Calcutta High Court Weekly Round Up: May 23 To May 29, 2022

Nominal Index [2022 LiveLaw (Cal) 201 To 2022 LiveLaw (Cal) 215]

Assistant Commissioner v. Ashok Sureka 2022 LiveLaw (Cal) 201

Piyarul Sk v. The State of West Bengal 2022 LiveLaw (Cal) 202

The Chairperson, West Bengal Commission for Protection of Child Rights v. Election Commission of India & Others 2022 LiveLaw (Cal) 203

Md. Firoz Ala @ Firoj Alam v. State of West Bengal 2022 LiveLaw (Cal) 204

Asansol Mini Bus Association and others v. Union of India and others 2022 LiveLaw (Cal) 205

SREI Equipment Finance Limited versus Additional/Joint/Deputy/Assistant Commissioner of Income Tax and Ors 2022 LiveLaw (Cal) 206

Shri Sadhan Roy v. Arvind Kumar Singh 2022 LiveLaw (Cal) 207

Mritunjay Singh v. Union of India & Ors 2022 LiveLaw (Cal) 208

M/s One Textile v. Umesh Bharech 2022 LiveLaw (Cal) 209

The State of West Bengal & Ors v. Gandhi Memorial Girls' High School & Ors 2022 LiveLaw (Cal) 210

Ajet Ali Baidya v. State of West Bengal 2022 LiveLaw (Cal) 211

Shukla Mondal @ Sumi v. State of W.B. & another 2022 LiveLaw (Cal) 212

Raju Mitra & Ors v. State of West Bengal 2022 LiveLaw (Cal) 213

NBCC (India) Ltd. v. The State of West Bengal and Ors. A.P.O No. 11 of 2022 2022 LiveLaw (Cal) 214

Kashinath Dey @ Kashi v. The State of West Bengal 2022 LiveLaw (Cal) 215

Orders/Judgments 

1. Vehicle Can't Be Detained For Want Of Second E-Way Bill When The First Was Valid: Calcutta High Court

Case Title: Assistant Commissioner v. Ashok Sureka

Citation: 2022 LiveLaw (Cal) 201

The Calcutta High Court bench of Justice T.S. Shivagnanam and Justice Hirnmay Bhattacharyya has held that the GST department cannot detain vehicles in the absence of a second e-way bill as the first e-way bill was valid in the interception period. The respondent/assessee submitted that the detention of the vehicle along with the goods and the demand for tax and penalty were not justified. The e-way bill, which was being carried in the vehicle transporting the goods, expired at midnight on September 8, 2019 and the goods were transported on September 9, 2019. The vehicle was intercepted at 1.30 p.m. (noon). The court held that the bona fides of the writ petitioner had to be tested on the documents, which were available on record. "The first e-way bill dated September 7th, 2019 was valid up to September 9th, 2019. Therefore, in the absence of the second e-way bill, the tax authorities at Durgapur could not have intercepted or detained the vehicle. Therefore, the explanation offered by the respondent/writ petitioner was an acceptable explanation and a case cannot be made out that there was a deliberate and willful attempt on the part of the respondent/writ petitioner to evade payment of tax so as to justify invocation of the power under Section 129 of the Act," the court while granting the relief to the assessee observed.

2. 'Child Of Tender Years Prone To Prompting & Tutoring': Calcutta High Court Acquits Man Convicted Of Murdering His Wife

Case Title: Piyarul Sk v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 202

The Calcutta High Court has recently set aside an order of conviction for the offence of murder under Section 302 of the IPC against the husband of the victim on the ground that the child witness being of extremely tender age when the incident occurred was unable to comprehend the circumstances and was also prone to tutoring. In the instant case, the deceased had suffered burn injuries at her matrimonial home and had subsequently passed away in the hospital she had been admitted to. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi noted from the record that the concerned trial court had relied heavily on the deposition of the child witness who had been summoned by the Court under section 311 CrPC to record a finding against the appellant that is the husband of the victim. Underscoring the need for the evidence of a child witness to be examined with utmost care, the Court observed, "When the prosecution primarily rests on the evidence of a child witness, it is the duty of the Court to examine the evidence of the said witness with utmost care and circumspection. A child of tender years is prone to prompting and tutoring. Hence, an onerous duty is cast on the Court to examine the deposition of a child witness not only on his capacity and ability to understand circumstances but also on the possibility of the witness being tutored by persons who have control and custody over him."

