a notice under Section 67 of the NDPS Act in the absence of the petitioner's identification proof. "An investigation is in progress. It is intriguing that the Investigating Officer requires the identification proof of the person appearing before him in response to a notice under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He is not aware of the person who is required to be interviewed thereunder in absence of his identification proof", the Court underscored. Further opining that the conduct of the Investigating Officer requires the attention of his superiors, the Court remarked, "The conduct of the Investigating Officer, requires attention of his superiors".
Case Title: Madhu Singh v. The State of West Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 144
The Calcutta High Court directed the Director General of Police, West Bengal to initiate departmental proceedings against concerned police officers for misleading the Court and further handed over the investigation to the Criminal Investigation Department (CID), West Bengal. Justice Rajasekhar Mantha was adjudicating upon a case involving serious offences under Section 365 (kidnapping or abducting with intent secretly and wrongfully to confine person), Section 354B (Assault or use of criminal force to woman with intent to disrobe) and other provisions of the IPC. The Court further expressed reservations over the fact that the concerned report had not been Superintendent of Police, Baruipur Police Station himself and accordingly remarked, "It is not however understood as to why the Superintendent of Police, Baruipur Police Station has not signed the report himself. If the Additional Superintendent of Police was signing the report on behalf of the Office of the Superintendent of Police, the same shall have to be indicated." Opining that departmental proceedings must be ignited against the Investigating Officer and other officers responsible for such a lapse in investigation, the Court ordered, "This Court is, therefore, of the view that the entire file as regards the conduct of investigation by ASI, Arnab Chakraborty must be looked into by a higher authority..The Director General of Police, West Bengal shall call for the records and consider drawing up of appropriate departmental proceeding against the ASI, Arnab Chakraborty and any other person that the Director General of Police, West Bengal may feel is responsible for misleading this Court."
Case Title: Indranil Mukherjee v. State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 145
The Calcutta High Court has recently held that an order of interim compensation awarded under Section 143A of the Negotiable Instruments Act, 1881 (Act) cannot be recovered from the estate of a deceased accused, who died before the conclusion of the trial. Justice Kausik Chanda observed that the order of interim compensation is dependent on the outcome of the trial and accordingly underscored, "There is no finality attached to such interim order of compensation and no right is crystallised in favour of the complainant by dint of such interim order of compensation. The order of interim compensation, which is passed in the aid of final compensation, will cease to exist when the trial comes to an end due to the death of the accused since in such eventuality there cannot be any scope to adjudicate the innocence or the guilt of the accused in the trial." The Court further opined that in the event of the death of an accused, compensation awarded under Section 138 of the Act can be recovered from the estate of a deceased accused however an interim compensation awarded under Section 143A of the Act cannot be recovered from the estate of a deceased accused.
Case Title: Subrata Kumar Samanta v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 146
The Calcutta High Court observed that West Bengal State Electricity Distribution Company Limited has the right to install electric polls on private land and can also take necessary action in respect of any property in the event it is not possible to take the electric connection in-question over an alternative passage. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "..this Court is of the view that the respondent no.5 is under no obligation to not install electric poles and can take necessary action in respect of any property in the event it is not possible to take the electric connection in-question over an alternative passage." However leave was granted to the appellant to approach the Distribution Company with a formal application for shifting the electric pole and it was further underscored that in such an event the appellant should be willing to deposit the entire shifting charges for installation of a new electric pole.
Case Title: Bidyut Kumar Mondal v. Pankaj Sarkar & Anr
Case Citation: 2022 LiveLaw (Cal) 147
The Calcutta High Court imposed costs to the tune of Rs 25,000 on an alleged contemnor for not taking steps for compliance of an earlier order for a period of 7 years despite a contempt application being filed back in 2015. Justice Shekhar B. Saraf also came down heavily on the practice of government authorities of not complying with orders of the Court for years on end and thereafter informing the Court that an appeal is to be filed whenever the Court presses for compliance of the order. "The malaise in the system of not challenging the orders, accepting the same and thereafter not complying with the same is seen in hundreds of matters that are being filed. The Authorities of the State choose not to comply with the order in blatant disregard of the orders passed by the High Court and drag their feet in the matter for years on end. When the Court presses for compliance of the order, the Court is informed that an appeal has either just been filed a few days back or is going to be filed immediately", the Court underscored. Depreciating the conduct of the government pleader for seeking an adjournment on this ground, the Court observed, "The present situation is akin to the above and the prayer of the Government Pleader seeking an adjournment in this matter is deprecated by this Court. The system requires change and unless costs are imposed upon the present alleged contemnor, I do not see any improvement taking place."
148. Calcutta High Court Allows 17 Yr Old Rape Victim To Undergo Medical Termination Of Pregnancy
Case Title: Rupa Das v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 148
The Calcutta High Court permitted a 17 year old rape victim to undergo medical termination of pregnancy after taking into consideration the report filed by the Child Welfare Committee (CWC) and the report of the concerned Medical Board. Justice Rajasekhar Mantha took on record the report filed by the CWC addressed to the concerned Public Prosecutor, West Bengal wherein it had been averred that the minor victim girl had expressed her desire to undergo medical termination of pregnancy. The veracity of the desire of the minor girl had also been confirmed by six officials including the Chairperson of the Child Welfare Committee, Nadia. Permitting the minor victim to undergo medical termination of pregnancy, the Court directed, "In that view of the matter, subject to the verification of her health, afresh by the required number of qualified medical practitioners, the minor girl shall be permitted to undergo medical termination of pregnancy, under the care and guidance of her mother." The Court had previously directed the Chief Medical Officer of Health (CMOH), Nadia to constitute a medical board to ascertain the physical and mental condition of the victim girl and also determine whether the continuation of pregnancy would in any way harm the victim or the foetus.
Case Title: Snigdha Datta (Basu) v. The State of West Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 149
The Calcutta High Court allowed a government school teacher to seek a transfer to a school nearer to her residence after taking into account the report filed by a Medical Board which had advised her to avoid long journeys owing to her health condition. Opining that the school teacher cannot be made to risk her life, Justice Abhijit Gangopadhyay underscored, "..it is observed that a lady teacher with specific advice of the doctors of a Medical Board of a Government Hospital to avoid journey, cannot be compelled to attend the school which is at a distance of 142 kilometers. To and fro journey is 284 kilometers. Even if the petitioner arranges an accommodation nearer to the school, it cannot be said that she will never come to her in-laws' house or her father's residence from the rented house in school area. At the same time going against the advice of the doctors of the Medical Board means taking risk of her life." Opining that her service period being less than 5 years cannot stand as an impediment in the way of her transfer, the Court observed, "In such a situation when the Medical Board in their report dated 25.08.2021 advised her to avoid journey, it is immaterial whether the petitioner is short of some months service from five years as on date. The petitioner has not been transferred till date and that is why I am considering the present tenure of her service, it is slightly below five years. However, when advise is to avoid journey after medical test by not an individual doctor but a Medical Board the service period cannot stand in the way for transfer."
Case Title: In the matter of Kapil Raj
Case Citation: 2022 LiveLaw (Cal) 150
The Calcutta High Court imposed a stay for 3 weeks on orders of Chief Judicial Magistrate, Alipore, South 24 Parganas wherein the Joint Director of Enforcement Directorate (ED) Kapil Raj had been directed to provide a voice sample to the Kolkata Police in connection with an audiotape leak case involving Trinamool Congress MP Abhishek Banerjee. Pertinently, Additional Solicitor General (ASG) S.V. Raju appearing on behalf of Raj submitted that the Kolkata Police had allegedly forged a copy of the impugned order before sending it to him. He apprised the Court that the impugned order had clearly stated that the voice sample of the concerned ED Official could be taken subject to consent given by the officer. Opining that the matter needs to be heard at length since a serious allegation has been levelled, Justice Jay Sengupta observed, "A perusal of the application for collection of voice sample of the ED Official renders it necessary to determine whether a case was made out for allowing such a prayer. Besides, a serious allegation has been leveled by the petitioner that an order passed by the learned Magistrate was forged. Therefore, the matter needs to be heard at length." Granting a stay on the impugned orders for a period of 3 weeks, the Court further directed, "The operation of the impugned orders, so far as they relate to the direction to collect voice sample of the ED Official, shall remain stayed till three weeks after the ensuing summer vacation."
Case Title: Sanat Kumar Ghosh & Ors. v. Rajesh Kumar Sinha & Ors.
Case Citation: 2022 LiveLaw (Cal) 151
The Calcutta High Court issued notices to the Chief Secretary, Principal Secretary of the Transport Department and the Principal Secretary of the Finance Department of the Government of West Bengal in a petition seeking initiation of civil contempt in a matter pertaining to the implementation of a Pension Scheme for employees of the South Bengal State Transport Corporation (SBSTC). Justice Arindam Mukherjee ordered, "I direct issuance of Rule against Rajesh Kumar Sinha, the Principal Secretary, Transport Department, Government of West Bengal, Paribahan Bhawan, 12, R.N. Mukherjee Road, Kolkata-700001; H.K. Dwivedi, the Chief Secretary, Government of West Bengal, having his office at "NABANNA", 325, Sarat Chatterjee Road, P.O. Shibpur, Howrah – 711102; and, Dr. Manoj Pant, the Principal Secretary, Finance Department, Government of West Bengal, having his office at "NABANNA", 325, Sarat Chatterjee Road, P.O. Shibpur, Howrah – 711102."
Case Title: Nur Afsar Mandal v. Visva Bharati and Ors
Case Citation: 2022 LiveLaw (Cal) 152
The Calcutta High Court set aside an order passed by the Registrar (Acting) of Visva-Bharati University discontinuing the services of a casual labourer on the ground of breach of the principles of natural justice. Justice Moushumi Bhattacharya ordered, "The facts in the present case do not justify the impugned action. It is vigilante-justice without the factual bulwark to support it. This Court, being equally in the dark (as the petitioner) on the material forming the basis of the charge and the perceived exigency, is therefore unable to accept that the University had good grounds to summarily discontinue the services of the petitioner." Highlighting the need to preserve the principles of natural justice in order to protect constitutional ethos, the Court underscored, "Fair play in action is the law's most recognizable face, it evens the scales of injustice and strengthens its moral core. Subverting the rules of natural justice unsettles the very bedrock on which laws are built and shakes the constitutional foundation of equal protection of the laws. Attractive as it may sound, rough and ready justice serves only those who mete it out and not the person at the receiving end. Fair play is all about points and counter-points between two opposing parties and not a volley of unidirectional projectiles, ricocheting and bouncing in the dark echo- chamber of procedure."
Case Title: Ideal Unique Realtors Private Limited & Anr. versus Union of India & Ors.
Case Citation: 2022 LiveLaw (Cal) 153
The Calcutta High Court has quashed the spot memos issued to the assessee by the audit department and ruled them unenforceable since earlier proceedings initiated by the revenue department on the same issue were not completed. The Bench, consisting of Justices T. S. Sivagnanam and Hiranmay Bhattacharyya, observed that different wings of the same department had been issuing notices and summons to the assessee without taking any of the earlier proceedings to a logical end. The appellant/ assessee Ideal Unique Realtors Private Limited filed an appeal before the Calcutta High Court challenging the jurisdiction of the Sr. Audit Officer in issuing a "spot memo" against the appellants. The appellants submitted before the High Court that the Director General of Goods and Services Tax, DGGI, Kolkata had issued summons to the appellants for which the appellants had submitted their reply. Thereafter, the DGGI had issued two more notices on the same issue. The appellants added that in response to the summons, the appellants had appeared before the authority and had submitted the requisite documents. The appellants contended that in spite of the same, the revenue officials had issued spot memos to the appellants on the same issue.
Case Title: Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters
Case Citation: 2022 LiveLaw (Cal) 154
The Calcutta High Court directed the District Legal Services Authority (DLSA) and the State Legal Services Authority (SALSA) to expeditiously decide a representation seeking compensation for the victims and their family members pertaining to the 5 recent rape cases that have been reported in various districts of West Bengal last month. The counsel appearing for the petitioner apprised a Bench comprising Chief Justice Prakasha Shrivastava and Justice Rajarshi Bharadwaj that a communication had been sent to the District Legal Services Authority (DLSA) and the State Legal Services Authority (SALSA) seeking compensation for the victims and their kin under the Witness Protection Scheme, 2018. Accordingly, the Court directed the authorities to take action on the representation as expeditiously as possible preferably within a period of 2 weeks. The Court also took on record the status report indicating the progress of the investigation into the cases as also the case diary.
Case Title: Dipok Dinda v. State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 155
The Calcutta High Court appointed an Amicus Curiae to deal with petitions pertaining to illegal encroachment of water bodies in the State. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed that several petitions are being filed before the Court alleging that water bodies in the State are being illegally filed up. Opining that a comprehensive examination is required, the Court remarked, "We find that several such petitions are filed before this Court with the allegation that the water bodies in the State either belonging to the government or to the private persons are being illegally filled up. Therefore, a comprehensive examination of the issue is required." Accordingly, the Court directed advocate Anindya Lahiri to act as an Amicus Curiae and assist the Court in examining the issue. The Court was adjudicating upon a Public Interest Litigation (PIL) alleging that the property situated at the District of Purba Medinipur, Block – Panskura-II, Mouza – Bangalur, J.L. no.317, Khatian no.1 and Dag no.17, which is a government property and a water body classified as Khal, is being illegally filled up by some unknown persons by encroaching upon the same.
156. Post-Award Interest Is Not Advisory But A Mandate Of The A&C Act: Calcutta High Court
Case Title: Future Market Networks Limited versus Laxmi Pat Surana & Anr
Case Citation: 2022 LiveLaw (Cal) 156
The Calcutta High Court has ruled that award of future or post-award interest is not advisory but a mandate of the Arbitration and Conciliation Act, 1996 (A&C Act) and it should be given its due weightage. The Single Bench of Justice Moushumi Bhattacharya reiterated that post award interest is a safeguard against delayed payment of the amount awarded to the award holder. An arbitral award was passed in the arbitral proceedings between the parties. The respondent no. 1/ award holder Laxmi Pat Surana filed a petition for execution of the award. The petitioner/award debtor filed an application before the Calcutta High Court for seeking a stay of the arbitral award under Section 36 of the A&C Act. The High Court ruled that as per the law laid down in Hyder Consulting (UK) (2014), the word "sum" means award plus interest taken as an indivisible whole in respect of Section 31(7)(a) of the A&C Act for grant of pre-award interest. The Court added that the same interpretation can be stretched to cover Section 31(7)(b) for post-award interest. The Court held that award of future/post-award interest is not advisory but a mandate of the A&C Act and is to be given its due weightage. The Court reiterated that it is a safeguard against delayed payment of the amount awarded to the award-holder.
Case Title: In Re : State of West Bengal vs. Md. Younus @ Bilal & Ors
Case Citation: 2022 LiveLaw (Cal) 157
A Lashkar-e-Taiba (LeT) terrorist was produced before the Calcutta High Court on Tuesday from Tihar Correctional Home in New Delhi as he has expressed his desire to argue in person his appeal against the order of conviction and death sentence imposed upon him. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi conducted a hearing on a vacation day considering the urgency of the matter. The convict, one Sk. Abdul Nayeem, was produced before the Bench under proper escort from the Tihar Correctional Home. He prayed before the Bench to supply him with copies of material exhibits in order to enable him to prepare his arguments in appeal. In order to enable the convict to effectively argue his appeal, the Court ordered that he should be kept in Presidency Correctional Home in Kolkata during the hearing of the appeal. "In order to enable the said convict to effectively argue his appeal before this court, we consider it imperative that the said convict be kept in a correctional home in Kolkata during the hearing of the appeal. Director General, West Bengal Correctional Services and Director General of Police, West Bengal is directed to make appropriate arrangements so that the said convict may be handed over to the custody of the Superintendent, Presidency Correctional Home, Kolkata by the police personnel who have escorted the said convict from Delhi", the Court ordered.
Case Title: Sekh Jamir and Others v. Central Bureau of Investigation and Others
Case Citation: 2022 LiveLaw (Cal) 158
The Calcutta High Court upheld a Single Judge order allowing the Central Bureau of Investigation (CBI) to take up investigation afresh in respect of a case pertaining to the West Bengal post poll violence even after the charge sheet had already been filed by the State police for the same offence and the case had already been committed for trial. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon an appeal preferred against an order of a Single Judge dated March 21, 2022 wherein it had been held that interference under Article 226 of the Constitution is not warranted especially when an alternative effective remedy is available to the appellant under Section 482 of CrPC. Pursuant to the submissions of the parties, the Bench observed that the appellants are not entitled to any relief as they have not approached the writ court with 'clean hands' as they had not filed the last page of the chargesheet wherein the concerned Magistrate had given permission to conduct further investigation under Section 173(8) of CrPC. Accordingly, the appeal was dismissed by observing, "The view which is taken by the learned Single Judge is duly supported by the above judgments of the Hon'ble Supreme Court. Since, alternative efficacious remedy under Section 482 of the Cr.P.C. is available which the appellants may avail in accordance with law, therefore, we are not examining the issue on merit which has been argued before this Court by referring to several judgments."
