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Calcutta High Court Annual Digest 2023 [PART- I] (Citations 1-147)
Srinjoy Das
29 Dec 2023 6:25 AM GMT
![Calcutta High Court Annual Digest 2023 [PART- I] (Citations 1-147)](https://www.livelaw.in/h-upload/2023/12/29/750x450_512760-calcutta-high-court-annual-digest-2023-part-i.webp "Calcutta High Court Annual Digest 2023 [PART- I] (Citations 1-147)")
ORDERS/JUDGEMENTS"His Intention Is To Harass Wife": Calcutta High Court Dismisses Husband's Plea To Transfer Maintenance Case Filed By WifeCase title - Sk. Sirajuddin vs. The State of West Bengal & Anr.Case Citation: 2023 LiveLaw (Cal) 1The Calcutta High Court recently rejected the prayer of a man seeking to transfer Section 125 CrPC proceedings instituted by his wife before the Family...
ORDERS/JUDGEMENTS
Case title - Sk. Sirajuddin vs. The State of West Bengal & Anr.
Case Citation: 2023 LiveLaw (Cal) 1
The Calcutta High Court recently rejected the prayer of a man seeking to transfer Section 125 CrPC proceedings instituted by his wife before the Family Court at Burdwan seeking compensation from him.
While doing so, the bench of Justice Shampa Dutt (Paul) observed that the prayer of the husband that the case may be transferred to any Court of law except Burdwan court demonstrated that his only intention was to harass his wife.
Case Title: Uphealth Holdings Inc versus Glocal Healthcare Systems Pvt. Ltd. & Ors.
Citation: 2023 LiveLaw (Cal) 2
The Calcutta High Court has allowed the application filed under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act), seeking interim measures granted by the Emergency Arbitrator under the ICC Arbitration Rules.
The bench of Justice Ravi Krishan Kapur noted that the A&C Act does not provide for enforcement of orders passed by an Emergency Arbitrator in cases of a foreign seated arbitration. However, it observed that both the parties had participated in the proceeding before the Emergency Arbitrator and had agreed to be bound by its order, which was well-reasoned and elaborate. Thus, the Court concluded that the order of the Emergency Arbitrator can be taken into account at the stage of considering a Section 9 application.
Case Title: PCIT Versus Britannia Industries Ltd.
Citation: 2023 LiveLaw (Cal) 3
The Calcutta High Court has held that unless and until the order passed by the Tribunal suffers from any perversity or ignores any vital fact in an appeal under Section 260A of the Income Tax Act, the Court is not expected to interfere with the order.
The division bench of Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya has observed that the issues related to an erroneous and prejudicial order and the lack of proper inquiry on which the show-cause notice under Section 263 was issued are fully factual. The Tribunal, which is the last fact-finding authority, has elaborately considered the factual position and granted relief to the assessee.
Case Title: Samrat Bhattacharyya v. Union of India and Others
Citation: 2023 LiveLaw (Cal) 4
The Calcutta High Court has asked the authorities in West Bengal to process the pending valid applications for issuance of identity cards to transgender persons and decide the same within a month, in accordance with the criteria stipulated under the Transgender Persons (Protection of Rights) Act, 2019.
The court passed the order while directing Kolkata District Magistrate to issue transgender ID card to Samrat Bhattacharyya, who in a petition alleged that the authority failed to issue a card despite the application having been submitted on the National Portal in or around the month of March, 2022.
Case title - Paschim Banga Khet Mazdoor Samity and another vs. The Union of India and others
Citation: 2023 LiveLaw (Cal) 5
Case Title: In the matter of : Sk. Rejaul @ Kiran @ Rutu
Citation: 2023 LiveLaw (Cal) 6
The Calcutta High Court granted bail to an accused in a case registered under the Unlawful Activities (Prevention) Act after observing that there has been an inordinate delay in conclusion of the trial, thereby infringing upon the accused's fundamental rights.
A division bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta took into consideration that the accused had spent three years in custody and that there is no certainty as to when the trial would conclude.
Case title - Labu Islam vs. State of West Bengal
Case Citation: 2023 LiveLaw (Cal) 7
The Calcutta High Court took note of an incident wherein a child in conflict with law (CCL), whose bail plea was pending before the High Court in connection with an NDPS Act, died by suicide saying that the incident unsettled it to the core.
Observing that CCL can't be reduced to a mere static, the bench of Justice Moushumi Bhattacharya and Justice Siddhartha Roy Chowdhury made the following observations:
"We believe that Judges, Judicial Officers, prosecutors, defence counsel, law enforcement agencies and all those who set the wheels of justice in motion and keep it in momentum should be jolted out of their complacency and let their conscience and compassion take over...Even a drop in the ocean may lead to a difference by building a wave of corrective action which one day will turn the tide towards what needs and should be done with immediacy and best intentions."
Case Title: Commissioner of Income Tax (International Taxation & Transfer Pricing) versus M/s. The Timken Company
Citation: 2023 LiveLaw (Cal) 8
The Calcutta High Court has reiterated that consideration for advisory services cannot be treated as Fees for Included Services under Article 12(4)(b) of the India-US Double Taxation Avoidance Agreement (DTAA). The Court thus upheld the ITAT's order setting aside the additions made to the foreign assessee Company's income for the compensation received by it for rendering advisory services to its Indian subsidiary.
The bench of Justices T.S. Sivagnanam and Hiranmay Bhattacharyya also took note of the Calcutta High Court's decision in M/s Timken India Limited v. Deputy Commissioner of Income Tax (2016), where it was ruled that the advance ruling sought by the Indian subsidiary, regarding its tax obligations while remitting payment to its foreign holding company under an agreement, was not binding on the foreign company.
72 Year Old Case Pending In Calcutta High Court Attains Finality
Case Title- In the Matter of : Berhampore Bank Limited (In Liquidation)
Case Citation: 2023 LiveLaw (Cal) 9
A case which has been pending for over 72 years was decided by a Single Judge Bench of Calcutta High Court comprising Justice Ravi Krishan Kapur. The case was instituted in the year 1951 on the original side of the Calcutta High Court. Certain news reports claimed this to be India's oldest case, though this needs more verification.
The lis revolved around the issue of liquidation of 'Berhampore Bank Limited'. The case had been listed multiple times for hearing over the decades. As per the data available on the official website of the High Court, the case was listed for hearing on 3rd November, 2008 before a Single Bench of Justice Maharaj Sinha. However, he had to adjourn the matter as none appeared on behalf of the respondent.
Case Title: The Court on its own motion
Citation: 2023 LiveLaw (Cal) 10
In a significant development, a three-Judge Bench of the Calcutta High Court issued a slew of directions restraining advocates from holding agitations within the court premises pertaining to the contempt case initiated by Justice Rajasekhar Mantha against the errant lawyers who had created a ruckus outside his courtroom on January 9.
A Bench comprising Justices TS Sivagnanam, IP Mukerji and Chitta Ranjan Dash ordered,
"Since this Court is seized of this matter, we direct that no meetings, processions, agitations, shall be held or placards shall be displayed within the premises of this Court or anywhere else concerning the subject issue and this direction shall be given due publicity by the Registrar General by intimating to the three wings of the Bar as well as displaying the same in the notice board and also posting the same in the official website of this Hon'ble Court."
Case Title: Sri Uttam Kumar Bose v. State of West Bengal
Citation: 2023 LiveLaw (Cal) 11
The Calcutta High Court ruled that infertility of a woman cannot be a valid ground for seeking divorce. The Court also underscored that asking for divorce by mutual consent from one's wife who is in a traumatic situation for having developed primary infertility amounts to mental cruelty within the definition of Section 498A of the IPC.
Justice Shampa Dutt (Paul) observed,
“The reason of infertility is not a ground for divorce. There are several options to become parents. A spouse has to be understanding in these circumstances as it is the other (only) who can help one to regain her/his mental, physical and emotional strength. To be able to face the world, the society in general, bravely together.”
Case Title: M/s. Down Town Temptation Private Limited and Another v. Additional General Secretary, Finance Department, Government of W.B. and Others.
Citation: 2023 LiveLaw (Cal) 12
A single judge bench of Calcutta High Court held that the state must act within legislative intendment of a statute in the matter of grant of excise licences to persons and entities under the provisions of Bengal Excise Act, 1909 and the 2003 Rules.
Justice Moushumi Bhattacharya while hearing a writ petition observed:
“The State cannot add to the legislative object or curtail the right of an entity where the Act and the Rules do not provide the basis for such curtailment. The State is also under an obligation to preserve the equality and fairness mandate in the Constitution and is hence precluded from applying different standards to different entities on the pretext of ensuring a crime-free environment in the establishments where liquor is sold and consumed.”
Case title – Salim Ahmed & Anr. v. The State of West Bengal & Ors.
Case Citation: 2023 LiveLaw (Cal) 13
Stressing that the menace of ragging can adversely impact the intellectual growth, well-being, and development of society and the nation, the Calcutta High Court directed the Director of IIT, Kharagpur to take stern, stringent and deterrent measures regarding the unnatural death of a 23-year-old student and to prevent the recurrence of such incidents in future.
The bench of Justice Rajasekhar Mantha also said that the Director of the institute shall be personally responsible to ensure that appropriate counseling, sessions, starting at the ground level, are put in place at the IIT.
Case Title: B.K. Consortium Engineers Pvt Ltd. v. Indian Institute of Management (Calcutta) AP/237/2021
Citation: 2023 LiveLaw (Cal) 14
The Calcutta High Court has held that the period of limitation would begin to run from the date offinal payment for the claims that are rejected under it.
The Court held that once a claim that was existing at the time of preparation of the final bill is rejected in the final payment, the limitation period commences which cannot be stopped by issuing unilateral letters by a party.
The bench of Justice Shekhar B. Saraf held that at the stage of appointment of arbitrator the Courts do not perform a meagre cosmetic exercise and simply refer every dispute to arbitration but are expected to apply judicial minds to determine the aspects of arbitrability of the dispute.
