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Calcutta High Court Annual Digest 2023 [PART- II] (Citations 148-353)
Srinjoy Das
30 Dec 2023 5:00 AM GMT
![Calcutta High Court Annual Digest 2023 [PART- II] (Citations 148-353)](https://www.livelaw.in/h-upload/2023/12/29/750x450_512761-calcutta-high-court-annual-digest-2023-part-2.webp "Calcutta High Court Annual Digest 2023 [PART- II] (Citations 148-353)")
ORDERS/JUDGEMENTS“Reasons Are The Foundation Of Any Order": Calcutta High Court Allows Decco's Appeal Against Rejection Of Patent ApplicationCase: Decco Worldwide Post Harvest Holdings B.V & Anr. V The Controller of Patents and Designs & Anr. Citation: 2023 LiveLaw (Cal) 148The Calcutta High Court recently set aside an order passed by the Assistant Controller of Patents and...
ORDERS/JUDGEMENTS
Case: Decco Worldwide Post Harvest Holdings B.V & Anr. V The Controller of Patents and Designs & Anr.
Citation: 2023 LiveLaw (Cal) 148
The Calcutta High Court recently set aside an order passed by the Assistant Controller of Patents and Designs (“Controller”), rejecting a Patent Application filed by agrochemical multinational UPL's postharvest division Decco Worldwide (“the Appellants”) for their invention titled “A fungicidal treatment for black sigatoka,” to prevent leaf-disease that infects banana plants.
The Assistant Controller of Patents and Designs objected to the patent application on the grounds that it was a non-patentable subject under Section 3(h) of the Patents Act, 1970 (“Act”), which deals with “agricultural and horticultural methods”. Further it was also adjudged that the Patent Application did not contain any clear disclosure under Section 10(4) of the Patents Act and that there was a lack of “obviousness and inventive steps” in the invention under Section 2(1) (ja) of the Patents Act.
Case title: Sujit Kumar Datta v The State of West Bengal & Ors [W.P.A(P) No. 239 of 2023]
Citation: 2023 LiveLaw (Cal) 149
The Calcutta High Court has dismissed a PIL calling upon it to decide the issue of individual's right to privacy allegedly being violated by spyware such as Pegasus, said to be installed on people's personal electronic devices without their knowledge.
A bench of Chief Justice T.S. Sivagnaman and Justice Hiranmay Bhattacharya opined that such blanket directions against the use of modern technology for allegedly being violative of the fundamental right to privacy of individuals could not be passed. Further, according to the Chief Justice, due to the vague nature of the submissions and prayers of the petitioner, the Court could not arrive at the specific questions of law involved.
Case Title: Sutapa Adhikari & Ors v State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 150
The Calcutta High Court has made it clear that Section 160 of the CrPC which empowers the police to require attendance of witnesses cannot be misused to take coercive steps against persons not connected with the alleged offence.
While hearing a plea filed by persons claiming to be the relatives and acquaintances of West Bengal's Leader of Opposition, Suvendhu Adhikari, a single bench of Justice Ajoy Kumar Mukherjee observed,
"The practice, if adopted by investigating agency during investigation to call someone not named in the FIR or not connected in any way in committing the offence, by a notice under section 160 of the Cr.P.C and when the person concerned complies direction of such notice, the investigating officer in the name of interrogation, implicate him as an accused and arrest him directly, such practice cannot be encouraged"
Case Title: Sekhar Kr Roy v Lila Roy & Anr (FA 109 of 2018)
Citation: 2023 LiveLaw (Cal) 151
The Calcutta High Court has clarified that the mere transfer of money from a husband to his wife for the purchase of property would not qualify as a benami transaction.
A Division bench of Justice Tapabrata Chakroborty and Justice Partha Sarthi Chatterjee observed,
"In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction. Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami."
Case Title: Deepak Chatterjee @ Dipak Chatterjee & Ors. v. The State of West Bengal & Anr (CRR 261 of 2020)
Citation: 2023 LiveLaw (Cal) 152
The Calcutta High Court quashed a domestic violence complaint filed by a woman against her in-laws for allegedly trying to strangulate her, upon noting that the parties never resided together.
A single-judge bench of Justice Shampa Dutt (Paul) observed that the respondent herself in her Section 164 CrPC statement said she had left her matrimonial home on 20.01.2015, but in her memorandum of complaint she claimed that her in-laws had tried to strangle her to death on 22.01.2015.
Case Title: Homevista Décor & Furnishing Pvt. Ltd. v. Connect Residuary Pvt. Ltd.
Citation: 2023 LiveLaw (Cal) 153
The High Court of Calcutta has held that the venue would not become the seat of the arbitration when the agreement confers exclusive jurisdiction on the Court in a different place.
The bench of Justice Shekhar B. Saraf held that presence of a clause which confers exclusive jurisdiction upon a Court in a place other than the venue of arbitration is a 'Contrary Indicia' that prevents the venue of arbitration from becoming the seat.
Case Title: Blue Star Limited v. Rahul Saraf
Citation: 2023 LiveLaw (Cal) 154
The High Court of Calcutta has held that a clause in an agreement that merely provides for a possibility of arbitration is not a binding arbitration agreement.
The bench of Justice Shekhar B. Saraf held that a clause which provides for resolution of dispute either by way of litigation or arbitration cannot be held to be a binding arbitration agreement as the clause makes arbitration a possibility which may unravel itself, if and only if the parties choose to opt for it, post occurrence of disputes.
Case Title: Pan Seeds Pvt. Ltd. v Ramnagar Seeds Farm Pvt. Ltd. and Ors.
Citation: 2023 LiveLaw (Cal) 155
The Calcutta High Court has held that jurisdiction of civil courts is barred by Protection of Plant Varieties and Farmers Rights Act, 2001 insofar as deciding validity of registration of a variety is concerned.
A division bench of Justice IP Mukherji and Justice Biswaroop Chowdhury observed Section 89 provides that the civil court would not have any jurisdiction over any matter which the Registrar has the power to determine.
Case: Atindra Nath Mondal v State of WB and ors CRR 919 of 2023
Citation: 2023 LiveLaw (Cal) 156
The Calcutta High Court has observed that "judicial restraint and discipline" does not mean that even in extreme cases a Judicial Officer is not entitled to take exception against non-conforming acts of an Advocate representing a party.
A single-judge bench of Justice Bibek Chaudhuri observed that where the Counsel of any of the parties disturbs judicial function of a Court, the Judge has every right to pass an order by caution to the Advocate concerned.
Case Title: Suvendu Adhikari v. WB State Election Commission and connected petitions
Citation: 2023 LiveLaw (Cal) 157
In petitions concerning the upcoming Panchayat elections in West Bengal, the Calcutta High Court refused to direct the State Election Commission to extend the deadline for filing nominations.
The division bench of Chief Justice Sivagnaman and Justice Hiranmay Bhattcharya had last week said that five days time provided for filing nomination papers is prima facie inadequate. However, in its order it said writ of Mandamus cannot be issued for extending the date for filing of nominations.
Case Title: Sri Santosh Saha and Anr vs The Managing Director, Calcutta State Transport Corporation FMA 3357 of 2015
Citation: 2023 LiveLaw (Cal) 158
The Calcutta High Court directed the West Bengal State Transport Corporation (WBSTC) to pay about Rs. 2 lakh compensation to the family of a minor girl who was killed in a road accident with WBSTC bus in 2007.
The victims' parents had approached the Court against an order of the Motor Vehicles Accident Claim Tribunal, wherein it only awarded them Rs 15,000 in compensation. They argued that strict interpretation of Section 163A was needed and that the negligence of the offending vehicle would be immaterial in such cases however, the Tribunal proceeded to decide the aspect of negligence.
Case Title: Dinesh Kumar Birla v Institute of Cost Accountants of India and Anr
Citation: 2023 LiveLaw (Cal) 159
The Calcutta High Court dismissed a Writ Petition filed by a member of the Institute of Cost Accountants of India (ICAI), Ahmedabad chapter, contesting the rejection of his nomination for elections to the Council of the ICAI.
In dismissing the appeal, a division bench of Chief Justice Sivagnaman and Justice Hiranmay Bhattacharya allowed the petitioner liberty to approach the Election Tribunal of the Institute of Cost Accountants and upon his request also observed that in case the grievances of the petitioner were genuine, the Tribunal may attempt to conclude such proceedings within three months.
Case Title: Apollo Multispeciality Hospitals Limited & Anr. vs. West Bengal Clinical Establishment Regulatory Commission WPA 3858 of 2022
Citation: 2023 LiveLaw (Cal) 160
The Calcutta High Court has held that a number of Advisories and an Order issued by the West Bengal Clinical Establishment Regulatory Commission (“Commission”) for fixation of rates and charges by Clinical Establishments (“CEs”) from patients in the State, were without any statutory backing and thereby violated the Fundamental Right to Trade of the CEs under Article 19(1)g of the Constitution.
While allowing a writ petition by Apollo Multispeciality Hospitals and directing the respondent Commission to rescind their advisories, a bench of Justice Moushumi Bhattacharya observed that on a reading of the provisions of the West Bengal Clinical Establishments (Registration, Regulation and Transparency Act, 2017 (“the 2017 Act”), it became clear that the power to issue Advisories of such a nature was not available to the respondent Commission.
Case Title: Abdul Maleque Molla & Ors. v. West Bengal State Election Commission & Ors
Citation: 2023 LiveLaw (Cal) 161
A single-judge bench of Justice Rajasekhar Mantha of the Calcutta High Court has allowed a petition on behalf of prospective candidates in the forthcoming three Panchayat elections, praying for police protection to file nomination papers.
Earlier, a division bench of Chief Justice Sivagnaman and Justice Hiranmay Bhattacharya had expressed their inability to extend the date for filing nominations for the Elections, but assured that they would do all in their power to ensure that nominations were filed seamlessly.
Case title: SUVENDU ADHIKARI AND ANR VS STATE OF WEST BENGAL AND ORS
Citation: 2023 LiveLaw (Cal) 162
The Calcutta High Court has directed the West Bengal State Election Commission to requisition central forces for all districts in West Bengal within 48 hours for the 2023 Panchayat Elections.
A division bench of Chief Justice Sivagnaman and Justice Uday Kumar passed the order in a plea filed by Leader of Opposition in West Bengal, Suvendu Adhikari.
The bench noted that a direction for earmarking sensitive areas and deploying forces was passed earlier, but no appreciable steps were taken in this regard.
Case Title: Sunit Sarkar v. Commissioner, WB SEC
Citation: 2022 LiveLaw (Cal) 163
The Calcutta High Court ordered the State Election Commission to grant one more day to the 'Shiksha Bandhus' to file their nominations for the upcoming panchayat elections in West Bengal. The polling is slated to be held on July 8.
Shiksha Bandhus are contractual teachers under the erstwhile Sarva Shiksha Abhiyan. A division comprising Chief Justice Sivagnaman and Justice Uday Kumar said Shiksha Bandhus will be allowed to file nominations till tomorrow, i.e. June 16.
The order comes in a petition filed by Sunit Sarkar alleging that Shiksha Bandhus were declared ineligible for filing nominations and it was only on the evening of 14th June that the SEC issued a notification declaring otherwise.
Case Title: State of West Bengal v Soumen Nandy
Citation: 2023 LiveLaw (Cal) 164
The Calcutta High Court has dismissed an appeal filed by the West Bengal government against CBI investigation into the infamous municipality recruitment scam wherein government jobs were given out to those who were unqualified, without following the processes laid down. The State had appealed against a decision of Justice Abhijit Gangopadhyay handing over the investigation for this matter to the CBI on the contention that Justice Gangopahdyay did not have jurisdiction over such matters.
A Division Bench of Justice Tapabrata Chakroborty and Justice Partha Sarthi Chatterjee observed that the instances of corruption wherein government jobs were given out in exchange of monetary compensation, were the reason behind “widespread dejection and disillusionment among masses.”
In concluding, the Bench upheld the order of Justice Gangopadhyay's decision to hand over the probe from the ED, which had been investigating the aforesaid scam since 2022, to the CBI and opined that the State government cannot stop an investigation into such large-scale instances of ministerial collusion and corruption on mere technicalities.
Case Title: Manoj Mishra v State of WB
Citation: 2023 LiveLaw (Cal) 165
The Calcutta High Court took up a matter concerning the Jagannath Rath Yatra festival being celebrated in West Bengal.
A single-bench of Justice Rajasekhar Mantha held that the Howrah Police's directives in not allowing a chariot procession to take place by devotees of Lord Jagannath, would be unreasonable and amount to an “interference with religious practice.”
Earlier, the Petitioner had approached the Court for permission to hold a Rath Yatra parade in a certain area. The Court had directed him to approach the appropriate police authorities for requisite permission. Aggrieved by the response of the Police, the petitioner moved this petition.
While disposing of the petition, Justice Mantha opined:
"The petitioner shall as already directed earlier, maintain peace and harmony in the procession of the Rathyatra…if there is any anticipation of any vested interest or elements to disrupt the religious function, appropriate and stern procedural measures shall be taken by the police.”
Case: Spot Billing Meter Readers Welfare Association v State of WB & ors
Citation: 2023 LiveLaw (Cal) 166
The Calcutta High Court dismissed a PIL filed on behalf of the Spot Billing Meter Readers Welfare Association, seeking directions against the installation of smart-billing electricity meters over apprehension that they would jeopardise the jobs of thousands of meter-readers.
While petitioner acknowledged that technology should not be resisted, he expressed concern that a wide-scale use of technology in meter-reading would render the jobs of most manual meter-readers irrelevant, thereby affecting their lives and livelihood.
The PIL was dismissed with the bench opining, “We are of the view that such apprehension is absolutely baseless. There has been no material placed by the petitioner to show that meter-readers job would be rendered irrelevant by smart-meters.”
While the Writ petition was dismissed, the Court gave the petitioners liberty to approach any appropriate forums if their own rights were being affected in any way.
Case: The State of West Bengal and Others v Sabita Roy and connected petitions.
Citation: 2023 LiveLaw (Cal) 167
A Full bench of the Calcutta High Court held that family pension can be extended to unmarried/ widowed daughter of an employee who superannuated or died prior to coming into force of the Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981, which came into effect on and from 1st April, 1981.
The bench comprising Justice Harish Tandon, Justice Shampa Sarkar and Justice Rabindranath Samanta made the observation while answering a reference in connection with three petitions relating to grant of family pension to (i) widowed daughter of a deceased Assistant Teacher, (ii) widowed daughter of a retired (now deceased) high school clerk and (iii) unmarried and handicapped daughter of a retired (now deceased) Assistant Teacher.
Case: Professor Syed Haider Hassan Kazimi & Ors. vs State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 168
The Calcutta High Court recently allowed a plea seeking to insert prayer for writ of Quo Warranto in a Writ petition filed seeking a writ of Certiorari for quashing a Notification issued by the Minority Affairs and Madrasah Education Department of the State.
A single-judge bench of Justice Moushumi Bhattacharya held that it would be within the powers of a Writ Court under Article 226 of the Constitution to allow for the amendment of prayers in a writ petition, and that a writ of certiorari and one of quo warranto are not mutually destructive. “Certiorari and Quo Warranto may be independent, space-hugging bedfellows but are not warring or destructive of each other,” it remarked.
Case: Kausik Ghosh & Ors. Vs. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 169
The Calcutta High Court has pulled up the Kolkata Municipal Corporation (“KMC”) for its practice of engaging contractual workers to carry out the tasks of permanent employees against the settled position of law in various rules of recruitment, as well as precedents laid down by the Supreme Court from time to time.
A division Bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray partly allowed an appeal preferred by such contractual workers, seeking regularisation of appointment due to apprehension of losing their contractual jobs, after a decade of service.
The Court, in an exceptional finding, which it did not want to become a precedent, held that while an order for regularisation of service could not be passed due to the dictum of the Supreme Court on this issue, the petitioners would be protected from losing their jobs till their age of superannuation.
Case: RANJU JHA VS NARENDRA KHARKA AND ORS
Citation: 2023 LiveLaw (Cal) 170
In an appeal against an order for transfer of investigation to CBI in a case concercing a murder investigation linked with the infamous coal and cattle scams in West Bengal, the Calcutta High Court has said that the powers of a Court to transfer an investigation from one investigative agency to another, particularly a central investigative agency, must be exercised “sparingly” and only along parameters as laid down in multiple decisions of the Supreme Court.
A division bench of Chief Justice Sivagnaman and Justice Ajay Kumar Gupta set aside the order for transfer of investigation and held that there must be a “proven live link” between the investigation sought to be transferred and related investigations being carried out by the Central Bureau of Investigation (“CBI”).
Case: Prakash Shaw v. State of West Bengal
Citation: 2023 LiveLaw (Cal) 171
The Calcutta High Court has recently upheld the conviction of a boy who allegedly “pawed” at a minor girl while she was accompanied by her mother in a public area. A single-judge bench of Justice Siddhartha Roy Chowdhury upheld the conviction on the basis on the minor's testimony and noted that non-examination of the victim by the Police would be of no consequence in such circumstances.
The bench was hearing an appeal against conviction. It was submitted by the respondents that while the both of them were walking back home from a marketplace in Howrah, the minor was assaulted by a boy approaching them from the opposite side.
In upholding the conviction, the Bench noted, “The testimony indicates that after the boy touched her breast, he was nabbed by her as well as her mother and he was slapped. The place was crowded and soon after the incident police arrived there. The accused person did not utter anything indicating his lack of intention to commit offence."
Case: West Bengal State Election Commission and another vs. National Human Rights Commission and others
Citation: 2023 LiveLaw (Cal) 172
The Calcutta High Court set aside an order of the National Human Rights Commission (“NHRC”) deputing the Director General (Investigations) of the Commission as a Special Human Rights Observer for the upcoming panchayat polls, slated to held on July 8.
A single-bench of Justice Sabyasachi Bhattacharya observed that panchayat elections are held by the State Election Commission (“SEC”) and "intrusion by the NHRC into the exclusive domain of the SEC" is not justified.
Court said exception to such powers has been made only with regard to law enacted by the Parliament as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission.
The Bench noted that the NHRC erred in passing orders, directing the SEC to curb instances of violence during the WB Panchayat Elections 2023, since it did not have any authority to do so over a Constitutional body such as the SEC; thus acting outside the Constitution as well as its parent statute, the Protection of Human Rights Act, 1993. (“NHRC Act”)
Case: Shree Gopal Tantia @ Gopal Prasad Tantia Vs. The State of West Bengal & another
Citation: 2023 LiveLaw (Cal) 173
The Calcutta High Court recently allowed a petition seeking revision of a Trial Court order which initiated criminal proceedings against the director of “GPT Infra Projects Limited”, finding no privity of contract with the complainant M/s Vinayak Construction.
A single-bench of Justice Bibhas Ranjan De observed that Vinayak Construction was hired by B2R, a partnership firm, to complete a portion of certain contract work for GPT Infra. As per the complaint, the persons employed by Vinayak Construction to oversee the work misappropriated the payments in conspiracy with B2R and GPT Infra.
The bench noted that the entire complaint filed by Vinayak Constructions under 156(3) CrPC was against B2R and their own agents, and only in the last part of the complaint does it allege any illegality on part of GPT.
There being no privity of contract, the director of GPT Infra was discharged from any criminal proceedings against him.
Case: Beshaka Mondal & Ors v. The State of West Bengal & Ors
Citation: 2023 LiveLaw (Cal) 174
The Calcutta High Court has observed that election of candidates uncontested has a detrimental impact on the right to choice afforded to voters of an electorate.
A single-judge bench of Justice Amrita Sinha thus directed the State Election Commission to reconsider its decision declaring certain candidates as 'elected uncontested', after abruptly dropping the names of other candidates from the final list of contesting candidates in Bhangore district. The names were dropped citing delay in filing the nomination papers.
Aggrieved candidates said their nominations were filed beyond the scheduled time in view of rampant election violence.
The Court said there is no provision in law to drop the names of prospective candidates from the list of validly nominated candidates if the said candidates did not withdraw their nominations.
"The fact that the names of the petitioners were enlisted in the list of validly nominated candidates implies that the nomination papers of the petitioners were in order and accordingly accepted by the Returning Officer. The same could not have been rejected and the name of the candidate could not have been abruptly dropped from the list of validly nominated candidates only on an objection filed by the opponent candidate," it observed.
ECLGS Scheme: Calcutta High Court Pulls Up Govt Company For Defying Its Directions
Case: Guha Roy Food Joint and Hotel Private Limited & Anr. v. Richa Singh & Ors
Citation: 2023 LiveLaw (Cal) 175
The Calcutta High Court has recently slammed the National Credit Guarantee Trustee Company Ltd. set up by the Union Finance Ministry for its "contumacious conduct" to defy Court's order requiring consideration of petitioner, a food and lodging business, for the benefit of an Emergency Credit Line Guarantee Scheme (ECLGS).
A single-judge bench of Justice Moushumi Bhattacharya sternly remarked,
The conduct is clear, the alleged contemnors sat by and waited for the time to pass so that the judgment and order became infructuous and the petitioners deprived of its right even to contest the appeal on merits. The power of the Court in contempt jurisdiction to pass orders is an inherent power…the Court can exercise the power to vindicate its own dignity and to shield those who are entrusted to its care...”
Case: Dr Sanat Kumar Ghosh V. The Chancellor, University of Kalyani And Others
Citation: 2023 LiveLaw (Cal) 176
The Calcutta High Court has dismissed a petition filed by a retired Professor, seeking directions to annul the appointments of thirteen interim Vice-Chancellors in State Universities, which were made by the Governor of West Bengal acting as Chancellor of the said Universities. The petitioner had challenged these appointments on the ground that they were bad in law for being made without consulting the relevant state ministry, as was statutorily required.
While dismissing the plea, a Bench of Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta held that the petitioner had failed to show any public cause in their PIL and that the State's support of the same may give rise to connotations that the petitioner was being used as a “tool” to indirectly challenge the orders of the Governor. It opined:
“The writ petitioner has miserably failed to point out as to what is the public interest which has been affected and curiously enough the State of West Bengal which did not raise any objection to the orders passed by the Hon'ble Chancellor has now toed the line of the writ petitioner and outrightly supporting the case of the writ petitioner and virtually stepped into the shoes of the writ petitioner. Therefore, we are well justified in forming an opinion that the writ petitioner has been used as a tool with a view to indirectly challenge the orders issued by the Hon'ble Chancellor. However, we do not wish to go deep into this matter and we leave it as such as we are satisfied that there is no illegality in the orders issued by the Chancellor in favour of the private respondent herein and a writ of quo-warranto would not lie.”
Case: Dipak Kumar Mondal & Ors. v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 177
The Calcutta High Court recently dismissed a criminal application for modification of Judgement, and held that no judgement or final order pronounced by a Court can be altered or reviewed, once it has been signed, except to correct a clerical or arithmetic error.
Relying on Section 362 of CrPC, a single-judge bench of Justice Bibek Chaudhuri held:
“The above provision is abundantly clear that a clerical or arithmetical error can only be corrected after pronouncing of a judgment. Once judgment is pronounced, even the High Court has no jurisdiction to entertain application for grant of permission to compound the offence. In view of the clear provision of Section 362, the High Court has no jurisdiction under Section 482 of the Code of Criminal Procedure to alter the earlier judgment after it has been signed. No criminal court can review its own judgment after it is signed. It is an accepted principle of law that when a matter has been finally disposed of by a Court, the court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent.”