Case Title: Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters
Case Citation: 2022 LiveLaw (Cal) 159
The Calcutta High Court vide order dated May 4, 2022 has directed IPS officer Amit P. Javalgi to oversee the investigation into the case of death by suicide by a class eight girl at Moynaguri, West Bengal following the commission of the offence of attempt to rape upon her. The minor victim girl who had set herself ablaze following a threat to withdraw a police complaint regarding the rape attempt on her, succumbed to her injuries in a state-run hospital on April 25. Consequently, a renewed prayer for a CBI probe had been made by the concerned petitioner. A Bench comprising Chief Justice Prakasha Shrivastava and Justice Rajarshi Bharadwaj directed, "Having regard to the chain of events, which are reflected above as also the nature of allegations which have been made and the circumstances of the case, we are of the opinion that presently the investigation needs to be carried out under the supervision of Shri Amit P Javalgi, IPS, DIG, Jalpaiguri Range. Hence we direct accordingly." It may be noted that back in June 2017, IPS officer Amit P. Javalgi had been removed from his post of Superintendent of Police, Darjeeling following the protest against Chief Minister Mamata Banerjee by Gorkha Janmukti Morcha (GJM) cadres and the resultant violence that led to the resurrection of demand for Gorkhaland. The Bench further extended police protection to the family members of the deceased victim and other witnesses of the case and underscored that the Director General & Inspector General of Police, West Bengal will be made responsible to ensure that no threat is extended to them.
Case Title: Amrita Pandey v. The Union of India and others
Case Citation: 2022 LiveLaw (Cal) 160
The Calcutta High Court directed that the post mortem examination of deceased BJP worker Arjun Chowrasia should be conducted at the Command Hospital, Kolkata by a team of experts and in the presence of Chief Judicial Magistrate, South 24-Parganas. Videography of the post-mortem examination was also ordered to be conducted. According to reports, the deceased, identified as Arjun Chowrasia, was found hanging inside a building in North Kolkata's Ghosh Bagan area. He was a functionary of the BJP Yuva Morcha. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition seeking judicial intervention into the incident of unnatural death on allegations of foul play. "Having regard to the circumstances which have been disclosed before us, we are of the opinion that the post- mortem of the body of deceased Arjun Chaurasia should be done at the Command Hospital which is stated to be only 5-6 kilometers away from R.G. Kar Medical College and Hospital", the Court ordered. Directing the Head of the Command Hospital to constitute a team of experts for conducting the post mortem examination, the Court underscored further, "The Head of the Command Hospital will constitute a team of experts for the purpose of the said post-mortem and at the time of post-mortem, expert from AIIMS, Kalyani as also the Head of the Department of Forensic Science, R.G. Kar Medical College and Hospital can remain present. The CJM, South 24-Parganas will also remain present at the time of the post-mortem. The videography of the post-mortem will be done." Granting police protection to the kin of the deceased, the Court ordered, "The Commissioner of Police, Kolkata is also directed to ensure that proper police protection is provided to the family members of the deceased."
Case Title: Kader Khan v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 161
The Calcutta High Court has recommended that appropriate amendments be made to the Code of Criminal Procedure (CrPC) for incorporating provisions for trial in absentia of an absconding accused for better administration of justice and to prevent the loss of valuable evidence due to death of a witness. It set aside, as per the existing law, a lower court order that allowed deposition of a gang rape victim recorded during the trial of three other accused in the same case to be used against two absconding accused, who were arrested later. A Bench comprising Justice Joymalya Bagchi and Justice Bivas Pattanayak observed. "Taking note of the pernicious impact of abscondence on speedy justice and rights of victims, this Court proposes that appropriate amendments be made to the Code of Criminal Procedure for incorporating provision for trial in absentia of an absconding accused for better administration of criminal justice." The directions were issued on a petition by Kader Khan, an accused in the infamous Park Street gangrape case of 2012, that challenged the trial court order allowing the prosecution to use deposition of the victim, who died in March 2015, against him during the trial. He had absconded following the incident and was arrested in September 2016. "No Court has jurisdiction to transfer evidence recorded in an earlier trial after its completion as evidence against an accused who had not been put up for trial in the earlier case even if both the trials are in respect of the self-same charge. This is against the fundamental principle of criminal jurisprudence that each criminal case has to be tried on the basis of evidence led in the said case and not by reference to evidence in other cases. Trial Court erred in law to hold such jurisdictional error was a curable irregularity and ought to be condoned under Section 465 Cr.P.C. in the interest of justice", the Court held further.
Case Title: Dr. Kunal Saha v. University of Calcutta & Anr
Case Citation: 2022 LiveLaw (Cal) 162
The Calcutta High Court dismissed a writ petition against the University of Calcutta for awarding a D.Sc.honorary degree to a doctor against whom the Supreme Court had made scathing remarks for medical negligence and had held him to be primarily responsible for the death of the petitioner's wife. The petitioner had apprised a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj that the University of Calcutta (respondent no.1) had committed a gross abuse of power by granting the concerned doctor one Dr. Sukumar Mukherjee (respondent no. 2) with a degree of Doctorate in Science (D.Sc.). Opining that the instant case does not warrant interference by a Constitutional Court, it was held, "It is further found that the selection of the respondent no. 2 by the respondent no. 1 has not undermined the sanctity or honour or dignity of the Hon'ble Supreme Court or violated Article 144 of the Constitution of India. The honorary degrees are awarded to achievers in their respective fields. This does not warrant the interference of the Constitutional Court. Thus, where the nature and subject matter of a decision is not amendable due to judicial process because the court is not competent to deal with the matter, the court should not intrude into such questions."
Case Title: In the matter of Dunlop India Ltd
Case Citation: 2022 LiveLaw (Cal) 163
The Calcutta High Court has recently observed that a person cannot turn back on his obligations on the pretext of an act mistakenly committed especially where the mistake has resulted in certain irreversible consequences or consequences which may be reversed but at substantial cost to the other party to the act. Justice Moushumi Bhattacharya was adjudicating upon an application filed by an individual carrying on business under the name and style of Texworth International for an injunction restraining the Official Liquidator from treating the last bid submitted by the applicant for Rs. 418.11 crores as the applicant's bid against an e-auction Sale Notice for Lot-1 of the property mentioned in the concerned Notice. The Court further noted that Sections 20, 21 and 22 of The Indian Contract Act, 1872, contemplate situations where both the parties to an agreement have proceeded on a mistaken belief of a fact essential to the agreement and contemplate that a contract is not voidable because it was caused by a mistake as to any law in force. "Although, the present case is not one of contract, the principle which emerges from the statute and case-law is that a person cannot turn back on his obligations on the pretext of an act mistakenly committed. This is particularly true where the mistake has resulted in certain irreversible consequences or consequences which may be reversed but at substantial cost to the other party to the act", the Court underscored further.
Case Title: Damodar Valley Corporation versus Reliance Infrastructure Ltd
Case Citation: 2022 LiveLaw (Cal) 164
The Calcutta High Court has ruled that financial hardship and financial indebtedness are sufficient grounds for modifying an order passed under Section 36 of the Arbitration and Conciliation Act, 1996 (A&C Act) to direct the award debtor to deposit the awarded amount by way of cash security. The Single Bench of Justice Ravi Krishan Kapur held that the security directed to be deposited by a Court under Section 36 of the A&C Act should be real and realisable, and it ought not to be illusory. The Court added that once a Court exercises its jurisdiction under Section 36 of the A&C Act and directs furnishing of security in a particular mode and manner, it always retains jurisdiction in respect of such security. The Court ruled that an order passed by the Court under Section 36 is an interim order and is subject to alteration and modification. The High Court observed that under Section 36 of the A&C Act, the award debtor is obliged to furnish security in order to obtain stay of the arbitral award. The Court added that the purpose of furnishing security was to ensure and facilitate the fulfilment and enjoyment of a right or a potential right vested in the award holder. The Court ruled that each case is to be decided on its merits and the Court is not bound to order security in each and every case. The Court added that there may be cases where an award debtor is entitled to an unconditional stay of the award, for instance where an award is so perverse, irrational and patently illegal that it ought to be stayed unconditionally.
Case Title: Bhaskar Banerjee v. Central Bureau of Investigation & Anr
Case Citation: 2022 LiveLaw (Cal) 165
The Calcutta High Court has recently quashed criminal proceedings initiated against a lawyer for providing allegedly false and improper legal advice which was instrumental in sanction of a bank loan to a company which was later declared as Non Performing Asset (NPA) with an outstanding due of Rs. 2.57 crores. Justice Ananda Kumar Mukherjee observed that merely because the lawyer's opinion was not acceptable, criminal proceedings cannot be initiated against him especially in the absence of any tangible evidence that he was associated with other conspirators. "..it is beyond doubt that a lawyer owes an "unremitting loyalty" to the interests of the client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under sections 420 and 109 IPC along with other conspirators without proper and acceptable link between them", the Court observed.
Case Title: Indian Jute Mills Association and Anr v. Union of India and Ors
Case Citation: 2022 LiveLaw (Cal) 166
The Calcutta High Court has directed the Jute Commissioner to review and re-fix the rate of raw jute if the notified rate cannot be adhered to. Justice Amrita Sinha observed, "The Jute Commissioner is directed to take positive steps and adopt stringent measures to implement the notified rate, but despite all efforts, if it appears that the notified rate cannot be adhered to, then the Jute Commissioner shall review and re-fix the rate taking into consideration the relevant factors as mentioned in the Control Order, 2016." The Court further ordered the Jute Commissioner to collect first-hand information with regards to the rate at which jute is available to the mill owners and thereafter notify the rate after taking into consideration the freight, transportation, handling and storage charges. "The rate should not be fixed upon extraneous consideration and the same must be reviewed at frequent intervals considering the ground realities. The Jute Commissioner should realise that the rate fixed should not be meant only for the purpose of publishing it in the official gazette but for the purpose of practical implementation of the same. Regular raids, search and seizure should be conducted to prevent illegal hoarding or any nefarious activity sending out false signals of scarcity. Stern action should be taken against any /all persons found indulging in any illegal activity and acting with vested interest leading to the rise in the price of raw jute", the Court directed further.
Case Title: Sanghamitra Bhattacharya v. Sudeshna Kar & Ors
Case Citation: 2022 Live Law (Cal) 167
The Calcutta High Court has observed that a writ Court in exercise of its powers under Article 226 of the Constitution cannot impose a penalty which is not contemplated in the concerned statutory rules in exercise of its so called plenary jurisdiction. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta observed, "..the writ court discharges his solemn duties to uphold the law and render justice in accordance with law and not to break or bend it. The penalty which is not contemplated in the said disciplinary Rule cannot be imposed in exercise of so-called plenary jurisdiction which has a different concept and cannot be assumed to show wide or even wider power to overreach the provision of law." The Court further observed that a writ court cannot assume the jurisdiction of the disciplinary authority and proceed in violation of the statutory provisions by inflicting the penalties not contemplated in the statutory Rules.
Case Title: Aminul Islam @ Amenur Molla v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 168
The Calcutta High Court has recently set aside a conviction under Section 324 of the IPC (voluntarily causing hurt by dangerous weapons or means) by observing that the medical evidence pertaining to the nature of the injury sustained would prevail over the ocular evidence of the victim. Justice Bibek Chaudhuri was adjudicating upon an appeal moved against an order of conviction passed by the concerned trial court under Section 324 IPC and the sentence of imprisonment imposed for a term of one year along with a fine of Rs.1,000 and in default, to suffer simple imprisonment for further 3 months. "The Court cannot deny that P.W.4 received cut injury on his head but in order to ascertain the nature of injury, the evidence of expert can only be relied on. When the medical officer stated that P.W.4 sustained lacerated injury, the said injury cannot be treated as incised wound on the basis of ocular testimony of P.W.4", the Court observed. The Court further observed that if the victim had been assaulted with the help of a Hasua on his head, there would have been an incised wound whoever no such incised wound was found on his head. Thus, it was held that when the allegation of the prosecution is that the appellant had assaulted the victim with a hasua, in the absence incised cut injury, the appellant cannot be connected with the injury sustained by the victim.
Case Title: Suraj Singh v. State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 169
The Calcutta High Court has recently set aside the conviction of an accused for commission of the offence under Section 361 of the IPC (kidnapping from lawful guardianship) after observing that the minor victim was fully aware of the consequences of her going away with the accused and that there is no evidence that she was induced or enticed by the accused. Justice Bibek Chaudhuri observed, "In the instant case, there is absolutely no evidence that the victim girl was induced or enticed by the appellant. For the reasons stated above and in view of the fact that the victim was fully aware of the consequences of her going away with the appellant, the appellant cannot be held liable under Section 361 of the Indian Penal Code punishable under Section 363 of the Indian Penal Code." The Court further noted, "Neither the victim girl, nor the de facto complainant made any allegation against the appellant to the effect that the victim girl was compelled to marry any person against her will or that she was forced or seduced to illicit intercourse", the Court noted further.
Case Title: The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum
Case Citation: 2022 LiveLaw (Cal) 170
The Calcutta High Court has dismissed a prayer seeking cancellation of bail granted to two minor accused persons by the Principal Magistrate, Juvenile Justice Board, Birbhum at Suri in the case pertaining to the violence in Birbhum district of West Bengal, in which ten persons were killed allegedly in retaliation to the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh. The Central Bureau of Investigation (CBI) is currently probing the case. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed that since the aggrieved parties have the remedy of filing a revision petition before the High Court under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2015 Act) such a plea seeking cancellation of bail cannot be entertained. "Since an appropriate remedy of revision against the orders in question is available, therefore, this Court is of the opinion that in the facts of the present case, it would be more appropriate for the parties to avail that remedy. All the grounds which have been raised before this Court assailing the orders of the JJB can be raised in the revision petition and we are hopeful that if any such revision petition is filed, the same will be duly considered and decided in accordance with law after considering the grounds raised therein", the Court observed.
Case Title: Ali Hossain Sk. @ Ali Hussain Seikh v. Narcotics Control Bureau
Case Citation: 2022 LiveLaw (Cal) 171
The Calcutta High Court has recently observed that a Gazetted Officer who is a member of the raiding party cannot be said to be an independent person and thus a desire expressed by accused persons to be searched by such an officer does not constitute a voluntary relinquishment of the right enshrined under Section 50 of the Narcotic Drugs and Psychotropic Substance Act. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi was adjudicating upon an appeal moved against an order passed by the concerned lower Court convicting the appellants for commission of offence punishable under Section 22(c) read with Section 29 of the NDPS Act. Opining further that such a Gazetted Officer cannot be said to be an independent person before whom such a search can be conducted under Section 50 of the NDPS Act, the Court underscored, "A Gazetted Officer who had proceeded to the place of occurrence after entertaining reasonable belief that the accused persons may be carrying narcotic substance cannot be said to be an independent person before whom the law contemplates a search. In this backdrop, acceptance of the offer by the appellants to be searched before an officer who is a member of the raiding party cannot be said to be a voluntary expression of their desire to be searched before such officer."
Case Title: Chitta Biswas v. The State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 172
The Calcutta High Court upheld conviction for the offence of aggravated sexual assault under Section 10 of the Protection of Children from Sexual Offences Act (POCSO Act) by opining that surrounding circumstances like the accused making the minor victim girl naked prove the culpable mental state of the accused. Justice Bibek Chaudhuri also rejected the argument that since nobody saw the accused touch the private part of the victim girl, it would not constitute the offence of sexual assault. "Learned Advocate for the appellant submits that nobody saw the accused touching private part of the victim and from the evidence of PW3 it is found that the accused was sitting by the side of the victim girl who was lying on the varanda of PW3 in naked condition, the accused ought to have been convicted under Section 11 of the POCSO Act for the offence of sexual harassment. I am not in a position to accept such submission made by the learned Advocate for the appellant because there was no reason for not to treat the specific acts by the appellant as the acts of sexual assault within the meaning of Section 7 of the POCSO Act", the Court observed. Opining that the sexual intent of the victim has been proved beyond any shadow of doubt, the Court further underscored, "The surrounding circumstances like the accused having taken the victim to the house of PW3 when she was not present, pulling down her pant, making her naked amply prove culpable mental state of the accused and in such a case, the court is entitled to raise statutory presumption about the culpable mental state of the accused as permitted under Section 30 of the POCSO Act. The said presumption has not been rebutted by the accused by proving that he has no such mental state. Therefore, sexual intent of the accused is established beyond any shadow of doubt."
