Calcutta High Court: Annual Digest 2021

As we step into 2022, LiveLaw brings to you a yearly Round-up of important updates from the Calcutta High Court. This yearly digest includes 182 orders and judgments divided into 21 different subject heads. 

Criminal Law 

1. Section 173(8) CrPC No Bar For Writ Courts To Transfer Investigation To CBI [Jyotsna Roy v. State of West Bengal & Ors]

Taking note of the wide gaps in a criminal investigation carried out by the Siliguri Police in connection to the alleged murder of an Intelligence Bureau (IB) Officer holding sensitive information, the Calcutta High Court on Thursday transferred the investigation to the Central Bureau of Investigation (CBI). "A fair trial wholly depends on the quality of investigation. If there are several loopholes in the investigation or an absence of collection or preservation of crucial evidence, the investigation becomes superficial and perfunctory," the Single bench of Justice Moushumi Bhattacharya said while handing over the case to CBI. The Bench also made it clear that Section 173(8) of CrPC pertaining to powers of the Police to carry on 'further investigation' does not preclude the Courts from passing further directions, if it deems it appropriate to do so in fit circumstances.

The Court held, "Section 173 of the Cr.P.C. deals with Report of police officer on completion of the investigation and sub-section 8 provides that nothing in the section shall preclude further investigation in respect of an offence after a report has been forwarded to the Magistrate. This court is of the view that Section 173(8) cannot prevent a Writ Court from passing further directions if the court deems it appropriate to do so in fit circumstances." The Court observed that Section 173(8) is premised on the action of the Officer-in-Charge of the concerned police station on obtaining further evidence after a final report of the investigation has been made. "The scope of the provision is limited in operation and is dependent on the Officer chancing upon a piece of evidence after completion of investigation" it remarked while pointing towards several loopholes in the investigation in this case.

2. Prima Facie Bias Or Mala Fide Exercise Of Power By State Authorities Necessary For Transferring A Case To CBI [Malati Roy v. State of West Bengal and others]

The Calcutta High Court observed that the Court is empowered to transfer an investigation to Central Bureau of Investigation (CBI) only where there is a specific instance of bias or mala fide exercise of power on the part of State authorities. Justice Moushumi Bhattacharya was dealing with the issue of investigation of death of one Ulen Roy who was killed during a Yuva Morcha in Siliguri last year. The unfortunate accident of firing that took place on 7th December 2020 claimed the life of Ulen Roy who participated in the procession. The complaint was thereafter filed on 9th December 2020. Subsequently, the matter was handed over to the Criminal Investigation Department (CID) on 10th December 2020.

The Court was also of the view that vague and unsubstantiated allegations are simply not enough for transferring cases to CBI. "Appointing an independent agency rests on the notion that the measures taken to unravel the truth are not enough. The facts must point to blatant omissions and unmistakable lacunae in the fact-finding exercise so that the court would have no other alternative but to transfer the investigation to an independent agency. The apprehension of interference in the investigation by the State machineries or by parties who are interested in the outcome of the investigation must be clearly borne out from records." the Court held. Furthermore, the bench also observed that a court is empowered to transfer an investigation to another agency provided the court finds that high officials of State authorities are involved or the accusation is against top officials of the investigating agency thereby allowing them to influence the investigation or where the investigation is prima facie found to be tainted.

3. Coal Mining Probe: Calcutta High Court DB Stays Single Bench Verdict Which Held Specific Consent Of State Govt Was Needed For CBI To Investigate Beyond 'Railway Areas' [The Central Bureau of Investigation v. Anup Majee and Others]

The Calcutta High Court stayed the Single Judge Bench ruling which had ruled that probe beyond the Railway areas (in the State of West Bengal), shall be conducted by the CBI only subject to specific consent being granted by appropriate authorities of the State of West Bengal. The Division Bench, in its order, noted, "Proper investigation cannot be carried out if the investigation in such cases is divided into parts, drawing lines on territories once the premier central agency is in the process of investigation." The Court also remarked, "In case during the pendency of the present appeals, the investigation being carried out by the CBI is hampered, the process of investigation at this stage will certainly be prejudiced, which will not be in the interest of justice as any delay in the process may be fatal…" The case pertains to illegal mining and transportation of coal through Railways in connivance with officers of the Eastern Coalfield Limited, Railways, C.I.S.F. and some other private persons including the writ petitioner (Anup Majee). The Court also said that plain reading of the FIR, it cannot be suggested that the offence has been committed at one place as these are chain of events, which are interlinked with the railways and other officers, including those of Para-Military Force, namely, CISF, who are drawing salaries from the Central Government.

4. Calcutta HC Sets Aside Single Judge's Order Reviving Criminal Proceedings Against Anisur Rehman, Remands Back Matter [Anisur Rahaman v. Jahar Sha & Others]

The Calcutta High Court set aside an order of a Single Judge reviving criminal proceedings against erstwhile West Bengal BJP leader Anisur Rehman without granting him an opportunity of being heard and remanded the matter back for being considered afresh. Rehman was arrested in the October 2019 murder of Trinamool Congress functionary Kurban Shah. Rehman had defected to the BJP from the TMC ahead of the 2019 Lok Sabha polls. The bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee was considering an appeal against the March 2 order by Justice Sabyasachi Bhattacharyya on a writ petition filed by Shah's nephew Jahar Sha against the proposal of the State Government to initiate action in terms of Section 321 of the CrPC for withdrawal of the criminal cases pending against the appellant, Rehman. The bench noted that the appellant, was not made a party in the writ petition. However, the Single Judge quashed the order that was passed by the Trial Court under Section 321 by virtue of which the criminal charges against the appellant stood withdrawn. "The appellant stands accused in several criminal cases. At the hearing, it was submitted by the learned Advocate General representing the State that an order under Section 321 of the Code of Criminal Procedure had already been passed by the concerned Trial Court. Mr. Ganguly, learned Senior Counsel appearing for the appellant submits that quashing of the order under Section 321 of the Code of Criminal Procedure without hearing the appellant amounted to clear and flagrant violation of the principle of audi alteram partem. The order, which conferred substantial benefits on the appellant, could not have been set at naught without giving the appellant an opportunity of hearing", recorded the bench.

5. CISF Firing In Cooch Behar: Calcutta High Court Asks WB-CID To Submit Status Report By May 5 [Aminuddin Khan v. Union of India]

The Calcutta High Court directed the West Bengal's Criminal Investigation Department (CID) to submit a progress report of the investigation (by May 5) into Sitalkuchi, Cooch Behar firing incident, wherein Central Industrial Security Force (CISF) personnel opened fire allegedly after coming under attack from locals. The Bench of former Chief Justice Thottathil Radhakrishnan and Justice Arijit Banerjee was dealing with the plea instituted touching upon incidents that have resulted in the death of four persons. The allegations in the plea are that the incident was the result of police firing in the course of electioneering. It was also submitted that both those FIRs have been proceeded with for investigation and now investigation was being carried on by the CID of the State of West Bengal. Noting the submissions, the Court said, "We expect a statement to be placed on record by the CID as to the progress of the investigation by the next date of hearing."

Also Read: CISF Firing In Sitalkuchi, Cooch Bihar: WB-CID Submits Interim Status Report Before Calcutta HC

6. Man In Jail For 29 Yrs- Calcutta High Court Directs Authorities To Decide Application Of Remission Within 45 Days [Sri Gopal Sarkar v. The State of West Bengal & Others]

The Calcutta High Court recently ruled that different authorities including the Government, the Convicting Court, and the Confirming Court should decide Remission Application in the most expeditious manner having regard to the larger framework of Article 21 of the Constitution. The Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee was hearing the plea of an appellant who has, till now, undergone sentence for more than 29 years following his conviction and sentence handed down on different counts. Importantly, the Court said, "We are of the view that an application under Section 432 Cr.P.C. cannot be kept pending for long. If a person is entitled to relief by way of remission of sentence in terms of Section 432, that needs to be considered within the shortest period and earliest point of time." Consequently, the Court gave the appellant the liberty to make an appropriate application for remission of the sentence before the competent authority in the Government of West Bengal. Additionally, all the authorities concerned have been directed to necessarily give utmost priority to any such application and have it finally disposed of within an outer limit of 45 days from the date of receipt of such application and a copy of the Judgment by the competent authority in the Government of West Bengal.

7. Delayed Investigation, Filing Of Chargesheet In Heinous Crimes Doesn't Reflect Good On Investigating Agency: Calcutta HC Takes Suo Moto Cognizance [The Court on its own motion: In Re: Delayed Investigation in Criminal Cases]

In a significant development, the Calcutta High Court took suo moto cognizance regarding Delayed Investigation in Criminal Cases. The Bench of former Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee noted that as per the information received, there are 999 cases where the charge sheet had not been filed within the time permitted in different statutes. Some of the cases are more than a decade old. Significantly, the Court added: "Whenever the charge sheets have not been filed for want of sanction, the reasons therefore and the officers concerned who are sitting tight over the file in not granting sanction for prosecution, be placed before the Court. Lastly, the Registrar General of the Court was directed to collect information from all the courts in the State of West Bengal as regards the cases in which the charge sheets have not been filed in Court within the time permissible in law.

8. Saradha Chit Fund Scam: "CBI Couldn't Justify Her Further Custodial Detention" Debjani Mukherjee Granted Bail By Calcutta High Court [Debjani Mukherjee v. CBI]

The Calcutta High Court last week granted bail to Debjani Mukherjee, who is an accused in the multi-crore Saradha chit fund scam. A division bench comprising former Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee granted her bail noting that it does not appear that the trial will conclude within a measurable distance of time. The Court also observed that it would be a travesty of justice to keep her confined in jail any further if after the trial the petitioner is ultimately found to be innocent, however, she would continue to remain behind bars since she is yet to obtain bail in cases pending against her in other states. Mukherjee was the director of the Saradha group of companies and she is a co-accused in the multi-crore scam along with Sudipta Sen, who was the promoter of Saradha Group. Noting that the petitioner was in custody for more than seven years, the Court remarked that: "It is not in dispute that the charge-sheet was filed on October 22, 2014. It follows that the investigation against the accused persons including the petitioner is complete. CBI has not been able to satisfy us as to why further custodial detention of the petitioner is necessary."

9. Calcutta HC Directs Rahul Shivshankar To Appear Through VC Mode In Probe Over 'Defamatory' Audiotape On Abhishek Banerjee Run By Times Now [Bennett Coleman & Company Limited v. The State of West Bengal & Anr]

The Calcutta High Court directed Times Now news channel's Editor-in-Chief, Rahul Shivshankar to appear through Video Conferencing mode in probe over the matter related to telecast of a 'defamatory' audiotape about Mamata Banerjee's Nephew and Loksabha MP, Abhishek Banerjee on Times Now news channel. The Bench of Justice Kaushik Chanda said: "Interest of justice will be subserved, if Mr. Rahul Shivshankar, against whom the notice under Section 41A of the Code of Criminal Procedure has been issued, is directed to co-operate with the investigation." However, Shivshankar was permitted to respond to the notice issued under Section 41A of the Code of Criminal Procedure via Video Conference. An FIR had been registered against the 'Editor of Times Now', on the complaint of Banerjee for a news item circulated on "Twitter handle of "Times Now" on April 4, 2021, and in the said news item, "Times Now" had played an audiotape which contained an alleged recording of a conversation between two people. In the FIR, it has been alleged that on the basis of the alleged tape, whose authenticity "Times Now" didn't vouch for, several derogatory, defamatory and disparaging statements were made against the de facto complainant (Abhishek Banerjee). 

10. Tarpaulins Theft Case: Calcutta High Court Refuses To Stay Probe Against BJP MLA & LOP In WB Assembly Suvendu Adhikari [Suvendu Adhikari & Anr. v. The State West Bengal & Anr]

The Calcutta High Court refused to stay the police probe in connection with Tarpaulin theft in which leader of the Opposition in the West Bengal State Assembly, Suvendu Adhikari has been named as an accused in the related FIR. The Bench of Justice Tirthankar Ghosh was hearing the plea of Adhikari who had sought quashing of an FIR registered by Contai police in which he and four others, including his brother Soumendu, have been accused of stealing tarpaulins from the civic body's godown on May 29. Further, the Court said that it was not inclined to pass any interim order at the instant stage without perusal of the case diary and the materials collected by the investigating agency. The interim order prayed for is refused at this stage. However, the Court granted the petitioners, the liberty to renew their prayer for an interim order on the next date fixed for hearing.

11. "Uncanny Timing Of The FIRs": Calcutta HC Stays Arrest Of TMC Turncoat In 13 FIRs Registered Against Him After State Assembly Poll Results [Dhyanesh Narayan Guha v.The State of West Bengal & Or]

Noting that the uncanny timing of the FIRs cannot be lightly brushed aside, the Calcutta High Court restrained the West Bengal Police from arresting a BJP Leader, who was earlier with TMC, in connection with 13 FIRs registered against him within a span of 30 days just after the announcement of West Bengal State Assembly results. Calling for the particulars of all other FIRs against the petitioner, Dhyanesh Narayan Guha, the Bench of Justice Rajasekhar Mantha remarked: "One also cannot brush aside the argument that the change of political color by the petitioner is the ulterior reason behind the number of complaints being filed against the petitioner albeit by different persons" Significantly, the Court further remarked: "This Court definitely sees extraordinary circumstances in 13 successive complaints having been filed before one police station against the writ petitioner in a span of 30 days. Mala fide FIRs would normally attract the jurisdiction of the Court under the Code of Criminal Procedure but 13 successive FIRs would bring into focus, likely and violation of Article 21 of the Constitution"

12. 'Effort To Shield Real Culprits': Calcutta High Court Initiates Departmental Proceedings Against IO, Orders De Novo Probe [Sri Debasish Bhattacharjee & Anr. v. The State of West Bengal & Anr]

The Calcutta High Court while hearing a plea for quashing of charge sheet reprimanded the concerned Investigating Officer for conducting a 'biased, wholly misdirected and fully tainted' investigation in order to shield the actual offenders. Accordingly, departmental proceedings were initiated against the Investigating Officer and the Court directed a separate police department to conduct de no investigation of the case. Justice Bibek Chaudhuri pursuant to the perusal of the record opined, "The chain of events leading to the filing of F.I.R under Section 154 of the Code by the defacto complainant and consequent investigation by police are shrouded with bona fide suspicion and reasonable doubt involving wide ramification in the administration of justice, persuading the Court to adjudicate the issue in hand under the touchstone of the basic requirement of investigation of a criminal case to establish the truth behind commission of an offence." Accordingly, the Court disposed of the petition by ordering the Commissioner of the Barrackpore Police Commissionerate to initiate departmental proceedings against the previous Investigating Officer of the case i.e. Superintendent of Police Naru Gopal Chakraborty.

13. Section 205 CrPC- Magistrate Cannot Mechanically Impose Conditions To An Order Dispensing Personal Appearance of Accused [Sanjay Jain v. State]

The Calcutta High Court held that magistrate cannot mechanically impose conditions to an order dispensing the personal appearance of the accused under Section 205 Code of Criminal Procedure. It observed that the Magistrate, while passing the impugned order, had merely mentioned that there are certain facts which can only be explained by the accused persons, and those facts are only within their knowledge, and as such, their presence may be required. However, the same appears mechanical when the accused person's plea may be recorded through his Advocate and his examination under Section 313 of CrPC may also be conducted in terms of Section 313(5) of the Code which provides that the court may permit the accused to file written statement as sufficient compliance of the section. While upholding the contentions of the petitioner, Justice Kausik Chanda observed, "From the order of the learned Magistrate it does not appear that the learned Magistrate assigned any reason as to why the appearance of the petitioner was necessary at the time of examination under Sections 313 and 251 of the Code of Criminal Procedure, 1973. Learned Magistrate merely mentioned that there are certain facts which can only be explained by the accused persons, and those facts are only within their knowledge, and as such, their presence may be required. In my view, the order of the learned Magistrate cannot be said to be a speaking order, so as to justify the presence of the petitioner at the time of examination under Section 251 or under Section 313 of the Code of Criminal Procedure, 1973."

14. Public Servant Can't Be Distinguished Based On Their Location, State's Consent Not Required For CBI To Investigate Central Govt Officials [Vinay Mishra v. CBI]

The Calcutta High Court refused to interfere in the ongoing investigation being conducted by the Central Bureau of Investigation (CBI) in the cattle and coal smuggling cases against former TMC leader Vinay Mishra. The accused had been charged with offences under the Indian Penal Code and the Prevention of Corruption Act, 1988 (PC Act, 1988) proceedings of which are currently pending before the Special Judge, C.B.I., Paschim Bardhaman at Asansol. Justice Tirthankar Ghosh observed, "The nature of allegations complained in the present case, the officers/accused who are involved and the loss which has been sustained do not involve any interference with the powers vested in the State by the Constitution."

The Court observed that all public servants charged with offences under the PC Act 1988 must be dealt with equally regardless of where their offices are situated. "Public servants whose office location may be in different States, but are associated with the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government cannot be distinguished and/or discriminated because of the location of their offices being at different States and are to be hauled up for corruption in like and similar manner uniformly throughout the country", the Court opined.

15. A Writ Court Is Required To Intervene Even At A Suggestion Of Any Plan Or Attempt To Take Away The Liberty Of A Person [Mr. Rakhal Bera v. The State of West Bengal & Ors]

The Calcutta High Court granted bail to BJP MLA Suvendu Adhikari's aide Rakhal Bera who had earlier been arrested for his alleged participation in a job racket where he had allegedly promised a job in the State Irrigation Department in lieu of 2 lakh rupees back in 2019. Leader of the Opposition Suvendu Adhikari was then the Minister of Transport, Irrigation and Water Resource in West Bengal. While granting bail to the petitioner, Justice Rajasekhar Matha observed, "There appears to be a pattern being followed by police in coordination with one another in attempting to keep the petitioner in custody by hook or crook on one pretext or the other and by registering one FIR after the other". Further enumerating upon the petitioner's violation of personal liberty under Article 21 of the Constitution, the Court observed, "Normally a prayer for liberty from custody pending criminal proceedings is required to be made under Section 439 of the Cr. P. C. However, looking at the successive cases against and the repeated arrests of the petitioner, provisions of Article 21 of the Constitution of India are clearly attracted and a Writ Court under Article 226 of the Constitution of India cannot be a silent spectator. A Writ Court is required to intervene even at a suggestion of any plan or attempt to take away the liberty of a person, with ulterior motive or for doubtful reason. Such cases call for Judicial Scrutiny"

16. Rose Valley Chit Fund Scam: Calcutta High Court Grants Interim Bail To Chairman Gautam Kundu To Meet Minor Child And Ailing Mother [Gautam Kundu v. Enforcement Directorate]

The Calcutta High Court granted interim bail to Gautam Kundu, the former Chairman of the Rose Valley group of companies who had been arrested in connection with the alleged multi-crore chit fund scam that is currently being investigated by the Enforcement Directorate (ED) and the Central Bureau of Investigation. An application under Section 439 of CrPC had been moved by Kundu seeking interim bail for 7 days in order to look after his minor child and ailing mother. Justice Shivakant Prasad noted that the petitioner had moved such an application for interim bail for the second time. However, his earlier prayer for interim bail had been rejected by the Court on June 26, 2020 due to his non-production owing to the ongoing pandemic. Opining on the importance of a speedy trial in order to safeguard the fundamental rights of an accused, the Court observed, "Golden triangle in the Indian Constitution is of significant importance to safeguard citizens basic human right enshrined under Article 21 of the Constitution of India and an undertrial prisoner has right of speedy trial and for that any accused who is left in the limbo of jail incarcerated for a longer period has every right to file bail applications for his release but the Court should be alive to the situation that trial be expeditiously concluded adhering to Section 309 of Cr.P.C. in case of a person in judicial custody and should not be left in limbo without trial."

17. 'Bias And Malicious Prosecution Cannot Be Ruled Out': Calcutta HC Stays Three Cases Registered Against BJP MLA Suvendu Adhikari, Orders No Coercive Action [Suvendu Adhikari v. The State of West Bengal & Ors]

The Calcutta High Court has extended interim relief to BJP MLA and Leader of the Opposition in West Bengal Assembly Suvendu Adhikari in the context of Crime Investigation Department (CID) summons in connection with the probe into the death of his bodyguard Subhobrata Chakraborty. Justice Rajasekhar Mantha observed, "There shall be a stay of proceedings in respect of the Contai Police Station Case No. 248 of 2021 dated July 7, 2021 and the Nandigram Police Station Case No. 110 of 2021 dated March 18, 2021. The investigation into the other two Police Station cases i.e. Manicktala Police Station Case No. 28 of 2021 dated February 27, 2021 and Tamluk Police Station Case No. 595 of 2021 dated July 19, 2021, the investigation may go on but no coercive action shall be taken against the petitioner. The petitioner shall cooperate in the investigations. Panskura Police Station Case No. 375 of 2021 and 376 of 2021 shall also remain stayed." The Court further directed that the State must take the Court's leave before initiating any coercive action against Adhikari. "Bias and malicious prosecution cannot be ruled out in the instant case since the petitioner is being persecuted at four different police stations by four different sets of individuals. A careful scrutiny of the complaints and the FIRs registered against the petitioner naming him directly or indirectly would indicate that the allegation of abuse of State police machinery cannot be completely ignored", the Court furher opined.

Also Read: 'Not Maintainable': Calcutta HC Refuses To Interfere With Single Bench Order That Stayed Criminal Proceedings Against BJP MLA Suvendu Adhikari

18."Absurd Allegation": Calcutta High Court Quashes FIR Against Journalist For His Tweet Questioning Govt's COVID Quarantine Policy [Zubair P. K. v. The State]

The Calcutta High Court quashed an FIR registered against a port-Blair journalist, Zubair Ahmad for his tweet questioning the COVID quarantine policy adopted by the Government. Quashing the FIR, the Bench of Justice Shivakant Prasad observed thus "...allowing the criminal proceeding in terms of the FIR registered against the petitioner would amount to sheer abuse of process of law and misuse of power of the Court as the allegation in the FIR appears to be absurd and no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused/petitioner." "There is no case laid before this Court that the petitioner was suffering from COVID 19 positive and was wandering in and around the neighbouring area or in the locality in violation of the regulation relating to lockdown due to pandemic situation which cropped up due to COVID 19. Hence, this Court does not prima facie, even find any ingredients of the offence punishable under Sections 269 and 270 of the Indian Penal Code," concluded the Court while quashing the FIR.

19. Calcutta High Court Grants Anticipatory Bail To BJP Leader Kailash Vijayvargiya, Others In Assault Case [Kailash Vijayvargiya v. State of West Bengal]

The Calcutta High Court granted anticipatory bail to BJP Leader, Kailash Vijayvargiya, RSS member Jisnu Basu, and Pradeep Joshi in an assault case in view of the fact that the matter has reached the Supreme Court. The Court observed that the petitioners/bail applicants should be granted bail till October 25 as the matter before the Supreme Court is set to be heard on October 20. The Bench of Justice Harish Tandon and Justice Kausik Chanda was hearing the pleas of bail applicants including Vijayvargiya challenging the order of the Chief Judicial Magistrate, Alipore, directing the complaint filed by the victim woman to be treated as First Information Report. As alleged by the victim woman, Vijayvargiya called her to his flat wherein the bail applicants committed rape on her, one after another, and she was forced to leave the flat in a vegetated condition. Further, it was alleged that since thereafter, she was physically assaulted on multiple occasions; more precisely, 39 times on diverse dates and places, and ultimately two complaints were lodged, dated December 20, 2019 u/s 341/506(ii)/34 of the Indian Penal Code and u/s 341/323/325/506/34 of the Indian Penal Code, however, no FIR was registered. "Since the origin of the instant case is founded upon the order of this Court, scrupulously followed by the Chief Judicial Magistrate, in allowing an application under Section 156(3) of the Code, the matter largely depends upon the outcome of the Special Leave Petition and till such time, we feel that the petitioners should not be deprived of the personal liberty," the Court noted allowing their bail pleas till October 25.

Also Read: Calcutta HC Adjourns Hearing Of Anticipatory Bail Applications Of BJP Leader Kailash Vijayvargiya, 2 Others In Sexual Assault Case

20. Application U/s 156(3) CrPC Seeking Registration Of FIR Cannot Be Dismissed Merely On The Ground Of Delay [CRR/92/2021]

The Calcutta High Court observed that a magistrate cannot dismiss an application under Section 156(3) of the Criminal Procedure Code merely on the ground of delay in lodging a complaint. The magistrate cannot draw an inference that because of delay of lodging complaint it could be inferred that the application could not be treated as FIR on the ground of inordinate delay, Justice Bibek Chaudhuri observed. The court added that there is no direction in the Supreme Court judgment in Lalita Kumari case to throw an application away under Section 156(3) of the Code on the ground of delay without sending it to the police authority for either preliminary inquiry or investigation treating the same as FIR. "Delay in lodging complaint is treated as a ground of false narration of the incident, embellishment and suppression of material fact. All such points are to be decided by the Court during the trial of a case. While dealing with an application under Section 156(3) of the Code, the Magistrate cannot decide the effect of delay in lodging complaint. Lalita Kumari empowers the police authority to conduct preliminary inquiry over inordinate delay in lodging the complaint. The Supreme Court never directs in Lalita Kumari to throw an application away under Section 156(3) of the Code on the ground of delay without sending it to the police authority for either preliminary inquiry or investigation treating the same as FIR", the Court ruled. 

21. Information Available In Public Domain- Calcutta High Court Stays Proceedings Against BJP Leader Amit Malviya In A Case Filed By Kolkata Police [Amit Malviya v. State of West Bengal]

The Calcutta High Court stayed all proceedings in a case lodged against BJP national convenor for Information and Technology Amit Malviya for "fraudulently" downloading information from Kolkata Police's website and circulating vide his Twitter handle in a bid to create unrest among different groups of officers. Accordingly, the Court imposed a stay on all proceedings for a period of 4 weeks until the end of the upcoming puja vacation. Justice Kausik Chanda observed, "In my, prima facie, opinion circulation of the information after downloading the same from the official website of the Kolkata Police Department does not amount to an offence since such information was displayed in public domain by the Police Department itself." The Court opined that 'a plain reading of the F.I.R'. does not disclose any ingredients of offences under Sections 153/505(a) of the Indian Penal Code, 1860, and Section 66 read with Section 42 of the Information Technology Act, 2000.

22. Petition U/s 482 CrPC To Quash Domestic Violence Proceedings Maintainable: Calcutta High Court Disagrees With Madras HC Ruling [Chaitanya Singhania & Anr v. Khusboo Singhania]

The Calcutta High Court recently had the opportunity to expound in detail on the question whether an order passed by a Magistrate in a proceeding under Section 12 read with Section 23 of the Protection of Women from Domestic Violence Act, 2005 (Act) on the point of maintainability of the said proceeding can be quashed under the provisions of Section 482 of the Code of Criminal Procedure (CrPC). Section 23 empowers the Magistrate to grant interim and ex parte orders on the basis of an affidavit of the aggrieved person seeking temporary reliefs under Sections 18-21 of the Act. Justice Bibek Chaudhuri ruled in the affirmative and accordingly observed, "If such application is filed by an aggrieved person, will it be a logical proposition that the respondent will not be able to nip the proceedings in bud without waiting for a prolonged trial or otherwise wait for a considerable period till the disposal of trial? My considered reply is - such questions affecting the maintainability of the procedure itself can be decided by this Court under Section 482 of the Code of Criminal Procedure."

23. Calcutta HC Grants Bail To NDPS Accused In Custody For 6.5 Yrs Noting Inordinate Delay In Trial, Violation Of Article 21 [Sanjit Das @ Gosai v. The State of West Bengal]

The Calcutta High Court granted bail to an NDPS Accused (in custody for six and half years) while observing that there had been inordinate delay in the trial, which resulted in the infraction of his fundamental right under Article 21 of the Constitution of India. Importantly, the Bench of Justice Aniruddha Roy and Justice Joymalya Bagchi further observed that the restriction on bail under the NDPS Act must yield to a prayer of liberty in appropriate cases where incarceration of an under-trial constitutes a substantial portion of the maximum sentence and the completion of the trial is in the near future is the far cry. Significantly, the Court also referred to the Apex Court's decision in the case of Supreme Court Legal Aid Committee v. Union of India (1994) 6 SCC 731, wherein it was held that in the event the under-trials have suffered detention for more than five years in relation to the NDPS cases above commercial quantity, they may be released on bail on a one-time measure.

