Calcutta High Court Weekly Round Up: April 4 To April 10, 2022

Nominal Index [LiveLaw (Cal) 105 To  2022 LiveLaw (Cal) 114]

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

Orders/Judgments 

1. 'Need For Instilling Faith In Public At Large': Calcutta HC Orders CBI Probe Into Murder Of Congress Councillor Tapan Kandu

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

Case Citation: 2022 LiveLaw (Cal) 105

The Calcutta High Court on Monday 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."

2. SSC 'Group-D' Recruitment Scam: Calcutta High Court Orders Police To Ensure Presence Of Recruitment Panel Members Before CBI

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 on Monday 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."

3. SSC 'Group D' Recruitment Scam| Calcutta HC Allows CBI To Interrogate Recruitment Panel Members But Not Take Them Into Custody

Case Title: Dr Santi Prasad Sinha v. Laxmi Tunga and ors.

Case Citation: 2022 LiveLaw (Cal) 107

The Calcutta High Court on Tuesday 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.

4. Calcutta High Court Orders Schools To Not Deny Promotion Or Withhold Report Cards Of Students For Non-Payment Of Fees

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"

5. 'Trying To Cover Up Some Facts': Calcutta High Court Orders CBI Probe Into Another Govt Teacher Recruitment Scam

Case Title: Anindita Bera v. The State of West Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 109

The Calcutta High Court on Thursday 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.

 6. 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 on Friday 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". 

7. 'No Vicarious Liability On State For Judicial Actions': Calcutta High Court Rejects Plaint Seeking 100 Cr. Compensation For Alleged Defamation By HC Judge

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.

8. Trial Courts Cannot Impose Life Imprisonment Till Death Or Without Remission Except In Rape Cases: Calcutta High 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 on Wednesday 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.". 

9. Section 37 Of The Arbitration & Conciliation Act 1996 R/W Section 13 Of The Commercial Courts Act 2015 Excludes The Applicability Of Clause 15 Of Letters Patent: Calcutta HC

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.

10. Unless Order Of Demolition Specifically Indicates Extent Of Unauthorised Construction, It Cannot Be Implemented: Calcutta HC

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.

Important Developments

1. Division Bench Of Calcutta HC Recuses From Hearing Single Judge's Order For CBI Probe In SSC 'Group D' Recruitment Scam

Case Title: Dr. Santi Prasad Sinha v. Laxmi Tunga & ors

A Division Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta of the Calcutta High Court on Monday recused from hearing a batch of petitions pertaining to 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). This comes days after a single judge Bench of Justice Abhijit Gangopadhyay had passed scathing remarks against the Division Bench of Justice Harish Tandon and Justice Rabindranath Samanta. On Friday, a Division Bench comprising Justice Soumen Sen and Justice Ajoy Kumar Mukherjee had stayed Justice Gangopadhyay's order directing the regional head of the CBI to call upon S.P. Sinha, former Advisor of the WBSSC in course of the day and start questioning him. The Division Bench had granted such an interim relief until the Regular Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta hears the matter on April 4. On Monday, the Regular Division Bench informed senior advocate Bikash Ranjan Bhattacharyya representing the illegally recruited candidates that they were recusing from hearing all the cases pertaining to the alleged recruitment scam on their personal ground. "We are not inclined to take up the matter on our personal ground", Justice Harish Tandon orally remarked while speaking on behalf of the Bench.

2. 'Suggest Name Of High Ranking Police Officer To Oversee Investigation': Calcutta HC Declines CBI Probe Into Minor's Rape In WB's Basirhat

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

The Calcutta High Court on Monday refused to order a probe by the Central Bureau of Investigation (CBI) into the gruesome incident of rape of a minor 11 year old girl at Matia in North 24-Parganas' Basirhat but granted leave to the petitioners to suggest the name of a high ranking police officer from the police department of West Bengal under whose supervision the investigation can be carried out. An 11-year-old schoolgirl, who went missing, was found unconscious from a near a park in Matia on March 25. Preliminary probe by police revealed that she was raped. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on the last date of hearing had 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 had further called for the case diary to be filed before the Court on the next date of hearing. During the proceedings, one of the counsels for the petitioners vehemently argued for the investigation to be transferred to the CBI for an impartial probe. However, the Bench declined to issue such a direction at the present stage and instead remarked orally, "If at any point of time we feel that there is a deficiency in the investigation, we will duly consider the prayer". However, the Bench granted leave to the petitioners to suggest the name of a high ranking police officer under whose supervision, the investigation can be carried out.