Case Title: Anita Nigam v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 173
The Calcutta High Court recently came down heavily on Convent of Our Lady Providence Girls' High School in Kolkata for unlawfully terminating the service of an Assistant Teacher in violation of the order of the West Bengal Board of Secondary Education (WBBSE). Justice Abhijit Gangopadhyay was adjudicating upon a plea moved by the petitioner seeking the setting aside of an order terminating her service and quashing of disciplinary proceedings initiated against her. "From the action of the school it is found that the school does not care the direction of the court for exchange of affidavits and a final hearing or the decision of the Board, which is a statutory authority, in respect of suspension of the petitioner and in respect of the observation of the Board as to gross violation of notification dated 8th March, 2018, i.e., the existing Rules. The school does not care this court's order dated 01.04.2022, does not care the order of the Board dated 20.02.2017 and does not care the Board's letter dated 29.04.2019", the Court observed. Opining further that the school had 'overreached the Court' by issuing a termination order despite the matter being sub-judice, the Court underscored, "When the matter was kept pending with direction of this court for filing affidavits, the order passed by the school for termination of the petitioner during the pendency of the matter, i.e., in a sub-judice matter, in my view, is clearly an act of overreaching the court. The school never approached the court before passing such termination order, which judicial decorum and discipline demands. Ignoring the court is unforgivable. The school is of this habit, as will appear from the facts stated above, of ignoring the statutory authority, i.e., the Board."
Case Title: Soma Sinha v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 174
The Calcutta High Court imposed a stay till June 17 the recruitment process of assistant teachers for Class 9 and Class 10 in State run schools pertaining to the West Bengal State Level Selection Test (SLST). The West Bengal School Service Commission was further ordered to publish within 10 days the merit list of the State Level Selection Test, 2016 with clear break-up of marks secured in written test, academic and professional score and personality test. Justice Abhijit Gangopadhyay was adjudicating upon a plea moved by petitioner Soma Sinha alleging lack of transparency in the merit list. She had stated that she had cleared the written test and had also completed the first phase of the verification process. She had further submitted that although she had appeared both for the personality test and the interview, she had found her name in the waiting list. Directing the Commission to publics a breakup of marks by May 20, the Court observed, " I direct the West Bengal Central School Service Commission to publish the breakup of marks of the empanelled and waitlisted candidates against written test, academic and professional score and personality test by 20th May, 2022 and to upload the online application forms of the empanelled and waitlisted candidates and to come up with such a list with breakup of marks and to come up with preparation to demonstrate that online application forms of the empanelled and waitlisted candidates in respect of 1st State Level Selection Test, 2016 (Classes IX and X) has been uploaded." Imposing a stay on the recruitment process till June 17 to prevent further complications, the Court ordered, "The Commission is further directed not to take any further step for initiation of recruitment or selection process of State Level Selection Test for Assistant Teachers for the Classes IX and X till 17th June, 2022 as after publication of the marks it has to be checked and verified by the petitioner and all other concerned persons to see whether the panel and the waitlist is to be completely recast or not. If a recruitment process is initiated in the meantime before doing that, a further complicated situation will arise in the future recruitment process as vacancies are to be published and Rule 18 of the said Rules provide for carry forward of vacancy."
Case Title: Sanchita Kundu & Anr. Vs. The Assistant Commissioner of State Tax, Bureau of Investigation, South Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 175
The Calcutta High Court bench of Justice Md. Nizamuddin has held that the Input Tax Credit (ITC) cannot be denied on genuine transactions with suppliers whose GST registration was cancelled after the transaction. The petitioners/assessee were aggrieved by the action of the department denying the benefit of the Input Tax Credit (ITC). The ITC was denied the purchase of the goods in question from the suppliers and asked the petitioners to pay the penalty and interest under the provisions of the GST Act. The penalty and interest were demanded on the ground that the registration of the suppliers in question had already been cancelled with retrospective effect, covering the transaction period in question. The petitioner ​​contended that the transactions were genuine and valid. The petitioners, with their due diligence, have verified the genuineness and identity of the suppliers. The names of those suppliers as registered taxable persons were available at the government portal, showing their registrations as valid and existing at the time of transactions.
176. Reassessment Order Passed Without Issuance of Section 148 Notice Is Not Valid: Calcutta High Court
Case Title: Govardhan Commodities Pvt. Ltd. Vs. Assistant/Deputy Commissioner of Income Tax
Case Citation: 2022 LiveLaw (Cal) 176
The Calcutta High Court bench of Justice Md. Nizamuddin has ruled that the reassessment order passed without issuance of notice under Section 148 of the Income Tax Act is not valid. The petitioner/assessee challenged the assessment order on the ground that it was passed without serving any notice under Section 148 of the Income Tax Act, 1961 which is a condition precedent for initiating proceedings under Section 147 of the Act. The petitioner after getting the assessment order has made several correspondences asking the Assessing Officer to provide documents in support of proof of service of the notice under Section 148 of the Act. The Assessing Officer failed to provide any such document to establish that the impugned notice under Section 148 of the Income Tax Act was served upon the petitioner before passing the assessment order.
Case Title: Rajinder Lohar v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 177
The Calcutta High Court has recently commuted the sentence of life imprisonment awarded to a man convicted of raping a 7 year old girl after taking into account that the convict had no criminal antecedents and that he had already suffered incarceration for about 18 years. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi opined that although in the instant case a minor victim had been raped, the accused was also a young person who was barely above 18 years of age at the time of the incident. Commuting the life sentence imposed, the Bench observed, "Although, the victim was a minor and was forcibly raped, appellant was also a young person who was barely above 18 years at the time of occurrence. He does not have criminal antecedents. Keeping in mind the aforesaid facts and as he has already suffered incarceration for about 18 years, I modify the sentence imposed upon the appellant and direct that he shall suffer imprisonment for the period already undergone in place of the maximum sentence of life imprisonment imposed upon him and pay the fine imposed upon him by the trial Court, in default, shall suffer rigorous imprisonment for one year."
Case Title: Aniruddha Prasad Singh @ Sinha v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 178
The Calcutta High Court has observed that while examining an accused under Section 313 of the CrPC, the prosecution is under a mandatory obligation to give the accused an opportunity to personally explain any circumstances appearing in the evidence against him. Justice Moushumi Bhattacharya also placed reliance on the Supreme Court judgment in Maheshwar Tigga v. State of Jharkhand wherein the Apex Court had held that the circumstances not put to an accused under section 313 of the CrPC cannot be used against him and must be excluded from considerations. "Section 313 of the Cr.P.C. mandates that the accused shall have the opportunity of personally explaining any circumstances appearing in the evidence against him. In Maheshwar Tigga vs State of Jharkhand; (2021) 1 SCC (Cri) 50 the Supreme Court reaffirmed that the circumstances not put to an accused under section 313 of the Cr.P.C. cannot be used against him and must be excluded from considerations. The Supreme Court further went on to hold that in a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his evidence, but also to explain the incriminating circumstances against him and further that a probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt", the Court underscored. The Court was adjudicating upon an appeal preferred against a judgment dated December 19, 1998, wherein the appellant had been convicted under section 7 (1) (a) (ii), of the Essential Commodities Act, 1955 and paragraph 12 of the West Bengal Kerosene Control Order, 1968.
Case Title: In the matter of: Parimal Sardar@Parimal Sikdar
Case Citation: 2022 LiveLaw (Cal) 179
The Calcutta High Court has recently, in exercise of its powers under Section 439 of the CrPC, granted bail to an accused after taking into account that he suffers from complete speech and hearing impairment and that he had suffered from various physical ailments while in custody. A Bench comprising Justice Moushumi Bhattacharya and Justice Kesang Doma Bhutia was adjudicating upon a bail application of the petitioner who had been accused for the commission of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court noted that the petitioner had been in custody for 440 days and had suffered from various ailments while in custody. Taking into consideration the physical disability of the petitioner, the Court noted further, "The petitioner admittedly suffers from 100% speech and hearing impairment. The petitioner has been in custody for 440 days and has suffered from various ailments while in custody. The petitioner has also been referred to the North Bengal Medical College for treatment." Reliance was also placed on the Supreme Court judgment in Rockysingh Jalindersingh Kalyani v. The State of Maharashtra wherein the Apex Court had allowed an application of bail after taking into account the physical disability of the accused. Allowing the bail application, the Court ordered, "Considering the physical condition of the petitioner and a recent order of the Supreme Court in Criminal Appeal No.176 of 2022 (Rockysingh Jalindersingh Kalyani vs. The State of Maharashtra), where the Supreme Court also took into account the physical condition of the person suffering from disability, we are inclined to allow the application for bail."
Case Title: Md Jamiruddin v. Union of India & Ors
Case Citation: 2022 LiveLaw (Cal) 180
The Calcutta High Court set aside a notification issued by the concerned authority under Section 3(1) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in land) Act, 1962 (Act) for laying a Gas Pipeline below the surface in between the Barauni and Guwahati on the ground of violation of principles of natural justice. Justice Saugata Bhattacharyya was adjudicating upon a challenge against the steps taken by the concerned authority under the Act whereby a notification had been issued to acquire the right of user of the land of the petitioner for laying a Gas Pipeline below the surface in between the Barauni and Guwahati. Opining that the concerned authority is required to comply with the principle of natural justice, the Court further underscored, "On behalf of the competent authority attempt has been made to impress upon this Court that since the objection is not addressed to the competent authority the opportunity of hearing could not be granted. Such hyper technical approach on the part of the competent authority pales into insignificance keeping in view the fact that the concerned respondent authorities by issuing notification under Section 3(1) was required to acquire the right of user of the land of the petitioner, therefore, propriety demands forwarding of such objection by the respondent nos.2 & 3 to the competent authority for the sake of granting opportunity of hearing to the petitioner and to comply with the principle of natural justice". Accordingly, the Court set aside the impugned notification on the ground that the requirement of hearing as contemplated under Section 5(2) of the Act of 1962 has not been complied with.
Case Title: Sova Rani Misra v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 181
The Calcutta High Court set aside an order of acquittal in connection with a criminal case under Sections 147/380/427 of the IPC (punishment for rioting, theft in dwelling house, mischief causing damage). However, Justice Moushumi Bhattacharya was of the view that passing an order of conviction, after a gap of 36 years since the charges were framed, would disturb the balance of convenience and cause injustice, especially since the accused had not even been represented in the appeal. Accordingly, it remitted the matter to Trial Court for re-consideration. "Since the incident occurred and the Case was registered against the accused persons in May, 1980 and the impugned judgment is of 19th March, 1986, this Court is of the view that convicting the accused persons under the charges framed against them after a gap of 36 years would disturb the balance of convenience and result in more injustice being caused in the matter. It is not even clear whether the accused persons are still alive or available after 36 years. This information can only be provided by the local police station", the Court observed.
Case Title: Salema Bibi v. State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 182
The Calcutta High Court granted bail to an accused against whom proceedings under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) had been initiated after taking into account that he had suffered torture while in custody. The Court further directed the Superintendent of Police, Murshidabad to immediately enquire into the allegations of torture against the accused and submit a detailed report in this regard on the next date of hearing. Justice Rajasekhar Mantha was adjudicating upon a plea filed by the wife of the accused alleging that her husband had been a victim of custodial torture. Ordering for the release of the petitioner's husband from the Berhampore Central Correctional Home, the Court observed, "In view of the above, this Court is of the prima facie view that a certain degree of torture may have been inflicted on the husband of the petitioner. The matter requires a suitable investigation. The husband of the petitioner, namely, Azad Ali, shall be released forthwith from the custody of the Berhampore Central Correctional Home. The petitioner herself and on behalf of her husband undertakes before this Court and also on behalf of the husband, that she will report before the Judge, Special Court, N.D.P.S. Act, Berhampore, Murshidabad every Thursday at 11 a.m., commencing day after tomorrow." Directing an enquiry into the allegations of torture and extortion, the Court observed further, "The Superintendent of Police, Murshidabad, shall forthwith enquire into the allegations of torture against the petitioner's husband, and the allegation of extortion against the officer of the Lalgola P.S. submit a detailed report before this Court on or before the next day." The Court further directed the Lalgola Police Station, Murshidabad to preserve all the CCTV footage and other evidence in connection with taking into custody of the husband of the petitioner, and his detention thereafter.
Case Title: Babita Sarkar v. The State of West Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 183
The Calcutta High Court has ordered a Central Bureau of Investigation (CBI) inquiry into the alleged irregularities in the recruitment of political science teachers for Class X1 and XII in the state-run schools of West Bengal. In an unprecedented move, the Court also advised Chief Minister Mamata Banerjee and Governor Jagdeep Dhankar to immediately suspend the minister for education, Paresh Chandra Adhikari, from his post since his daughter, Ankita Adhikari, was appointed without even figuring in the merit list or appearing for a personality test. Justice Abhijit Gangopadhyay passed the direction while adjudicating upon a plea filed by an aggrieved candidate who had alleged that she had been deprived of the job despite having secured higher marks than the Minister's daughter in the recruitment examination. Directing for a CBI enquiry, the Court observed, "This court has full faith upon the police force of this city and State. All the inhabitants of West Bengal know how efficient they are and everybody will admit the efficiency of the police force and it is also the experience of people that the hands of the police forces are always tied by the persons in power. Therefore, in my view inquiry by CBI is the only option here." Opining that the CBI should not waste any time to start any enquiry and further ordering the Education Minister to appear before the CBI by 8pm today, the Court underscored, "I direct the said Paresh Chandra Adhikary to go to the CBI by 8 p.m. today so that CBI can start interrogating him in every possible manner for knowing the facts."
Case Title: Narayan Chandra Maiti v. Union of India & Ors
Case Citation: 2022 LiveLaw (Cal) 184
The Calcutta High Court directed the Union government to grant the freedom fighters pension under the Swatantrata Sainik Samman Pension Scheme, 1980, within 3 months to a batch of petitioners after opining that possession of personal knowledge certificates although a form of secondary evidence would be sufficient to be eligible for benefits under the scheme. In the instant case, the petitioner had applied for the freedom fighter pension along with general Non-Availability of Record Certificate (NARC) issued by the District Magistrate of Midnapore and Personal Knowledge Certificate issued by Sushil Kumar Dhara, an eminent freedom fighter and eligible certifier of District - Midnapore for grant of the Swatantrata Sainik Samman Pension. Justice Krishna Rao observed, "This Court is satisfied that the certificate issued by Shri Sushil Kumar Dhara would make the petitioner eligible for being granted pension under the said scheme. None has disputed the authenticity of the certificate issued by Shri Sushil Kumar Dhara in favour of the petitioner. This is one of the modes of approving the claim of being a freedom fighter envisaged by the said scheme." Further, ordering the Union government to process the pension of the petitioners within a period of 3 months the Court observed, "Accordingly, the respondent authorities i.e. the Union Government is directed to pay the petitioners, Freedom Fighter's Pension under the liberalized "Swatantrata Sainik Samman Pension Scheme" with effect from the date when the petitioner made an application for grant of pension within 3 (three) months from the date of communication of the copy of this order."
Case Title: Ramabatar Rajbar @ Ramawatar Nimtar Rajwar v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 185
The Calcutta High Court observed that if the prosecution has failed to prove the charge of dacoity then the charge under Section 412 of the IPC of retaining the stolen articles of dacoity fails automatically. Referring to the provision of Section 412 of the IPC, Justice Rabindranath Samanta underscored, "The language employed in the Section clearly shows that the articles an accused retains shall be related to those articles captured or received during the commission of dacoity. While the charge of dacoity fails, the charge under Section 412, IPC automatically fails..Therefore, I hold that the prosecution has failed to bring home the charge under Section 412, IPC." Reliance was also placed on the Supreme Court decision in K. Venkateshwar Rao alias Venkatal alias I. Rao v. State Represented by Inspector of Police, A.P wherein the Apex Court had held that while the charge of dacoity has not been proved by the prosecution, the charge under Section 412 of the IPC of retaining the stolen articles of dacoity fails automatically.
Case Title: Dr Santi Prasad Sinha v. Laxmi Tunga and other connected matters
Case Citation: 2022 LiveLaw (Cal) 186
The Calcutta High Court upheld orders of a single bench that directed CBI to inquire into alleged irregularities in appointments of Group-C posts (non-teaching staff) in the state government-run schools in West Bengal on the purported recommendation of the West Bengal School Service Commission (WBSSC). A Bench comprising Justice Ananda Kumar Mukherjee and Justice Subrata Talukdar labelled the "irregularities" in the appointments made by the SCC as a "public scam" and accordingly upheld Justice Abhijit Gangopadhyay's prior orders directing a CBI probe into the alleged money trail involved in the recruitment scam. "This Court also does not find that the Hon'ble Single Bench erred in appointing the CBI to investigate the public scam inasmuch as no State agency could be appointed in a scenario involving high ranking Officials, including a senior State Minister", the Court underscored. Furthermore, the Court also accepted the recommendations put forward by the Court appointed committee calling for the prosecution of senior government officials connected to the scam. Opining further that such a scam has let down a generation of teachers, the Court observed, "It is a matter of shame that such abundant facts have emerged in the records of the Hon'ble Court and from the Bag Committee, whose integrity has not been impeached, prima facie establishing the role of white collared individuals in charge of Education in letting down a generation of teachers and the taught."