24.'No Immediate Possibility Of Appeal Being Heard': Calcutta HC Suspends Sentence Of Two Convicts Who Had Been In Custody For Over 10 Years [Chand Swadagar & Anr v. State of West Bengal]

The Calcutta High Court has suspended the sentence of imprisonment imposed on two convicts on the ground that there lies no possibility of their appeals being heard within a reasonable time. The Court also took into consideration that the convicts had already been in custody for over 10 years and had also shown satisfactory conduct during custody. A Bench of Justices Rabindranath Samanta and Soumen Sen observed, "We find that the applicants have an arguable case towards success of the appeal, moreover, petitioners are not responsible for the delay in disposal of the appeal. The appellants are in custody for over 10 years. We do not find that the appeal could be disposed of within a measurable time. In the aforesaid conspectus of facts we feel that the liberty of the petitioners under Article 21 of the Constitution of India needs to be protected." The Court was adjudicating upon a plea moved by two convicts aged 66 years and 70 years respectively seeking a suspension of their sentence due to the long incarceration already served in addition to the bleak possibility of a speedy disposal of their appeal.

25. 'Preventive Detention Must Not Be Used As Added Tool To Curtail Judicial Decisions Allowing Bail': Calcutta High Court [Heisnam Chaoba Singh v. Union of India & Ors]

The Calcutta High Court set aside an order of preventive detention passed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 (PITNDPS Act). Pursuant to the impugned order, the petitioner had been directed to be detained and kept in Malda Correction Home, Kolkata. Proceedings under the PITNDPS Act had been initiated against the petitioner and other accused persons in connection with recovery of 384.21 kg of ganja on June 29, 2017 from a truck. A Bench comprising Justices Rabindranath Samanta and Soumen Sen expressed strong reservations against the arbitrary exercise of powers to issue preventive detention orders. "Preventive detention is an exceptional mechanism compromising on the personal liberty of individuals. Therefore, the legal qualification of preventive detention laws ought to be interpreted strictly and preventive detention should not be permissible unless it absolutely qualifies all the necessary legal facets. The Hon'ble Courts have acknowledged the gravity and repercussions of preventive detention laws. Preventive detention is a tool in isolation which operates to curtail a person's personal liberty. Preventive detention is more excessive than normal measures of arrest, hence preventive detention cannot be misconstrued to be a direct alternative to the normative criminal prosecution", the Bench observed.

26. 'Prima Facie May Not Have Committed The Offence': Calcutta High Court Grants Bail To BJP Leader Rakesh Singh In NDPS Case [Rakesh Singh @ Rakesh Kumar Singh v. State of West Bengal]

The Calcutta High Court granted bail to BJP leader Rakesh Singh who had been arrested by the Kolkata police on February 23 in connection with his alleged involvement in a drug recovery case. Singh had been arrested pursuant to the arrest of another BJP leader Pamela Goswami for the alleged seizure of contraband substance (76 grams of cocaine) from a car she was travelling in along with two other persons. Singh had approached the High Court seeking bail in a case initiated under Sections 21(b)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) pending before a Special Court at Alipore. A Division Bench comprising Justices Arijit Banerjee and Bivas Pattanayak while granting bail to Singh observed, "In the facts of the present case, on an assessment of the material on record, we are of the prima facie view that the petitioner may not have committed the offence that he is charged with. Further, considering the past history of the petitioner which we have adverted to above, there is nothing on record to suggest that he is likely to commit an offence under the NDPS Act while on bail."

27. 'Gravity Of The Offence': Calcutta High Court Rejects Anticipatory Bail Plea Of Mamata Banerjee's Polling Agent Sheikh Sufiyan In WB Post Poll Violence Case [Sk. Supiyan @ Suffiyan @ Supisan v. CBI]

The Calcutta High Court rejected the anticipatory bail plea moved by TMC leader Sheikh Sufiyan in the West Bengal post-poll violence case currently being probed by the Central Bureau of Investigation (CBI). Notably, Sufiyan was the polling agent of West Bengal Chief Minister Mamata Banerjee in Nandigram for the 2021 West Bengal Assembly elections. Chief Minister Banerjee had lost the Nandigram seat to BJP's Suvendu Adhikari in the Assembly elections that took place in May 2021. However, subsequently, in October 2021 the Chief Minister had won the Bhabanipur Assembly bypoll against BJP leader Priyanka Tibrewal. A Division Bench comprising Justices Debangsu Basak and Bibahas Ranjan De observed, "Considering the gravity of the offence and considering the materials in the case diary and considering the statement recorded under Section 164 of the Code of Criminal Procedure, implicating the petitioner in the incident and considering the fact that the CBI is conducting the investigation pursuant to the order passed by the Full Bench and considering the fact that the investigations are yet to be concluded, we are unable to grant anticipatory bail to the petitioner". 

28. 'Dialogues Fundamentally Hilarious, Futile To Find Elements Of Hate Speech: Calcutta HC Quashes FIR Against Mithun Chakraborty For Alleged Hate Speech, Stays Investigation [Mithun Chakraborty v. State of West Bengal and Ors]

The Calcutta High Court quashed the FIR registered against renowned actor and BJP leader Mithun Chakraborty by a member of the TMC party over his alleged 'hate speech' at an election rally at Brigade Parade Ground in Kolkata on March 7, 2021. The Court also stayed any further police investigation into the matter. Justice Kaushik Chandra observed that Chakraborty had not intended to promote the feeling of enmity, hatred, or ill-will between different religious, racial, linguistic or regional groups or castes or communities when he uttered the alleged dialogues during the political rally and thus the ingredients of offences under Sections 153A, 504, and 505 of the Indian Penal Code, 1860 are absent. "The two dialogues in question are fundamentally funny, hilarious, and entertaining; it is futile to try to find the elements of hate speech in them. A reasonable man in the context or circumstances in which the said two dialogues were uttered cannot view them as an expression of hatred", Justice Chanda further observed.

29. Incorrect To Punish Man For Rape If His Promise To Marry Didn't Fructify Due To Opposition From Family Elders [Saddam Hussain v. State of West Bengal]

The Calcutta High Court on Tuesday acquitted a man of rape charges while noting that it would be incorrect to punish someone for the offence of rape if the promise to marry did not fructify due to the subsequent events, namely, opposition from family elders which is not attributable to the accused. The Bench of Justice Joymalya Bagchi and Justice Bivas Pattanayak noted that the man/appellant was a young person and the marriage proposal didn't come to fruition due to the opposition from elders and therefore, it wasn't a case of sex on the false promise of marriage amounting to rape. At the outset, the Court observed that the evidence of record clearly established that the appellant had cohabited with her on the promise of marriage, however, the Court added, the initial cohabitation wasn't forceful as such allegation was significantly absent in the FIR. Further, taking into account the argument that the appellant had agreed to marry her but the marriage could not fructify due to the resistance of his parents, the Court observed thus, "Hence, it cannot be said that the appellant did not intend to marry her at the time when they cohabited...Mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception." Against this backdrop, the Court concluded that it cannot be said that the appellant did not have the intention to marry the victim at the time when they cohabited but such marriage was not possible due to obstruction from elders in the family.

Constitutional Rights and Important PILs

1. Freedom Of Speech & Expression Can't Be Curtailed By State But Balance Needs To Be Struck With Public Order & Security [West Bengal Recognised Un-Aided Madrasha Teacher's Association and others v. State of West Bengal and others]

Underlining that fundamental rights to freedom of speech and expression and to assemble peacefully cannot be curtailed by the State, the Calcutta High Court observed, "A balance has to be struck between the rights of the petitioners and public order as well as security, in view of the stipulations in Article 19 (6) of the Constitution of India itself." Justice Sabyasachi Bhattacharyya was hearing the plea by the petitioners (West Bengal Recognised Un-Aided Madrasha Teacher's Association and others) who stated that they wanted to hold a sit-in demonstration from January 12 onwards in front of Bikash Bhavan at Salt Lake or in the adjacent area. Further, their grievance was that when they submitted an application for permission on December 24, 2020, the same was refused by the respondent authorities "on flimsy and inadequate grounds."

Taking into account the submission of the Counsel for the respondent authorities and noting that the petitioners, indeed, have the fundamental rights to freedom of speech and expression and to assemble peacefully, the Court said, "In such view of the matter, (the matter) is disposed of by directing the respondent-authorities to permit the petitioners to hold a sit-in demonstration at a venue outside the Central Park, at a distance of 50 meters away from the gate of the Central Park, where the metro car shed is located, in the direction of the City Center- I, Saltlake City, Kolkata, from (12th January) onwards." Importantly, the Court said, "However, the protesters cannot violate fundamental rights of others and indulge in any criminal act constituting an offence punishable under the law in force."

2. "At Least In Death She Is Entitled Some Dignity As Every Citizen Blessed By Constitution"; Calcutta HC Orders Second Autopsy On The Body Of A Pregnant Woman [Sankar Ruidas v. The State of West Bengal & Ors]

The Calcutta High Court ordered a second post-mortem on the body of a Pregnant Lady (who died in April 2020) to ascertain and interpret the exact cause of her death. The Bench of Justice Sanjib Banerjee and Justice Arijit Banerjee expressed its displeasure at the fact that she did not enjoy the affection, care and respect that the Constitution requires every citizen to receive, irrespective of station or status. The Court specifically said, "(She) was a citizen of India…She may not have belonged to the entitled class. Her family may not have been empowered or even well off to provide the basic amenities that she needed as a would-be mother. At least, in death, (she) is entitled to some dignity as every citizen blessed by our glorious Constitution deserves." The Court was hearing the plea of the father of a 19-year-old woman who, according to her father, was in an advanced stage of 2 pregnancy and was admitted to the Uluberia Sub-Divisional Hospital on April 14, 2020. She was admitted with malnutrition and generally poor health and was apparently advised to undergo a COVID Test at a private facility by the name of Sanjiban Hospital.

While trying to put facts of the case together, the Court looked completely bewildered as it noted, "When she was admitted, she weighed 41 kg. The post-mortem report indicates the lifeless body of the woman examined weighed 25 kg. It is inconceivable that Adari would have lost 16 kg in four days." More intriguingly, the Court said, the post-mortem examination does not mention any foetus carried by the deceased. Noting the submission of State that the body was in the morgue at the Uluberia Hospital, the Court directed, "The body must be preserved in the same state as it is now. A second post-mortem should be conducted on the body within 48 hours from now at R.G. Kar Medical College and Hospital."

3. If Married, Only Dead Man's Wife Has Right Over Preserved Sperm; Father Doesn't Have Any Right Over Son's Progeny [Asok Kumar Chatterjee v. The Union of India & Ors]

The Calcutta High Court dismissed a petition wherein the Petitioner (father), on the basis of his parental relationship with the deceased, sought permission to collect preserved sperm of his dead son, irrespective of the permission of his wife. Justice Sabyasachi Bhattacharyya ruled that the petitioner (Father) does not have any 'fundamental right' to such permission, merely by dint of his father-son relationship with the deceased. The petitioner (father of deceased) contended before the Court that his son was a patient of Thalassaemia and while in matrimony with respondent no. 4 (wife of deceased), he died. During his lifetime, the deceased had his sperm stored with the St. Stephen Hospital, Tis Hazari, New Delhi. After his demise, his father (the petitioner) approached the said hospital for releasing such sperm in his favour on the ground that he is the father of the deceased donor.

Importantly, the Court remarked, "The sperm preserved at the St. Stephen Hospital belonged to the deceased and, since the deceased was in matrimonial relationship with the respondent no. 4 at the juncture of his demise, the only other person, apart from the deceased, having any right to it is his wife." The Court further said, "The father-son relationship of the petitioner and the deceased does not entail any such right of the petitioner to the progeny of his son. As such, the right espoused by the petitioner for himself is illusory and non-existent." Regarding issuing a direction upon deceased man's wife to respond to the petitioner's communication, the Court remarked that the same was beyond the scope of the writ court, since the matter does not involve any violation of fundamental or statutory right, nor does the wife comes within the definition of 'State' as envisaged under Article 12 of the Constitution of India.

4. Calcutta High Court Directs Centre To Grant Reservation, Other Benefits To Transgender Persons In Joint CSIR-UGC NET Exam [Mx Sumana Pramanik @ Suman Pramanik v. The Union of India]

Underlining that the transgender communities are required to be accorded equal status as the other prevalent genders of society, the Calcutta High Court issued direction that reservation and other benefits for transgenders in Joint CSIR-UGC NET Examinations at all levels be provided immediately. Justice Sabyasachi Bhattacharyya was hearing the plea of one Sumana Pramanik, who contended before the Court that the eligibility criteria of the UGC-NET Examination provide for transgenders to get the benefit of reservation and allied benefits, while in the case of Joint CSIR-UGC NET Examination such benefit isn't available for the Transgender Community.

Importantly, the Court directed, "To immediately provide for reservation, age relaxation and fee concession for the category of transgenders, along with the other reserved categories, for the Joint CSIR-UGC NET Examinations at all levels." The Court also observed that in the matter of National Legal Services Authority v. Union of India & Ors, the Supreme Court had categorically upheld transgender persons' right to decide their self/identified gender and the Central and State Governments were directed to grant legal recognition of their gender identity, such as male, female or as the third gender.

Also Read: Basic Tenets Of Equality Prima facie Violated By Not Providing Reservation Benefits To Transgenders In 'Joint CSIR-UGC NET' Exam: Calcutta High Court Seeks UGC's Reply

5. Take Immediate Steps To Set Up Grievance Redressal Forum In Compliance Of S. 11 Of The Transgender Act Of 2019: Calcutta High Court To Govt. [Pallabi Chakraborty v. The State of West Bengal & Ors]

The Calcutta High Court directed the Chief Secretary of the West Bengal State to take immediate steps to set up a Grievance Redressal Forum and Mechanism in the State in terms of Section 11 of Transgender (Protection of Rights) Act of 2019. The Bench of Justice Rajasekhar Mantha was hearing the plea of one Pallabi Chakraborty who claimed to be a transgender and sought mandamus against the police authorities to enable her to participate in the selection process of police constables instituted by the West Bengal Police Directorate. The Court noted that the petitioner was designated as a male at the time of birth and he subsequently, by sworn affidavit before the Judicial Magistrate declared herself as transgender. However, thereafter [after the enactment of the Transgender Persons (Protection of Rights) came into force] the petitioner obtained employment with the State as a Lady called Pallabi Chakraborty and was attached to the Maidan Police Station.

The Court further remarked, "This Court notes that the petitioner has been approbating and reprobating. Having joined public employment albeit on a contractual basis as a lady civic volunteer, the petitioner cannot be permitted to turn around and now claim the status of a transgender." Thus, the Court directed, "This Court directs the respondent nos.4 & 5 to immediately set up a Grievance Redressal Mechanism and/or official in the West Bengal Police in compliance of Section 11 of the Transgender Act of 2019. The Chief Secretary of the State shall also take immediate steps to set up a Grievance Redressal Forum and Mechanism in the State in terms of Section 11 above to enable Transgender persons to have remedies under the aforesaid Transgender (Protection of Rights) Act of 2019."

6. Removal Of A Blind Person From The Job Solely On Ground Of Disability Violative Of Rights of PwD Act 2016 [Dr. Shishir Kumar Biswas v. State of West Bengal & Ors]

The Calcutta High Court set aside an order to remove a blind Professor from the position of Head of the Bengali Department by the Haringhata Mahavidyalaya, primarily on the ground of his physical disability. Justice Ravi Krishan Kapur noted that the memo dated July 31, 2017, whereby the petitioner was removed, is in direct violation and contravention of the provisions of the Rights of Persons With Disabilities Act, 2016. "On a perusal of the impugned Memo it is evident that save and except physical disability on the ground of eye blindness, there is no other ground alleged in the impugned Memo whereby the petitioner has been removed as Departmental Head from the Department of Bengali in the concerned college. I find that impugned Memo is also in direct violation and contravention of the 3 provisions of the Rights of Persons With Disabilities Act, 2016 and particularly violative of the provisions of Section 20 of the said Act," the Court observed.

The petitioner in this case, Dr. Shishir Kumar Biswas had submitted that the ground alleged in the impugned Memo is violative of his constitutional rights. He also relied on Section 20 of the PwD Act to contend that there can be no discrimination against any person with any disability in any matter relating to his employment. It thus set aside the impugned memo and directed the respondent authorities to take appropriate steps in accordance with the law.

7. Strictly Follow The Directions To Ensure That There is No Unauthorized And Uncontrolled Slaughtering Of Cattle Including Cows: Calcutta HC Directs Municipal Corporation [Rajyashree Chaudhuri v. The State Of West Bengal & Ors]

The Calcutta High Court directed the Kolkata Municipal Corporation authorities to take action against people found slaughtering cattle including cows and/or exhibiting for sale flesh of slaughtered cattle and/or selling cattle meat. The Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee further directed the Corporation to strictly enforce the measures mentioned by the Commissioner in his affidavit (filed before the Court) "so that there is no unauthorized or uncontrolled slaughtering of cattle including the cows". Accordingly, the Court directed the Kolkata Municipal Corporation to strictly enforce the measures mentioned by the Commissioner in the aforesaid affidavit so that there is no unauthorized or uncontrolled slaughtering of cattle including the cows. Taking on record the steps undertaken by the Kolkata Municipal Corporation, the Court further remarked, "If the above-mentioned steps are strictly enforced by the Corporation, the situation will be well under control and there will be no unauthorized slaughtering of cattle including cows, which is the grievance of the petitioner."

8. Constitutional & Statutory Responsibility Of Govt. To Dispose Of Dead Bodies Which Aren't Being Cared For By Near & Dear Ones [Lakshmikanta Lagar & Ors. v. The State of West Bengal & Ors]

The Calcutta High Court directed the West Bengal State Government to take a decision relating to the installation of the electric chulli (electric crematorium) in a particular locality of the State for the utility of the people. The Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee also observed, "Disposal of dead bodies, in the ultimate situation of such dead bodies not being cared for by the near and dear ones, is the constitutional and statutory responsibility of the Government or the local self-government in accordance with the Acts and Rules." The Court was dealing with a plea seeking installation of an electric chulli for an area as it was submitted that it is absolutely essential having regard to the larger interest of managing right to life and connected issues particularly, decent disposal of human remains. Noting that the area is mostly inhabited by people who are socially or economically marginalized, the Court further remarked,"Of course, there can be no classification on the basis of caste, creed, colour, sex, or economic status in the matter of enjoying the last fundamental right available on earth as part of right to life, that is to say decent disposal of one's human remains or a dead body."

Also Read: Disposal Of Dead Bodies- "If Authorities Can't Foresee Requirement Of Crematorium, Can't Expect Development Through Them"

9. Residential Certificate Not A Proof Of Citizenship [In the matter of : Khadija Begam]

The Calcutta High Court observed that a residential certificate is not a proof of citizenship as the same can be obtained by any resident, being an Indian National or a foreigner if such a person is staying at a particular place. The said observation came from a single judge bench comprising of Justice Bibek Chaudhari while rejecting the bail application of one Khadija Begam in connection with a case registered against her in January this year under sec. 14 and 14C of the Foreigners Act. On the basis of the facts of the case, the High Court observed thus: "It is needless to say that residential certificate may be obtained by any resident, he may be an Indian National or Foreign National, if he stays at a particular place. Residential certificate is not a proof of citizenship." Making the aforesaid observation, the Court rejected her bail application, however, liberty was granted to her for making such prayer before the Trial Court during the course of the trial.

10. Media Could Be Proactive But Has To Be Sensitive, Sensationalism Is Anathema To Responsible Journalism [Durga Pada Mallick v. Election Commission of India & Others]

Dealing with a plea seeking strict enforcement of Section126(1)(b) of the Representation of the People Act, 1951, the Calcutta High Court remarked, "Sensationalism is anathema to responsible and responsive journalism." The Bench of former Chief Justice Thottathil B Radhakrishnan and Justice Arijit Banerjee further remarked, "Print and audio-visual media could be proactive but has to be sensitive. This is what is meant in the truest sense by the oft mentioned term fourth estate." Consequently, the Court directed that the authorities to strictly enforce the aforesaid provision of law. "We are sure that if there is a violation of that provision, it is for the competent authorities concerned to ensure that strict obedience to that provision of law is obtained," the Court added.

11. "A Senior Citizen is Entitled To Live In peace In His Own House Under Article 21": Calcutta High Court Orders Eviction Of Son And Daughter In Law [Ali Burhan & Anr v. State of West Bengal and Ors]

The Calcutta High Court extended police protection to an elderly couple by directing the son and daughter-in-law of the couple to vacate the residential premises immediately. The elderly couple had submitted before the Court that the presence of the Respondents posed a risk to their safety and hence prayed for relief. "Given the fact that the petitioner no.1 is a senior citizen and is entitled under Article 21 of the Constitution of India to live in peace in his own house, this Court is inclined to in exercise high prerogative writ jurisdiction under Article 226 of the Constitution of India and directs the Officer-in-charge, Bankura Sadar Police Station to physically escort out the respondent nos.4 and 5, out of the said premises immediately", Justice Rajasekhar Mantha observed.

12. Calcutta High Court Orders Closure Of Industrial Unit In Residential Premises [Gautam Saha & Ors. v. The Kolkata Municipal Corporation & Ors]

The Calcutta High Court came to the rescue of certain concerned residents who had deposed that the tranquillity and safety of their residential complex was under threat because of the functioning of an industrial unit. Taking cognisance of the grievance of the petitioner, Justice Abhijit Gangopadhyay observed, "I am prima facie satisfied about the case for the reason that a petitioner will not come without any reason to this Court alleging pollution in a residential area. There is a representation also dated 20.1.2021 to the pollution control board and the Kolkata Municipal Corporation. Some photographs of the industrial unit has also been annexed to the writ application." Accordingly, vide order dated 24.06.21 the Kolkata Municipal Corporation was directed to immediately close down the industrial unit in the residential premises and cancel any trade license issued by it.

13. Authorities Have Woken Up': Calcutta High Court Dismisses Plea Seeking CBI Probe In Fake Vaccination Camp Case [Tarunjyoti Tewari v. Union of India & Ors]

The Calcutta High Court dismissed a plea seeking Central Bureau of Investigation (CBI) probe in the case of fake COVID-19 vaccination camps, allegedly conducted by accused Debanjan Deb. The accused had allegedly been operating Covid-19 vaccination camps in Kolkata by masquerading himself as an IAS officer associated with the Kolkata Municipal Corporation. The Bench comprising Justices IP Mukerji and Aniruddha Roy opined that from June 22, the concerned authorities had "woken up" and accordingly observed, "The above enquiry does not show that there is any deficiency in the conduct of this investigation that should compel the court to order investigation by the Central Bureau of Investigation". However, the Court opined that the State investigative agencies have been carrying out meticulous investigation as a result of which external interference by the CBI is unwarranted. Steps had been taken to promptly apprehend the accused and make a detailed enquiry into the alleged offences.

Also Read: Fake Vaccination Camp Case: Calcutta High Court Directs State To File Report

14. Calcutta High Court Restrains WB Govt From Conducting Special Audit Of Bank Headed By BJP MLA Suvendu Adhikari, Allows Inspection [Contai Co-operative Bank Limited & Anr v. State of West Bengal & Ors]

The Calcutta High Court held that the West Bengal government's Co-operative Department shall not conduct a special audit of the Contai Cooperative Bank headed by BJP MLA and Leader of Opposition Suvendu Adhikari. However, Justice Shampa Sarkar permitted inspection of all books of account and other relevant documents to be conducted by the State authorities. "The petitioners shall cooperate with the inspection, produce all documents, books of accounts etc. and answer queries which are raised during such inspection. All defects and non-compliances should be removed and rectified by the petitioners in accordance with law, if called upon to do so", the order stated. With regards to the special audit, Justice Sarkar ordered that such a special audit shall not be conducted without taking the leave of the Court. "Special audits are needed when it is suspected that the laws and regulations have been violated in the management of an organization. The reasons for the special audit have not been disclosed in the notice issued to the petitioners. The subjective satisfaction of the Finance Department to hold the special audit in respect of the said bank has to be brought on record", the order stated.

15. 'They Are Licensees At Best' : Calcutta HC Upholds Senior Citizen's Right To Reside In His Own House, Orders Eviction Of Son And Daughter-In-Law [Ramapada Basak & Anr v. State of West Bengal & Ors]

The Calcutta High Court reiterated that the right of a senior citizen to exclusively reside in his own house and also direct the eviction of his son and daughter-in-law if need be, must be viewed from the prism of Article 21 of the Constitution of India. Justice Rajasekhar Mantha also opined, "A nation that cannot take care of its aged, old, and infirm citizens cannot be regarded as having achieved complete civilization." The Court made the aforementioned observations while adjudicating upon a plea by two senior citizens (petitioners) seeking the eviction of the son and daughter-in-law from their residence. "To compel a senior citizen to approach either a civil court (the jurisdiction of which is any way barred under Section 27 of the 2007 Act) or take recourse to a special Statute like the 2007 Act would in most cases be extremely erroneous and painful for a person in the sunset days of life. This Court is therefore of the view that the principle of alternative remedy cannot be strictly applied to Senior Citizens and a Writ Court must come to the aid of a Senior Citizen in a given case", the Court emphasised.

16. 'A Person Cannot Be Forced To Donate': Calcutta HC On Unilateral Deduction Of University Employees' Salaries For Contribution To CM Relief Fund [Sudipta Bhattacharyya & Ors v. Visva-Bharati & Ors]

The Calcutta High Court opined that a University cannot deduct a portion of the salary of its employees, as donation, without obtaining their consent. The Court was adjudicating upon a plea filed by professors of the Visva-Bharati University, Santiniketan against the order of the Registrar compelling them to donate a day's salary to the Chief Minister's Relief Fund, West Bengal/West Bengal State Emergency Relief Fund in aid of the people affected by cyclone Amphan that hit Kolkata and several districts of West Bengal on 20th May, 2020. Justice Amrita Sinha observed, "The employer neither has the power nor the authority to deduct salary or any portion thereof of an employee, unilaterally, in the garb of donation. A person cannot be forced to donate. The moment force is applied, the act of the donor does not remain voluntary, and it amounts to forcible deduction, which is grossly different from the term donation"

17. 'Detention Period Long Over': Calcutta High Court Allows Bangladeshi Woman To Be Repatriated By Air [Lovely Akter v. Union of India]

The Calcutta High Court permitted the deportation of a Bangladeshi national back to her native country after taking into consideration that she had been languishing in a correctional home even after the completion of her detention period. The petitioner had filed the instant petition seeking the Court's leave for repatriation after a representation to this effect was declined by the Central government. Justice Debangsu Basak observed, "Since the petitioner is no longer required to be in custody in the correctional home of India and since the petitioner is a Bangladeshi National, it would be appropriate to permit the petitioner to be deported to her Nation forthwith. The Correctional Home at which the petitioner is presently located will take appropriate measures or steps for the purpose of deportation of petitioner forthwith."

18. 'Free Now, No Influence Of Family Members': Calcutta HC Disposes Of Plea Alleging Police Inaction In Complaint Registered By Same-Sex Couple [Mx Parna Bal and another v. The State of West Bengal]

The Calcutta High Court disposed of a plea moved by a same sex couple alleging police inaction after noting that the concerned police authorities had conducted a satisfactory investigation into the matter. In the instant case, the petitioner was in a relationship with one Puja Paharia, an adult woman. However, their relationship had been vehemently opposed to by the family members of the petitioner. Consequently, the petitioner's father, mother, her brother and her elder sister had also wrongfully confined her and had inflicted torture upon her for pursuing such a same sex relationship. Justice Mantha opined that the police authorities had diligently conducted investigation and accordingly observed, "The petitioner submits that while it may have been true that the family members are name accused in the complaint against her, she is now free and is leading her own life free from any influence of any family member. This Court finds no inaction on the part of the Berhampore Police Station"

19. Calcutta High Court Seeks State's Response In Plea Seeking Adequate Ration And Financial Assistance For Sex Workers [Aishwarya Adhikari v. State of West Bengal]

The Calcutta High Court issued notice on a Public Interest Litigation (PIL) highlighting the plight of sex workers in West Bengal who have been left in dire financial crisis owing to the ongoing pandemic. The plea contended that sex workers in the State do not have access to adequate food ration as necessitated under the provisions of the National Food Security Act, 2013 as a result of which their fundamental right to life under Article 21 of the Constitution is being violated. A Bench comprising former Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj directed Advocate General Kishore Datta to file an affidavit-in-opposition in this regard by September 15. Furthermore, the Bench directed the State to ensure that sex workers in the State have access to identity cards so as to be eligible for various government schemes. Assistance in this regard may also be sought from the Legal Services Authority, the Bench opined.

