Calcutta High Court Weekly Round-Up: February 14 To February 20, 2022

Nominal Index 

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

Round-Up

1. 'Public At Large Cannot Be Put To The Whim & Fancy Of Recalcitrant Directors': Calcutta HC Upholds Disqualification Of Directors U/S 164(2) Of Companies Act

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."

2. 'Take Recourse To CrPC': Calcutta High Court Dismisses Writ Petition U/A 226 Seeking Directions For Registration Of FIR

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).

3. 'Remote Chances Of Child Surviving Or Leading A Normal Life': Calcutta HC Allows Medical Termination Of Approx 35 Weeks Old Foetus

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. 

Also Read: Consider Mental & Physical Health Of Mother As Well As Foetus: Calcutta HC Directs Constitution Of Medical Board In Plea Seeking Termination Of 34 Weeks Foetus

4. Calcutta HC Raps Police Authorities For Non-Registration Of FIR In Case Of Non-Payment Of Compensation Under Land Acquisition Act

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.

5. 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 on Friday 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.

Also Read: 'We Are Of The View That Such A Petition Cannot Be Maintained': Calcutta HC Reserves Judgment in PIL Seeking Removal Of WB Governor Jagdeep Dhankhar

6. Schools Allowed To Charge Full Fees For Physical Classes From Feb 16; No Coercive Action For Default In Payment Until March 31: Calcutta HC

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. 

7. Absence Of Injuries On Victim's Body Will Not Render Commission Of Offence Improbable: Calcutta HC Upholds Conviction Of Man For Raping 7 Yr Old Girl

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. 

8. S.176 Contract Act| Notice Of Sale By Pawnee Must Contain A Positive Assertion Disclosing Intention To Sell: Calcutta HC

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."

9. SSC 'Group-D' Recruitment Scam: Calcutta HC Expunges Single Bench Remarks Against Inquiry Committee; Extends Time For Filing Report By 4 Months

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.

Important Weekly Updates 

1. Offensive FB Post About Goddess Saraswati: Calcutta HC Directs Sharing Of URL Details With Facebook India To Authorise Removal, Orders Impleadment Of Alleged Offender

Case Title: Madhurima Sengupta v. Facebook Inc. India and Ors

The Calcutta High Court directed the petitioner to immediately share the URL details of an alleged offensive post about Goddess Saraswati with the authorities of Facebook India in order to authorise the removal of such an offensive post. The Court also directed the petitioner to take appropriate steps to implead the alleged offender as a party in the instant proceedings. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition seeking directions for the removal of an offensive Facebook post about Goddess Saraswati. Directing the Facebook authorities to take steps to remove such an offensive post, the Bench observed, "Having regard to the circumstances of the case, we are of the opinion that if such a message has been posted in the facebook, then it is required to be deleted as apparently it is offensive. Respondent No.1 is directed to do the needful in this regard." Pursuant to the submissions of the concerned parties, the Bench further directed, "Learned counsel for the petitioner is directed to disclose the URL of the post in question to the respondent No.1 without any delay and also take appropriate steps to implead the person who had posted such a message in the Facebook."

2. SSC 'Group-D' Recruitment Scam: Calcutta HC Orders CBI Probe Despite Division Bench's Earlier Order Quashing Such A Probe; Appeal Filed Before Division Bench

Case Title: Sandeep Prasad and Ors v. State of West Bengal

In an unprecedented development, the Calcutta High Court ordered 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 Central School Service Commission ((WBSSC). Such an order was passed by Justice Abhijit Gangopadhyay on Tuesday despite the fact that a Division Bench of the High Court had quashed Justice Gangopadhyay's earlier order wherein a similar CBI probe had been ordered into the alleged recruitment scam. The Court observed that despite its earlier order, the inquiry committee had not submitted its interim report or the minutes of the minutes of all the meetings conducted by the committee. Opining further that satisfaction of the court is necessary for continuation of the committee, Justice Gangopadhyay dissolved the inquiry committee by directing, "This show of enough disrespect to this court by the Committee will not be tolerated and is not tolerated by this court and I dissolve the Committee keeping in mind that the committee is not acting under the Division Bench and the Division Bench is not in seisin of the committee and it is the order of the Division Bench that this committee is to file report before this single bench. Therefore satisfaction of this court is necessary for continuation of the committee. I am wholly dissatisfied with the committee and it is not required to function further in this matter. The Committee shall have no power to inquire into the matter from today."