Case Title: Laxmi Tunga v. State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 187
The Calcutta High Court refused to hear an appeal filed by West Bengal Minister Partha Chatterjee challenging an order of a single Bench that directed him to appear before the CBI in connection with the alleged irregularities in appointments of Group-C and Group-D posts (non-teaching staff) in the state government-run schools in West Bengal on the purported recommendation of the West Bengal School Service Commission (WBSSC). The single Bench of Justice Abhijit Gangopadhyay directed Mr. Chatterjee, who was the State Education Minister when the alleged appointments were made, to appear before the Central Bureau of Investigation at its office here before 6 p.m. on Wednesday. He is now the Industry, Commerce and Parliamentary Affairs Minister of the Mamata Banerjee Cabinet. "In this matter and in other matters of similar nature as to giving appointment in the post of Group – C and Group – D employees the name of the then Education Minister Mr. Partha Chatterjee has come to light. I also direct said Mr. Partha Chatterjee to attend the C.B.I. office today by 6 P.M. and C.B.I. is directed to start interrogating him and if he does not cooperate in the interrogation, C.B.I. shall have liberty to take him in custody", Justice Gangopadhyay had recorded in the impugned order. Furthermore, in the impugned order, Justice Gangopadhyay requested Chief Minister Mamata Banerjee and also Governor Jagdeep Dhankhar to remove minister Partha Chatterjee from the cabinet in order to make the 'system cleaner'.
Case Title: Babita Sarkar v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 188
In an unprecedented move, Justice Abhijit Gangopadhyay of the Calcutta High Court on Wednesday night directed the Central Bureau of Investigation (CBI) which is probing the alleged irregularities in the recruitment of teachers in West Bengal government schools, to seek assistance of central forces in securing the State's School Service Commission office. The Court also directed that no one should enter the building till 1 pm on Thursday without the leave of the Court and ensure that the CCTV footage of the office is available by Thursday noon. Justice Abhijit Gangopadhyay conducted a special hearing of the case from 10:40 pm onwards on Wednesday night after the incumbent SSC Chairperson Siddhartha Majumdar resigned from his post, four months after taking charge. Following the news of the Chairperson's resignation, two counsels of the petitioners met Justice Gangopadhyay and apprised him that there existed an apprehension that crucial evidence could be tampered with in the wake of the new SSC chairperson taking charge. Pursuant to the submissions, the Court ordered preservation of CCTV footage and accordingly observed, "The Secretary of the School Service Commission is directed to produce the CCTV footage before me at 12.30 a.m. tomorrow. The Secretary is to preserve all the digital information and the database if not already destroyed." The Court further ordered the deployment of Central Reserve Police Force in the office of the School Service Commission and also ordered that nobody should be permitted to enter the building till 1:00 pm on Thursday without the Court's leave. "As the matter is in the hand of the CBI and as CBI has been granted liberty to take help of the Central Reserve Police Force, I direct the petitioner to intimate CBI to take up the matter with Central Reserve Police Force immediately so that CRPF personnel can be deployed to protect the building being Acharya Sadan, Salt Lake and the CRPF personnel shall not allow anybody to enter into the said building till 1.00 p.m. tomorrow without leave of the Court. No employees including officers and no other persons shall be allowed to enter the said West Bengal School Service Commission at 11 & 11/1, Block EE, Acharya Sadan, Salt Lake City, Kolkata – 700091. The learned advocate of the petitioner is granted liberty to communicate, this order to CBI immediately so that Police Force is deployed by the CRPF forthwith by 2 (two) hours from the communication to CBI", the Court underscored.
Case Title: Aditya Birla Finance Ltd v. Mcleod Russel India Ltd. and Ors, AP/254/2022
Case Citation: 2022 LiveLaw (Cal) 189
The High Court of Calcutta has held that no direction can be passed to sell property to third party in Section 9 petition of the A&C Act. The Single Bench of Justice Moushumi Bhattacharya has held that a direction to sell the subject property to an outsider who was not a party to the arbitral proceedings would result in the property going out of the girdle of the arbitration and the purpose of a Section 9 application itself would be defeated. The Court further held that a party should not resort to the remedy under Section 9 to enforce a part of the award when it has a clean and unobstructed path for enforcing the award under Section 36 of the Act. The Court observed that the object of interim protection under Section 9 of the A&C Act is the preservation of the subject matter of the arbitration. The interim relief is granted to prevent the subject matter from being wasted or dissipated to ensure the execution of the award. Therefore, the relief can only be in aid of the arbitration. A relief that would take the subject matter out of the girdle of arbitration cannot be granted by the court exercising power under Section 9 of the A&C Act. The Court held that the relief claimed by the petitioner to direct the respondent to tender the subject shares for acquisition by a third-party would result in the subject shares getting out of the girdle of the arbitration and the proposed sale would be an antithesis to the object of the interim protection of the Act.
Case Title: Priyanka Tibrewal v. State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 190
The Calcutta High Court observed that the National Human Rights Commission (NHRC) has not violated an earlier order of the Court for constitution of a three member committee to look into the complaints of displaced post-poll violence victims in West Bengal by constituting a team of 11 officers to assist in ministerial work. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had earlier sought response from the NHRC on a plea moved by the State government against the constitution of a team of 11 members by the NHRC which is contrary to the Court's order. The Court noted, "The affidavit in opposition clearly states that supporting staff of 11 officials from NHRC is for ministerial purpose and that the Committee has not delegated its essential function to inquiry to the supporting staff. The supporting staff is only for the purpose of ministerial job so as to ensure that there is no repetition of complaints, taking note of the complaints received from the complainants, verifying documents such as identity cards etc., taking photographs of damaged houses and also videography of the statement made by the complainants and to work as translator etc". Accordingly, the Court dismissed the State government's plea by observing, "In the above circumstances, we do not find that the Committee is acting beyond the order of this Court. Since, an apprehension has been expressed by the State, therefore, we make it clear that though the Committee can taken the assistance of the supporting staff for ministerial work but the essential work of inquiry into the right of the displaced persons for rehabilitation etc. will not be delegated by the Committee constituted by this Court in other person or any group of persons."
191. Technical Issues In Income Tax Portal: Calcutta High Court Gives Fresh Opportunity To Assessee
Case Title: Bhadrish Jayantilal Sheth Versus Income Tax Officer
Case Citation: 2022 LiveLaw (Cal) 191
The Calcutta High Court bench of Justice Md. Nizamuddin has directed the assessing officer to do a new assessment proceedings as taxpayers could not furnish answers to the notice due to the technical glitches in the income tax portal. The petitioner/assessee has challenged the assessment order on the ground of violation of the principle of natural justice by not providing the petitioner an opportunity to file a reply to the show-cause-notice. By the show cause notice, the petitioner was asked to give his reply to the proposed draft assessment through the Department's registered e-filing account by 23:17:59 hours IST on March 30th, 2022. The assessing officer passed the assessment order on March 30th, 2022 at 15:17:08 IST. The court remanded the case back to the Assessing Officer to pass a fresh assessment order in accordance with the law after giving an opportunity to the petitioner to file a reply to the aforesaid show-cause-notice. The court directed the petitioner to file the reply within seven days from the date and directed the respondents to pass a reasoned and speaking order by observing the principles of natural justice.
Case Title: State of West Bengal v. Consideration of State Government Employee
Case Citation: 2022 LiveLaw (Cal) 192
In a significant development, the Calcutta High Court upheld an order of the West Bengal Administrative Tribunal and accordingly directed the State government to release the Dearness Allowance and Arrear Dearness Allowance to its employees as per the West Bengal Services (Revision of Pay and Allowance) Rules, 2009 ( ROPA Rules, 2009) within a period of 3 months. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta ordered, "The petitioners are directed to release the Dearness Allowance and Arrear Dearness Allowance to its employees at the rate to be calculated on the basis of All India Consumer Price Index average 536(1982=100) commensurate with their pay as per the ROPA Rules, 2009 as directed by the Tribunal within three months from date." Opining further that the legal right to get Dearness Allowance as a way to sustain livelihood has been elevated as a fundamental right under Article 21 of the Constitution, the Court observed, "What we feel, apart from acquiring the enforceable legal right to get Dearness Allowance using the methodology of All India Consumer Price Index, such right of the employees to sustain their livelihood with human dignity has been fructified or elevated as fundamental right as enshrined in Article 21 of the Constitution. Such right available to Government Employees who are the main workforce behind the functioning of a Government in right direction cannot be denied by the State. As observed by the Pay Commission, we are of the same view that to pay respect to the statutory rights of the Government Employees to get D.A Allowances at the rate as above, the Government must generate all its resources."
193. Forced Religious Conversion In Bengal's Malda District: Calcutta High Court Orders CBI-NIA Probe
Case Title: Smt Kalabati Mondal v. Union of India
Case Citation: 2022 LiveLaw (Cal) 193
The Calcutta High Court ordered the Central Bureau of Investigation (CBI) and the National Investigation Authority (NIA) to probe an alleged case of forced conversion in West Bengal's Malda district. Justice Rajasekhar Mantha was adjudicating upon a plea moved by two women who had claimed that their husbands, brothers by relation and residents of Kaliachak area of the district, were converted from Hinduism to Islam by force as part of a punishment for working for a political party which lost the last assembly election. Accordingly, the Court sought inputs from the agencies with regard to allegations of forced conversions, cross-border infiltration, threats and intimidation by accumulation and storage of huge quantities of arms and ammunition, and counterfeit currency. "Since the NIA and the CBI are the party respondents to the instant proceeding, appropriate inputs may be given from their side as regards the allegations made in the writ petition", the Court directed. Furthermore, the Superintendent of Police (SP), Malda was also asked to cooperate with the two agencies.
Case Title: Babita Sarkar v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 194
The Calcutta High Court directed the Police Commissioner of Bidhannagar Police Commissionerate to be present at the Netaji Subhash Chandra Airport, Kolkata on Thursday evening so that Minister of State for School Education Paresh Chandra Adhikari can be directly taken from the airport to the CBI office at Nizam Palace in Kolkata for questioning over the alleged illegal appointment of his daughter as a teacher in a government-aided school. Justice Abhijit Gangopadhyay earlier in the day on Thursday had directed the Minister to appear before the CBI at 3pm today for questioning despite vehement opposition from the Minister's counsel on the ground that the Minister is currently at Cooch Bihar and thus would take time to appear before the office of the CBI. The counsel for the Minister apprised the Court that the Minister shall be unable to attend the CBI office at 3pm today since he was in Cooch Bihar and is now flying to Calcutta though a Spice Jet flight which is scheduled to reach Calcutta today in the evening at 18:30 hours. Accordingly, Justice Gangopadhyay directed the Police Commissioner of Bidhannagar Police Commissionerate to immediately get in touch with the airport authorities so that as soon as Adhikari comes out from the flight, he can be take by the police authorities to the CBI office at Nizam Palace directly. "If Mr. Adhiakri is not found in the said flight which will start from Bagdogra at 17:00 hours it will be treated as a hoax created to save himself from the Court and the CBI", Justice Gangopadhyay further warned.
Case Title: Babita Sarkar v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 195
The Calcutta High Court directed the Central Bureau of Investigation (CBI) which is probing the alleged irregularities in the recruitment of teachers in West Bengal government schools to take possession of the data room in the head office of the West Bengal School Service Commission (SCC) at Salt Lake, Kolkata and put in their own padlock in order to avoid any tampering of crucial evidence. Justice Gangopadhyay ordered the CBI to take possession of the data room at the head office by putting their own padlock and accordingly observed, "I hope and expect that CBI will be able to take over the possession and control of data room and will keep a hawk's eye on the said important room in the head office of the school service commission namely Acharya Sadan".The Secretary of the Commission was also instructed to go back to the head office and identify the date room to the concerned CBI officer and such a process of identification was directed to be completed by 6:30 pm on Thursday. The Court further observed that if the data room is to be opened for any purpose, the Commission shall have liberty to approach the Court by disclosing the purpose for such opening. The programmer officer of the Commission namely Parna Bose along with the Secretary of the Commission was also ordered to open the door of the data room and show the concerned CBI officers the computers and other machines that are kept by 7pm on Thursday evening in order to facilitate the process of securing the room. In the meantime, the Court ordered that the deployed CRPF will continue guarding the building of the Commission until tomorrow and shall not allow any person except the Chairman of the Commission, the Secretary, Assistant Secretary and not more than 2 stenographers to access the building.
Case Title: Babita Sarkar v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 196
The Calcutta High Court has ordered that the daughter of West Bengal minister of state for school education Paresh Chandra Adhikari should not be allowed to enter the concerned school premises until further orders and must also deposit the total salary received so far during her tenure as an assistant school teacher with the Registrar General of the High Court. The directions were issued while adjudicating upon a plea filed by an aggrieved candidate who had alleged that she had been deprived of the job despite having secured higher marks than the Minister's daughter in the recruitment examination. Coming down heavily on such an illegal appointment, Justice Abhijit Gangopadhyay ordered that the Minister's daughter namely Ankita Adhikari shall not be allowed to be treated as a teacher recommended by the West Bengal School Service Commission (SCC) and appointed by the West Bengal Board of Secondary Education until further orders passed by the Court. The Court further underscored that Adhikari or any other person on her behalf shall not be allowed to enter the concerned school premises and also restrained Adhikari from introducing herself as a teacher of the school recommended by the Commission until further orders. "If any such report comes to this Court that she has introduced herself as a teacher of the school, the Court will take appropriate steps against her", the Court warned further. Furthermore, the Court ordered Adhikari to deposit the total salary received by her till date during her tenure with the Registrar General of the High Court in two instalments. The first instalment was ordered to be paid by June 7, 2022 and the second instalment was ordered to be paid by July 7, 2022.
Case Title: Partha Chatterjee v Laxmi Tunga
Case Citation: 2022 LiveLaw (Cal) 197
The Calcutta High Court dismissed an appeal moved by West Bengal Minister Partha Chatterjee challenging an order of a single Bench that had directed him to appear before the CBI in connection with the alleged irregularities in appointments of Group-C and Group-D posts (non-teaching staff) in the state government-run schools in West Bengal on the purported recommendation of the West Bengal School Service Commission (WBSSC). A Bench comprising Justice Ananda Kumar Mukherjee and Justice Subrata Talukdar observed that the issue of CBI investigation in these matters has already been discussed threadbare in a series of appeals and has been upheld previously by the Bench in its order dated May 18, 2022. Dismissing the appeal filed by the Minister, the Court on Friday observed, "First, the issues connected to the nature of the investigation have been already discussed threadbare by this Court in a series of appeals being MAT 490 of 2022 (Dr. Santi Prasad Sinha –Vs- Laxmi Tunga & Ors.) with other similar appeals by a common Judgment and Order of this Court dated 18th May, 2022. This Court therefore finds no reason to sit either in appeal or judicial review of its own Order dated 18th May, 2022 presented in the guise of a separate appeal. This appeal accordingly cannot be argued by the appellant on points already decided by the common and detailed Judgement and Order of this Court dated 18th May, 2022." During the proceedings, the counsel appearing for the Minister further sought expungement of Justice's Gangopadhyay observation in the order wherein he had requested Chief Minister Mamata Banerjee and also Governor Jagdeep Dhankhar to remove minister Partha Chatterjee from the cabinet in order to make the 'system cleaner'. Taking cognisance of the grievance raised, the Court ordered the observations of Justice Gangopadhyay in this regard to be treat as an 'obiter dicta' and accordingly ruled, "However, with regard to the expression of the expectation by the Hon'ble Single Bench in its Order dated 18th May, 2022, this Court holds the same to be an obiter and hence not binding at this stage."
Case Title: Alo Rani Sarkar v. Swapan Majumdar
Case Citation: 2022 LiveLaw (Cal) 198
The Calcutta High Court rejected the election petition of TMC leader Alorani Sarkar challenging the Bangaon Dakshin Assembly result in the 2021 Assembly elections on the ground that she has dual citizenship as her name also appears in the voters' list in neighbouring Bangladesh. The Court further directed the Election Commission of India for taking necessary action in respect of the Sarkar's status in this country and accordingly directed the Registrar General of the High Court to send a copy of the order to the Election Commission. Justice Bibek Chaudhuri observed, "In the instant case the petitioner admitted that she acquired citizenship of Bangladesh mistakenly. However, the name of the petitioner still exists in the Electoral Roll of Bangladesh. I am in agreement with the learned advocate for the respondent that the principle of 'Dual Citizenship' is not applicable in India. Therefore, the petitioner cannot claim to be a citizen of India when her name appeared in the Electoral Roll of Bangladesh. The relevant date is the date of filing nomination paper by the petitioner. It is admitted from the documents filed by the petitioner that on the date of filing of the nomination paper by her she was a Bangladeshi national." Directing the Election Commission to take action, the Court further observed, "In view of the peculiar facts and circumstances of this case, a copy of this order be sent to the Election Commission of India for information and taking necessary action in respect of the petitioner's status in this country as on this date, through the learned Registrar General, High Court, Calcutta."
Case Title: Kaniska Roy & Anr v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 199
The Calcutta High Court directed students of a university who had been found to have engaged in ragging to pay for the medical treatment of the injured students and also participate in community service by teaching school students in a bid to deter the repetition of such acts. Justice Moushumi Bhattacharya came down heavily on the errant students by observing, "The petitioners have admittedly disturbed and disrupted the peaceful environment of the University. The petitioners and some others have acted like a bunch of philistines and conducted themselves in a manner which is directly contrary to what should be expected from a student. Ragging, in all its forms, is antithetical to equality and the dignity and self-respect of students, particularly when it takes on a physical and abusive form. It epitomises regressive behaviour with a perceived right to violate the bodily integrity of a fellow-student. There can be no possible excuse for acts of violence and vandalism in an academic institution." Directing the petitioners to engage in community service, the Court observed further, "The petitioners shall also do community service by teaching students in Sadaipur Prathamik Vidyalay and Subhasnagar FP School, Kokapur schools in Barasat, two days in a week for four hours each day for 12 weeks. The community service shall start from the 1st day of the last paper of 8th semester examination and continue for 12 weeks thereafter without interruption."