Case: Ustor Ali Biswas v The Commissioner, The West Bengal State Election Commission & Ors
Citation: 2023 LiveLaw (Cal) 178
The Calcutta High Court directed the West Bengal State Election Commission to re-scrutinise nomination papers of two candidates for the upcoming Panchayat Elections, after a plea was filed alleging inaction during the scrutiny process by a Returning Officer from Karimpore-II block in West Bengal. A single-judge Bench of Justice Amrita Sinha ordered:
“Without going into the merits of the allegation of the petitioner, the instant writ petition is disposed of by directing the Commission to re-scrutinize the nomination papers of the respondent nos. 4 and 5 by treating the writ petition as the affidavit of the petitioner…at the earliest but positively by 5th July.”
The petitioner, a contesting candidate himself, alleged that the private-respondents had pending criminal cases, which would disqualify them from contesting the elections. It was the contention of the petitioner that he had filed an objection with the relevant Block development officer, but the complaint had not been taken cognizance of. The petitioner prayed for the cancellation of nomination of the private-respondents.
Calcutta High Court Suspends Sentence Of Woman Convicted For Murder Of 6-Year-Old Step Daughter
Case: Naju Bibi @ Narjina Bibi v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 179
The Calcutta High Court recently suspended the sentence of a woman who was sentenced to life imprisonment by the trial court for killing her six-year-old step daughter with poison.
Taking note of the fact that the woman has already spent over six years in prison and that her appeal against conviction is still pending, a division-bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray said this is not a case where it could be said that she has absolutely no chance of succeeding in her appeal.
"Since the appeal is pending, her conviction has not attained finality. She has spent about six and a half years in incarceration. Nobody can say with any certainty when the appeal will be finally decided. If the appeal succeeds at whatever future point of time, indeed, no one will be able to compensate the applicant for the time lost in jail by reason of conviction for a crime that she has not committed," said the court.
Case: The New India Assurance Co. Ltd. v Winsome International Ltd.
Citation: 2023 LiveLaw (Cal) 180
The Calcutta High Court has ruled that where the supplier is a “medium enterprise” under Section 16 of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act), the rate of interest levied on the arbitral award would be at the bank rate notified by the RBI, and not three-times of such rate, as would have been the case if it were a Micro, or Small enterprise under Section 16 of the MSMED Act.
Justice Moushumi Bhattacharya was hearing a petition by New India Assurance Co Ltd for a stay of the arbitral award of Rs 24,11,07,449.15 imposed on them by a sole-Arbitrator, on the grounds that the Arbitrator had set the rate of interest at 24.6%, which was three-times the bank rate notified by the RBI, in spite of the respondents being a “medium enterprise.”
The court said three kinds of enterprises are defined in three distinct ways under MSMED Act and cannot be viewed as a common set of similar enterprise.
Case: State Of West Bengal And Ors. Vs Sirajul Islam Gharami And Ors.
Citation: 2023 LiveLaw (Cal) 181
The Calcutta High Court set aside a single-judge order directing registration of FIR against certain police officials of Baruipur district for alleged violence, while exercising writ jurisdiction under Article 226 of the Constitution.
Questioning the perpetual practise of approaching the High Court under Writ Jurisdiction when there are alternate remedies available under other statutes, a bench of Chief Justice T.S. Sivgananam and Justice Hiranmay Bhattacharya orally remarked:
“How is your writ maintainable? Why do you not avail remedy (under 156(3) CrPC)? Why short circuit to the writ court? The remedy is under a statute, and you go before a judicial magistrate. Here in writ jurisdiction, on affidavits, how can we give a positive direction for registration of FIR? This has become a routine affair. You have virtually converted the single-bench residuary determination to a Magistrates court. Day in and day out we are seeing…it is a surprise for me…this process in unknown to law. There are umpteen decisions of the SC, rendered by Justice Markandey Katju who says these cases should not be entertained under 226. The magistrate is there to ascertain the facts of a case…he can monitor investigation or issue any positive directions.”
Case: National Human Rights Commission and Ors v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 182
The Calcutta High Court has dismissed the appeal preferred by the National Human Rights Commission (NHRC) against a single-judge's order which set aside appointment of observers and other related directions issued by the Commission “to protect human rights” in the course of the 2023 Panchayat Elections, on the basis of a media reports on wide-spread violence.
In dismissing the appeal, a Division Bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held that, being a body sui juris as pointed out by the single-judge as well as the Advocates for the SEC, the NHRC would have to trace the validity of its actions to its parent statute, viz. the Human Rights Act, 1993 (“Act”), which was not done in this case.
“NHRC being a statutory authority constituted under the 1993 Act has to act within the forecorners of the said statute and the regulations framed thereunder subject to the limitations imposed upon it by the statute and the regulations thereunder. It is the duty of the SEC, being a constitutional authority to appoint observers in accordance with the provisions of the 2003 Act. Therefore, the NHRC cannot encroach upon the jurisdiction of the SEC by appointing observers” it was held.
Case: Texmaco Rail and Engineering Limited & Anr v Union of India and Ors
Citation: 2023 LiveLaw (Cal) 183
The Calcutta High Court has observed that to ensure that the best competitor is chosen, the process of selection adopted by a public undertaking is required to be transparent.
A single-judge bench of Justice Sabyasachi Bhattacharya observed thus set aside the rejection of tender submitted by petitioners Texmaco Rail & Engineering Ltd., on the grounds that such a rejection by the respondent-Railway authorities, was arbitrary and mala fide.
In directing the respondents to accept the petitioner's bid, and conduct the tendering process afresh, from the reverse-auction stage, the Court observed,
“There was no basis for such rejection, as apparent ex facie from the materials furnished by the petitioner. The same was arbitrary and de hors the tender terms. More importantly, the impugned rejection would imply that the reverse auction contemplated under the tender would be avoided altogether, which bodes ill for the tender process, by curtailing wider participation, fair competition and transparency. In order to ensure that the best competitor is chosen, the process of selection adopted by a public undertaking is required to be transparent. As such, the impugned rejection cannot be sustained.”
Case: Tushar Manna v Ananda Sarkar
Citation: 2023 LiveLaw (Cal) 184
The Calcutta High Court recently quashed the criminal proceedings for trespass and intimidation initiated against ICICI Bank's debt manager who had visited the house of a credit card holder in connection with pending dues.
A single-judge bench of Justice Shampa Dutt (Paul) held,
“The petitioner being the Debt Manager of the bank's separate wing, with appropriate training as per RBI guidelines to facilitate the bank in its recovery process, allegedly went to the house of the complainant on 17.12.2019 at 2 pm to recover the bank's dues. The said act of the petitioner is part of his job and the time of going to the petitioner's house is also appropriate. Considering the time to be 2pm, it is apparent that the petitioner did not intend to act in an unlawful manner. The outstanding dues of the complainant is admitted. Thus, the conduct of the petitioner was in due course of his official duty and he has been empowered to do so as per RBI Guidelines. If every Authorised Officer of a bank/institution has to face criminal charges levelled by a defaulter, for acting in accordance with law, then it is clearly an abuse of the process of law and such proceeding should not be allowed to continue in the interest of justice.”
Case: Ujjwal Trivedi v The State Of West Bengal and Ors with Save Democracy And Ors v The State Of West Bengal And Ors
Citation: 2023 LiveLaw (Cal) 185
The Calcutta High Court has dismissed pleas filed against the West Bengal State Election Commission, for inter alia re-conduct of elections in areas where seats were uncontested, extension of dates for filing nominations and removal of the State Election Commissioner, among other ancillary reliefs.
A division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held that prayer for the removal of the Election Commissioner would not be maintainable since, it is an independent constitutional body which has been vested with the powers of “superintendence, directions and control” of the election process in terms of Article 243K of the Constitution of India read with provisions of the West Bengal State Election Commission Act, 1994. The Bench opined:
“In terms of Article 243K (2), the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. In the light of the said constitutional provisions, the prayer made by the writ petitioners to remove the State Election Commissioner is not maintainable and the same is rejected.”
Case Title: Dipu Bar and Ors. Vs Union Of India and Ors.
Citation: 2023 LiveLaw (Cal) 186
The Calcutta High Court recently directed the District Magistrate of South 24 Parganas district to inquire into alleged discrepancies in allocation of public funds under the Pradhan Mantri Awas Yojana.
While disposing of a petition alleging “large scale illegalities” in the Yojana, a Division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya ordered:
“...without going into to the allegations, the District Magistrate, South 24 Parganas district, to is directed to consider the representation and investigate the matter, call for the necessary records, issue notices to all those concerned, and after a thorough enquiry, to take all action in accordance to law. In case public money has been found to be siphoned off, the DM is directed to take immediate remedial action and criminal actions against those who have siphoned off public funds. The above direction be complied with, within a period of 6 weeks.”
The petitioners approached the Court alleging that the State machinery, including the Block Development Officer in South 24 Parganas district, had misallocated public funds under the aforesaid scheme, such that those who were undeserving of such public funds, were allocated benefits under the same.
Case Title: Smt. Shanta Paul v The State Of West Bengal And Others
Citation: 2023 LiveLaw (Cal) 187
The Calcutta High Court dismissed a Public Interest Litigation seeking to nullify the appointment of the Registrar of Kazi Nazrul University, West Bengal, on the grounds that such an appointment was made on the basis of an erroneous advertisement, which did not conform to the UGC Regulations, 2018 or the All India Council for Technical Education (“AICTE”) Regulations, 2010.
A division bench of Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta noted that while there was no inconsistency between the UGC/AICTE Regulations and the impugned notification, identical reliefs had earlier been sought for in another writ petition, which had already been dismissed on merits.
In holding that a second writ petition on the same grounds would be barred under the principles of res judicata, the Bench opined:
“In the said writ petition, which was the public interest litigation, prayer was made to issue a writ of quo warranto against the 6th respondent and the challenge was to his qualification qua the AICTE Regulation/UGC Regulations. The matter was considered on merits and the writ petition was dismissed by order dated 05.06.2023. The said order has become final. Therefore, a second writ petition for the very same relief is not maintainable, more so when the grounds raised in the present writ petition also touches upon the eligibility/qualification of the 6th respondent. The petitioner cannot be permitted to have a piece-meal challenge of the appointment of the 6th respondent on the ground that certain grounds ought to have been raised in the earlier writ petition. Therefore, the present writ petition is clearly barred by the principles of res judicata.”
Case Title: Dhirarastra Dutta Vs State of West Bengal and Ors.
Citation: 2023 LiveLaw (Cal) 188
The Calcutta High Court recently restrained an individual registered with the “Alternate Medical Council, Kolkata” from using the prefix 'Doctor' and directed the West Bengal Medical Council to investigate into issues concerning illegal and unauthorised handing out certificates of 'registered medical practitioners'.
In holding that no individual could be certified as a 'registered medical practitioner' outside the rules as prescribed by the Indian Medical Council, a division-bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held:
“The petitioner has flagged an important issue which directly impacts the general public…the allegation is against the 8th respondent who portrays himself as a doctor and uses the prefix “Dr” before his name, and is carrying out medical practise. In terms of earlier decisions of this Court, a person who does not possess the requisite qualification in terms of the Indian Medical Council Act, 1956, and whose name does not appear in the register of medical practitioner as contemplated in the aforesaid act, is not entitled to use the prefix doctor, or 'Dr.' Admittedly, the petitioner does not possess any medical degree from any recognised medical institution, but would refer to a certificate issued by the Alternate Medical Council, stating that he is registered as per the bye-laws of Bowbazar Society for Alternate Medicine as a registered medical practitioner in an [alternate] system of medicine. The institute of alternate medical sciences cannot award a degree or certificate recognising anyone as an RMP. Therefore, action to be taken against the [aforesaid] institute… The certificate clearly shows that it is a bogus institution, and on the basis of this certificate, the respondent cannot practise medicine in any form.”
Case Title: Srei Equipment Finance Limited v. Seirra Infraventure Private Limited
Citation: 2023 LiveLaw (Cal) 189
The Calcutta High Court has recently held that when a party forfeits its right to appoint an arbitrator in accordance with Section 11 of the Arbitration & Conciliation Act, 1996 (“Arbitration act”), then it cannot subsequently “trace back its steps” to revive such a right, for the substitution of a fresh panel of arbitrators, when the existing arbitrator becomes de jure/de facto unable to discharge their duties.
In holding that the substitution of a new panel would be done by the Court under Sections 14 and 15 of the Arbitration Act, and that the entire arbitration process could not be permitted to go back to the stage of the parties conferring to appoint arbitrators mutually, under Article 11 of the Act, a single-bench of Justice Moushumi Bhattacharya held:
“After all, the intent of the 1996 Act, with all the amendments up to 2019, is to speed up the process of arbitration. The intent cannot be to retrace the steps from sections 15 to section 11 whenever an arbitrator is required to be substituted…The right to choose an arbitrator was relinquished in favour of the Court appointing an arbitrator which the Court did on 22.2.2022. The respondent cannot revive that right once the arbitrator became de jure / de facto unable to act under section 14. The above discussion must and invariably tilt towards the Court appointing new arbitrators in the same manner as was done on the previous occasion on 22.2.2022 when the parties approached the Court under Section 14 of the Act. There is no statutory basis to send the parties back to the section 11(5) position.”
Case Title: State of West Bengal & Ors. v. Asit Das & Ors. & connected appeals
Citation: 2023 LiveLaw (Cal) 190
Once government utilizes a person's land, it is duty bound to follow land acquisition laws; why would the citizen who has been deprived of his property be required to approach the Court for seeking compensation, the Calcutta High Court said recently.
The remarks were made while dismissing multiple appeals preferred by the West Bengal government against orders of a Single-judge in 2017, directing the Land Acquisition Collector to compensate the respondent-landowners.
The division bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray observed:
“While right to property may not be a fundamental right any more, it is still a constitutional right. Article 300A of the constitution provides that no person shall be deprived of his property save by authority of law. In fact, right to property has now been recognised as a human right. Expropriation by the State without compensating the owner of the land is not permitted under the laws of the country...Any responsible Government must act fairly, reasonably and not arbitrarily and should on its own ensure that due compensation is paid to a citizen for the loss of his land which has been utilised by the Government, albeit for a public purpose. It would be preposterous if the State is permitted to contend that since the land looser was sleeping over his rights and did not approach a legal forum promptly, he forfeits the right to receive compensation for the land that the Government has taken over and is not in a position to return the same to the owner thereof.”
Case Title: Jaya Industries v Mother Dairy Calcutta & Anr.
Citation: 2023 LiveLaw (Cal) 191
The Calcutta High Court has recently held that that the power of a Court to continue hearing an application for interim relief under Section 9(1) of the Arbitration and Conciliation Act, 1996, (“1996 Act”) would not be “fettered” under Section 9(3) after the constitution of an arbitral tribunal, if the court has already entertained the application.
A single-judge bench of Justice Moushumi Bhattacharya held, that while Section 9(3) barred the Court from taking up any interim application after the due constitution of the arbitral tribunal, the same could not fetter the power of a Court to continue hearing an application, which it had already entertained prior to constitution of such a tribunal. It was held:
“The Supreme Court considered the expression “entertain” and held that if the Court had already applied its mind to the issues raised, then the Court can proceed to adjudicate the application notwithstanding the bar of section 9(3)."
The bench was referring to Supreme Court's decision in Arcelor Mittal Nippon Steel India Limited vs. Essar Bulk Terminal Limited.
Court said the intended object of section 9(3) is to allow the arbitral tribunal to consider the prayer for interim relief once the tribunal has been constituted. Section 9(3) aims to prevent multiple levels of hearing for the same relief and envisages a clockwise motion of considerations of the matter after an arbitral tribunal has been constituted.
Accordingly, it was held that the Court would continue hearing the interim application under Section 9(1), notwithstanding the constitution of the Arbitral tribunal, since it would not fall under the bar under Section 9(3) due to having already 'entertained' the dispute previously.
Calcutta High Court Criticizes "Indefinite" Ban On Bidder Pending Criminal Trial
Case: Auroma Coke Limited v Coal India Limited and others
Citation: 2023 LiveLaw (Cal) 192
The Calcutta High Court has allowed a writ petition for the lifting of a ban imposed on Auroma Coke Ltd (“petitioners”) from taking part in the Non-regulated Sector (“NRS”) Linkage auctions organised by Coal India Limited (“CIL”).
The petitioners were blacklisted by CIL in the year 2011 upon a communication by the Central Bureau of Investigation (“CBI”) regarding alleged mis-utilisation of coal carried out by the petitioners. The CBI had since filed a chargesheet in the matter in 2012 and an ongoing criminal trial had since ensued before a sessions court in Dhanbad.
Upon purposively constructing the “Scheme Document of November 2022”, released by CIL, in order to interpret the sections on blacklisting in NRS Linkage auctions, a single-judge Bench of Justice Sabyasachi Bhattacharya held that the tender document itself stipulated a maximum blacklisting period of 5 years, even if there existed an ongoing criminal investigation or order of conviction against the petitioner.
Case: The State of West Bengal & Ors. Vs. M/s. BBM Enterprise
Citation: 2023 LiveLaw (Cal) 193
The Calcutta High Court has recently allowed an application filed by the State of West Bengal, as an award-holder in AP 808 of 2022, under the Arbitration and Conciliation Act, 1996 (“1996 Act”) to withdraw a security of Rs 9 crore furnished by BBM Enterprises (“award debtor”) in lieu of the arbitral award, during the pendency of setting aside proceedings on the impugned award, initiated by the award-debtor.
In holding that an award-holder required no statutory sanction or a separate application in the stay proceedings for withdrawing the secured amount, a single-bench of Justice Moushumi Bhattacharya directed the State to furnish a bank guarantee of an equivalent amount to the Registrar, Original Side, Calcutta High Court, before withdrawing the amount, and opined that withdrawal of the amount would not prejudice the rights of the award-debtor, during the pendency of the setting-aside proceedings.
Case: Tanushree Hazra Vs State of West Bengal And Ors.
Citation: 2023 LiveLaw (Cal) 194
The Calcutta High Court directed the West Bengal Pollution Control Board (“PCB”), to carry out surprise inspections on certain rice-mills in Arambagh allegedly discharging toxic effluents into a kuchha 'drain' along the side of a busy National Highway.
Upon noting that the PCB had previously ordered the closure of the aforesaid rice mills due to their illegal and polluting actions, a division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya observed:
“As long as the order of PCB has not been revoked, altered or modified, the private respondent rice mills are not entitled to carry on their actions It is not clear as to why the PCB has not made any further inspection in the matter. Therefore, there will be a direction to the appropriate authority of the WB PCB to conduct an immediate surprise inspection of all the respondent rice mills. If it is found that despite the order of closure, or in non-compliance with any directions issued by PCB, the mills are operating, then immediate action must be taken against them. If they are complying with direction by establishing effluent treatment plant among other conditions, then only will the PCB be entitled to permit them to carry on business. The surprise inspection shall be carried out not later than ten days from the communication of the server copy of this order.”
Case: Shreekant Sharma Vs. The State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 195
The Calcutta High Court has refused to quash the criminal proceedings under the Protection of Children from Sexual Offences Act (“POCSO Act”) initiated by a minor girl against her grand-uncle, a priest, accusing him of committing various acts of sexual assault upon her, when she was 15-16 years old.
In refuting the contentions raised by the petitioners, including the delay in filing of FIR, a single-judge bench of Justice Bibek Chaudhuri noted that the social stigmatisation of rape and sexual assault survivors often leads to them being unable to report such crimes, and held:
“There are a plethora of reasons why victims of sexual assault do not come forward with allegations. Firstly, they are discouraged from filing F.I.R. and are not believed by the authorities. This is coupled with the social stigma that a woman and her family face from society when such an act is committed against her. More importantly, sexual harassment and rapes are crimes which can cause lifelong trauma to the victims and it is impossible to mathematically calculate or prescribe a time limit as to when a person would recover and would be comfortable with filing a complaint.
Case: Somnath Gupta Vs. State of West Bengal & Orr
Citation: 2023 LiveLaw (Cal) 196
The Calcutta High Court dismissed the revision petition filed by film director Somnath Gupta against Sessions Court order dismissing his prayer for second further investigation into alleged 'piracy' of his film “O-Kay…? At Night in the Forest”.
The criminal case was registered in 2015 under various provisions of the IPC and the Indian Copyright Act, 1957. Gupta claimed the initial probe into the origin of pirated CD was not proper and alleged that police were unwilling to investigate even after the first order for further investigation.
However, a single-bench of Justice Shampa (Dutt) Paul held that further investigation could not be ordered for the second time, if sufficient relevant material had already been placed on record.
Case Title: Shagufta Sulaiman v State of WB and ors
Citation: 2023 LiveLaw (Cal) 197
Ahead of Muharram, the Calcutta High Court issued directions to the West Bengal Police and the State's Pollution Control Board to regulate instances of public nuisance caused by alleged drum-beating and open-air kitchens.
A division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya said the State ought to counterbalance the right to enjoyment of religion under Article 25(1) of the Constitution with the Right to Life under Article 19(1)(a). "On proper construction, it cannot be said that a citizen should be coerced to hear something he does not like or require," it orally remarked.
Court said drum beating cannot go on continuously and directed the police to immediately issue public notice, regulating the timing for beating of drums. It suggested that permission should be given for two hours in the morning and two hours in the evening. "[Drum beating] should not start before 8am. There will be school going children, exams are there, old and ill people...normally you give permission for two hours in the morning, two hours in the evening. But after 7pm it shouldn't happen," the Chief Justice said.
Case: Shivani Mishra Vs. The Union of India and others
Citation: 2023 LiveLaw (Cal) 198
The Calcutta High Court has held that during the 'police verification' process for the issuance of passport, the responsibility of the police is limited to ascertaining the genuineness of documents produced for verification by the applicant, and that the applicant should not be made to suffer indefinitely for inaction by the police authorities.
In allowing a writ-petition, directing the police authorities to expeditiously conclude the verification process of the petitioner's birth certificate, a single-bench of Justice Sabyasachi Bhattacharya held:
"It transpires from the annexure at page-17, regarding Passport Verification Status that the list of documents to be submitted at the Police Station for police verification only requires two of the documents, as stated therein, to be produced as citizenship proof. Since the petitioner has already submitted more than two such documents, no further documents are required to be furnished by the petitioner with the police authorities. The lookout of the Police is only to ascertain whether the documents produced by the petitioner are genuine. The petitioner cannot suffer indefinitely for such inaction on the part of the Police authorities. Accordingly, WPA No. 16452 of 2023 is allowed, thereby directing the respondent no.2-authorities to immediately ascertain as to the outcome of the e-mail allegedly sent to the respondent no.3-authorities, with regard to the verification of the birth certificate produced by the petitioner.”
Case: Rabin Tudu vs. State of West Bengal & ors and connected applications
Citation: 2023 LiveLaw (Cal) 199
The Calcutta High Court has upheld the constitutional validity of Section 10C of the West Bengal School Service Commission Act, 1997 (“1997 Act”) which was introduced vide an amendment in the year 2017 enabling transfer of a teacher from one school to another.
A division-bench of Justice Harish Tandon and Justice Prasenjit Biswas were assigned to decide the common question of constitutional validity that had arisen in several writ petitions, pending before different benches.
Section 10C had been challenged in a slew of writ petitions filed by teachers of various state aided schools, against their alleged “illegal transfers” by the State under the aforesaid provision. The Division bench held,
“Every service in the public employment unless forbidden by law is transferable. A teacher which is placed in a school if transferred to another school, it does not affect the right to life as he or she is conscious that the service is transferable. In every transferable service, if a person is transferred from one place to another he may contend that his dignity is impaired as steadiness and he is entitled to live a life in stress-free atmosphere; and in such event none of the employee in the public employment would be transferred from one place to another. We do not find any substance in the stand that the transfer of teacher from one school to another offends the constitutional guarantee of right to life under Article 21 of the Constitution. We, thus, do not find that Section 10C can be declared ultra vires to the constitution.”