20. 'Fair And Legitimate Criticism To Judgments Welcome But Should Be Without Malice': Calcutta HC Declines To Interfere In Row Over WB Bar Council's Letter To Remove Acting CJ [Akshya Kumar Sarangi v. Bar Council of West Bengal and Anr]

The Calcutta High Court declined to interfere in a plea moved against the Chairman of the Bar Council of West Bengal over the recent letter addressed by the Bar Council of West Bengal to the Chief Justice of India N.V Ramana for the removal of the High Court's Acting Chief Justice Rajesh Bindal. A Bench comprising Justices Harish Tandon and Subhasis Dasgupta was adjudicating upon a public interest litigation filed by advocate Akshya Sarangi seeking the initiation of disciplinary proceedings against the West Bengal Bar Council Chairman Ashok Kumar Deb for 'using the official letterhead of the Bar Council to percolate his own views'. "Justice Bindal is a partial, unfair and biased judge whose continuance at High Court interferes with fair and impartial dispensation of justice," the letter by Ashok Kumar Deb, the Bar Council Chairman also happens to be a Member of Parliament belonging to the Trinamool Congress had stated. Further, the letter in question had addressed various instances wherein there had been alleged biased and improper listing and hearing of various cases like the Narada scam, Mamata Banerjee's election petition among others.

"The fair and legitimate criticism to a judgment in a healthy way is always welcome but if it is aimed with some motive and malice without any foundation on a real cause such errant person should be dealt with iron hands as it hampers the judicial system and fairness and impartiality of the Court in discharging their duties entrusted under the Constitution", the Court added. Accordingly, the Bench disposed of the petition by concluding that the four dissenting members have recourse in law to address their grievances if need be.

21. "Time Has Come For Shops To Reach Consumers' Doors": Calcutta HC Dismisses Plea Against WB Govt 'Ration At Doorstep' Scheme [Mrityunjoy Garang & Ors. v. State of West Bengal & Ors]

The Calcutta High Court dismissed a petition challenging the West Bengal government's newly introduced 'Duare Ration' (ration at doorstep) program holding that it does not appear that the Scheme contravenes any of the provisions of law and that Time has come for the shop to reach the doorstep of the consumers. The Bench of Justice Amrita Sinha was hearing a plea filed by some licensed fair price shop (FPS) owners against the Government's scheme who were aggrieved by the act of the Government in undertaking the Scheme. Importantly, noting that the prevailing system of the consumers visiting the ration shops foting ration items continues and over and above the erstwhile practice, the Scheme ensures that the FPS owners supply the ration articles at the doorstep of the consumers, the Court observed thus: "FPS in the present context has to be taken as a mobile FPS which will go to the doorstep of the consumers for delivery of the ration items. It is just an extension of the static shop which functions from the address mentioned in the records. The fixed shop at the recorded address remains functional. Dual modes of service become available. The consumer can exercise choice whether to purchase goods from the static shop or the mobile shop. The same is a step forward to achieve the object and purpose of NFSA to provide quality food at affordable prices to the targeted people. Price being the same, it is the quality and quantity of the food that matters and not the mode of delivery of the same." Lastly, the Court concluded by stating thus: "It is not that all the schemes undertaken by the Government will become successful. Whether the present Scheme will be accepted by the consumers, be successful or beneficial to the consumers, can be assessed only after a period of time. Whether the Scheme will survive or fizzle out after some time is a different question altogether. At the touchstone of the law governing the field it does not appear that the Scheme contravenes any of the provisions of law", the order read. 

Also Read: "Scheme A Reform In Targeted Public Distribution System": Calcutta High Court Upholds Vires Of State Govt's 'Duare Ration Scheme'

22. 'No One Can Claim To Be Exclusive, Above The Law': Calcutta HC Quashes Allotment Of Land To Sourav Ganguly, Imposes Costs On Him & State [Humanity, Salt Lake & Anr v. State of West Bengal]

The Calcutta High Court quashed the allotment of a plot by the West Bengal Housing Infrastructure Development Corporation (HIDCO) to former cricketer and current BCCI President Sourav Ganguly for the purpose of establishing an educational institution. A Division Bench of Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee also imposed costs to the tune of Rs 50,000 each on the State government and the state owned West Bengal Housing Infrastructure Development Corporation (HIDCO). A token cost of Rs 10,000 was also imposed on Sourav Ganguly and the Ganguly Education and Welfare Society by noting that they should have acted in accordance with law. Expressing strong reservations against the conduct of HIDCO during the allotment process, the Court opined that Sourav Ganguly was able to dictate terms. Opining that Ganguly was able to 'play with the system', the Court observed, "Facts clearly established that the respondent No. 9 was in a position to dictate his terms, as if it was not a case where State was dealing with its property, where fair and transparent procedure was required to be followed. Rather it was a case in which the respondent No. 9 was able to play with the system. It was not for the first time that he was able to do it. This time also plot was allotted to him without any advertisement." The directions were issued in a Public Interest Litigation (PIL) petition stipulating that the allotment had been done in total violation of rules, regulations, and policies for the allotment of plots.

23. 'Basic Education & Maturity Required Before Following Any Political Ideology': Calcutta HC While Granting Stay On Rustication Of 3 Visva Bharati University Students [Visva Bharati and another v. State of West Bengal & Ors]

The Calcutta High Court imposed an interim stay on the rustication order of three students of Visva Bharati Univeristy (VBU) and permitted them to join classes and participate in other academic activities. Justice Rajasekhar Mantha on Wednesday opined that the rustication was 'excessive and disproportionate' and accordingly observed, "This Court is of the prima facie view that the punishment of rustication for a period of three years is excessive and disproportionate to the charge against the students. The said order of rustication shall be kept in abeyance. The students shall be allowed to participate in their academic activities" The Court further observed that university students must ensure that they possess a 'basic level' of maturity and education before they succumb to a political ideology. "A basic level of education and maturity is required for a student to take an informed decision before accepting or following any ideology. Exposure to raw ideologies in the absence of such education would amount to indoctrination", the Court remarked.

Also Read: 'Noble Cause Of Education Has Been Slaughtered At The Alter Of Politics': Calcutta High Court While Setting Aside Rustication Of 3 Visva Bharati University Students

24. 'Investigation Is Being Misdirected': Calcutta HC Takes Suo Moto Cognisance Of Alleged Misappropriation Of Amphan Relief Materials [Swapan Kumar Karmakar v. State of West Bengal and Ors]

The Calcutta High Court took suo moto cognisance of alleged misappropriation of relief material pertaining to Amphan 2020. The Court was adjudicating upon a Public Interest Litigation (PIL) petition filed by one Swapan Kumar Karmakar alleging embezzlement of government sanctioned Amphan related relief material. In the instant case, an authorised truck containing the logo of the Government of West Bengal, Disaster Management Civil & Defence Department had been intercepted by the police authorities and subsequently Amphan cyclone related relief material was recovered by the police authorities. A Bench comprising former Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj took on record the investigation report filed by the Officer-in-Charge, Matia Police Station of Basirhat Police District, North 24-Parganas dated September 26, 2021. However, the Bench expressed dissatisfaction at the inadequate investigation conducted by the police authorities. Observing that it is a fit case to initiate suo moto proceedings, the Court observed, "We cannot leave the case as such where allegations are serious in nature. The FIR suggests that there was misappropriation of the relief material pertaining to Amphan-2020. We treat this petition as suo motu taken up by the Court."

25. Calcutta High Court Directs State Govt To Permit Transgenders To Appear For Recruitment Examination Of Kolkata Police [Pallabi Chakraborty v. State of West Bengal & Ors]

The Calcutta High Court provided relief to a transgender applicant who had filed a petition alleging that the online application form that is required to be submitted for recruitment to the post of Sub-Inspector and Sergeant in the Kolkata Police for the year 2021 does not provide for a column permitting a transgender person to apply. Justice Arindam Mukherjee vide order dated September 6 had sought the State government's response in this matter. It was pointed out to the Court that the State government on September 14 had decided to permit transgender persons to appear in the examination for recruitment to the post of Sub-Inspector in the Kolkata police. "With the apt intervention on the part of the advocate representing the State, the Government of West Bengal has taken a decision to allow the transgender person to appear in the examination for recruitment to the post of Sub-Inspector/Lady Sub-Inspector (unarmed branch). The decision so taken by the State Government on 14th September, 2021 was duly communicated to the advocate representing the State", the Court recorded in its order"

26. Calcutta HC Dismisses PIL Challenging WB Gov's Decision To Reopen Schools From November 16 [Sudip Ghosh Chowdhury v. State of West Bengal]

The Calcutta High Court dismissed a Public Interest Litigation (PIL) petition challenging the decision of the West Bengal government to reopen schools for students of Classes IX to XII from November 16. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Thursday refused to entertain the petition and accordingly directed the State government to go ahead with its plan to reopen schools from November 16. Advocate General S.N Mookerjee apprised the Bench that in most other States such as Andhra Pradesh, Bihar, Chandigarh schools have already reopened. He further submitted that students would be made to undergo awareness programmes everyday regarding safeguard mechanisms against Covid-19 to reduce the chance of infection.

27. Shocks Conscience Of Court': Calcutta HC Raps Local Municipality For Inadequate Infrastructure For Supplying Water, Seeks State Gov's Intervention [Arun Kumar Roy & Anr. State of West Bengal]

The Calcutta High Court expressed serious reservations to the submission of the Chakdaha Municipality, West Bengal that the municipality does not have adequate infrastructure to supply water for domestic use to the private houses beyond 60 feet from the main water connection of the municipality. Justice Shampa Sarkar observed, "Such submission of the learned advocate for the municipality has shocked the conscience of the Court to the extent that the Court feels that the intervention of the State Government in such a situation would be necessary as right to water is a sine quo non to right to live." Terming it as a 'shocking situation', the Court opined, "At this stage of a developing economy or a developing country, people in the locality under a municipality is not expected to go without water supply and the Court hopes that the authorities shall rise to this situation and take the matter more seriously." "The municipality will also explore the possibilities of finding a solution to the issue in hand", the Court directed further.

28. 'Hypocrite' 'Illegal': Calcutta HC Directs State Gov To Initiate Proceedings Against Recovery Officer For Rejecting Claim Of Jute Mill Worker Under Payment of Gratuity Act, 1972 [Toyeb Ali Midday v. State of West Bengal & Ors]

The Calcutta High Court recently came down heavily on the Certificate Officer, an officer in the District Magistrate's Office, Howrah for denying the claim for superannuation of a retired Jute Mill worker under the provisions of the Payment of Gratuity Act, 1972. The Court further set aside the order of the Certificate Officer by terming it as 'illegal and bad in the eye of law'. Justice Abhijit Gangopadhyay observed that the Certificate Officer (CO) had deliberately deprived the jute mill worker's lawful claim for more than 15 years in order to favour the owners of the Jute Mill. "While rejecting the requisition he himself did not follow the principles of natural justice and without giving any party any opportunity of hearing rejected the requisition. Such act of the said CO is ex facie hypocrite and illegal and bad in the eye of law", the Court opined. Accordingly, the Court directed the Principal Secretary or the Secretary Labour Department, Government of West Bengal to initiate proceedings against the Certificate Officer under Section 9 (1) of the Payment of Gratuity Act, 1972 within a period of 2 weeks.

29. Calcutta High Court Refuses Relief On Plea Alleging Disrespect Of Goddess Durga By Alleged Display Of Shoes In Puja Pandal [Santanu Singha @ Santanu Sinha v. State of West Bengal & Ors]

The Calcutta High Court refused to grant any relief on a plea filed against the alleged display of shoes in a Durga Puja Pandal in the Dum Dum area of Kolkata. The Bench of Justice Kausik Chanda was hearing a plea filed by one Santanu Singha, who alleged that by displaying shoes in the Puja pandal (at Dum Dum Park, Bharat Chakra Club), utter disrespect had been shown to the Goddess Durga. The petitioner, who came to know about such a display of shoes from social media, submitted before the Court that he did not visit the pandal personally. However, he did allege that the display of shoes in Puja Pandal had hurt the religious sentiment of the people of West Bengal. On the other hand, appearing on behalf of the state and other respondents, Advocate General, S.N. Mookerjee, submitted that the shoes were displayed only in the thematic part of the relevant pandal, which had been decorated with shoes as a symbol of protest by the farmers. In view of the submission made by the Advocate General, the Court was of the view that at the instant ad-interim stage, it was not inclined to pass any order on the application for removal of the shoes, since, as per court, such an order may amount to grant of the final relief.

30. Calcutta High Court Seeks State Govt's Response On Application Of Foreigners Act, 1946 On Religious Minorities Protected Under CAA 2019 [Sudha Rani Das v. State]

The Calcutta High Court sought the State government's stand on the application of the Foreigners Act, 1946 in respect of prosecution of religious minorities from Bangladesh in light of the fact that non-Muslim religious minorities from neighboring countries have been precluded from being treated as 'illegal immigrants' vide the Citizenship Amendment Act, 2019.The Citizenship Amendment Act, 2019 amended the Citizenship Act, 1955 by inserting a proviso to Section 2, Sub-section 1 of the principal legislation. The amendment grants citizenship on the basis of religion to non-Muslim communities from Afghanistan, Bangladesh and Pakistan who have entered India on or before December 31, 2014. Justice Kausik Chanda observed,  "Let a notice be issued by the Registry to the learned Advocate General to disclose the stand of the State Government with regard to the application of Foreigner Act, 1946 to the persons belonging the communities as indicated in the aforesaid proviso". It was further noted that in several cases, religious minorities from Bangladesh were being prosecuted under Section 14 and Section 14C of the Foreigners Act, 1946 by the State despite the enactment of the Citizenship Amendment Act, 2019.

31. 'Why Only One Particular Lawyer Is Assigned To Conduct Such Cases?': Calcutta HC Seeks Personal Appearance Of Police Commissioner, Legal Remembrancer [In Re : Abhay Tiwari]

The Calcutta High Court came down heavily on the Commissioner of Police, Bidhannagar Police Commissionerate for assigning all matters of the Cyber Crime Police Station of Bidhannagar to only one particular lawyer leading to frequent disruption in Court proceedings owing to repeated adjournments sought on that lawyer's behalf. Justice Tirthankar Ghosh sought the personal appearance of the Commissioner of Police, Bidhannagar Police Commissionerate, and accordingly observed, "The Commissioner of Police, Bidhannagar Police Commissionerate will personally appear before this Court on 20.12.2021 at 10.30 a.m. to explain as to why all matters of Cyber Crime Police Station of that Police Commissionerate are assigned to a particular lawyer from Trial Court to High Court and why should the Commissionerate be held not responsible for disrupting the proceedings of this Court." The Court made this observation following a request for adjournment made on behalf of advocate Bivas Chatterjee (the assigned State counsel) on the ground that he is engaged in a subordinate court at Chinsurah.

32. Calcutta High Court Dismisses Plea Seeking Inquiry Into Dr Syama Prasad Mukherjee's Death [Smarajit Roychowdhury and Anr v. Union of India]

The Calcutta High Court dismissed a plea seeking an inquiry into the 'mysterious' death of the founder of the Bharatiya Jana Sangh (BJS) Dr. Syama Prasad Mukherjee who had passed away in Kashmir in the year 1953. The Bench of former Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj dismissed the plea noting thus: "A petition filed 70 years after the death of Dr. Syama Prasad Mukherjee, cannot be entertained for holding enquiry or appointment of a commission as neither the record therefor nor any person may be available who may throw any light on that. It may be merely an exercise in futile." The petition filed by Advocates Smarajit Roy Chowdhury and Ajit Kumar Mishra had also sought declassification of all the documents relating to Mukherjee's death and submission of a report within a fortnight. "The citizen's of India has no information how the death was held while Dr. Shyama Prasad Mukherjee was in custody, hence, all the citizens of India had a right to get appropriate information about the mysterious death of Dr. Shyama Prasad Mukherjee," the plea had averred.

33. Calcutta HC Directs Health Secretary To Meet Protesting Doctors In Plea Alleging Disruption Of Medical Facilities At R.G. Kar Medical College Hospital [Sri Nand Lal Tewari v. State of West Bengal]

The Calcutta High Court directed the Health Secretary of the West Bengal government to meet protesting medical students and junior doctors of the R.G. Kar Medical College and Hospital, Kolkata on October 29. The Court was adjudicating upon a Public Interest Litigation (PIL) petition alleging that in light of the ongoing agitation by a section of the interns and the students the medical services to the public at the hospital have been adversely affected. Around 350 resident doctors and students have been protesting over a range of demands- reinstatement of the RGKMC union, a transparent hostel council and more hostel beds for female resident doctors. They have also demanded the resignation of the college's principal Sandeep Ghosh. A Bench comprising Justices Debangsu Basak and Rabindranath Samanta observed, "It would be appropriate to request the Health Secretary to meet the representatives of the respondent no. 8, not exceeding six in number on October 29, 2021 at 11.00 AM at the office of the Health Secretary. The Health Secretary is at liberty to hear such other parties that he deems appropriate."

34. Calcutta High Court Refuses To Allow Medical Termination Of Pregnancy Of 31 Weeks Old Foetus Suffering From Rare Congenital Heart Defect 

The Calcutta High Court refused to allow the plea of a woman seeking medical termination of her 31 weeks old foetus on account of a rare and complex congenital heart defect. The petitioner on October 23, 2021 during her 31 weeks gestation period had discovered through a fetal echocardiography that the the foetus has prognosis of 'hypoplastic left heart syndrome'- a congenital defect that affects normal blood flow through the heart. The Court took on record the report of the Medical Board which had advised against the medical termination of pregnancy. Justice Nizamuddin observed, "Considering this report of expertise, I am not inclined to consider prayer of the petitioner for termination of pregnancy. Considering the submission of government pleader that the State will take all possible steps for the safety of the child as well as mother and facilitate the admission of the petitioner in SSKM Hospital Calcutta and shall also see that all possible steps are taken for the safety of the mother as well as child and for safe delivery following medical ethics."

35. Calcutta High Court Seeks State Gov's Response On Plea Alleging Irregularities In 'Swasthya Sathi' Health Scheme [People For Better Treatment (PBT) v. State of West Bengal]

The Calcutta High Court sought response from the West Bengal government on the medical services provided under its 'Swasthya Sathi' scheme. 'Swasthya Sathi' scheme is a subsidized state government insurance plan that was launched in the year 2016 and offers health coverage for secondary and tertiary care up to Rs 5 lakh per annum per family. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition moved by Kunal Saha, a US- based doctor and chairman of the organization People for Better Treatment alleging malpractices and irregularities in the implementation of the scheme. It was contended that many patients did not get any financial assistance despite applying for the scheme. Taking cognizance of the grievance raised, the Bench directed the State government to file an affidavit detailing the process adopted for helping people get benefits of the scheme and the number of patients who had failed to get financial assistance even after approaching the health department.

36. Calcutta High Court Directs State Gov To Consider Inclusion Of 'Gachhi' Unorganised Workers Under Samajik Suraksha Yojana [Gajibur Rahaman Sekh v. The State of West Bengal & Ors]

The Calcutta High Court directed the Secretary, Labour Department, Government of West Bengal to consider a representation to include a section of unorganized workers called 'Gachhi' who earn their livelihood by climbing on tress and cutting nuts/coconuts/jaggery etc within the list of beneficiaries under the 'Samajik Suraksha Yojana', 2017. The 2017 scheme had been introduced by the State government to extend primary benefits such as provident fund, financial assistance, compensation to all workers of the unorganized sector. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a plea moved by a 'Gachhi' who contended that his life is always at risk and that members of the petitioner's community should be extended the benefit of 2017 scheme. The Bench noted that the 2017 scheme includes beneficiaries consisting of 46 unorganized industries and 15 self-employed persons. Upon perusal of the rival submissions, the Court observed, "The issue in respect of the entitlement of the petitioner for inclusion in the Scheme is required to be considered by the competent authority having due regard to the fact that other self-employed persons of similar nature are already covered". Accordingly, the Court directed the petitioner to file a detailed comprehensive representation before the Secretary, Labour Department, Government of West Bengal so that the Secretary can duly look into the issue 'with sympathetic consideration' as also having regard to the nature of employment.

37. Calcutta High Court Seeks Centre's Response In Plea Seeking Printing Of Netaji Subhash Chandra Bose's Picture On Indian Currency Notes [Haren Bagchi Biswas alias Harendranath Biswas v. Union of India]

The Calcutta High Court has sought the Union government's response in a Public Interest Litigation (PIL) seeking directions to print images of Netaji Subhash Chandra Bose on Indian currency notes. The plea moved by 94-year old freedom fighter, one Haren Bagchi Biswas contends as to why Netaji Subhash Chandra Bose's picture cannot be printed on currency notes like Mahatma Gandhi's. The petitioner has further alleged that the government of India has not given due recognition to Netaji Subhash Chandra Bose's contribution towards the freedom struggle. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Monday directed the Centre to file a reply to the petition within 8 weeks after Additional Solicitor General Y.J Dastoor sought time to file an affidavit in this regard. The matter is slated to be heard next on February 21, 2022. "Learned Additional Solicitor General prays for eight weeks time to file the affidavit-in-opposition. List on 21st February, 2022", the order read.

38. Calcutta High Court Seeks Centre's Response In Plea Challenging Expansion Of BSF Jurisdiction In West Bengal [Sayan Banerjee v. Union of India]

The Calcutta High Court sought response from the Central government in a Public Interest Litigation (PIL) petition challenging the Central government's power to decide the jurisdiction of the Border Security Force (BSF). The petition challenges Section 139(1) of the Border Security Force Act, 1968 (BSF Act) for being ultra vires to the Constitution to the extent that it provides 'unbridled, unrestricted and arbitrary' powers to the Central government for fixing the territorial jurisdiction of the BSF. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Tuesday directed the Central government through Additional Solicitor General Y.J Dastoor to file an affidavit-in-opposition before the next date of hearing that is slated to take place on February 22, 2022. During the proceedings, the Bench was also apprised that the State of Punjab and Haryana had moved the Supreme Court invoking Article 131 of the Constitution raising a similar contention. "It has been brought to the notice of this Court that one of the States namely Punjab and Haryana has already approached the Hon'ble Supreme Court invoking Article 131 of the Constitution raising the same issue. Learned Advocate General seeks time to find out the grounds raised in that matter", the order read.

Also Read: Calcutta High Court Issues Notice On Plea Challenging Centre's Power To Decide Jurisdiction of Border Security Force

39. Rejection Of Muslim Women's Candidature For Hijab Clad Photos: Calcutta HC Makes Result Of WB Police Recruitment Process Subject To Its Orders [Hapija Khatun & Ors v. State of West Bengal & Ors]

Following the rejection of candidatures of several Muslim women from the West Bengal Police Recruitment process for annexing hijab (headscarf) clad photographs in their application forms, the Calcutta High Court made it clear that the recruitment process will be subject to its orders in the petition filed by aggrieved candidates. "The petitioners question the rejection of their candidature for having applied with their respective photographs with head gear (hijab) as part of their religious practice when the face in the photograph is clear for necessary identification," Justice Arindam Mukherjee noted at the outset. The Bench was dealing with a writ petition filed by a group of Muslim women, alleging that their application forms for recruitment had been rejected by the Recruitment Board since they were clad in a 'hijab' in the photograph submitted. Noting that 'an important point falls for consideration in this writ petition', the Court ordered, "It is made clear that the result of the recruitment process so far as the petitioner is concerned, shall abide by the result of this writ petition". 

Constitutional Law

1. RBI Is 'State' Under Article 12; Private Banks Discharging Public Functions Amenable To Writ Jurisdiction [M/s Pearson Drums & Barrels Pvt. Ltd. v. General Manager, Consumer Education & Protection Cell of Reserve Bank of India & Ors]

The Calcutta High Court held that the Reserve Bank of India (RBI) is "State" under Article 12 of the Constitution and thus, a writ petition is maintainable against it. The judgment delivered by a Single Bench of Justice Sabyasachi Bhattacharyya further states that even private banks cannot seek refuge of being non-State actors, for the purpose of challenging maintainability of a writ petition against them, as their functions pertain to discharge of public duties. The Single Bench ruled, "Since the Reserve Bank of India is an instrumentality of the State, it comes squarely within the meaning of "State" as contemplated in Article 12 of the Constitution. Thus, the writ petition is maintainable." It added, "the functions discharged by the respondent no.4-Bank [IndusInd Bank] are of a public nature and, as such, pertain to the discharge of public duties."

The Bench refused to apply the principle laid down by the Supreme Court in Federal Bank Limited v. Sagar Thomas & Ors., (2003) 10 SCC 733, that a writ petition under Article 226 of the Constitution is not maintainable against private banks. The instant case pertained to a dispute between the Petitioner, a MSME and the IndusInd Bank with respect to refund of processing fee paid by the former, to the latter, pursuant to a prospective loan facility.

2. Conversion For Marriage- "Can't Exercise Judicial Power Just Because No Law In Place, But Can Examine Validity Of Law If Enacted" [ Palash Sarkar v. The State of West Bengal & Ors]

Hearing a plea asserting that certain religious denominations are effectuating conversion under the guise of the institution of marriage, the Calcutta High Court held that in such matters, the policy-making instrument would not be the judiciary. The Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee further observed, "The pith and substance of all the issues relating to conversion of marriage and acceptability of marriage in terms of personal laws or municipal laws are matters on which the policy-making instrument would not be the judiciary." The plea before the Court stressed that there is a consorted effort in certain religious denominations to effectuate conversion under the guise of the institution of marriage. It was also submitted that in areas where there are no state legislation controlling or regulating such religious conversion, the judiciary could consider stepping in to put regulatory measures in place. "…The case in hand is not one where the most critical aspect emanating out of Article 21 of the Constitution may provoke exercise of judicial power on the premise that there is no legislation in place", the Bench observed. However, the Court did clarify that it could sit in judgment on the validity, enforceability, and/or otherwise of any piece of law which may be made by any legislative body.

3. Freedom Fighter's Widowed/Divorced Daughters Having No Income Entitled To His Pension, Blanket Exclusion Violates Art.14 [Sonali Hatua Giri v. Union of India & Ors]

The Calcutta High Court declared Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions followed by Authorized Public Sector Banks, issued by the Ministry of Home Affairs, as being violative of Art. 14 of the Constitution of India after observing that the "blanket exclusion of widowed/divorced daughters, including even those who do not have any personal income in lieu of maintenance or otherwise, is patently de hors Article 14 of the Constitution of India, which enshrines the guarantee of equality to all citizens". A single-judge bench comprising of Justice Sabyasachi Bhattacharyya observed thus: "..The blanket exclusion of widowed/divorced daughters, including even those who do not have any personal income in lieu of maintenance or otherwise, is patently de hors Article 14 of the Constitution of India, which enshrines the guarantee of equality to all citizens. In the present case, the classification is worse than gender bias, since unmarried daughters have been included within the scheme but widowed/divorced daughters who stand on the same footing, having no independent source of income, have been excluded. Even going by the Succession Acts, daughters, irrespective of qualification, are entitled to the property of the deceased as heirs. Hence, the mere existence of a right in a statute book to get maintenance from the matrimonial family is not at all sufficient to meet the financial requirements of those widowed/divorced daughters who do not have any income." It was held further, "However, as far as daughters having no independent source of income are concerned, widowed/divorced daughters stand on an equal footing with a spinster daughter as heirs of the deceased freedom fighter. The marital status of all of them is "unmarried". Thus, the criterion of exclusion of widowed/divorced daughters, as sought to be projected by respondent no.1, is untenable in the eye of law. As such, Clause 5.2.5 is patently violative of Article 14 of the Constitution of India, which ensures equality among people standing on the same footing, in the absence of reasonable classification or intelligible differentia."

4. Private Unaided Education Institutions Discharge Public Duty Of Imparting Education; Amenable To Writ Jurisdiction [Bineeta Patnaik Padhi v. Union of India & Ors]

The Calcutta High Court held that private unaided educational institutions discharge public function under the Right to Education (RTE) Act and are therefore amenable to the Court's writ jurisdiction under Article 226 of the Constitution. "Such a public duty stands imposed, in my opinion, in terms of both Article 21A of the Constitution of India as well as the RTE Act which gave effect to the fundamental right in unequivocal terms," a Single Bench of Justice Shekhar B Saraf observed. The development comes in a writ petition filed by Bineeta Patnaik Padhi, an educationist by profession, against termination of her services as the Principal of Army Public School at Panagarh whilst serving in her tenure as an extended probationer. The school is operated by the Army Welfare Education Society and it was the argument of YJ Dastoor that since the said school was a private unaided school and the AWES which is managing it, is not a public body, in view of the mandate of Article 12 of the Constitution of India, neither the said school nor the society overseeing the affairs of the said school would be amenable to the writ jurisdiction of this Court.