Case Title: New Eureka Travels Club v. South Bengal State Transport Corporation
Case Citation: 2022 LiveLaw (Cal) 200
The Calcutta High Court while adjudicating upon an application under Section 11 of the Arbitration and Conciliation Act, 1996 (Act) held that it a settled law that neither an interested party can be appointed as an arbitrator nor can the said interested party appoint an arbitrator to decide the disputes between the parties. Justice Shekhar B. Saraf observed, ".. a sole arbitrator is required to be appointed as per the parties and under such circumstances the law is very clear that it is the Court that is to decide the sole arbitrator. The persons that have been nominated by the respondent cannot be accepted and this Court without going into the merits of the persons so nominated, should appoint an independent sole arbitrator." Reliance was also placed on a host of Supreme Court judgments in TRF Limited v. Energo Engineering Projects Ltd, Perkins Eastman Architects v. HSCC (India) Limited and Central Organisation for Railways Electrification v. ECI-SPIC-SMO- MCML (JV) A Joint Venture Company to rule, "..it is clear that neither an interested party can be appointed as an arbitrator nor can the said interested party appoint an arbitrator to decide the disputes between the parties."
Case Title: Assistant Commissioner v. Ashok Sureka
Citation: 2022 LiveLaw (Cal) 201
The Calcutta High Court bench of Justice T.S. Shivagnanam and Justice Hirnmay Bhattacharyya has held that the GST department cannot detain vehicles in the absence of a second e-way bill as the first e-way bill was valid in the interception period. The respondent/assessee submitted that the detention of the vehicle along with the goods and the demand for tax and penalty were not justified. The e-way bill, which was being carried in the vehicle transporting the goods, expired at midnight on September 8, 2019 and the goods were transported on September 9, 2019. The vehicle was intercepted at 1.30 p.m. (noon). The court held that the bona fides of the writ petitioner had to be tested on the documents, which were available on record. "The first e-way bill dated September 7th, 2019 was valid up to September 9th, 2019. Therefore, in the absence of the second e-way bill, the tax authorities at Durgapur could not have intercepted or detained the vehicle. Therefore, the explanation offered by the respondent/writ petitioner was an acceptable explanation and a case cannot be made out that there was a deliberate and willful attempt on the part of the respondent/writ petitioner to evade payment of tax so as to justify invocation of the power under Section 129 of the Act," the court while granting the relief to the assessee observed.
Case Title: Piyarul Sk v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 202
The Calcutta High Court has recently set aside an order of conviction for the offence of murder under Section 302 of the IPC against the husband of the victim on the ground that the child witness being of extremely tender age when the incident occurred was unable to comprehend the circumstances and was also prone to tutoring. In the instant case, the deceased had suffered burn injuries at her matrimonial home and had subsequently passed away in the hospital she had been admitted to. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi noted from the record that the concerned trial court had relied heavily on the deposition of the child witness who had been summoned by the Court under section 311 CrPC to record a finding against the appellant that is the husband of the victim. Underscoring the need for the evidence of a child witness to be examined with utmost care, the Court observed, "When the prosecution primarily rests on the evidence of a child witness, it is the duty of the Court to examine the evidence of the said witness with utmost care and circumspection. A child of tender years is prone to prompting and tutoring. Hence, an onerous duty is cast on the Court to examine the deposition of a child witness not only on his capacity and ability to understand circumstances but also on the possibility of the witness being tutored by persons who have control and custody over him."
Case Title: The Chairperson, West Bengal Commission for Protection of Child Rights v. Election Commission of India & Others.
Case Citation: 2022 LiveLaw (Cal) 203
The Calcutta High Court dismissed a Public Interest Litigation (PIL) petition filed by the Chairperson of the West Bengal Commission for Protection of Child Rights (WBCPCR) seeking a direction upon the Election Commission of India (ECI) to compensate each of the families of the children who have lost their lives due to Covid-19 following the announcement of the general elections in the State on February 26, 2021. A Division Bench comprising Justice Harish Tandon and Justice Soumen Sen dismissed the petition for being 'premature' after noting that the State Commission had not utilised its powers under Section 15 of the Protection of Child Rights Act, 2005 (Act) to conduct an enquiry and ascertain if the cause of death is due to any negligent conduct of the election commission. "In the instant case admittedly, there is no inquiry initiated by the State Commission in terms of Section 15 of the said Act. We could not find any plausible explanation from the writ petitioner for not exercising the said power. When a State Commission is empowered to carry on such investigation and inquiry and ascertain the cause of death it is expected that such enquiry should be conducted first before approaching a constitutional court with such findings and implementations of its recommendations if Government concerned failed to implement such recommendations. Death of any person including a child is unfortunate and undesirable whatever the reasons may be for the cause of such death. A child is a precious asset. It is only expected that if there is any violation of a child's right the Commission would without delay invoke the provisions of the Act and take such measures and steps as they are expected to take under the said Act", the Court underscored.
Case Title: Md. Firoz Ala @ Firoj Alam v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 204
The Calcutta High Court has recently held that the abscondence of an accused by itself does not establish his guilt and accordingly proceeded to set aside an order of conviction for the commission of the offence of murder under Section 302 of the IPC. A Bench comprising Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay was adjudicating upon an appeal preferred against an order of conviction passed against the appellant for murdering a 10 year old boy. It was alleged that the appellant had illicit relationship with Rasida, mother of the boy. It was further contended that the child had disclosed the illicit relationship to his father and accordingly appellant nursed a grudge against him. The Court relied upon the Supreme Court judgment in Sk. Yusuf v. State of West Bengal to rule that it is a settled law that the abscondence of an accused by itself does not establish his guilt. "The aforesaid proposition of law wholly applies to the facts of the present case. Evidence on record shows apart from vague suspicion owing to a hunch that the appellant may have nursed grudge against the child for divulging his illicit association with her mother, no evidence was led to show that the appellant had clear access to the child soon before his death so as to complete the chain of circumstances pointing to his guilt", the Court observed.
205. Motivated To Earn Profit: Calcutta HC Dismisses Bus Operators' Plea Seeking Right To Determine Fares
Case Title: Asansol Mini Bus Association and others v. Union of India and others
Case Citation: 2022 LiveLaw (Cal) 205
The Calcutta High Court has recently dismissed a plea moved by Bus and Minibus Operators' Associations seeking the operators' right in the matter of determination of fares in a manner proportionate to hike of the market price of fuel on the ground that such fixation of fares lies squarely within the authority of the executive. The plea filed contended that the provisions of Section 67 of the Motor Vehicles Act, 1988 (Act) ought to be read down to give a handle to the bus operators to have a say in the fixation of fare structures. Justice Sabyasachi Bhattacharyya observed that the privilege sought by the petitioners for the operators of motor vehicles in having a say in the fixation of fare structure has to be balanced with the convenience of the huge number of passengers and consignors who use the road transport network regularly for travelling and transporting goods. Opining that judicial interference is not warranted in such cases, the Court underscored, "..the domain of fixation of taxes in public transport is squarely within the authority of the executive and pertains to policy decisions of the Governments, both at the State and the Central level. Judicial interference, under normal circumstances, is not warranted, unless the very Constitutionality of the statutes are hit and/or the statues-in-question are in direct contravention of public policy or the like."
Case Title: SREI Equipment Finance Limited versus Additional/Joint/Deputy/Assistant Commissioner of Income Tax and Ors
Case Citation: 2022 LiveLaw (Cal) 206
The Calcutta High Court has ruled that personal hearing conducted by way of exchange of chat messages cannot be said to be an effective opportunity of personal hearing to the assessee and that it does not satisfy the test of fairness or the principles of fair play. The Bench, consisting of Justices T.S. Sivagnanam and Hiranmay Bhattacharyya, reiterated that the moment an insolvency petition is admitted, in view of the moratorium that comes into effect under Section 14(1)(a) of the Insolvency and Bankruptcy Code, 2016 (IBC) there can be no institution or continuation of pending proceedings against the corporate debtor. The Court thus set aside the assessment order passed against the assessee and held that the proceedings initiated against the assessee under the Income Tax Act, 1961 should be kept in abeyance till the completion of insolvency resolution proceedings against the assessee.
Case Title: Shri Sadhan Roy v. Arvind Kumar Singh
Case Citation: 2022 LiveLaw (Cal) 207
The Calcutta High Court while enumerating upon the vires of power in plenary jurisdiction observed that although Order 47, Rule 1 of the CPC imposes a restriction upon parties to approach the Court for review of an order only on the grounds mentioned therein, however such a provision does not and cannot curtail the High Court's power to pass orders ex debito justitiae. A Bench comprising Justice Arijit Banerjee and Justice Kausik Chanda underscored that it has been held repeatedly by the Supreme Court that that the High Court is a court of plenary jurisdiction. Opining that the Court's inherent power to rectify a wrong cannot be restricted by legislation, the Court observed, "If the High Court feels that it has passed an erroneous order which has caused injustice to a party, in my opinion, nothing prevents the court from reconsidering the order and correcting the same by removing the error. In my opinion, not only the High Court has such power but also the solemn duty to do so. I am of the view that though O. 47 R. 1 puts a restriction on the parties to approach the court for review of an order only on the grounds mentioned therein, but, that provision does not and cannot curtail the High Court's power to pass orders ex debito justitiae. The High Court's inherent power to rectify an error, whether of fact or of law, cannot be abridged or restricted by legislation."
Case Title: Mritunjay Singh v. Union of India & Ors.
Case Citation: 2022 LiveLaw (Cal) 208
The Calcutta High Court has recently stayed a Lookout Circular (LOC) issued against a Captain in Merchant Shipping, who is also a Director in a company against which criminal proceedings were initiated by the Central Bureau of Investigation (CBI) for default in payment of loan. The Court opined that such an action would curtail his right to travel abroad for livelihood. A Bench comprising Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon an appeal preferred against a Single Judge order wherein it had been held that diluting the LOC would seriously hamper and prejudice not only the pending proceedings instituted by the CBI but also the recovery process of the Bank. Setting aside the impugned order of the Single Judge and imposing a stay on the LOC, the Court observed, "This Court is of the view that the Lookout circular issued against the appellant/writ petitioner would interfere with the departure from and arrival at the airports across India, leading to curtailing the appellant's right to travel abroad for livelihood. However, as held in Chandran Ratnaswami v. K.C. Palanisamy & Ors 2013 (6) SCC 740 the appellant is directed to file an affidavit of undertaking before this Court."
Case Title: M/s One Textile v. Umesh Bharech
Case Citation: 2022 LiveLaw (Cal) 209
The Calcutta High Court has recently set aside an order acquitting an accused under Section 256 of the CrPC for a complaint registered under Section 138 of the Negotiable Instrument Act by observing that a Magistrate cannot pass such an order merely due to the non-appearance of the complainant without forming a judicial opinion. Section 256 mandates that if the complainant does not remain present on the appointed day after the summons has been issued on the complaint and unless attendance of complainant has been dispensed with, the Magistrate shall acquit the accused. The provision further stated that if the Magistrate feels that the order of acquittal should not be passed on that date, the Magistrate has to give reasons. Justice Bibek Chaudhuri observed, "..acquittal of the accused on the absence of the complainant under Section 256(1) of the Code of Criminal Procedure is not automatic. The court must apply its judicial discretion to the facts and circumstances of the case where it is expedient for the court to acquit the accused under Section 256(1) of the Code." Opining that the impugned order does not contain any judicial discretion, the Court underscored, "The learned Magistrate has also not recorded any finding justifying dismissal of the case. The case was dismissed because the complainant failed to submit any application showing cause of his absence on the previous date. Absence of judicial discretion is apparent on the face of record. Because the learned Magistrate did not assign any reason in support of the requirement that it is not proper to adjourn the hearing of the case to some other date."
Case Title: The State of West Bengal & Ors v. Gandhi Memorial Girls' High School & Ors.
Case Citation: 2022 LiveLaw (Cal) 210
The Calcutta High Court has recently set aside an order vide which a school Headmistress was instructed to vacate her post and also demoted to the post of an assistant teacher by observing that Courts must exercise self-restraint in exercise of plenary powers and not pass an order in disregard to applicable statutory Rules. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta observed, "The courts have imposed self-restraint in exercise of plenary powers and the judicial review in not overstepping the statutory provisions and passing an order in disregard to the statutory Rules or the Act applicable in this regard. The imposition of penalty in a disciplinary proceeding can only be achieved upon adhering the procedures and the norms set forth in the aforesaid Rules and, therefore, assuming the jurisdiction of the disciplinary authority and perceiving the misconduct in ignorance of the aforesaid procedural provisions cannot with stand of the anvil of the legal jurisprudence." While enumerating upon the scope of powers vested upon a Court in the exercise of plenary jurisdiction, the Court underscored, "What can be discerned from the aforesaid observations from the aforesaid reports that the court does not embark upon the journey on a unchartered ocean of powers in an uninformed perception, what would be right and wrong for the society. The Judges must act on a well informed traditions, the procedure of law and impart justice with the rider that in proceeding on such terrain it should not cause injustice to the other."
Case Title: Ajet Ali Baidya v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 211
The Calcutta High Court has recently observed that since the right to property is a valuable right guaranteed under Section Article 300A of the Constitution of India, merely on the ground of delay the State cannot deny its obligation to provide compensation for land acquisition. A Bench comprising Justice Arijit Banerjee and Justice Kausik Chanda was adjudicating upon an appeal preferred against a decision by a Single Judge bench wherein the writ petition of the appellants had been dismissed. The appellant had prayed for a direction that the concerned land acquisition case stood lapsed and thus sought a direction to be put in possession of their respective plots of land. Taking cognisance of the grievance raised, the Bench observed, "We are, however, of the opinion that there might be some delay on the part of the petitioners in approaching this Court, but since the right to property is a valuable right flowing from Article 300A of the Constitution of India, merely on the ground of delay the State cannot deny its obligation to compensate the petitioners."
Case Title: Shukla Mondal @ Sumi v. State of W.B. & another
Case Citation: 2022 LiveLaw (Cal) 212
The Calcutta High Court has recently come to the aid of a victim of human trafficking by observing that impairing chances of a successful trial cannot be a ground to stall the repatriation of the victim to her own country from protective custody. Justice Jay Sengupta was adjudicating upon an appeal preferred against the decision of a Single judge bench order vid which the victim's application for being repatriated to her native country had been rejected on the ground that it would damage the chances of the trial in the case. Opining that success in a trial cannot be a ground to stall the repatriation of the victim, the Court underscored, "Success in the trial cannot be a ground to stall repatriation of the victim lady to her own country. Afterall, she is a victim in this case and while the accused are at large, the victim is languishing in protective custody." Accordingly, the Court set aside the impugned order and further directed that there should be no impediment in having victim repatriated to her own country. The concerned authorities were ordered to take necessary steps in this regard. Liberty was also granted to the petitioner to return to India upon carrying necessary travel documents and depose in the trial in question.
Case Title: Raju Mitra & Ors v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 213
The Calcutta High Court has recently upheld the conviction of a husband for the commission of the offence of dowry death under Section 304B of the IPC after opining that it is impossible for witnesses such as neighbours to state whether the victim housewife was tortured within the four corners of the matrimonial home or not. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi noted from the evidence on record that marks of injury had been found on the body off the deceased and that in addition to the ligature mark, investigating officers had found swelling on the back of the head and bruise marks on the left palm of the deceased. Acknowledging that it is very unlikely that the deceased would confide in witnesses such as neighbours about the torture that was meted out to her, the Court underscored, "These injuries show victim housewife had been subjected to physical assault immediately prior to her death probabilising the saga of torture as narrated by her relations. When a housewife is tortured within four corners of the matrimonial home, persons to whom she would ordinarily confide are her parents and close relations. It is highly unlikely she would narrate her misfortune to outsiders including neighbours. Analysing the evidence on record from this perspective, I am of the opinion evidence of parents and other relations of the victim girl with regard to torture meted out to her over further demand of money are wholly reliable. Evidence of the defence witnesses appear to be tutored. None of the witnesses were privy to the household affairs of the appellants." Thus, the Court opined that the defence witnesses are untrustworthy and that it is impossible for them to state whether victim housewife was tortured within the four corners of the matrimonial home or not.