Case: Biresh Poddar and another v State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 200
The Calcutta High Court has recently directed the West Bengal State Sentence Review Board (“the Board”) to reconsider the plea of a petitioner, who has spent 23 years in incarceration, for remission of sentence, upon noting that the Board which had considered the plea was not only improperly constituted, but had also failed to consider the National Human Rights Commission (“NHRC”) Guidelines on early-release of prisoners.
In finding that not only did the Board lack the presence of a District judge, as was statutorily mandated, a single-bench of Justice Sabyasachi Bhattacharya also observed that it had failed to consider crucial tests for early release of prisoners, such as behaviour during incarceration, likelihood of committing similar crimes, etc.
Case: Nazia Elahi Khan vs State of West Bengal and Ors.
Citation: 2023 LiveLaw (Cal) 201
The Calcutta High Court dismissed a PIL filed against West Bengal Chief Minister Mamata Banerjee (“private respondent”) for restraining her from using allegedly “provocative speeches” at the “Red Road religious congregation” on the occasion of Eid-u-Fitr, next year.
A division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya orally remarked:
“A similar matter had come earlier…we didn't entertain…and this is already over. Now what to do? We should issue an injunction against the private respondent? Who is the petitioner? How did she come to know of the speeches? Through a news paper report? Ah, the foundation of the PIL is only a newspaper report. You have to do some research. If it is hate speech according to you, the CrPC provides you sufficient remedies.”
Case: Nigrani Sansthan Vs State Of West Bengal And Ors.
Citation: 2023 LiveLaw (Cal) 203
The Calcutta High Court has suggested the State's Health and Family Welfare Department to conduct periodic raids in order to quell instances of illegal manufacture of packaged drinking water, without license.
Previously, the Court had sought a report regarding the measures taken by the State to ensure the safety of packaged drinking water. Upon perusing such report, a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya disposed of the writ petition observing:
[This] problem is not a one-day affair and requires vigilant monitoring over all packaged drinking water manufacturers. Court suggests that a database be created by relevant department of State where all certified manufacturers can be enlisted and a caution notice be issued that without licenses no unit can produce packed drinking water. Apart from continuous monitoring, public may also be sensitized through leaflets and boards during festivals, warning the public not to drink water which are packed and do not display requisite permissions. The court trusts that the monitoring system is strengthened and continuous monitoring be done so that the safety and health of general public can be maintained.”
Case: The West Bengal Small Industries Development Corporation Limited WBSIDC Vs. Kaushalya Infrastructure Development Corporation Limited KIDCO
Citation: 2023 LiveLaw (Cal) 204
The Calcutta High Court has recently dismissed a plea filed by petitioners West Bengal Small Industries Development Corporation Limited (“WBSIDC”) for unconditional stay of an arbitral award passed against it in 2019, on the grounds of fraud and corruption, under Section 36(3) of the Arbitration & Conciliation Act, 1996 (“Act”).
In holding that the facts of the case, along with the arguments made by the petitioners would not satisfy the twin threshold of fraud or corruption under Section 36(3), a single-bench of Justice Moushumi Bhattacharya held:
The complaint of the petitioner…by no means touches (or even brushes) the threshold of the award being liable to be unconditionally stayed on the ground of fraud or corruption (or more likely being dragged down to the depths) as envisaged under the second proviso to section 36(3) of the Act. Granting stay of an award without imposing conditions on the award-debtor is a departure from the scheme of the Act and must be established within the strict vocabulary used in the second proviso. Any act which falls short of a certain kind of conduct on the part of the arbitrator or of the proceedings will not amount to fraud or corruption. The failing must be brought within the sharpness and intensity of the parameters as decided in the case-law together with the causal nexus with the award. This Court is not satisfied, prima facie, as to the existence of facts which warrant unconditional stay of the operation of the Award.”
Case: Sulekha Chatterjee & Anr. Union Of India & Ors
Citation: 2023 LiveLaw (Cal) 205
The Calcutta High Court has directed the Chief Postmaster General to settle a claim of Rs 6, 99,500 along with interest, in favour of a martyr's wife who had invested the amount in her local Burnpur Post Office's MIS and Fixed deposit scheme, which was subsequently misappropriated by an authorised agent.
A single-judge bench of Justice Shekhar B. Saraf held:
Based on the unfortunate events that led to this writ petition, this Court cannot help but conclude that the submissions made by the respondents are nothing but an attempt to shrug off their legal and ethical responsibility to compensate the petitioners for the loss suffered by them on account of the fraud perpetrated by Sri Routh, the authorised SAS agent, acting in nexus with the concerned officials of the post office. This Court, in the strongest possible terms, condemns the actions of Sri Routh, and other officials from the post office who were involved in the entire scheme of fraud in the instant case. This Court, also expresses its regret at the unnecessary and undue suffering caused to the petitioners for no fault of their own. Accordingly, this Court holds the respondents liable for the actions of Sri Routh, and the concerned officials of the Burnpur Post Office.
Case: Susanta Ghosh v The State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 206
The Calcutta High Court has, ex parte set aside an order of the Block Development Officer- Domjur (“BDO”), affirmed by the Sub-divisional Officer (“SDO”), which rejected the claim of the petitioner for an Other Backward Classes (“OBC”) certificate, without allowing him an opportunity for hearing or to produce relevant documents in support of his application.
In dismissing the BDO's enquiry report as “cryptic”, a single-bench of Justice Sabyasachi Bhattacharya emphasised on the sanctity of the petitioners Constitutional Rights, and directed the BDO to consider the petitioner's claim afresh on merits and pass a reasoned order within six weeks. It held:
“It is surprising that when the rights asserted by a person to fall under a Constitutional category is being considered, such a cryptic “enquiry report” is placed on record, which forms the very basis of rejection of such claim. It is unhappy that the said authorities, who decide valuable Constitutional rights of persons, are so cryptic in their consideration of such claims. Not a single document produced by the petitioner and annexed in the present writ petition was considered by the authorities, nor was any fruitful hearing given to the petitioner. No opportunity is found to have been given to the petitioner to produce his documents in support of his claim.”
Case: Sushil Kr. Gupta v The State of West Bengal & connected applications
Citation: 2023 LiveLaw (Cal) 207
The Calcutta High Court has refused to quash three separate criminal proceedings initiated under Sections 272/273 (Adulteration of food or drink intended for sale), 420 (Cheating) and 120B (Criminal Conspiracy) of IPC, against manufactures of allegedly spurious food items.
In refuting the petitioner's argument that the provisions under the Food Safety and Standard Act 2006 (“FSSAI Act”) impliedly debar the police from being able to conduct their own investigation into instances of food adulteration under the IPC, a single bench of Justice Subhendu Samanta held:
“The police is not specifically debarred to conduct investigation over the offence mentioned in Section 272/273 of IPC. It is true the police not being Food Safety Officer under FSS Act 2006 are not empowered to investigate into the offences mentioned specially in FSS Act. But nothing can debar police to investigate an offence punishable under IPC. The argument of implied repeal of Section 272/273 IPC appears to me not satisfactory or justified. Considering the same I am of a clear view that though a separate, specific, distinct procedure has been laid down in FSS Act 2006 to initiate/launch a proceeding against the offender of Food Laws that does not ipso facto debar the police to initiate/register a case u/s 272 or 273 of IPC. Thus in my view the investigation conducted by the police according to the provisions of Cr.P.C for the offence punishable u/s 272/273 IPC is maintainable.”
Case: Goodricke Group Limited & Ors. v The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 208
The Calcutta High Court has dismissed a plea by owners/lessors of several tea plantations, for setting aside an advisory dated 27th April 2023, issued by the State Labour Commissioner hiking interim minimum wage for tea plantation workers to Rs 250/- per day w.e.f. 1st June 2023.
A single-bench of Justice Raja Basu Chowdhury also directed the State to finalise the minimum wage settlement for such workers within a period of six months, and said:
I find that the Labour Commissioner had from time to time enhanced the wages pending finalisation of the minimum wage settlement. Such arrangement, obviously, had to be worked out since, the workers could not be called upon to wait indefinitely for the settlement of Wages under the said Act. I find that it is the petitioners had, in fact, all along accepted the enhancement of wages of the daily rated workers working in the tea garden. Having regard to the conduct of the petitioners, and the peculiar facts of this case, considering the human problem involved, it is only reasonable to conclude that the approach that was adopted by the parties, was to consciously overcome the delay in finalisation of the minimum wage structure.
Case: The Board of Major Port Authority for the Shyama Prasad Mookerjee Port, Kolkata. v Marine Craft Engineers Private Limited.
Citation: 2023 LiveLaw (Cal) 209
The Calcutta High Court recently dismissed an application filed by the Board of Major Port Authority for the Shyama Prasad Mookerjee Port, Kolkata, for staying the operation of an arbitral award passed by the West Bengal State Micro Small Enterprises Facilitation Council (“MSME Council”).
In refuting the petitioners contention that filing an application u/s 34 of the Arbitration & Conciliation Act, 1996 (“1996 Act”) would be sufficient for the Court to deliberate on the question of stay, a single bench of Justice Moushumi Bhattacharya held, that in the absence of a pre-deposit of 75% of the award, in compliance with Section 19 of the MSMED Act, the application u/s 34 of the 1996 Act would remain “stillborn” for the purpose of stay of the award. It said:
The application under section 34 must be a valid application in terms of section 19 of the MSMED Act for the Court to consider stay of the arbitral award under section 36(2). Since the petitioner has admittedly not made the pre-deposit under section 19 of the MSMED Act, the section 34 application filed by the petitioner remains eclipsed in the eye of law as the foundation for a prayer for stay of the arbitral award under section 36(2) of the 1996 Act. Therefore, the present application for stay of the impugned award filed under section 36(2) of the 1996 Act cannot be entertained as the said application is foisted on a stillborn section 34 application. The petitioner must first comply with section 19 of the MSMED Act to breathe life into the application. AP 252 of 2023 is accordingly dismissed as not maintainable for the above reasons.
Case: Mithu Dash @ Bhuiya v State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 210
The Calcutta High Court recently quashed the criminal proceedings initiated against a woman by her husband, a practising advocate, for the alleged theft of certain gold ornaments and valuables from her matrimonial home.
A single-bench of Justice Shampa (Dutt) Paul opined that the items she was accused of stealing were “worn on a regular basis by traditional Bengali married women.” It said,
“From the materials on record, it appears that the petitioner allegedly left her matrimonial home after 29 years of marriage with:- i. One piece gold Bala (bangle) (marriage ornament), worn as a sign of a married woman. ii. One Loha covered with gold (marriage ornament), also worn as a sign of a married woman. iii. Two piece (one pair) (red) pola, covered with gold (marriage ornament), also worn as a sign of a married woman. iv. One pair Sankhabadhano churi covered with gold (marriage ornament). v. Two mobile phones. vi. One Gold chain (gents), she has taken her son with her. vii. One necklace. These ornaments/accessories as described, are worn on regular basis by a traditional Bengali married woman, who chooses to wear them. The phones which might be for her own use and the ornaments as described, cannot be the basis of a criminal case between a married couple, that too, after 29 years of marriage. These allegations, clearly do not make out any case as alleged under the Indian Penal Code against the petitioner and thus, this is a fit case where the inherent powers of this court should be exercised"
Case: M/s. Odisha Slurry Pipeline Infrastructure Ltd. & Anr. v Rakesh Sharma & Ors.
Citation: 2023 LiveLaw (Cal) 211
The Calcutta High Court recently slammed the practise of the Bar invoking procedural formalities in order to take a “circuitous route" to reopen an issue which is already decided and having an order reviewed under the garb of recall.
"A desperate attempt is made to have the order reviewed in the garb of recall...Even a live streaming, which has started with the. avowed object is being misused and/or abused despite the disclaimer having been shown therein," a division-bench of Justice Harish Tandon and Justice Prasenjit Biswas regretted.
The Bench was in seisin of a recall application filed against an order passed on the 13th of March 2023, wherein the Court had refused to initiate contempt proceedings against the respondents at the behest of the applicants, M/s Odhisha Slurry Pipeline Infra Ltd. It was argued by the applicants that the respondents had played “serious fraud” on the Court, which led to the Court making specific findings regarding the ownership of the pipeline.
Case: Goalbadan Mandal v State of West Bengal & ors.
Citation: 2023 LiveLaw (Cal) 212
The Calcutta High Court recently allowed a writ petition filed by an Assistant Teacher of a primary school, who challenged the order of the Principal Secretary to the Government of West Bengal School Education Department, denying him pensionary benefits. The petitioner had also sought condonation of “deficiency in the qualifying service period” for pension.
In allowing the petitioner's prayer, single-bench of Justice Hiranmay Bhattacharya held that the 'deficiency in service' that had accrued to the detriment of the petitioner had been due to the delay caused by the State authorities in making his appointment. It ordered,
“The petitioner cannot be held responsible for the time taken by the authorities starting from taking decision to forward the name of the petitioner till the date of such appointment. The right of the petitioner to be appointed to the post of Primary School Teacher, however, got crystalised when a decision was taken to forward the name of the petitioner to the Director of School Education for approval. Such delay is solely attributable to the conduct of the respondent authorities and it ultimately led to the shortfall in the qualifying service period for pensionary benefit. The petitioner cannot be penalised for the delay caused by the respondent authorities in appointing the petitioner to the post in question. It is well settled that the petitioner should not be penalized for the lack of promptness in taking action by the concerned authorities.”
Case: Raja Paul & Ors. v State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 213
The Calcutta High Court recently quashed the criminal proceedings initiated against officials of the Eastern Coalfields, who had, in accordance with directions of the Court, undertaken a raid to crack down on the “terror and running of parallel administration of illegal [coal] mining within the Eastern Coalfield area in Burdwan.”
Eastern Coalfields Limited is a subsidiary of Coal India Limited and is a government company.
A single-bench of Justice Bibhas Ranjan De held:
Raid by the officials of Eastern Coalfield Ltd. by virtue of repeated directions of this Hon'ble Court cannot be said to be an illegal in any way. Therefore, the allegation made in the F.I.R in my opinion, is absurd and cannot be believable that security officers of Eastern Coalfield committed the offence of theft and outrage of modesty. After careful perusal of the all documents produced before this court, I have no hesitation to exercise jurisdiction under section 482 CrPC…in coming to the conclusion that proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice.
Case: Hira Bittar v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 214
The Calcutta High Court recently allowed the appeal preferred by a husband against trial court order convicting him for alleged offences of mental and physical cruelty allegedly inflicted upon his spouse/ complainant.
A Single-bench of Justice Shampa (Dutt) Paul held:
Though this witness has stated that she was assaulted by the appellant and his family members and suffered bleeding injuries, there are no medical papers nor any injury report on record. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, and the environment in which they live. The conduct of the concerned party should be grave and substantial and it must be much more serious than the ordinary wear and tear of daily life. Mental cruelty is a state of mind - The feeling of deep anguish, disappointment, or frustration in one spouse caused by the conduct of the other over a long period of time may lead to mental cruelty. And such feeling and intensity are felt differently by each person. Some are stronger in mind than others. In the present case there is absolutely no evidence/proof on record of any physical cruelty.
Case: Senjuti Chakrabarti Vs Learned Registrar General High Court At Calcutta And Ors
Citation: 2023 LiveLaw (Cal) 215
The Calcutta High Court dismissed a PIL filed by a practising advocate for the “strict implementation” of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”) within the Calcutta High Court.
Petitioner claimed that various RTIs filed by him revealed that the PoSH Act had not been complied with in its entirety.
In noting that such an issue could not be examined in a PIL, and highlighting the presence of a robustly functioning committee dealing with PoSH complaints arising at the Calcutta High Court, a division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya remarked:
A writ of mandamus can only be issued when there has been inaction by authorities, or a genuine representation is not acted on in accordance with law. The petitioner has not made any such representation and it appears that the writ petition is founded on replies obtained under the RTI Act. Therefore, we find that the writ petition is absolutely premature and cannot be entertained. However, it shall be open to the petitioner to make appropriate representation before the concerned forum.
Case: Union Of India And Anr. v Rashmi Metaliks Limited
Citation: 2023 LiveLaw (Cal) 216
The Calcutta High Court unconditionally stayed an award granted in favour of the South Eastern Railways (“SER”) under the Arbitration & Conciliation Act, 1996 (“Arbitration Act”) on grounds of fraud and corruption perpetrated by collusion between the parties in obtaining the impugned award.
In expressing his dismay and directing an investigation into the matter by a high-level committee of the Ministry of Finance, Government of India, a single-bench of Justice Shekhar B Saraf held:
The Court cannot overlook fraud being perpetuated in the making of the award by way of collusion between the parties. Furthermore, I hereby also direct the Ministry of Finance, Union of India to immediately constitute a multi-member high-level enquiry committee headed by a Secretary to the Government of India level rank officer to holistically inquire into the shocking conduct of the Railways and its officials (both serving and retired) and the other stakeholders in the aforementioned matter. The Committee shall be at liberty to take assistance of central investigation agencies as it may deem fit. The Committee is further requested to complete the enquiry and submit a report before this Court within three months from the date of this order.
Case: Bithika Sil v. Kartick Paik & Ors.
Citation: 2023 LiveLaw (Cal) 217
The Calcutta High Court recently took exception to a Sessions Court order solely relying on prosecutor's failure to raise objections to grant of bail to accused in a case of grievous hurt and rejecting the complainant's plea for cancellation of bail, without calling for an injury report.
A single bench of Justice Shampa (Dutt) Paul held:
It is unfortunate that considering the nature of offences alleged, the Court relied upon the submission of the APP, without calling for the injury report. It is the duty of the Court to ensure justice and not rely totally on the submission of either party. Though at that stage there has been prima facie abuse of the process of law/Court before the Trial Court as discussed, but considering the present circumstances, this Court is not inclined to grant the relief prayed for at this stage in the interest of justice.
Case: Swapan Manna v The State of West Bengal & ors.
Citation: 2023 LiveLaw (Cal) 218
The Calcutta High Court has allowed a plea filed by a functionary of the Bharatiya Janata Party (“BJP”) seeking permission to hold a rally and meeting on the 9th of August 2023 at the Pingbone Nabkung Ground (Math) in Paschim Medinipur, on the occasion of World Tribal Day.
It also issued directions to avoid any clashes with another rally to be held on behalf of Trinamool Congress (“TMC”) in the nearby area.
A single-bench of Justice Jay Sengupta ordered:
Let the petitioner hold his meeting at the venue that was selected for it from 9 a.m. to 1.30 a.m. at the Pingboni Nabakung Ground. The said area shall be carefully manned by police personnel from the local police station who shall ensure that no breach of peace takes place. The petitioner shall abide by the conditions for hold such meeting. They shall name three persons responsible for compliance of all terms and conditions to hold the meeting. The meeting shall not cause any obstruction to the public at large. The sound volume stipulations should also be scrupulously maintained. After the meeting is over, the venue of the meeting shall be cleaned up by the petitioner's men and agents. The police authorities shall make necessary arrangements to ensure that no breach of peace takes place.
Case: Pooja Mehta & Ors. vs. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 219
The Calcutta High Court QUASHED a case against Former Zee News Editor (presently Consulting Editor, Aaj Tak) Sudhir Chaudhary, Zee News Journalist Pooja Mehta and cameraperson Tanmay Mukherjee under Section 153A IPC for allegedly 'promoting enmity' during their coverage on 2016 Dhulagarh Riots.
The bench of Justice Bibhas Ranjan De observed that the prosecution could not produce any material before the Court which would attract any offence under Section 153A of the IPC and hence, further proceeding with the case would result in an "abuse of process of court" and "will not serve the ends of justice.”
Case: Sri Shubhendu Kumar Goswami & Ors. Versus The State Of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 220
The Calcutta High Court directed the West Bengal's Accountant General to refund an amount of Rs 66,000 to a litigant who was made to deposit the said amount in relation to a civil proceeding back in 2004.
In rebuking the “procrastination on behalf of the authorities” in refunding the petitioners deposit even after the case had been settled out-of-court in 2008, a single-bench of Justice Shekhar B. Saraf held:
The facts before me present a rather unfortunate scenario wherein the petitioners have had to vie with pain for the refund of the deposit they made in court. As per my order dated July 11, 2023, another report was filed by the District Judge, Paschim Medinipur on July 26, 2023, which further surfaces the rather sorry state of affairs that have unravelled. There appears to be no contestation to the fact that the petitioners deposited the said amount, nor to their right to get a refund of the same.
The procrastination on behalf of the authorities is clearly without any logical reasoning and simpliciter a lackadaisical attitude on the part of the authorities.
Case: Mritunjoy Poria & Ors. Versus The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 221
Ahead of the formation of 'panchayat boards' pursuant to the declaration of results in the West Bengal Panchayat Elections 2023, the Calcutta High Court has issued a spathe of directions for police protection to the winning candidates during the process to be held on the 11th August.
One such petition was filed by victorious candidates belonging to the Bharatiya Janata Party (BJP), from the district of Paschim Mednipur apprehending violence by “miscreants belonging to the ruling dispensation.”
In allowing the prayer for police protection as sought in the writ petition, a single-bench of Justice Jay Sengupta held:
“It appears that on the basis of the petitioners' complaint some steps have been taken. The petitioners are the winning candidates of Bandipur – I Gram Panchayet. The board formation process would take place at the Bandipur – I Gram Panchayet office on August 11, 2023 at 11.00 A.M. It further appears that the petitioners apprehend that the local miscreants may not allow the petitioner to participate in the said meeting. In view of the above and in the interest of justice, let the petitioners report to the Officer-in-Charge, Chandrakona Police Station on August 11, 2023 at 09.00 A.M. so that the Officer-in-Charge can make adequate police arrangement to escort them to the venue for participating in the process of board formation. With the above observations and directions, this writ petition being WPA No. 19216 of 2023 is disposed of.”
Case: Kobelco Construction Equipment India Private Limited vs. Lara Mining & Anr.
Citation: 2023 LiveLaw (Cal) 222
The Calcutta High Court has recently dismissed applications for interim relief filed by Kobelco Construction Equipment India Private Limited under Section 9 of the Arbitration and Conciliation Act, 1996 (“Act”).
In dismissing the prayer for an interim injunction on the respondents, and holding that the petitioners could not be allowed to incorporate an arbitration clause by-reference from the 'Master' agreement to the 'Settlement' agreement in the absence of unambiguous intention of both parties, a single-bench of Justice Moushumi Bhattacharya opined:
The present case involves two arbitration clauses and the Court is being asked to hold that the arbitration clause of the first Agreement should be treated as being incorporated into the second Agreement by reference…there is no special reference indicating a mutual intention on the part of the petitioner, SREI and the respondent no. 1 to incorporate the arbitration clause from the Master Facility Agreement to the Settlement Agreement. A general reference to the Master Facility Agreement is not sufficient to incorporate the arbitration clause.
Case: M/S. Gammon Engineers And Contractors Pvt. Ltd. V The State Of West Bengal
Citation: 2023 LiveLaw (Cal) 223
The Calcutta High Court recently dismissed an application filed by M/S Gammon Engineers and Contractors Private Limited (“petitioners”) u/s 11(6), 14 and 15 of the Arbitration and Conciliation Act, 1996 ('Act'), for removal of arbitrator while challenging their unilateral appointment.
In dismissing the application, a single-bench of Justice Shekhar B Saraf held that a challenge for withdrawal/removal of arbitrator would not be maintainable before the High Court, since an earlier Section 9 application for interim relief had been filed before the Jalpaiguri District court.