Case Title: Subhas Yadav v. The State of West Bengal and Other related petitions
Citation: 2023 LiveLaw (Cal) 15
The Calcutta High Court at circuit bench Jalpaiguri held that an accused who is under detention under provisions of NDPS Act (the Act), cannot be released automatically on statutory bail on the expiry of 180 days which is prescribed under section 36A(4) of the Act until and unless he makes an application either in written or oral form.
A Full bench comprising Justices Joymalya Bagchi, Suvra Ghosh and Krishna Rao observed that if an accused fails to apply for statutory bail either in written or even oral form, his right does not crystallize and the Court is empowered to remand him to custody under section 167(2) Cr.P.C. read with section 36A(4) of NDPS Act.
Case title - Sri Writuraj Sen & Ors. Vs The State of West Bengal & Anr. [CRR 534 of 2019]
Case Citation: 2023 LiveLaw (Cal) 16
The Calcutta High Court said that the Police Officers take a lot of abuse from people but their work deserves appreciation and acknowledgment so that they are inspired to do more service effectively.
The Bench of Justice Shampa Dutt (Paul) also added too often, the hard and dangerous work that the police officers do, goes unnoticed or at least unrecognized and that most people don't really think about what police do every day in their community until they need assistance from them.
"The uniform gives the public confidence though they being human too, may react emotionally. If you treat them with respect, they will reciprocate. Officers take a lot of abuse from people who don't know them and simply don't like the police. Showing a little respect will go a long way. But having power given by the statute there may be misuse, which the people rightly react to, at times. It's easy to forget all the hard work and sacrifices police officers make on a daily basis. Everyone loves acknowledgement and appreciation, the Police are no different. Their work deserves appreciation and acknowledgement so that they are inspired to do more service effectively," the Court further remarked.
Case: Groz-Beckert KG v. Union of India & Ors., AID No. 16 of 2022
Citation: 2023 LiveLaw (Cal) 17
The Calcutta High Court recently, in hearing an appeal under Section 117A(2) of the Patents Act, has ruled that for applying the test of inventiveness of an invention sought to be registered under the Act, the same has to be applied by considering the invention as a whole.
The Court further noted that as regards determining the obviousness of such invention, the Court ought to apply such standard strictly and objectively without dissecting such application for registration into isolated elements.
Case Title: M/s Harsh Polyfabric Versus UOI
Citation: 2023 LiveLaw (Cal) 18
The Calcutta High Court has held that a writ court cannot answer the classification of products under the Customs Tariff Act as it requires technical analysis.
The single bench of Justice Md. Nizamuddin has observed that a writ court in the exercise of its constitutional writ jurisdiction under Article 226 of the Constitution of India should not act as an expert to scrutinize the composition and mode of manufacture of a product and do the job of classifying a product as to under which classification list of the Customs Tariff Act the product falls since it requires scientific and technical analysis to be conducted by experts in scientific and technical fields.
Case Title: Shilpi Lenka v. Susanta Kumar Lenka & Anr.
Case citation: 2023 LiveLaw (Cal) 19
While dismissing a wife's plea for enhanced maintenance under Section 125 of the Code of Criminal Procedure (CrPC), the Calcutta High Court observed that the wife's plea praying for enhancement of maintenance after blocking a substantial source of the husband's income amounts to an abuse of process of law.
Justice Shampa Dutt (Paul) underscored,
“This is a case where a wife blocks a substantial source of income of the husband and then claims an enhancement of maintenance, a really difficult situation for the husband. This clearly amounts to an abuse of process of law and is also against the interest of Justice. Both the parties are equal in the eye of law and the court has to ensure that none of the parties suffer injustice.”
Case Title: Damodar Valley Corporation & Ors
Citation: 2023 LiveLaw (Cal) 20
Observing that the State must be given a sufficient leeway in tender processes to ensure that commercial activities of the government do not come to a grinding halt, the Calcutta High Court recently cautioned writ courts from needlessly interfering in commercial matters.
A division bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj said:
“The Courts must realise their limitations and the havoc which needless interference in commercial matters could cause. The authority which floats the contract or tender and has authored the tender documents is the best judge as to how the documents have to be interpreted, as long as there are no malafide/arbitrariness etc. Thus, the terms of invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.”
Case Title: Nanda Samanta @ Nanda Lal Samanta & Anr v. State of West Bengal
Citation: 2023 LiveLaw (Cal) 21
Setting aside the order of conviction and sentence against all accused in a culpable homicide case on the ground that one of the accused's statement under Section 313 of the CrPC had not been recorded, the Calcutta High Court remitted the matter back to the trial court.
A division bench of Justice Debangsu Basak and Justice Shabbar Rashidi adopted the procedure followed by the Supreme Court in Nar Singh vs. State of Haryana where the apex court had remitted the matter for recording the statement of the accused under Section 313.
Case Title: In the matter of : M. Haridos @ M. Haridas
Case Citation: 2023 LiveLaw (Cal) 22
While quashing criminal proceedings initiated against an Indian Army personnel by invoking its inherent powers under Section 482 of CrPC, the Calcutta High Court has recently underscored that the right to a speedy right is a constitutional right.
Justice Siddhartha Roy Chowdhury observed,
“Right to have speedy trial since been considered as constitutional right, I consider it expedient and just to invoke the provision of Section 482 of Cr.P.C. to quash the proceeding in order to avert abuse of process of law, which is writ at large in this particular proceeding and to secure ends of justice.”
Case Title: Shipra Dey v. The State of West Bengal & Ors
Case Citation: 2023 LiveLaw (Cal) 23
While adjudicating upon an alleged custodial death case, the Calcutta High Court recently ruled that the concerned police authorities had violated Article 21 of the Constitution by not abiding by the guidelines laid down by the Supreme Court in Lalita Kumari vs. State of Uttar Pradesh (2014) as well as provisions of the Code of Criminal Procedure (CrPC).
Accordingly, the Court ordered the concerned Magistrate to conduct an inquiry under Section 202 of the CrPC into the custodial death case. In the instant case, the deceased was called to the police station without serving him any notice, which, the court termed to be a violation of the Supreme Court's guidelines in the case of Lalita Kumar (supra).
Case Title: Cognition Projects Pvt. Ltd. & Anr v. Damodar Valley Corporation & Ors
Case Citation: 2023 LiveLaw (Cal) 24
The Calcutta High Court has recently observed that the elements required to constitute a valid show cause notice include that the notice discloses the charges imposed upon the person or entity to whom such a notice is being addressed to and it affords a reasonable opportunity to the person to reply to the charges so made.
Justice Moushumi Bhattacharya opined that the necessity of a show cause notice and the consequent opportunity to hearing assumes importance in the context of the punishment to be suffered by the person for whom the show cause notice is intended.
Case Title: Julficar Sardar v. The State of West Bengal & Ors.
Case Citation: 2023 LiveLaw (Cal) 25
The Calcutta High Court upheld an order disallowing an accused from rejoining his post as a 'Home Guard' by underscoring that a volunteer of a disciplined force is required to have a clean antecedent with regard to his character.
In this case, the appellant was not allowed to join his service as a Home Guard on the ground that he was in judicial custody for 84 days after being implicated in a criminal case for the offence of murder under Section 302 of the IPC arising out of a family dispute. He had been deployed as a Home Guard prior to the initiation of the criminal proceedings.
Case Title: Shahbaz Ismail @ Shahbaz @ Md. Jamal v. The State of West Bengal
Case Citation: 2023 LiveLaw (Cal) 26
The Calcutta High Court upheld the life sentence awarded to a Pakistani national belonging to terrorist organization Al-Badar, who was found to have entered Indian territory illegally through Bangladesh and was proceeding to Srinagar, Jammu & Kashmir for the purpose of carrying out terrorist activities.
The convict was arrested by the Special Task Force (STF), Kolkata on March 19, 2009, after being intercepted and was found to be in possession of explosive substances and forged driving license and Voter ID card.
Case Title: Jhajjar K.T. Transco Pvt. Ltd. v. Oriental Insurance Company, AP 449 of 2021
Case Citation: 2023 LiveLaw (Cal) 27
The High Court of Calcutta has held that the jurisdiction of the Court under Section 11 of the A&C Act is limited to the examination of the existence of the arbitration clause and determination of an arbitrable dispute.
The bench of Justice Shekhar B. Saraf relied on the judgment in Mayavati Trading v. Pradyvat Deb Burman[1] to hold that a Court exercising powers under Section 11 of the A&C Act cannot determine the question of 'accord and satisfaction' in view of Section 11(6A) of the Act.
Case Title: Suvendu Adhikari v. West Bengal Commission for Protection of Child Rights & Ors
Case Citation: 2023 LiveLaw (Cal) 28
The Calcutta High Court stayed a show-cause notice issued by the West Bengal Commission for Protection of Child Rights against BJP Leader and Leader of the Opposition Suvendu Adhikari for posting an allegedly offensive tweet against a three-year-old child.
On November 13, 2022, Adhikari had posted a tweet about the security arrangements made for the birthday party of the concerned three-year-old child purportedly referring to the birthday party of Trinamool All India General Secretary Abhishek Banerjee's son.
Case Title: Jagrati Trade Services Pvt Ltd versus Deepak Bhargava & Ors.
Case Citation: 2023 LiveLaw (Cal) 29
The Calcutta High Court has ruled that, post the Amendment Act of 2015, the powers of the Arbitrator to grant interim measures under Section 17 of the Arbitration and Conciliation Act, 1996 (A&C Act), is pari passu with the powers of the Court under Section 9 of the Act.
The bench of Justice Shekhar B. Saraf remarked that the test applicable for granting interim protection under Section 9 would also apply to test the validity of an order passed by the Arbitrator under Section 17.
Case Title: Prasanta Bhatta v. Abdul Sk
Case Citation: 2023 LiveLaw (Cal) 30
Opining that the rights of a party should not be prejudiced due to an inadvertent mistake made by the advocate representing the party, the Calcutta High Court set aside an order of acquittal for the offence of dishonour of cheque under Section 138 of the Negotiable Instruments Act.
