Calcutta High Court Weekly Roundup: March 28 To April 3, 2022

Nominal Index 

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

Judgements/ Orders 

1. Calcutta High Court Upholds Single Judge Order Refusing Protection From Arrest To TMC Leader Anubrata Mondal In Cattle Smuggling Case

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.

2. Scope Of Discretion To Stay Award U/S 19 MSME Act Wider Than U/S 36(3) Arbitration Act: Calcutta High Court

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.

3. Calcutta High Court To Consider Bail For Convicts Languishing In Jail For 14 Yrs Amid Pendency Of Their Appeals

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."

4. SSC 'Group-D' Recruitment Scam: Calcutta High Court Upholds Single Judge Order Directing Former WBSSC Advisor To Disclose His Assets

Case Title: Dr. Santi Prasad Sinha v. Md. Abdul Gani Ansari and others

Case Citation: 2022 LiveLaw (Cal) 97

The Calcutta High Court on Tuesday 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.

5. "Pawns In Hands Of Political Powers": Calcutta HC Reduces Sentence Of Agricultural Labourers Convicted For Assaulting Man Over Political Rivalry

Case Title: Abu Fazel Fakir & Ors v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 98

The Calcutta High Court on Tuesday 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."

6. High Drama In Calcutta HC As Single Judge Objects To Division Bench Direction To Accept Document In "Sealed Cover"

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 on Wednesday 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."

7. 'Registar Did Not Have Power To Initiate Disciplinary Action': Calcutta HC Quashes Suspension Order Of Visva Bharati University Asst. Professor

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".

8. All Acquittal Orders Must Be Forwarded To DLSA & District Magistrate For Due Intimation To Victim, Must Endorse Victim's Right To Appeal: Calcutta HC

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."

9. 'Govt Agency Not A Privileged Litigant': Calcutta High Court Refuses To Condone 302 Days Delay In Filing Appeal By CBI

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."

10. 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 on Friday 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. 

11. 'Should Not Be Forced To Sacrifice Education': Calcutta HC Directs SBI To Process Education Loan Of Law Student Under 'WB Student Credit Card Scheme' Within 2 Weeks

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. 

Important Developments 

1. Contai Municipality Polls| 'Constitutional Bar': SEC & WB Gov Opposes BJP's Prayer Seeking Forensic Audit Of CCTV Cameras By CFSL

Case Title: Soumendu Adhikari v. State of West Bengal

The West Bengal government and the State Election Commission on Tuesday opposed the prayer of the BJP that a forensic audit of the CCTV cameras used during the recently concluded Contai Municipality elections should be conducted by an independent agency such as Central Forensic Science Laboratory (CFSL), New Delhi. The Calcutta High Court was adjudicating upon a Public Interest Litigation (PIL) petition moved by BJP leader Soumendu Adhikari alleging that large scale violence and rigging of votes had taken place in the recently concluded Contai Municipality elections. Elections to 108 municipalities in the State including the Contai municipality took place on February 27. On Tuesday, senior advocate Paramjit Patwalia appearing for Adhikari prayed before the Court that a forensic audit of the CCTV cameras should be conducted by a central agency such as the CFSL, New Delhi. He further submitted that it must be discerned whether the CCTV cameras were operational and whether any violence took place as alleged. However, such a prayer was vehemently objected to by senior advocate Jayanta Mitra appearing for the SEC by contending that since the main prayers in the writ petition cannot be granted due to the constitutional bar under Article 243-ZG (b) of the Constitution of India, a direction for issuing interim orders can also not be sustained. Article 243-ZG (b) prohibits any election to any municipality to be called in question except by way of an election petition filed before the appropriate authority.

2. Murder Of Congress Councillor Tapan Kandu| Calcutta HC Directs Police To File Case Diary & Status Report, Grants Police Protection To Nephew

Case Title: Purnima Kandu & Anr v. State of West Bengal

The Calcutta High Court directed the Superintendent of Police, Purulia to submit the case diary and a brief status report pertaining to the investigation into the death of former Congress councillor of Jhalda Municipality in Purulia, Tapan Kandu who was reportedly shot dead by miscreants a fortnight ago. 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."This Court prima facie finds that the Jhalda Police might have been in violation of the dicta of the Supreme Courtin the case of Lalita Kumari vs. Govt. Of U.P. & Ors reported in (2014) 2 SCC 1. However, unless the progress of investigation is ascertained, it would be premature to form any opinion on the main prayer made in the writ petition for transfer of the investigation from the State Police to CBI", the Court observed. The Court further ordered the Superintendent of Police, Purulia to submit the case diary and the status report on the next date of hearing which is slated to take place on April 1, 2022.