"What follows is the fact that even if AWES was considered to be a private body/authority, a writ of mandamus under Article 226 of the Constitution could be issued to the same if it were proved that it is performing a public duty and it owed a positive obligation to an affected party. The reason for such permissibility is the phraseology of Article 226 itself", the Court observed. The Court added, "A bare perusal of the schematics of the RTE Act, exhibits that the legislative intent of the Parliament was to ensure that teachers were not left in the lurch in situations and their grievances in school disputes, would have to be addressed satisfactorily. Specific provisions of the RTE Act lay down with utmost clarity, that compliance with the principles of natural justice are a must while specific grievance redressal mechanisms would be laid down by the 'appropriate government' as defined in the RTE Act."

Civil Law, Service Law and other connected matters

1. Calcutta High Court Issues Contempt Notice To The Only Central University In West Bengal For Non-Compliance Of Its Orders [Prof. (Dr.) Sruti Bandopadhyay v. Ashok Kumar Mahato]

The Calcutta High Court issued show-cause notice of contempt to the Visva-Bharati University, the only Central University in the state of West Bengal. A Division Bench comprising of Justices Soumen Sen and Saugata Bhattacharyya has summoned the University Registrar & Registrar (Acting) on February 4, for non-compliance of its previous order in a case pertaining to payment of salary to Professor of Manipuri Dance. On December 24. 2020, the Division Bench had observed that Manipuri Dance is the integral part of the dance drama conceived by Tagore and it is in the interest of the University that a Professor of Manipuri Dance is not shabbily treated. In the facts of the case, the University claimed that the actual salary payable to the Petitioner-professor was Rs.2,30,958/- as opposed to a sum of Rs.2,52,018 that she had been receiving. Hence, a demand notice was issued to the Petitioner asking her to return the excess payment made to her from the date of her joining i.e. April 2014. The Court was of a prima facie view that a person after being allowed to work in a post, his/her salary could not be reduced and cannot be directed to return any amount for the period she performed her duties. It observed that the question of recovery of arrear salary may be considered only after the exchange of affidavits. In this backdrop, the Court directed the University to pay a sum of Rs.2,30,258/- (climed to be the payable amount by the University), without prejudice to the right and contention of the parties.

When the matter re-appeared on January 15, the Petitioner complained before the High Court that she had not received any payment in terms of the above order, and further, no affidavit of compliance was filed by the Respondent-University. Under such circumstances, it has directed Ashok Kumar Mahato, Registrar & Registrar (Acting), Visva Bharati University to be personally present before it on February 4 2021 with an affidavit explaining the reason for non-compliance of the said order.

2. Recovery Of Public Money Cannot Wait Indefinitely To Suit The Convenience Of A Particular Borrower [Brahm (Alloys) Ltd. & Anr v. West Bengal Financial Corporation & Ors]

Agreeing with the argument of the counsel appearing for 'West Bengal Financial Corporation' (a financial institution), the Calcutta High Court noted that recovery of public money cannot wait indefinitely to suit the convenience of a particular borrower. Justice Sabyasachi Bhattacharyya was hearing the plea of the petitioner, Brahm (Alloys) Ltd. (borrower) who failed to repay the loan taken from the West Bengal Financial Corporation, a financial institution. The Court noted that in the instant case, even the latest offer given by the concerned ARC, with whom the petitioners are negotiating, is patently conditional. "As such, there is no final proposal, even at this stage, coming from the ARC at the behest of the petitioners for repayment of the loan", remarked the Court.

In such circumstances, the Court said, respondent no.1 was fully justified in proceeding with the sale of the assets of the borrower, particularly in view of the previous conduct of the petitioners. Importantly, the Court remarked, "A fresh lease of life cannot now be granted to the petitioners, since such opportunity was previously given to them but the petitioners miserably failed to avail of the same. Recovery of public money cannot wait indefinitely." Accordingly, the Writ Petition was dismissed on contest without any order as to costs. However, respondent no.1 was directed to give a reasonable opportunity to the petitioners to meet the highest offer, after receiving adequate offers on the latest sale notice from prospective buyers.

3. 'Once Appeared For A Party"- Calcutta HC Judge Recalls Her Order Even After No Objection By Both Parties, Says "It Is The Best And Only Course Available" [Duroply Industries Limited and Anr v. MA Mansa Enterprises Private Limited]

The Calcutta High Court recalled its order of an injunction passed in a trademark dispute as the Judge presiding over the case had appeared for one party in respect of the same trademark in the past. A single Bench of Justice Moushumi Bhattacharya recalled the order passed by her even after assurance by parties that they had no objection to the judgment being delivered by the Court. She found that releasing the matter was the best and only course of action since she had appeared for one party in relation to the same trademark on which the party claimed exclusivity in present proceedings. "An undertaking given by a litigant to a Court with any form of assurance may be construed in a totally different light at a subsequent stage of the proceedings depending on the twists and turns of the litigation itself. It is also important to bear in mind that a matter should be released by a Court on the call of conscience of the Judge who is to decide and not on any assurance of the parties before the Court", the Court observed.

According to Justice Bhattacharya, preserving the purity of the process of dissemination of justice is a collective responsibility that rests both on the Court and counsels, advocates-on-record, and instructing attorneys who act as officers of the Court on behalf of the parties. Justice Bhattacharya also observed that a litigant receiving a judgment must be convinced, for all times to come, that the judgment was delivered solely on the applicable law and facts relevant to the matter and not on any other considerations. A litigant can never be under the impression that it can control or influence the outcome of adjudication by factors unconnected to the litigation and least of all by a professional connection which a Court may have to the matter, it was further underscored. 

4. Furnish Details Of Government Accommodation Occupied Unauthorisedly By Employees: Calcutta High Court To Govt [Chandrawati Devi v. The State of West Bengal and Ors]

The Calcutta High Court directed the State Government to furnish details of all the government accommodation under its control and are occupied by the employees who are not entitled to that. The Bench of Justice Rajesh Bindal and Justice Aniruddha Roy gave this direction while noting that the petitioner before the Court was in occupation of government accommodation after the retirement of her late husband for a period of more than 27 years. While dealing with the case, the Court sternly remarked, "The case in hand is a glaring example of the fact as to how the government officials can sleep over the matter pertaining to eviction of the ex-government employees or their families from the government accommodation allotted to them during service." Further, the Court also directed that it should be apprised of the rules/regulations or the instructions issued with reference to the period up to which such government accommodation can be retained by the employee or his family and charges/penalty to be paid by an employee or his family in occupation of the government accommodation for use and occupation thereon and the law under which the proceedings of eviction are to be initiated.

The Court also directed the Chief Secretary, Government of West Bengal, "Ensure filing of affidavits by the concerned Secretaries of different departments giving details of all the government accommodations under their control, which are in occupation of the employees who are not entitled to that, namely after retirement, death, or transfer of the employee concerned."

5. No Bar In CPC/ Arbitration Act For Accepting Immovable Property As Security For Stay Of Decree [Nitu Shaw v. Bharat Hitech (Cements) Pvt. Ltd.]

The Calcutta High Court held that there is no bar in the Code of Civil Procedure or under the Arbitration Act, 1996, in accepting immovable property as security for stay of decree. While emphasizing that the intention behind seeking security is simply to furnish an effective cushion for the decree-holder in case the challenge to the decree fails, a Single Bench of Justice Moushumi Bhattacharya held that cash security is not sine qua non under the statutes. The Court observed that the language of Section 36(3) imparts discretion to the Court for deciding the conditions which may be imposed and the only stated requirement is that the Court must indicate its reasons in writing for granting an order of stay of the award in question. "The intent of the provision relating to stay of a money decree is that the applicant who seeks stay of a decree must furnish some sort of effective cushion for the decree-holder to fall back on in the event the challenge to the decree fails," it added. The Court also observed that various provisions of the CPC relating to stay of a money decree nowhere prescribes that such stay would only be in monetary terms. In this backdrop the Court held, "On a conjoint reading of the above provisions it is clear that the intention of the framers of the law, which is relevant for consideration in the present case, was to refrain from a strict requirement that security to be furnished for stay of a decree would only be in monetary terms."

6. Non Issuance Of Duplicate Share Certificates Does Not Indicate Malice Of Company At The Inception Of Transaction: Calcutta High Court Quashes Cheating Case [M/s. Avion Builders Pvt. Ltd. & Ors. v. State of West Bengal & Anr]

The Calcutta High Court quashed a criminal case of Cheating instituted against a company and its Directors over non-issuance of duplicate share certificates to the complainant, claiming to be a shareholder in the company. A Single Bench of Justice Suvra Ghosh held that mere non-issuance of duplicate share certificates on misplacement by an alleged shareholder does not indicate malice on part of the company from the inception of the transaction. The Court further observed, "No prima facie case of entrustment with or dominion over property or dishonest misappropriation of property or even ingredient of cheating has found place within the four corners of the complaint. Even if it is held that duplicate share certificates were deliberately not issued in favour of the opposite party with criminal intent, such act was done at a subsequent stage only after the original share certificates were misplaced and no such intent is found at the inception of the transaction."

7. Distinction Between 'Temporary Injunction' And "Attachment Before Judgement" Under The CPC: Calcutta High Court Explains [Prabha Surana v. Jaideep Halwasiya]

The Calcutta High Court vide order dated 22.6.21 explained in detail the distinction in the nature of relief between a 'temporary injunction' under Order XXXIX Rule 1 and an order for 'attachment before judgment' under Order XXXVIII Rule 5 of the Civil Procedure Code, 1908 (CPC). Justice Moushumi Bhattacharya observed that while both provisions aim to protect the petitioner by preserving the disputed property, their applicability differs when it comes to the nature of property and the stage of proceedings in question. "Under Order XXXIX Rule 1, the property sought to be preserved is 'property in dispute in a suit', whereas, it is the respondent's property under Order XXXVIII Rule 5 - the words used are 'his property' following specific reference to '…the respondent, with intent to obstruct or delay..'. The distinction reinforces the need to preserve the suit property till final orders are passed in the former and to secure the petitioner for facilitating execution of a decree in the latter. Although, the terms 'order' and 'decree' can be interchangeably used depending on the nature of the application, the thrust of the two provisions, read together, is saving the suit property till the right of the petitioner is established to proceed with the suit and to save the petitioner from the decree – or the possibility thereof – being frustrated once the suit nears culmination", the Court elucidated.

8. 'Termination Of Service By Merely Giving Notice, Without Holding Him Guilty Of Any Offence Is Wholly Unfit': Calcutta High Court Imposes 20,000 Cost On Employer [Webfil Ltd. v. Dipesh Kumar Bagchi & Anr]

Emphasizing that the Constitution is meant to 'secure the social order' of the society and to promote the 'welfare of the common people', the Calcutta High Court imposed cost of Rs. 20,000/- on an employer who terminated an employee without any cogent reasons. "Such high-handed action of termination which fits in a feudal minded society for termination of service of a person by merely giving a notice without holding him guilty of any offence is wholly unfit in the atmosphere of a democratic country like ours where the dynamics of law is towards fairness in all actions", single bench of Justice Abhijit Gangopadhyay held. The Court added that 'judicial process' is also 'State action' and thus, a duty is cast on the State, which includes the judiciary, under Article 38 of the Constitution— to secure a social order for the promotion of the welfare of the people. In this backdrop, the High Court dismissed the employer's writ petition challenging an award passed by the Industrial Tribunal, favouring the employee for payment of all the back wages, including the benefit of revised wages or salary.

9. Calcutta High Court Issues Notice On A Plea Challenging IT Rules 2021 [Sayanti Sengupta v. The Union of India and Anr]

A Public Interest Litigation (PIL) was filed before the Calcutta High Court challenging the Information Technology (Intermediary Guidelines and digital Media ethic code) Rules, 2021 for being ulra vires to the Information Technology Act,2000 and the Constitution of India. The Rules had been enacted on February 25, 2021 by the Ministry of Information, Government of India. A division bench comprising former Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee issued notice in the plea and directed the Centre to file a counter affidavit before July 19. Furthermore, the petitioner was asked to submit a reply before the next date of hearing which is slated to take place on August 4. "The philosophy of freedom of speech and freedom of expression is the foundational ethos of our constitution. That no authorities under the garb of exercise of its rule making power can take away the foundational basis of our constitutional principle", the petition stated.

10. Individual Contracts Can't Curtail Jurisdiction Of Statutory Forums [Ajit Hembram and others v. Sergeant of Co-operative Housing Society Limited and others]

The Calcutta High Court observed that parties are precluded from drawing up individual contracts that curtail the jurisdiction of statutory forums or overrule statutory requirements. Terming such contracts to be 'ex facie barred', Justice Sabyasachi Bhattacharyya observed, "Although there might have a provision in the contract for unilateral termination by the opposite parties in the event of certain incidents happening, mere agreement cannot confer jurisdiction and/or curtail jurisdiction of a statutory forum. The parties cannot contract out of statutory requirements by individual contracts." Rejecting the contention of the respondents that unilateral termination of the contract is permissible, the Court reiterated that parties cannot supersede statutory requirements through individual contracts. "In view of the Act of 2006, such statutory power cannot be curtailed by individuals by their agreements. Any agreement against the law is ex facie barred", the Court opined. Further, the Court held that the exercise of the power of unilateral termination was sanctioned by the appellate Tribunal without taking note of the specific provisions of Sections 202 and 204 of the Indian Contract Act, 1872.

11. Calcutta High Court Seeks Centre's Response On Plea Challenging Concept of 'Beneficial Nominees' Under Section 39(7) Insurance Act [Malabika Ghosh v. Union of India and others]

The Calcutta High Court issued notice on a plea challenging the constitutional validity of Section 39(7) of the Insurance Act, 1938 which was brought into force on December 26, 2014 vide the Insurance Laws (Amendment) Act, 2015. Thus, the Centre's response was sought in this regard by issuing notice to the Additional Solicitor General Y.J Dastoor. Subsequent to the amendment, the concept of 'beneficial nominee' was inserted into the provision whereby in the event that the holder of an insurance policy in his lifetime nominates his parents or spouse or children or any other family member, the concerned nominees shall be beneficially entitled to the amount payable by the insurer, unless it is proved that the holder of the policy could not have conferred any such beneficial title on the nominee.

In the instant case, the petitioner has been aggrieved by the 2015 Amendment Act insofar as it makes family members of the insured, who were named as nominees to be raised to the status of 'beneficial owners'. The petitioner also sought the Court's leave to restrain the concerned Insurance Company from disbursing any sum of money to her mother-in-law under two life insurance policies taken out by her deceased husband. Justice Rajasekhar Mantha however opined that given the settled position of law in this regard, the petitioner's mother-in-law must be entitled to the proceeds of the concerned insurance policy. "This Court is of the prima facie view that given the law as it stands laid down in the following decisions Indrani Wahi v. Registrar of Cooperative Society & Ors. reported in (2016) 6 SCC 440 and Sarbati Devi v. Usha Devi reported in AIR 1984 SC 346 a nominee even otherwise remains a trustee holding the proceeds of the insurance policy for and on behalf of the legal heirs of the deceased", the Court observed. 

12. What Constitutes A 'Commercial Dispute' Under Commercial Courts Act, 2015? Calcutta High Court Explains [Ladymoon Towers Private Limited v. Mahendra Investment Advisors Private Limited]

The Calcutta High Court recently had the opportunity to extensively define what constitutes a "commercial dispute" as contemplated under Section 2(1)(c) of the Commercial Courts Act, 2015 (2015 Act). The issue in consideration before the Court was whether a plea filed before the Commercial Division of the High Court should be tried under the provisions of the 2015 Act or be adjudicated upon as a regular suit. "The gradation of disputes in Section 2(1)(c) taking into account all possible forms of agreements from which a "commercial dispute" may arise, makes it clear that the framers of the statute gave emphasis on the commercial flavour of the transaction as opposed to agreements entered into between parties without a commercial purpose", the Court observed. Opining on the importance of undertaking such an analysis on what constitutes a 'commercial dispute', Justice Moushumi Bhattacharya observed, "Discussion as to what would constitute a "commercial dispute" under the options contemplated in Section 2(1)(c) of the Act is important since courts generally tend to accept the listing of matters before the Commercial Division or the Commercial Appellate Division of a High Court, as correct. The categorizations of matters before these Benches are usually done by the concerned Department or by the occasional assessment by the concerned court where a party takes objection to such classification"

13. 'Why Does School Teacher Have To Seek NOC With Folded Hands?": Calcutta High Court On Repeated Non Issuance of NOC For Transfer [Gandhi Memorial Girls' High School & Anr v. The State of West Bengal & Ors]

The Calcutta High Court came down heavily on a school and its Headmistress for deliberately refusing to issue a No-Objection Certificate (NOC) and release order to a teacher who had sought leave to get transferred to another school on health grounds. The Court also instructed the concerned Headmistress to vacate her post and accordingly demoted her to the post of an assistant teacher in the school. The Court also took note of the fact that the application for issuance of a NOC had been pending for almost 2 years and accordingly directed the school authorities to immediately issue a release order to the concerned teacher. Severely reprimanding the school authorities for denying the requested NOC to the teacher, Justice Abjijit Gangopadhyay observed, "What surprises me as a judge of this court that in a democratic country like ours when a person like the school teacher is seeking no-objection certificate from the school which he/she is entitled under the law and when the school is mandated by the law to issue no-objection certificate why a school teacher has to write to the Headmistress with folded hands unless the Headmistress time and again has denied to give NOC and unless she has posed herself a feudal head of some fiefdom in this country that a teacher has to pray for a no-objection certificate in folded hands!" The Court added further, "Such a mischievous headmistress is wholly unfit as a Headmistress of the school and the headmistress who is to issue the release order has actually violated the law and further the constitutional right of a citizen who can maintain his writ application in the High Court. She has even filed a frivolous writ application which is nothing but abuse of process of justice, to stall the transfer of the teacher. She cannot be allowed to act as a Headmistress of the school." The Court thus ordered the assistant headmistress to assume the responsibility of the headmistress of the concerned school.

14. Whether Filing Of A 'Statement Of Truth' In A Written Statement Is A Mandatory Requirement Under Commercial Courts Act, 2015?: Calcutta High Court Explains

The Calcutta High Court while adjudicating upon a commercial suit expounded in detail whether a 'statement of truth' in a written statement is a mandatory requirement under the Commercial Courts Act, 2015 and whether its absence warrants the disposal of the defence in the suit. In the instant case, the petitioner had contended that a written statement in the absence of a 'statement of truth' is an incurable defect while the respondent argued otherwise. The issue in consideration was the interpretation of Order VI Rule 15A of The Code of Civil Procedure, 1908 (CPC) as amended by the Commercial Courts Act, 2015. Justice Moushumi Bhattacharya observed, "Without taking the avowed object of quick resolution of commercial disputes away from the 2015 Act, rules of procedure cannot be given precedence in a manner so as to defeat the substantive rights of the parties unless specifically prohibited by law. In the present case, Sub-rule (5) of Order VI Rule 15A can be pressed into service in aid of the defendant. If a purposive interpretation is given to the various provisions contained therein, the discretion conferred on a court in the matter of striking out a pleading which is not verified by a Statement of Truth cannot be seen as a speed-breaker in the momentum of the Act."

15. Whether Specific Performance Of An Agreement Is Mandatory Under Amended Provisions Of Specific Relief Act, 1963? Calcutta High Court Explains [The All India Tea and Trading Company Limited v. Loobah Company Limited]

The Calcutta High Court recently had the opportunity to expound on the issue as to whether specific performance of an agreement, including a negative covenant contained therein, is mandatory under the amended provisions of the Specific Relief Act, 1963. Justice Moushumi Bhattacharya observed that although Section 10 of the amended Act vide inclusion of the phrase 'shall' nearly negates the exercise of discretion by Courts while issuing an order for specific performance, it is subject to conditions stipulated under Sections 11, 14 and 16 of the Act which envisage situations where specific performance cannot be enforced. "It would be evident from a combined reading of the provisions, is that Specific Performance of a contract, even in the diminished landscape of Section 10 post-amendment, must segue into Sections 11, 14 and 16 of the Act, without discordance, for the 'shall be enforced' in Section 10 to be in harmonious sync with the import of the amendment", the Court observed.

16. 'Modus Operandi Of Union Of India Reeks Of Malafides' : Calcutta High Court Sets Aside CAT Principal Bench's Order Transferring Alapan Bandyopadhyay's Case [Alapan Bandyopadhyay v. Union of India & Anr]

The Calcutta High Court expressed strong reservations to the manner in which the principal Bench of Central Administrative Tribunal (CAT) favoured the Central government in its attempt to transfer a case moved by Alapan Bandyopadhyay, former Chief Secretary and incumbent Chief Advisor to the Chief Minister from the Calcutta to New Delhi. The High Court Court set aside the order passed by the CAT Principal bench to transfer Bandyopadhyay's petition to New Delhi and directed the Kolkata Bench of CAT to decide the case on an expedite basis. A Bench comprising Justices Sabyasachi Bhattacharyya and Rabindranath Samanta observed with dismay, "The entire modus operandi adopted by the Union of India reeks of mala fides. It is unfortunate that the Principal Bench of the CAT nurtured such efforts by passing the impugned transfer order, thereby paying obeisance to the diktat of the Union of India, which has been repeatedly held by the Supreme Court and various High Courts not to be a favoured litigant. Rather, the responsibility of meting out justice and serving the cause of justice is on a much higher pedestal for the Union of India than an ordinary individual litigant." Setting aside the transfer order, the Bench observed, "The order of the Principal Bench not only violates the legal right conferred on the writ petitioner under Rule 6 of the CAT Rules, 1987, read with Sections 35 and 36 of the 1985 Act, as well as the petitioner's fundamental right of equality before the law, as enshrined in Article 14 of the Constitution, which is the grundnorm of the Indian legal fabric".

17. 'Matter Has Been Put In Cold Storage': Calcutta High Court Directs State Gov To Take Proactive Steps To Ensure Implementation Of Street Vendors Act [Akshya Kumar Sarangi v. State of West Bengal]

The Calcutta High Court observed that there is a duty cast on the State of West Bengal to implement the provisions of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 and the 2018 Rules framed thereunder. Accordingly, the Court directed the State to file an affidavit before the Court detailing a route map in this regard within 4 weeks. A Bench comprising Justices T.S Sivagnanam and Hiranmay Bhattacharya observed, "We wish to point out that the State of West Bengal and the Kolkata Municipal Corporation should not treat this litigation as an adversarial litigation but should take all proactive steps to ensure that the provisions of the Act are implemented. There is a duty cast upon the State to implement the provisions of the Act which came to be enacted after the decision of the Hon'ble Supreme Court in the case arising from the State of Maharashtra. Thus the concerned official of the Municipal affairs department should take a serious view in the matter and place before this Court an action taken report or a route map as to how they propose to proceed in the matter". The Bench also noted that the instant plea focuses on a 'very important issue which concern the public at large' and further observed that the petitioner has been pursuing the matter for several years and this is the third writ petition where the petitioner seeks for a direction upon the authorities to implement provision of Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 and the 2018 Rules.

18. On What Grounds Can Invocation Of A Bank Guarantee Be Restrained? Calcutta High Court Explains [KSE Electricals Ltd. V. Project Director, Bangladesh Electrification Board and Anr]

The Calcutta High Court recently had the opportunity to expound on the issue as to on what grounds can the invocation of a bank guarantee be restrained. Justice Moushumi Bhattacharya was adjudicating upon an application moved under Section 9 of the Arbitration and Conciliation Act, 1996 (Act). In the instant case, vide an order dated May 10, 2021 a Single Judge had restrained the respondent No. 2 from making any payment under a bank guarantee invoked by the respondent No. 1. Subsequently, the order was modified on May 18, 2021 by another Single Judge confirming the interim order of injunction and further restraining the respondent No. 1 from enchasing the bank guarantee. Justice Bhattacharya further stated that generally Courts are slow to interfere with the transaction between a bank and the beneficiary which is seen as being independent of the underlying contract between the lender and the supplier unless conditions call for such interference. Opining further on the three conditions that qualify such an interference, the Court stated, "The three conditions, as accepted in several decisions, are fraud of an egregious nature; special equities or the invocation not being in terms of the bank guarantee. It is sufficient if a party seeking a restraint on the invocation is able to establish any one of the three requirements."

19. Calcutta High Court Transfers Abhishek Banerjee's Defamation Suit Against Suvendu Adhikari To Kolkata From Burdwan [Suvendu Adhikari v. Abhishek Banerjee]

The Calcutta High Court ordered the transfer of a defamation suit filed by Trinamool Congress (TMC) national general secretary Abhishek Banerjee against BJP MLA and Leader of Opposition in West Bengal Assembly Suvendu Adhikari from Burdwan Court to a Court in Kolkata. Adhikari had moved an application under Section 24 of the Code of Civil Procedure (CPC) seeking transfer of the suit now pending in the court of learned Civil Judge (Senior Division), 1st Additional Court at Burdwan to the court of learned Civil Judge (Senior Division) at Contai, Purba Medinipur. Justice Subhasish Dasgupta directed that the defamation suit will be heard before a City Civil Court in Kolkata from January 14 and accordingly observed, "The transfer application is disposed of, directing the learned Civil Judge (Senior Division), 1st Additional Court, at Burdwan to transfer the Title Suit No.52 of 2021, to the court of learned Chief Judge, City Civil Court, at Calcutta within a fortnight from the date of communication of this order. Both the parties are accordingly directed to ensure their respective appearance before the transferee court on 14th January, 2022." Abhishek Banerjee had filed the instant defamation suit against Adhikari before the Burdwan Court in connection with certain alleged derogatory remarks made by Adhikari while addressing a public gathering at Khejuri in Purba Medinipur district.

POCSO and Law concerning Juveniles

1. Unnatural Death Of Teenaged Boy- "Train Police Officials About Pre-Production Action Of Police With Regard To Child In Conflict With Law" [Arijit Adhikary v. State of West Bengal]

Underlining that Rule 8 of the West Bengal Juvenile Justice (Care and Protection of Children) Rules, 2017 aims to support the children, the Calcutta High Court observed that ground-level police officials need to be appropriately instructed with adequate information about the contents and modality of operation related to the rule. The Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Aniruddha Roy noted that Rule 8 has been brought in place to support a fragile sector of the Indian citizenry, namely, the children, who also turn out to be the brick and mortar for future India. "We are of the view that unless the sum and substance of Rule 8 of the West Bengal Juvenile Justice (Care and Protection of Children) Rules, 2017 are carried to its hilt in letter and spirit, the very objects sought to be achieved by making that Rule and the existence of its energizing provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015 would remain futile", the Bench further observed. Accordingly, the Court directed that a training sector of the Police Department in the State of West Bengal be carried out with the guidelines and inputs of the Juvenile Justice Committee of the High Court at Calcutta.

2. "No Reason To Indict Male Only": Calcutta High Court Holds That 'Voluntary Sexual Union' Will Not Attract POCSO, Acquits Accused [Ranjit Rajbanshi v. State of West Bengal]

The Calcutta High Court held that voluntary joint act of sexual union will not attract offence under Protection of Children from Sexual Offences Act, 2012. "If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders", Justice Sabyasachi Bhattacharyya observed. To convict a person for penetrative sexual assault, according to the Court, the psyche, maturity and previous conduct of the victim vis-à-vis the accused is also relevant. It added that the provisions of the POCSO Act should be given an appropriate construction, for the protection of children and not as a tool of abuse to compel a person to marry another. "Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim", the Court furher observed. 

3. "Read Entire Judgments": Calcutta HC Asks Trial Courts To Stop Relying Upon Non-Binding Observations Of SC, HCs [Manindra Paul v. State of West Bengal]

In a significant direction, the Calcutta High Court has asked the trial courts across the state to stop the 'serious adverse trend' to rely upon the non-binding observations (obiter dicta) of the Supreme Court and the High Courts and read the entire judgments before applying the same in a case being dealt with by it. Stressing that 'cut copy paste' judgments make a serious adverse trend in subordinate judiciary, the Bench of Justice Bibek Chaudhuri observed thus: "I am constrained to record that nowadays this Court comes across series of judgments delivered by the Trial Court where decisions of the Hon'ble Supreme Court and other High Courts are cited without considering the fact as to whether some ratio decidendi is laid down in the said reports or not even the general observations (obiter dicta) having no binding force are relied upon and abruptly quoted in the judgments passed by the Trial Courts." The Court also observed that the Judicial Officers in subordinate judiciary must understand that in cases where the Court does not lay down any general proposition of law but merely enunciates a circumstance as to the appreciation of evidence or on any other matter, such decision is applicable on fact to fact basis and not as the ratio decidendi. This direction came from the Court while allowing an appeal filed by an accused who was found guilty by the Trial Judge for committing offence under Sections 376/511 of the Indian Penal Code in a case of attempt to commit rape of an 8-year-old girl. Against this backdrop, the Court came to the conclusion that the Trial Judge had failed to appreciate the evidence on record properly and the prosecution failed to bring home the charge under Sections 376/511 of IPC. "This trend should be stopped and the learned Judicial Officers of subordinate judiciary is advised to read the entire report before applying the same in a case in his or her hand," the Court added as it asked the Registrar (Judicial Service) of High Court to circulate this judgment to the Judicial Officers of the State through the District Judges.

