Calcutta High Court Weekly Round Up : April 11 To April 17, 2022

Nominal Index [Citations 115- 125]

1. Sumitra Bhattacharyya v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 115

2. Shaista Afreen and Others v. The State of West Bengal and Others 2022 LiveLaw (Cal) 116

3. Purnima Kandu & Anr v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 117

4. Dr. Santi Prasad Sinha v. Laxmi Tunga and Ors 2022 LiveLaw (Cal) 118

5. Ramesh Co. v. Imperial Tubes Pvt. Ltd 2022 LiveLaw (Cal) 119

6. Suvendu Adhikari v. Hon'ble Speaker, WB Legislative Assembly and Ors and other connected matters 2022 LiveLaw (Cal) 120

7. Rohit Pal v. The State of West Bengal 2022 LiveLaw (Cal) 121

8. Azizur Rahaman v. The State of West Bengal & ors 2022 LiveLaw (Cal) 122

9. Sambhu Das v. The State of West Bengal & Anr 2022 LiveLaw (Cal) 123

10. M/s. Satyen Construction versus State of West Bengal & Ors 2022 LiveLaw (Cal) 124

11. Dr. Papiya Mukherjee versus Aruna Banerjea and Anr 2022 LiveLaw (Cal) 125

Orders/Judgments 

1. Calcutta High Court Directs IPS Officer Damayanti Sen To Oversee Probe Into 4 Recent Rape Cases In West Bengal

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

Case Citation: 2022 LiveLaw (Cal) 115

The Calcutta High Court on Tuesday 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.

2. 'Attempt To Suppress Incident': Calcutta HC Orders CBI Probe Into Hanshkhali Gangrape & Murder Case, Report To Be Submitted By May 2

Case Title: Shaista Afreen and Others v. The State of West Bengal and Others

Case Citation: 2022 LiveLaw (Cal) 116

The Calcutta High Court on Tuesday 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."

3. 'Comprehensive Investigation Required': Calcutta HC Orders CBI To Probe Death Of Eye-Witness In Murder Case Of Congress Councillor Tapan Kandu

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.

4. SSC 'Group D' Recruitment Scam: Calcutta HC Extends Stay On Order Directing WB Minister Partha Chatterjee To Appear Before CBI

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 on Wednesday 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. 

5. Grant Of Leave For Dispensation Of Mandated Pre-Institution Mediation U/S 12-A Of Commercial Courts Act Is A Judicial Act: Calcutta HC

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

6. 'Perverse Order': Calcutta HC Sets Aside WB Speaker's Order Dismissing Suvendu Adhikari's Plea To Disqualify Mukul Roy, Remits Plea Back To Speaker

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 on Monday 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.

7. 'Immaterial Whether Breasts Of 13 Yr Old Girl Were Developed Or Not': Calcutta HC Upholds Conviction For Sexual Assault U/S 7 Of POCSO Act

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". 

8. Legality Of The Policy, Not Its Wisdom Or Soundness Is Subject Of Judicial Review U/A 226: Calcutta High Court

Case Title: Azizur Rahaman v. The State of West Bengal & ors

Case Citation: 2022 LiveLaw (Cal) 122

The Calcutta High Court on Wednesday 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."

9. No Marks Of Violence On Any Part Of Victim's Body, Accused Entitled To Benefit Of Doubt: Calcutta High Court Sets Aside Conviction For Rape

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."

10. Scope Of Section 9 Of The A&C Act Cannot Be Extended To Enforcement Of The Arbitral Award: Calcutta High Court

Case Title: M/s. Satyen Construction versus 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.

11. Arbitration Agreement Not Discharged By Death Of A Party And Is Enforceable Against The Legal Representatives: Calcutta High Court

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.

Important Developments 

1. YJ Dastoor Resigns As Additional Solicitor General At Calcutta High Court

Additional Solicitor General (ASG) at Calcutta High Court YJ Dastoor has resigned from his post. In a letter written to Law Minister Kiren Rijiju on Monday, he said that he is resigning from the post. However, the letter does not contain any reasons for the resignation. Dastoor had been appointed as the Additional Solicitor General on June 30, 2020 for a period of 3 years. He has been recently involved in various high profile cases wherein several Benches of the High Court have ordered for investigations to be conducted by the Central Bureau of Investigation (CBI).