3. 11-Yr Old Raped In WB's Basirhat: Calcutta High Court Calls For Case Diary, Seeks Medical Report

Case Title: Sumitra Bhattacharyya v. State of West Bengal and other connected matters

The Calcutta High Court on Thursday directed the State government to submit the case diary along with a status report pertaining to the investigation into the gruesome incident of rape of a minor 11 year old girl at Matia in North 24-Parganas' Basirhat on the next date of hearing that is to take place on April 4. The Court further ordered that a report should also be submitted informing the Court about the current medical condition of the minor victim. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed Advocate General S.N Mookherjee to produce before the Court a report in the form of an affidavit containing the stage and status of investigation into the incident. The Bench further called for the case diary to be filed before the Court on the next date of hearing that is slated to take place on April 4. "Having regard to the seriousness of the matter, we direct the learned Advocate General to produce the report in the form of affidavit about the stage and status of the investigation along with the case diary. He is also directed to produce a report relating to the medical condition of the victim", the Court ordered.

4. 'One Of The Kingpins Of This Corruption': Calcutta HC Orders CBI To Interrogate Former WBSSC Advisor By Tonight In SSC 'Group D' Recruitment Scam

Case Title: Laxmi Tunga v. The State of West Bengal & Ors.

Justice Abhijit Gangopadhyay of the Calcutta High Court on Thursday has once again ordered a probe by the Central Bureau of Investigation (CBI) 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). The Judge on Thursday directed the regional head of the CBI to call upon S.P. Sinha, former Advisor of the School Service Commission in course of the day and start questioning him. The CBI has been directed to initiate the interrogation by midnight. Opining that the former advisor of the Commission has been found to be 'one of the kingpins of this corruption', the Court ordered, "In such circumstances a thorough probe is required to bust the racket of giving illegal appointments. I have found from other similar matters that the said Dr. Santi Prasad Sinha as one of the kingpins of this corruption of giving illegal public appointment. Hence, I direct the regional head of the Central Bureau of Investigation to call Mr. S. P. Sinha in course of the day and start questioning him. The CBI is directed to initiate the said interrogation in course of the day - I mean by 12 midnight today."

5. SSC 'Group D' Recruitment Scam| Calcutta HC Directs CBI To Interrogate Members Of State Constituted Recruitment Panel By Today, Appeal Filed Before Division Bench

Case Title: Laxmi Tunga v. The State of West Bengal & Ors

Justice Abhijit Gangopadhyay of the Calcutta High Court took on record the preliminary report submitted by the Central Bureau of Investigation (CBI) pertaining to the 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). The Court also directed the CBI to call for questioning all members of the High Powered Committee which had been constituted in 2016 by the Education Department of the West Bengal government to oversee the recruitment of close to 13,000 non-teaching staff in government-aided schools. After the panel was dissolved last year, allegations of irregular recruitment had surfaced. "I direct the CBI to take steps forthwith to call the above persons for asking questions in respect of this illegal appointment scam in public employment and they are to be called in the course of the day. When they will be questioned, will be decided by the CBI. I am not giving any guideline to that effect, but they are to be called in course of the day and they are directed to attend the office of the CBI as soon as they will be called by the CBI", the Court ordered. 

6. Murder Of Congress Councillor Tapan Kandu| Calcutta HC Takes On Record Police Report & Case Diary, To Consider If CBI Probe Is Needed On Next Date Of Hearing

Case Title: Purnima Kandu & Anr v. State of West Bengal

The Calcutta High Court on Friday took on record a detailed report submitted by the Superintendent of Police, Purulia pertaining to 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. "A very detailed report has been submitted by the Superintendent of Police, Purulia and the same is taken on record. It appears that as on date two persons have been arrested. It further appears that Special Investigating Team involving C.I.D., West Bengal has also joined the investigation and is overseeing the same", the Court recorded in the order. Opining that the Court would consider whether the investigation requires to be transferred to the CBI on the next date of hearing, the Court observed, "The principal prayer of the petitioners for transfer of investigation from the State to the C.B.I. shall be considered on the adjourned date". Accordingly, the matter for listed for further hearing on April 4 at 2pm. The Court however underscored that the investigation by the State authorities may continue in the meantime.