Justice Ananya Bandyopadhyay observed,
“A mistake on the part of the learned advocate representing any party beyond his/her knowledge should not act as a prejudice against his/her rights and contentions.”
Case Title: Rabi Saha @ Sarkar v. State of West Bengal
Case Citation: 2023 LiveLaw (Cal) 32
The Calcutta High Court has recently held that removing a minor victim's pants after she refused to do so herself amounts to an attempt to commit the offence of rape.
The Court was adjudicating upon an appeal passed against a trial court order convicting the appellant under Section 376 (punishment for the offence of rape) read with Section 511 (punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment) of the Indian Penal Code (IPC).
Case Title: Dharam Chand Agarwal v. The State of West Bengal & Ors.
Case Citation: 2023 LiveLaw (Cal) 33
The Calcutta High Court has made it clear that a person challenging the land acquisition proceedings or claiming any relief with regard to Award / compensation must first establish its locus standi.
Justice Moushumi Bhattacharya observed,
"since the petitioner was not the original owner of the land from who the land was acquired by the State in 1972, the petitioner cannot seek a direction on the State to produce proof of Award / compensation. This direction or any relief with regard to Award / compensation can only be claimed by the erstwhile owner from who the land was acquired."
Case Title: 'X' (since minor through her mother AK) v. State of West Bengal and others
Case Citation: 2023 LiveLaw (Cal) 34
The Calcutta High Court allowed a 16 year old rape survivor on life support to medically terminate her foetus of over 23 weeks to ensure her physical well-being.
The petitioner, a 16 year old girl, is a rape survivor. An FIR was lodged in the matter at the concerned police station under provisions of the POCSO Act, 2012.
Following a cardiac arrest on December 27, 2022, she was put on the ventilator until February 2, 2023 and is currently on Advanced Cardiac Life Support Protocol.
Case Title: Nripendra Chandra Mahanta v. Smt. Pramila Mahanta
Case Citation: 2023 LiveLaw (Cal) 35
The Calcutta High Court at Jalpaiguri directed the District Judge, Cooch Behar to re-decide the application for alimony filed by a wife under Section 24 of the Hindu Marriage Act, in compliance with the proposition laid down by the Supreme Court in Rajnesh v. Neha.
The judgement of Supreme Court in Rajnesh v. Neha mandates that the Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court throughout the country.
Case Title: Roshan Chowdhury v. The State of West Bengal
Case Citation: 2023 LiveLaw (Cal) 36
The Circuit Bench of Calcutta High Court at Jalpaiguri quashed the proceedings under Section 23 of NDPS Act against an accused on the ground that the FIR did not disclose any accusation of any import, export or transshipment of any contraband.
While quashing the proceedings pending before the trial court, Justice Rai Chattopadhyay held:
“The FIR indeed does not disclose allegation of any import or export or transshipment of the contraband. According to the FIR, circumstances of this case is different altogether, to which section 23 of the NDPS Act should have no manner of application.”
GST Dept. Empowered To Detain Vehicle And Seize The Goods: Calcutta High Court Upholds Penalty
Case Title: Ashok and Sons (HUF) Vs. Joint Commissioner
Case Citation: 2023 LiveLaw (Cal) 37
The Calcutta High Court has held that the GST department was lawfully permitted to impose a penalty under Section 129 as well as the SGST as the goods were found to be detained in the territory of the state.
The bench of Justice Bibek Chaudhuri has observed that Section 129 of the Central Goods and Services Tax Act, 2017, empowers the statutory authority to detain the vehicle and seize the goods. The goods shall be released only upon payment of a penalty equal to 200% of the tax payable on the goods.
Case Title: Sukur Mondal @Sukur Ali Mondal v. The State of West Bengal
Case Citation: 2023 LiveLaw (Cal) 38
The Calcutta High Court noted its displeasure on the casual approach taken by the IGP (Correctional Services), West Bengal, on the issue of search and recovery of prohibited items from the inmates of Correctional Homes.
The division bench of Justice Ajay Kumar Gupta and Justice Joymalya Bagchi said:
“We record our displeasure with regard to the casual approach taken by the Inspector General of Police (Correctional Services), West Bengal in the lax supervision of Correctional Homes particularly in the matter of search and recovery of prohibited items from the inmates.”
Case Title: McLeod Russel India Limited v. Aditya Birla Finance Limited, A.P. No. 106 of 2020
Case Citation: 2023 LiveLaw (Cal) 39
The High Court of Calcutta has held that all unilateral appointment of arbitrator are not invalid per se unless the arbitrator's relationship falls within the Seventh Schedule to the A&C Act.
The bench of Justice Moushumi Bhattacharya distinguished between an arbitration clause that permits unilateral appointment of arbitrator and a clause that provides for arbitration before some person in charge of one of the parties or right of that person to delegate his function to a third party. The Court held that only in the latter scenario the persona designata would not just himself be ineligible to act as an arbitrator but would also be precluded from appointing someone else on its behalf.
Case Title: McLeod Russel India Limited v. Aditya Birla Finance Limited, A.P. No. 106 of 2020
Case Citation: 2023 LiveLaw (Cal) 40
The High Court of Calcutta has held filing of pleadings before the arbitral tribunal and agreeing to the jurisdiction of the tribunal therein satisfies the requirement of 'express agreement' given under proviso to Section 12(5) of the Act.
The bench of Justice Moushumi Bhattacharya held that a party, which was aware of the position of law qua the invalidity of the unilateral appointment of arbitrator, if participates in the arbitral proceedings for a considerable period of time and obtain the benefit of the order of the tribunal cannot later turn around and challenge the appointment of the arbitrator.
The Court held that all unilateral appointment of arbitrator are not invalid per se unless the arbitrator's relationship falls within the Seventh Schedule to the A&C Act.
Case Title: Mega Flex Plastics Ltd. & Anr. Versus The Union of India
Case Citation: 2023 LiveLaw (Cal) 41
The Calcutta High Court, while upholding the ruling of the Orissa Appellate Authority, held that the classification of polypropylene bags cannot be changed just to avail a lower tariff rate.
Justice Md. Nizamuddin has observed that the polypropylene bags manufactured by the petitioner are made from plastic granules and cannot be treated as textile articles.
The assessee/petitioner is a manufacturer of polypropylene leno bags by weaving polypropylene strips (tapes). Polypropylene is a variety of plastic. The major raw material in the manufacture of PP Leno bags is plastic granules.
Case Title: HDFC Bank Limited v. The State of West Bengal and Anr
Case Citation: 2023 LiveLaw (Cal) 42
The Calcutta High Court quashed the criminal proceedings registered under Section 392 of IPC against HDFC Bank for taking repossession of the vehicle of the borrower by the financer-HDFC.
While quashing the criminal proceedings, the single judge bench of Justice Siddhartha Roy Chowdhury held:
“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 I.P.C. 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.”
Case: Hindustan Unilever Ltd. v. Emami Ltd.
Case Citation: 2023 LiveLaw (Cal) 43
The Calcutta High Court has recently ruled that the service of summons upon a company at its corporate office situated within the jurisdiction of the suit court is valid under Order XXIX Rule 2 of the Code of Civil Procedure, 1908.
The Court analogously also observed that Section 20 of the Companies Act, 2013 only operates to enable effecting of service of documents upon a company or corporation and does not limit the mode of service thereof.
Case Title: Behala College v. University of Calcutta & Ors.
Case Citation: 2023 LiveLaw (Cal) 44
The Calcutta High Court recently directed the University of Calcutta to grant registration numbers and admit cards to the students of B.Sc. Botany (Hons.) of the Behala College for the academic session 2022-23, who were declined the same on the ground that the said college could not fulfil the condition for the 'extension of affiliation' to the University.
While allowing the petition, the bench of Justice Kaushik Chanda observed:
“The students are not at fault. Since the course was offered by a State aided college, they may have taken admission under the bona fide belief that the course had due affiliation from the university.”
Case Title: KB v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 45
The Calcutta High Court recently invoked its power under Article 226 of the Constitution of India to cancel the bail granted to the in-laws of a woman on the ground that she continues to be tortured by them.
While allowing the writ petition filed by the victim, the single judge bench of Justice Rajasekhar Mantha observed:
“This Court is of the view that the matter is indeed extraordinary in nature and calls for extraordinary measures. The petitioner is clearly a victim of continuous torture and oppression. The charges under Sections 376 and 354 of the Indian Penal Code have been prima facie established in the investigations by the police.”
Case Title: Jitendra Narain v. The State (Union Territory of the Andaman and Nicobar Islands)
Citation: 2023 LiveLaw (Cal) 46
The Circuit bench of Calcutta High Court at Port Blair granted bail to Jitendra Narain, former chief secretary of the Union Territory of Andaman and Nicobar Islands, who is accused in a gang rape case of a girl who had gone to him for seeking a job.
Narain is implicated in offence(s) punishable under Sections 376 (C), 376 (D), 201, 506, 120 (B) IPC along with three others for which chargesheet has already been filed and two of the co-accused persons had been discharged in the chargesheet.
Case Title: Akhil Bandhu Saha v. The Member Secretary, State Legal Services Authority & Ors.
Citation: 2023 LiveLaw (Cal) 47
The Calcutta High Court set aside the order of State Legal Services Authority by which a litigant, facing financial crunch due to failed business and working as an advocate's clerk, was referred for psychiatric treatment for writing derogatory and offensive letters to the high ranking officials and High Court judges.
A single judge bench of Justice Amrita Sinha observed:
“Out of despair and frustration on account of delayed disposal of his legal proceedings, the petitioner shot letters to the high ranking officials and also to the Hon'ble judges of this Court. The contents of the letters are undoubtedly derogatory, offensive, nasty, false and leaves a bad taste in the mouth but the same does not have anything to do with the mental health of the petitioner.”
Case Title: Rajeev Jhunjhunwala v. State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 48
The Calcutta High Court issued a writ of certiorari against a private entity (Bajaj Housing Finance Limited) on the ground that it has violated the petitioner's right to a fair hearing.