The understanding of 'court' under Section 42 is indisputably in terms of Section 2(1)(e) of the Act. The application under Section 9 is also made to a 'court' as understood under Section 2(1)(e) of the Act. Once such an application to a 'court' as understood under Section 2(1)(e) of the Act is made, all further applications under Part I to a 'court' must be to the 'court' to which the prior application has been made. This is the mandate of Section 42 of the Act. Therefore, the bar under Section 42 would lie and all applications to be made to a 'court' must be made to the District Judge at Jalpaiguri. In light of the above, A.P. 785 of 2022 is disposed of for not being maintainable before the High Court at this stage,” it held.
Case: Prapti Chakraborty v State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 224
The Calcutta High Court has recently allowed an appeal, challenging the order of a single-bench dismissing the writ petition filed by a high-school teacher against refusal of her transfer application by the head of institution.
In directing the Commissioner of School Education to consider the petitioners transfer application in accordance with prevalent norms and students' interest, a division-bench of Justice Soumen Sen and Justice Uday Kumar held:
We are not unmindful of the fact that in view of the Right of Children to Free and Compulsory Education Act, 2009 it is the obligation of the State to implement the provisions of the said Act. We cannot also lose sight of the fact that there is a need for rationalization of policy of transfers of the teachers. The service conditions gives right to claim transfer on fulfilment of certain conditions. An application for transfer has to be considered on the basis of existing and/or prevailing rules. We do not find any material to reject the said application of the petitioner by the Head of Institution and no sufficient material is produced before us to justify the said stand.
Case: Dr. Sujoy Biswas Vs. State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 225
The Calcutta High Court has refused to quash criminal proceedings against a 'doctor' accused of wrongful restraint and criminal intimidation by an octogenarian Advocate, residing in the same co-operative society as him.
In directing the case to proceed towards trial due to a prima facie case being made out, a single-bench of Justice Shampa (Dutt) Paul held:
The complainant is a 85 years old resident of the same co-operative society. The medical papers in respect of the opposite party/complainant in the case diary include an injury report dated 10.08.2019, which shows that on examination, the doctor found pain and swelling over the left cheekbone. It has been noted by the learned Mediator that the petitioner has failed to appear for mediation on two occasions, in spite of being duly served. The offences alleged are all compoundable. The mediation could not be taken up because of the absence of the petitioner in this case on two dates. The medical papers in this case diary and other materials show that there is prima facie materials in the present case against the petitioner to proceed towards trial. The revisional application being CRR 2365 of 2022 is accordingly dismissed.
Case: Debarati Banerjee v The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 226
The Calcutta High Court has quashed criminal proceedings initiated against the Human Resources Manager of IDBI Bank (“petitioner”), by an employee/opposite party No 2, against whom a female co-worker had earlier filed a complaint for sexual harassment at the workplace.
In holding that the petitioner could not be considered guilty of the offences of criminal intimidation or criminal conspiracy in the matter of the opposite party's transfer, a single-bench of Justice Ajoy Kumar Mukherjee opined:
The petitioner herein according to complaint has only communicated the previous complaint to his higher authority. Transfer is an usual incident concerning service and does not generally require the consent of the employee. Under the Bank's transfer policy an officer is liable to be transferred in different station and he cannot claim to remain in a particular place unless his appointment itself is to be specified non-transferable post. Ingredients of offence of criminal conspiracy suggests an agreement to commit an offence. There is nothing in the allegation that the present petitioner /accused no.2 has made any agreement with other accused persons to commit any offence. In fact in the present case there is absolutely nothing to establish that there was any agreement with the petitioner herein to commit any illegal act or any legal act by illegal means. If the bank authority decided to transfer any of its employee from one place of posting to another branch, may be in a distant state, which is permissible under the transfer policy, that must not constitute any offence punishable under section 506 of I.P.C, since it does not amount to threat to cause any “injury” to the complainant's reputation or property.
Case: Sk. Reajul Hoque @ Sk. Riajul Vs The State of West Bengal
Citation: 2023 LiveLaw (Cal) 227
The Calcutta High Court has refused to quash criminal proceedings against a teacher of the Tehatta Balika Prathamik Vidyalaya, under various sections of the IPC for offences including unlawful assembly, rioting, causing injury to a public servant, etc. during 'unauthorised' celebrations by the school's Muslim students on the occasion of 'Nabi Diwas'.
In directing the case registered against the petitioner to proceed towards trial, a single-bench of Justice Shampa (Dutt) Paul held:
The alleged time of occurrence as shown in the formal FIR is between 6 hrs to 16:30 hrs. The petitioner has shown by documents that on 28.01.2017 he was not present from 10.30 am onwards till 7 pm but no explanation is there for the period from 6.00 hrs (am) to 10.30 am. Case diary contains injury report in respect of the Police personnel, who sustained injuries in due course of carrying out their official duty to maintain law and order. Considering the nature of the offences alleged and materials on record, there appears a prima facie case against the petitioner to proceed toward trial.
Case: HDFC Bank Limited & Anr. V The State Of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 228
The Calcutta High Court has quashed criminal proceedings against employees of HDFC Bank Limited, initiated by one Sunil Kumar Sharma/opposite party no 2, who had availed a car loan from the aforesaid bank, to be repaid over 60 instalments, alongside taking another personal loan of Rs 90,000.
It was contended by the opposite party/complainant that he had fallen on extremely hard financial times in 2009 and could not repay further instalments of the loan, due to which the Bank and its agents had “forcibly and deceitfully repossessed” his vehicle.
In quashing the FIR filed against the Bank's officials on counts of robbery, criminal intimidation, etc., a single bench of Justice Siddhartha Roy Chowdhury held:
From the attending facts of the case when it is found that the lender or financer took repossession of the vehicle, pursuant to the agreement executed by and between the parties, it cannot be said that the lender committed offence within the meaning of Penal Code with the requisite mens rea and dishonest intention. At best it could be a civil dispute which has been imbibed with the colour of criminality. In my humble opinion, this is the fit case to invoke the provision of Section 482 of the Code of Criminal Procedure to quash the proceeding of Jadavpur P.S. Case No. 657 of 2009 pending before the learned Additional Chief Judicial Magistrate, Alipore to avert abuse of process of law, which I accordingly do. The criminal revision is thus allowed.
Case: Surojit Dasgupta Vs State Of West Bengal And Ors
Citation: 2023 LiveLaw (Cal) 229
The Calcutta High Court has dismissed a PIL seeking issuance of guidelines for regulation of pilgrims visiting the Jalpesh Temple shivmandir in North Bengal, on the grounds that the authorities were “depriving the petitioners of the fundamental right” to observe their age-old practise of offering holy water to the deity at the temple by entering its “garba griha.”
In ordering the District Magistrate and other officials to hold a public consultation/hearing looking into the suggestions placed by the petitioners “bearing in mind the convenience of the worshipping public,” a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya held:
“So far as regulating manner of worship in temple or any other place, it best be left with the district administration to take care of the same. There are several instances in West Bengal where the district administration has been proactively regulating the influx of the pilgrims in various places of worship as well as places of public importance. Therefore the petitioner and his co-signatories should bestow confidence in the district administration that they will do the best to ensure that the devotees offer their prayers in an appropriate manner.”
Case: Dwaipayan Das Vs. State of West Bengal & Anr. & connected application.
Citation: 2023 LiveLaw (Cal) 230
The Calcutta High Court quashed two criminal complaints filed by a wife (“opposite party no 2"), against her husband and in-laws (“petitioners”), on various counts of domestic violence, attempted murder, criminal intimidation, etc. under the IPC.
In noting that the medical evidence on record, as well as witness statements did not corroborate with the opposite party no 2's version of events, a single-bench of Justice Subhendu Samanta quashed the criminal proceedings, and held:
“The allegation of physical and mental torture in both the cases appears to be general and omnibus. The ingredients of the offence specifically the statement of available witnesses does not disclose any specific prima facie materials by which the present petitioner can be entangled for the offences u/s 498A IPC. The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed.”
Case: Sri X v State of West Bengal & ors
Citation: 2023 LiveLaw (Cal) 231
The Calcutta High Court permitted medical termination of pregnancy of a minor gang rape survivor, which had exceeded the 24-week statutory limit under the Medical Termination of Pregnancy Act, 1971.
On an earlier occasion, the Court had noted that the present case fell under the exception envisaged under the 1971 Act, wherein there could be a risk to the life of the mother in case the pregnancy was allowed to continue, and had directed the formation of a medical board to assess the viability of abortion for the minor girl who was 25+ weeks pregnant.
Upon perusing the report of the medical board, a single bench of Justice Sabyasachi Bhattacharya held:
The crux of the said report is that considering the circumstances and the physical and mental conditions of the patient, the Board Members have arrived at a decision that pregnancy should be terminated, but for the safety of the patient and to mitigate any complication, it should preferably be done at a higher centre than the one where the survivor is now located. Since an extremely fair stand has been taken by the respondent nos. 7 and 8, the respondent nos. 7 and 8 are directed to ensure that the survivor, whose pregnancy is to be terminated medically, is brought to the SSKM Hospital at Kolkata, taking due care that the said survivor is attended to medically during such transit.
Case: Sanjoy Mondal Vs. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 232
The Calcutta High Court allowed a criminal appeal, setting aside the appellant's Trial court conviction under Section 324 IPC (voluntary hurt by dangerous means) for allegedly 'pouring hot oil on an octogenarian lady' after a brief argument on previous dues owed by the appellant,
Based on witness statements it noted that although the victim did suffer oil-burns, the same was not due to the fault of the appellant. A single-bench of Justice Rai Chattopadhyay held,
All questions that may arise reasonably in the mind of a prudent man, must receive answer from the evidence that has been brought on record. Merely that the victim has spoken in the trial Court would not be sufficient and safe to rely on the same blindfolded, as a foundation of his guilt. There are missing links [in victim's statement] raising strong doubt as regards reasonability for what the victim has stated before the trial Court.
Case: Bishal Das & Ors. Vs. The State of West Bengal & Ors
Citation: 2023 LiveLaw (Cal) 233
The Calcutta High Court has recently rejected a transfer petition from three inmates at the Chinsurah District Correctional Home, Hooghly upon holding that keeping them in the same prison cell, away from the main population due to jail authorities' perception of violence from other inmates, did not tantamount to solitary confinement, or a violation of their human rights.
On an earlier occasion, a single-bench of Justice Sabyasachi Bhattacharya had taken on record the State's report on the facilities extended to the petitioners in their time as inmates.
Petitioners had submitted that their incarceration had led to several human rights violations, on counts of solitary confinement, lack of medical assistance, denial of visitation rights from their relatives and advocates, etc.
During the present hearing, the Bench noted the petitioner's response to the report filed by the State, and held that, while the confinement of the petitioners could not be construed to be solitary confinement, the jail authorities would be under a duty to provide them with necessary medical facilities during their incarceration.
Case: Subhas Chandra Patra Vs. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 234
The Calcutta High Court has dismissed a writ petition filed by the headmaster of Bora Junior High School (“school”) and directed for a criminal investigation and trial against him, upon perusing expert evidence which prima facie indicated that signatures in one of the main documents relied upon by him, were forged.
Court also directed initiation of perjury proceedings in case the petitioner was found to be guilty of forging the aforesaid signature.
In dismissing the petition, and refusing to exercise equitable jurisdiction in favour of the petitioner due to the alleged fraud perpetrated by him, a single-bench of Justice Aniruddha Roy held:
The moment a cloud is created in the mind of the Writ Court as to the authenticity and existence of a document, which is the sole basis of the writ petition and that too with the allegation of fraud against the petitioner practiced on Court, no equity shall be exercised in favour of the petitioner. It is settled that he who seeks equity must apply before the Court of equity with clean hands. The Court of equity cannot and should not indulge the applicant who, prima facie, applies with unclean hands.
Case: Rajib Samanta v The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 235
The Calcutta High Court recently set aside an order under Section 144(2) CrPC (apprehension of nuisance or danger), passed by Sub-divisional magistrate, Contai, preventing public gatherings, due to which the petitioner, an opposition party leader, was prevented from holding a political rally.
In setting aside the magistrate's order, and laying down a comprehensive set of guidelines for the petitioners to hold their political rally, a single-bench of Justice Jay Sengupta held:
Promulgation of an order under Section 144 of the Code cannot be done at the drop of a hat. It has to be done by exercising more care and circumspection and with a better reasoning. Afterall, we are dealing with rights of the citizens of India. In view of the above, the impugned order passed under Section 144(2) of the Code cannot be sustained. Accordingly, the same is set aside. The duty of the Administration is to provide a level playing field to all political dispensations to hold rallies and processions. The law and order is a thing that the Administration would have to take care of. The circumstances do not appear to be such where a political rally or a meeting cannot be held.
Case: Manab Jati Kalyan Foundation and another Vs. The State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 236
The Calcutta High Court has recently observed that Durga Puja, celebrated predominantly in West Bengal, is not merely a religious offering, but rather “much more secular in nature than a pure religious performance by a particular community.”
In allowing the petitioner's plea for hosting their “Durga Utsab 2023” celebrations on the New Town Mela Ground, a single-bench of Justice Sabyasachi Bhattacharya opined:
Argument of the respondent-Authorities [New Town Kolkata Development Authority] regarding the petitioners not having any choice to hold worship or organize religious offerings wherever they wish, falls flat, in view of the implicit character of the Durga Puja Festival held in the State of West Bengal. As is public knowledge, the Durga Puja Festival is not confined merely to the worship or religious offerings component of the incarnation of feminine power but also a melting pot of different cultures. People from all over the state, the country and even from abroad, come to West Bengal purely for the purpose of observing the fanfare and the cultural milieu in the state during Durga Puja Festivals. Hence, there is as much an element of ceremony, cultural programmes, festival and fanfare involved as religious worship.
Case: Pritimoy Chakraborty Vs. Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 237
The Calcutta High Court recently dismissed a plea for no coercive measures and quashing of summons moved by one Pritimoy Chakraborty against the Enforcement Directorate (“ED”) under the Prevention of Money Laundering Act (“PMLA”).
In holding that the petitioner failed to show any patent illegality in the ED's summons, or to make out a case for “the extraordinary relief of no-coercive action,” a single-bench of Justice Jay Sengupta held:
In exercise of powers under Section 50 of the PMLA Act, it was specifically directed that the petitioner should attend in person. It will be too much to ask the authorities to record reasons at every stage even while issuing summons in terms of Section 50 of the PMLA Act. Therefore, I do not find any reason as to why the petitioner could not co-operate with the proceeding. The petitioner also could not show any patent illegality in the summoning of the petitioner by the Enforcement Directorate. No case is made out either to seek the exceptional relief of 'not to take coercive action'. In fact, such relief could be granted only in very exceptional cases.
Case: Nirmal Kumar Das @ Nirmal Das v The Kolkata Municipal Corporation & Ors.
Citation: 2023 LiveLaw (Cal) 238
The Calcutta High Court recently upheld a demolition order by the Kolkata Municipal Council (“KMC”) issued under Section 400(8) of the KMC Act against an unauthorised construction made by the petitioner who had ignored previous 'stop-work' notices and even an FIR filed by KMC in that regard.
A division-bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray expressed its objections on the extent of illegal constructions being initiated within the jurisdiction of the KMC without their immediate intervention.
"When a stop work notice was issued from the side of the KMC, the person responsible should have stopped the construction work and approached the KMC authority. Admittedly he was carrying on the construction without sanctioned plan in violation of the provisions as laid down in Sections 392 and 393 of the KMC Act. If the person responsible thinks that whatever be the nature and extent of his erection work, he can raise construction defying the stop work notice and defying the allegations made against him in the FIR only because that there are certain beneficial provisions for regularizing unauthorized constructions, he has committed a grave mistake and the KMC authority certainly has powers to demolish the unauthorized structure…in societal interest…even without giving him any opportunity of hearing."
Case: Uphealth Holdings Inc. v Glocal Healthcare Systems Pvt. Ltd. & Ors.
Citation: 2023 LiveLaw (Cal) 239
The Calcutta High Court while exercising its admiralty jurisdiction, recently allowed an application for interim relief by Uphealth Holdings Inc. a wholly owned subsidiary of Uphealth Inc., a US-based healthcare company under section 9 of the Arbitration & Conciliation Act, 1996.
Justice Ravi Kishan Kapur observed that the applicant had made out a prima facie case for interim relief regarding an arbitrable dispute over its Share-Purchase Agreement (“SPA”) with the respondent.
"There is no question of non-arbitrability of any of the disputes raised in this proceeding. All the disputes raised in this proceeding are covered under the SPA and are ex facie contractual disputes. There is also no merit in the contention that the SPA is confined only to the purchase and sale of shares. This argument is misconceived and ignores the entire scope, purport and ambit of the SPA. All the reliefs sought for are in aid of and to protect the subject matter of the arbitration and to preserve the rights of the parties under the SPA. The Arbitral Tribunal is fully competent to consider and decide all other issues. For the foregoing reasons, the petitioner has been able to demonstrate a strong prima facie case on merits. The balance of convenience and irreparable injury are also in favour of orders being passed as prayed for herein."
Case: Rakesh Sha vs The State of West Bengal
Citation: 2023 LiveLaw (Cal) 240
The Calcutta High Court's Circuit Bench at Jalpaiguri recently allowed the bail plea of an accused under the Narcotic Drugs & Psychotropic Substances Act (“NDPS”) upon taking note of various 'procedural infirmities' in the chargesheet.
A division-bench of Justice Moushumi Bhattacharya and Justice Prasenjit Biswas held:
A mere statement of filing of a supplementary charge-sheet upon obtaining the Examination Report does not conform to the statutory mandate under the proviso to section 36A(4) of the NDPS Act. The Chemical Examination Report becomes the most vital piece of evidence which is required to be made part of the charge-sheet.
Court said filing of charge-sheet within 180 days without the Chemical Examination Report with simply a line that a supplementary charge-sheet will be filed in future with the Examination Report is beyond the contemplation of the proviso to section 36A(4) of the NDPS Act.
Case: Avinaba Dutta & Another v State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 241
The Calcutta High Court's Circuit Bench at Jalpaiguri recently quashed criminal proceedings against a transgender rights activist & researcher, who had been accused of kidnapping by the family of a trans-woman, whom he helped escape from alleged mental and physical torture at her home.
In quashing the FIRs against the petitioner, a single-bench of Justice Prasenjit Biswas opined:
To prove the ingredients of section 365 IPC, it is essential that there should be abduction, if no abduction is there; the offence under section 365 is not made out. The victim/opposite party no.3 submitted that she left her house voluntarily and is presently residing at Bengaluru. There is neither any case of abduction nor kidnapping prevails with regard to the petitioners as the opposite party no.3 left home voluntarily by her own choice. So, I am of the opinion that the offence under section 365 of the Indian Penal Code does not attract in terms of the facts and circumstances of the case and the ingredients of the offence under section 365 of IPC can be said to be totally absent on the basis of allegation in the complaint.
Case: Satyendranath Halder And Ors Vs State Of West Bengal And Ors.
Citation: 2023 LiveLaw (Cal) 242
The Calcutta High Court dismissed a PIL challenging the order of the Block Land & Land Reforms Officer (BL & LRO) allocating a portion of the Adiganga water body in the Sundarbans to the private respondents under the West Bengal Land Reform Act, 1955. (“WBLR”)
Petitioners argued that the respondents were preventing Hindus in the area from offering their worship at the water body, even though the same was attached to a temple, and prayers were carried on since 1933.
In dismissing the PIL with liberty to the petitioner to challenge the order of allocation under provisions of the WBLR Act, a division-bench of CJ Sivagnanam and Justice Hiranmay Bhattacharya held:
“It was submitted by the respondents that they are not preventing any Hindus from performing religious rituals during temple festivals and other days. No further direction is required to be issued, except to observe that the plot of land in question shall be preserved as a water body, and the public of area belonging to all faiths of religion shall be free to offer prayers and carry out rituals there. We leave it open to the petitioner to challenge the order of the authority under provisions of the WBLR Act.”
Case: Suvendu Adhikari v State of West Bengal
Citation: 2023 LiveLaw (Cal) 243
The Calcutta High Court dismissed a PIL filed by BJP's Suvendu Adhikari against the “Revisionary Students Union/Federation”, an allegedly banned students union stated to be operating from within Jadavpur University.
Upon perusing the writ petition, a bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya expressed strong resentment and said,
“Are you very serious with the writ petition? We didn't expect this. News paper reports, next day morning a writ petition. We find from the newspapers itself that already action has been initiated by the respondent police. Therefore, there is no reason to entertain this writ petition…don't exhaust yourself. Writ petition dismissed as withdrawn.”
Case: Apurba Biswas & Ors. v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 244
The Calcutta High Court has dismissed a PIL challenging an upcoming solid-waste management plant (“SWM”) set up under the Swaccha Bharat mission, on grounds of it 'illegally creating organic fertilizer', thereby causing a nuisance and hazard for general public.
Upon perusing a report of the Block-Development Officer, Bongaon, on the proposed steps to be taken at the facility, in terms of safety, sensitising the public, and converting organic waste into recyclable material, a division-bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held:
In the light of the report submitted by the Block Development Officer, which is taken on record, we find that the apprehension of the writ petitioners is baseless. Therefore, no direction as sought for in the writ petition can be granted except to observe that the authorities upon establishing the solid waste management plant shall ensure that the area is kept clean and the segregation of the garbage is done in a proper manner and also to ensure that the local residents are in not in any manner affected by the establishment of the solid waste management facility.
Case: Sri Ravi Kumar v Union of India & Others
Citation: 2023 LiveLaw (Cal) 245
The Calcutta High Court has allowed a writ petition moved by a CISF constable challenging his dismissal from service for alleged lack of oversight during his duty at the ISSCO Steel Plant in Burnpur, due to which certain miscreants entered the plant wielding weapons, in an attempt to steal copper wire.
In setting aside the order of dismissal, which labelled the petitioner a 'conniver' and of possessing 'shady integrity', a single-bench of Justice Partha Sarathi Chatterjee held:
A disciplinary authority acts a quasi-judicial authority and hence, observation and findings of such authority must be based on plausible evidence and such authority should not make any observation or comment which is not based on any evidence. Such an observation casts a stigma and leaves a permanent scar on the character of one person or employee and hence, it is expected that such authority must be circumspect in making such observation and/or comment.
Case: Payel Paul Adhikary v Union Of India And Ors
Citation: 2023 LiveLaw (Cal) 246
The Calcutta High Court has recently dismissed a plea seeking a direction to the administrative wing of the Court to ensure that daily orders of both civil and criminal courts under its supervision are promptly uploaded on its E-Courts server.
The bench of Justice Sabyasachi Bhattacharya said the Court is not sufficiently equipped to grant such relief. It however granted liberty to the petitioner to agitate the issue on the administrative side or in a PIL.
"This Court, in its judicial capacity, is not sufficiently equipped to keep a tab on the uploading status of each and every civil and criminal court under the supervision of the High Court. In the event the petitioner has any particular instance of difficulty on such score, it will be open to the petitioner to approach the Registrar General or this Court, in its administrative capacity, to deal with such issue. The petitioner will also be at liberty, if necessary, to approach the concerned civil and criminal court, if need so arises, ventilating such grievance to the said authority. That apart, the petitioner will be at liberty to file a public interest litigation if the petitioner makes out a sufficient case for such exercise of power by the appropriate Division Bench. If so filed, nothing in this order shall influence or prejudice the rights of the petitioner in any manner whatsoever."
Case: Debabrata Chakraborti @ Debabrata Chakraborty Vs State Of West Bengal And Ors.
Citation: 2023 LiveLaw (Cal) 247
The Calcutta High Court has directed the State government to probe the allegations levelled against practice of medicine by a fake doctor in West Bengal. It added that though it had come to light that the PIL petitioner lacked bona fides, the direction was issued by the Court in public interest and will subsist.