4. Dragging Scarf (Orna), Pulling Hand & Proposing Victim To Marry Not Sexual Assault/Harassment Under POCSO Act [Nurai Sk. @ Nurul Sk. v. State of West Bengal]

The Calcutta High Court has held that the act of dragging 'orna' (women scarf), pulling hand of the victim and proposing her to marry does not come within the definition of either 'Sexual Assault' or 'Sexual Harassment' under the POCSO Act. The Bench of Justice Bibek Chaudhuri also emphasised on the role of the trial Courts in the assessment of evidence on record as it observed thus: "...(the role) in its true spirit cannot but be over emphasized because the Trial Court is the basic structure of administration of justice upon which the superior forums are standing. If the basic structure is without any base, the super structure will not only fall, but it will cause denial of justice to an innocent person." The Court further observed, "Even assuming that the appellant has committed the alleged act of dragging 'orna' and pulling hand of the victim and proposed her to marry, such act does not come within the definition of either sexual assault or sexual harassment. At best for the act of the accused, he may held liable for committing offence under Section 354 A read with Section 506 of the Indian Penal Code." Therefore, appellant was held not guilty from the charge under Sections 354, 354B and 509 of the Indian Penal Code. The appellant is also held not guilty for the charge under Sections 8 and 12 of the POCSO Act.

Covid-19 and Virtual Court Proceedings 

1. Ganga Sagar Mela 2021-Compared With Religious Practice, Beliefs & Faith, Life Is More Important In Every Sense [Ajay Kumar De v. The State of West Bengal & Ors]

Directing the State Government to come out with clear suggestions as to how the Ganga Sagar Mela 2021 would be regulated, controlled, or if necessary, even dropped for the current year, the Calcutta High Court observed that "life is more important in every sense, in comparison to religious practice, beliefs and faith." The Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee was hearing a PIL filed by one Ajay Kumar De related to the issues affecting health, safety, and welfare matters in relation to Ganga Sagar Mela 2021. Every year on Makar Sankranti, lakhs of Hindus flock to the Sagar Island in West Bengal's South 24 Parganas district to take the holy dip and offer prayers at the Kapil Muni temple. Importantly, the Court remarked, "even from the layman's point of view, when congregations take dips in flowing water or stagnant water, in the form of ponds, rivers or other water bodies, oral droplets and nasal droplets of any person who is carrying the infection in this pandemic period, can easily percolate into that water body and thereby create chances of infection through those droplets transmitted virus."

The Court further underscored, "A grimmer situation should necessarily prompt the State to make more rigorous provisions having in mind the duties of the State. It is in consonance with the fundamental right to life guaranteed under Article 21 of the Constitution. The pandemic situation which has visited us now is not something on which there could be any roll back through human intervention, without protective measures being in place." The Court also directed the State Government to have a report in the form of an affidavit placed on record through a Medical Officer at the highest level in the State Government service, clearly delineating the modalities of the preventive management of the situation if Ganga Sagar Mela is permitted to be held.

Also Read: Ganga Sagar Mela Amid COVID-Inform Pilgrims That For Their Own Good They Should Stay Away From The Ganges Water

Also Read: Covid-19: 'Opt For E-Snan', Calcutta High Court Advises Pilgrims Ahead Of Ganga Sagar Mela

2. Calcutta High Court Imposes 20k Costs On Party Seeking Adjournment In Commercial Matter Citing Travel Risk Amid Pandemic [Pioneer Property Management Ltd. v. Amazon Sellers Services Private Limited & Anr]

The Calcutta High Court directed a party to pay Rs 20,000 as costs (to be paid to Bharat Sevasram Sangha, Kolkata) "for unnecessarily delaying the trial in a Commercial Suit." Justice Moushumi Bhattacharya imposed the costs since the party (defendant number 2 in a commercial suit) sought adjournment by stating before the Court that its witness "is not willing to take the risk of travel by reason of the pandemic". It may be noted that defendant no. 2 prayed for time, citing the inability of its witness to come to Court for continuing the cross-examination which had commenced sometime in February, 2020. Defendant number 2 further prayed before the Court for the matter to be posted for hearing in February 2021.

To this, the Court said, "On 7th December, 2020 this matter had been fixed on 11th January, 2021 as is evident from the order passed on that date. The defendant no.2 was represented but as it appears from the order no such ground of inconvenience or otherwise was taken on that date. It is also not clear as to how the additional two weeks would encourage the witness to travel to the Court for the cross-examination." Imposing costs, the Court remarked, "The defendant no.2 is directed to pay costs at Rs.20,000/- to be paid to Bharat Sevasram Sangha, Kolkata for unnecessarily delaying the trial in a Commercial Suit."

3. Calcutta High Court Extends All Interim Orders Passed By It & Courts Subordinate To It Till March 31 [Court in its own motion: In re: Matters pending with interim orders in the High Court at Calcutta and Courts subordinate to it including the Tribunals within the State of West Bengal and Union Territory of Andaman & Nicobar Islands during the prevailing COVID-19 situation related nonavailability of access to Courts]

A Full Bench of the Calcutta High Court extended the subsistence of all the interim orders passed by it and the courts subordinate to it till March 31, 2021. The direction has come in a suo moto case registered by the Court in March 2020, in view of the pandemic. The first such extension was made until April 30, 2020, vide order dated March 24, 2020. Subsequently, the extension orders were extended on various occasions, viz. orders dated April 23, 2020, June 24, 2020 and August 7, 2020. The last such order was passed on November 24, for extension till February 28, 2021. The Full Bench comprising of former Chief Justice Thottathil B. Radhakrishnan, Justices Rajesh Bindal, IP Mukerji, Harish Tandon and Subrata Talukdar said that the original extension order, as modified on August 7, 2020, shall stand extended till March 31, 2021.

Also Read: 'We Do Not See Any Reason For Further Extension': Calcutta High Court Decides Not To Extend Life Of Interim Orders Beyond March 31

Also Read: Covid 19: Calcutta High Court Extends Interim Orders Passed By It And Subordinate Courts Till June 30

Also Read: Covid 19: Calcutta High Court Extends Interim Orders Passed By It And Subordinate Courts Till July 20

Also Read: Calcutta High Court Extends All Interim Orders Passed By It & Courts Subordinate To It Till August 20

Also Read: Calcutta High Court Extends All Interim Orders Passed By It & Courts Subordinate To It Till September 15

4. COVID-19: Guidelines Shouldn't Be Thrown To The Wind, Police-People Confrontation Can't Be Permitted [Mangal Sardar v. The Union of India and Ors]

The Calcutta High Court directed the State Government to see to it that COVID-19 guidelines and safety precautions shouldn't be thrown to the wind. Importantly, the Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee also directed the Government to ensure that confrontation between the police and the people should not be permitted to happen, since situations of human rights violation and such aspects have also to be taken care of. "The Courts have also opened up. The railway sector, the metro railways, malls, cinema halls etc. are now being permitted to be opened up. Obviously, this does not mean that all guidelines and safety precautions should be thrown to the wind", remarked the Court.

Further, the Court remarked, "We are clear in our mind that social responsibility of the citizens in terms of the fundamental duties enshrined in Part-IV A of the Constitution should necessarily trigger the citizens to act in consonance with the larger good." The Court continued, "This includes the use of masks, following the sanitization process and also keeping safe distance not only for the benefit of one's self but also for the benefit of such person's kith and kin as also the neighborhood and the society at large." Further, noting that the enforcement of such matters through policing cannot go beyond a particular range on ground, the Court directed the State,"The confrontation between the police and the people should not be permitted to happen, since situations of human rights violation and such aspects have also to be taken care of."

5. "Any Person Found Flouting COVID Protocols Must Be Taken To Task Immediately"; Calcutta HC Directs Strict Implementation Of COVID Guidelines During Election [Nitish Debnath v. Election Commission of India & Ors. & Sankar Halder & Ors. v. Union of India & Ors]

The Calcutta High Court issued directions to the District Magistrate of all districts and Chief Election Officer, West Bengal, to ensure that COVID guidelines for conducting elections are implemented in a strict manner in wake of rising COVID-19 cases in the State. Noting that the guidelines issued by the Election Commission of India and Chief Electoral Officer, West Bengal, "need to be implemented in the strictest manner possible", the Court has directed the Administration to ensure the same. Further, the Court has directed that stringent measures must be taken "against persons who fail, neglect or refuse to obey the COVID protocols". A Division of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee further observed, "callous, irresponsible and nonchalant attitude or behavior of some of the members of the society cannot be permitted to endanger the lives of the other members of the society", while stating that if any person, whether engaged in election campaigning or otherwise, was found flouting COVID protocols, "such a person must be taken to task immediately".

The Court further directed that the District Magistrates of all districts in the State of West Bengal shall ensure that all the guidelines laid down are strictly implemented in their true letter and spirit, and if necessary, with the aid of police authorities. It recorded that the District Magistrates, and the CEO, West Bengal, would be personally responsible for ensuring that COVID guidelines were scrupulously followed by all, even if it means resorting to Section 144 of CrPC in order to "avert a deadly disaster that is staring at our faces in the form of possible galloping rise in COVID-19 cases".

Also Read: West Bengal Polls- "Utilise Govt. Officials/Police Force To Ensure Strict Compliance Of COVID Protocols/Guidelines": Calcutta High Court To Election Authorities

Also Read: West Bengal Polls: Just By Issuing Circulars & Holding Meetings Your Responsibilities Aren't Discharged: Calcutta High Court To Election Commission

Also Read: COVID Management Amid WB Polls- "No Institution Of Governance Can Excuse Itself From Obeying Election Commission's Orders"

6. West Bengal Polls: "Expect Adherence To COVID-19 Protocols On Counting Day From Political Parties, Candidates & Supporters" [Tuktuki Nag v. Government of West Bengal and others]

The Calcutta High Court expressed its hope that political parties, their candidates, and the supporters would adhere to the COVID-19 Protocols on counting Day (May 2) keeping in view the COVID-19 pandemic situation. The Bench of former Acting Chief Justice Rajesh Bindal & Justice Arijit Banerjee was presiding over a public interest litigation petition filed with regard to adherence to the COVID-19 protocols at the time of counting of votes and declaration of the results of the West Bengal Assembly Election, 2021. "We hope and expect that the aforesaid guidelines are followed and enforced by the State agencies and also the Election Commission of India, wherever it has the jurisdiction at all places including in and around the offices of all the political parties across the State of West Bengal. We expect adherence of the guidelines by the political parties, their candidates, and the supporters also keeping in view the COVID-19 pandemic situation", the Court directed.

7. COVID- Submit Details Regarding Facilities, Medicines, Infrastructure & Vaccination Drive: Calcutta High Court To WB Govt [Dipika Sarkar v. Union of India]

The Calcutta High Court directed the State Government to file an affidavit disclosing the exact state of affairs as well as the facilities, medicines, infrastructure, and the vaccination drive already started within the State. The Bench of Justice Harish Tandon and Justice Shampa Sarkar was hearing a plea filed in connection with the surge in the Covid19 cases within the State during the Assembly Elections. Noting that the issues raised in the instant Public Interest Litigation have been diluted to some extent after the declaration of the Assembly result and the role of the Election Commission as on the date is over, the Court said, "We feel that due to the surge in the Covid19 cases within the State, the State shall ensure all facilities, treatments and the infrastructure required to combat such situation, the State shall ensure all facilities, treatments and the infrastructure required to combat such situation". In the meantime, the State has been directed to also ensure the extension of adequate medical facilities to the affected persons and speed up the vaccination drive in terms of the various circulars and/or the Government Orders issued in this regard.

8. Calcutta High Court Seeks State's Response On Covid Treatment Rates, Allocation And Pricing Of Vaccines, Welfare Schemes For Covid Victims' Kin [Anindya Sundar Das v. Administration of High Court at Calcutta & Ors]

A Division bench comprising former Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee adjudicated upon a bunch of Public Interest Litigation (PIL) petitions on the COVID-19 response and management of the West Bengal government. The pleas sought directions from the Court on the measures undertaken by the State Government to effectively tackle the ongoing pandemic and the impeding third wave. The petitioners in their pleas have urged the Court to direct the State to ensure a host of initiatives that include efficient vaccination drives for priority groups, adequate supply chain management of COVID treatment drugs, affordable pricing of private healthcare facilities and compensation schemes for the vulnerable and disadvantaged populace. The division bench issued notice to the State Government and sought its response on the concerns raised by the petitioners. The Bench has sought a response from the Advocate General of West Bengal regarding the following issues- Rural-urban distribution of population in West Bengal, Vaccination figures, Vaccination program for lawyers and court staff, Data regarding the procurement of vaccines by the State, Data pertaining to the allocation of vaccines in government and private hospitals among others.

Also Read: Calcutta HC Pulls Up WB Govt For Inaccurate Covid Fatality Rate, Directs Priority Vaccination, Welfare Schemes For Covid Victims' Kin

9. 'Reduced To A Circus Show': Calcutta High Court Chides Administration For Connectivity Issues In VC Proceedings, Issues Show Cause Notice [Sri Jadav Saredar @ Jadab Sardar v. Sri Basudeb Tarafder & Ors]

The Calcutta High Court issued a scathing order highlighting the unfortunate state of affairs pertaining to the conduct of virtual court proceedings. Justice Sabyasachi Bhattacharyya minced no words in pointing out how the Court has to undergo connectivity issues and electronic interference in the audio and visual systems almost every day which adversely affects judicial adjudication. Justice Bhattacharyya observed with anguish, "Despite the tall talks about achievements of virtual hearing facilities and restricting hearing of litigations entirely to virtual hearings, it is unfortunate that this Court is unable to provide the minimum virtual services and connectivity in order to ensure that justice is rendered appropriately. I personally feel guilty, as a part of this Court, since disruption and interference in functioning of Courts, in whatever form, might amount to criminal contempt. I am a party to such act as a part of the showcase of Judges who are adorning this Court, including the Chief Justice." The Court further observed, "I categorically refuse to be a part of such circus because I have taken oath to deliver justice to the litigants, who are outside the Court rooms and beyond the reaches of the air-conditioned rooms accommodating the Judges and toiling in the sun and the dust outside. Till such time that the issues are resolved in full, I shall not sit in Court to conduct an empty stage show". The Court also observed that the illustrious High Court is being relegated to insignificance as rendering of justice is becoming next to impossible due to such connectivity issues.

Also Read: 'Master of Roster' Concept Not Equivalent To 'Master Of All I Survey': Calcutta HC Judge Questions Acting Chief Justice On Assigning Of Cases

10. 'Judicial Remedies Denied': Calcutta High Court Orders Admin To Immediately Upgrade Existing VC Facilities In Courts [Arnab Saha v. Shri Siddhartha Roy Chowdhury & Ors]

The Calcutta High Court directed the High Court administration to immediately undertake measures to augment existing video conferencing facilities in all Courtrooms of the High Court as well as the Court room of the 15th Additional District Judge in the Alipore (South 24 Parganas). The Court was adjudicating upon a plea seeking relief on the ground that the petitioner had been denied judicial remedies due to the absence of efficient video conferencing facilities at the Court room of the 15th Additional District Judge at Alipore. Justice Rajasekhar Mantha observed, "The High Court Administration and/or their representatives shall immediately hold a meeting with the learned Advocate General and the officials of the Judicial Department of the State Government. Modalities should be worked out to install appropriate video conferencing facilities and/or to upgrade and augment existing facilities at the Court room of the 15th Additional District Judge in the Alipore (South 24 Parganas) and in all Court rooms at the Calcutta High Court". The Court also directed the State as well as the High Court administration to engage service providers including private players for availing the 'best quality of uninterrupted, unbuffered and smooth video conference facilities' and for setting up all necessary equipment and infrastructure as required. 

11. Fully Vaccinated People Can Enter Durga Puja Pandals, Rituals Such As Anjali, Arati, Sindur Khela Allowed: Calcutta HC Relaxes Restrictions [Ajay Kumar De v. State of West Bengal]

The Calcutta High Court relaxed some restrictions pertaining to this year's Durga Puja celebrations. The Court has permitted double vaccinated persons to participate in rituals such as Anjali, Arati, Sindur Khela etc inside the premises of the puja pandals. A Bench comprising Justices Aniruddha Roy and I. P. Mukerji however cautioned that pursuant to its last year's directions, at the smaller pandals only 15 persons will be permitted entry and 25 to 30 persons will be allowed entry in respect of the bigger pandals. "Entry into a pandal shall be limited to the maximum number of persons permitted entry into it at any point of time, by the said orders of this court. Such entry shall be unrestricted provided each visitor is double vaccinated and wears a mask", the Court observed. The Bench further ordered that the Puja organisers have to ensure compliance of the aforementioned entry requirements and that in the event of default, all activities in the concerned pandal will be subject to cancellation.

Also Read: Durga Puja Pandals In State To Be No-Entry Zones For Visitors: Calcutta High Court Reiterates Previous Directions

12. Jagadhatri Puja- Calcutta High Court Allows Restricted Immersion Procession Subject To Covid-19 Protocol [Ajoy Dutta v. State of West Bengal & Ors]

The Calcutta High Court allowed for restricted immersion procession to take place for Jagaddhatri puja following all Covid-19 protocol. The Court was adjudicating upon a Public Interest Litigation (PIL) petition seeking the Court's leave to organise an immersion procession of Lord Jagaddhatri on November 14 by way of carrying out by 'song' from Rajbari to Kadamtala Ghat. The petitioner prayed before a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj to permit immersion procession by 'song' as was permitted prior to the Covid 19 pandemic. "The leaned counsel for the petitioner has prayed for a limited permission that at least some symbolic procession should be allowed. Learned Advocate General has fairly stated that if the representatives of the petitioner make such a request to the concerned authority then their proposal would be duly looked into having due regard to the Covid 19 situation." Accordingly, the petition was disposed of.

13. Kali Puja : Calcutta High Court Permits Restricted Entry Into Pandals For Fully Vaccinated People; Rituals Such As Anjali, Arati Allowed [Ajay Kumar De v. The State of West Bengal and others]

Modifying the directions issued last year vide order dated November 5, 2020, the Calcutta High Court on Wednesday observed that all puja pandals will continue to be No-Entry Zones, including an area of five-metre beyond the pandals on all the open sides. It was further directed that based on the size of the pandals, only limited people can be allowed entry within the permissible entry points as long as they are double vaccinated and are wearing a mask. A Bench comprising Justices Rajasekhar Mantha and Kesang Doma Bhutia also lamented about how enormous crowds had been seen outside puja pandals during Durga Puja last month and accordingly directed the State authorities to ensure that there is no overcrowding during the upcoming festivals. "During the Durga Puja for the year 2021, with the reduction in the Covid positive cases and the easing of the restrictions, people who have been confined and restricted at home for the prolonged lockdown, have ventured out socially, with vengeance. As a consequence of this, certain areas and popular pandals have seen enormous crowds albeit outside the entry points of the particular puja. In fact, one of such Puja had to be shut down and the concerned decorative pandal pulled down", the Court observed.

Family Law and Maintenance Cases

1. Exception Of Customary Divorce U/S 29(2) Hindu Marriage Act Not Attracted In Absence Of Declaration From Civil Court Regarding Its Validity [Krishna Veni v. Union of India & Ors]

The Calcutta High Court held that merely obtaining a customary divorce will not attract the exception envisaged under Section 29(2) of the Hindu Marriage Act. A Single Bench of Justice Sabyasachi Bhattacharyya has made it clear that the validity of such a divorce has to be established by a deed of declaration. "For Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom, to obtain the dissolution of a Hindu marriage", the Court observed.

Agreeing with the contentions raised by the Respondent, the Court further observed, "In the utter absence of any evidence, let alone conclusive, that the divorce decree executed purportedly between respondent no.11 and her deceased husband was endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted." It added, "There was nothing to prevent the petitioner from approaching the competent civil court for such declaration. The burden and initial onus lie on the petitioner to prove the existence of a custom having the force of law, to be proved by evidence - oral or documentary - in order to attract the benefit of Section 29(2) of the Hindu Marriage Act."

2. Wife Entitled To Maintenance Even If She Unilaterally Divorces Her Husband If She Is Unable to Maintain Herself [Rehena Khatoon v. Jargis Hossain]

The Calcutta High Court has ruled that a divorced wife is entitled to maintenance under Section 125 of the Code of Criminal Procedure (CrPC) even if the divorce had been unilaterally initiated by her. In the concerned case, the petitioner had challenged an order dated 18th November, 2017 passed by the Additional Sessions Judge, 5th Court, Murshidabad whereby maintenance under Section 125 of the CrPC had been denied to the petitioner. The Additional Sessions Judge had rejected such a prayer for maintenance on the ground that the petitioner had herself unilaterally granted divorce to the respondent i.e. her husband. Thus, she could not be considered to be a 'destitute' as she had 'wilfully neglected' her husband. Justice Bibek Chaudhuri noted that under the inherent power of the High Court as envisaged under Section 482 of the CrPC, the High Court could rectify any wrong committed by the Trial Court as well as the Revisional Court. Reflecting on the illegality of the impugned order, Justice Chaudhuri observed, "The Learned Trial Judge committed illegality when she held that a divorced wife is not entitled to get maintenance. The petitioner moved in revision for redrassal of the said wrong but she was again wronged by the Learned Revisional Court on the ground that the petitioner was allegedly found in compromise situation with a third person by the opposite party and accordingly she was not dutiful to her husband"

3. Calcutta High Court Relies On Hand-Written Letter Of Child Alleging Negligence, Grants Custody To CWC [Nilanjala Ghosal v. State of West Bengal]

The Calcutta High Court reiterated that in matters of custody, welfare of child must be of utmost consideration. Accordingly, it upheld removal of a child from his mother's custody on the basis of the child's hand-written letter regarding neglect and ill-treatment. Justice Shivakant Prasad opined that the welfare of a minor would triumph all other considerations by observing, "Thus, it is well-settled law in the matter of custody of the child that the paramount consideration is the welfare of the child and not right of the parents." He ordered that in the interest of child's welfare, Child Welfare Committee (CWC) Kolkata shall continue to keep the minor in their lawful custody. It however directed CWC to give visiting right to both the child's mother and father, on alternative days.

4. Can Wife Claim Maintenance After Mutual Consent Divorce And Mutually Agreed Payment Of Lumpsum As Final Settlement? Calcutta HC Refers Matter To Larger Bench [Prasenjit Mukherjee v. State of West Bengal and Ors]

The Calcutta High Court referred to a larger Bench the legal issue as to whether a wife can claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC) after the marriage has been dissolved by a divorce decree on mutual consent under Section 13B of the Hindu Marriage Act and the payment of a lump sum amount has been made to the wife as full and final settlement for past, present and future maintenance. Justice Tirthankar Ghosh made the reference after noting that there existed conflicting High Court judgments on the issue. "As the aforesaid questions involve serious ramification so far as the proceedings under Section 125 of the Code of Criminal Procedure are concerned, I am of the view that the same is to be referred and settled by a Larger Bench (as there are conflicting judgments of this Court on the point). Accordingly, the record of the case be placed before The Hon'ble The Chief Justice (Acting), High Court at Calcutta." Justice Ghosh observed.

Guardianship and Adoption

1. Calcutta High Court Invokes Clause 17 of Letters Patent To Appoint Guardian And Secure Property Of Mentally Challenged Person [Deepa Asani and Pooja Asani]

The Calcutta High Court exercised its powers under Clause 17 of the Letters Patent, 1865 to declare a person named Deepa Asani as a 'mentally challenged person' and accordingly passed direction to secure her well-being and her property. The instant plea had been filed by the daughter of Deepa Asani who prayed before the Court to appoint her as the guardian and the manager of estate of her mother. Justice Moushumi Bhattacharya opined, "Clause 17 of The Letters Patent evokes the power of the High Court as a guardian protector to preserve the rights of those who are disenfranchised - by way of mental incapacity - to approach the courts. Barring the words which are seen as inappropriate in the present times, it is a wonderfully inclusive provision which empowers the High Court to take up the cause of persons on the periphery of society" Opining on the scope of judicial inquisition in such cases, the Court observed, "It is relevant to trace the use of the word 'Inquisition' to The Mental Health Act, 1987, under which an application for judicial inquisition could be made by a class of persons for ascertaining the mental condition of a mentally ill, who holds property, for a direction for admission of that person in a psychiatric hospital." Accordingly, it was observed that Clause 17 of the Letters Patent Act is the 'only answer' in such cases wherein the High Court has to exercise authority to intervene in order to secure the rights of mentally challenged persons. 

2. Calcutta HC Grants Custody Of 4-Yr-Old Girl To Deceased Mother's Friend Over Biological Father, Grants Visitation Rights To Father [Tushar Kanti Das v. Kajal Saha]

The Calcutta High Court refused to grant custody of a four and a half years old girl child to her biological father and instead permitted the child to be in the care and protection of a family friend of her deceased mother. However, the Court has granted visitation rights to the biological father after observing that the bond between the child and her natural father ought to be encouraged from a tender age. A Bench comprising Justices Bivas Pattanayak and Joymalya Bagchi acknowledged that while the minor is well adjusted with the family friend, it is important to encourage the bonding of the minor with her biological father. "It must also be borne in mind that a bond between the child and her natural father ought to be encouraged from tender age. Such bonding is not an assertion of right of the father but a step towards wholesome development of a minor vis-a-vis her natural parents", the Court observed. While the Court acknowledged that an immediate transfer of the custody of the minor to her father may be traumatic for the child, it was important to let the minor bond with her father for the sake of her overall development. Accordingly, the Court directed, "In order to enable such a situation and ensure a balance development of the minor, we direct that the minor be handed over to the appellant at 9.00 a.m. on two consecutive Saturdays, i.e. 20th November, 2021 and 27th November, 2021 respectively from the residence of Julie Roy and the appellant shall hand back the minor to the said Julie Roy at her residence at 9.00 p.m. on those dates. The handing over and taking back of the child as aforesaid, shall be in the presence of the learned advocates-on-record of the appellant as well as the intervenor Julie Roy. It is expected that the parties shall act in terms of this order and the best interest of the child."

Arbitration and IBC cases 

1. IBC- Writ Jurisdiction Can Be Invoked Despite Availability Of Alternative Remedy If Allegation Pertains To Lack Of Jurisdiction Of NCLT [Kolkata Municipal Corporation & Anr. v. Union of India]

The Calcutta High Court held that a writ petition Article 226 of the Constitution, challenging the jurisdiction of NCLT in a matter, is maintainable despite the existence of an alternate remedy in form of appeal before NCLAT. "Although a wrongful exercise of available jurisdiction would not be sufficient to invoke the High Court's jurisdiction under Article 226 of the Constitution, the ground of absence of jurisdiction could trigger such invocation," a Single Bench of Justice Sabyasachi Bhattacharya held. The Judge relied on the Supreme Court's findings in Embassy Property Developments Pvt. Ltd. v. State of Karnataka & Ors., 2019 SCC OnLine SC 1542. "In so far as the question of exercise of the power conferred by Article 226, despite the availability of a statutory alternative remedy, is concerned, the distinction between lack of jurisdiction and the wrongful exercise of the available jurisdiction, should certainly be taken into account by High Courts, when Article 226 is sought to be invoked bypassing a statutory alternative remedy provided by a special statute", the Court observed. The Court was hearing a writ petition filed by the Kolkata Municipal Corporation, challenging the order of NCLT directing it to hand over the property of a private-Respondent, to the Liquidator.

After Arbitral Award Is Set Aside, Can The Court Appoint A New Arbitrator With Parties' Assent? Yes, Rules Calcutta High Court [Jagdish Kishinchand Valecha v. Srei Equipment Finance Limited And Anr]

The Calcutta High Court was called to decide whether a Court can appoint an Arbitrator different to the one who has passed the award challenged when the award-debtor and the award-holder both desired it. Justice Moushumi Bhattacharya, after holding that the arbitral award under challenge was liable to be set aside, drew from the emphasis of the Arbitration and Conciliation Act, 1996 (the Act) upon the autonomy of parties to find that a different arbitrator could be appointed. Drawing from Section 43(4) of the Act which recognises that all redressal-doors were to be kept open and from Section 89 of the Civil Procedure Code, which encourages the Court to participate in the formulation of the settlement terms, the Court said, "The above provisions have been highlighted as enablers for the Court to chart the future course of action where parties consent to a particular way forward. The basic premise is that the parties who have come to the Court cannot be without a remedy when they have agreed that the matter should go before a different Arbitrator. The 1996 Act does not curtail the power of a Court to mould the relief in fit cases provided the relief is not repugnant to the law as existing on that date."