Case Title: NBCC (India) Ltd. v. The State of West Bengal and Ors. A.P.O No. 11 of 2022
Case Citation: 2022 LiveLaw (Cal) 214
The Calcutta High Court held that objections regarding the non-applicability of the MSMED Act to works contract can be decided in arbitration by MSME Council. The Division Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj upheld the order of the Single Bench whereby the petitioner was referred to arbitration before the MSME Council with a direction that his objection regarding the non-applicability of the MSMED Act as the contract was a works contract would be decided by the Arbitral Tribunal. The Court observed that MSMED Act is a special legislation that has an overriding effect, therefore, the parties are bound to follow the mechanism provided under Section 18 of the Act. The Court held that objections regarding the non-applicability of MSMED Act to works contract can be decided in arbitration by MSME Council. The Court held that the Single Judge rightly rejected the objections of the appellant on the grounds that all such objections are to be raised in the arbitration before the MSME Council and the arbitral tribunal shall decide on these before entering into other questions.
Case Title: Kashinath Dey @ Kashi v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 215
The Calcutta High Court has recently modified an order issued by the concerned Magistrate in proceedings initiated under Section 110 of the CrPC by underscoring that onerous conditions cannot be put in proceedings requiring execution of bond for good behaviour. Justice Jay Sengupta was adjudicating upon a plea challenging proceedings under Section 110 of the CrPC wherein vide order dated February 16, 2022 the concerned Executive Magistrate had directed the petitioner to submit show-cause as to why he shall not be bound down for good behaviour bond under Section 110 of CrPC and should furnish an amount of Rs. 1,00,000 each with 'two reputed Gazetted Officers' as sureties for his good behaviour for such period not exceeding three years. Pursuant to the rival submissions, the Court observed, "It is a settled law that such onerous condition cannot be put either in an order granting bail or in a proceeding requiring execution of bond for good behaviour that cannot be fulfilled by the person on whom such direction is passed." Reliance was placed on the Calcutta High Court judgment in Dipu Singh vs. State of West Bengal in this regard. Opining further that the condition imposed by the concerned Executive Magistrate is onerous and thus cannot be sustained, the Court held, "More than that the condition imposed by the learned Executive Magistrate is suffers from lack of clarity. It is not clear what is the meaning by using the term "reputed Gazetted Officer", as if some Gazetted Officers may not be much repute. Therefore, the onerous condition imposed by the learned Executive Magistrate cannot be sustained."
Case Title: Sri Anish Loharuka v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 216
The Calcutta High Court while enumerating upon the scope of Section 207 of the CrPC which allows documents relied upon by the prosecution to be supplied to an accused, underscored that when there is a possibility of disclosure of identity of a minor victim of sexual offences then instead of supplying it would be expedient to allow the accused or his lawyer to inspect the said documents. Justice Jay Sengupta observed, "..it is abundantly clear that when there is a possibility of disclosure of identity of a minor victim, albeit minor at the time of commission of offence then instead of supplying, copying such documents to the accused, it would be expedient to allow the accused or his lawyer to inspect the said documents. After all, once a document is supplied to the accused, there is no means to ensure that the identity of the victim would not be disclosed by misusing of such document. However, it has also been provided that the accused would have a right to have such a document inspected by an expert of Information Technology."
Case Title: Hafija Laskar v. The State of West Bengal and others
Case Citation: 2022 LiveLaw (Cal) 217
The Calcutta High Court refused to issue a writ of Habeas Corpus at the instance of the petitioner by opining that the allegation of custodial torture against another accused in a different case cannot ipso facto raise presumption in the mind of the Court that custodial torture is being meted out to the petitioner as well. A Bench comprising Justice Sabyasachi Bhattacharyya and Justice Ajoy Kumar Mukherjee observed, "..we do not find from the materials on record any scope of presumption or apprehension of custodial torture against the petitioner. In fact, the mere incident of alleged custodial torture against another person who has been in custody, being the accused in a different case (a near relative of the petitioner, namely Md. Ali @ Subrata Byne), cannot ipso facto raise presumption in the mind of the court regarding the custodial torture of the petitioner as well."
Case Title: Susmita Saha Dutta v. Avishek Bandyopadhyay
Case Citation: 2022 LiveLaw (Cal) 218
The Calcutta High Court dismissed a petition seeking initiation of suo motu contempt proceedings against Trinamool Congress (TMC) MP Abhishek Banerjee for his purported derogatory remarks against the judiciary by opining that the remarks do not tantamount to a contumacious act justifying issuance of a suo motu rule of contempt. A Bench comprising Justice Sabyasachi Bhattacharyya and Justice Ajoy Kumar Mukherjee was further apprised by the petitioner that the TMC MP had intended to ridicule the judiciary thereby scandalising the Court. It was further contended that Banerjee has a public audience by virtue of his office and thus tried to malign the judiciary and undermine its dignity. However, the Bench refused to initiate contempt proceedings against Banerjee by observing, "In the present case, undoubtedly the comments uttered by the person in question may not be palatable to the general public and/or the members of the Judiciary, however, such nature of the act need not have the effect tantamounting to a contumacious act, justifying issuance of a suo motu rule of contempt."
Case Title: Yes Bank Limited v. Malati Saha
Case Citation: 2022 LiveLaw (Cal) 219
The Calcutta High Court has recently observed that an intra-court appeal cannot be entertained against an order for initiation of criminal proceedings pursuant to Clause 15 of the Letters Patent. A Bench comprising Justice Arijit Banerjee and Justice Ananya Bandyopadhyay placed reliance on the Supreme Court decision in Ram Kishan Fauji v. State of Haryana to observe, "As we understand, the Hon'ble Supreme Court has laid down in the case of Ram Kishan Fauji that where the order in question causes initiation of a criminal proceeding which may result in punishment of the accused person by way of imprisonment or fine, or if by reason of such order, a criminal proceeding stands terminated, then such an order would be considered to have been passed by the Court in exercise of criminal jurisdiction. In such a case, Clause 15 of the Letters Patent would clearly bar an intra-court appeal."
Case Title: Sulogna Chowdhury v. State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 220
The Calcutta High Court refused to issue any interim order in a Public Interest Litigation (PIL) petition against the holding of a public rally on a river bed by West Bengal Chief Minister Mamata Banerjee on June 1 thereby polluting the Gandheswari river. A Bench comprising Justice Sabyasachi Bhattacharyya and Justice Ajoy Kumar Mukherjee took on record a report filed by the Executive Engineer, Bankura Irrigation Division wherein it had been submitted that that no activity was found on the river-bed and apart from levelling and dressing, no activity related to change of existing ground profile was found on the river-bed. Refusing to issue any interim order, the Court observed, "Upon scrutinising the photographs annexed to the present writ petition, it is evident that the alleged river- bed, where the rally is proposed to be held, is absolutely dry and there is no scope of adversely affecting the river water or polluting the same in any manner by virtue of holding such rally."
Case Title: Pranesh Kumar Kar v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 221
The Calcutta High Court has recently directed the concerned Treasury Officer to pay interest for delayed payment of gratuity and arrear pension amount to an Assistant Teacher, after opining that it is a valuable right of a retired employee. Justice Amrita Sinha observed, "An employee has a statutory right to receive gratuity and pension upon retirement. If payment of such gratuity and pension is delayed the retired employee is surely entitled to get some interest for such delayed payment." The Court also remarked that pension and gratuity are welfare provisions aimed at maintaining the life of a retired employee and his/her dependents and that it is compensatory in nature.
Case Title: Abhishek Banerjee & Anr v. The Union of India & Ors
Case Citation: 2022 LiveLaw (Cal) 222
The Calcutta High Court allowed Trinamool Congress's National General Secretary Abhishek Banerjee and his wife Rujira Banerjee to go to Dubai for medical treatment. This comes even as the Enforcement Directorate (ED), which is probing the two in a coal smuggling scam, opposed their travel. Allowing the TMC MLA and his wife to travel to Dubai for medical treatment, Justice Bibek Chaudhuri observed, "Considering the instant application purely on humanitarian ground, this Court permits the petitioner no.1 and his wife to visit Moorfields Eye Hospital, Dubai, United Arab Emirates during the period between 2nd June, 2022 and 10th June, 2022." Directing the petitioners to submit details about their accommodation and the hospital where the medical treatment will be sought, the Court underscored, "The petitioners shall submit the copies of the air tickets and the address where they would stay in Dubai during the particular period to the Enforcement Directorate with the phone numbers of the Hospital and the place of accommodation of the petitioners so that the Enforcement Directorate can keep a track of the whereabouts of the petitioners."
Case Title: Rajina Begam v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 223
The Calcutta High Court has recently opined that the power of the Constitutional Court cannot be used as a coercive machinery and thus ordered the aggrieved person to seek relief from the concerned Jurisdictional Magistrate regarding the alleged police inaction. Justice Bibek Chaudhuri was adjudicating upon a case wherein the petitioner had alleged that she had been manhandled and also her modesty had been outraged by the respondent and his associates in an altercation regarding construction over a disputed property. Opining further that the power of the Constitutional Court cannot be used as a coercive machinery, the Court underscored, "The power of the Constitutional Court cannot be used as a coercive machinery upon an individual. If the petitioner has any objection with regard to the course of investigation, she can take appropriate step in the Court of the Jurisdictional Magistrate."
Case Title: In Re: Satyadeo Prasad Shaw
Case Citation: 2022 LiveLaw (Cal) 224
The Calcutta High Court opined that a litigant should not be penalised for the misconduct of his advocate and accordingly allowed an application seeking condonation of delay of about 9 years and 4 months in filing the revision petition. The counsel appearing for the petitioner submitted before Justice Kaushik Chanda that the petitioner had not been informed by his advocate that his criminal appeal had been dismissed by the concerned Sessions Judge on December 13, 2012. Pursuant to the submissions, the Court underscored, "A litigant should not be penalised for the laches or misconduct on the part of his learned advocate. In the present case, though I am of the view that the petitioner should have been more diligent in pursuing his case before this Court, I am inclined to grant him an opportunity to contest his appeal on merit." Accordingly, the Court condoned the delay in preferring the instant revisional application subject to the condition that the petitioner will pay a cost of Rs.10,000 to the State Legal Services Authority, West Bengal within a period of 2 weeks.
225. Calcutta HC Upholds Single Judge Order For CBI Probe Into Congress Councillor Tapan Kandu's Murder
Case Title: State of West Bengal v. Purnima Kandu
Case Citation: 2022 LiveLaw (Cal) 225
The Calcutta High Court upheld the order of a Single Judge bench for a CBI probe into the death of former Congress councillor of Jhalda Municipality in Purulia, Tapan Kandu who was reportedly shot dead by miscreants on March 13. A Division Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj noted that the counsel appearing for the CBI has pointed out that the CBI has already taken over the investigation and substantial progress in the investigation has been done. Opining that no case of interference is made out, the Court observed, "In view of the circumstances noted above, we do not find any error in the order of the learned Single Judge and no case of interference is made out. We make it clear that any observation made by the learned Single Judge in the order under challenge or by this Court in this order are only tentative for the purpose of deciding the present issue and they will not prejudice the trial in any manner."
Case Title: Goutam Saren v. Union of India & Ors
Case Citation: 2022 LiveLaw (Cal) 226
The Calcutta High Court came down heavily on the Central Administrative Tribunal for failing to dispose of a matter within a month despite its earlier order, by labelling it to be a 'sordid state of affairs'. A Bench comprising Justice Shampa Dutt (Paul) and Justice Harish Tandon underscored, "It is the sordid state of affairs that despite all requests having been made to the officers manning the tribunal to dispose of the matter within a month from the date of the communication of this order, no substantial progress could be seen therefrom." Opining that the time limit set forth is mandatory, the Court further observed, "The time limit set forth hereinabove, is peremptory and mandatory. If necessary, the tribunal shall fix the date on day to day basis in order to adhere to the time fixed by this Court in the impugned order."
Case Title: Anup Gupta v. State of West Bengal and others
Case Citation: 2022 LiveLaw (Cal) 227
The Calcutta High Court while adjudicating upon a plea alleging illegal appointment of assistant teachers for Class 9 and Class 10 in State-run schools, directed West Bengal Board of Secondary Education to set aside the appointment of a mathematics teacher. In the instant case, one Siddique Gazi was working as a mathematics teacher at Soluadanga High School in Murshidabad since February 2021. Justice Rajasekhar Mantha took on record the report filed by Ashok Kumar Saha, Assistant Secretary, West Bengal Central School Service Commission wherein the Commission had admitted that the appointment of Gazi as Assistant Teacher in the subject of Mathematics in OBC for Class IX & X under the State Level Selection Test, 2016 has been a mistake. Directing the Board of Secondary Education to immediately cancel his appointment, the Court underscored, "In that view of the matter, appointment of Siddik Gazi as Assistant Teacher by the Board of Secondary Education shall stand quashed and set aside. The Board shall take immediate consequential steps. An illegal appointment cannot confer any right on an appointee." The Court stated that it will consider on June 8 whether the said appointment was obtained by fraud or other malpractice. It further directed that no arrears whatsoever in any form shall be paid to the illegal appointee in the meantime.
Case Title: Protima Dutta v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 228
The Calcutta High Court transferred to the Central Bureau of Investigation (CBI) the probe relating to murder of Trinamool Congress leader Tapan Dutta. The CID West Bengal which was probing the case was directed to immediately handover the investigation to the CBI. Dutta, then vice-president of Trinamool Congress' Bally Jagacha block unit in Howrah, was shot dead on May 6, 2011. The block unit was spearheading a movement to stop the filling up of 750-acre wetland, when Datta was killed. Pursuant to the rival submissions, Justice Rajasekhar Mantha opined that the pressure on the State police to shield certain persons and their nefarious actions cannot be ruled out and accordingly observed, "This Court's mind is not free from doubt that the murder in question might have been the result of a rivalry and a conspiracy. The victim may have been obstructing huge monetary and/or political gain that some persons were after. Such persons are politically powerful and well connected. A fair and effective investigation may indeed open a can of worms, or expose any likely role of influential persons. The pressure on the State police and the investigation agencies to shield certain persons and their nefarious actions cannot therefore be ruled out. Change of the investigating and prosecuting agency in the instant case is also necessary to instil faith in the family of the victim and the public at large."
Case Title: Soumen Nandy v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 229
The Calcutta High Court ordered a probe by the Central Bureau of Investigation (CBI) in a case related to primary teacher recruitment and directed the central agency to submit their report in a closed envelope on June 15. Justice Abhijit Gangopadhyay was apprised by the petitioner that former state minister and IPS officer Upendra Nath Biswas had named one Chandan Mondal of Bagda, North 24 Parganas for allegedly giving jobs of primary school teachers in lieu of money. Incidentally, Upendra Nath Biswas is a former additional director of the CBI. It was further alleged that Mondal is hands-in-glove with Ministers of the Education Department of Government of West Bengal. Ordering for a CBI probe, the Court underscored, "Serious allegation by one responsible person, who was none other than the Ex-Additional Director of CBI and a Cabinet Minister of the State Government in the first five years of the Government, has come before this court which is serious corrupt practice. I hold this aspect is to be thoroughly investigated by the CBI and such investigation is required to be started forthwith. The Police of this State is otherwise very efficient but controlled by some persons in power and cannot act freely which is common knowledge and without showing any disrespect to the Police authority I hold that CBI is the appropriate authority to investigate the matter."
Case Title: Mousumi Narayan (Nee Pal) v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 230
The Calcutta High Court transferred an investigation into a criminal case to the West Bengal CID after noting that the lawyer of the petitioner had been threatened by the concerned inspector of the local police station. Justice Bibek Chaudhuri directed the Deputy Inspector General of Police (DIG) of the West Bengal CID to appoint an Officer to investigate the case and accordingly observed, "Since the learned advocate for the petitioner was even threatened by the police inspector being the well wisher of the opposite parties, this Court is of the view that both Kasba Police Station Case No.254 of 2021 and Anandapur Police Station Case No.63 dated 5th April, 2022 ought to be investigated by a competent officer of C.I.D., West Bengal. Therefore, the Officers-in-charge of Kasba P.S. and Anandapur P.S. are directed to hand over the case diary of the above mentioned case to the Officer, CID for further investigation as appointed by the D.I.G., C.I.D." The Court thus ordered for a copy of this order to be sent to the D.I.G., C.I.D., Government of West Bengal at Bhawani Bhawan, Alipore.
Case Title: Usthi United Primary Teachers Welfare Association & Anr v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 231
The Calcutta High Court allowed a Primary Teachers' Welfare Association to conduct a peaceful protest rally on June 11 from Raja Subodh Mullick Square Park to Rani Rashmoni Avenue in Kolkata. Justice Shampa Sarkar however imposed a host of conditions and further underscored that the police authorities shall be at liberty to ensure that no breach of peace takes place and law and order is maintained. The Court further noted that the police authorities have not objected to such a rally and that the petitioner wishes to have a peaceful rally with limited number of loudspeakers and vehicles.
Case Title: Central Bureau of Investigation (Special Case No.04/99) v. Ms. S.R.Ramamani & Ors
Case Citation: 2022 LiveLaw (Cal) 232
The Calcutta High Court vide order dated June 8, 2022, has suggested that the CBI issue a fresh circular empowering the Additional Solicitor General (ASG) and the Public Prosecutor to give their opinion to the Director of Prosecution on filing appeals challenging court orders, to cut down on delay. Justice Bibek Chaudhuri had expressed displeasure at the agency for filing appeals after the expiry of the limitation period. The Court had noted that the CBI officers were failing to comply with the CBI manual which stipulates detailed provisions to avoid delay and ensure filing of appeals and revisions within the limitation period. Accordingly, the Court had opined that the issue could not be decided without hearing the CBI Director and thus sought his virtual appearance. On Wednesday, Justice Chaudhuri reiterated his proposal when CBI Director-General S K Jaiswal was present via virtual mode during the hearing.