3. 'Premature': Calcutta HC Dismisses Plea By WB Child Rights Commission Seeking Compensation From Election Commission For Covid-19 Orphans

Case Title: The Chairperson, West Bengal Commission for Protection of Child Rights v. Election Commission of India & Others.

Case Citation: 2022 LiveLaw (Cal) 203

The Calcutta High Court on Friday dismissed a Public Interest Litigation (PIL) petition filed by the Chairperson of the West Bengal Commission for Protection of Child Rights (WBCPCR) seeking a direction upon the Election Commission of India (ECI) to compensate each of the families of the children who have lost their lives due to Covid-19 following the announcement of the general elections in the State on February 26, 2021. A Division Bench comprising Justice Harish Tandon and Justice Soumen Sen dismissed the petition for being 'premature' after noting that the State Commission had not utilised its powers under Section 15 of the Protection of Child Rights Act, 2005 (Act) to conduct an enquiry and ascertain if the cause of death is due to any negligent conduct of the election commission. "In the instant case admittedly, there is no inquiry initiated by the State Commission in terms of Section 15 of the said Act. We could not find any plausible explanation from the writ petitioner for not exercising the said power. When a State Commission is empowered to carry on such investigation and inquiry and ascertain the cause of death it is expected that such enquiry should be conducted first before approaching a constitutional court with such findings and implementations of its recommendations if Government concerned failed to implement such recommendations. Death of any person including a child is unfortunate and undesirable whatever the reasons may be for the cause of such death. A child is a precious asset. It is only expected that if there is any violation of a child's right the Commission would without delay invoke the provisions of the Act and take such measures and steps as they are expected to take under the said Act", the Court underscored.

4. Abscondence Of Accused By Itself Cannot Be Treated As Conclusive Evidence Of Guilt: Calcutta HC Acquits Man Convicted Of Murdering 10 Yr Old Boy

Case Title: Md. Firoz Ala @ Firoj Alam v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 204

The Calcutta High Court has recently held that the abscondence of an accused by itself does not establish his guilt and accordingly proceeded to set aside an order of conviction for the commission of the offence of murder under Section 302 of the IPC. A Bench comprising Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay was adjudicating upon an appeal preferred against an order of conviction passed against the appellant for murdering a 10 year old boy. It was alleged that the appellant had illicit relationship with Rasida, mother of the boy. It was further contended that the child had disclosed the illicit relationship to his father and accordingly appellant nursed a grudge against him. The Court relied upon the Supreme Court judgment in Sk. Yusuf v. State of West Bengal to rule that it is a settled law that the abscondence of an accused by itself does not establish his guilt. "The aforesaid proposition of law wholly applies to the facts of the present case. Evidence on record shows apart from vague suspicion owing to a hunch that the appellant may have nursed grudge against the child for divulging his illicit association with her mother, no evidence was led to show that the appellant had clear access to the child soon before his death so as to complete the chain of circumstances pointing to his guilt", the Court observed.

5. Motivated To Earn Profit: Calcutta HC Dismisses Bus Operators' Plea Seeking Right To Determine Fares

Case Title: Asansol Mini Bus Association and others v. Union of India and others

Case Citation: 2022 LiveLaw (Cal) 205

The Calcutta High Court has recently dismissed a plea moved by Bus and Minibus Operators' Associations seeking the operators' right in the matter of determination of fares in a manner proportionate to hike of the market price of fuel on the ground that such fixation of fares lies squarely within the authority of the executive. The plea filed contended that the provisions of Section 67 of the Motor Vehicles Act, 1988 (Act) ought to be read down to give a handle to the bus operators to have a say in the fixation of fare structures. Justice Sabyasachi Bhattacharyya observed that the privilege sought by the petitioners for the operators of motor vehicles in having a say in the fixation of fare structure has to be balanced with the convenience of the huge number of passengers and consignors who use the road transport network regularly for travelling and transporting goods. Opining that judicial interference is not warranted in such cases, the Court underscored, "..the domain of fixation of taxes in public transport is squarely within the authority of the executive and pertains to policy decisions of the Governments, both at the State and the Central level. Judicial interference, under normal circumstances, is not warranted, unless the very Constitutionality of the statutes are hit and/or the statues-in-question are in direct contravention of public policy or the like."