3. SSC 'Group-D' Recruitment Scam| Calcutta HC Stays Single Bench Order On CBI Probe & Further Proceedings For 2 Weeks

Case Title: State of West Bengal v. Sandeep Prasad

A Division Bench of the Calcutta High Court on Tuesday imposed a stay for 2 weeks on a Single Bench's order which had directed 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 Central School Service Commission (WBSSC). The impugned order had been passed by Justice Abhijit Gangopadhyay earlier on Tuesday despite the fact that a Division Bench of the High Court had quashed Justice Gangopadhyay's earlier order wherein a similar CBI probe had been ordered into the alleged recruitment scam. The Division Bench observed that a prima facie case has been made out for staying the operation of the impugned order and accordingly observed, "There shall be a stay of operation of the impugned order dated 15th February, 2022 as well as the Writ petition, for a period of two weeks from date or until further order/orders of this Court, whichever is earlier." Opining that the Single Bench had 're-imposed the earlier order' which had been set aside, the Division Bench further remarked, "It appears that despite the said order having passed, the single Bench has dissolved the said Committee constituted by the Division Bench and re-imposed the earlier order which was set aside by the Division Bench when the direction was made to the Central Bureau of Investigation to make an enquiry."

4. Violence During WB Municipal Polls: Calcutta HC Orders Preservation Of CCTV Footage, Seeks Response From SEC, State Govt

Case Title: Pratap Banerjee v. State of West Bengal and other connected matters

The Calcutta High Court sought response from the State Election Commission (SEC) and the State government in a batch of petitions alleging that large scale violence and rigging of votes took place during the recently conducted municipal elections in West Bengal. The petitions also sought for deployment of central forces for the remaining 108 municipalities which is scheduled to take place on February 27. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed the State Election Commission and the State government to file their affidavits-in-opposition within 3 days. Furthermore, the Court directed the State Election Commission to preserve all CCTV footage and the diaries of presiding officers and registers containing the thumb impression/signature of voters of all polling booths with immediate effect in furtherance of the Court's earlier directions vide its order dated December 24, 2021. The Bench also extended police protection to an aggrieved petitioner who had allegedly been physically assaulted by members of the ruling party on the day of the polls. The police authorities were also directed to promptly record the concerned complainant's statement under Section 164 CrPC.

Also Read: WB Municipal Polls: Calcutta High Court To Hear On Feb 16 Pleas Alleging Large Scale Violence During Elections To 4 Municipalities

5. Reappointment Of Calcutta University Vice Chancellor Without Governor's Approval Challenged, High Court Seeks State's Response

Case Title: Anindya Sundar Das v. The State of West Bengal and others

The Calcutta High Court sought the State government's response in a Public Interest Litigation (PIL) challenging the reappointment of the Vice-Chancellor of the University of Calcutta Sonali Chakravarty Banerjee on the ground that such reappointment had been done in contravention of existing rules.A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj was apprised that the Governor of West Bengal, as the ex-officio chancellor, has the authority of appointing the Vice-Chancellor of the state-run university pursuant to Section 8(1)(b) of the Calcutta University Act, 1979. Furthermore, it was contended that bypassing such a statutory provision, the State or its Secretary could not have issued the notification for re- appointment of the Vice Chancellor for a period of 4 years. Directing the State government to file a response within 4 weeks, the Bench observed, "Learned Advocate General appearing for the State as also respondent Nos.2, 3 and 4 are granted four weeks time to file their affidavits-in-opposition. Thereafter, affidavit-in-reply may be filed by the petitioner within one week."

6. 'RBI Mandate': PIL In Calcutta High Court Seeks Permission To Use Bengali Language In Banking Services In WB

Case Title: Bangla Pokkho Charitable Trust @Bangla Pokkho & Anr 

A Public Interest Litigation has been filed before the Calcutta High Court seeking the use of Bengali language in banking services across the State, purportedly as per the mandate of the Reserve Bank of India (RBI). The petition has been filed by Bangla Pokkho Charitable Trust, a Bengali nationalist organisation. The matter is likely to come up before the Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj next week. The petition contends that the Chief General Manager of RBI vide a letter dated December 28, 2005 had advised all scheduled commercial banks in India to make available all printed material in trilingual form- English, Hindi and the concerned regional language. However, it is submitted that despite the direction, such practice is not followed by banks in the State, thereby making banking services inaccessible to a vast majority of the population.