Calcutta High Court Weekly Round Up: May 30 To June 5, 2022

Nominal Index [2022 LiveLaw (Cal) 216 To 2022 LiveLaw (Cal) 224]

Sri Anish Loharuka v. The State of West Bengal 2022 LiveLaw (Cal) 216

Hafija Laskar v. The State of West Bengal and others  2022 LiveLaw (Cal) 217

Susmita Saha Dutta v. Avishek Bandyopadhyay  2022 LiveLaw (Cal) 218

Yes Bank Limited v. Malati Saha 2022 LiveLaw (Cal) 219

Sulogna Chowdhury v. State of West Bengal & Ors 2022 LiveLaw (Cal) 220

Pranesh Kumar Kar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 221

Abhishek Banerjee & Anr v. The Union of India & Ors 2022 LiveLaw (Cal) 222

Abhishek Banerjee & Anr v. The Union of India & Ors 2022 LiveLaw (Cal) 222

 In Re: Satyadeo Prasad Shaw 2022 LiveLaw (Cal) 224

Orders/Judgments 

1. S.207 CrPC | Can't Supply Documents To Accused If There Is Risk Of Disclosure Of Minor Victim's Identity, Can Only Permit Inspection: Calcutta HC

Case Title: Sri Anish Loharuka v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 216

The Calcutta High Court while enumerating upon the scope of Section 207 of the CrPC which allows documents relied upon by the prosecution to be supplied to an accused, underscored that when there is a possibility of disclosure of identity of a minor victim of sexual offences then instead of supplying it would be expedient to allow the accused or his lawyer to inspect the said documents. Justice Jay Sengupta observed, "..it is abundantly clear that when there is a possibility of disclosure of identity of a minor victim, albeit minor at the time of commission of offence then instead of supplying, copying such documents to the accused, it would be expedient to allow the accused or his lawyer to inspect the said documents. After all, once a document is supplied to the accused, there is no means to ensure that the identity of the victim would not be disclosed by misusing of such document. However, it has also been provided that the accused would have a right to have such a document inspected by an expert of Information Technology."

2. Allegations Of Custodial Torture Levelled By An Undertrial Not Ground To Assume Similar Treatment Meted Out To Related Accused: Calcutta High Court

Case Title: Hafija Laskar v. The State of West Bengal and others

Case Citation: 2022 LiveLaw (Cal) 217

The Calcutta High Court refused to issue a writ of Habeas Corpus at the instance of the petitioner by opining that the allegation of custodial torture against another accused in a different case cannot ipso facto raise presumption in the mind of the Court that custodial torture is being meted out to the petitioner as well. A Bench comprising Justice Sabyasachi Bhattacharyya and Justice Ajoy Kumar Mukherjee opined that there is no material on record to support the apprehension of custodial torture being meted out to the petitioner and accordingly held, "..we do not find from the materials on record any scope of presumption or apprehension of custodial torture against the petitioner. In fact, the mere incident of alleged custodial torture against another person who has been in custody, being the accused in a different case (a near relative of the petitioner, namely Md. Ali @ Subrata Byne), cannot ipso facto raise presumption in the mind of the court regarding the custodial torture of the petitioner as well." The Bench further observed that since there is specific allegation of the petitioner having fled from police custody, it would not be prudent to issue a Writ of Habeas Corpus, which is a prerogative writ, at the instance of the petitioner.

3. 'Extreme Measure': Calcutta High Court Refuses Contempt Action Against TMC MP Abhishek Banerjee For Alleged Derogatory Remarks Against Judiciary

Case Title: Susmita Saha Dutta v. Avishek Bandyopadhyay

Case Citation: 2022 LiveLaw (Cal) 218

The Calcutta High Court dismissed a petition seeking initiation of suo motu contempt proceedings against Trinamool Congress (TMC) MP Abhishek Banerjee for his purported derogatory remarks against the judiciary by opining that the remarks do not tantamount to a contumacious act justifying issuance of a suo motu rule of contempt. A Bench comprising Justice Sabyasachi Bhattacharyya and Justice Ajoy Kumar Mukherjee refused to initiate contempt proceedings against Banerjee by observing, "In the present case, undoubtedly the comments uttered by the person in question may not be palatable to the general public and/or the members of the Judiciary, however, such nature of the act need not have the effect tantamounting to a contumacious act, justifying issuance of a suo motu rule of contempt." It was also opined that the criteria stipulated in Section 13 of the Contempt of Courts Act, 1971 is not applicable in the instant case since the alleged contempt is not of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.

4. Intra-Court Appeal Under Clause 15 Of Letters Patent Appeal Not Maintainable Against Orders In Exercise Of Criminal Jurisdiction: Calcutta HC

Case Title: Yes Bank Limited v. Malati Saha

Case Citation: 2022 LiveLaw (Cal) 219

The Calcutta High Court has recently observed that an intra-court appeal cannot be entertained against an order for initiation of criminal proceedings pursuant to Clause 15 of the Letters Patent. A Bench comprising Justice Arijit Banerjee and Justice Ananya Bandyopadhyay placed reliance on the Supreme Court decision in Ram Kishan Fauji v. State of Haryana to observe, "As we understand, the Hon'ble Supreme Court has laid down in the case of Ram Kishan Fauji that where the order in question causes initiation of a criminal proceeding which may result in punishment of the accused person by way of imprisonment or fine, or if by reason of such order, a criminal proceeding stands terminated, then such an order would be considered to have been passed by the Court in exercise of criminal jurisdiction. In such a case, Clause 15 of the Letters Patent would clearly bar an intra-court appeal."