The single judge bench of Justice Moushumi Bhattacharya observed that a Writ of Certiorari is generally issued against the acts or proceedings of a judicial or quasi-judicial body. However, it relied on Supreme Court's decision in T.C. Basappa v. T. Nagappa; AIR 1954 SC 440 to reiterated that the Writ of Certiorari can be issued even if the lis is between two private parties.
Case Title: In Re Vikas Mishra
Citation: 2023 LiveLaw (Cal) 49
The Calcutta High Court imposed a fine of Rs. 2000/- on Superintendent, Presidency Correctional Home in a contempt proceeding for violating a court order by extending the comfort of hospitalisation to an undertrial who did not require institutional medical treatment.
The division bench of Justice Ajay Kumar Gupta and Justice Joymala Bagchi observed:
“The present case involves a public servant who is the head of a correctional home. He chose to wilfully violate a judicial order and extend the comfort of hospitalisation to an undertrial who did not require institutional medical treatment. This was done not on a genuine belief that the undertrial was ailing. None of the medical officers opined that the undertrial required hospitalisation. Even the medical officer attached to the jail hospital did not opine that institutional treatment of the undertrial was necessary.”
Case Title: Dr. Raunak Hajari & Anr. v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 50
The Calcutta High Court has refused to quash the criminal proceedings initiated against a medical professional (Resident Medical Officer (RMO)) under Section 377 of IPC for allegedly forcing anal intercourse on a 1st year medical student at the hospital of his residency.
While the medical examination of the complainant-victim did not evidence complete anal intercourse, the single judge bench of Justice Shampa Dutt (Paul) observed "penetration, however little is an offence".
Case Title: Sarada Construction v. Bhupendra Pramanik
Citation: 2023 LiveLaw (Cal) 51
The High Court of Calcutta that the A&C Act is a complete code in itself and it does not contain any provision for the review of an order passed under Section 11 of the Act.
The Bench of Justice Shekhar B. Saraf held that power of review is a creature of statute and unlike the Supreme Court which has inherent power of review under Article 137 of the Constitution of India, no such power is conferred on the High Courts by the Constitution, therefore, it cannot review its order passed under Section 11 of the Act.
Case Title: Binod Banik v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 52
The Calcutta High Court recently acquitted a person, convicted by trial court for the offence of rape, on the ground that the victim being fully grown up lady voluntarily consented to having sexual intercourse with the accused and it cannot be said to be a case of consent under misconception due to false promise of marriage.
The division bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta observed:
“No doubt it is morally reprehensible for the appellant to desert the victim lady with whom he had entered into an informal marriage after she had become pregnant. But moral indignation cannot take the place of legal proof that the cohabitation of the parties was on the basis of a dishonest representation of the appellant...The circumstances clearly indicate that the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was in love, not because he promised to marry her, but because she also desired it.”
Section 50C Cannot Be Applied On Compulsory Acquisition Of A Capital Asset: Calcutta High Court
Case Title: PCIT Versus Durgapur Projects Ltd.
Citation: 2023 LiveLaw (Cal) 53
The Calcutta High Court has held that in cases of compulsory acquisition of a capital asset (land or building, or both), the provisions of Section 50C of the Income Tax Act cannot be applied as the question of payment of stamp duty for effecting the transfer does not arise.
The division bench of Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that the property was acquired under the provisions of the National Highways Act 1956. The property vests by operation of the said statute, and there is no requirement for payment of stamp duty in such vesting of property. As such, there was no necessity for an assessment of the valuation of the property by the stamp valuation authority in the case at hand.
Case Title: Sri Saikat Ghosh v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 54
The Calcutta High Court dismissed a Habeas Corpus writ petition filed by a father, for the production his children who are residing with their mother, on the ground that the ordinary remedy is available under the Guardians and Wards Act in child custody matters.
The division bench of Justice Tapabrata Chakraborty and Justice Partha Sarathi Chatterjee observed:
“Indisputably there is a matrimonial dispute between the petitioner and his wife. Allegations and counter-allegations have been levelled by the parties against each other which is required to be examined with reference to evidence.”
Case Title: Susma Kumari v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 55
The Calcutta High Court has restored the rape case filed against a man who, after being in a relationship with the complainant for about six years, married another woman during the subsistence of such relationship and hid this fact from the complainant.
Justice Rai Chattopadhyay observed:
"The most relevant is the accused person to have suppressed the said facts from the defactocomplainant. These materials are sufficient to find prima facie that the accused might had a guilty mind or culpable intent to procure complainant's consent to sexual acts by misrepresentation and induced her to misconceive about his intent to sexually exploit her and not to have any serious thoughts for their relationship."
Case Title: Anubrata Mondal @ Kesto v. The Director of Enforcement
Citation: 2023 LiveLaw (Cal) 56
A special bench of Calcutta High Court dismissed with exemplary cost, a petition filed by Anubrata Mondal, TMC's leader and accused in West Bengal Cattle smuggling case, challenging the production warrant issued by a Special CBI Court, Delhi in PMLA case.
Mondal was arrested under Section 3 (Offence of money-laundering) and Section 4 (Punishment for money-laundering) of the Prevention of Money Laundering Act (PMLA) by the Enforcement Directorate on November 17, 2022 in relation to a case pending before Special CBI at the Rouse Avenue Court in Delhi.
Case Title: Asian Switchgear Private Limited Versus State Tax Officer
Citation: 2023 LiveLaw (Cal) 57
The Calcutta High Court upheld the penalty and stated that there was no requirement in law to verify the reason for transporting goods in a vehicle without a proper e-way bill.
The bench of Justice Amrita Sinha has observed that the vehicle in which the goods stood transferred for being transported allegedly to the pre-recorded destination, did not have an e-way bill. The provision of Section 129 will be attracted.
Case Title: Shri Rajesh K.V. Alias Rajesh Kaleerakath Venugopal v. Visva Bharati & Ors.
Citation: 2023 LiveLaw (Cal) 58
The Calcutta High Court recently held that UGC Regulations, 2018 do not authorise a university to revoke any leave benefit where a disciplinary proceeding is contemplated or initiated against a teacher.
While relying upon clause 8.2 (d) of the UGC Regulations, 2018, the single judge bench of Justice Kausik Chanda observed:
“In my view, the said clause duly outlines the course of action to be taken in the event where a disciplinary action has been initiated against a teacher. The said rule does not authorise the university to revoke any leave benefit where a disciplinary proceeding is contemplated or initiated against a teacher.”
AO Issued Income Tax Assessment Notice To Non-Existent Company: Calcutta High Court Imposes Cost
Case Title: Orbit Projects Private Limited Vs Income Tax Officer
Citation: 2023 LiveLaw (Cal) 59
The Calcutta High Court has imposed a fine of Rs. 20,000 on the assessing officer for issuing the income tax assessment notice to the non-existent company.
"It also appears from the past record that in respect of another assessee, this court has imposed the personal cost of Rs. 10,000 upon the very same Assessing Officer, Bitan Roy, by order dated August 2, 2023," the bench of Justice Md. Nizamuddin observed.
Case Title: Jagabandhu Mondal v. State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 60
The Calcutta High Court directed the State to immediately hand over Vakalatnama duly executed by an under trial prisoner to his relatives and/or advocates of an undertrial prisoner.
The application was filed by the brother-in-law of the undertrial prisoner under Article 226 of the Constitution of India praying for a direction upon the respondents authorities so that earlier order of the High Court is complied with and to show cause as to why the Vakalatnama dropped in the drop box of the respondents has not been provided to the lawyer of the undertrial or his family.
Case Title: The State of West Bengal & Ors. v. Madhab Sarkar
Citation: 2023 LiveLaw (Cal) 61
The Calcutta High Court recently upheld an order of the Additional Chief Secretary To State's Health Department which rejected the application of a doctor for voluntary retirement on the ground of larger public interest.
While upholding the said order, the division bench of Justice Harish Tandon and Justice Prasenjit Biswas observed:
“The health sector being a most important sector in the administration of the system for not only rendition of the services to the society but to the humanity as well. The health of the citizenry plays a very pivotal role in the development of the society and the country. The people doctor ratio in the country is abysmally low and there is a dearth and paucity of the Doctors at the Government Hospitals where the poorest of the poor got benefit of the treatment.”
Case Title: Sandip Kumar Singhal Versus Deputy Commissioner, Revenue, Bureau of Investigation North Bengal Headquarter & Ors.
Citation: 2023 LiveLaw (Cal) 62
The Calcutta High Court has directed the refund of the penalty and held that the department was vacillating between Sections 67 and 68 of the GST Act, depending on whether the goods are in transit or in the godown.
The bench of Justice Amrita Sinha has observed that initially the authority invoked the provision of Section 67 but thereafter shifted its stand and relied upon Section 68 read with Section 129 for the imposition of penalty. The authority was confused as to which provision to invoke for the imposition of a penalty. At one point in time, the goods were held to be stored in the godown without the proper documents and without a valid e-way bill, and immediately after, the goods were held to be in transit. A single consignment of goods cannot be held to be stored in the godown and in transit at the same time.
Calcutta High Court Grants Bail To Accused Under NDPS Act Citing Non-Compliance Of S.41B CrPC
Case Title: Md. Mirmoizuddin Rahaman & Anr. v. State
Citation: 2023 LiveLaw (Cal) 63
The Calcutta High Court recently granted bail to two accused persons in a NDPS case on the grounds that Section 41B of CrPC was not complied with, there were discrepancies in the documents of seizure.
While allowing the bail application of the accused persons the division bench of Justice Sabyasachi Bhattacharyya and Justice Rai Chattopadhyay held:
“The provisions of Section 41B of the Code of Criminal Procedure have to be complied with and that there cannot be any discrepancy inherent in the seizure list in order to raise a proper presumption under Section 37 of the N.D.P.S. Act, we are of the opinion that the petitioners are entitled to bail.”
Case Title: Sri Pankaj Saha v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 64
The Calcutta High Court at Jalpaiguri held that contradiction in the orders of the civil court cannot empower the writ court to enter into the specific domain of the civil court and pass the order by which the suits are virtually decided, when the matter is sub judice before the civil court.