2. Will Arbitral Award-Holder's Claim Be Extinguished On Approval Of Award-Debtor's Resolution Plan Under IBC? Yes, Rules Calcutta High Court [Sirpur Paper Mills Limited v. I.K. Merchants Pvt. Ltd]

The Calcutta High Court settled an important question of arbitration law, viz., whether an arbitral award holder's claim would stand extinguished upon the approval of a Resolution Plan for the award debtor's revival when it was not pressed during the Corporate Insolvency Resolution Process (CIRP). Relying on Supreme Court rulings from 2020, Justice Moushumi Bhattacharya ruled that the claim would get extinguished once the Resolution Plan was accepted by the National Company Law Tribunal. Ruling to this effect, the Court remarked, "This can be seen as a necessary and an inevitable fallout of the IBC in order to prevent, in the words of the Supreme Court, a "hydra head popping up" and rendering uncertain the running of the business of a corporate debtor by a successful resolution applicant. In essence, an operational creditor who fails to lodge a claim in the CIRP literally missed boarding the claims-bus for chasing the fruits of an Award even where a challenge to the Award is pending in a Civil Court."

3. Whether Rejection Of Application For Amendment of Counter-Statement Constitutes An 'Interim Award': Calcutta High Court Explains [Lindsay International Private Limited v. IFGL Refractories Limited]

The Calcutta High Court while hearing an appeal to an impugned order expounded in detail on whether an interim relief granted by an Arbitrator would constitute an 'interim award' thereby allowing it to be set aside under Article 34 of the Arbitration and Conciliation Act, 1996. Justice Bhattacharya noted that the impugned order not being an 'Award' is not amenable to challenge under Section 34 of the Act and therefore dismissed the petition. "Having found that the counter-claim of Lindsay was beyond the scope of the arbitration agreement and the arbitral tribunal could, therefore, not make an interim arbitral award based on the counterclaim, the impugned order dated 15th October, 2020 falls outside the purview of the recourse available for setting aside an arbitral award under Section 34 of the Act. Due regard has been given to the definition of an award under Sections 2(c) and 31(6) read with 23(2A) of the Act", the Court concluded.

4. What Is The Ambit Of Inquiry U/S 48 Of Arbitration Act For Refusing Enforcement Of A Foreign Award? Calcutta High Court Explains [EIG (Mauritius) Limited v. McNally Bharat Engineering Company Limited]

The Calcutta High Court recently had the opportunity to expound on the scope of inquiry for resisting the enforcement of a foreign award under Section 48 (2)(b) in Part II of The Arbitration and Conciliation Act, 1996 (Act). Justice Moushumi Bhattacharya was adjudicating upon an application for enforcement of a foreign arbitral award dated June 19, 2020 and an addendum dated October 26, 2020 moved by the petitioner (EIG Mauritius) against the respondent (McNally Bharat Engineering Company Limited ). However, such a prayer for execution had been opposed by the respondent on the ground that the enforcement would be contrary to the public policy of India, specifically the fundamental policy of Indian law, since enforcing a Put Option available to the petitioner violates The Foreign Exchange Management Act, 1999 (FEMA) and the Securities Contracts (Regulation) Act, 1956. "For an Arbitral Award as complete and comprehensive as the one under consideration, any further inquiry into the transaction documents or the construction of the relevant clauses therein or the events culminating in the dispute or even the provisions of the SCRA or the FEMA would amount to an exercise which has precisely been taken out of the present statutory framework. To repeat, the contravention of the law must be such that no further discussion would be warranted to dislodge the finding of contravention. In other words, the enforcement of the Award should be clearly and manifestly contrary to Indian law. The subtle distinction between the 'enforcement' of an award being put to the test in Section 48 as opposed to the 'Award' itself having to pass muster under Section 34 further reins in all possible enquiries on the relevant factual matters on the aspect of contravention of fundamental policy of Indian law", the Court elucidated further.

5. Section 9 Arbitration Act Will Apply To Foreign Arbitration Unless Expressly Excluded By Parties In Arbitration Agreement [Medima LLC v. Balasore Alloys Limited]

The Calcutta High Court held that choosing foreign law to govern an arbitration would not in itself exclude the application of Section 9 of the Arbitration and Conciliation Act, 1996 (Act) unless parties specifically exclude its application in the arbitration agreement. Section 9 permits parties to approach Indian courts for interim protection or reliefs. Justice Moushumi Bhattacharya was adjudicating upon a plea wherein the issue before the Court was whether the 'governing law' clause contained in the agreement for referring disputes between the petitioner and the respondent to arbitration before the International Chamber of Commerce (ICC) excludes the operation of section 9 of the Act. "Simply put, there must be something more to an arbitration agreement governed by a foreign law and with a foreign seat; the agreement must indicate in clear and express terms that the parties intend to exclude the operation of section 9 from the purview of the said arbitration agreement (underlined for emphasis). Hence, an arbitration agreement which merely chooses the law governing the underlying agreement, the arbitration and the conduct thereof without anything more cannot be seen as excluding the application of Section 9 by implication and closing the gates to Section 9 or the scope of the proviso to 2(2) of the Act", the order read.

Election petitions and By-polls cases

1. Calcutta High Court Dismisses Plea Against BJP's 'Parivartan Rath Yatras' [Ramaprasad Sarkar v. Union of India and others]

The Calcutta High Court dismissed a plea moved before it against Bharatiya Janata Party (BJP)'s 'Rath Yatra' in poll-bound West Bengal. The Bench of Justice Rajesh Bindal and Justice Aniruddha Roy was hearing the plea of one Rama Prasad Sarkar, a lawyer by profession, seeking High Court's intervention to prevent BJP from holding the "Rath Yatras" in the State. Noting that when the writ petition was filed in this court, the representation filed by the petitioner may not have even been received by the addressees therein, even if sent by the petitioner the Court remarked, "It is clearly established that the present writ petition has been filed by none else than a practicing advocate in this court, who is a member of the Calcutta High Court Trinamul Law Cell, the political party in power at present in the State of West Bengal."

Importantly, the Court said, "Filing of a writ petition by an advocate, who is directly connected with a political party in power raising issues against other political party during election time cannot be said to be in larger public interest. It can be said to be a private interest litigation." Lastly, the Court observed that it is for the authorities in the State to have considered the issues. The Court also noted that a number of political rallies are being held at different places in the State.

2. "Election Commission To Ensure Free & Fair Elections", Calcutta High Court On West Bengal Assembly Polls [Bimal Kumar Chatterjee v. Election Commission of India & Ors]

Recording the Election Commission's submission that it would ensure that West Bengal Assembly Elections are conducted in a free and fair manner, the Calcutta High Court disposed of a PIL that raised apprehension over conduct free and fair election in the State of West Bengal. The Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Shampa Sarkar noted in its order that it is within the domain of the Election Commission of India to ensure a free and fair election in the constituencies, where a notification has been issued by the Election Commission of India. "Guarantee in terms of the Constitution which governs the elections in the context of the constitutional backdrop in which the legislations are placed necessarily emboldens the Election Commission of India to be in complete control of the election process, thereby meaning that ensuring free and fair elections will be the topmost goal of the Election Commission of India, once it notifies the election", the Court observed. Noting that it is for the Election Commission of India to ensure free and fair election with lawful authority, the Court said, "It is also the well-accepted proposition including the jurisdiction that the Courts will loathe interference in the matters touching elections, once a notification is issued and until the electoral process is completed and the results are declared."

3. WB Assembly Polls 2021- Calcutta High Court Sets Aside Election Commission's Rejection Of Trinamool Congress Candidate's Nomination [Ujjwal Kumar v. Chief Election Commissioner & Ors]

Setting aside the Election Commission's (EC) decision to reject the nomination of Trinamool Congress candidate Ujjwal Kumar from the Joypur constituency in Purulia district, the Calcutta High Court permitted him to contest polls based on his nomination papers. The Bench of Justice Sabyasachi Bhattacharyya was hearing the plea of Kumar who challenged EC's decision rejecting his candidature, citing "errors" in Kumar's affidavit (Based on the Returning Officer's order). Having heard the Counsel for the petitioner, the Court observed that the "defects" pointed out by the concerned Returning Officer were not defects in the true sense of the term in so far as the columns which were not filled up by the petitioner were not applicable to the petitioner at all.

The Court formed this opinion in view of the fact that the petitioner, having disclosed that the petitioner does not have any Government accommodation and the name of the third dependent being merely academic in view of there being no first and second defendant of the petitioner. "It appears from the relevant documents cited by learned senior counsel for the petitioner, that the defects pointed out by the authorities were not of a substantial nature at all", noted the Court.

4. Alleged Violence Against BJP Worker- "Ensure No Atrocities Against Her; Article 19 Guarantees Free Movement": Calcutta High Court To Police [Sankari Das v. The State of West Bengal & Ors]

While dealing with a complaint of a member of Bhartiya Janta Party, who alleged that due to her political affiliation, she became the victim of post-poll violence, the Calcutta High Court directed local Police Station to give her protection. Noting that allegedly her house had been destroyed and she was unable to enter into her locality, the Bench of Justice Biswajit Basu observed, "Article 19(1)(d) of the Constitution of India guarantees free movement of every citizen throughout the territory of India." Before the Court, she alleged that although she had lodged complaint with the local Police Station but no action has been taken in response to her said complaint. Thus, she sought a direction upon the Officer-in charge Tangra Police Station (respondent no. 5) to take appropriate steps on the basis of her said complaint.

5. "Prima Facie Case Made Out": Calcutta HC Issues Notice To BJP's Ashoke Dinda On TMC Leader's Plea Challenging His Election Win [Sangram Kumar Dolai v. Ashoke Dinda]

The Calcutta High Court issued notice to Bharatiya Janata Party MLA from Moyna Constituency and Cricketer Ashoke Dinda on the election plea filed by All India Trinamool Congress' leader Sangram Kumar Dolai. Sangram Dolui had lost to BJP's Ashok Dinda by 1,260 votes in Moyna Constituency and thus, in his election plea, he had alleged irregularities in counting. Hearing the matter, Justice Tirthankar Ghosh observed thar prima facie, a case had been made out for issuance of notice against the respondent. Accordingly, under Rule 24 of the Election Petition Rules, 1967, notice was directed to be issued to the necessary parties.

6. 'Arbitrary and Illegal': Calcutta High Court Quashes No Confidence Motion Against Nandigram Panchayat President [Pabitra Kar v. State of West Bengal]

The Calcutta High Court quashed a 'no confidence' motion initiated against Pabitra Kar, President of Boyal-I, Gram Panchayat in the District of Purba Medinipur by the majority of the Panchayat members. Pursuant to the motion of 'no confidence, the Prescribed Authority and the Block Development Officer in the exercise of powers conferred under Rule 5B of the West Bengal Panchayat (Constitution) Rules, 1975 had issued a notice dated May 21, 2021, for conveying a meeting on June 7, 2021, at the Panchayat office. This notice was under challenge in the instant petition. Justice Arindam Mukherjee while setting aside the impugned notice observed that the Prescribed Authority had failed to comply with its statutory obligations under Section 12 of the West Bengal Panchayat Act, 1973 and accordingly observed, "The Prescribed Authority in the instant case has failed to do an act as provided under Section 12(2) and 12(3) of the said Act. Looking at the matter from both the angles i.e., if it is an administrative action then it is arbitrary and irrational, if it is quasi-judicial then the action of respondent no.3 is tainted with illegality for not having done an act in the manner specified in the statute."

7. Suvendu Adhikari's Security Arrangement Well Maintained By State Govt As Per Rules: Calcutta High Court [Suvendu Adhikari v. State of West Bengal]

Taking into account a report submitted by the West Bengal State Government, the Calcutta High Court observed that the security arrangement of Suvendu Adhikari, BJP MLA and Leader of Opposition, was being well-maintained according to the scale of Z category protectee as per the "Yellow Book" by the Government of West Bengal. The Bench of Justice Shivakant Prasad was hearing the plea of Adhikari seeking state's report as to why his security cover was withdrawn on May 18. The Court also observed that there was no denial by the Advocate General in the matter of security arrangement in favour of Adhikari and his entitlement as the Leader of Opposition in the Assembly holding rank of a cabinet minister. Further, the Court said that the report from the State, in crystal terms, spoke of arrangement which had been made for his security even while on visit to different places and security vigil is always there. Thus, the Court opined that Adhikari, being provided with Z category security arrangement, is well-maintained according to the scale of Z category protectee as per the "Yellow Book" by the Government of West Bengal in terms of the report of the Director Security, Government of West Bengal.

Also Read: Calcutta High Court Directs State To File Report On Withdrawal Of Security Of BJP MLA Suvendu Adhikari

8. 'Voice Of The Majority Should Be Honoured': Calcutta High Court Refuses To Interfere With No Confidence Motion Against Malda Zilla Parishad President [Gour Chandra Mandal Vs. The State of West Bengal & Ors]

The Calcutta High Court dismissed the plea of Gour Chandra Mandal, President of the Malda Zilla Parishad to withhold a meeting scheduled for July 8 to discuss a no-confidence motion against him. The notice of no confidence was served to Mandal by 23 members of the 38 strong district council. Justice Shampa Sarkar while dismissing the plea observed, "..an institution (read as "Zilla Parishad") must run on democratic principles and all persons heading such public bodies could continue to hold office provided they enjoyed the confidence of the persons who comprise such bodies. This is the essence of the democratic republicanism." "Since the Sabhadhipati is an elected post, he has to accept any decision that may be taken in a democratic process. In a democracy, the voice of the majority should be honoured. Otherwise, the entire function of the democracy would collapse. In this case, as majority of the members have requisitioned a meeting for removal of the petitioner on the ground of lack of confidence on the Sabhadhipati. I am not inclined to set aside the notice and the process initiated, as the petitioner has failed to show statutory non-compliances and any other illegality", the Court concluded.

9. 'Arbitrary and Illegal': Calcutta High Court Quashes No Confidence Motion Against Nandigram Panchayat President [Pabitra Kar v. State of West Bengal]

The Calcutta High Court quashed a 'no confidence' motion initiated against Pabitra Kar, President of Boyal-I, Gram Panchayat in the District of Purba Medinipur by the majority of the Panchayat members. Pursuant to the motion of 'no confidence, the Prescribed Authority and the Block Development Officer in the exercise of powers conferred under Rule 5B of the West Bengal Panchayat (Constitution) Rules, 1975 had issued a notice dated May 21, 2021, for conveying a meeting on June 7, 2021, at the Panchayat office. This notice was under challenge in the instant petition. Justice Arindam Mukherjee while setting aside the impugned notice observed that the Prescribed Authority had failed to comply with its statutory obligations under Section 12 of the West Bengal Panchayat Act, 1973 and accordingly observed, "The Prescribed Authority in the instant case has failed to do an act as provided under Section 12(2) and 12(3) of the said Act. Looking at the matter from both the angles i.e., if it is an administrative action then it is arbitrary and irrational, if it is quasi-judicial then the action of respondent no.3 is tainted with illegality for not having done an act in the manner specified in the statute."

9. West Bengal Assembly Polls: Calcutta High Court Issues Notices On Election Pleas By Two BJP Leaders [Swadhin Kumar Sarkar v. Chandana Sarkar]

Admitting two Election Petitions filed by the Bharatiya Janata Party's Swadhin Kumar Sarkar and Kalyan Chaubey challenging the election win of their opponents from their respective constituencies, the Calcutta High Court issued notice to the winning candidates. Swadhin Kumar Sarkar (BJP) was defeated by Trinamool Congress' Candidate Chandana Sarkar by 2426 votes from the Baisnabnagar constituency. Kalyan Chaubey (BJP) was defeated by Trinamool Congress' Candidate Sadhan Pande by 20,000 votes from the Maniktola constituency. Having perused their election plea, the Bench of Justice Jay Sengupta (hearing Kalyan Chaubey's plea) and Justice Amrita Sinha (hearing Swadhin Kumar Sarkar's plea) said: "Let notice be issued in terms of Rule 24 of the Election Petition Rules, 1967 as framed by this Court." In both the election plea, the Court has directed that all the equipment, devices, documents both physical and in the electronic form in connection with the election under challenge shall be preserved by the concerned authority till the disposal of the Election Petition.

10. Calcutta High Court Refuses To Interfere With Bhabanipur Bypolls Date; Admonishes Chief Secretary For Writing To ECI To Expedite Elections [Sayan Banerjee v. The Election Commission of India and Ors]

The Calcutta High Court dismissed a challenge made to the decision of the Election Commission of India (ECI) to prioritize the bye-elections of Bhabanipur Assembly Constituency from where the Chief Minister of West Bengal Mamata Banerjee is set to contest on September 30. A Bench comprising former Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj however passed adverse comments against the Chief Secretary of the West Bengal Government for writing to the ECI seeking to expedite the Bhabanipur bypolls. Expressing strong reservations against the conduct of the Chief Secretary, the Bench observed, "The most offensive part is the conduct of the Chief Secretary, who projected himself to be more as a servant of the political party in power than a public servant, whereby he stated that there would be constitutional crisis in case election to Bhabanipur Constituency is not held from where respondent No. 5 wants to contest election. What constitutional crisis the Government could face with one person losing or winning election, was not explained. How the Chief Secretary knew that the respondent No. 5 was to contest election from Bhabanipur Assembly Constituency? He was not a party spokesman or a returning officer." Declining to interfere with the decision of the ECI to hold the Bhabanipur Assembly constituency elections, the Court opined, "As the process of election was initiated with the issuance of press note dated September 04, 2021 and the polling has to be held on September 30, 2021 we do not find it appropriate to interfere with the decision of the Commission to hold by-election to Bhabanipur Assembly Constituency at this stage".

Also Read: Calcutta High Court Questions Election Commission For Expediting Bhowanipore Bypolls, Where Mamata Banerjee Contests

Education

1. Calcutta High Court Issues Interim Stay On Teacher Recruitment Process For Upper Primary Schools [Abhijit Ghosh v. State of West Bengal and Ors]

The Calcutta High Court imposed an interim stay on West Bengal government's ongoing process of recruitment of teachers for primary schools till the next date of hearing which is slated to take place on July 2. In December 2020 Justice MoushumiBhattacharya had set aside the 1st State Level Selection Test, 2016 for recruitment of Assistant Teachers in upper primary schools in the State of West Bengal, citing several irregularities in the recruitment process. Accordingly, the nodal agency i.e. the West Bengal Central School Commission (SCC) had been ordered to conduct a fresh selection process for all eligible candidates. In the plea filed before Justice AbhijitGangopadhyay, it was alleged that the SCC had again committed irregular distribution of marks amongst the candidates. The petitioner had alleged that in spite of obtaining higher marks than the respondent, he had not been included in the interview list. "No explanation has been given as to how the private respondent can be included in the interview list but the petitioner has not been included in the said list though the petitioner has obtained higher marks than the private respondent. In such circumstances, I direct SSC not to take any further steps in the selection process they have initiated pursuant to the order passed by this Court on 11th December, 2020 in WPA 9597 of 2019 and other related matters until further orders", the Court observed.

Also Read: Transparency Required In Government Actions': Calcutta High Court Extends Interim Stay On Teacher Recruitment Process For Upper Primary Schools Till July 9

2. Calcutta High Court Reprimands West Bengal School Service Commission (WBSSC), Seeks Personal Attendance Of Chairman [Md. Sarikul Islam v. The State of West Bengal & Ors]

The Calcutta High Court came down heavily on the West Bengal School Service Commission (WBSSC) for its failure to make appearance and file representation pursuant to Court orders. The Court was hearing a plea regarding irregularities in the recruitment process of Assistant Teachers in Upper Primary schools in the State of West Bengal. In its earlier order dated 30th June the Court had imposed an interim stay on the ongoing recruitment process. In the concerned case, the petitioner had submitted that in spite of getting more marks than the respondent in the 1st State Level Selection Test, 2016 (SLST, 2016) for recruitment of Assistant Teachers in Upper Primary school, his name had not been mentioned in the interview list. He had calculated his marks in accordance with the table enumerated in the West Bengal School Service Commission Rules of 2016 as published in the gazette on September 20, 2016. The Court observed that although notice had been issued to the WBSSC on 25th June, 2021 no representation had yet been made in this regard. Expressing his anguish, Justice Abhijit Gangopadhyay remarked, "From the affidavit of service it appears that it has been received by the School Service Commission on 25th June, 2021. Today we are on 2nd July, 2021, but the School Service Commission is neither represented by any learned advocate nor there is any instruction given to the learned advocate for the State who are present. It is a matter of great regret that though the matter is pending from 2016, the School Service Commission is not sincere enough for assisting the court by appearing in this matter." Consequently the Court directed the Chairman, West Bengal Central School Service Commission to be personally present at 2:30 p.m for further adjudication of the dispute. 

3. Calcutta High Court To Decide On Permitting Schools To Expel Students For Fees Defualt Without Good Cause [Case: Rajib Chakraborty & Ors. v. State of West Bengal & Ors.]

The Calcutta High Court said that it will decide on permitting school authorities to expel students for non-payment of fees in the absence of good cause shown for default. The Court will decide on this issue on the next date of hearing which is slated to take place on August 6. A Bench comprising Justice I. P. Mukerji and Justice Moushumi Bhattacharya observed, "We make it clear that if on the returnable date we find that such default is continuing, we shall, after hearing any representation on behalf of the students and in the absence of good cause being shown, permit the schools to remove the name of those defaulters whose name is in the said list, from the rolls of the school." The Court was hearing 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.

Also Read: Calcutta High Court Orders Payment Of 50% Outstanding School Fees, Court Will Consider To Permit Action In Case Of Default

Also Read: Students Have To Pay Full School Fess By October 25, Rustication Or Bar On Taking Exams Not Allowed For Non-Payment

4. 20% Reduction In Private School Fees To Continue Only Till March 15, 2022: Calcutta High Court [Rajib Chakraborty & Ors. v. State of West Bengal & Ors]

The Calcutta High Court on Friday observed that the previously stipulated 20 percent reduction in fees charged by private schools would end on March 15, 2022, owing to the abatement of the pandemic and the resumption of substantial normal activities. The Court further ruled that students will be permitted to resume classes after March 15, 2022, only if the fees and charges specified by the school are paid. 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. "With the Covid-19 pandemic showing signs of abatement and with the resumption of substantial normal activities in the new-normal period, the time has come, to assess how our order dated 13th October 2020, as modified from time to time, should be further adapted to suit the changed conditions", the Bench observed. 

Also Read: 'Students Should Not Suffer': Calcutta High Court Bars Rustication Of Students, Withholding Of Admit Cards, Results For Non-Payment Of Fees

5. Calcutta High Court Lifts Stay On Teacher Recruitment Process For Upper Primary Schools, Issues Directions To Expedite Process [Abhijit Ghosh v. State of West Bengal & Ors.

The Calcutta High Court lifted the interim stay order that had been imposed on the West Bengal government's ongoing process of recruitment of teachers for primary schools. Justice Abhijit Gangopadhyay vide an earlier order dated June 30 had imposed an interim stay on the recruitment process in light of the emerging allegations involving irregularities in the marking scheme and selection process. Justice Gangopadhyay opined that the West Bengal School Service Commission had complied with the directions issued and accordingly observed, "As the Court's order passed on 2nd July, 2021 has been complied with by the Commission within the timeframe, I recall the restraining order put upon the Commission from taking further steps pursuant to the interview list. Now there is no such restraining order on the Commission and the Commission is free and expected to take steps immediately so that recommendations can be made by the Commission to the interview-listed candidates."

6. 'Total Disrespect To The Court Which Is A Dangerous Trend': Calcutta HC Imposes Rs 3.8 Lakh Costs On WB Primary Education Board President [Payal Bag & Others v. State of West Bengal & Others]

The Calcutta High Court imposed costs to the tune of Rs 3.8 lakhs on the President of the West Bengal Board of Primary Education Manik Bhattacharya on finding that there was an attempt to distort an earlier order of the Court pertaining to the Primary Teacher Eligibility Test (TET) of 2014 in order to avoid compliance. Justice Abhijit Gangopadhyay observed that the respondent authority had deliberately tried to distort the clear and unambiguous operative part of the Court's earlier judgment thus committing serious illegality. "I find that the respondents are desperately trying to distort the clear and unambiguous operative portion of the said judgment and order passed by the said writ court for no reason at all, except harassing the candidates/petitioners who came before this court and pointed out the errors and wrongs committed by the respondents…The respondents have shown the courage of fools to modify the clear and unambiguous order of the court and have instead followed their own which wholly shows. The respondents have done so and the President of the Board is a respondent here", the Court observed. Accordingly, the Court ordered the President of the Board to pay Rs. 20,000 to 19 petitioners individually within 2 weeks from the communication of the order copy.

7. 'Central Commission Has Lost All Control Over Regional Commission': Calcutta HC Seeks Personal Attendance Of Secretary, WB Central Service Commission [Sandeep Prasad & Ors v. State of W. B. & Ors]

The Calcutta High Court directed the Secretary of the West Bengal Central Service Commission to appear in person before the Court on Wednesday while hearing a batch of petitions citing irregularities in the appointments of 'Group C' and Group D' non-teaching staff in State government-aided Secondary and Higher Secondary schools. The Court took on record a report filed by the School Service Commission wherein the Commission had admitted that the panel and the waiting list for the posts of 'Group-C' and 'Group-D' expired on 4th May, 2019. A notification published by the West Bengal Central School Service Commission on September 2, 2019 also makes a similar assertion, the Court noted. Justice Abhijit Gangopadhyay observed, "I direct the Secretary of the West Bengal Central Service Commission to be present personally with copies of all recommendation letters of the candidates in the bunch of papers handed over to the Commission by the learned advocate for the petitioners. The Secretary should come prepared to certify the copies of the recommendation letters as true copies thereof." "From the said affidavit it is also found that the Commission wanted to know from the concerned Regional Commissions as to how three candidates were recommended from the expired panel but got no reply from the concerned region. This shows that the Central Commission has lost all control or has no control over the particular Regional Commission", the Court observed further.

Also Read: Foul Play': Calcutta HC Contemplates Setting Up Inquiry Panel Headed By Rtd. HC Judge To Monitor Irregularities In Non-Teaching Staff Appointments By State Gov

8. 'Corruption Writ Large': Calcutta High Court Orders CBI Probe Into Irregularities In Non-Teaching Staff Appointments In WB Gov Sponsored Schools [Sandeep Prasad & Ors v. State of W. B. & Ors]

The Calcutta High Court ordered the Central Bureau of Investigation (CBI) to conduct a preliminary inquiry into the alleged irregularities in the appointment of 'Group-C' and '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. Justice Abhijit Gangopadhyay directed the CBI to submit a preliminary report in this regard by December 21. The Court also ordered for an enquiry committee to be set up to probe into the alleged irregularities in appointments. "I direct the Director, Central Bureau of Investigation to constitute a committee, headed by an officer not below the rank of a Joint Director, with officers not below the rank of DIG to initiate the enquiry. It is expected that no person will be left out of this enquiry. CBI should also enquire a very important part of this serious illegality and irregularity as to whether there is any money trail in issuance of such recommendation letters and subsequent issuance of appointment letters to the persons", the Court observed.

Also Read: WB Gov Moves Division Bench Of Calcutta HC Challenging Single Bench's Order On CBI Probe Into Irregularities In Non-Teaching Staff Appointments

Also Read: Calcutta High Court Stays Single Bench's Order On CBI Probe Into Irregularities In Non-Teaching Staff Appointments For 3 Weeks

9. Calcutta High Court Quashes Single Bench's Order On CBI Probe Into Irregularities In Non-Teaching Staff Appointments In WB Gov Sponsored Schools [West Bengal Board Of Secondary Education and Anr v. Sandeep Prasad and Ors]

The Calcutta High Court quashed a Single Bench order wherein a Central Bureau of Investigation (CBI) probe had been ordered 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). Justice Abhijit Gangopadhyay had directed the CBI to submit a preliminary report in this regard by December 21. The Division Bench comprising Justices Harish Tandon and Rabindranath Samantaset aside the impugned order and further set up an inquiry committee headed by Justice Ranjit Kumar Bagh, former judge of the Calcutta High Court. The other members of the committee include Asutosh Ghosh, Member of West Bengal School Service Commission, Paromita Roy, Deputy Secretary (Administration), West Bengal Board of Secondary Education and advocate Arunava Banerjee, a practicing lawyer of the High Court. The Court further directed the inquiry panel to submit a report in this regard within 2 months.