Noting that the litigant had not disclosed in the petition that he was the alleged fake doctor's (respondent) brother and had already lost in a civil suit against him, a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya opined:
“After the order has been dictated, it is submitted that this PIL lacks bona fide since the petitioner is the respondent's brother, and having been unsuccessful in the civil litigation has filed this PIL. In the petition, there is no disclosure of his relationship with the respondent or the civil litigation between the parties. We find that this is not a bona fide PIL. However, our direction (for State authorities to probe into matter) is keeping in mind the health of the general public, who should not be misled and cheated by being treated by someone unqualified. However, due to the non-disclosure of the petitioner, and in deprecating his conduct, we impose a cost of Rs 10,000.”
Case: Suvendu Adhikari v State of West Bengal & ors
Citation: 2023 LiveLaw (Cal) 248
The Calcutta High Court has dismissed a plea moved by the BJP's Suvendu Adhikari seeking a probe by the National Investigation Agency (NIA) into the recent explosions that occurred at an allegedly illegal firecracker factory in Duttapukur, West Bengal on 27th August.
In dismissing the PIL as premature, a division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya held:
“This incident occurred on 27th August 2023, your representation makes it seem like it happened in 2020. It only happened day before yesterday. Immediately you are filing PIL, what is to be done? If investigation is not happening, some irregularities are there…but you are filing this enclosing newspaper cuttings for something that happened two days ago. Already investigation has been taken up by the State police, and thus this petition is premature. The police has to be allowed time to complete the investigation, and thereafter if any grievances are there, the petitioner can pursue the same. Petition stands dismissed.”
Case: Abdul Rakib v The State of West Bengal
Citaiton: 2023 LiveLaw (Cal) 249
The Calcutta High Court's Circuit Bench at Jalpaiguri recently granted bail to an accused under the NDPS Act, who had been charged with possession of commercial quantities of YABA Tablets.
At the outset, a division bench of Justice Moushumi Bhattacharya and Justice Prasenjit Biswas observed that the commercial truck in which the contraband was being transported being owned by an individual would not be a 'public place' and hence rigour of Section 42 NDPS Act would apply.
Section 42(1) casts a mandate on the designated officer to record his “reason to believe” with reference to personal knowledge or information received, before entering and searching. Section 42(2) continues the statutory mandate on the officer to intimate his immediate official superior the information recorded in writing and the grounds for his belief.
The Bench observed that while the petitioner's vehicle was for commercial purposes, it remained under individual ownership, not meant for public use or transportation and thus, section 42's mandate would apply to the present case, but the police had not complied with the same.
Case Title: Ashadullah Biswas @ Asadulla Biswas v The Union of India & Anr.
Citation: 2023 LiveLaw (Cal) 250
The Calcutta High Court has refused to quash criminal proceedings against former CPI(M) leader and alleged fake currency racketeer Mr. Asadullah Biswas, accused under the Narcotic Drugs & Psychotropic Substances Act, 1985 (“NDPS Act”) for allegedly storing and transporting 3400 kgs of poppy seeds, from a storage facility owned by him.
The Bench comprising Justice Shampa (Dutt) Paul while directing the matter to proceed towards trial, has held that:
"The prima facie case of the prosecution (NCB) against the petitioner Ashadullah Biswas is that he stores contraband in his godown and a huge quantity of poppy straw (85 bags each containing 40 kgs, total 3400 kgs) was loaded for transportation from the godown of Ashadullah Biswas. Further case is that Ashadullah Biswas, the petitioner on regular basis stores poppy straw (contraband) unlawfully in his godown and transports the same to different parts of the country. The said fact has been stated by a co-accused. Other than the said statements there are also other materials on record to show that there is a prima facie case against the petitioner to proceed towards trial.”
Case: Shri Jagannath Goswami & Ors. Vs The State Of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 251
The Calcutta High Court has refused to quash criminal proceedings against the Vice Chairperson and Directors of the Tamluk Ghatak Co-operative Bank who are accused by the Deputy Registrar of Cooperative Societies, Burdwan, of inter alia cheating, criminal breach of trust, etc. during the sanctioning of a loan.
In directing for the instant case to proceed towards trial, a single-bench of Justice Shekhar B Saraf held:
Allegations outlined in the FIR do indeed amount to an offence against the accused individuals and reveal the presence of a cognizable offence. Secondly, it is evident that the accusations are neither ludicrous nor implausible, as there exist substantial reasons to proceed with the case against the accused parties. Lastly, this Court is of the view that there is no justifiable cause to quash the proceedings, as they are not tainted with malicious intent or motivated by any ulterior motive seeking retribution against the accused, driven by personal animosity or private grudges It is imperative to comprehend that the term "entrustment" in this context denotes the delegation of the authority to sanction loans to the customers of the cooperative bank, subject to adhering to the guidelines duly established by the competent authority. It is my considered view that such authority was vested in the petitioners. Consequently, allegations of irregularities arising during the disbursement of loan amounts have been brought to my attention, and I firmly opine that these issues necessitate thorough examination by the lower court.
Case: Park Hospitals and another Vs. The West Bengal Clinical Establishment Regulatory Commission and another
Citation: 2023 LiveLaw (Cal) 252
The Calcutta High Court directed the West Bengal Clinical Establishment Regulatory Commission (“Commission”) to re-adjudicate a case concerning the death of a pregnant doctor, who unfortunately passed away after being made to wait and thereafter being refused admission by various clinical establishments (“CEs”).
The plea moved by one of the accused clinical establishments (“BNWCCC”) averred that they were the only ones made liable for medical negligence, whereas two other hospitals who had also turned a blind eye to the deceased were given a clean chit.
A single-bench of Justice Sabysachi Bhattacharya directed the Commission to re-examine the matter and held:
Accordingly, WPA No.16381 of 2021 is allowed, thereby setting aside the impugned award passed the respondent no.1 Commission dated September 6, 2021 on the sad demise of Dr. Shraddha Bhutra. The matter is remanded to the respondent no.1-Commission for a re-adjudication, upon giving opportunity to the parties to produce further evidence to substantiate their cases and for a fresh decision on the issue as to the compensation to be awarded against the BNWCCC and/or Belle Vue Clinic in the facts and circumstances of the case, in the light of the observations as made hereinabove. It is expected that the Commission shall complete such re-adjudication at the earliest, preferably within three months from the date of communication of this order to the Commission.
Case: Thaddeus Lakra And Others Vs. State Of West Bengal And Ors.
Citation: 2023 LiveLaw (Cal) 253
The Calcutta High Court has recently dismissed a PIL challenging agreements through which land allotted to scheduled tribe communities had been allegedly “grabbed” for illegally constructing a housing complex in Bidhannagar.
A division bench of Chief Justice T.S. Sivgananam and Justice Hiranmay Bhattacharya refused to allow the return of land and a CBI inquiry into their transfer, finding that the PIL was filed with over 15 years of delay.
"The schedule tribe raiyats who applied for permission to transfer does not appear to have any grievance against the said order dated 17.10.2006. Such order has already attained finality. The parties have also taken further steps acting on the said permission to transfer. Third parties have also acquired rights in the property in question who are also not before this Court. The original owners of the lands in question have also not approached the Court with any grievance. The action of writ petitioners amounts to assailing the order dated 17.10.2006 by which the Revenue Officer allowed the prayer of the raiyats of tribal lands to transfer their property. What the petitioners could not have done directly are attempting to do so in an indirect manner by filing this writ petition in the year 2022. The writ petitioners have approached this Court at a highly belated stage."
Case: X v State of West Bengal
Citation: 2023 LiveLaw (Cal) 254
The Calcutta High Court has recently allowed a plea by a 13-year old rape survivor for medically terminating her 26-week pregnancy and issued directions on the Child Welfare Committee, Purba Mednipur (“CWC”) to provide her younger sibling, and herself with all necessary assistance since they had been deserted by their migrant labourer-parents.
In allowing the minor's plea, a single-bench of Justice Sabyasachi Bhattacharya directed the CWC to assist the survivor in travelling to SSKM Hospital, Calcutta who would set up a medical board to determine the viability of terminating her pregnancy.
Referring to one of its recently passed judgements, the Court held:
“The outer limit of 24 weeks of pregnancy as stipulated in Section 3(2)(b) of the MTP Act is not sacrosanct. there are situations where a decision can be taken for termination of pregnancy where the continuance of pregnancy would involve a risk to the life of a pregnant woman or of grave injury to her physical and mental health or if there is a substantial risk that the child, if born, would suffer from serious physical or mental abnormality. Hence, taking a comprehensive view of the relevant provisions of law as discussed above, the survivor is not only a minor but a victim of rape and aggravated penetrative sexual assault and, as such, the continuance of the pregnancy resulting from such heinous crime constitutes a grave injury to the mental health as well as physical constitution of the victim…for all practical purposes it would only be justified that the victim girl's pregnancy is directed to be terminated.”
Case: Ranjan Das v The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 255
The Calcutta High Court's Circuit Bench at Jalpaiguri has recently held that cruelty contemplated u/s 498A would be different from general matrimonial disturbances faced by a couple, and that general allegations could not be made to establish a crime u/s 498A.
In upholding the appellant's conviction u/s 323 IPC for voluntarily causing hurt to his wife, while discharging him u/s 498A IPC, a single-bench of Justice Sugato Majumder held:
Cruelty contemplated in Section 498A of the Indian Penal Code is different from day to day bickering between the husband and wife. Sweeping and general allegations cannot be relied upon to conclude that offence under Section 498A of the Indian Penal Code has been perpetrated. The Trial Court committed error in coming to conclusion that the Appellant is guilty of offence under Section 498A of the Indian Penal Code. Therefore, conviction under Section 498A of the Indian Penal Code is liable to be quashed. However, conviction and sentence under Section 323 of the Indian Penal Code stands upheld, in view of oral and corroborating documentary evidence.
Case: Asgar Ali Vs. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 256
The Calcutta High Court has dismissed the appeal of a man accused of committing unnatural offences (under Section 377 of the IPC) on his 3-year-old neighbour, upon the prosecution having established his guilt beyond a reasonable doubt.
Justice Shampa Dutt (Paul) observed that the evidence rendered by the child's mother would be the 'best evidence' in such cases.
"A mother's evidence in a case of this nature is the best evidence before the Court. As truthful and sacred as the love in her heart for her tender helpless child of 3 years. A mother is the shield which protects her child against any harm that may befall upon the child. Cases of such nature do not come with eyewitness/eyewitnesses and one should not expect the same, as such acts are done in private, being against nature and the law. The act of the appellant herein constitutes the ingredients required to constitute the offence under Section 377 of the Indian Penal Code and the same has been proved by the prosecution beyond reasonable doubt by way of evidence both oral and documentary evidence. The appellant is directed to surrender before the Trial Court within a week from the date of this order to serve out his sentence in default, Trial Court shall proceed in accordance with law."
Case: M/S Hytone Merchants Pvt Ltd V Prasenjit Das And Anr
Citation: 2023 LiveLaw (Cal) 257
The Calcutta High Court has recently utilised its contempt jurisdiction to direct those in violation of the Court's orders to contribute towards social and ecological good.
In directing the contemnors to pay costs of Rs 25,000 each, to one Gram Samriddhi Foundation for utilisation in the furtherance of sustainable rural development and prosperity of villages in Bengal, as well as to plant “ten fruit-bearing trees” under the aegis of the aforesaid foundation, a single-bench of Justice Shekhar B Saraf held:
The Contemnors have graciously admitted that they have committed flagrant violation of the Court's orders, but have further submitted that there were compelling circumstances for them to undertake such actions and tendered an unconditional apology. To secure the ends of justice, I am the view that the Contemnors must do some social good for this Court to countenance their act of contempt. Plantation of trees is one such exercise which this Court would consider because trees, for as long as they are alive, be it for decades or for centuries, would incessantly and silently provide multiple benefits to the people.”
Case: Radha Bhattad v Rashmi Cement Limited
Citation: 2023 LiveLaw (Cal) 258
The Calcutta High Court has recently held that, as a Court of record, a High Court can review and correct its own orders by invoking its jurisdiction under Article 215 of the Constitution.
In upholding the maintainability of the present review application, a single-bench of Justice Moushumi Bhattacharya held:
It is important to demarcate the source if invocation of the power of review and the power to enter into a substantive review of the order on merits. Article 215 of the Constitution declares High Courts to be Courts of records. Being Courts of records, the High Courts are invested with inherent powers to correct the records. The term “Courts of records” does not simply mean keepers of records but that the High Courts have an obligation, indeed a duly, to maintain correct records within its jurisdiction in accordance with law. The power to correct orders, including where there is an apparent error on the face of the record, falls within the plenary powers of the High Court as a Court of record.
Case: Sarat Chatterjee and Co. (VSP) Private Limited v Sri Munisubrata Agri International Limited (Formerly known as LMJ International Ltd.) and Anr.
Citation: 2023 LiveLaw (Cal) 259
The Calcutta High Court has recently held that the security furnished by an award-debtor for stay of an arbitral award must be “clean, unblemished and with good exchange value.”
In refuting the arguments of the applicants, while expressing its insecurity about the security proposed by them, a single-bench of Justice Moushumi Bhattacharya held:
The Court is empowered to impose conditions on the award-debtor who seeks stay of an Award and must look to the provisions of the CPC for taking recourse to the principles for grant of stay of a decree or order. The Court must simply ensure that the security offered by the award-debtor has good currency value and is not an empty reassurance given by the award-debtor on a speculated value of unsold goods. The limited protection by the Division Bench for sale of the 10,000 MTs of Met Coke in 2015 cannot be resurrected after years to urge that the award-holder stands secured to the extent of the projected sale value of the goods amounting to Rs. 45 crores. Besides the uncertainties listed above, the 10,000 MTs of Met Coke has admittedly not been sold till date and even the sale was mired in litigation.
"PIL Not Genuine": Calcutta High Court Dismisses Plea Claiming Illegal Immigrants From Bangladesh Included In Indian Voters List
Case: Birendra Nath Mondal Vs State Of West Bengal And Ors
Citation: 2023 LiveLaw (Cal) 260
The Calcutta High Court has dismissed a PIL challenging the inclusion of certain alleged 'illegal immigrants' from Bangladesh, residing in Bagdah, North 24 parganas in Indian voters' list published by the Election Commission of India.
In dismissing the PIL, a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya held:
“This is not a genuine PIL, because petitioner has certain private grievances against the private respondents regarding immovable property, which is subject matter of a criminal case, which is pending. In light of the above we are not convinced that the present petition is a PIL. Another prayer is for deletion of private respondents from the voter list, alleging that they are Bangladeshi nationals. However, this prayer cannot be granted at this stage because the [panchayat] elections are already concluded after voter list having being drawn up. Petitioner will have liberty to approach the appropriate forum.”
Case: Zainul Haque v State of WB & Ors
Citation: 2023 LiveLaw (Cal) 261
The Calcutta High Court has dismissed a PIL challenging alleged embezzlement of public funds to the tune Rs 8.8 crores allocated to self-help group 'Milan Mohila Mahasanga' in Uttar Dinajpur, for manufacturing of school-uniforms.
A division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya directed the District Magistrate to look into the allegations. It held,
“Admittedly the project for supply of uniforms, is one of the State government. If there is any allegation of embezzlement of public funds, obviously, the authority shall look into the same. As we are disposing of the petition without calling for affidavits, and without going into the allegations made by the petitioner, we direct the DM, Uttar Dinajpur, to take into account the petitioners earlier representation, issue notice to parties and consider whether the allegations made by the petitioner are true or not. An order on the same be passed by the DM within 8 weeks from date.”
Case: Abhijit Das Vs. State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 262
The Calcutta High Court has recently quashed criminal case on charges of inter alia rape, against one Abhijit Das, who contested the Lok Sabha Elections in 2014 and 2020 for a political party from Diamond Harbour constituency.
In noting that the complainant herself had withdrawn the allegations of rape, and refused to undergo a medical examination, a single-bench of Justice Shampa (Dutt) Paul, held:
In view of the said materials on record, it is very unfortunate that in spite of the complainant withdrawing her allegations against the petitioner and also refusing medical examination as she reiterated that she was not raped, charge sheet has been submitted for allegations which were withdrawn five years ago. In such facts and circumstances, it is clear that there was no materials on record against the petitioner to submit the charge sheet as filed (the de facto complainant herself not willing to proceed with the case). As the de facto complainant herself does not wish to press the charges, the case being permitted to proceed towards trial will be a futile exercise.
Case: Biswajit Mukherjee v The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 263
The Calcutta High Court has dismissed as being 'patently illegal', a plea filed under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“LARR”) seeking compensation for and restoration of possession of a land acquired 52 years ago.
In dismissing the writ petition, a single-bench of Justice Shekhar B Saraf held:
I am amazed that such a frivolous and vexatious petition has been filed, and that too, after a lapse of more than 50 years. The acquisition by the Government is not in dispute. The present petition is nothing but a circuitous method of trying to get unjust enrichment. The petitioner can't ask compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and then pray for such land to be put under their possession. I am of the view that this petition that has been filed after an inordinate delay of 52 years, is completely baseless and without any merit whatsoever. The prayers itself are contradictory and no relief whatsoever can be sought by the petitioner.
Case: Kalyan Panda & Ors. Vs. The State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 264
The Calcutta High Court has quashed criminal proceedings against the petitioners, who were accused by their daughter-in-law (“opposite party no 2”) of conspiring to beat her up on several occasions.
Justice Shampa (Dutt) Paul noted that the daughter-in-law's claims were not supported by any medical evidence and that she was being treated for mental illnesses, due to which on several occasions she had been violent towards her husband.
"It is clear that even after filling the complaint, the complainant continued to WhatsApp the petitioner no. 2. There are no medical papers for the injuries sustained by opposite party no 2. Her prescriptions also advise her regarding marital therapy, anger management, etc. There are no materials on record to show that the ingredients required to constitute the offences alleged are present against any of the petitioners and permitting such a case to proceed towards trial will be an abuse of the process of law."
Case: Rajiv Kumar Sing alias Chotu Sing v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 265
The Calcutta High Court has refused to quash criminal proceedings against the petitioner, who along with 4 other accused, was charged with offence of abetment of suicide under Section 306 IPC, based on a complaint filed by the opposite party no 2, accusing them of causing “severe mental trauma” to her husband, leading to him taking his own life.
In directing for the matter to proceed towards trial, a single-bench of Justice Subhendu Samanta held,
On perusal of the case diary, it appears that police has collected sufficient materials during the course of investigation. This revisional court has no power to determine the correctness, validity and probative value of the evidences collected by the I.O. during the course of investigation. This court is obliged in law to exercise jurisdiction u/s 482 Cr.P.C to quash a proceeding where there is no prima facie case. The fishing and roving inquiry regarding plausible defence is not acceptable at this stage. Thus, I am of a specific view that the instant criminal proceeding cannot be quashed at this stage.
Case: Rohan Builders (India) Pvt. Ltd. v Berger Paints India Limited & connected applications
Citation: 2023 LiveLaw (Cal) 266
The Calcutta High Court has recently held that the mandate of an arbitral tribunal is held to be terminated under Section 29A of the Arbitration & Conciliation Act, 1996, (“1996 Act”), unless the same is extended during its subsistence, in the absence of which, an arbitrator would become de jure inadmissible.
In disposing of three arbitration petitions containing the aforesaid identical point of law, a single-bench of Justice Moushumi Bhattacharya held:
Section 29-A of The Arbitration and Conciliation Act, 1996 contemplates making of the award within the prescribed statutory timelines. The timelines are to be read as mandatory limits where the arbitrator and the parties to the arbitration are required to be conscious and vigilant of the cut-off dates for applying for extension of the mandate of the arbitral tribunal. The application for extension must be made during continuation of the mandate and not thereafter. If the arbitral tribunal proceeds to make an award after expiry of the timelines, the award would suffer from a jurisdictional error. This is by reason of the fact that there is no provision for renewal of mandate of the tribunal once it stands terminated by operation of law.
Case: Mrs. Nidhi Kedia Nee Chokhani v Sri Abhyudaya Kedia
Citation: 2023 LiveLaw (Cal) 267
The Calcutta High Court recently upheld a decree of divorce granted by the trial court in favour of a husband, who claimed divorce on the grounds of 'cruelty' suffered by him at the hands of his wife.
In dismissing the appeal of the wife for restoration of marital rights, a division bench of Justice Rajasekhar Mantha and Justice Supratim Bhattacharya held:
The FIR lodged by the appellant/wife is in the nature of a counterblast as because the same has been filed after the initiation of the matrimonial suit for divorce. The acts of cruelty alleged by the husband against the wife have not been condoned by the former. This Court cannot also lose sight of the fact that elderly members of the husband's family stood discharged from the criminal proceeding having regard to the frivolity of the charges brought against them. It needs no iteration either that the parties are continuing with their corrosive and divergent courses without any whisper of reconciliation.
Case Title: Nitya Gopal Pal & Anr. v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 268
The Calcutta High Court recently dismissed an appeal filed by a husband (“appellant no 1”) and his brother (“appellant no 2”) who were convicted by the trial court under Section 498A and 304B of the IPC, for causing the 'dowry death' of the victim, who poisoned herself and her daughter in her matrimonial home.
In upholding the duo's conviction, a single-bench of Justice Rai Chattopadhyay held:
The entire incident of transmission of the money as above happened ten days prior to the date of death of both the victims. The proximity of time between the alleged ill-treatment and time of death is a relevant factor so far as applicability of Section 304B is concerned and to raise presumption under Section 113B of the Indian Evidence Act and is an essential and necessary evidence for proof of a case of dowry death. The law would require the accused person, to come up with adequate rebutting evidence, to prove their innocence or to set the prosecution evidence at naught. Such statutory duty is grossly unfulfilled by the appellants, in the trial. In the considered opinion of this Court, the finding of the trial Court on the point as above renders any reconsideration or setting aside of the same due to alleged illegality or impropriety, unwarranted.
Case: Sukalyan Haldar v State of WB & Ors
Citation: 2023 LiveLaw (Cal) 269
The Calcutta High Court has granted interim relief to the Secretary of St. Stephens School, Dumdum, (“petitioner”) in a case involving his termination on the basis of a complaint made by a female colleague under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”), alleging that he referred to her as “faltu meye.”
In directing the petitioner's reinstatement to the post of Secretary pending reconsideration of his case, a single bench of Justice Sabyasachi Bhattacharya observed that the Local Complaints Committee (“LCC”) which had adjudicated over the issue, had violated the principles of natural justice, and had failed to enquire into the context of the alleged remark.
The Bench held, The expression “faltu meye” can be used in various contexts. The backdrop of the usage would lend colour and texture to the comment…the interpretation applicable in the present case would entirely depend on the backdrop. I find nothing in the impugned order to indicate that the appropriate context and backdrop in which the said expression was used by the petitioner, if at all, was discussed by the LCC…it cannot be said that the tenets of Natural Justice have been duly complied with by the LCC. There are ingredients of perversity and lack of opportunity of informed hearing to the parties, particularly the petitioner, in the decision of the LCC, which vitiates the impugned decision on the ground of violation of principles of Natural Justice.
Case: Siddhi Vinayake Puja Committee & anr v State of WB & ors
Citation: 2023 LiveLaw (Cal) 270
The Calcutta High Court has directed the Asansol Durgapur Development Authority (“ADDA”) to grant permission to the petitioners to hold celebrations of Ganesh Puja between September 18-22 on a public ground, which was admittedly used for government functions and Durga Puja.