6. Personal Hearing By Way Of Exchange Of Chat Messages Not An Effective Opportunity Of Personal Hearing: Calcutta High Court

Case Title: SREI Equipment Finance Limited versus Additional/Joint/Deputy/Assistant Commissioner of Income Tax and Ors

Case Citation: 2022 LiveLaw (Cal) 206

The Calcutta High Court has ruled that personal hearing conducted by way of exchange of chat messages cannot be said to be an effective opportunity of personal hearing to the assessee and that it does not satisfy the test of fairness or the principles of fair play. The Bench, consisting of Justices T.S. Sivagnanam and Hiranmay Bhattacharyya, reiterated that the moment an insolvency petition is admitted, in view of the moratorium that comes into effect under Section 14(1)(a) of the Insolvency and Bankruptcy Code, 2016 (IBC) there can be no institution or continuation of pending proceedings against the corporate debtor. The Court thus set aside the assessment order passed against the assessee and held that the proceedings initiated against the assessee under the Income Tax Act, 1961 should be kept in abeyance till the completion of insolvency resolution proceedings against the assessee.

7. Review | Order 47 Rule 1 CPC Can't Curtail High Court's Power To Pass Orders Ex Debito Justitiae: Calcutta HC

Case Title: Shri Sadhan Roy v. Arvind Kumar Singh

Case Citation: 2022 LiveLaw (Cal) 207

The Calcutta High Court while enumerating upon the vires of power in plenary jurisdiction observed that although Order 47, Rule 1 of the CPC imposes a restriction upon parties to approach the Court for review of an order only on the grounds mentioned therein, however such a provision does not and cannot curtail the High Court's power to pass orders ex debito justitiae. A Bench comprising Justice Arijit Banerjee and Justice Kausik Chanda underscored that it has been held repeatedly by the Supreme Court that that the High Court is a court of plenary jurisdiction. Opining that the Court's inherent power to rectify a wrong cannot be restricted by legislation, the Court observed, "If the High Court feels that it has passed an erroneous order which has caused injustice to a party, in my opinion, nothing prevents the court from reconsidering the order and correcting the same by removing the error. In my opinion, not only the High Court has such power but also the solemn duty to do so. I am of the view that though O. 47 R. 1 puts a restriction on the parties to approach the court for review of an order only on the grounds mentioned therein, but, that provision does not and cannot curtail the High Court's power to pass orders ex debito justitiae. The High Court's inherent power to rectify an error, whether of fact or of law, cannot be abridged or restricted by legislation."

8. 'Right To Travel Abroad For Livelihood Affected': Calcutta High Court Stays LOC Issued By CBI Against Captain Of Merchant Ship

Case Title: Mritunjay Singh v. Union of India & Ors.

Case Citation: 2022 LiveLaw (Cal) 208

The Calcutta High Court has recently stayed a Lookout Circular (LOC) issued against a Captain in Merchant Shipping, who is also a Director in a company against which criminal proceedings were initiated by the Central Bureau of Investigation (CBI) for default in payment of loan. The Court opined that such an action would curtail his right to travel abroad for livelihood. A Bench comprising Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon an appeal preferred against a Single Judge order wherein it had been held that diluting the LOC would seriously hamper and prejudice not only the pending proceedings instituted by the CBI but also the recovery process of the Bank. Setting aside the impugned order of the Single Judge and imposing a stay on the LOC, the Court observed, "This Court is of the view that the Lookout circular issued against the appellant/writ petitioner would interfere with the departure from and arrival at the airports across India, leading to curtailing the appellant's right to travel abroad for livelihood. However, as held in Chandran Ratnaswami v. K.C. Palanisamy & Ors 2013 (6) SCC 740 the appellant is directed to file an affidavit of undertaking before this Court."

9.  S.256 CrPC | Court Must Apply Its Judicial Discretion & Record Finding Justifying Dismissal Of Case: Calcutta High Court