Income Tax, GST and other connected matters  

1. Calcutta HC Issues Notice To Centre, State On Challenge Against The Constitutionality of Rule 86A of CGST Rules [MRS Realty Private Ltd. & Anr. v. Union of India & Ors]

A writ petition has been filed before the Calcutta High Court challenging the constitutional validity of Rule 86A of the Central Goods and Services Tax Rules, 2017 (CGST Rules) and its concurrent provision in the state legislation i.e. the West Bengal Goods and Services Tax Rules, 2017 (WBGST Rules). The petition also prayed for the reading down of the Section 16(2)(c) of the Central Goods and Services Tax Act, 2017 (CGST Act) and its parallel provision in the West Bengal Goods and Services Tax Act 2017 (WBGST Act). Justice Md. Nizamuddin directed both the union as well as the state government to file affidavits by observing, "Since the Constitutional validity of both Central and State Act has been challenged, the petitioners have to serve notice upon the Attorney General of India as well as Advocate General of the State of West Bengal." Further, the Court declined to pass any such interim orders at the present stage of proceedings by observing, "The interim orders as prayed for by the petitioners is same as final relief, which according to this court cannot be granted at the motion stage and furthermore, quashing of the proceedings also cannot be done at the motion stage. It is also settled position of law that every piece of legislation is presumed to be legal and valid so long it is not declared invalid by any court of law."

2. Calcutta High Court Stays TDS Collection Under Section 194N Income Tax Act Till Sep 30 [Apeejay Tea Ltd. Anr. v. Union of India & Ors]

The Calcutta High Court passed an interim order restraining the Income Tax Department from collecting Tax Deduction at Source (TDS) under section 194N of the Income Tax Act, 1961. Justice Md. Nizamuddin was adjudicating upon a plea challenging the constitutional validity of the provision which was inserted by the Finance Act, 2019 and became effective from September 1, 2019. The provision mandates the deduction of tax at source at the rate of 2% on cash withdrawals from, inter alia, a banking company exceeding Rs 1 crore in a financial year. In the instant case, the petitioner had challenged the constitutional validity of the provision on the ground that the levy is beyond the legislative competence of the Parliament. Entry 82 of List I of Schedule VII of the Constitution allows the Parliament to enact laws for imposition, collection, and levy of tax on "income". As a result, the Parliament cannot legislate a provision stipulating the deduction of tax at source from an amount which is admittedly not 'income'.Accordingly, an interim stay was imposed on the respondent authorities restraining them from deducting tax on source on the basis of the aforesaid provisions till September 30, 2021.

3. Calcutta HC Issues Notice On Plea Challenging The Validity of The Taxation And Other Laws (Relaxation And Amendment Of Certain Provisions) Act, 2020 [Bagaria Properties and Investments Private Ltd. v. Union of India]

The Calcutta High Court issued notice on a plea challenging the constitutional validity of the provisions of The Taxation And Other Laws (Relaxation And Amendment Of Certain Provisions) Act, 2020. In the concerned plea, the petitioners have also challenged two notices dated May 29, 2021 and June 18, 2021 served to them by the Assessing Officer pertaining to the assessment years 2014-15 and 2015-16 respectively. The petitioners contended that before issuing such notices under Section 148 of the Income Tax Act, 1961 (Act), mandatory provisions of Section 148A of the Act have not been complied with. Taking cognisance of the non-compliance, Justice Md. Nizamuddin observed, "In the meanwhile, respondents are restrained from proceeding any further on the basis of the aforesaid impugned notices dated 29th May, 2021 and 18th June, 2021 being Annexures 'P-4' and 'P-5' to the writ petition."

4. Cancelling GST Registration On 'Hyper-Technical' Grounds Causes Revenue Loss, Aggravates Unemployment [M/s. CIGFIL Retail Pvt. Ltd. v Union of India & Ors]

The Calcutta High Court observed that cancellation of GST registration of businesses on hyper-technical grounds causes revenue loss for the State and aggravates unemployment. Accordingly, the Court directed that a 'reasoned order' must be passed while canceling GST registration and that opportunity of hearing must be given to the concerned parties. Justice MD Nizamuddin observed, "In view of the facts and circumstances of the case that it is not a case of tax evasion or causing revenue loss to the Government rather petitioner's activity of carrying on the business which cannot be called illegal is creating revenue for the State as well as in helping the State to solve the problem of unemployment a little bit and such type of drastic action in the facts and circumstances of the case by canceling the registration of the petitioner on such hyper technical ground will not help the State rather it will cause revenue loss to the State as well as aggravate unemployment problem in the State which will be a social problem in the society". The Court was adjudicating upon a plea moved by M/s. CIGFIL Retail Pvt. Ltd. whose registration under GST had been canceled by the authorities under the provisions of Section 29(2) of the State GST Act.

Habeas Corpus and Protection Pleas

1. Approach UNHCR Over 4 Rohingyas Who Have Served Their Sentence But Remain In Jail: Calcutta High Court Asks State Govt. & UOI [Nur Mahammad & Ors. v. Union of India & Ors]

The Calcutta High Court asked the West Bengal Government & Union of India to take requisite steps to move the United Nations High Commissioner for Refugees (UNHCR) in connection with the case of 4 Rohingyas who have served their sentence but continue to remain in prison. The Bench of former Chief Justice Thottathil B. Radhakrishnan & Justice Arijit Banerjee was hearing a plea seeking the issuance of Habeas Corpus Writ by 4 Rohingyas. Importantly, it was stated before the Court that having served the entire sentence, they continue to be housed in the Dum Dum correctional home. Their plea was that they may be moved to an open jail or be provided some modalities to be saved from continued incarceration.

The Court noted the submission of OSD & Ex-Officio DG & IG, Correctional Services, West Bengal that the West Bengal Correctional Services Act, 1992 excludes the facility of open jails in such a way that persons who are not residents of West Bengal cannot be housed in open jails. In this backdrop, the Court said, "In the aforesaid facts and circumstances, noticing in particular that the petitioners have not been found guilty or sentenced on any other count except under the Foreigners Act, we are of the view that it is for the Government of the State of West Bengal and the Government of the Union of India to take requisite steps to move the United Nations High Commissioner for Refugees (UNHCR) to consider the cases of the four petitioners for appropriate ameliorative action at that end."

2. 'Ensure They Are Able To Live Peacefully': Calcutta High Court Grants Police Protection To Inter-Religious Married Couple [Rokeya Khatun @ Rokeya Das v. State of West Bengal]

The Calcutta High Court granted police protection to an inter-religious married couple against the family members of the wife after noting that the wife was a major. Justice Rajasekhar Mantha was adjudicating upon a plea moved by a 18 year old girl seeking protection for herself and her husband against her family members who had objected to their inter-religious marriage. The petitioner had contended that there existed threat to her life and that of her husband since their marriage was inter-religious in nature. On the other hand, the parents of the petitioner had contended that the petitioner had been instigated to get married by the family members of her husband. Justice Mantha placed reliance on the instructions received by the government counsel from the Inspector-in-Charge, Deganga Police Station, North 24-Parganas wherein it had been verified that the petitioner is 18 years plus and a major. Thus, the Court granted police protection to the couple by directing the police authorities to ensure that the couple lives peacefully. "In view of the matter, the Officer-in-Charge, Pragati Maidan Police Station is hereby directed to ensure that the petitioner and her husband are not in any way harmed and are able to live peacefully", the Court remarked.

3. 'Take Immediate Measures To Repatriate Victim To India': Calcutta High Court Directs Union In A Case Of Trafficking Of Girl From India To Bangladesh [Iti Pandit v. Union of India & Ors]

The Calcutta High Court came to the aid of a victim girl who had been trafficked to Rangpur, Bangladesh by directing the Central government to immediately take concrete measures to ensure immediate repatriation of the victim to India. Justice Rajasekhar Mantha further extended a request to the High Commissioner of Bangladesh is India to shift the victim girl from Sheikh Russel Child Training and Rehabilitation Centre, Rangpur, Bangladesh to any other secure location and ensure that the victim returns safely to India. The Court further impleaded the National Investigating Agency (NIA) as a respondent party in the instant proceedings. "This Court extends a request to the Hon'ble High Commissioner of Bangladesh is India to shift the victim girl from Sheikh Russel Child Training and Rehabilitation Centre, Rangpur, Bangladesh to any other secure location. The High Commissioner is also requested to kindly ensure that the victim girl returns to India", the Court observed. Taking cognisance of the grievance raised, the Court directed the Inspector-inCharge, Kotwali Police Station, KPD, Nadia to hand over the report of investigation to the counsel appearing for the Union of India. Furthermore, the Union was directed to take immediate steps to ensure immediate repatriation of the victim to India.

Prison Facilities/Criminal Justice System Reforms 

1. Terminally Ill Prisoners Need Sympathy, Should Be Permitted To Breathe Their Last In Comforting Company Of Family/Friends [The Court in its own motion: In re: Overcrowding in prisons]

While underlining that even prisoners are entitled to be treated in a humane manner, the Calcutta High Court directed State Government to hand over terminally ill prisoners (identified by it in its affidavit dated October 9, 2020) to their next of kins so that they can be nursed and extended due comfort at their respective homes. The Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee, in the suo-moto case (In re: Overcrowding in prisons), was dealing with the issue related to the manner in which Terminally Ill Prisoners (TIPs) are required to be dealt with. While noting that prisoners cannot be treated as inhuman objects and certain basic facilities must be made available to them, the Court said, "We are of the view that a prisoner suffering from terminal illness should be treated with sympathy and should be permitted to breathe his last in the comforting company of his family and friends, if, and to the extent, possible. For this purpose, in an appropriate case, the Government may shift a TIP to his home with a direction that he will be kept confined there."

The Court further averred, "The jurisdictional police will keep a vigil that the concerned person does not step out of his home. The prison authorities may also require the next of kin of the TIP to execute personal bonds guaranteeing that the concerned TIP shall not leave his home. That way, the concerned TIP will receive the love and affection from his near and dear ones and will end his earthly mission with relatively more peace in mind." In extremely special cases, the Court noted, a person can be kept imprisoned in his own home. In very exceptional circumstances, subject to the satisfaction of the competent judicial authority and the State Executive on humanitarian and compassionate grounds, an under-trial prisoner or a convict who is serving his sentence in prison and who is staring at death from very close quarters, and counting his days in this world, could be handed over to his next of kins for keeping him confined within the four walls of his home.

2. Production Of Police Station CCTV Footage Can't Be Ordered At The Drop Of A Hat Compromising Secrecy Of Other Investigations [Bikash Mondal v. State of West Bengal and others]

Noting that when there are specific allegations and prima facie material regarding custodial torture, then CCTV footage of police stations is undoubtedly necessary, the Calcutta High Court observed. "(Production of CCTV footage) cannot be directed at the drop of a hat, thereby compromising the secrecy of other investigations going on in the concerned police station", the Court observed. Justice Sabyasachi Bhattacharyya was hearing the plea of one Bikash Mondal who levelled serious allegations against the police authorities in his writ petition.

The Court, in its order noted that there was no material on record even to prima facie establish that any unnecessary/unlawful force was used on the petitioner's daughter or that she suffered from any injury, let alone serious. Importantly, the Court said, "CCTV footage of police stations, although undoubtedly necessary in the event there are specific allegations and prima facie material regarding custodial torture, cannot be directed at the drop of a hat, thereby compromising the secrecy of other investigations going on in the concerned police station." Further, the Court took into account the fact that the petitioner's signature is available on the memo of arrest and that reasons for the arrest of the petitioner's daughter and even the relevant case number of the police station at Bodhghat was already disclosed to him. Hence, the Court remarked, "There does not appear to be any ground for the apprehension of custodial torture being perpetrated upon the petitioner's daughter."

3. Calcutta High Court Registers Suo Moto Case To Monitor Mentally Ill Prisoners In Terms Of Sheela Barse Case [In Re: Mental Health and Mental Health Care and allied matters concerning convicts/undertrials detained in various correctional homes in West Bengal and the Union Territory of Andaman and Nicobar Islands in terms of Supreme Court directions]

The Calcutta High Court registered a suo moto case to monitor the mental health and other allied matters of various convicts and undertrial prisoners lodged in various correctional homes in West Bengal and the Union Territory of Andaman and Nicobar Islands. The case has been registered on the basis of administrative directions issued by Chief Justice Thottathil B. Radhakrishnan, in terms of the Supreme Court's directions in Sheela Barse v. Union of India & Ors., (1995) 5 SCC 654. In view thereof, Justice Shampa Sarkar has been nominated to deal with the instant suo moto case. The issues that will be primarily addressed in the case are as follows: i. To judicially supervise, monitor and oversee the mentally ill convicts/undertrials at appropriate intervals who are locked up in various correctional homes in the State of West Bengal as also in the Union Territory of Andaman and Nicobar Islands. ii. To pass suitable, appropriate and necessary directions as may be necessitated in order to improve the wellness/wellbeing/conditions of such mentally ill convicts/undertrials.

Also Read: Calcutta HC Seeks Details Of Non-Criminal Mentally Ill Persons/Mentally Ill Convicts/Under Trials Present In Correctional Homes

4. Calcutta High Court Orders ₹5 Lakh Compensation For Nepali Man Who Remained In Prison Sans Trial For Over 40 Years [In re: UTP Dipak Joshi, lodged in Dum Dum Central Correctional Home]

The Calcutta High Court granted Rs. 5 Lakh as compensation to a Nepali man who remained in prison for over 41 years and was released in March 2021 following High Court's intervention. The bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was hearing the suo moto case of one Dipak Joshi, who was arrested on 12th May 1980 and was released in March 2021, after undergoing a period of more than 40 years in custody. Joshi, who was arrested in May 1980 had remained in detention for almost 41 years without conclusion of the trial as a report of appropriate authority regarding his mental status was awaited. The report was sought after an issue was raised as to whether he was fit to withstand trial on a charge of having committed an offence. In March 2021, with the intervention of the Court, Joshi was released from Dum Dum Central Correctional Home and has been handed over to his relatives. On March 22, the High Court had asked the State Government to submit its response on providing him compensation/damages. On December 7, the Counsel for the High Court referred to the West Bengal Correctional Services Prisoners (Unnatural Death Compensation) Scheme, 2019 to submit that the maximum compensation payable under the said Scheme is Rs.5 lakhs. Hence, the Court directed the respondent/State to pay a sum of Rs.5 lakhs by transferring the amount in the account of Dipak Joshi by following the due process of law within a period of six weeks

5. Calcutta High Court Calls For An Inquiry Into Police Officials' Conduct For Not Investigating A Mob Lynching Case [Mahindra Nath Pradhan v. The State of West Bengal & Ors.]

Pulling up West Bengal Police for not following Police Regulation of Bengal in relation to a Mob Lynching Case, the Calcutta High Court last week called for an inquiry into the conduct of the Officers-in-Charge of two police stations in the state. The Bench of Justice Rajasekhar Mantha issued this order after noting lapses on the part of the Shibpur and the Shakespeare Sarani Police Stations in not registering a UD (Unnatural Death) case or conducting an investigation into a Mob Lynching case. Essentially, the Court was dealing with a plea seeking registration of an FIR regarding an unfortunate incident that had occurred in December 2018, where a boy had died in the jurisdiction of the Shibpur Police Station upon being allegedly lynched by a mob. "There is undoubtedly some lapse on the part of the Shibpur Police Station and the Shakespeare Sarani Police Station in not having registered an unnatural death case on the day of occurrence or death. It appears to this Court that the Shibpur and Shakespeare Sarani Police Stations may have acceded to the request of the family of the deceased boy not to register any case or commence any investigation. Such request of family of victim, who have died in unnatural circumstance and particularly where there is drunken driving is not unnatural," the Court remarked. However, stressing that the registration of FIR and investigation into the death after ten months may be an exercise in futility and it is unlikely that any person, who may have been involved in the lynching of the victim, will be traced out, the Court refused to direct the registration of an FIR in this case.

Sexual Harassment and Women Safety

1. Same-Gender Sexual Harassment Complaints Maintainable Under POSH Act [Dr. Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College]

In a significant verdict, the Calcutta High Court held that same-gender complaints are maintainable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the POSH Act. The Court observed that Section 2(m) of the 2013 Act shows that the term "respondent" brings within its fold "a person", thereby including persons of all genders. Justice Sabyasachi Bhattacharyya observed, "Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized."

The Court further observed that the definition of "sexual harassment" in Section 2(n) cannot be a static concept but has to be interpreted against the back-drop of the social perspective. "Sexual harassment, as contemplated in the2013 Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality;which does not mean that any person of the same-gender cannot hurt the modesty or dignity as envisaged by the 2013 Act. A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section2(n), irrespective of the sexuality and gender of the perpetrator of the act", the Court added.

2. 'Display Women Helpline Number In Public Transport' : Calcutta HC Issues Directions To Ensure Women Safety, Recommends Sensitisation Programmes In Schools [Renu Pradhan v. The State of West Bengal and Ors]

The Calcutta High Court issued a host of directions to ensure the safety and security of women and transgender persons travelling in public transport buses. The plea moved before the Court contended that women are frequently harassed and sometimes sexually assaulted while travelling in such public buses and thus sought directions from the Court in this regard. A Bench comprising former Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee took into consideration the grievances raised and accordingly issued the following directions to the State, "Issue appropriate directions to all the transporters in the State of West Bengal to display the women helpline number inside and outside the buses/ public transport vehicles so as to enable any of the sufferer to lodge the complaint on the helpline, so provided. This number should also be displayed at prominent places on different bus-stands and busstops".The Court further recommended to the State to ensure that a separate helpline number is implemented for transgenders or a modification is done in the existing system that shall permit transgender persons to access the existing women helpline. A recommendation of displaying the State Legal Services Authority helpline number in public transport buses was also made by the Bench so as to ensure that victims are able to take recourse to legal aid if required.

3. 'Desire Of Aggrieved Woman To Not Pursue Sexual Harassment Case Must Be Respected': Calcutta High Court Stalls Proceedings Against University Professor [Angshuman Kar v. State of West Bengal & Ors]

The Calcutta High Court observed that if a woman refuses to press sexual harassment charges and gives it in writing to the members of the Internal Complaints Committee (ICC), the her decision must be respected. In the instant case, the petitioner who is professor in the University of Burdwan had moved the High Court challenging the order of debarment levelled against him for allegedly sexually harassing a university student. Justice Amrita Sinha noted that no formal complaint of sexual harassment had been made by the alleged victim to the concerned authorities and thus opined, "There is no evidence from the student that she intends to proceed with the matter. On the contrary, she prefers a quite burial to the entire incident. There is no reason why the desire and intention of the lady student will not be taken into consideration while dealing with the matter".

4. Calcutta High Court Issues Notice On Plea Seeking Installation Of CCTV Cameras, Deployment Of Women Constables In Women Compartments Of Local Trains [Mousomee Shome v. Union of India]

The Calcutta High Court issued notice on a Public Interest Litigation (PIL) petition seeking directions for ensuring the protection of women travelling in all women compartments in the local trains. The petition moved by advocate Mousomee Shome seeks deployment of railway police personnel i.e. lady constable in all local trains in the State of West Bengal and also for the installation and regular functioning of CCTV cameras in the entry and exit point of women compartment in all the local trains. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj also took on record a communication submitted by the Senior Divisional Security Commissioner (Co-ordination)/RPF, Eastern Railway/Howrah disclosing the steps which have been taken in this regard. Issuing directions to the Commissioner, the Bench ordered, "He is directed to hand over a copy thereof to counsel for the petitioner and it will be open to the counsel for the petitioner to point out by filing the appropriate material to show if all such steps have been taken on the spot."

Environment, Illegal Construction, Cattle Trade and other related matters 

1. Calcutta High Court Constitutes Committee On The Issue Of Maintaining Cleanliness & Hygiene In HC Premises [Iqbal Kabir v. The High Court at Calcutta & Ors]

Having deliberated on the issue of maintaining cleanliness and hygiene in the High Court premises, the Calcutta High Court constituted a Committee to meet and discuss the ways and means of maintaining the cleanliness and hygiene of the High Court premises. The Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee formed this committee consisting of:- Advocate General, Additional Solicitor General, The President and Secretary of the three wings of the Bar, and a lady member from each of the three wings of the Bar (as may be nominated by the President of the respective wing of the Bar). The Bench also directed that the Committee shall also have a representative of the Ladies Bar as its member.

The Court further issued the following directions: - 1. The Committee shall meet and discuss the ways and means of maintaining the cleanliness and hygiene of the High Court premises. 2. The Committee should submit a report to the Court on the next date wherein the Committee shall indicate the "Dos and Don'ts" and the restrictions that may be put on anybody entering the High Court premises. 3. The learned Advocate General shall be the convener of the Committee. 4. Advocate appearing for the High Court Administration shall inform the Registrar General that the study room in the main building of the High Court shall be made available to the Committee as and when the same is required by the convener of the Committee for holding meeting.

2. Calcutta High Court Directs Administrative Wing To Examine Issues Relating To Quality & Size Of Filing Papers In All Courts [Nikunj Berlia v. High Court at Calcutta]

The Administrative side of the Calcutta High Court will soon examine issues relating to the quality and size of papers that are used for filing of pleadings, vakalatnamas, etc., in the Courts of West Bengal and the Union Territory of Andaman and Nicobar Islands. A Division Bench comprising former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee directed the Registrar General to initiate requisite activities in this regard, within three weeks. It was the case of the Petitioner that the above measures will also help to control waste of papers.

The Court was of the opinion that the issues raised in the petition call for determination on the administrative side. It observed, "we are of the view that the issues sought to be raised are not matters which should call for determination on the judicial side without the High Court administration dealing with the matter at the appropriate level, within a reasonable time, so that the interest of the community at large should be better subserved." The Bench therefore disposed of the petition, with directions to the Registrar General to raise the aforesaid issues on the administrative side of the High Court. It has also ordered to take into account the views expressed by the Bar, the Advocate General, the Additional Solicitor General and the Public Prosecutor in this regard.

3. "All Isn't Well In Sundarbans": Calcutta High Court Directs Administration To Issue Protective Orders Retraining All Illegal Activities In The Area [Kalam Pailan v. The State of West Bengal & Ors]

Observing that the report placed before it indicates that all is not well in Sundarbans, the Calcutta High Court directed the local administration to issue protective orders retraining all illegal activities in the area. The Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee was dealing with a writ petition pertaining to 'critical important issues' touching upon the 'ecologically fragile sector', Sundarbans. Having perused earlier orders and the preliminary report of the two-person Committee, the Court observed that, "There is a deficiency in the modality in the management of that part of the land which has very peculiar ecological and environmental settings as well as flora and fauna, which will be of critical importance in the management of India's geographical environment and ecological matters."

The Court accordingly issued the following directions- i. Consider issuing such protective orders which will restrain all illegal activities in the area in question. ii. The District Magistrates of the districts of South 24-Parganas and North 24-Parganas having jurisdiction over any part of Sundarbans will ensure that there is absolutely no activity of converting any part of Sundarbans from its "as is where is" condition, as obtained now. iii. Those officers and all police officers having jurisdiction over the area under the command of the Director-General of Police of the State of West Bengal will ensure that no violator shall be left without being dealt with in accordance with the law.

Also Read: No Activity Involving Human Intervention To Take Place In Sundarban Biosphere Area, Tiger Reserve & Reserve Forest, Calcutta HC Issues Direction For 6 Months

4. Pendency Of Cases Under Animal/Forest Laws: Calcutta High Court Directs All Subordinate Courts To Proceed With Such Cases On 'War-Footing' [The Court on its own Motion In re : Smuggling and illegal trading of endangered species of birds]

In a significant move, the Calcutta High Court directed the Courts subordinate to it to expedite the adjudication of matters pending under different animal laws and forest laws. Significantly, the Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee remarked, "The judiciary should be prompt to ensure that all allegations of intrusion into the domain of the animals which result in allegations as to commission of offences gain prompt attention, requisite and timely adjudication." The Court issued this direction to all the Courts subordinate to it, in view of the fact that presently, there are 1140 cases pending under the forest laws before the courts below. Importantly, the Court further added, "Since the victims in all those cases are not 'State' as is understood in the Constitution and the laws but primarily the animals who are voice-less creatures who cannot be represented before any adjudicating authority except by the duly authorised representative of the State Government."

5. Calcutta HC Prohibits Hunting, Selling, Buying Or Exchanging Of Birds Either As Part Of Sale Of Domestic Animals Or Otherwise [In re Smuggling and illegal trading of endangered species of birds]

In a significant move, the Calcutta High Court prohibited the hunting, selling, buying or exchanging of birds either as part of sale of domestic animals or otherwise. The Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee ordered thus in the suo moto matter related to the illegal smuggling and trading of endangered species of birds in the State. The Division Bench had taken up the matter on the basis of a newspaper report that 'exposed the tip of an iceberg' regarding the 'cruel intrusion' into the life birds. Significantly, the Court observed that all illegal activities in relation to birds and animals in whatever form and in connection with whatever melas and other festivals have to be completely stopped by the State, in the exercise of its police power, if needed.

6. Calcutta HC Passes Injunction Order Restraining Activities On River Banks, Alluvial Landscapes Etc. Across West-Bengal [Uttam Kumar Paul v. The State of West Bengal & Ors]

The Calcutta High Court passed an order of an injunction restraining any activity on the lands which are river banks or alluvial landscapes or alluvial lands across the State of West Bengal. The injunction order has been passed by the Bench of former Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee on a writ plea filed projecting the devastating impact of ruthless intrusion into alluvial lands which are spread over river banks. The Court has also directed that the injunction be treated as, "one against any person indulging in activities in any such area in the State of West Bengal." Further, the Court has also directed that the order be strictly enforced by the jurisdictional BL&LRO, the District Magistrate, the Superintendent of Police and police officers under the command of the Superintendent of Police in every district concerned. Consequently, the Court passed an order of injunction restraining any activity on the lands which are river banks or alluvial landscapes or alluvial lands whether in the form of brick kilns or brick-making process or other activities.

7. "The State Should Adopt A Standard Operating Procedure To Not Interrupt Genuine Trade Of Cattle" [M/s Pioneer Live Stock v. State of West Bengal and Ors]

The Calcutta High Court directed the West Bengal State Government to devise a Standard Operating Procedure to ensure that genuine cattle trade within the country particularly from West Bengal to the North Eastern States of India is not interrupted. Justice Rajasekhar Mantha was hearing a writ petition wherein the petitioner had alleged that during the course of his business of transporting cattle to Meghalaya from West Bengal, various police personnel had halted his truck and also seized his cattle and arrested the persons involved in such transportation. Being a bona fide trade, the petitioner thus claimed for relief from the Court. "In that view of the matter, the Inspector General of Police, North Bengal being the respondent no. 3 herein in consultation with any other necessary authorities, shall prepare a Standard Operating Procedure for the purpose of strict compliance by any trader of cattle and live stock from West Bengal to other States and within the country", the Court further observed.

8. "A Strong Message Should Be Sent To Such Persons": Calcutta High Court Admonishes Party For Reconstructing Demolished Constructions [Smt. Ranu Pal & Ors. v. Kolkata Municipal Corporation & Ors]

The Calcutta High Court came down heavily on individuals for carrying out illegal constructions in violation of the Court's earlier orders. In the concerned case, the Kolkata Municipal Corporation had demolished certain illegal constructions in a building pursuant to a Court order. Consequently, without taking leave of the Court, the respondents had reconstructed the demolished portions. Further, certain additional illegal constructions had also been carried out by the respondents. Pursuant to the perusal of reports submitted by the Director General of Building, the Executive Engineer and Deputy Chief Engineer of the Kolkata Municipal Corporation, Justice Abhijit Gangopadhyay observed with anguish, "It appears that the private respondents have played in an oversmart manner by reconstructing the demolished portion and by putting thereupon another shed to cover the illegal act. The private respondents have little respect for the constitutional Court of the country as an order was passed earlier by this Court in his presence on 3rd August, 2018".

9. 'Permanent Wound On Environment': Calcutta High Court Directs Man To Pay Rs 40 Crore Penalty For Axing 62 Trees [Soumitra Kanti Dey v. State of West Bengal and Anr.]