The division bench of Justice Sabyasachi Bhattacharyya and Justice Rai Chattopadhyay observed:
“It is for the civil court, if so approached by one of the parties, to come to a specific finding as to whether there was a violation of the order of court, as to who was in possession of the property at the time of passing the restraint order and regarding what was the status of the property at the relevant juncture when the injunction order was initially passed and as to whether police help should be directed in the context.”
Case Title: Abhijit Saha v. State & Anr.
Citation: 2023 LiveLaw (Cal) 65
The Calcutta High Court at Jalpaiguri recently quashed criminal proceedings under section 406 (Punishment for criminal breach of trust) and section 420 (Cheating and dishonestly inducing delivery of property) of IPC against a DSP, Government Railway Police, on the ground that allegations made against the petitioner did not depict any cognizable offence under the said provisions.
The single judge bench of Justice Rai Chattopadhyay observed:
“Peculiarly enough in this case the complaint discloses alleged acts of biasness, not affording opportunity of hearing to the complainant by the present petitioner and at the worst, of assault and intimidating him and subjecting him to wrongful confinement…None of these acts would ever fall within the purview of the ingredients of the offence alleged against the accused person/ petitioner. There are no allegations of inducement or inducement for the purpose of deception of the complainant, or any culpability of intention of the present petitioner to fraudulently misappropriate any of the entrusted properties of the complainant.”
Case Title: The State of West Bengal v. Sahadeb Barman & Ors. with related criminal appeal
Citation: 2023 LiveLaw (Cal) 66
The Calcutta High Court at Jalpaiguri recently commuted the death sentence awarded by the trial court to the convicts in a triple-murder case, to life imprisonment without remission for a period of 30 years,.
A division bench of Justice Joymalya Bagchi and Justice Subhendu Samanta observed:
“Presence of mitigating factors like lack of criminal antecedents play an important role to opt for a more humanistic approach of imposition of life imprisonment without remission. Appellants are first time offenders. Though the three persons have been murdered, evidence on record do not show appellants had come to the spot armed or the murders were pre-planned.”
Case Title: Cholamandalam Investment & Finance Company Ltd v. Amrapali Enterprises
Citation: 2023 LiveLaw (Cal) 67
The High Court of Calcutta has deprecated the practice of banking and financial institutions unilaterally appointing the arbitrator. It refused to enforce an award passed by an arbitrator that was unilaterally appointed by the petitioner.
The bench of Justice Shekhar B. Saraf has held that an arbitration award passed by a unilaterally appointed arbitration is non-est and its enforcement would be refused under Section 36 of the A&C Act even if the award was not set aside under Section 34. It held that executing court also has the power to declare an 'unilateral appointment award' non-est in law, declare it to be a nullity and direct the parties to re-agitate their dispute before an independent and impartial arbitral tribunal.
Case: Krishnapada Pal & Ors. vs. Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 68
The Calcutta High Court has directed that writ petitioners, who were in service as on 01.09.2014 and were also members of the Employees' Pension Scheme 1995 ('EPS 1995') shall be entitled to exercise option which shall cover the pre-amended paragraph 11(3) as also paragraph 11(4) of EPS 1995.
The single bench of Justice Raja Basu Chowdhury directed Indian Oil Corporation Limited ('IOCL') to jointly exercise such option along with only the eligible employees/writ petitioners as specified in the Judgment and in the manner as directed by the Supreme Court in Employees Provident Fund Organisation and Anr v. Sunil Kumar B. and Others, 2022 LiveLaw (SC) 912.
Case Title: Anupam Bera vs State of West Bengal
Case Title: 2023 LiveLaw (Cal) 69
In a significant order, the Calcutta High Court has ruled that the State has no authority to appoint, re-appoint, or extend the tenures of Vice Chancellors of the universities in the state of West Bengal.
It has further held that the appointment of Vice-Chancellors should be strictly in accordance with the provisions of law.
The division bench comprising of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj, have ordered the removal of Vice-Chancellors of nearly 29 universities in the State, who were appointed/re-appointed by the state government based on the amendments to the West Bengal Universities Act carried out in 2012 and 2014.
Case Title: Swadesh Ranjan Das Adhikary v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 70
The Calcutta High Court recently observed that there should be level playing field for all political denominations and ideologies in the State for holding public rallies, gatherings and meetings.
The aforesaid observations were made by a single judge bench of Justice Rajasekhar Mantha while hearing a writ petition filed by a BJP leader challenging the decision of the State Police denying him the permission to hold a rally on March 14 at Nandigram for paying respects to the 14 villagers who were killed in police firing during Anti-Land Acquisition protests on March 14, 2007.
Calcutta High Court Refuses To Quash Rape Case Against Man Accused Of Raping 15-Yr-Old In 2016
Case Title: BB v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 71
The Calcutta High Court has refused to quash a POCSO case against a man who is accused of raping a minor girl in 2016. The accused and the victim - who is now a major, are stated to have been in love when the alleged incident took place.
The single judge bench of Justice Shampa Dutt (Paul) observed:
“The fact of them (accused and victim) being married to other persons does not lessen the offence alleged, considering the prima facie materials on record.”
Case Title: Sukhamoy Chakraborty v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 72
The Calcutta High Court at Jalpaiguri recently quashed an order of Judicial Magistrate which directed a Police Officer to appear personally before his Court to file show-cause as well as execution report of a warrant of arrest against a medical officer, failing which he shall be liable to face penal consequences.
While quashing the order, the single judge bench of Justice Bibek Chaudhuri observed:
“I would like to record at the outset that temperament is not only the essential but basic attribute of a Judge. If judicial act and conduct expresses ill-temperament and projected ill-feeling towards any person who are coming to the Court to seek justice as well as the persons who are responsible for enforcement of law, in other words, Law Enforcing Agency, there shall be occurrence of failure of justice.”
Case Title: Optimum Infratel Pvt. Ltd. v. Torus Buildcon Pvt. Ltd. & Ors.
Citation: 2023 LiveLaw (Cal) 73
The Calcutta High Court refused to recall its order of dismissal of a commercial suit and interlocutory application on the ground that plaintiff had not been diligent in proceeding as it did not appear before the court for three months after filing of the suit.
The single judge bench of Justice Ravi Krishan Kapur observed:
“No litigant is relieved of his or her duties and obligations on the ground that an Advocate had been engaged. A party to a suit is not at liberty to proceed with the suit or the interlocutory application at its pleasure. The repeated defaults of non-appearance are unacceptable. I find no reason nor explanation which constitutes any cause far less sufficient cause to recall the order. In my view, the purpose and object of the Commercial Courts Act, 2015 cannot be thwarted by such indolent conduct on the part of any litigant or their Advocate.”
Calcutta High Court Quashes Income Tax Notices Issued In The Name Of Non-Existing Company
Case Title: S. K. Finserve Private Limited Vs Assistant Commissioner of Income Tax
Citation: 2023 LiveLaw (Cal) 74
The Calcutta High Court has quashed the income tax notice issued in the name of a non-existing company, in spite of the department having notice and knowledge of non-existence of the company.
The single bench of Justice Md. Nizamuddin observed that the notice has been issued in the name of the company, which has already been amalgamated on December 12, 2016 with effect from April 1, 2015, and that the department has been intimated about this amalgamation, which is a matter of record, and that such a notice in the name of a non-existing company is not tenable in the eye of the law.
Case Title: Simonta Borah v. Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 75
The Calcutta High Court refused to interfere with the dismissal order of a BSF Constable who overstayed his leave, on the ground that Article 311 of the Constitution is applicable only to the holders of civil posts and not to the members of the Armed Forces.
Article 311 lays down ground rules for dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.
Case Title: Kamal Ghosh & Anr. v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 76
The Calcutta High Court held that under Section 167(5) of CrPC, there cannot be an automatic order issued by a magistrate, without anything else, to stop further investigation on expiry of six months from the date of arrest.
The single judge bench of Sugato Majumdar observed:
“Section 167 (5) of CrPC unequivocally states that the Magistrate can stop investigation on contingency that the Investigating Officer has failed to satisfy the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. There cannot be any automatic order without anything else on expiry of a period of six months from the date of arrest.”
Case Title: Saswati Mohury & Anr. v. The Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 77
The Calcutta High Court observed that the omission under the Assisted Reproductive Technology (Regulation) Act, 2021 to treat a 'commissioning couple' as a separate unit coupled with the omission to prescribe an age for a 'gamete donor' leads to the argument that a woman's age is the only relevant factor for a commissioning couple for availing of ART services.
While hearing a Writ Petition filed by a married couple challenging constitutional validity of Section 21(g) of the ART Act, 2021, the single judge bench of Justice Moushumi Bhattacharya observed:
“If the omissions under various provisions of the ART Act, 2021 are read together it appears that the Act has discounted the relevance of a man as a part of a commissioning couple and even as a necessary part of ART altogether.”
Case Title: State of West Bengal v. Sovan Sarkar
Citation: 2023 LiveLaw (Cal) 78
The Calcutta High Court commuted a death row prisoner's sentence to life imprisonment till natural life without remission. The man last year was awarded a death sentence by the trial court for murdering his parents.
The division bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi said:
“The Constitutional Court can award a life sentence without any remission. This aspect has to be considered in light of the report of Pavlov Hospital taken note of by the learned Trial Judge where, such hospital had done psychometric assessment of the convict by clinical psychologist who reported that there was a possibility of the convict committing future crime and becoming a danger to the society.”
Case Title: Amar Nath Dutta v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 79
The Calcutta High Court recently upheld an order of the Maintenance Tribunal which allowed an octogenarian transferor to revoke the gift deed made in favour of the transferee on the ground that the transferee harassed and failed to provide maintenance to the transferor, contrary to the specific undertaking given by the transferee.
The single judge bench of Justice Moushumi Bhattacharya observed:
“The declaration is in the form of an undertaking given by the petitioner containing the specific condition that the petitioner would look after the basic amenities and basic physical needs of the respondent no. 6 / transferor. Hence, the declaration / undertaking should be taken as a continuation and part and parcel of the Deed of Gift.”