Case Title: M/s One Textile v. Umesh Bharech

Case Citation: 2022 LiveLaw (Cal) 209

The Calcutta High Court has recently set aside an order acquitting an accused under Section 256 of the CrPC for a complaint registered under Section 138 of the Negotiable Instrument Act by observing that a Magistrate cannot pass such an order merely due to the non-appearance of the complainant without forming a judicial opinion. Section 256 mandates that if the complainant does not remain present on the appointed day after the summons has been issued on the complaint and unless attendance of complainant has been dispensed with, the Magistrate shall acquit the accused. The provision further stated that if the Magistrate feels that the order of acquittal should not be passed on that date, the Magistrate has to give reasons. Justice Bibek Chaudhuri observed, "..acquittal of the accused on the absence of the complainant under Section 256(1) of the Code of Criminal Procedure is not automatic. The court must apply its judicial discretion to the facts and circumstances of the case where it is expedient for the court to acquit the accused under Section 256(1) of the Code." Opining that the impugned order does not contain any judicial discretion, the Court underscored, "The learned Magistrate has also not recorded any finding justifying dismissal of the case. The case was dismissed because the complainant failed to submit any application showing cause of his absence on the previous date. Absence of judicial discretion is apparent on the face of record. Because the learned Magistrate did not assign any reason in support of the requirement that it is not proper to adjourn the hearing of the case to some other date."

10. Art 226 | Overriding Of Statutory Provisions Under Guise Of Plenary Jurisdiction Amounts To Transgression Of Well Defined Limits: Calcutta HC

Case Title: The State of West Bengal & Ors v. Gandhi Memorial Girls' High School & Ors.

Case Citation: 2022 LiveLaw (Cal) 210

The Calcutta High Court has recently set aside an order vide which a school Headmistress was instructed to vacate her post and also demoted to the post of an assistant teacher by observing that Courts must exercise self-restraint in exercise of plenary powers and not pass an order in disregard to applicable statutory Rules. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta observed, "The courts have imposed self-restraint in exercise of plenary powers and the judicial review in not overstepping the statutory provisions and passing an order in disregard to the statutory Rules or the Act applicable in this regard. The imposition of penalty in a disciplinary proceeding can only be achieved upon adhering the procedures and the norms set forth in the aforesaid Rules and, therefore, assuming the jurisdiction of the disciplinary authority and perceiving the misconduct in ignorance of the aforesaid procedural provisions cannot with stand of the anvil of the legal jurisprudence." While enumerating upon the scope of powers vested upon a Court in the exercise of plenary jurisdiction, the Court underscored, "What can be discerned from the aforesaid observations from the aforesaid reports that the court does not embark upon the journey on a unchartered ocean of powers in an uninformed perception, what would be right and wrong for the society. The Judges must act on a well informed traditions, the procedure of law and impart justice with the rider that in proceeding on such terrain it should not cause injustice to the other."

11. Land Acquisition | Right To Property Is A Valuable Right, State Cannot Deny Compensation Merely On The Ground Of Delay: Calcutta HC

Case Title: Ajet Ali Baidya v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 211

The Calcutta High Court has recently observed that since the right to property is a valuable right guaranteed under Section Article 300A of the Constitution of India, merely on the ground of delay the State cannot deny its obligation to provide compensation for land acquisition. A Bench comprising Justice Arijit Banerjee and Justice Kausik Chanda was adjudicating upon an appeal preferred against a decision by a Single Judge bench wherein the writ petition of the appellants had been dismissed. The appellant had prayed for a direction that the concerned land acquisition case stood lapsed and thus sought a direction to be put in possession of their respective plots of land. Taking cognisance of the grievance raised, the Bench observed, "We are, however, of the opinion that there might be some delay on the part of the petitioners in approaching this Court, but since the right to property is a valuable right flowing from Article 300A of the Constitution of India, merely on the ground of delay the State cannot deny its obligation to compensate the petitioners."

12. 'Success In Trial Not Ground To Stall Repatriation': Calcutta HC Grants Relief To Bangladeshi Trafficking Victim Pending Trial Against Accused

Case Title: Shukla Mondal @ Sumi v. State of W.B. & another

Case Citation: 2022 LiveLaw (Cal) 212

The Calcutta High Court has recently come to the aid of a victim of human trafficking by observing that impairing chances of a successful trial cannot be a ground to stall the repatriation of the victim to her own country from protective custody. Justice Jay Sengupta was adjudicating upon an appeal preferred against the decision of a Single judge bench order vid which the victim's application for being repatriated to her native country had been rejected on the ground that it would damage the chances of the trial in the case. Opining that success in a trial cannot be a ground to stall the repatriation of the victim, the Court underscored, "Success in the trial cannot be a ground to stall repatriation of the victim lady to her own country. Afterall, she is a victim in this case and while the accused are at large, the victim is languishing in protective custody." Accordingly, the Court set aside the impugned order and further directed that there should be no impediment in having victim repatriated to her own country. The concerned authorities were ordered to take necessary steps in this regard. Liberty was also granted to the petitioner to return to India upon carrying necessary travel documents and depose in the trial in question.