3. Day Of Recusals In Calcutta High Court : Several Benches Recuse From Hearing SSC 'Group-D' Recruitment Scam Case

In an unprecedented development, the Calcutta High Court on Monday witnessed various Benches either recusing or declining to hear a batch of appeals 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). Proceedings pertaining to the recruitment scam have been in the spotlight ever since repeated orders for a CBI probe by a single judge bench of Justice Abhijit Gangopadhyay have been either stayed or set aside by a Division Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta. Justice Gangopadhyay on Wednesday had passed a scathing order against the direction issued by the Division Bench to accept an affidavit containing details of the assets possessed by S.P. Sinha, former Advisor of the School Service Commission in a 'sealed cover'. Recording serious displeasure against such an order by the Division Bench, Justice Gangopadhyay had 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." He had further opined that the 'highest degree of double standard' has been expressed by the Division Bench and that his hands have been tied from properly adjudicating the case. Subsequently, on Thursday, Justice Gangopadhyay had directed the regional head of the CBI to call upon S.P. Sinha, former Advisor of the WBSSC in course of the day and start questioning him. However, a Division Bench comprising Justice Soumen Sen and Justice Ajoy Kumar Mukherjee had stayed such an order until the Regular Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta hears the matter on Monday i.e. on April 4. On Friday, Justice Gangopadhyay had further 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. On Monday, the regular Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta informed senior advocate Bikash Ranjan Bhattacharyya representing the alleged illegally recruited candidates that they were recusing from hearing all the cases pertaining to the alleged recruitment scam on their personal ground. "We are not inclined to take up the matter on our personal ground", Justice Harish Tandon orally remarked while speaking on behalf of the Bench.

4. SSC 'Group D' Recruitment Scam| Calcutta High Court Permits CBI To Conduct Custodial Interrogation Of Recruitment Panel Members If Need Arises

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

The Calcutta High Court on Tuesday directed the Central Bureau of Investigation (CBI) to conduct a custodial interrogation of two members of the State appointed recruitment panel if the need arises. 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). Justice Abhijit Gangopadhyay on the last date of hearing had directed 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 CBI office by 4 pm on Monday. Opining that Sarkar played a 'very important' role in the scam, the Court ordered, "In my view he played an extremely important role in the whole scam as in the whole scam recommendations were made and appointments were given in vacancies, which were beyond the declared vacancy list. This aspect is to be thoroughly investigated. Mr. Sarkar is directed to reply all the questions of CBI properly and correctly. I direct the CBI to register a case in this matter so that they can take all steps required in this matter." Justice Gangopadhyay further ordered that CBI should also further interrogate S.P. Sinha, former Advisor of the School Service Commission and the Convenor of the Five-Member Committee and accordingly ordered the Officer-in-Charge of the Survey Park Police Station to ensure the presence of Sinha before CBI by 3 p.m on Tuesday. "It is submitted by Mr. Biswaroop Bhattacharya on behalf of Mr. S. P. Sinha that the committee constituted by the court has called him today at 1 p.m. Whatever be the notice and whatever be the order of the committee, he must be present before CBI by 3 p.m. for further interrogation. CBI should start interrogating him from the point they stopped in respect of Mr. S. P. Sinha. If CBI thinks, they can start custodial interrogation of Mr. S. P. Sinha", the Court ordered further.

5. Congress Councillor Tapan Kandu's Murder: State Files Appeal In Calcutta High Court Against Single Judge Order For CBI Probe

The State government on Thursday moved a Division Bench of the Calcutta High Court against the order 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. According to reports, Congress councillor Tapan Kandu and TMC's Anupam Dutta were shot dead on March 13 in separate incidents in Jhalda area of Purulia and Panihati in North 24 Parganas, respectively. Justice Rajasekhar Mantha in the impugned order had ordered for a CBI probe by opining that there is a need for instilling faith of the public at large and that given the gravity and politically sensitive nature of the crime the public needs to see that the Rule of Law is still alive and functioning. On Thursday, the counsel appearing for the State government moved a Division Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj seeking for an early listing of the appeal so that the hearing could take place expeditiously. "At the very threshold, my Lords, there is some urgency", the counsel appearing for the State government submitted. On the contrary, the opposing counsel averred that there is no urgency in the matter and that adverse inferences had been drawn against the Inspector-In-Charge of the concerned police station which he alleged the State government was trying to protect.Pursuant to the submissions, the Chief Justice orally remarked, "Give the (mentioning) slip, we will consider".