In holding that denial to host Ganesh Puja, while allowing celebrations of Durga Puja on the same grounds would violate the petitioner's fundamental rights under Article 14, a single-bench of Justice Sabyasachi Bhattacharya held,
If Durga Puja is allowed on the ground, which is also a festivity of Hindus, there is no reason why festivities of other religions or the same religion, be it of other idols, should not be allowed thereon. The differentia sought to be projected by the ADDA is not sufficiently intelligible to come within the purview of reasonable classification within the exceptions to Article 14 of the Constitution. More absurd is the equation of government programmes with Durga Pula festivities. If Durga Puja can be said to be on equal footing with other government programmes, there is no plausible reason why Ganesh Puja or some other performance of public religious or celebratory activity should not come within the purview of the same.
Case: Animesh Biswas Vs. State of West Bengal
Citation: 2023 LiveLaw (Cal) 271
The Calcutta High Court has dismissed the appeal preferred by a man convicted under Section 9 of the POCSO Act, for committing rape on a 9-year-old girl at her school.
In holding that the testimony of the minor, as well as medical evidence regarding the accused's stable mental state could not be ignored merely because appellant was referred to as 'pagol'/'mad' by local persons, a single-bench of Justice Bibhas Ranjan De held:
On overall evaluation of the evidence, I find that consistent evidence of victim was supported by her parents and also by the Doctor of Nadia Sadar Hospital. I cannot disbelieve the evidence of victim, a nine-year-old girl only on the plea of defence that accused was called as 'Pagol' in the locality ignoring the evidence of Dr. Poulami Ray Chowdhury as well as a report of Medical Board. From the evidence of Dr Chowdhury, called for at the instance of this Court, we cannot, in any manner, suggest that at the time of incident accused was insane or abnormal. To show such abnormality/insanity defence did not adduce any evidence in spite of having enough opportunity to rebut the presumption under Section 29 of the POCSO Act. This Court thus upheld the conviction and dismissed the appeal.
Case: Prashant Bothra and another Vs. Bureau of Immigration and others
Citation: 2023 LiveLaw (Cal) 272
The Calcutta High Court has observed that the mere paranoia of Authorities whenever a person against whom any allegations are levelled seeks to leave the country, cannot be sufficient grounds for issuance of a lookout circular (“LOC”), which curtails the individual's liberty to travel abroad.
Quashing the LOCs issued against the two petitioners, a single-bench of Justice Sabyasachi Bhattacharya held,
It has to be kept in mind that the high grounds which are required to be made out for restraining the personal liberty of a person as guaranteed under Article 21 of the Constitution and the right of a person to move within the country under Article 19, a necessary corollary of which is the right to travel abroad, have to be on a much elevated footing than mere pendency of an investigation or allegations of financial frauds against the concerned person. The mere paranoia of the authorities whenever a person against whom allegations are levelled seeks to leave the country cannot be sufficient for issuance of LOCs and curtailing the person's personal liberty to travel abroad.
However, at the request of the investigating authorities for time to prefer an appeal, the Court stayed the operation of this order for two weeks
Case: Samsuddin Sk. & Ors. Vs. State of West Bengal
Citation: 2023 LiveLaw (Cal) 273
The Calcutta High Court has upheld the conviction of four persons under Section 302 and 376(2)(g) of the IPC, for the rape and murder of a minor girl in 2004.
However, refusing to impose punishment of death penalty, a bench of Justices Joymalya Bagchi and Gaurang Kanth referred to Supreme Court's decision in Bachan Singh's case and held:
It is true the appellants have perpetrated the most brutal act of rape and murder of a minor child. The offence is a heinous one and needs strongest condemnation from society. However, nature and gravity of offence is not the only criteria on which imposition of death penalty depends…the Court must satisfy its conscience that the possibility of reformation and rehabilitation of the convict is completely ruled out and the sentence of life imprisonment is thereby rendered inadequate. Reports have been filed before us. All the reports show that their conduct in jail is satisfactory. In these circumstances after lapse of 17 years I do not find any justification to enhance the life sentences of the appellants to the extreme and irreversible sentence of death.
Case: G. Venkatesh Babu & Anr. V The State Of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 274
The Calcutta High Court's Circuit Bench at Jalpaiguri has recently quashed criminal cases against the MD and Director of Lanco Infratech Limited, who had been accused of inter alia cheating, by one of their industrial oxygen suppliers, who alleged that in the course of business, the accused had failed to return back empty cylinders, thereby misappropriating approx. Rs 38 lakhs worth of oxygen cylinders.
In allowing the petitioners' application, a single-bench of Justice Siddhartha Ray Chowdhury held:
Upon considering facts and circumstances of the case, I am of the view that the criminal proceeding being C.R. Case No. 11 of 2019 is attended with malafide as the complainant initiated the proceeding suppressing the material fact knowing fully well that the company and the accused persons no. 2 and 3 being the alter ego of the company had no authority to deal with the fund of the company to transfer the same. That apart the agreement was entered into by and between the companies. Therefore, at all any offence was committed, it was committed by the company. Therefore, criminal proceeding cannot be allowed to survive without the company being arrayed as an accused.
Case: Hemanta Barman V The State Of West Bengal
Citation: 2023 LiveLaw (Cal) 275
The Calcutta High Court's Circuit bench at Jalpaiguri has recently held that the actions of a girl in voluntarily leaving her home with the accused person did not give the accused any right to invade upon her privacy or commit sexual offences upon her.
A single-bench of Justice Siddhartha Roy Chowdhury upheld the appellant's Trial court conviction for rape under Section 376 IPC and held:
If it is assumed that the victim was not abducted or kidnapped she left her house with accused person on her own, that does not give the accused person the right to invade upon the privacy of the victim girl or to commit any penetrative sexual offence within the meaning of rape as defined under Section 376 of the Indian Penal Code. In her evidence-in-chief the victim stated that the accused person kept her confined for three days in a house and committed rape upon her. Here in this case nothing has come out from the cross-examination of the victim to shake her credibility, therefore, there is no reason to seek corroboration as it would amount to add an insult to the injury already suffered by the victim.
Case: Thakurani Shree Shree Durga Mata Jew, & Ors. v Kangali Charan Raul & Anr.
Citation: 2023 LiveLaw (Cal) 276
The Calcutta High Court has held that substitution of legal heirs of a deceased plaintiff as well as addition more plaintiffs in a suit, would not be permissible under Order VI Rule 17 of the Civil Procedure Code, 1908, (“CPC”).
A single-bench of Justice Krishna Rao disposed of the application by allowing the prayer for amendment of pleadings by the plaintiffs and held:
This Court finds that the said amendments will not change the nature and character of the suit and the said amendment is formal in nature. As regard the deletion of the name of the plaintiff no. 4 on account of the death of the plaintiff no. 4 and substitution of the legal heir of the plaintiff no. 4 and addition of the name of the plaintiff nos. 8 and 9 are not permissible within the preview of the provisions of Order VI, Rule 17 of the Code of Civil Procedure.
Case: Paramita Bera & Anr. V The Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 277
The Calcutta High Court recently allowed a plea for enhancement of compensation awarded to a minor girl, who was the victim of an acid attack in 2018.
Justice Shekhar B Saraf directed the State to pay a further compensation of Rs 7.5 lakhs to the minor girl child, under the NALSA's Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes, 2018 (NALSA guidelines), which has been directed to be implemented pan India, by the Apex Court in the case of Nipun Saxena v Union of India.
Condemning the State's lackadaisical approach of awarding inadequate compensation to a minor acid attack survivor, in violation of the Supreme Court's directions of implementation of NALSA's compensation scheme, the Bench held:
This Court, directs the Government to immediately act in accordance with the Supreme Court judgement and frame its scheme as per NALSA's [guidelines] within a period of eight weeks from date...It is unfortunate that this State, which was once known for its progressive feminist discourse… has forgotten its feminist roots."
Case: Yeasin Molla & Ors. -Vs- Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 278
The Calcutta High Court has directed the Central Government to take a policy decision regarding the fixation of price of Kerosene oil, widely used for cooking, which was classified as an essential commodity under the Essential Commodities Act.
The Court was hearing a plea filed in representative capacity by Bengal's ration-card holders challenging the “soaring price of kerosene under the Public Distribution System (“PDS”)”
Further directing the State to impose minimum rates of taxes on the selling price of kerosene which is bought by “poorest of poor citizens who need it to illuminate their homes and prepare their food,” a single-bench of Justice Bibek Chaudhuri held:
The oil companies cannot fix the price of kerosene in the manner on the basis of import party pricing. In the instant writ petition the court cannot fix selling price of kerosene oil. Therefore, it is disposed of directing the Central Government to adopt and take a policy decision for fixing the rate of subsidized price of kerosene oil for the consumers…[for] the poorest of the poor citizens of our country who really need kerosene oil to illuminate their homes and prepare their food burning cow dung, coal etc with the help of kerosene oil.
Case: Pawan Kumar Agarwal -VsThe State of West Bengal & Anr. & connected applications
Citation: 2023 LiveLaw (Cal) 279
The Calcutta High Court has recently held that before the issuance of process, in cases where a Magistrate comes to a prima facie conclusion regarding the reasons for summons to be issued against the accused, and if the order shows compliance and application of mind vis-à-vis holding of inquiry under 202 CrPC, then such an order could not be set aside on technical grounds.
A single-bench of Justice Bibek Chaudhuri in answering a common question in multiple criminal revision applications on whether an inquiry under Section 202 of the Code of Criminal Procedure is mandatory before issuance of process in a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act when the accused resides outside the territorial jurisdiction of the magistrate, held:
While issuing process the learned Magistrate adverted to the petition of complaint, evidence of the complainant affirmed under Section 145(1) of the N.I Act and the documents filed by the complainant. Thus, before issuance of process, the learned Magistrate obviously came to the conclusion that there are prima facie reasons to issue process against the petitioner and lastly, if the impugned order prima facie proves application of mind by the learned Magistrate in respect of compliance of mandatory provision under Section 202 of the Cr.P.C, the order cannot be set aside only on technical ground for absence of the magic words that inquiry under Section 202 was held and the learned Magistrate was satisfied that process should be issued against the accused.
Mere 4K Interim Maintenance To Wife, Two Daughters Not Reasonable: Calcutta High Court
Case: Smt. Meghna Nandi (Maiti) Vs. Sri Asit Nandi & Anr.
Citation: 2023 LiveLaw (Cal) 280
The Calcutta High Court observed that an interim maintenance of Rs 4,000 per month, awarded by the magistrate in favour of a wife and her two daughters, would simply not be enough for their sustenance.
A single-bench of Justice Shampa (Dutt) Paul was seized of a revision application against the order of a magistrate rejecting the wife/petitioners prayer for enhancement of interim maintenance u/s 127 CrPC as 'premature' due to the pendency of their application for maintenance u/s 125 CrPC.
While refusing to interfere with the magistrate's order, the Bench directed the trial court to dispose of the 125 CrPC application within a period of three months, and held:
It was in no way logical to grant such a low amount as interim maintenance for 3 persons and leave the balance for the husband. Of course at the time of final disposal of the case, all factors have to be taken into consideration by the learned Magistrate, but an amount of Rs. 4000/- for three persons is just not reasonable.
Case: Sahim Hossain & Ors. Vs. The State of West Bengal & Ors. and connected applications
Citation: 2023 LiveLaw (Cal) 281
The Calcutta High Court held that candidates under 'reserved categories' could be considered for vacancies against 'unreserved' seats even if they had opted to avail for fees and age relaxations statutorily available to them, as members of reserved categories.
A division bench of Justice Debangshu Basak and Justice Md Shabbar Rashidi while quashing an order of the WB Administrative Tribunal (“WBAT”) held,
Relaxation in age and fees cannot be construed to be obtaining a benefit in the course for ascertainment of merit of a candidate. It is merely an enabling provision to enable designated section of the society, an opportunity to complete. Facilitating a designated section of the society to partake in a selection process cannot be equated to grant of privilege during ascertainment of merit in the selection process. [It] does not mean that any advantage has been granted to the reserved category candidates so as to disentitle them to be considered in unreserved category in accordance with merit.
Case: Suily Banerjee Vs. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 282
The Calcutta High Court has upheld the transfer of an 'Anganwadi worker' (“appellant”) despite absence of an express provision under the applicable scheme and rules.
Appellant had argued that her transfer was bad in law, since the memorandum dated 25.01.2006 issued by the Government of West Bengal, Department of Women and Child Development and Social Welfare for recruitment of Anganwadi workers, did not make any provisions for transfer, and laid down that only 'local women” were to be appointed to Anganwadi centres.
In upholding the order of transfer, a division-bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray observed: [Villagers complained that] the appellant being the teacher of ICDS centre North Jambad was not regular in her duty though all the children used to be present in the concerned Anganwadi centre. Although all the children were entitled to a full egg but the appellant was providing half an egg to each of them. The water used for cooking was also not good for which they were apprehensive about the health of their children. Though they tried to discuss the matter with the appellant but she misbehaved with them…therefore, when public services are disrupted due to an Anganwadi worker's attitude, the Authority can make appropriate order commensurate with the situation for the interest of the public. It is true that there is no express provision for transfer of an Anganwadi worker in the abovementioned Rules but at the same time, there is no express prohibition of transfer also
Case: Sri Uttam Kumar Das v Bangiya Gramin Vikash Bank & Ors.
Citation: 2023 LiveLaw (Cal) 283
The Calcutta High Court has recently dismissed a writ petition filed by a former Branch Manager for Bangiya Gramin Vikash Bank (“Bank”), challenging his demotion arising out of a punishment order passed upon him for unauthorisedly refinancing certain loan accounts, and failing to check the 'end-use' of loans obtained under the PM Employment Generation Programme Scheme (“PMEGP”).
In refusing to interfere with the “punishment order,” by referring to various Apex Court judgements, and invoking the Wednesbury Principle of Reasonableness, a single-bench of Justice Shekhar B Saraf held:
[Petitioner] was found extending undue favour to borrowers without taking into consideration their past track record; and financing accounts under the PMEGP scheme without undertaking post lending inspection. Lord Diplock held that for a decision to be unreasonable under the Wednesbury Test, it must be so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Considering there is prima facie proof of misconduct on behalf of the petitioner, demotion in salary pay scale does not shock the conscience of this Court.
Case: Amit Polley Vs. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 284
The Calcutta High Court has refused to quash criminal proceedings initiated against a man accused of abetting the suicide of a minor girl whom he was “in love” with, by allegedly inflicting physical and mental torture upon her, as well as demanding money from her.
Accused is booked under Section 306 IPC. Single-bench of Justice Shampa (Dutt) Paul directed the Trial Court to be mindful of Section 305 IPC (Abetment of suicide of child or insane person) during framing of charges. It observed,
In the present case, it is prima facie on record that the victim was a minor on the date of incident (alleged suicide). Thus the offence alleged prima facie has the ingredients required under Section 305 IPC, on record. Accordingly, the learned Trial Judge shall consider the said materials on record at the time of consideration and framing of charge or at the relevant stage, in accordance with law. The present case has to thus proceed towards trial to be decided in accordance with law as there is prima facie materials in this case against the petitioners to go to trial and quashing a case of such a nature will cause miscarriage of justice.
Case: Ashis Khamrai v State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 285
The Calcutta High Court has allowed a 'rally' to be organised by job aspirants on 27th September, who were denied appointments as Group-D employees under the Government of West Bengal, despite having requisite qualifications.
A single bench of Justice Jay Sengupta, while allowing the plea, directed the petitioners to hold such a procession, along the designated route, until 5pm, and in accordance with law.
"It is clarified that the entire programme should come to an end at 5 pm."
State government was directed to make necessary police arrangements for security of the demonstrators and passers-by
Case: Amna Parveen Vs. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 286
The Calcutta High Court has recently dismissed a challenge against the Teachers Entrance Test (“TET”) 2014, by a candidate who claimed that she was not selected after the interview, even after allegedly scoring high marks.
In dismissing the petitioner's plea after perusing video footage of her interview, bench of Justice Abhijit Gangopadhyay observed:
With such sense of spelling a person cannot be allowed to be a primary teacher. I have asked one spelling namely, 'Durga' [in Bengali] which also she spelt wrongly. Therefore, I think that the performance on that particular day of the petitioner was not up to the mark and we need not spend further time to see the video of the interview. I accept the result i.e. the marks given by the experts in the interview and communicated to this court as correct assessment and, therefore, the writ application is dismissed.
Case: Kishore Kumar Singh Vs. The State of West Bengal & Ors
Citation: 2023 LiveLaw (Cal) 287
The Calcutta High Court has refused to quash criminal proceedings against a Branch Manager of Standard Chartered bank who had been accused u/s 506 (criminal intimidation) and 509 (outraging modesty of a woman) of the IPC for allegedly threatening an employee who had approached the Labour forum against illegal termination of service.
Complainant submitted that the petitioner had threatened her to withdraw her case before the labour forum by allegedly “giving wrong signs” and stating that “Standard Chartered Bank, a big institution can purchase judgement”
In denying the petitioner any relief, a single-bench of Justice Bibhas Ranjan De held:
I am unable to come to a conclusion that the written complaint is so absurd and inherently improbable on the basis of which no prudent person can ever reach to a conclusion that there is sufficient ground for proceedings against the accused/petitioner.
Case: The State of West Bengal and others Vs. Kalpana Das Sarkar and others
Citation: 2023 LiveLaw (Cal) 288
The Calcutta High Court has recently upheld the order of a single-judge which transferred to the CBI, an ongoing probe into allegations of money laundering by the functionaries Alipurduar Mohila Samabay Rindan Samity Limited, a cooperative society.
A single-judge had earlier ordered the State's CID which had been investigating the matter, to transfer the same to the CBI & ED (Eastern Zone), due to lack of progress in the investigation, and had subsequently dismissed a 'frivolous' recall application taken out by the CID by imposing costs of Rs 5 lakhs upon the CID.
In dismissing the appeal arising out of the single-bench's orders, while setting aside the payment of costs, and expunging “aspersions” cast on the CID by the single-judge, a division-bench of Justice Sabyasachi Bhattacharya and Justice Uday Kumar held:
On merits, no fault could be found with the order dated September 15, 2023 inasmuch as the recall application of the CID was rejected.
Calcutta High Court Directs Post Master General To Release MIS Dues Pending For Almost 15 Yrs
Case: Mrs. Polin Mukherjee V Union Of India & Ors.
Citation: 2023 LiveLaw (Cal) 289
The Calcutta High Court has directed the Chief Postmaster General to release sum of Rs 50,000 including a bonus of Rs 5,000 along with interest of 6% p.a. from the date of maturity of the petitioner's Monthly-Investment-Scheme (“MIS”) account at the Bhadrakali Post Office.
A single-bench of Justice Shekhar B Saraf held:
The petitioner states she is being deprived of her savings due to the arbitrary and negligent actions of the respondents. [Respondents] contend there was a procedural lapse on behalf of the concerned Postal Assistant, and he was punished accordingly. It is established that the respondents were aware of the gravity of such acts from a reading of SB Order No. 3/2008 dated February 19, 2008. Thus, the respondent cannot argue that the action of the concerned Postal Assistant was a mere procedural lapse. As observed in Sulekha Chatterjee v. Union of India and Others (2023), the Post Office serves as a guardian of savings and operates on the trust of the citizens of this country that has been built over decades. However, such acts tarnish this trust and utmost effort must be made to redress the wrong done.
Case: Surendra Prasad v The Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 290
The Calcutta High Court has directed the Food Corporation of India (“FCI”) to pay the petitioner's gratuity along with 8% interest, within four weeks in a challenge against withholding of his gratuity due to ongoing criminal investigations under allegations of 'moral turpitude.'
In setting aside the order of the Deputy Chief Labour Commissioner, a single-bench of Justice Shekhar B Saraf held:
The Deputy Chief Labour Commissioner decided upon the issue…depending on the possibility that the petitioner could be found guilty in the pending CBI proceedings. The petitioner has been acquitted of all charges in a criminal case and rest of the CBI cases are pending. Therefore, so long as the aforementioned [cases] are pending, the employer cannot forfeit the payment of gratuity to the petitioner. The Deputy Chief Labour Commissioner did not factor in, this seemingly trivial issue, but the petitioner was never dismissed nor terminated from service [even] the penalty order does not terminate, nor does it dismiss the petitioner from service.
Case: Partha Ghosh -Versus- The State Of West Bengal And Others
Citation: 2023 LiveLaw (Cal) 291
In a scathing verdict on the state-aided Rabindra Bharati University, the Calcutta High Court has expressed dismay and distress over the University's insistence on engaging in 'unnecessary' litigation even though a Division-bench had warned them against doing so.
A single-bench of Justice Kaushik Chanda observed:
This Court is surprised that a State-aided university, at the cost of public exchequer, has engaged in extravagant litigations seemingly without a productive purpose. Despite being cautioned by the Division Bench of this Court, the learned advocate representing the university seems to have refused to internalise the lessons. The learned advocate for the university was allowed to place his case for nearly a full day. His submission has been followed by a 38 (thirty-eight) page written notes of argument…this Court is surprised that a learned advocate of this Court, despite being cautioned by the Division Bench refuses to learn any lesson and fails to discharge his obligation to assist the Court in arriving at a right decision.
Case: Abhishek Banerjee v ED
Citation: 2023 LiveLaw (Cal) 292
The Calcutta High Court has directed the Enforcement Directorate (“ED”) to not initiate any coercive action against TMC leader and MP Abhishek Banerjee pursuant to ECIR (Enforcement Case Information Report)II/19/2022 filed by the ED, accusing him in the 'Teacher-recruitment scam.'
However, it refused to the quash the ECIR itself. A single-judge bench of Justice Tirthankar Ghosh directed the ED not to take any coercive action against Banerjee, except under Section 19 of the Prevention of Money Laundering Act (“PMLA”) as had been elaborated by the Apex Court in V. Senthil Balaji's case.
As such, except the statement of Sujay Krishna Bhadra (an accused who is in custody) no materials were produced by E.D. before this Court to relate the petitioner with the ECIR under challenge. Having regard to the same I direct that no coercive measures would be taken against the petitioner by the E.D. without adhering to Section 19 of the PMLA, 2002. So far as the prayer for quashing of ECIR/KLZO-II/19/2022, I am of the view that the stage at which the petitioner approached this Court was premature compared to the present stage of investigation and as such the same cannot be interfered with, it was held
Calcutta High Court Refuses To Entertain PIL Seeking Permission To Organise 'Durga Puja', Asks Petitioner To Approach Appropriate Authority
Case: Suman Dutta And Ors Vs State Of West Bengal And Ors.
Citation: 2023 LiveLaw (Cal) 293
The Calcutta High Court dismissed a PIL filed by the Sonarpur Uttar Vidhan Sabha Saradutsab Committee, seeking the Court's permission to construct a Durga Puja pandal and organise Durga Puja celebrations from 19th-25th October, near 45 A/B Bus Stand.
In noting that the petitioner's prayers were not sustainable as a PIL, and that the State had opened a comprehensive portal for granting Durga puja permissions, a bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya held:
“This writ petition is not maintainable as a PIL…if an individual or group seeks to hold puja, they have to contact the appropriate authorities for consideration, by way of an application. If permission is granted, responsibility has to be affixed to whom permission has been granted. State has submitted that to obtain permission, application has to be made online through a dedicated portal, which has opened today. Thus, no directions are required to be issued, and the petitioners may seek permission by making applications through the portal.”
Case: St. Mary's Technological Foundation and Another Vs. The West Bengal State Electricity Transmission Company Limited and Others
Citation: 2023 LiveLaw (Cal) 294
The Calcutta High Court has dismissed a plea challenging the passage of a “high-tension transmission line” overhead of a plot of land owned by the St. Mary's Technological Foundation, which catered to Christian minorities and students from weaker sections of society.