13. Highly Unlikely That Housewife Would Narrate Her Misfortune To Neighbours: Calcutta HC Upholds Conviction Of Husband For Dowry Death

Case Title: Raju Mitra & Ors v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 213

The Calcutta High Court has recently upheld the conviction of a husband for the commission of the offence of dowry death under Section 304B of the IPC after opining that it is impossible for witnesses such as neighbours to state whether the victim housewife was tortured within the four corners of the matrimonial home or not. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi noted from the evidence on record that marks of injury had been found on the body off the deceased and that in addition to the ligature mark, investigating officers had found swelling on the back of the head and bruise marks on the left palm of the deceased. Acknowledging that it is very unlikely that the deceased would confide in witnesses such as neighbours about the torture that was meted out to her, the Court underscored, "These injuries show victim housewife had been subjected to physical assault immediately prior to her death probabilising the saga of torture as narrated by her relations. When a housewife is tortured within four corners of the matrimonial home, persons to whom she would ordinarily confide are her parents and close relations. It is highly unlikely she would narrate her misfortune to outsiders including neighbours. Analysing the evidence on record from this perspective, I am of the opinion evidence of parents and other relations of the victim girl with regard to torture meted out to her over further demand of money are wholly reliable. Evidence of the defence witnesses appear to be tutored. None of the witnesses were privy to the household affairs of the appellants." Thus, the Court opined that the defence witnesses are untrustworthy and that it is impossible for them to state whether victim housewife was tortured within the four corners of the matrimonial home or not.

14. The Objection Regarding The Non-Applicability Of The MSMED Act To 'Works Contract' Is To Be Decided In Arbitration By The MSME Council: Calcutta High Court

Case Title: NBCC (India) Ltd. v. The State of West Bengal and Ors. A.P.O No. 11 of 2022

Case Citation: 2022 LiveLaw (Cal) 214

The Calcutta High Court held that objections regarding the non-applicability of the MSMED Act to works contract can be decided in arbitration by MSME Council. The Division Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj upheld the order of the Single Bench whereby the petitioner was referred to arbitration before the MSME Council with a direction that his objection regarding the non-applicability of the MSMED Act as the contract was a works contract would be decided by the Arbitral Tribunal. The Court observed that MSMED Act is a special legislation that has an overriding effect, therefore, the parties are bound to follow the mechanism provided under Section 18 of the Act. The Court held that objections regarding the non-applicability of MSMED Act to works contract can be decided in arbitration by MSME Council. The Court held that the Single Judge rightly rejected the objections of the appellant on the grounds that all such objections are to be raised in the arbitration before the MSME Council and the arbitral tribunal shall decide on these before entering into other questions.

15. 'As If Some Gazetted Officers May Not Be Of Much Repute': Calcutta HC Sets Aside Order Requiring Two 'Reputed' Gazetted Officers To Stand As Surety

Case Title: Kashinath Dey @ Kashi v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 215

The Calcutta High Court has recently modified an order issued by the concerned Magistrate in proceedings initiated under Section 110 of the CrPC by underscoring that onerous conditions cannot be put in proceedings requiring execution of bond for good behaviour. Justice Jay Sengupta was adjudicating upon a plea challenging proceedings under Section 110 of the CrPC wherein vide order dated February 16, 2022 the concerned Executive Magistrate had directed the petitioner to submit show-cause as to why he shall not be bound down for good behaviour bond under Section 110 of CrPC and should furnish an amount of Rs. 1,00,000 each with 'two reputed Gazetted Officers' as sureties for his good behaviour for such period not exceeding three years. Pursuant to the rival submissions, the Court observed, "It is a settled law that such onerous condition cannot be put either in an order granting bail or in a proceeding requiring execution of bond for good behaviour that cannot be fulfilled by the person on whom such direction is passed." Reliance was placed on the Calcutta High Court judgment in Dipu Singh vs. State of West Bengal in this regard. Opining further that the condition imposed by the concerned Executive Magistrate is onerous and thus cannot be sustained, the Court held, "More than that the condition imposed by the learned Executive Magistrate is suffers from lack of clarity. It is not clear what is the meaning by using the term "reputed Gazetted Officer", as if some Gazetted Officers may not be much repute. Therefore, the onerous condition imposed by the learned Executive Magistrate cannot be sustained."