AO Has Reduced The Procedure To An Empty Formality, To Be Deprecated: Calcutta High Court
Case Title: Indu Goenka Vs. Assessment Unit, Income Tax Department & Ors.
Citation: 2023 LiveLaw (Cal) 81
The Calcutta High Court had quashed the Assessment Order and held that the assessing officer has reduced the procedure to an empty formality, which has to be deprecated.
The division bench of Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that the first 21 pages of the assessment order are a verbatim extract of the show cause notice. On pages nos.22 and 23 in two paragraphs the reply given by the assessee has been summarised. From pages nos.23 to 36 of the assessment order it is once again an extract of the show cause and ultimately on pages nos.37 and 38 the total income has been determined and the assessment is completed.
Case Title: Sri Suvendhu Adhikari v. The State of West Bengal & Ors
Citation: 2023 LiveLaw (Cal) 82
The Calcutta High Court transferred the investigation to the CBI in two registered cases with regard to the incident of attack on the convoy of Union Minister Nisith Pramanik on February 25, 2023.
While hearing a Writ Petition filed by Suvendhu Adhikari, an MLA and Leader of Opposition in West Bengal Assembly in relation to the incident, the division bench of Chief Chief Justice Prakash Shrivastava and Justice Rai Chattopadhyay observed:
“Different yardsticks have been applied by the State Police to take action against the workers of two different political parties. A perusal of the case diaries also reveals that investigation is not heading in the right direction... Thus, in the above circumstances of the case and considering the fact that the attack is on the convoy of Union Minister of State and the allegation is in respect of larger conspiracy to cause bodily harm to him, we are of the view that to ensure fair, unbiased and neutral investigation, it is necessary that the investigation is carried out by an independent agency.”
Case Title: Hasin Jahan v. State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 83
The Calcutta High Court upheld an order of the Sessions Judge, Alipore stayed the arrest warrant issued against cricketer Mohammad Shami in a cruelty and assault case filed by his wife in 2018.
The single judge bench of Justice Shampa Dutt (Paul) observed:
“In the present case the learned Session Judge passed an order of stay. The hearing of the revision is still pending. And as such in view of the Judgment of the Supreme Court in Honnaiah T.H. (Supra) the order of the learned Session Judge requires no interference.”
Case Title: Harish Chandra Gain & Ors. v. The State of Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 84
The Calcutta High Court directed ADGP, CID, West Bengal to initiate criminal proceedings and investigation against persons who were allegedly involved in filing of a "fake" writ petition before it by forging signatures of eight persons including a dead person.
The single judge bench of Justice Md. Nizamuddin observed:
“This is a serious criminal offence committed before this High Court by filing this fake writ petition in the name of those persons by forging their signatures who have not authorised the petitioner No.1 to file this writ petition on their behalf.”
Case Title: Anirudha Halder & Anr. v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 86
The Calcutta High Court directed the State Government to release two life convicts who were languishing in jail for 18 years, on premature release, after the same was denied by the government on the ground that it did not receive the opinion of the Presiding Judge of the court before or by which the conviction was held.
The single judge bench of Justice Bibek Chaudhuri observed that under Section 432(2) CrPC, opinion of Presiding Judge of the court before or by which the conviction was held or confirmed is necessary. Since the same was absent in this case, the High Court perused the judgment itself and said,
“On perusal of the judgment passed by this Court in appeal it is found that the entire case was based on circumstantial evidence. The petitioners are presently aged about 73 years and 84 years respectively. There is no reason in favour of petitioners' prayer for refusal of premature release. At the fag end of life they will get mental peace if they are allowed to lead last few years of their life with their family members.”
Case Title: Anirudha Halder & Anr. v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 86
The Calcutta High Court directed the State Government to release two life convicts who were languishing in jail for 18 years, on premature release, after the same was denied by the government on the ground that it did not receive the opinion of the Presiding Judge of the court before or by which the conviction was held.
The single judge bench of Justice Bibek Chaudhuri observed that under Section 432(2) CrPC, opinion of Presiding Judge of the court before or by which the conviction was held or confirmed is necessary.
Case Title: Manirul Islam v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 87
The Calcutta High Court granted bail to an alleged member of the banned organisation Jamaat-ul-Mujahideen Bangladesh (JMB). The accused was arrested in 2019 in a case under various provisions of Explosive and Substance Act, Indian Penal Code (IPC) and Unlawful Activities (Prevention) Act (UAPA).
The division bench of Justice Ajay Kumar Gupta and Justice Joymala Bagchi observed:
“Keeping in mind the slow progress of trial and as the petitioner has suffered incarceration for more than four years when the maximum sentence imposed on the co-accused on the same charge is five years and nine months, we are of the view his continued detention would amount to infraction of his fundamental right to speedy justice and he is entitled to bail on this score. Bail prayer of the petitioner on this ground is not fettered by Section 43(D)(5) of the UAPA Act.”
Case Title: Biswanath Paul v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 88
The Calcutta High Court recently directed the State Government to pay the overdrawn amount to a Group 'C' employee which was recovered post his retirement on the ground that the said recovery by the employers was in violation of the ratio laid down by the Supreme Court in the State of Punjab and Ors. v. Rafiq Masih (2015) 4 SCC 344.
Ram Navami Violence: Calcutta High Court Directs State To Deploy Adequate Force In Affected Areas
Citation: 2023 LiveLaw (Cal) 89
The Calcutta High Court directed the state government to deploy adequate police force in the affected areas where incidents of violence took place during the Ram Navami procession, so that peace and tranquillity prevails.
While hearing a PIL filed by Leader of Opposition in State Assembly and BJP MLA Suvendu Adhikari, the division bench of the Acting Chief Justice T. Sivagnanam and Justice Hiranmay Bhattacharyya observed:
“The respondent State shall ensure that the public in the area shall not in any manner affected by any incident of violence or arson and law and order shall be kept under control. The safety of the school going children and the businessmen should be sufficiently safeguarded.”
Case Title: X v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 90
The Calcutta High Court recorded its displeasure against the conduct of a public prosecutor who raised no objection to a bail application without the case diary being produced before the trial court.
The single judge bench of Justice Tirthankar Ghosh observed:
“I am unable to accept the conduct of the public prosecutor raising no objection without the case diary being produced before the court. The public prosecutor are representative of the State, they may have their opinion, but such opinion must be on the foundation of the materials collected by the Investigating Officer and the Investigating Officer must also be aware regarding the materials being produced before the court for assessment when the application for bail of the accused is being considered. No public prosecutor should keep the Investigating Officer in dark and raise no objection when the bail application is being moved.”
Citation: 2023 LiveLaw (Cal) 91
The Calcutta High Court directed the state government to seek assistance from the para-military forces during the Hanuman Jayanti celebrations by making a request in this regard to the Union Home Ministry. The Centre was also asked to deploy the forces expeditiously after state government requests for the same.
"The assistance of the para-military forces will definitely help the state police in maintaining law and order report form ensuring the general public that their safety and security will be taken care of...Prevention is better than cure. The State Police are required to take all the steps with the assistance of paramilitary force or any other central force to prevent any untoward incidents so that the public is not put in jeopardy" a bench of Acting Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharyya directed.
Calcutta High Court Allows Accused In 2019 Jaguar Crash Case To Travel To Saudi Arabia For Umrah
Case Title: Raghib Parwez v. State of West Bengal
Citation: 2023 LiveLaw (Cal) 92
The Calcutta High Court set aside the order of a trial court which had rejected the application of an accused for visiting Mecca to perform Umrah during the month of Ramzan.
Justice Bibek Chaudhuri said a person cannot be refused permission to offer prayers at a holy place of their religion just because he once performed "Umra Haj" in the year 2018.
"If this ground is accepted, as a logical corollary it would mean that a person of any religion cannot offer his prayer or puja if it is once performed by him," said the court.
Case Title: Priyanka Das vs. State of West Bengal
Citation: 2023 LiveLaw (Cal) 93
While transferring probe in a corruption case against IPS Officer Somenath Bhattacharyya from Barrackpore Commissionerate to the CID, the Calcutta High Court has ordered action against two senior officers of the Detective department for alleged custodial torture of a co-accused. The court also granted bail to the co-accused Kaustav Das after the State admitted that he "may have been tortured in course of police custody."
"The CID, West Bengal shall consider registering FIR against the respondent nos. 4 and 5 and the Medical Officer of Jagadish Chandra Bose General Hospital who signed the fitness certificate of Kaustav Das on March 21, 2023," Justice Rajasekhar Mantha said.
Case Title: Y v. State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 94
The Calcutta High Court declined to grant relief of medical termination of pregnancy to a 12 years old minor girl, claiming to be a victim of rape and sexual assault, on the ground that termination of pregnancy involved a risk to the extent of maternal death.
The single judge bench of Justice Aniruddha Roy observed:
“However, in the light of the said report furnished by the Medical Board dated April 4, 2023 as quoted above, one crucial factor is there, of which this Court cannot be unmindful, that the termination of pregnancy at this stage of gestation may carry a risk even to the extent of maternal death. Here this Court got stuck as the life of the minor girl is paramount at this stage. If ultimately, the minor girl has to sacrifice her life in the event of termination of her unwilling pregnancy at this advanced stage, then the question automatically comes to the mind of this Court that whose personal life, liberty and dignity shall be protected as guaranteed under Article 21 of the Constitution. For those reasons and discussions, this Court cannot proceed to grant any relief for medical termination of the pregnancy of the said minor girl.”
Case Title: Sunil Bharti Mittal & Anr. v. State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 95
The Calcutta High Court quashed criminal proceedings in a private complaint alleging offences under Sections 465 and 468 of IPC against Bharti Enterprises Chairman Sunil Bharti Mittal and another senior company official on the ground that allegations made in the complaint do not disclose any prosecutable case against them.
Justice Rai Chattopadhyay said the complainant has not been able to project in his written complaint any prima facie material against the petitioners.