In dismissing the arguments of the petitioners, while holding that the right to religious freedom ought to be balanced with overwhelming public interest, a single-bench of Justice Sabyasachi Bhattacharya held:
It is well-settled that the right to get electricity has been read as a component of Article 21 of the Constitution, conferring the right to life. [As the Apex Court held] the provisions of the Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest, necessary for growth and development of a country and economy and the wellbeing and progress of the citizens. The key is, thus, to strike a balance between Article 30 of the Constitution and overwhelming public interest. The High Tension transmission line is to cater to huge sections of society, in the locality and elsewhere, including the petitioners themselves, who would also be beneficiaries thereof. Such overwhelming public interest cannot be brushed aside to give precedence to the right of the petitioners under Article 30(1), as held by the Five-Judge Bench in Islamic Academy (2003).
Case: Ankita Saha & Anr. V The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 295
The Calcutta High Court has dismissed a plea by the writ petitioner, who challenged an order from the Chairman/Secretary, District Primary School Council, Dakshin Dinajpur (“Chairman'”), denying her compassionate appointment upon the passing of her father, who died-in-service in 2010.
In upholding the order passed by the Chairman, a single-bench of Justice Shekhar B Saraf observed:
This Court does not find any infirmity with the order passed by the Chairman dated December 15, 2017, because not only was petitioner no.1 a minor of 14 years of age on the date of death of her father, but the two-year application period had also expired for petitioner no.1 after she attained the age of majority. It is settled law that compassionate appointment is not a right, rather an exception to Articles 14, 15 and 16 of the Constitution of India wherein the same must be provided in terms of the rules framed for such an appointment.
Case: Bijoy Kumar Banik and another vs State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 296
The Calcutta High Court has allowed the writ petition filed by a couple who claimed that they had been driven out of their home by their son and daughter-in-law (“respondents”).
Petitioners claimed that they had right title and interest over the property and that the respondents had been torturing, intimidating and even assaulting them for a considerable amount of time, eventually ousting them from the house.
In reinstating the petitioners to their home, a single-bench of Justice Jay Sengupta held:
It appears that although the petitioner No.2 is presently the owner of the property in question which was originally owned by the petitioner No.1. They both have allegedly been ousted by their son and daughter-in-law. Regardless of the veracity of such allegations, the owners of the property have every right to stay there and their son and daughter-in-law could at best live there as licensees. At this age, the petitioners cannot be relegated to the civil court to obtain necessary relief in this regard.
Case: Ruksana Khatun Vs. Union of India and others
Citation: 2023 LiveLaw (Cal) 297
The Calcutta High Court has refused to pass orders in favour of a volleyball player who challenged her non-selection by the Volleyball Federation of India (“VFI”) for the 2023 Asian Games contingent.
Petitioner claimed that she was highly accomplished in the sport of Volleyball at the national level, and that those had achieved far less than her in the sport, had been selected due to a non-transparent selection process.
In dismissing the plea, a single-bench of Justice Sabyasachi Bhattacharya held:
The court is not an expert in the field of Volleyball or, for that matter, in any sport. Hence, some amount of finality has to be attributed to the outcome of the selection process, which is supposed to be held by people having sufficient acumen of the concerned sport. However, the petitioner has a point in arguing that since the petitioner is one of the premier sports persons of the country in the field of Volleyball, she is at least entitled to know her deficiencies, as perceived by the selection committee [by accessing video footage of the selection process]…for the limited purpose of the petitioner assessing her own performance for future competitions.
Case: Nand Kishor Shaw & Ors. -Versus- State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 298
The Calcutta High Court has recently directed the State's Transport Department to publish all route/permit vacancies for plying of auto rickshaws in the State, to enable transparent allocation of the same.
In dismissing an appeal against a single-bench order which refused to interfere with the allocation of auto rickshaw permits for the Howrah-Don Bosco, Liluah route a division bench of Justices Rajasekhar Mantha and Supratim Bhattacharya held:
There may be some substance into individual grievances raised by the petitioners. If the same are entertained, they would not upset a number of awarded permits on a particular route, but could also deprive existing permit holders of rights. This Court is not inclined to interfere with the impugned judgement [but] directs that henceforth all vacancies in any permit on any route would be indicated and published on the website of the concerned RTA in the State.
Case: Dilip Adhikary Vs. Basanta Nath
Citation: 2023 LiveLaw (Cal) 299
The Calcutta High Court has observed that offences under Section 138 of the Negotiable Instruments Act (“N.I. Act”), cannot be compounded without the complainant's consent, in violation of Section 320 CrPC.
In dismissing two criminal revisions, a single-bench of Justice Subhendu Samanta held:
It is clear that the prayer of compromise at the stage of criminal revision before this High Court is not possible without consent of the complainant. Nothing prevented the petitioner to make the proposal before the Magistrate or the appellate court. However, the law of the land is well established to the fact that the compounding cannot be held violating the principle enumerated in Section 320 of the Cr.P.C, thus I am of a view that the offences as proved against the petitioner cannot be compounded.
Case: Pravash Dalui And Ors Vs State Of West Bengal And Ors
Citation: 2023 LiveLaw (Cal) 300
The Calcutta High Court has allowed a writ petition moved by reserved category candidates in the WB Police Constable Recruitment 2019, whose names were excluded in a revised merit list that was published in 2022 pursuant to the impugned judgment by the WB State Administrative Tribunal (“SAT”).
The Bench restored the original merit list that quashed by SAT, in which reserved candidates who received marks equal to or more than general candidates, were treated as general category candidates.
In setting aside the decision of the SAT, and holding that the merit list published in 2021 was in accordance with the provisions of the various State Acts, a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya cancelled the appointments made pursuant to the 2022 merit list and held:
In the case on hand the authorities prepared the original merit list/panel dated 26.03.2021 by placing the meritorious reserved category candidate in the unreserved category irrespective of the fact that they had availed the relaxation in age etc. The direction of the learned Tribunal in the impugned judgment to prepare a panel afresh is in effect directing an authority to act de hors the statutory provisions which is not permissible. The names of several candidates of the reserved category which found place in the original merit list, got excluded in the revised merit list/panel published pursuant to the impugned judgment. Therefore, the revised list/panel prepared pursuant to the direction of the learned Tribunal is liable to be set aside and quashed.
Case: Palash Das Vs. The State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 301
The Calcutta High Court has directed the State to provide the petitioner, a person with 100% disability, with a wheel chair under the Prosthetic Aids and Appliances Scheme of the Government of West Bengal, as well as with a space/shop near Baranagar in order for the petitioner to start some business with the help of his wheelchair.
In taking exception to the apathy faced by the petitioner at the behest of the State, a single-bench of Justice Sabyasachi Bhattacharya held:
The State has taken a palpably nonchalant attitude in abstaining from hearing of the matter repeatedly. The State cannot shirk its responsibility as parens patriae, having liability to look after citizens who are not able to look after themselves for some reason or the other beyond their own control.
Case: Sri Nirbhay Lodh Vs. The UCO Bank & Ors.
Citation: 2023 LiveLaw (Cal) 302
The Calcutta High Court has directed UCO Bank to disburse within a period of 6 weeks, the salary arrears, retirement and service benefits of a retired employee whose conduct during service is being disputed by the Bank.
Earlier, the petitioner's order of dismissal by the Bank was dismissed by a co-ordinate bench, whose order was subsequently upheld by a division-bench on 27th June 2023.
In allowing the writ petition, a single-bench of Justice Shekhar B. Saraf held:
“I see no merit in the arguments of the respondents to deny the petitioner his salary arrears, retirement and service benefits on grounds of pendency of appeal or the order of dismissal of service since both such grounds are redundant after the order of the Division Bench of this High Court dated June 27, 2023. The argument that they may file an appeal challenging the order of the Division Bench of this High Court in the future and therefore, in the eventuality of pendency of such future appeal, the petitioner must not receive his arrears is not sound in law. The possibility of pendency of future appeals cannot be grounds for not withholding an employee's salary arrears, retirement and service benefits.”
Case: Sushil Kumar Thard vs. National Jute Manufactures Corporation Limited & Ors.
Citation: 2023 LiveLaw (Cal) 303
The Calcutta High Court has recently held that damages being claimed by a party, must satisfy the threshold of credibility, and not be mere “guesstimates” made without legal basis.
Petitioner was aggrieved by the National Jute Manufactures Corporation Limited (“NJMC/respondent no 1”), decision to forfeit the pre-bid earnest money deposited by the petitioner in response to a call for e-auction by the respondents.
In allowing the petitioner's plea for refund of pre-bid earnest money held with the respondent, a single-bench of Justice Moushumi Bhattacharya held:
The right to forfeiture of earnest money cannot survive in the absence of proof of actual loss. Therefore, NJMC must prove that it has suffered loss or damage consequent to such refusal and is entitled to compensation. It is evident from the second affidavit of NJMC that the estimation of damages is inflated, exaggerated, unreasonable and remote, apart from failing to disclose any basis for the computation. NJMC simply seeks to make a windfall at the expense of the petitioner. As a Government of India undertaking, the act of forfeiture is also discriminatory and in breach of equality and fair play.
Citation: 2023 LiveLaw (Cal) 304
Case: Prathyusha- AMR JV vs Orissa Steel Expressway Private Limited
The Calcutta High Court has recently allowed applications for appointment of arbitrator u/s 11 and for interim protection u/s 9(1) of the Arbitration & Conciliation Act, 1996 (“Act”) by Prathyusha- AMR, a Joint Venture.
In allowing the plea for appointment of an arbitrator u/s 11 of the Act, a single-bench of Justice Moushumi Bhattacharya noted that “a turning point” in negotiations between the parties may 're-vitalise' limitation in order to sustain a 'live claim.'
Citation: 2023 LiveLaw (Cal) 305
Case: Chandan Kaity vs. The State of West Bengal and others
The Calcutta High Court has allowed the pleas filed by representatives of the Vishwa Hindu Parishad (VHP) and the Bajrang Dal to hold a "Shourya Jagran Yatra”, which would enlighten the people of West Bengal about the sacrifices made by the freedom fighters.
On an earlier occasion, a single-bench of Justice Jay Sengputa had directed the petitioners to file a supplementary affidavit clearly demarcating the route for its proposed yatra, and to serve an advance copy of the same on the State.
The Bench perused the route map presented by the petitioner, as well as their detailed proposal pertaining to modalities of conducting the yatra.
Must Be Wary Of Unnecessary Judicial Interference At Every Stage Of Arbitral Process: Calcutta HC Upholds Arbitral Award In Favor Of Reliance Infra
Citation: 2023 LiveLaw (Cal) 306
Case: Damodar Valley Corporation v Reliance Infrastructure Limited
In a landmark 255-page judgement, the Calcutta High Court has upheld an arbitral award in favor of Reliance Infrastructure (“RIL”), arising out of a deal struck with the Damodar Valley Corporation (“DVC”) for construction of thermal power plants in Raghunathpur.
In upholding the award passed by a panel of three arbitrators, a single-bench of Justice Shekhar B Saraf noted that India is in dire need of Arbitration reform due to increased judicial interference at every stage.
Citation: 2023 LiveLaw (Cal) 307
Case: Vishal Osatwal Vs. State of West Bengal and others
The Calcutta High Court has appointed Vishal Osatwal as the guardian and legal representative of his father, Rajesh Kr Osatwal who had been in a prolonged comatose state, being incapable to participating in his day-to-day activities or communicating with other people.
The petitioner had submitted that he had been taking care of his father for a prolonged period, and prayed to be recognised as his guardian such that he was able to administer his father's estate and utilise the same to treatment for his father.
Citation: 2023 LiveLaw (CaL) 308
Case: Sampa Deb (Basu) Vs. The State of West Bengal & Anr.
The Calcutta High Court has quashed a criminal intimidation complaint lodged by a man against his wife, alleging that she drove him out of her parental home where they used to reside and also beat him up.
The woman had been residing with her visually impaired mother which happens to be in proximity with her workplace. The Court weighed in factors like she is the sole bread winner and that her in-laws are also deceased.
Citation: 2023 LiveLaw (Cal) 309
Case: In Re: Madhav Agarwal & Ors.
The Calcutta High Court has refused to grant bail to the petitioners, accused of gang-rape by the victim who alleged that she was attacked at the birthday party of one of the accused.
Victim had alleged that she was forced to consume alcohol at the party, after which she found herself unconscious and with the petitioners forcing themselves upon her.
Earlier, a division-bench of Justice Joymalya Bagchi and Justice Gaurang Kanth had taken serious exception to the police's actions in harassing the victim, and the petitioner's attempts to influence her during the ongoing investigation.
At the present hearing, the Bench denied the petitioners' application for bail upon noting that the gravity of the offence of gang-rape, along with the petitioners' earlier attempts to influence the investigation.
Citation: 2023 LiveLaw (Cal) 310
Case: Bhola Naskar @ Bholanath Naskar Vs. State Of West Bengal
The Calcutta High Court has commuted the death sentence of some of those accused in the brutal gang-rape and murder of a 20-year-old girl in Kamduni, in June 2023. The Court further acquitted another accused who had also been sentenced to death by the trial court.
A division-bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta held:
Trial Court held the murder and rape was a pre-planned one. Victim had scoffed at the appellants. Hence, they brutally raped and murdered her. The Court noted the brutality of the offence by referring to the injuries in the private parts of the victim. Prior concert of the appellants to avenge on the purported snub by the victim has not been proved. The post-mortem report does not mention any internal injury on the abdominal part of the victim. No injury on the external pelvic part was noted and depth of the tear in the posterior fourchette, hymen and vaginal tissues is not noted…the injuries on the victim cannot be compared with the extensive and brutal injuries noted in Mukesh (2016) which was one of the prime considerations for upholding death sentence in that case.
Citation: 2023 LiveLaw (Cal) 311
Case: Abhishek Banerjee v Ramesh Malik & Ors
The Calcutta High Court has directed the Enforcement Directorate (“ED”) which is investigating the multi-tier recruitment scam in West Bengal, to first go through the documents submitted by accused MP Abhishek Banerjee and then summon him if necessary, after giving 48 hours' notice.
The Court further made it clear that the investigation be completed at the earliest, and in accordance with law, and also directed the single-judge in seisin of the recruitment scam matters to ensure that no adverse remark was made against any person against whom investigations were pending, which would be likely to prejudice their rights.
Citation: 2023 LiveLaw (Cal) 312
Case: State of WB v Sudipta Ghosh
The Calcutta High Court has recently dismissed a review petition while outlining the powers of review available to the High Court as a Court of record under Article 215 of the Constitution, and the circumscription of the same in view of Order 47 Rule 1 of the CPC, which outlines the grounds for review of a judgement.
A single-bench of Justice Shekhar B Saraf held:
An appeal cannot cloak as review…Courts while exercising their review jurisdiction act as third umpires and are only empowered to look into an error apparent on the face of record. If the courts are required to embark upon a journey in search for the error on which review has been sought, then that error cannot be termed as an error apparent on face of record. Review jurisdiction cannot be treated as second opportunity by the parties aggrieved by a judgement or order to argue afresh.
Citation: 2023 LiveLaw (Cal) 313
Case: Shantibala Naskar Vs. State of West Bengal and others
The Calcutta High Court has directed the Principal Chief Conservator of Forest (Head of Forest Force), Government of West Bengal, to disburse a compensation of Rs.5,00,000/- in favour of the petitioner, whose husband died after being attacked by a tiger in the Sundarbans area.
In observing that compensation could not be denied even if the petitioner's husband had transgressed some laws in entering the forest 'core' area to earn his livelihood, a single bench of Justice Sabyasachi Bhattacharya allowed the plea.
Citation: 2023 LiveLaw (Cal) 314
Case: Srimanta Malik & Ors. Vs. The State of West Bengal & Ors.
The Calcutta High Court has dismissed challenges against the selection of an elected candidate belonging to the Scheduled tribe category as the Pradhan of a gram panchayat, against a seat reserved for ST candidates.
Since the incumbent was the only candidate who was eligible for the post, which had been reserved for members of the ST community, she was to be elected as Pradhan unopposed.
Father Locking Main Gate To Evict Son Without Due Process Of Law Is Mischievous: Calcutta High Court
Citation: 2023 LiveLaw (Cal) 315
Case: Nanda Dulal Bag Versus The State of West Bengal & Ors.
The Calcutta High Court has come to the aid of a man who was ousted by his father from their house by installing a padlock on the main gate.
It was argued by the petitioner-father, that the respondent-son had spent 15 years away from the family, and had only returned “to create disturbances” when the petitioner had gifted a large portion of his property to another son.
In recognising that while the petitioner could evict his licensee son through appropriate civil proceedings, a single-bench of Justice Jay Sengupta expressed disagreement with the petitioner's forceful and unlawful eviction of his son.
Citation: 2023 LiveLaw (Cal) 316
Case: Kanchi @ Sanjit Makhal and Another Vs. The State of West Bengal and others
The Calcutta High Court has directed the State Sentence Review Board (“SSRB”) to reconsider the case of two gang rape convicts for premature release after 22 years of incarceration, which had been denied by the Board on earlier occasions.
Petitioners, convicted in 2001, had applied for remission, and the Court noted that not only did the authorities have no complaints regarding their conduct during parole, but another co-accused had earlier been released by the Supreme Court.
In reprimanding the authorities for being unable to fittingly consider the petitioner's plea for remission, a single-bench of Justice Sabyasachi Bhattacharya ordered its reconsideration.
Citation: 2023 LiveLaw (Cal) 317
Case: Tijendranath Mahato Vs. The West Bengal State Election Commission & Ors.
The Calcutta High Court has negated the results of recounting for a Panchayat Samiti seat, which took place during the recently concluded Panchayat General Elections in West Bengal.
Petitioner argued that he had been informed of being the winning candidate by six votes on 11th July, but when he went to collect his winning certificate the next day, he was informed that the votes had been recounted and he had lost.
In directing that the petitioner be reinstated as the elected member of the Panchayat Samiti, and negating the erroneous recount conducted by the Block Development Officer (“BDO”) a single-bench of Justice Amrita Sinha allowed the plea.
Case: Suvendu Adhikari v Rajiva Sinha State Election Commissioner & connected applications
Citation: 2023 LiveLaw (Cal) 318
The Calcutta High Court has issued "Rule Nisi" in a contempt application against the West Bengal State Election Commission (“SEC”) for its “deliberate violation” of court orders during the recently concluded West Bengal Panchayat General Elections 2023.
Rule was issued in accordance with the Rule 19 of the Calcutta High Court Contempt of Court, Rules, 1975, for failing to comply with the Court's orders for deployment of central forces in the recently concluded Panchayat Elections, in “letter and spirit.”
Citation: 2023 LiveLaw (Cal) 319
Case: Government of Maharashtra v Shrivin Pharma Pvt. Ltd.
Calcutta High Court in holding that the MSME Council could not 'desert the task of decision making' to a Chartered Accountant, who was not on the Council/arbitral tribunal under the MSMED Act, a single-bench of Justice Moushumi Bhattacharya observed:
Section 31(3) of the 1996 Act requires the arbitral tribunal to give reasons upon which the award is based subject to the parties agreeing otherwise. The reasons given by the Chartered Accountant in the present case for fixing the quantum of interest cannot be accepted to be the reasons of the Facilitation Council / arbitral tribunal in satisfaction of the mandate of section 31(3) of the 1996 Act. [By not completing the arbitral award] the Council would be undermining the very object of the MSMED Act and the legislative intent in enacting it.
Citation: 2023 LiveLaw (Cal) 320
Case: Manojit Basu vs. Shyamasree Basu (nee Ghosh)
The Calcutta High Court has upheld a decree of divorce passed by the Trial court, dissolving the marriage between the appellant (husband) and respondent (wife) under Section 13 of the Hindu Marriage Act, 1955 (“HMA”).
Court further upheld the trial court's rejection of custody and dismissed an appeal by the appellant for custody of his son under Section 26 HMA due to non-payment of maintenance.
Citation: 2023 LiveLaw (Cal) 321
Case: Dipali Mitra & Ors. V Coal India Limited & Ors.
The Calcutta High Court has found that the distinction between 'married' and 'unmarried' daughters for the purpose of compassionate appointment, as per Clause 9.3.3 of the National Coal Wages Agreement-VI is ultra vires and in violation of Article 14 and 15 of the Constitution.
In dismissing the plea of the petitioners for compassionate appointment the Court noted that the most important factor for seeking the same was dependency on the deceased employee, and financial exigency.
Citation: 2023 LiveLaw (Cal) 322
Case: Probhat Purkait @ Provat Vs. The State of West Bengal
The Calcutta High Court has exercised its jurisdiction under Article 226 of the Constitution, and Section 482 of the CrPC to set aside an impugned judgement and order of conviction against the appellant who had been sentenced to 20 years imprisonment on charges of kidnapping of a minor under IPC and aggravated penetrative sexual assault under POCSO Act.
In observing that the appellant, and victim were both adolescent residents of the same village, and had engaged in a consensual sexual relationship, a division bench of Justices Chitta Ranjan Dash and Partha Sarathi Sen noted from the victim that she had voluntarily proceeded to the appellant's home to assume the role of his wife, and subsequently given birth to a child.
Citation: 2023 LiveLaw (Cal) 323
Case: Surya Chandra Mishra v Mrs. Chitrangana Debnath
The Calcutta High Court has dismissed a revision application in against the orders of the trial court in a matrimonial suit, which allowed the wife/respondent adjournments and opportunities to file her written statement.
It was contended by the petitioner that the trial court could not have passed orders extending the time for filing written statements for the wife, since no formal application for the same had been made by her.
Citation: 2023 LiveLaw (Cal) 324
Case: Ashish Kumar v State of West Bengal & Anr.
The Calcutta High Court's Circuit Bench at Jalpaiguri has refused to quash criminal proceedings against a tour operator who had been accused of duping his clients by taking large sums of money from them, without utilising the same for their hotel or cab bookings.
Complainants, a group of 18 tourists from Maharashtra, alleged that they had booked a package for hotel and cab services with the petitioner for a tour of Darjeeling & Sikkim, for which they had already paid a huge sum to the petitioner, only to discover that he had not paid any of that money to the hotel or cab operators.
Citation: 2023 LiveLaw (Cal) 325
Case: Damodar Valley Corporation v BLA Projects Pvt Ltd
The Calcutta High Court has held that the venue for arbitration, as decided by the parties under their contractual agreement would automatically be the seat for arbitration, in the absence of any 'contra-indicia.'
In rejecting jurisdictional objections on its competence to entertain an application under Section 34 of the Arbitration & Conciliation Act, 1996 (“A & C Act”) upon noting that Clause 16 of the Contract between the parties had designated Kolkata to be the venue of arbitration and the Court in the City of Kolkata to have exclusive jurisdiction a single-bench of Justice Moushumi Bhattacharya held:
The parties accepted this agreement to be the final agreement. The fact that venue would be construed as the juridical seat of the arbitration has also been judicially settled where the seat is not specified. There is hence no contra indicia to un-seat the arbitration from the Court in the city of Kolkata which is the High Court at Calcutta. The respondent has not presented any contrary indicia to show that the cause of action has arisen elsewhere and would consequently divest this Court of jurisdiction.”
Citation: 2023 LiveLaw (Cal) 326
Case: In the matter of: Sanjay Kashyap & Anr
A Calcutta High Court bench comprising Justices Sabyasachi Bhattacharya and Partha Sarathi Chatterjee have granted bail to the petitioners who had been accused under the NDPS Act, upon noting that the rigors of Section 37 of the NDPS Act which requires a Court to only grant bail if there are reasonable grounds to believe the accused are not guilty and will not reoffend, would not apply to the present case.
In observing that although a charge sheet had been filed, the forensic report (“CFSL report”) or even a supplementary charge sheet had not been taken on board due to “institutional latches,” the bench ordered:
Although charge-sheet was filed within 180 days, the same was merely lip-service paid to the provisions of the statute. Section 37 of the NDPS Act has to be strictly construed since it operates against the fundamental rights of personal liberty of a person. There is nothing on record to show that till date any CFSL report has been submitted by the investigating authorities. Hence, in the absence of the CFSL report, due to institutional laches, we do not find any reason to obligate the petitioners with the rigour of Section 37 of the NDPS Act.