Reiterating the proposal to sought the opinion of the ASG and the Public Prosecutor on filing appeals challenging court orders, the Court observed, "The experience of this Court shows that the circular dated 4th March, 2020 is maintained only in papers. It is not being followed and till date the appeals are filed by the CBI against order of acquittal after expiry of the period of limitation. Thereafter, this Court further reiterates its proposal to be considered by the CBI in its administrative side to come up with a fresh circular to the fact that against an order of acquittal the zonal shall obtain a comments of the Public Prosecutor and the learned Assistant Solicitor General send the said comments directly to the Director of Prosecution for his consideration. The Director of Prosecution shall consider the opinion of the learned Assistant Solicitor General of the respective High Courts within seven days from the date of receipt of the opinion and finally shall take decision as to whether an appeal should be file or not."
Case Title: Suvendu Adhikari v. Abhishek Banerjee
Case Citation: 2022 LiveLaw (Cal) 233
The Calcutta High Court ordered the transfer of a defamation suit filed by Trinamool Congress (TMC) national general secretary Abhishek Banerjee against BJP MLA and Leader of Opposition in West Bengal Assembly Suvendu Adhikari from a Court in Diamond Harbour, South 24-Parganas to a City Civil Court in Calcutta. Adhikari had moved an application under Section 24 of the Code of Civil Procedure (CPC) seeking transfer of the suit now pending in the court of Civil Judge (Junior Division), 2nd Court, Diamond Harbour, South 24-Parganas to the court of Chief Judge, City Civil Court, Calcutta. Justice Rabindranath Samanta observed, "Having heard learned counsels appearing for the parties and considering the balance of convenience and inconvenience of the respective parties, I feel that it would be wise to withdraw Title Suit No.19 of 2021 from the court of learned Civil Judge (Junior Division), 2nd Court, Diamond Harbour and transfer the suit to learned Chief Judge, City Civil Court, Calcutta." The concerned Chief Judge was also ordered to make all endeavour so that the suit is disposed of as expeditiously as possible.
Case Title: Nipika Agarwal Proprietress of S.N. Trading Versus Assistant Commissioner of State Tax
Case Citation: 2022 LiveLaw (Cal) 234
The Calcutta High Court bench has held that assessees should be given the opportunity to produce evidence which has an impact on tax liability. The division bench of Justice Debangsu Basak and Justice Bibhas Ranjan De has observed that tax authorities must adjudicate upon the tax liability in accordance with the law. Similarly, if the assessee is unable to present certain evidence that affects the tax liability, the assessee should be given a reasonable opportunity to bring the evidence to the attention of the tax authorities. "We are of the view that another opportunity should be granted to the appellant/writ petitioner to place the document dated August 25, 2021 before the revisional authority. The appellant/writ petitioner is at liberty to approach the revisional authority within a fortnight from this date with regard to the order of assessment dated May 3, 2021. If so approached, the revisional authority is requested to reconsider its order passed on refund, taking into account the document dated August 25, 2021 in accordance with law," the court said.
Case Title: Shri Adhir Ranjan Chowdhury v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 235
The Calcutta High Court refused to initiate a probe by the Central Bureau of Investigation (CBI) into the alleged Metro Dairy scam, by opining that no case has been made out for interference as the State has not adopted any non-transparent or opaque sale of shares. The Court was adjudicating upon a Public Interest Litigation (PIL) petition moved by West Bengal Congress President Adhir Chowdhury alleging a lack of transparency in West Bengal government's sale of its 47 percent stake in Metro Dairy to private dairy organisation Keventer Agro Ltd in 2017. In the same year, one Singapore-based company had reportedly bought Metro Dairy's 15 per cent share at a much higher price. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed that the policy decision of the West Bengal government to sell its 47 per cent stake in Mother Dairy (respondent no. 5) to Keventer Agro Ltd in an auction for Rs 85 crore was neither illegal nor arbitrary. "Having regard to the above, we find that policy decision of the State to sell 47 % shares of respondent no. 5 MDL was neither illegal nor arbitrary and State had also not adopted non-transparent or opaque procedure for sale of shares, hence no case for interference in the present writ petition is made out which is accordingly, dismissed", the Court ruled.
Case Title: Niladri Saha v. State of West Bengal and other connected matters
Case Citation: 2022 LiveLaw (Cal) 236
The Calcutta High Court sought the State government's response in a batch of Public Interest Litigation (PIL) petitions seeking deployment of central paramilitary forces in West Bengal amid the ongoing protests against offensive remarks made against Prophet Mohammed by now suspended BJP leaders. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj underscored that the State authorities must ensure that no untoward incident takes place and further directed that the State should seek help from central forces in case they fail to control the situation. "In the meanwhile we express hope that the State authorities will take all possible steps to ensure that no untoward incident takes place and peace is maintained. In case, the State Police is unable to control the situation at any place then State authorities will take immediate steps to call the central forces", the Court observed. The Bench further directed the State government to consider looking into appropriate video footage to identify the miscreants responsible for the violence. The Advocate General was also instructed to consider the issue of grant of compensation to those who have suffered loss of property in the alleged incidents of violence and accordingly apprise the Court about the steps taken on the next date of hearing.
Case Title: Ramesh Malik & Ors v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 237
The Calcutta High Court ordered the Central Bureau of Investigation (CBI) to probe into recruitment of teachers in government-aided primary schools by the State's primary education board. Justice Abhijit Gangopadhyay directed the CBI to file an FIR to initiate an investigation into alleged illegal recruitment of teachers by the board based on the teachers' eligibility test in 2014. Furthermore, the primary education board secretary Ratna Chakraborti Bagchi and president Manik Bhattacharya were also ordered to appear before the CBI at its office later by 5pm on Monday. "In view of the illegality committed in respect of the second panel (termed as Additional Panel, by the Secretary of the Board), which is wholly illegal and giving illegal appointment to 269 candidates by a queer method unknown to law, I direct the Central Bureau of Investigation ('CBI', for short) to start investigation by registering a case immediately against the Board and start interrogating the President of the West Bengal Board of Primary Education, Dr. Manik Bhattacharya, and the Secretary of the said Board Dr. Ratna Chakraborty Bagchi, which shall start today itself. I direct the petitioners to add Dr. Manik Bhattacharya, the President of the West Bengal Board of Primary Education and Dr. Ratna Chakraborty Bagchi, the Secretary of the said Board as party respondents and they are to go to the CBI office at Nizam Palace by 5:30 p.m. today to face interrogation", the Court ordered.
Case Title: M/S. Dunlop India Limited and Ors v. Mathai and Sons
Case Citation: 2022 LiveLaw (Cal) 238
The Calcutta High Court came down heavily on an unsecured creditor seeking a stay of the e-auction process to liquidate plant and machinery of Dunlop India Ltd, opining that it is a desperate attempt to keep the claims of the creditors and workers uncertain and in a limbo for all times to come. Justice Moushumi Bhattacharya was adjudicating upon an application moved by one Miller Traders Private Limited, an unsecured creditor of Dunlop India Ltd seeking a stay of an e-auction sale notice dated February 21, 2022. The Court imposed costs on the applicant to the tune of Rs 2 lakhs and further observed, "The irrefutable conclusion is that the applicant does not want closure or any constructive resolution of the matter but seeks to keep the claims of the creditors and workers uncertain and in a limbo for all times to come. If a reference can be drawn to the meat of the matter – the conduct of the applicant is simply not kosher."
Case Title: Abhisek Panda & Ors v. West Bengal National University of Juridical Sciences & Ors
Case Citation: 2022 LiveLaw (Cal) 239
The Calcutta High Court restrained the West Bengal National University of Juridical Sciences (NUJS) from discontinuing online courses started by it in 2012 for already enrolled students and further opined that degrees and diplomas awarded on successful completion of the courses will be deemed to have been issued with the approval of the University Grants Commission. In or about in 2012, NUJS had decided to start online courses in various subjects and for proper administration of these courses it took the assistance of a facilitator- an organisation called Ipleaders. Thereafter, IPleaders and NUJS made an arrangement between themselves with regard to allocation of work and responsibilities and the sharing of revenue earned from the students. A Bench comprising Justice Subhendu Samanta and Justice I. P. Mukerji opined that it would be inequitable to discontinue the courses and accordingly underscored, "In our opinion, at this point of time it would be most inequitable and unjust to de-recognise the course cancel it and direct refund of fees. Since on the representation of the University the students had undertaken this method of study and thus altered their position, the doctrine of promissory estoppel would prevent the University from calling off this course. It would also prevent the University Grants Commission from de-recognising it."
Case Title: Electrosteel Castings Limited Versus The Assistant Commissioner
Citation: 2022 LiveLaw (Cal) 240
The Calcutta High Court has ruled that cess is not applicable on the coal used as an input for manufacturing finished goods for the domestic supply. The single bench of Justice Md. Nizamuddin has observed that goods which are subject to a nil rate of cess would be construed as exempt supplies for purposes of the formula prescribed in Rule 89 (4) of the CGST Rules. Therefore, it deserves to be excluded from the calculation of adjusted total turnover. he court noted that cess is akin to the components of GST, which is a constitutionally approved amalgam of State taxes, which existed prior to the commencement of the GST regime. The Goods and Services Tax Compensation Cess Rules, 2017 were also framed and made effective from 1st July, 2017, wherein the Central Goods and Services Tax Rules, 2017 were adapted. Having regard to the conscious use of the expression "mutatis mutandis" in Section 11 of the Cess Act, all the provisions of the CGST and IGST Acts would be squarely applicable to the levy, collection, and refund of the Cess Act. The words "tax" and "cess" for the purpose of the Act would have to be used interchangeably.
Case Title: Niladri Saha v. State of West Bengal and other connected matters
Case Citation: 2022 LiveLaw (Cal) 241
The Calcutta High Court vide order dated June 15 has reiterated that the State authorities must assess the ground situation and take steps to deploy central paramilitary forces if the need arises before any loss of life or property takes place. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a batch of Public Interest Litigation (PIL) petitions seeking deployment of central paramilitary forces in West Bengal amid the ongoing protests against offensive remarks made against Prophet Mohammed by former BJP spokespersons Nupur Sharma and Naveen Kumar Jindal. Pursuant to a perusal of the rival submissions on Wednesday, the Court ordered, "Having regard to the apprehension which have been expressed, we direct the State authorities to assess the ground situation in advance and take steps to call for the Central Forces in terms of earlier directions in case if the need so arises, before the situation goes out of control or before any loss of life or property takes place."
Case Title: Ramesh Malik & Ors v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 242
The Calcutta High Court ordered the Central Bureau of Investigation (CBI) to set up a special investigation team (SIT) under the supervision of a Joint Director of its anti-corruption branch to probe alleged irregularities in the recruitment of teachers in state government-sponsored and aided primary schools. The Court also directed that the SIT members cannot be transferred from Kolkata until the conclusion of the probe. Justice Abhijit Gangopadhyay on the last date of hearing had directed the CBI to file an FIR to initiate an investigation into alleged illegal recruitment of teachers by the board based on the teachers' eligibility test in 2014. Furthermore, the primary education board secretary Ratna Chakraborti Bagchi and president Manik Bhattacharya were also ordered to appear before the CBI at its office later by 5pm on Monday. "CBI shall constitute a Special Investigation Team (SIT) of competent officers who will be the only members of the SIT and whose names will be supplied to this court on 17th June, 2022 when these two matters will appear under the heading "To Be Mentioned" at the top of the list. The Joint Director who is now heading the Anti-Corruption Bureau of CBI shall be the head of the SIT whose name also shall be intimated to this court by CBI on 17.06.2022. The members of SIT and the said Joint Director shall not be transferred from Kolkata till the investigation is complete in every respect", the Court ordered.
Case Title: Mahendra Kumar Jain v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 243
The Calcutta High Court ordered the setting up of a special investigating team (SIT) to investigate the death of a 25-year-old woman Rasika Jain, who had fallen from the third-floor terrace of her in-law's house in February 2021, following which her family members complained of foul play. They moved the High Court claiming that the police were not properly pursuing the case and prayed for the court's intervention. Justice Shampa Sarkar opined that the investigation into the case by the State police authorities has been 'slow and directionless' and further underscored, "Having considered the graveness of the allegations, the social position of the parties and the unfortunate events which led to the death of the young lady and especially in view of the delay which has occurred in the interregnum period, this Court is of the view that the investigation ought to have been conducted in a more speedy and systematic manner. It has been rather slow and directionless. The offences relate to dowry death and crime against women. It has a huge social impact." Directing the special commissioner of police, Kolkata, Damayanti Sen to set up the SIT within seven days and start the investigation, the Court ordered, "The Court directs Smt. Damayanti Sen, Special Commissioner of Police (II), Kolkata Police, to constitute her own team of competent officers to take over the investigation. At least a team of five officers must be constituted."
Case Title: Suresh Babu @ Arakkal Arjunan Suresh Babu v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 244
The Calcutta High Court held that a customer merely visiting a brothel for sexual pleasure cannot be held liable for offences under the Immoral Traffic (Prevention) Act 1956 (Act). Justice Ajoy Kumar Mukherjee underscored that what is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby, keeping or allowing a premises as brothel. "Mere visiting the house of sex worker as customer cannot be presumed to be living on earnings of sex workers. To invoke the presumption it must be shown that he was found in the company of the sex worker on some other occasion," the Court observed. Accordingly, the Court quashed the chargesheet and the criminal proceedings initiated against the petitioner by observing, "Having regard to the facts and circumstances of the present case and considering the materials that the petitioner was found in the alleged brothel as customer and that on the date of occurrence he only went there after coming from Dubai to have sex with a sex worker in lieu of money and in the absence of any evidence that he is living on the earning of any of the accused/sex worker or is a habitual visitor of the said place and thereby has exercised control, direction or influence over the movement of any of the sex worker against which can be said to be aiding or abetting their sex work or that he was habitually living with any of the accused sex worker, I find that the sections in which the cognizance has been taken by the Magistrate against the present petitioner is bad in law and the said cognizance is taken without considering the materials in the case diary."
Case Title: Pranati Aguan v. State of West Bengal and Ors
Case Citation: 2022 LiveLaw (Cal) 245
The Calcutta High Court has recently observed that the right to equality enshrined under Article 14 of the Constitution does not mean giving equal treatment or equal protection of the law to persons who are unequals and that its violation would entail giving iniquitous treatment to persons falling within the same bracket despite their homogeneous characteristics. Justice Moushumi Bhattacharya was adjudicating upon a plea seeking cancellation of amendments made to the West Bengal School Service Commission (Selection for appointment to the Posts of Headmaster/Headmistress in Secondary or Higher Secondary and Junior High Schools) Rules, 2016 as notified on March 24, 2017 and all subsequent Notifications issued thereafter to the extent of imposing enhanced qualifications for selection of Headmasters/Headmistresses in Secondary, Higher Secondary and Junior High Schools. Enumerating further upon what constitutes 'reasonable classification' under Article 14 of the Constitution, the Court underscored, "The safeguard in Article 14 of the Constitution is to prevent discriminatory treatment of persons who claim to be equals; the right does not mean giving equal treatment or equal protection of the law to persons who are unequals and would hence require differential treatment for preserving their unique and individual characteristics. The image which comes to mind is of 3 persons of unequal height being given 3 ladders to see beyond a wall; the idea is not to give 3 equal-sized ladders to the 3 persons but giving the tallest ladder to the shortest person and the shortest ladder to the tallest person so that all 3 can look beyond the wall (wishfully at a brighter and more equal future)."
246. Calcutta High Court Disposes BJP MLA Suvendu Adhikari's Plea After Speaker Revokes Suspension
Case Title: Suvendu Adhikari and Ors v. Hon'ble Speaker, West Bengal Legislative Assembly
Case Citation: 2022 LiveLaw (Cal) 246
The Calcutta High Court disposed of a writ petition challenging the decision of West Bengal Assembly Speaker Biman Bandyopadhyay to suspend Leader of the Opposition Suvendu Adhikari and four other BJP MLAs from the West Bengal Legislative Assembly. The Court was apprised that the Speaker on Thursday had revoked the suspension of the BJP MLAs including that of Leader of Opposition Suvendu Adhikari after consultation with the State's Parliamentary Affairs Minister Partha Chatterjee. Justice Rajasekhar Mantha had earlier sought response from Speaker Biman Bandyopadhyay in the plea filed by the saffron party legislators challenging his decision. Thereafter, the Court had underscored that the pendency of the plea would not stand in the way of the parties resolving the issue in accordance with rules. "This Court is relieved to note that the motion suspending the petitioners from the House has come for consideration on another motion moved to withdraw the same. Suspension has been terminated", the Court observed.