Case Title: Marine Craft Engineers Pvt Ltd vs. Garden Reach Shipbuilders and Engineers Ltd
Citation: 2023 LiveLaw (Cal) 96
The Calcutta High Court has ruled that the date of execution of a contract between a buyer and a supplier under the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act) is irrelevant for the application of the provisions of the said Act.
The Facilitation Council would have exclusive jurisdiction to decide on the reference, and to take up the dispute/ refer the same for arbitration under Section 18(4) of the MSMED Act, if the supplier's claim relates to the goods or services supplied after the date of its registration under the MSMED Act, the Court held.
Case Title: Bharat Vanijya Eastern Private Limited versus State of West Bengal
Citation: 2023 LiveLaw (Cal) 97
The Calcutta High Court has ruled that once the court has disposed of a civil suit and referred the parties to arbitration in an application filed by it under Section 89 of the Code of Civil Procedure, 1908 (CPC), and has appointed an arbitrator with the written consent of both the parties, the suit cannot be revived.
The Court rejected the argument of the petitioner/ claimant that since the court under Section 37 of the Arbitration and Conciliation Act, 1996 (A&C Act) had set aside the arbitral award without deciding on the merits of its claim, the High Court must appoint a new arbitrator since the original arbitrator had expired, or, in the alternative, revive the civil suit instituted by it.
Arbitration- Limitation Starts From Failure Of Settlement Talks: Calcutta High Court
Case Title: Zillon Infraprojects Pvt. Ltd. v. BHEL
Citation: 2023 LiveLaw (Cal) 98
The High Court of Calcutta has held that the period of limitation will only begin to run when the talks of amicable settlement between the parties fail.
The bench of Justice Shekhar B. Saraf held that the period of limitation for referring a dispute to arbitration would be calculated from the date of the breaking point i.e., the date of failure of settlement talks, when the parties were trying to amicably settle the dispute.
Case Title: Sri Pankaj Kumar Datta v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 99
The Calcutta High Court directed the State to restore the security protection of a retired IGP, as an interim measure. The security was allegedly withdrawn by the State because he has been vocal in criticising the police machinery and the government in public debates.
The single judge bench of Justice Rajasekhar Mantha observed:
“Constructive criticism of the State is a necessary and essential right of any citizen. It is a recognized right in any democracy.”
Case Title: SREI Equipment Finance v. Sadhan Mandal, EC 137 of 2023
Citation: 2023 LiveLaw (Cal) 100
The High Court of Calcutta has held that an arbitration award passed by an arbitrator who was unilaterally appointed by one of the parties cannot be executed under Section 36 of the A&C Act.
The bench of Justice Shekhar B. Saraf held that a unilaterally appointed award does not carry the privilege of existence in the eyes of the law and is regarded as a nullity, therefore, there is nothing to execute in an enforcement petition.
Case Title: Jafar Ali v. State of West Bengal
Citation: 2023 LiveLaw (Cal) 101
The Calcutta High Court directed all the Superintendents of Police and Commissioners of Police in West Bengal to ensure that the police officers diligently fill in all the columns in the respective memo of arrests by stating the actual situation.
The division bench of Justice Shampa Dutt (Paul) and Justice Rajarshi Bharadwaj further directed:
“The concerned SPs and CPs will take up the matter in the monthly crime conference and will supervise these cases seriously and also take all updates in such cases on regular basis. The matter be also brought to the notice of Director General of Police, West Bengal, who shall issue appropriate directions as per our observations in this order.”
Case Title: The State of West Bengal v. Nandita Saha @ Mou & Anr.
Citation: 2023 LiveLaw (Cal) 102
The Calcutta High Court commuted the death sentence awarded to a convict by the trial court in a double murder case to life imprisonment without remission for a period of 40 years from the date of commission of offence.
The division bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi observed:
“In the facts of the present case, the state has neither at the stage of the trial nor before us in appeal provided any materials to show that the convict was beyond reformation and rehabilitation. Failure of the state to provide such information has been held in 2011 volume 13 Supreme Court Cases 706 (Rajesh Kumar versus State) to be a mitigating circumstance.”
Case Title: West Bengal Housing Board v. Abhisek Construction, AP 189 of 2019
Citation: 2023 LiveLaw (Cal) 103
The High Court of Calcutta has held that Section 12(5) of the A&C Act, which provides for ineligibility of a person to act as an arbitrator whose appointment falls under any categories mentioned under the Seventh Schedule to the Act, would not apply to an arbitration that commenced before the 2015 Amendment.
The bench of Justice Shekhar B. Saraf held that the 2015 Amendment that added Section 12(5) to the A&C Act would not retrospectively apply to arbitration proceedings that commenced before the Amendment became operative.
Case Title: Paul Brothers & Anr. v. Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 105
The Calcutta High Court recently restrained an assignee to use the trademarks made under the assignment of trademarks on the ground that the assignee did not apply to the Registrar within the maximum time frame of 9 months prescribed under Section 42 of the Trade Marks Act, 1999.
The single judge bench of Justice Moushumi Bhattacharya observed:
“In the present case, the assignment was made on 3rd April, 2017 and there is nothing on record to show that the respondent no. 6 took the steps as required under section 42 or the Registrar of Trade Marks effected the conditions under section 42 for assignment of the trade marks in question. Therefore, prima facie, the petitioners have made out a case under section 42 with regard to the impugned assignment.”
Case Title: Krishnadas Bhattacharjee -Versus- The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 106
The Calcutta High Court recently ruled that the Labour Courts/Tribunals constituted under the Industrial Disputes Act, 1947 have the power to exercise jurisdiction under Section 2A(2) of the Act and that the Repeal and Amendment of the Industrial Disputes (Amendment) Act, 2010 as a whole, by the Repeal and Amendment Act of 2016, neither has the effect of removing the said section from the statute book, nor ousting the jurisdiction of the said courts/tribunals.
Case Title: In Re: Unnatural death of a teenaged boy in Mallarpur; Arijit Adhikary v. State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 107
The Calcutta High Court has awarded a compensation of Rs. 15 lakh to the family of a 15-year-old who died an unnatural death in police custody at the Mallarpur Police Station of Birbhum district in 2020.
While hearing a PIL and Suo Motu Writ Petition regarding the incident, the division bench of the Acting Chief Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya said " There is a sorry state of affairs" in which a young boy of 15 years died in police custody.
Case Title: Manogya Loiwal v The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 108
Staying an FIR filed against a TV journalist for giving an alleged "provocative speech", the Calcutta High Court said that the media is an equally vital pillar of a democracy which cannot be curtailed or intimidated.
Justice Rajasekhar Mantha said the court is prima facie satisfied that the registration of the FIR against the journalist Manogya Loiwal is seriously questionable.
"The media is the fourth and an equally vital pillar of any democracy. The Fourth Estate cannot be curtailed or intimidated. The prima facie illegal FIR will hang as a sword of damocles on the petitioner and may prevent her from pursuing her work."
Case Title: Sayan Banerjee v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 109
The Calcutta High Court recently directed the State to take necessary steps to sensitise the parents of those children, who have dropped out of schools during the COVID-19 pandemic, regarding the need of education and to take further steps to bring them back to the schools.
While hearing a PIL on the issue, the division bench of the Acting Chief Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya said:
“Commissioner of School Education shall also call for reports from various districts as regards the students strength in the respective schools pre-Covid and post-Covid and necessary steps can be taken to sensitise the parents of those children regarding the need for education and steps have to be taken to provide clean atmosphere, good drinking water, mid-day meal etc. to bring back the drop out students to school.”
Case Title: Idrish Ansary v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 110
The Calcutta High Court set aside the conviction of an accused under Section 302 of IPC on the ground that the verdict was based on the alleged written confession made by the accused before the police while in custody.
The division bench of Justice Joymalya Bagchi and Justice Partha Sarathi Sen noted:
“Since PW7 is a police official, such writing which according to the prosecution is a confession of the present appellant is not admissible in the eye of law and therefore the learned trial court while passing the impugned judgement ought to have discarded the oral testimony made by PW7 and in course of trial, the said trial court ought not to have admit the alleged written confessional statement of the present appellant into evidence by marking the same as Exhibit. It may be relevant to emphasize merely because the purported confession was in writing it would not escape the exclusion clause engrafted in Section 25 of the Evidence Act.”
Case Title: Arabinda Das & Ors. v. State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 111
The Calcutta High Court imposed a cost of Rs. 80,000 on State authorities for demolishing a private structure without complying with the statutory provisions of the West Bengal Public Land (Eviction of Unauthorized Occupants) Act, 1962 and disregarding the pending judicial proceeding before the High Court.
The single judge bench of Justice Moushumi Bhattacharya said:
“The action of the State authorities in failing to comply with the statutory mandate of the West Bengal Public Land (Eviction of Unauthorized Occupants) Act, 1962, − assuming that the Act is applicable in the present case− and disregarding the filing of the writ petition before this Court amounts to “Malice in Law”. Malice in Law is a reckless act in violation of the legal rights of a citizen which may or may not be actuated by personal ill-will.”
Case Title: Pradeep Kumar Biswas v. Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 112
The Calcutta High Court held that an order of acquittal by the Criminal Court does not automatically entitle an employee to exoneration and consequential reliefs in the form of back wages for the period of suspension withheld as penalty by the Disciplinary Authority, if the acquittal is not based on merits.
The single judge bench of Justice Ravi Krishan Kapur noted:
“In this case, the Investigating Officer was the only witness in the criminal proceeding. No material evidence had been placed before the Court. The documents, though seized were not adduced. Hence, the Magistrate was left with no other choice but to pass an order of acquittal. The petitioner had not been exonerated on merits. The case was conducted in a perfunctory manner and no document had been brought on record in support of the charges. There has been no consideration of the prosecution case. In such circumstances, the acquittal cannot be said to be an honourable acquittal.”
Case Title: Sk. Farid @ Fariduddin v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 113
The Calcutta High Court upheld an order of cancellation of bail passed by the Sessions Court on the ground that the accused supressed the fact before the Sessions Court that his earlier bail prayer was turned down by the High Court.