Citation: 2023 LiveLaw (Cal) 327
Case: Babu Mondal & Ors. vs The State of West Bengal
The Calcutta High Court has recently suspended the convictions and 15-year prison sentences of four persons under the Narcotic Drugs & Psychotropic Substances Act (“NDPS Act”), for the alleged possession of commercial quantities of cannabis.
In allowing the application for suspension of sentence and bail under Section 389(1) of the CrPC, pending the disposal of the final appeal, a division bench of Justice Moushumi Bhattacharya and Justice Prasenjit Biswas held:
There are several facts to prove the faulty investigation made in the present case. The entire search and seizure process of the alleged contraband which is the genesis of the NDPS case, cannot be accepted as credible. The infirmities in the investigation and the violations of the mandatory provisions, dealt above, including of section 42, 52-A of the NDPS Act read with section 100 of the Cr.P.C, persuades this Court to suspend the sentence imposed upon the petitioner/appellants and grant bail to the petitioners/appellants pending hearing of the appeal.
Citation: 2023 LiveLaw (Cal) 328
Case: Arnab Roy v State of WB & Ors with another connected application.
The Calcutta High Court has recently observed that the lack of efficient mechanisms in providing employment to youth, has led to a large percentage of the country's population being unemployed.
Court was dealing with challenges against the action of the Additional District Inspector of Schools (SE), Purba Medinapur in the recruitment process to hire one clerk and two laboratory attendants, being carried out by the managing committee of Marishda BKJ Banipith School,
In setting aside memos by the Additional District Inspector of Schools (SE), Purba Medinapur, which had dissolved the panels for appointment of Group C & D staff (clerk & lab attendant), published by the school, a bench of Justice Shekhar B Saraf held:
Rather than encouraging the citizens of India to actively seek out jobs and contribute to the flourishing of the nation, institutions have frustrated the youth by creating hurdles borne out of petty technicalities and have misused the discretionary power enshrined on them. Rather than employing combined efforts to ensure the position is filled up, what has ensured is years of legal disputes. Therefore, this court sets aside the impugned memo of the Additional District Inspector of Schools (SE), Purba Medinapur dated July 3, 2020.
Citation: 2023 LiveLaw (Cal) 329
Case: M/s. Kayal Construction Vs. The State of West Bengal & Ors
The Calcutta High Court has recently dismissed writ petitions by M/s Kayal Construction, which had been awarded tenders floated by the state government, on the condition that the petitioner would bear expenses for all the taxes/cess payable.
Petitioners contended that the rates for the taxes/cess payable had been specified in the terms of contract, and that due to the subsequent implementation of the Goods & Services Tax (“GST”) in 2017 they were compelled to bear additional expenses. Through these petitions, they claimed a refund of the additional expenses made by them.
In dismissing the petitioners' case, a single-bench of Justice Sabyasachi Bhattacharya held:
Introduction of the GST regime has not taken away the certainty of price. Even if the petitioner argues that the taxes have been enhanced, the same was factored into the original clauses of the contract. Mere replacement of Sales Tax, Excise Duty, VAT and other similar taxes by the GST regime does not change such parameters in any manner. In fact, even Sales Tax, VAT, Excise Duty and other levies specifically enumerated by way of example in the contract can very well be enhanced from time to time by the revenue authorities.
Citation: 2023 LiveLaw (Cal) 330
Case: Vishambhar Saran v Punjab National Bank & Anr
The Calcutta High Court has set aside a complaint lodged by Punjab National Bank (“PNB”) against the petitioner, requesting the CBI to register an FIR against the petitioner on basis of the complaint due to the petitioner being allegedly construed as a “wilful defaulter” under the Master Circular on Wilful Defaulters issued by the Reserve Bank of India (RBI) in 2015.
Petitioner contended that after the aforesaid complaint was lodged, in 2021, the Wilful Defaulter Identification Committee (“IC”) had suo moto recalled its order whereby it declared the petitioner a wilful defaulter, and as such the premise of the complaint was a spent force.
Upon hearing the parties, a single-bench of Justice Sabyasachi Bhattacharya held:
The admitted position [is] that none of the grounds made out in the complaint subsist today or subsisted on the date of registration of the FIR. Equality before the law is [an] important aspect, under Article 14 of the Constitution. The moment arbitrariness and/or mala fides is exhibited against a citizen of India, a contravention of Article 14 occurs as in the present case. WPO No.1626 of 2023 is allowed on contest, thereby setting aside the impugned complaint lodged by the PNB requesting the CBI to register FIR dated June 18, 2021 insofar as the writ petitioner is concerned.
Citation: 2023 LiveLaw (Cal) 331
Case: Dr. Kunal Saha Vs. Registrar, West Bengal Medical Council (WBMC) & Another
The Calcutta High Court has recently dismissed a plea which challenged appointments to the West Bengal Medical Council (“WBMC”), and sought for dissolution of the entire Council.
A single-bench of Justice Sabyasachi Bhattacharya noted that while the plea pertained to dissolution of the entire council, arguments and pleadings had only been advanced against the election of the President and VP of the Council.
In dismissing the plea, the Bench observed:
The newly-elected Council has already functioned and has taken several decisions in the interregnum. Thus, a subsequent challenge at this juncture on a purely technical ground, if sustained, would set the clock back and might undo several decisions of the Council. The petitioner has not made out any strong case. In view of the above observations, I do not find any gross illegality in the process of recommending and nominating the President and electing the Vice President or the election process of the new West Bengal Medical Council sufficient to upset the apple cart at this belated stage.
Citation: 2023 LiveLaw (Cal) 332
Case: Amzed Ali Vs. State of West Bengal
The Calcutta High Court recently acquitted an individual who, in 1990, was found guilty by the trial court under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (“EC Act”) for violation of the WB Cloth and Yarn Order 1960, and sentenced to undergo imprisonment for one month along with fine.
In holding that the trial judge had erred in appreciating the guidelines framed by the Enforcement authorities under the EC Act, while convicting the appellant, a single bench of Justice Subhendu Samanta held:
Only by not mentioning the licence No. in the Sign board or in the cash memo does not constitute any mens rea on behalf of the appellant. Department guidelines indicate that if any person during the course of normal transaction forgets to mention either the licence number or the date on the bill or memo, such type of mistake and omission is not obligatory upon the directorate to launch a prosecution. In this case Learned Special Judge has failed to appreciate guidelines of the said department and passed the erroneous order.
Citation: 2023 LiveLaw (Cal) 333
Case: Jagannath Chattopadhyay V The State of West Bengal and others
The Calcutta High Court dismissed an appeal preferred by the West Bengal government against the order of a single-bench which permitting BJP rally near Victoria House in Kolkata on the 29th of November.
Earlier, a single bench of Justice Rajasekhar Mantha had allowed the rally upon taking exception to non-application of mind shown through the "computerised rejections" by the Kolkata police. The agency had reasoned that the petitioners had not applied within the requisite time according to advisories issued by the State.
A division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya upheld the the single bench decision and held:
The advisory says applications need to be made 2/3 weeks prior to the program. Here, the application has been made 23 days prior. The advisory is not a statute. It cannot be taken as a rigid rule, and there is discretion vested with the authorities. Processions meetings and rallies are regular features of the state of West Bengal and particularly Kolkata…many instances are there where rallies have been held without any permission. There are instances where such rallies paralyse the city's traffic and the police are unable to control the same. In view of this, we are unable to interfere with the single bench's order. Accordingly, the appeal stands dismissed. Since the terms and conditions have been laid down in the Kolkata Police website, they shall be adhered to, and thus the writ petition is disposed of.
Citation: 2023 LiveLaw (Cal) 334
Case: Subha Saha Versus The State of West Bengal & Ors.
The Calcutta High Court has allowed a plea for the usage of musical instruments such as 'khol', 'kartal', etc. which was claimed to be an essential religious practice in the 'shobha yatra' during the festival of 'Rash Purnima.'
In allowing the plea, a single bench of Justice Jay Sengupta held:
"It appears from the report that the Committee, which is in charge of holding the Rash Utsab, had actually arrived at such restrictions. It was in view of such restrictions that the police have published a leaflet incorporating the same. However, the devotees should not be prevented from using musical instruments in the “Shobha Yatra” provided that the sound is within permissible limits. Therefore, the relevant restriction stands modified accordingly. The petitioner also undertakes not to cause any disturbance and to follow all other norms in conducting their “Shobha Yatra.”
Citation: 2023 LiveLaw (Cal) 335
Case: Concrete Developers LLP v Gaurav Churiwal and Ors.
The Calcutta High Court has recently held that a Court exercising powers under Section 37 of the Arbitration & Conciliation Act, 1996 (“1996 Act”) must be circumspect in its interference with interim orders of an arbitrator.
In refusing to interfere with the order passed under Section 17 of the 1996 Act, for preserving the share of a deceased LLP partner, amounting to approx. Rs 6 crores in a separate interest bearing account in name of the LLP, a single-bench of Justice Moushumi Bhattacharya held:
There can be no jurisdictional objection to the impugned order as the Act of 1996 grants the arbitral tribunal plenary powers to pass such orders for preserving the dispute in the arbitration. The order also does not suffer from any factual or legal infirmity and is certainly not arbitrary or perverse. Taking into account the legal position, the case law on the subject and the particular facts in the present matter, the Court is accordingly of the view that the impugned order does not call for any interference.
Citation: 2023 LiveLaw (Cal) 336
Case: Balbina Tandon & Ors. v The State of West Bengal & Ors.
The Calcutta High Court has dismissed a Section 482 CrPC application filed by a wife, for quashing criminal proceedings initiated against her under Section 306 IPC for abetment to suicide of her deceased husband.
The younger brother of the deceased, upon his suicidal death in 2015, approached the jurisdictional police station and filed an FIR, alleging that the victim had ended his life due to the "severe mental torture" perpetrated by the present petitioners. The police as well as the complainant relied heavily on a "suicide note" left behind by the deceased, allegedly implicating the petitioners.
In refusing to quash the proceedings upon observing that a cognizable case had been prima facie made out against the petitioners, a single bench of Justice Rai Chattopadhyay held:
A person, immediately before his death would only let his genuine perceptions to reveal to the world after his death and so he writes. Though the [deceased] mentioned no other person [is] responsible for his death, at the same time he mentions that his wife or child should not be allowed to see his dead body. All these are triggering to the only fact that a cognizable case [has] been prima facie made out against the petitioners. [Thus] not enough ground is available for quashing the criminal case.
Citation: 2023 LiveLaw (Cal) 337
Case: Tarun Kumar Pal Vs. The State of West Bengal & Anr.
The Calcutta High Court has recently quashed criminal proceedings against the petitioner, who had been accused of siphoning off funds, which were allotted under the Pradhan Mantri Awas Yojana, a rural housing project under the Union government.
Petitioner had been working as a Village Level Entrepreneur (VLE) since 2018 under Baraturigram Gram Panchayat, Mayureshwar-I Development Block and Panchayat Samity Office.
In quashing the criminal proceedings against the petitioner, a single bench of Justice Ajay Kumar Gupta noted:
This Court finds the case initiated against him is purely on the basis of suspicion as appears in the FIR as well as in the charge-sheet. Case alleging cognizable offences without specific allegation or disclosing materials against the petitioner cannot be continued. There must be direct allegation and/or material or involvement in the alleged offence but that is entirely missing. Allegation against him is only on the basis of doubt or suspicion.
Citation: 2023 LiveLaw (Cal) 338
Case: In Re: Dr Kalyanmoy Ganguly
The Calcutta High Court has allowed an application for bail moved by the former President and Administrator of the West Bengal Board of Secondary Education (WBBSE), Dr Kalyanmoy Ganguly.
In allowing the plea, while directing the accused to surrender his passport before the trial court, and refrain from witness tampering of any kind, a division bench of Justice Joymalya Bagchi and Justice Gaurang Kanth held:
In view of the state at which the criminal proceeding is presently poised, we are of the opinion there is little possibility of its commencement even in the near future. Petitioner an old person who is suffering from various ailments. He is in detention for more than one year and two months. In this backdrop continued detention of the petitioner would not be in consonance to the principles of justice and fair procedure which is just, fair and reasonable on the touchstone of Article 21 of the Constitution of India. For these reasons, we are inclined to enlarge the petitioner on bail however, subject to strict conditions.
Citation: 2023 LiveLaw (Cal) 339
Case: Manik Brahma Versus The State of West Bengal & Ors.
The Calcutta High Court has allowed a plea seeking to hold a public meeting, upon noting that organisations, including political parties of different hues, are entitled to a level playing field.
A single bench of Justice Jay Sengupta observed that while citizens possessed the right to peacefully assemble under the Constitution, the same would be subject to reasonable restrictions.
Citation: 2023 LiveLaw (Cal) 340
Case: Rubi Khatun Versus The State of West Bengal & Ors.
The Calcutta High Court has extended the police protection granted to the family of an Indian National Congress worker who was allegedly killed by members and workers of the ruling political dispensation.
In a plea by the slain worker's wife, a single bench of Justice Jay Sengupta directed the local police authorities to ensure the safety of the petitioner, upon noting from mobile tower location records that she was being threatened by the accused to withdraw her complaint.
Citation: 2023 LiveLaw (Cal) 341
Case: Manish Todi vs Pawan Agarwal
The Calcutta High Court has recently held that Section 43(4) of the Arbitration & Conciliation Act, 1996, (1996 Act) must defer to the provisions of the Limitation Act and that the period of limitation cannot be extended to create a new window after the expiry of the limitation.
In dismissing a plea for appointment of an arbitrator under Section 11 of the Act as time-barred, a single bench of Justice Moushumi Bhattacharya held:
Section 43(4), simply put, excludes the time from commencement of arbitration to the date of setting aside of the arbitral award...the petitioner's recourse to section 43(4) of the 1996 Act, even if applied to the facts, does not come to the petitioner's rescue since the petitioner would lag behind the limitation period by 4 years 3 months. The question of limitation must also be decided on the underlying principles of the Limitation Act and discounting the existence of an arbitration clause.
Citation: 2023 LiveLaw (Cal) 342
Case: New Kenilworth Hotel Private Limited and another v State of West Bengal and others
The Calcutta High Court has recently directed the West Bengal State Excise Department to refund a sum of approximately Rs 92 lakhs to the Kenilworth Hotel Private Limited, which were levied as excise fees for 'change in management' upon the death or retirement of a member.
In striking off the 'unconstitutional and discriminatory provisions' under the Excise Rules, which allowed for the levy of such fees from only private companies and not public companies, a single bench of Justice Moushumi Bhattacharya held:
The intention in the present case is to ensure the level-playing field guaranteed under Article 14 of the Constitution in terms of treating a Private Limited Company on an equal plane; specifically when the basis for creating a distinction for the required purpose is found to be absent. The sum of Rs. 64.50 lakhs which was paid and the further sum of Rs. 5.5 lakhs, which was paid subsequent to filing of the present writ petition, aggregates to Rs. 70 lakhs.
Citation: 2023 LiveLaw (Cal) 343
Case: Gopal Seth Vs. Election Commission of India and others
The Calcutta High Court has recently held that the election of a candidate as a Member of the Legislative Assembly (MLA), cannot be set aside on the ground of alleged irregularities in declaring his educational qualifications.
The Court was seized of a plea moved by Trinamool Congress (TMC) MLA Gopal Seth, against Bharatiya Janata Party (BJP) MLA Swapan Majumdar, alleging that the latter had falsified his educational qualifications before the Election Commission of India (ECI) during the 2021 State Assembly Elections, by claiming that he was a graduate of the VIIIth standard, while there were no records that could be obtained from the concerned school.
Citation: 2023 LiveLaw (Cal) 344
Case: Soumen Nandy v State of West Bengal & ors
The Calcutta High Court has recently upheld its order cancelling the appointment letters of 94 teachers, who were found ineligible and underqualified under the Teachers Eligibility Test conducted in 2014.
A single bench of Justice Amrita Sinha had earlier passed orders for cancellation of the appointment of the aforesaid teachers upon perusing a report by the West Bengal Board of Primary Education (WBPPE) with a finding that the 94 candidates had not qualified in TET 2014 but were issued an appointment letter. The court observed that although the candidates were given opportunities to produce documents supporting their educational qualifications, they were unable to do so.
Upon cancellation of their appointments, the candidates approached a division bench in appeal, which did not interfere with the above order, but directed the petitioners to approach the single bench with a prayer for modification of the order.
Citation: 2023 LiveLaw (Cal) 345
Case: Somabrata Mandal v Bar Council of West Bengal and others
The Calcutta High Court has recently held that in an alleged case of misconduct, the mere formation of opinion by a State Bar Council that it has reason to believe that the accused advocate may be guilty of professional or other misconduct does not necessarily curtail the powers of the Disciplinary Committee to deal with the issue of maintainability of the complaint.
A single bench of Justice Sabyasachi Bhattacharya held:
There may be umpteen cases where the State Bar Council may have reason to believe that the advocate may be guilty of misconduct but upon reference to the Disciplinary Committee, the Disciplinary Committee upon a scrutiny finds that the complaint is not maintainable, having not disclosed any clear-cut violation of any law or ethics amounting to professional or other misconduct by the advocate.
Case Title: UNIVERSAL CABLES LIMITED vs. ARVIND KUMAR NEWAR AND ORS.
Citation: 2023 LiveLaw (Cal) 346
The Calcutta High Court ruled in favour of Harsh Vardhan Lodha continuing as chairman of MP Birla Group and reportedly barred the administrators of Priyamvada Devi Birla's Estate from interfering with day-to-day operations of companies.
More than 3 years after a Single Judge of the Calcutta High Court had passed an order directing removal of MP Birla Group Chairman, H.V. Lodha from the positions he held in the various Companies, Trusts and Societies of the M.P. Birla Group on the basis of a concept of “extended Estate” of Priyamvada Devi Birla, a Division Bench granted major relief to the Lodhas by unequivocally determining that a Testamentary (Probate) Court cannot get into the domain of Companies, Trusts and Societies, its functioning or management.
Case Title: Black Diamond Resources & Anr. Vs Indian Oil Corporation Limited & Ors.
Citation: 2023 LiveLaw (Cal) 347
The Calcutta High Court has dismissed a plea filed by the bidder, a start-up, against a tender floated by Indian Oil Corporation Limited ('Indian Oil') for transportation and conversion of High-density Ammonium Nitrate ('HDAN') Melt into HDAN Solid alleging that the same was tailor-made for six big operators in the field and specifically to exclude start-ups.
A single bench of Justice Sabyasachi Bhattacharya dismissed the plea upon holding that there was nothing to indicate patent mala fides, arbitrariness or intention by the tender floating authority being Indian Oil to favour any particular operator based on any line of distinction which is not reasonable or intelligible.
Case: Surya Sankar Barik v The State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 348
The Calcutta High Court has directed the State Legal Services Authority (SLSA) to consider and enhance the compensation awarded to a male acid attack survivor.
Under the West Bengal Victim Compensation Scheme, the petitioner was paid Rs 3 lakh, which was the minimum stipulated amount.
A single bench of Justice Sabyasachi Bhattacharya upon noting that the petitioner had credibly pointed out that he needed much more than just amount for his treatment and reintegration into society.
Citation: 2023 LiveLaw (Cal) 349
Case: Sri Dilip Ghosh @ Dilip Kumar Ghosh & Anr. Versus The State of West Bengal & Ors.
The Calcutta High Court has recently declined a plea moved by Dilip Ghosh, Member of Parliament, Vice President & State President of the Bharatiya Janata Party (BJP) for postponing the date of the Teachers Eligibility Test (TET) exam to be held on 24th December 2023 in lieu of 'Bhagavad Gita chanting' program which would be held in Kolkata and attended by high-level dignitaries.
The plea was moved by Ghosh and another petitioner, a TET candidate who was desirous of attending the program, and sought for the exam date to be rescheduled since there would be anticipated traffic disruptions caused by the movement of highly placed dignitaries, which would affect the students in reaching the examination venue.
Citation: 2023 LiveLaw (Cal) 350
Case: Sangrami Joutha Mancha and Anr. Vs. State of West Bengal and Ors.
The Calcutta High Court has partially upheld an order by a single judge which allowed members of the Sangrami Joutha Mancha, who are state government employees to conduct a peaceful sit-in protest for increase in their dearness allowance (DA) outside the State Secretariat building 'Nabanna' located in Howrah.
A single bench of Justice Rajasekhar Mantha had on an earlier occasion conditionally allowed the protest to be conducted over 72 hours from 22nd-24th December by directing that the petitioners undertake to hold a very peaceful sit-in demonstration and not cause any inconvenience in public at large. The petitioners shall clean the place of sit-in demonstration after its completion. The petitioners shall also strictly maintain the noise pollution norms.
State preferred an appeal against the aforesaid order before a division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya.
Citation: 2023 LiveLaw (Cal) 351
Case: M/s. Mehrotra Buildcon Pvt. Ltd. v South Eastern Railway
The Calcutta High Court has recently allowed a plea for the appointment of a sole arbitrator by M/s Mehrotra Buildcon Pvt Ltd, to adjudicate over its dispute with the South Eastern Railway (SER).
In allowing the petitioner's application under Section 11 of the Arbitration & Conciliation Act, 1996 ("Act"), by calling out the restrictive clause in the General Conditions of Contract ("GCC") which made the petitioner choose an arbitrator from a list given by the respondent, a single bench of Justice Moushumi Bhattacharya held:
Petitioner was to choose 2 names from the 4 names given by the respondent. The clause does not provide for any elbow-room for the petitioner to make a free choice. The names are simply handed on a platter, the petitioner is to choose 2 and the final choice rests on the GM of the respondent; that too as the petitioner's nominee arbitrator. Nothing can be more one-sided than this. The absence of consent and choice is writ large in clause 64(3)(b)(ii) of the GCC.
Citation: 2023 LiveLaw (Cal) 352
Case: B. M. Birla Heart Research Centre v State of West Bengal & Ors
The Calcutta High Court has recently held that issues of medical negligence cannot be adjudicated by the West Bengal Clinical Establishment Regulatory Commission (WBCERC).
In allowing an appeal by the BM Birla Heart Research Centre, and setting aside an order of a single bench directing the appellant to deposit an amount of Rs 15 lakhs out of a total cost of 20 lakhs imposed on it by the WBCERC for "deficiency in service and negligence in diagnosis", a division bench of Justice Arijit Banerjee & Justice Apurba Sinha Ray held:
The negligence in detection of diseases and the allegation of not giving proper medicines to the patient and further improper diagnosis of the diseases are all matters or issues of medical negligence. Therefore, the said issues cannot be adjudicated by the Commission. There was no sufficient material on record to hold, that delay, if any, was caused only because of the clinical establishment and not from the side of the patient party. There is no material to show how the patient party was misguided by the clinical establishment.
Citation: 2023 LiveLaw (Cal) 353
Case: Sri Ranajit Mondal v The State of West Bengal & Ors.
Any social boycott of a citizen or his family member has to be dealt with strictly by the Administration. This has no place in a civilized society, the Calcutta High Court vacation bench observed in a case wherein a man and his family had been boycotted by their neighbourhood because they objected to, and obtained an interim order of injunction against a temple being constructed by the respondents illegally in front of their property.
A single bench of Justice Jay Sengupta took exception to the social boycott imposed on the petitioners by the local residents and said: the Police authorities are directed to keep a sharp vigil at the locale, ensure that no breach of peace takes place and no order of a Civil Court is violated. Surveillance shall include frequent visits to the area by police patrol.