Case Title: Raj Kumar Singh & Anr. versus Assistant Commissioner
Case Citation: 2022 LiveLaw (Cal) 247
The Calcutta High Court bench of Justice Md. Nizamuddin has held that the GST order passed without giving an opportunity of personal hearing is against the principles of natural justice. The petitioner has challenged the adjudication order passed by the Adjudicating Authority. The primary ground of challenge was that the order was passed in violation of the principle of natural justice by not affording an opportunity of personal hearing to the petitioners in spite of a specific request. The court set aside the GST order and remanded the matter back to the Adjudicating Officer to pass a fresh order after giving an opportunity of hearing to the petitioners or their authorised representative within eight weeks.
Case Title: In the matter of : Ved Prakash Arya v. State
Case Citation: 2022 LiveLaw (Cal) 248
The Calcutta High Court has recently expressed its displeasure at the way cases involving sex trafficking of minor girls are being conducted in the State and has accordingly directed the Director General of Police, West Bengal to ensure that such cases are transferred to the Anti Human Trafficking Unit so that they can be investigated by specialised officers, preferably lady officers. Opining that victims require psychological counselling which the investigating agencies have failed to provide, a Bench comprising Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay underscored, "We note with anguish indifferent manner in which cases involving sex trafficking of minor girls are being conducted. These cases require to be investigated by a specialised agency manned by police personnel who are duly sensitised in the matter. Victims in such cases are either women or minor coming from weak and marginal sections of society. They require proper protection, support and assistance including psychological counselling. We notice no steps are taken by the investigating agencies in this regard." The Court thus directed the Director General of Police, West Bengal to take necessary steps so that cases involving trafficking of women particularly minors for sexual exploitation are transferred to the Anti Human Trafficking Unit for investigation and to ensure that victims are granted interim compensation and psychological support.
Case Title: Ramesh Malik & Ors v. The State of West Bengal & Ors.
Case Citation: 2022 LiveLaw (Cal) 249
The Calcutta High Court observed that a Special Investigation Team (SIT) of the CBI which is probing into the alleged illegal appointment of teachers in West Bengal government-sponsored and aided primary schools, will also look into the cases of irregularities in recruitment of teaching and non-teaching staff in secondary schools on the purported recommendation of the school service commission (SSC). The counsel appearing for the CBI apprised Justice Abhijit Gangopadhyay about the constitution of the SIT in accordance with his earlier order. The CBI submitted the names of six SIT members, who will be investigating the cases under close supervision of its anti-corruption branch's superintendent of police, and its joint director. The Court further ordered that CBI Joint Director N. Venugopal shall head the SIT and supervise the whole investigation. "..I want to make it clear that the Joint Director Mr. N. Venugopal shall be the head of the SIT meaning thereby he will supervise the investigation of SIT for the purpose for which it has been constituted", the Court underscored.
250. 'No Illegality': Calcutta High Court Upholds State Govt's Door Step Ration Delivery Scheme
Case Title: Sk. Manowar Ali & Ors v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 250
The Calcutta High Court has held that there is no illegality in the West Bengal Duare Ration scheme, under which the State government delivers foodgrains through the public distribution system at the doorsteps of beneficiaries. Justice Krishna Rao was adjudicating upon a plea wherein a prayer had been made stipulating that a notification by the state government on September 13, 2021, which amended Clause 18 of the West Bengal Public Distribution System (Maintenance and Control) Order, 2013, be declared as unconstitutional and ultra vires to Essential Commodities Act, 1955 and National Food Security Act, 2013 (NFSA, 2013). Upholding the constitutional validity of the impugned notification, the Court ruled, "On conjoint reading of Section 24 (2) (b) and Section 32 of NFSA 2013 and clause 35 of the West Bengal Public Distribution System (Maintenance and Control) Order, 2013 this Court hold that there is no illegality in amending clause 18 of West Bengal Public Distribution System (Maintenance and Control) Order, 2013 by notification dt. 13th September, 2021." The Court averred further, "Section 24 (2) (b) of the NFSA obliges the State Governments to ensure actual delivery of supply of food grains to the entitled persons at the prices specified in Schedule-I. Therefore, the State Government wishes to travel the extra mile to deliver the foodgrains at the doorsteps of the beneficiaries, such an endeavor cannot be said to fall foul of any provisions of NFSA, the rules framed there under or the orders issued under the ECA, 1955".
Case Title: Salem Khan v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 251
The Calcutta High Court refused to transfer to the Central Bureau of Investigation (CBI) the investigation into the death of student activist Anis Khan. Anish Khan was found dead at his home in Amta block in Howrah district in the early hours of Saturday, February 19, 2022 under mysterious circumstances. Justice Rajasekhar Mantha refused to transfer the investigation to the CBI by opining that the SIT in its investigation report has itself implicated some police officials and thus the apprehension that the accused police officers wold be shielded by SIT is unfounded. "In the instant case, the SIT itself has implicated some police officials in its investigation report, finding fault with the manner and conduct of raid. The petitioner's apprehension that the accused police officers would be shielded by the police, is therefore devoid of merit. In the facts of the case, merely because some police officers are involved there is no need for apprehending of impropriety in the investigation or the trial as the SIT is comprised of very highly ranked police personnel. Any other omission or mistake in future can be addressed under the provisions of the Cr.PC", the Court ruled. Justice Mantha further averred that it is expected that the charge-sheet is put up for committal and the trial is commenced and concluded expeditiously, but not later than six months from the date of committal.
Case Title: Ramesh Malik & Ors v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 252
The Calcutta High Court removed Trinamool MLA Manik Bhattacharya from the post of Chairman of the Board of Primary Education with immediate effect in connection with alleged irregularities in the recruitment of teachers in state government-sponsored and aided primary schools. Justice Abhijit Gangopadhyay had earlier ordered a court-monitored probe by a special investigation team of the CBI into the alleged illegal appointments of at least 269 primary teachers. The Court further ordered that Ratna Chakraborty Bagchi, the Secretary of the Board, would remain in charge till a new appointment is made to the Chairman of the Board. Furthermore, Bhattacharya was instructed to appear in person before the Court by 2pm on Tuesday for further interrogation. "..this court removes Mr. Manik Bhattacharya from the post of President of the West Bengal Board of Primary Education forthwith and I direct the Government to appoint any other fit person as President of the Board and till the new President is appointed, the Secretary of the Board namely, Ratna Chakraborty Bagchi will perform the function of the President of the Board", the Court ordered.
Case Title: Maleka Khatun v. The State of West Bengal and others
Case Citation: 2022 LiveLaw (Cal) 253
The Calcutta High Court came down heavily on the State Legal Services Authority (SLSA) for not having enough funds to provide compensation to victims as per the West Bengal Victim Compensation Scheme, 2017 and thus directed the State government to ensure disbursal of adequate funds within 6 weeks. Justice Moushumi Bhattacharya observed, "This court has noted in other matters of similar nature that the SLSA has not been provided with the funds for disbursement towards victim compensation. In a similar matter of 2021, SLSA has submitted before this court that it had funds only of an amount of Rs.5,000/- and was hence not in a position to disburse the victim compensation. This is a sorry state of affairs to say the least." Opining that the current state of affairs cannot be permitted to continue indefinitely, the Court ruled, "The Code of Criminal Procedure as well as the Notification published by the State in 2017 makes it mandatory on the State Government not only to make a separate budget for victim compensation but also to constitute a fund with the specific nomenclature of "Victim Compensation Fund" for disbursing amount to the victims who need rehabilitation. This state of affairs cannot surely be permitted to continue for an indefinite period of time. Victims who have suffered loss or injury or any kind of physical or mental agony have been brought within the purview of The Code of Criminal Procedure for a stated purpose. The State or the SLSA cannot take the position that it does not have funds to compensate the victims."
Case Title: Siliguri Jalpaiguri Development Authority v. Bengal Unitech Siliguri Projects Limited
Case Citation: 2022 LiveLaw (Cal) 254
The Calcutta High Court observed that an award holder has the statutory safeguard under Section 36 of the Arbitration and Conciliation Act, 1996 (Act) to secure the entire arbitral award amount even during the pendency of an application for setting aside of the award and that such a security must be real and not illusionary or insignificant. Justice Shekhar B. Saraf was adjudicating upon a petition filed under Section 34 of the Act along with an application under Section 36 (2) of the Act praying for stay of the award passed by the arbitral tribunal on December 27, 2021. Dismissing the contention of the petitioner that the land in possession of the respondent must be considered as sufficient security under Section 36 of the Act, the Court underscored, "Lastly, it is my view that the amended Section 36 of the Act, provides for securing the award holder for the entirety of the award value. It should also be noted that the security must be real and not illusionary or insignificant. Thus, the argument by the senior counsel appearing for the petitioner that the land in possession of the respondent must be considered as sufficient security under Section 36 does not hold water. The land offered for the purpose of security is part of the dispute between the parties. Furthermore, no document has been placed before this court to indicate that the value of the land would cover the entirety of the award. Ergo, the same cannot be accepted for securing the interest of the award holder." Accordingly, the Court directed the petitioner to deposit 50% of the arbitral award (including interest calculated till June, 2022) by way of cash security or its equivalent to the satisfaction of the Registrar Original Side, High Court at Calcutta.
Case Title: In the matter of : Kalu Sk. @ Kuran v. State
Case Citation: 2022 LiveLaw (Cal) 255
In a significant judgment, the Calcutta High Court directed that in all cases involving recovery of narcotic substances, seizing officers shall make a video recording of the entire procedure and that reasons for failing to videograph the recovery must be specifically stated in the investigation records. A Bench comprising Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay opined that all police officers are ordinarily equipped with smartphones and other electronic gadgets which would enable them to videograph such a recovery procedure. It was further observed that reliance on such technology must be placed to instil fairness, impartiality and confidence in the investigative process. Highlighting the importance of a legitimate recovery procedure, the Court averred, "While a strict law is necessary to control organized crime like drug trafficking and protect the youth from the menace of drug abuse, its draconian provisions are sometimes misused by investigating agency leading to false implication and prolonged unjustified detention of individuals. Most of the cases registered under the N.D.P.S. Act revolve around recovery of narcotic substance from the accused. Heart and soul of the prosecution is the legitimacy of such recovery. Prosecution in such cases primarily relies on the evidence of official witnesses particularly seizing officers to prove lawful recovery of contraband. In most cases as in the present case, independent witnesses are either not examined or turn hostile. There may be myriad reasons for that ranging from false implication to winning over of such witnesses by resourceful accuseds." Thus, the Court proceeded to issue a host of directions in this regard.
Case Title: Md. Safique Mallick v. The State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 256
The Calcutta High Court observed that denial of economic support to the wife and the minor son constitutes 'domestic violence' under Section 3 of the Protection of Women from Domestic Violence Act, 2005 (DV Act, 2005) and that it is immaterial whether the parties are still residing in a shared household or not. Justice Ajoy Kumar Mukherjee was adjudicating upon a plea seeking quashing of criminal proceedings against the petitioner under Section 12 of the DV Act pending before the concerned Judicial Magistrate. Opining that denial of economic support would constitute domestic violence, the Court underscored, "Denial of economic support to petitioner as well as their minor son, who has been brought up by the opposite party no. 2 may amount to "economic abuse" as per definition of "domestic violence" under the Act and for that purpose it is not material whether parties are still residing jointly in a shared household or not. In such case, even if opposite party No.2, might have been a working lady, even then whether her earning is adequate, fair and consistent with the living up bringing of their son to which the parties are accustomed is also to be looked into to decide the issue of economic abuse." Accordingly, the Court refused to quash the criminal proceedings against the petitioner by observing, "Having considered the facts and circumstances of the case and that prayer for the cancellation of Talak is still sub-judice and not yet finalised and also considering the fact that under Section 3 of DV Act, 2005, "domestic violence" includes emotional abuse as well as economic abuse, it can hardly be said at this stage that even though both the parties are residing separately the opposite party no. 2 cannot be categorised as "aggrieved person".
Case Title: Central Bureau of Investigation v. Sanjib Halder
Case Citation: 2022 LiveLaw (Cal) 257
The Calcutta High Court reiterated its recommendation of amending the Crime Manual, 2022 of the Central Bureau of Investigation (CBI) to empower the Additional Solicitor General of the High Court to give his opinion on filing appeals challenging court orders and on the basis of such an opinion, the zonal office of the CBI may be permitted to file an appeal within the prescribed period of limitation. Justice Bibek Chaudhuri noted that despite prior directions of the Supreme Court the central agency always files appeals after the expiry of the period of limitation and that an inordinate delay is caused for filing appeals especially against orders of acquittal passed by Trial Courts. Opining that the CBI should trust the expert opinion of the Additional Solicitor General more than the Director of CBI as the former has a better legal acumen, the Court underscored, "In case of the High Court, the learned Additional Solicitor General is the authorized legal representative of the Central Government. His opinion may be obtained by the CBI to come to a decision as to whether an appeal should be preferred against a judgment and order of acquittal or for enhancement of sentence by the CBI or not. This Court fails to understand why the case record will travel to Delhi to obtain formal permission of the Director of CBI for filing an appeal before this Court when the Director of CBI is after all a senior police officer. This Court obviously trusts and hopes that the Central Government in its executive branch will also trust the expert opinion of the learned Additional Solicitor General more than the Director of CBI who may have varied experience in investigation but he does not have better legal acumen than the Additional Solicitor General."
Case Title: Sri Daksh Singhal & Ors v. The State of West Bengal and Others
Case Citation: 2022 LiveLaw (Cal) 258
The Calcutta High Court has recently set aside the nominations made to post-graduate medical courses in the Institute of Post-Graduate Medical Education & Research (IPGEM&R) by a private Trust by opining that such a process turns a blind eye to merit and that it would entail the public being on the receiving end of sponsoring future-doctors without knowing whether they are the best of the pick. Justice Moushumi Bhattacharya observed, "There is no intelligible benchmark disclosed by the Trust as to the reason why the private respondents were recommended for admission despite having lower ranks compared to the petitioners in the NEET - PG Test. The assessment hence is a parallel selection process outside the recommended statutory framework and is subversive of the Act and the Regulations. The Trust has not only turned a blind eye to merit but has doffed its hat to the dilution of merit. The State is hence precluded by law to accept the recommendations."
259. Calcutta High Court Orders Police Authorities To Keep Vigil, Curb Kidnapping Incidents
Case Title: Ashok Jana v. The State of West Bengal & ors.
Case Citation: 2022 LiveLaw (Cal) 259
The Calcutta High Court personally interacted with a minor victim girl who had allegedly been kidnapped and thereafter ordered for the girl to be handed over to her parents pursuant to her request. Justice Shampa Sarkar had earlier directed the Superintendent of Police, Purba Medinipur to file a report before the Court indicating the reasons as to why the minor girl who was allegedly kidnapped, has not yet been recovered. "The victim girl has been traced. She has been produced before the court. The court has interacted with the girl, privately. The girl has expressed her firm desire to go back to her parents. The court has also spoken to the parents, who were in court", the order read. Accordingly, the plea was disposed of by expressing caution that the concerned police authorities must keep a vigil so that the same incident is not repeated.
Case Title: Dr. Kunal Saha v. West Bengal Medical Council (WBMC) and another
Case Citation: 2022 LiveLaw (Cal) 260
The Calcutta High Court ordered that the present West Bengal Medical Council will stand dissolved from July 31 on the ground that no elections for the constitution of a new Council has been held since 1988 and further directed that a newly duly-elected Medical Council should be constituted latest by October 31, 2022. Justice Sabyasachi Bhattacharyya observed, "Thus, this court expresses its reservations as to the palpable inaction on the part of the West Medical Council in not holding any elections and/or constituting a new Council since 1988." The Court further noted that the last elected body spent its five-year tenure long back, in the year 1988 and that in the last 34 years, which is almost seven times five, neither has any ad hoc body been appointed, nor any election held. "However, for obvious reasons, the present Council members took no steps worthy of exhibiting their bona fides for taking steps to organize elections after the year 1988 but chose to hibernate in the stupor of protracted perpetuation of their power", the Court underscored further.
Case Title: Abdul Khalek Laskar & Anr v. Union of India & Ors
Case Citation: 2022 LiveLaw (Cal) 261
The Calcutta High Court directed central agencies- Central Bureau of Investigation (CBI) and Enforcement Directorate (ED), as well as the State government to hand over the money recovered from the sale of assets pertaining to the Saradha group of companies to a one-man committee comprising of Justice S.P. Talukdar, former Judge of the High Court. The Court further directed SEBI to conduct sale of remaining properties of the company through its usual procedure pursuant to which a report was ordered to be furnished to the Committee. The defrauded depositors apprised a Bench comprising Justice I.P. Mukerji and Justice Subhendu Samanta that diverse authorities like C.B.I., E.D and State government etc. have in their possession some funds belonging to the company and thus prayed for the entire fund including the sale proceeds realized by SEBI to be handed over to the committee for the issuance of appropriate directions. Accordingly, the Court ordered, "Considering these submissions, we direct that the one-man committee headed by Mr. Justice S.P. Talukdar(retired), shall deal with the matter. All funds belonging to the company after deduction of all expenses and fees etc. shall be deposited by the above authorities with the one-man committee or in any bank according to its directions."