The Calcutta High Court directed one Soumitra Kanti Dey to pay a penalty amount of Rs 40 crores and also plant 100 trees for illegally cutting down nearly 62 trees on a premises, under the garb of removing stagnated water. "The cutting of trees has nothing to do with the removal of accumulated water. Yet under the garb of removing water, as many as 62 (sixty two) trees have been cut," the Court observed at the outset. The order was additionally passed against the real estate group Emaar India Limited, owner of the land in question, which appeared to have intended to construct a seven star hotel at the location. "This Court is, therefore, inclined to permit compounding of the aforesaid offences mentioned in the aforesaid charge- 3 sheet only upon payment of Rs. 40 (Forty) crores to the respondent no.2 within a period of 15 days from date. The petitioner and/or the owner of the property M/s. Emaar India Limited would additionally have to plant and ensure growth of about 100 trees on the said premises," the Court ordered. Justice Rajasekhar Mantha further observed, "While the entreaties made by the petitioner appear to be attractive, one cannot loose sight of the fact that each tree, totaling 62 (sixty two) in numbers has left a permanent wound on the environment. Irreparable damage has been caused to society by the conduct of the petitioner."

10. Calcutta HC Directs State To Ensure Only Green Crackers Are Used [Roshni Ali v. State of West Bengal]

The Calcutta High Court disposed of a petition seeking directions for the proper implementation of prior Supreme Court orders on the regulation of firecrackers during the upcoming festivals. This came in the wake of the Supreme Court setting aside the order of the Calcutta High Court which imposed a complete ban of use of firecrackers in the State of West Bengal. A Bench comprising Justices Rajasekhar Mantha and Kesang Doma Bhutia on Wednesday observed, "This Court is conscious of the fact that it is not possible to inspect and ensure that green crackers are being used at every nook and corner of the State. However, all necessary efforts must be made by the State to ensure that only green crackers are used and the sincerity of the State would be reflected in enforcement mechanism". The Bench further noted that the West Bengal Pollution Control Board appear to have specified timings for the use of firecrackers on festival days. It was further taken into consideration that the State had further issued directions for the use and manufacture of only 'green crackers' as per the Supreme Court order in Arjun Gopal v. Union of India. It observed further, "The importance and need for maintaining clean environment and clean air cannot be overstressed and is the responsibility of one and all. All citizens must follow and ensure that even the green firecrackers used do not cause discomfort to others. Suitable awareness campaigns must be undertaken by all stakeholders in this regard; through the available media. Self-imposed restrictions must be aggressively encouraged." 

Also Read: Calcutta High Court Bans Firecrackers In West Bengal During Diwali & Other Festivals

Mamata Banerjee's Election Petition Challenging Nandigram Election Results

1. Calcutta High Court Issues Notice To Suvendu Adhikari In Mamata Banerjee's Election Petition Against Nandigram Results [Mamata Banerjee v. Suvendu Adhikari]

The Calcutta High Court issued notice on the election petition filed by West Bengal Chief Minister Mamata Banerjee challenging the election of Suvendu Adhikari @SuvenduWB from Nandigram. Justice Shampa Sarkar issued notice to Suvendu Adhikari, the elected candidate of BJP and directed that the records and papers in relation to the election be preserved during the pendency of the petition. "Let notice be issued. The matter is made returnable on August 12, 2021. Pending the decision of the case, all documents, election papers, devices, video recordings etc connected with the election which is under challenge before this court shall be preserved by the concerned authority", the order stated. 

Also Read: West Bengal CM Mamata Banerjee Moves Calcutta High Court Challenging Nandigram Election Results

2. 'Trouble-Mongers Will Try To Keep Controversy Alive If I Don't Recuse': Justice Chanda On Mamata Banerjee's Plea [Mamata Banerjee v. Suvendu Adhikari]

Justice Kausik Chanda of the Calcutta High Court observed that he does not have a conflict of interest in the election petition moved by West Bengal Chief Minister Mamata Banerjee, challenging the Nandigram election results, where she was defeated by BJP's Suvendu Adhikary in the 2021 Assembly Polls. The Judge however, decided to recuse himself from the hearing, saying that if the matter continues before him, then some 'trouble-mongers' will continue to keep the controversy alive and even find new controversies to affect the proceedings. "The imbroglio stemmed from the inception of the litigation was due to the assignment of this case before this Bench. Since two persons involved in this case belong to highest echelon of State politics, in the name of saving the judiciary, some opportunists have already emerged. These trouble-mongers will try to keep the controversy alive and create newer controversies," Justice Chanda remarked. He added, "The trial of the case before this Bench will be a tool to aggrandise themselves. It will be contrary to the interests of justice if such unwarranted squabble continues along with the trial of the case. Such attempts need to be thwarted at the threshold. Hearing of this case should proceed seamlessly like any other litigation before this Court." Observing thus, the Judge recused himself and released the case from his list.

Also Read: Mamata Banerjee Objects To Justice Kausik Chanda Hearing Her Election Petition; Says She Has Objected To His Confirmation As HC Judge

3. Calcutta High Court Adjourns Mamata Banerjee's Election Petition To Nov 16 In View Of Suvendu Adhikari's Transfer Plea In Supreme Court [Mamata Banerjee v. Suvendu Adhikari]

The Calcutta High Court allowed the application moved by BJP MLA Suvendu Adhikari seeking adjournment on the ground that a transfer petition has been filed by him before the Supreme Court and is currently pending adjudication. On July 14, 2021 Suvendu Adhikari had moved the Supreme Court seeking transfer of the election petition filed by West Bengal Chief Minister Mamata Banerjee challenging Suvendu Adhikari's election win from the Nandigram constituency in the 2021 West Bengal Assembly Polls. Accordingly, Justice Sarkar directed the parties to file their written submissions in the meantime. The Court also directed the parties to submit a copy of the impugned election petition and the application of adjournment moved by the respondent to the Chief Electoral Officer of West Bengal in order to preserve the necessary records.

Also Read: Calcutta HC Seeks Response From Suvendu Adhikari By Nov 29 In Mamata Banerjee's Election Petition Against Nandigram Results, Next Hearing On Dec 1

Kolkata Municipal Polls/WB Municipal Polls

1. Kolkata Municipal Elections: Calcutta HC Directs State Election Commission To Preserve CCTV Footage, Diaries Of Election Officials, Voters' Registers Due To Alleged Violence [Bhartiya Janta Party v. State of West Bengal; Pratap Banerjee v. State of West Bengal and Ors and other connected matters]

The Calcutta High Court vide order dated December 23, 2021, directed the State Election Commission to preserve CCTV footage of all polling stations of Kolkata Municipal Corporation Elections held on December 19, 2021. The State Election Commission was also directed to preserve the diaries of the presiding officer and register containing the thumb impression/signature of voters of all the polling booths in a sealed cover with immediate effect. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bhardwaj was adjudicating upon a batch of petitions which had alleged that deployment of central forces is required for the remaining municipal polls considering the large scale violence that took place during the Kolkata Municipal elections. "Considering the fact that rigging of booths, false voting, voting in the name of dead persons, in the name of absent NRIs, driving out the polling agents of other parties from the polling booths, violence with the candidates and polling agents and improper functioning of the video cameras, to ascertain the compliance of the directions of this Court and to ensure fair elections in remaining Municipalities/Municipal Corporations, etc., we deem it proper to issue following directions", the Court observed.

Also Read: Kolkata Municipal Polls: BJP Seeks Preservation Of CCTV Visuals Of Alleged Violence; Calcutta HC Reserves Orders

2. WB Municipal Polls : State Election Commission Submits Election Schedule To Calcutta High Court [Pratap Banerjee v. State of West Bengal and Ors]

The Calcutta High Court was informed by senior advocate Jayanta Mitra appearing for the State Election Commission that the first phase of the remaining municipal polls would be held on January 22, 2022 and would include municipal bodies of Howrah, Chandannagar, Bidhannagar, Asansol and Siliguri. Furthermore, the Court was apprised that the second phase of municipal polls would take place on February 27, 2022 for the remaining 119 municipal bodies. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bhardwaj was adjudicating upon a petition moved by BJP State vice-president Pratap Banerjee seeking direction to the West Bengal government and the State Election Commission (SEC) to hold municipal polls in the State in one phase. The Bench vide its earlier order had directed the State Election Commission to disclose the tentative time schedule for conducting the election of all the Municipal Corporations/Municipalities in the State in a phase manner. However, the Bench had declined BJP's plea to stay the Kolkata Municipal polls. The Kolkata Municipal Corporation election was conducted on December 19.

3. Calcutta High Court Dismisses BJP's Appeal Against Single Bench Order Declining Plea To Deploy Central Forces For Kolkata Municipal Elections [Bhartiya Janta Party v. State of West Bengal]

The Calcutta High Court dismissed an appeal moved by the Bharathiya Janata Party (BJP) against a Single Bench order of the High Court wherein BJP's plea seeking deployment of Central Forces for the upcoming Kolkata Municipal Elections had been declined. The Kolkata Municipal Corporation election is scheduled to be held on December 19. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bhardwaj observed, "So far, no instance of violence has been pointed out nor along with the writ petition, any such material has been enclosed which furnishes a ground for deployment of the Central Paramilitary Forces in the forthcoming Kolkata Municipal Corporation Elections. Therefore, at this stage, we do not find sufficient material to accept the prayer." The Bench however took into consideration the submission of the Advocate General that within six hours, the Central Paramilitary Forces can be sent to avoid any untoward incident.

4. 'Will Add To Transparency In The Election Process': Calcutta HC Directs State Election Commission To Install CCTV Cameras In All Polling Booths During Kolkata Municipal Elections [Devdutta Maji @ Devdutta Majhi v. State of West Bengal and others]

The Calcutta High Court directed the West Bengal State Election Commission to install close circuit television (CCTV) cameras in all the main and auxiliary polling booths as also in strong room where EVMs will be kept during the upcoming Kolkata Municipal Corporation Election.  A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a plea moved by Devdutta Maji, a Bharathiya Janata Party (BJP) worker seeking directions to get all the 4842 main and 365 additional auxiliary polling booths under CCTV surveillance on the day of polling as also the strong room where EVMs will be kept till the date of counting. "Having regard to the fact that installation of CCTV cameras will add to transparency in the election process..the present petition is disposed of by directing the respondent Nos.2 and 3 to act in accordance with the statement made before this Court and provide CCTV cameras in all the main and auxiliary polling booths as also in strong room where EVMs will be kept in the forthcoming Kolkata Municipal Corporation Election", the order read.

Challenge to the Appointment of TMC MLA Mukul Roy As PAC Chairman of WB Legislative Assembly 

1. 'Speaker Worked On Dictates, Failed To Discharge Constitutional Duty': Calcutta HC Rules That Constitutional Convention Is To Appoint Opposition Leader As PAC Chairman [Ambika Roy v. The Speaker, West Bengal Legislative Assembly and Ors]

The Calcutta High Court observed that it is a 'constitutional convention' to appoint a leader of the Opposition as the Chairman of the Public Accounts Committee (PAC) of the West Bengal Legislative Assembly. The observation was made in the plea moved by BJP MLA Ambika Roy challenging the appointment of Mukul Roy as the PAC Chairman. A Bench comprising former Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj placed reliance on the Supreme Court judgment in Supreme Court Advocates-on-Record Association to determine what constitutes a 'constitutional convention'. Accordingly, the Court observed, "If the tests laid by Sir Ivor Jennings are applied in the case in hand, firstly there are precedents available in the form of admission of the Speaker himself in the declaration made by him at the time of appointment of Chairman of the Committee on Public Accounts that a very healthy and rich tradition and convention have grown for the last 54 years or so, to appoint a Member of the Opposition as the Chairman of the Committee. Even the second test is also passed if the declaration of the Speaker is read where he clearly mentions that he followed the convention so established to appoint a person from amongst the Members of the Opposition party as the Chairman of the Committee on Public Accounts. The third test laid down is also satisfied. In the case in hand we need not travel beyond the declaration of the Speaker to find an answer to that." Opining that the Speaker had failed to discharge his constitutional duty, the Court remarked, "In the case in hand as is evident from the facts on record there is failure on the part of the Speaker to discharge his constitutional duty coupled with established admitted constitutional conventions. Apparently, he has worked on dictates. Finally, he was caught in the web knitted by him."

2. Calcutta HC Directs WB Speaker To Decide Disqualification Petition Against TMC MLA Mukul Roy By October 7 [ Ambika Roy v. The Speaker, West Bengal Legislative Assembly and Ors]

The Calcutta High Court directed the Speaker of the West Bengal Legislative Assembly to decide on the disqualification petition against TMC MLA Mukul Roy and place on record the order passed by the next date of hearing which is slated to take place on October 7. A Bench comprising former Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj observed on Tuesday that the Supreme Court vide its earlier judgments had held that a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided. Reliance was placed on the Supreme Court judgment in Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur in this regard. It was further noted that the three months period to decide on the disqualification petition by the Speaker had already expired on September 16. "Maximum three months period has been prescribed by Hon'ble the Supreme Court for decision of any such petition, which has already expired. The objective and purpose of Tenth Schedule is to curb the evil of political defections motivated by lure of office, which endangers the foundation of our democracy. The disqualification takes places from the date when the act of defection took place. The constitutional authorities who have been conferred with various powers are in fact coupled with duties and responsibilities to maintain the constitutional values. In case they fail to discharge their duties within time, it will endanger the democratic set up", the Court observed. "The objective and purpose of Tenth Schedule is to curb the evil of political defections motivated by lure of office, which endangers the foundation of our democracy. The disqualification takes places from the date when the act of defection took place. The constitutional authorities who have been conferred with various powers are in fact coupled with duties and responsibilities to maintain the constitutional values. In case they fail to discharge their duties within time, it will endanger the democratic set up", the Court remarked further.

Also Read: West Bengal Speaker Moves Supreme Court Against HC Order On Mukul Roy's PAC Chairmanship: AG S.N Mookerjee Informs Calcutta HC

Also Read: Court Cannot Inquire Into Proceedings Of Legislature Under Article 212': TMC MLA Mukul Roy Argues Before Calcutta High Court

Also Read: 'Constitutional Convention Is To Appoint Opposition Leader As PAC Chairman' : BJP MLA Ambika Roy Argues Before Calcutta High Court In Case Against Mukul Roy

Narada Case 

1. Narada Case : Calcutta HC Directs CBI Official To Appear Before WB Speaker For Submitting Chargesheets Against MLAs Without Prior Consent [Satendra Singh v. Hon'ble Speaker of the W.B. Legislative Assembly, Biman Banerjee & Anr]

The Calcutta High Court directed an officer of the Central Bureau of Investigation (CBI) to appear before the Speaker of the West Bengal Legislative Assembly at 4 pm on Monday itself pursuant to the summons issued to the CBI regarding charge sheets filed against legislators in the Narada scam case. The Speaker had summoned senior CBI and Enforcement Directorate officers to appear on October 4 at 1 pm in order to explain why no permission had been taken from his office before submitting charge sheets against legislators of West Bengal. Justice Rajasekhar Mantha observed, "Since the Speaker is a Constitutional functionary, the petitioner shall appear before the Speaker at about 4 p.m. today (04.10.2021). The views of the Speaker shall be heard by the petitioner and an adjournment shall be prayed." The CBI had arrested four Trinamool Congress leaders - Firhad Hakim, Madan Mitra, Subrata Mukherjee and Sovan Chatterjee on May 17 in connection with the Narada scam case. They had been later released on bail on May 28.

2. Narada Case: Calcutta High Court Allows Applications Filed By WB Govt, CM Mamata Banerjee For Accepting Their Affidavits [CBI ACB Kolkata v. Shri Firhad Hakim @ Bobby Hakim & Ors]

The Calcutta High Court allowed the applications filed by State of West Bengal, Chief Minister Mamata Banerjee, and the State Law Minister Moloy Ghatak seeking acceptance of their affidavits in the Narada Scam case. The affidavits purportedly detail the law and order situation in the State (outside CBI office) on May 17, the date when the four accused TMC leaders were arrested. A 5-Judge Bench comprising former Acting Chief Justice Rajesh Bindal, and Justices IP Mukherjee, Harish Tandon, Soumen Sen and Arijit Banerjee has allowed the applications subject to payment of Rs. 5,000/- by each of the applicants. Further, CBI has been granted 10 days' time to file its reply in opposititon. The development comes after the Supreme Court set aside Calcutta High Court's order date June 9 where the Bench refused to take on record their affidavits saying that they waited for the arguments in the case to be substantially completed before seeking to place on record their pleadings in response.

Also Read: Mamata Banerjee Files Fresh Application/Affidavit Before Calcutta HC In Narada Case As Per The Apex Court's Order

3. Narada Case : Will Alleged Unlawful Arrests Give Right To 'Mobocracy'? Calcutta High Court Asks [CBI ACB Kolkata v. Shri Firhad Hakim @ Bobby Hakim & Ors]

Even if arrests are assumed to be illegal, will they give a right to indulge in 'mobocracy', the Calcutta High Court asked during the hearing of the Narada case. The question was posed by former Acting Chief Justice Rajesh Bindal, who was leading the 5 judge bench which is hearing CBI's transfer application in the Narada Scam case that the Special Judge. Senior Advocate Siddharth Luthra, appearing for one of the four arrested Trinamool Congress leaders, told the bench that the Special CBI Judge, who granted interim bail to the accused TMC leaders on May 17, decided the matter "without fear" of the alleged 'mobocracy'. Luthra claimed that the arrest memo was prepared at 8.45 am at CBI's office in Nizam palace and that is a clear violation of Supreme Court's judgments in Nandini Satpathy v. Dani (1978) and DK Basu v. State of West Bengal (1977). "Does that give a right to mobocracy?" ACJ Rajesh Bindal asked. Luthra also alleged that sanction for arresting public officials has to be obtained contemporaneously or before arrest. But in this case, it was obtained after arrest. "This is a mockery of law of the highest order. CBI has played a fraud on the Court," Luthra remarked.

Also Read: If Hearing Was Virtual & Judge Didn't Know People Were Protesting Outside, How Is There An Influence? Calcutta HC Asks CBI In Narada Case

4. Calcutta High Court Grants Interim Bail To 4 Trinamool Leaders In Narada Case [CBI ACB Kolkata v. Shri Firhad Hakim @ Bobby Hakim & Ors]

A 5-judge bench of the Calcutta High Court granted interim bail to four Trinamool Congress leaders- Firhad Hakim, Madan Mitra, Subrata Mukherjee and Sovan Chatterjee- who have been under judicial custody since their arrest by the CBI in the Narada case on May 17. They were placed under house arrest on May 19, following a split in the division bench on the question of interim bail, and the matter was referred to the larger bench. A bench comprising former Acting Chief Justice Rajesh Bindal, Justices IP Mukerji, Harish Tandon, Soumen Sen and Arijit Mukherjee passed the order after considering the applications filed by the arrested leaders seeking recall of the May 17 order passed by the division bench, which had stayed the bail granted to them. The bench imposed a condition that the four leaders should not make press statements or make media discussions on the pending trial in the Narada case. The bench also clarified that the interim-bail will be subject to the final order in the case, and that the same will stand cancelled, if the CBI succeeds in its petition.

5. Calcutta High Court Orders House Arrest Of 4 TMC Leaders In Narada Case After Judges Disagree On Interim Bail [CBI ACB Kolkata v. Shri Firhad Hakim @ Bobby Hakim & Ors]

Following a split in the Calcutta High Court Bench hearing the case pertaining to bail of four Trinamool Congress leaders, who had been in custody since May 17 since their arrest by the CBI in the Narada Scam Case, the matter had been referred to a larger Bench. In the meanwhile, the division bench ordered that the four leaders— Ministers Firhad Hakim and Subrata Mukherjee, MLA Madan Mitra and Sovan Chatterjee- be kept in house arrest and all medical amenities will be given to them. Since two of the arrested persons are Ministers in the newly-elected State Government and one of them is an MLA, the Court has permitted them to access files and meet officials through videoconferencing while under house arrest, to discharge their functions. The bench also rejected the request made by the CBI to stay the present order. Whereas Justice Arijit Banerjee has passed an order allowing interim bail, former ACJ Bindal has disagreed and said that the four arrested TMC leaders must be kept in house arrest. In view of the split, the matter has been referred to a larger bench.

Also Read: 'Haven't Understood How Custodial Detention Is Necessary': Justice Arijit Banerjee 's Reasons For Granting Interim Bail To TMC Leaders In Narada Case

Also Read: 'Legal Issues Can't Be Raised And Settled In Streets' : Acting CJ Rajesh Bindal Of Calcutta HC Refuses Interim Bail To TMC Leaders In Narada Scam Case

Also Read: Acting Chief Justice Constitutes 5 Judges' Bench, Calcutta HC To Hear Case On Arrest Of TMC Leaders On May 24

Also Read: Narada Case : CBI Moves Supreme Court Against Calcutta HC Order Allowing House Arrest Of TMC Leaders; Seeks Adjournment Of Larger Bench Hearing

6. Calcutta HC Stays Special CBI Court's Order Granting Bail To TMC Leaders Firhad Hakim, Madan Mitra, Subrata Mukherjee & Sovan Chatterjee [[CBI ACB Kolkata v. Shri Firhad Hakim @ Bobby Hakim & Ors]

In a significant development, the Calcutta High Court stayed the order of Special CBI court, which granted bail to two TMC Ministers Firhad Hakim and Subrata Mukherjee, TMC MLA Madan Mitra and former Kolkata Mayor Sovan Chatterjee in the infamous Narada case. A division bench comprising former Acting Chief Justice Rajnish Bindal and Justice Arijit Banerjee passed the stay order on an application filed by the CBI seeking transfer of trial citing the dharna staged by Chief Minister Mamata Banerjee against the arrest of TMC ministers. "The Law Minister remained in the court complex throughout the day till the arguments were heard. In these facts and circumstances if any order is passed by the Court the same will not have faith and confidence of the people in the system of administration of justice". The High Court added : "Confidence of the people in the justice system will be eroded in case such types of incidents are allowed to happen in the matters where political leaders are arrested and are to be produced in the court. People may have a feeling that it is not rule of law which prevails but it is a mob which has an upper hand and especially in a case where it is led by the Chief Minister of the State in the office of CBI and by the Law Minister of the State in the Court Complex".

Post-Poll Violence Case 

1. West Bengal Post Poll Violence: Calcutta High Court Directs CBI, SIT To File Additional Status Reports By December 23 [Anindya Sundar Das v. Union of India and other connected matters]

The Calcutta High Court took on record the latest status report filed by the Special Investigation Team (SIT) constituted by the Court to investigate cases other than murder, rape and crimes against women that had allegedly taken place post the declaration of the West Bengal assembly elections in May 2021. The Court vide order dated August 19 had also directed the Central Bureau of Investigation (CBI) to conduct investigation of cases related to murder, rape and crime against women that had allegedly taken place in the aftermath of the declaration of election results. A Bench comprising Chief Justice Prakash Shrivastava and Justice I.P Mukerji on Monday perused the new status report submitted by the SIT and accordingly recorded in its order, "Counsel for the SIT has filed a status report in the sealed cover which has been opened and perused. Report indicates that number of cases are under investigation and that the SIT is taking further steps of monitoring them. Hence we are of the view that a further status report is required to be filed after some reasonable time showing progress in the matter." Accordingly, the Court directed both the SIT as well as the CBI to file new status reports before or on the next date of hearing which is slated to take place on December 23.

2. 'Total Casual Attitude Of The State In A Serious Matter': Calcutta HC Comes Down Heavily On WB Govt For Not Processing Compensation For Victims Of Post Poll Violence [Anindya Sundar Das v. Union of India and other connected matters]

The Calcutta High Court took on record the status report filed by the Central Bureau of Investigation (CBI) pertaining to the investigation of cases related to murder, rape and crime against women that had allegedly taken place post the declaration of the West Bengal assembly elections in May 2021. The Court vide order dated August 19 had specified that the CBI investigation would be court monitored. "A brief perusal of the report shows that the investigation is being carried out for which the State had spared services of ten senior IPS officers vide order dated September 01, 2021. A perusal of the aforesaid order shows that it has no reference to any request or meeting with the SIT. It apparently shows that the government of its own had spared the services of some of the officers to assist the SIT. In addition to that, vide order dated September 03, 2021 certain other officers were specified to assist the SIT for different zones in the State. This also does not have reference to any request made by the SIT", the Bench comprising former Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwajobserved while referring to the preliminary report of the SIT. Former ACJ Rajesh Bindal also expressed strong reservations to the fact that the State government had not yet extended any compensation to victims of post poll violence. "Learned counsel appearing for the State submitted that he does not have any information with reference to that to be furnished to the Court. He has sought time. This apparently shows total casual attitude in a serious matter", the Court recorded in its order.

3. Calcutta High Court Appoints Former Chief Justice Manjula Chellur To Head SIT Constituted To Probe Post Poll Violence Cases [Anindya Sundar Das v. Union of India and other connected matters]

The Calcutta High Court notified that Justice Manjula Chellur, former Chief Justice of the Calcutta High Court would head the Special Investigation Team (SIT) constituted by the High Court to probe into allegations of post poll violence that had erupted in the State of West Bengal after the declaration of the 2021 assembly elections. In its order dated August 19, the High Court had directed the constitution of a SIT consisting of IPS officers of the West Bengal cadre- Suman Bala Sahoo and Soumen Mitra and Ranveer Kumar to probe into various criminal cases other than those related to murder, rape and crimes against women. A 5 judge Bench comprising former Acting Chief Justice Rajesh Bindal, Justice I.P Mukerji, Justice Harish Tandon, Justice Soumen Sen and Justice Subrata Talukdar informed the concerned parties that Justice Manjula Chellur would monitor the functioning of the constituted SIT pursuant to its earlier order. The Bench had assembled to oversee compliance of its earlier directions. "On account of immediate non-availability of a retired Hon'ble Supreme Court Judge to take up the assignment, we deem it appropriate to modify the aforesaid part of the order. While adding that the working of the SIT is to be monitored by a retired Chief Justice of a High Court. Further we had requested Hon'ble Ms. Justice Manjula Chellur, retired Chief Justice of this Court to take up the assignment. She has very graciously accepted our request. We accordingly appoint her to overview the working of SIT", the Bench observed. 

4. Calcutta High Court Orders CBI Probe Into West Bengal Post-Poll Violence Cases Of Murder And Rape [CBI ACB Kolkata v. Shri Firhad Hakim @ Bobby Hakim & Ors]

The Calcutta High Court handed over to the Central Bureau of Investigation(CBI) the investigation of the cases related to murder, rape and crime against women which happened in the State of West Bengal in May 2021 soon after the declaration of the assembly election results. The CBI investigation will be monitored by the High Court. Former Acting Chief Justice Rajesh Bindal delivered the lead judgment whereas Justices I.P Mukerji, Harish Tandon and Soumen Sen delivered separate but concurring judgments. "The Committee, NHRC, any other Commission or Authority and the State shall immediately hand over entire record of the cases entrusted to the CBI for investigation. It is made clear that it shall be the Court monitored investigation. Any obstruction in the course of investigation by anyone shall be viewed seriously", the Court observed. As regards other criminal cases related to post-poll violence, the Court directed that they be investigated by a Special Investigation Team under the monitoring of the Court. IPS officers, Suman Bala Sahoo, Soumen Mitra and Ranbir Kumar of the West Bengal cadre will be members of the SIT. The Court has directed the State of West Bengal to immediately process the compensation for the victims of the post-poll violence. The Court also rejected the allegations of bias raised by the State Government against the National Human Rights Commission, a team of which had submitted a fact-finding report to the Court as per its directions. "The allegations of the petitioners are that in registration of cases and investigation thereof of the police is slow as main allegations are against the supporters and workers of the ruling party. In number of cases FIRs were registered only after the committee pointed out those. There are some FIRs registered against the supporters/workers of political parties not in power. These are claimed by them as false cross cases. Even they will not be able to allege bias against the State if investigation of their cases is also held by an independent agency or monitored by SIT. It should and will inspire confidence of the people in rule of law. The allegation is of police inaction. Report submitted by the Committee throws some light on this and the police having not properly responded to all the issues raised and trying to downplay the same, it certainly needs investigation by an independent agency. Even comparison of data pertaining to crime during previous corresponding period will also not come to the rescue of the State as the pattern of the crime can change and the period thereof. Further there are definite and proved allegations that complaints filed by the victims of post poll violence were not registered. Such types of incidents, even if isolated are not good for healthy democracy", Justice Bindal's judgment stated.

Also Read: 'Incidents Of Violence Even If Isolated, Not Good For Healthy Democracy': Calcutta High Court On West Bengal Post Poll Violence

Also Read: Calcutta High Court Rejects State's Argument That Police Can't Be Held Responsible For Post-Poll Violence Due To ECI's Model Code Of Conduct

Also Read: 'Argument In Frustration' : Calcutta High Court Rejects West Bengal's Allegations Of Bias Against NHRC Committee In Post-Poll Violence Case