5. No Scope Of Polluting River Water: Calcutta HC Refuses To Issue Interim Order Restraining Conduct Of Public Rally On River Bed By CM Mamata Banerjee

Case Title: Sulogna Chowdhury v. State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 220

The Calcutta High Court on Monday refused to issue any interim order in a Public Interest Litigation (PIL) petition against the holding of a public rally on a river bed by West Bengal Chief Minister Mamata Banerjee on June 1 thereby polluting the Gandheswari river. A Bench comprising Justice Sabyasachi Bhattacharyya and Justice Ajoy Kumar Mukherjee observed, "Upon scrutinising the photographs annexed to the present writ petition, it is evident that the alleged river- bed, where the rally is proposed to be held, is absolutely dry and there is no scope of adversely affecting the river water or polluting the same in any manner by virtue of holding such rally." It was further opined that since the respective authorities as well as the private individuals owning a substantial share of the land where the rally is going to be held have sanctioned the holding of the rally, there is no scope to interfere in the present writ petition.

6. State Obliged To Pay Interest On Delayed Payment Of Gratuity, Pension: Calcutta High Court Orders Action Against Erring Officers

Case Title: Pranesh Kumar Kar v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 221

The Calcutta High Court has recently directed the concerned Treasury Officer to pay interest for delayed payment of gratuity and arrear pension amount to an Assistant Teacher, after opining that it is a valuable right of a retired employee. Justice Amrita Sinha observed, "An employee has a statutory right to receive gratuity and pension upon retirement. If payment of such gratuity and pension is delayed the retired employee is surely entitled to get some interest for such delayed payment." The Court also remarked that pension and gratuity are welfare provisions aimed at maintaining the life of a retired employee and his/her dependents and that it is compensatory in nature. Accordingly, the Court directed the concerned Treasury Officer to pay interest to the writ petitioner at the rate of 5% per annum on the gratuity and arrear pension calculated on and from the due date till the date of actual payment, provided the delay caused was not attributable to the petitioner.

7. Calcutta High Court Permits TMC MP Abhishek Banerjee, Wife To Travel Abroad For Medical Treatment Amid Coal Scam Probe

Case Title: Abhishek Banerjee & Anr v. The Union of India & Ors

Case Citation: 2022 LiveLaw (Cal) 222

The Calcutta High Court on Thursday allowed Trinamool Congress's National General Secretary Abhishek Banerjee and his wife Rujira Banerjee to go to Dubai for medical treatment. This comes even as the Enforcement Directorate (ED), which is probing the two in a coal smuggling scam, opposed their travel. Allowing the TMC MLA and his wife to travel to Dubai for medical treatment, Justice Bibek Chaudhuri observed, "Considering the instant application purely on humanitarian ground, this Court permits the petitioner no.1 and his wife to visit Moorfields Eye Hospital, Dubai, United Arab Emirates during the period between 2nd June, 2022 and 10th June, 2022." Directing the petitioners to submit details about their accommodation and the hospital where the medical treatment will be sought, the Court underscored, "The petitioners shall submit the copies of the air tickets and the address where they would stay in Dubai during the particular period to the Enforcement Directorate with the phone numbers of the Hospital and the place of accommodation of the petitioners so that the Enforcement Directorate can keep a track of the whereabouts of the petitioners."

8. 'Constitutional Court Can't Be Used As A Coercive Machinery': Calcutta HC Directs Petitioner To Approach Magistrate For Alleged Police Inaction

Case Title: Rajina Begam v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 223

The Calcutta High Court has recently opined that the power of the Constitutional Court cannot be used as a coercive machinery and thus ordered the aggrieved person to seek relief from the concerned Jurisdictional Magistrate regarding the alleged police inaction. Justice Bibek Chaudhuri was adjudicating upon a case wherein the petitioner had alleged that she had been manhandled and also her modesty had been outraged by the respondent and his associates in an altercation regarding construction over a disputed property. Opining further that the power of the Constitutional Court cannot be used as a coercive machinery, the Court underscored, "The power of the Constitutional Court cannot be used as a coercive machinery upon an individual. If the petitioner has any objection with regard to the course of investigation, she can take appropriate step in the Court of the Jurisdictional Magistrate."

9. Litigant Should Not Be Penalised For Advocate's Misconduct: Calcutta HC Condones 9 Yrs Delay In Filing Revision Plea, Imposes ₹10K Cost

Case Title: In Re: Satyadeo Prasad Shaw

Case Citation: 2022 LiveLaw (Cal) 224

The Calcutta High Court opined that a litigant should not be penalised for the misconduct of his advocate and accordingly allowed an application seeking condonation of delay of about 9 years and 4 months in filing the revision petition. The counsel appearing for the petitioner submitted before Justice Kaushik Chanda that the petitioner had not been informed by his advocate that his criminal appeal had been dismissed by the concerned Sessions Judge on December 13, 2012. Pursuant to the submissions, the Court underscored, "A litigant should not be penalised for the laches or misconduct on the part of his learned advocate. In the present case, though I am of the view that the petitioner should have been more diligent in pursuing his case before this Court, I am inclined to grant him an opportunity to contest his appeal on merit." Accordingly, the Court condoned the delay in preferring the instant revisional application subject to the condition that the petitioner will pay a cost of Rs.10,000 to the State Legal Services Authority, West Bengal within a period of 2 weeks.

Important Development 

1. Centre Notifies Appointment Of Judicial Officers Siddhartha Roy Chowdhury & Shampa Dutta (Paul) As Additional Judges Of Calcutta High Court

The Central Government on Tuesday has notified the appointment of judicial officers Siddhartha Roy Chowdhury and Shampa Dutta (Paul) as Additional Judges of the Calcutta High Court. The Supreme Court Collegium in its meeting held on February 1, 2022 had reiterated the aforementioned appointments. Their names were first recommended on September 1, 2021. As per the notification, Dutt's appointment is for a period of two years while Chowdhury has been given a tenure till December 27, 2023.