The single judge bench comprising Justice Subhendu Samanta observed:
“The power of granting bail u/s 439 Cr.P.C. is within the concurrent jurisdiction of High Court and Court of Sessions. Thus, to maintain the judicial discipline as well as to avoid difference of finding of opinion, the applicant is duty bound to mentioned whether his earlier bail prayer was either pending or rejected by the High Court or not. Its solemn authority of the Sessions Judge, to consider the bail prayer of an accused u/s 439 Cr.P.C. independently. At the same time the applicant has to inform the Learned Sessions Judge, regarding the fate of his earlier application of bail.”
Case Title: Essar Oil and Gas Exploration and Production Ltd vs Gargi Travels Pvt Ltd
Citation: 2023 LiveLaw (Cal) 114
The Calcutta High Court has held that a prior reference to the Facilitation Council under Section 18(1) of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act), which is still at the stage of conciliation, does not debar the Court from passing an order under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act) for appointment of arbitrator on the basis of an independent arbitration clause between the parties.
The court ruled that the bar contemplated under Section 24 of the MSMED Act only comes into operation if and when there is anything inconsistent between Sections 15 to 23 of the MSMED Act and any other law for the time being in force.
Calcutta High Court Pulls Up Civic Body Chairman For Issuing Demolition Notice To Sessions Judge
Citation: 2023 LiveLaw (Cal) 115
The Calcutta High Court pulled up the Chairman of English Bazar Municipality of Malda District (Municipality) for issuing a notice to the District and Sessions Judge, Malda for the demolition of a building being constructed within the court premises.
The division bench of the Acting Chief Justice (ACJ) T. S. Sivagnanam and Justice Hiranmay Bhattacharyya told Advocate General S. N. Mookherjee that it would pass appropriate orders if the said notice is not withdrawn.
Case title - Sunita Shukla vs. The State of West Bengal & Ors [WPA 7882 of 2022]
Case Citation: 2023 LiveLaw (Cal) 116
The Calcutta High Court ordered the state government to provide Rs. 2 Lakh as compensation, to the family members of an accused (allegedly implicated falsely for offence under the NDPS Act) after finding that certain procedural lapses were committed by the state police while effectuating his arrest.
In its order, the Court also noted that the footage of CCTV, installed in the police station where the accused was kept at the relevant point of time and which could have been an essential piece of evidence, was destroyed.
Case Title: In Re Maharaj Singh & Anr. v. Customs
Citation: 2023 LiveLaw (Cal) 117
The Calcutta High Court held that once a charge-sheet is filed in a NDPS case, the order extending detention of the accused beyond 180 days no longer survives. A litigant cannot be permitted to assail the said order of extension of detention at a time when it is no longer in existence, said the court.
The division bench of Justice Ajay Kumar Gupta and Justice Joymalya Bagchi observed:
“In the present case, the petitioners did not assail the order extending the period of detention prior to the completion of investigation. Upon conclusion of investigation and submission of complaint, impugned order extending detention beyond 180 days no longer survives after filing of charge sheet. A litigant cannot be permitted to assail an order at a time when it is no longer in existence.”
Case Title: Parimal Sarkar v. State of West Bengal
Citation: 2023 LiveLaw (Cal) 118
The Calcutta High Court recently set aside the conviction of a murder accused on the ground that the dying declaration was doubtful.
The division bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta noted:
“Dying declaration can be the sole basis of conviction provided the same is consistent. When the contents of the dying declaration as per the prosecution witnesses are at variance to one another vis-a-vis the role of the appellant, it would be hazardous to rely on such evidence to come to a finding of guilt against him.”
Case Title: Gaurav Bir Basnet @ Gaurav Basnet v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 119
The Calcutta High Court recently set aside trial court's decision to convict under Section 417 of IPC a man accused of inducing a woman to have sexual relation with him on the promise to marry her after the dissolution of his previous marriage.
The single judge bench of Justice Siddhartha Roy Chowdhury noted:
“Thus it can be safely said that the promise of marriage, so made by the accused person, was not a promise simplicitor - it was contingent on dissolution of his marriage, that was subsisting. Victim was aware of the situation and decided to live together with the accused. Accused person did not have the competence to dissolve the marriage, either his wife would have to agree or he would have to make out a case for decree for divorce. Therefore, element of uncertainty was there since inception of such relationship. Victim, consciously accepted such risk of uncertainty. The 'changed man' could not go for divorce. Therefore, the promise of marriage, after divorce, by itself does not amount to cheating.”
Case title - Suvendu Adhikari vs. State of West Bengal along with connected matters
Case Citation: 2023 LiveLaw (Cal) 120
The use of explosives substances and hurling of bombs have become regular features during rallies and religious ceremonies, observed the Calcutta High Court while transferring to NIA, the probe into the incidents of violence that occurred in the state last month during the Ram Navami celebrations.
The bench of Acting Chief Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya said that in the state of Bengal, at least twelve such violent incidents had taken place since April 2021 wherein weaponry, arms, ammunition, artillery and bombs were used by the miscreants causing great loss of life and public properties.
Case Title: Sk. Sohel Ashik v. State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 121
The Calcutta High Court recently quashed criminal proceedings against an accused for the alleged offence of rape on the ground that the physical relationship between him and the victim was consensual and the issue of marriage cropped up only after the physical relationship.
The single judge bench of Justice Tirthankar Ghosh noted:
“Having regard to the version of the complainant and the prosecution witnesses who were also aware regarding the relationship of the accused with the complainant particularly with regard to the narration of the facts that the complainant on her own had been to a hotel and it is only after the physical relationship, the issue regarding marriage cropped up, I am of the opinion that the principles settled hereinabove do apply in the facts and circumstances of the present case. As such the further continuance of the case and the consequent proceedings including the charge-sheet filed therein calls for interference.”
Case Title: Ugro Capital Limited v. Raj Drug Agency
Citation: 2023 LiveLaw (Cal) 122
The Calcutta High Court has held that mere allegations of fraud inter-se the respondents would not make a dispute non-arbitrable.
The bench of Justice Shekhar B. Saraf held that merely because the respondents inter-se dispute the validity of the agreement containing arbitration clause and also their signature on it, it does not make the dispute non-arbitrable. It further held that mere possibility or existence of criminal proceedings arising out of the same facts would not put the dispute beyond the scope of arbitration.
Case Name; The Director of Technical Education & Training Govt. of W.B. v Madan Mohan Sarkar & Ors.
Citation: 2023 LiveLaw (Cal) 123
A division bench of the Calcutta High Court comprising of Justice I.P. Mukerji and Justice Biswaroop Chowdhury while deciding a Writ Appeal in the case of The Director of Technical Education & Training Govt. of W.B. v Madan Mohan Sarkar & Ors. has held that non-teaching employees of the hostel/ mess of Malda Polytechnic should be treated as the permanent employees of the college and should be granted allowances including service benefits.
Case Title: Sri Sanjib Chakraborty v. Sri Subir Ranjan Chakraborty & Anr.
Citation: 2023 LiveLaw (Cal) 124
The Calcutta High Court recently quashed a private complaint filed against a Police Officer for displaying the word 'POLICE' written on his personal vehicle
The single judge bench of Justice Bibek Chaudhuri said the court does not find violation of any penal provision under the IPC "only for displaying the word 'POLICE' on the front and rear screen of the personal vehicle of the petitioner".
Justice Chaudhuri said the complaint filed by the opposite party is totally based on apprehension, if not surmise and conjecture.
Case Title: State of West Bengal v. Rajpath Contractors and Engineers Limited, AP 737 of 2022
Citation: 2023 LiveLaw (Cal) 125
The High Court of Calcutta has invoked its powers under Article 133(1)(a) r/w Article 134A of the Constitution to allow the aggrieved party to directly appeal against its judgment to the Supreme Court on the ground that the case involves a substantial question of law of general importance.
The bench of Justice Shekhar B. Saraf was dealing with a peculiar situation wherein the application filed under Section 34 of the A&C Act was rendered barred in law for the reason that the entire 30 days grace period provided under proviso to Section 34(3) coincided with the Court holidays.
Calcutta High Court Acquits Man In Rape Case, Says Physical Relationship Was Consensual
Case Title: Farmuj Ali @ Farmiz Ali v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 126
The Calcutta High Court set aside the conviction under Section 376 of IPC of a rape accused, on the ground that physical relationship between the appellant and the victim was consensual and the age of the victim was not conclusively established by the prosecution before the Trial Court.
While setting aside the conviction of the appellant-accused, the division bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi observed:
“Evidence of P.W.1, the victim, establishes a relationship between her and the appellant. It is plausible to take a view that the physical relationship which developed between the appellant and the victim, was consensual in nature. Age of the victim was not conclusively established. We are not in a position to conclusively say that the appellant entered into a physical relationship with a minor.”
Calcutta High Court Orders State To Pay Rs 7 Lakh Compensation To Trafficking And Rape Victim
Case Title: X v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 127
The Calcutta High Court recently directed the West Bengal government to pay a compensation of Rs. 7 Lakh to a minor victim of trafficking and rape.
The single judge bench of Justice Moushumi Bhattacharya observed that the victim cannot be asked to wait until the funds are sanctioned by the State Government and reach the Judicial Department.
Case Title: Gobinda Bag (Buro) v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 128
The Calcutta High Court has set aside the conviction of an accused in a case under POCSO Act on the ground that the prosecution failed to prove the 'sexual intent' being involved in the act of the accused as referred under Section 11 of the Act.
The single judge bench of Justice Tirthankar Ghosh observed:
“In cases under the POCSO Act and related offences the statement of the victim assumes importance. Considering the evidence of the victim which lays the foundational facts of this case, I am unable to satisfy myself as to whether any case is made out from the touch or physical contact which would attract the basis of “sexual intent” as is referred to in the explanation to Section 11 of the POCSO Act and also elaborated by the judgment of [Attorney General for India –Vs. – Satish & Anr]”.
Case title - Paschim Banga Khet Mazdoor Samity & Anr. vs. The State of West Bengal & Ors.
Case Citation: 2023 LiveLaw (Cal) 129
The Calcutta High Court allowed MGNREGA workers to hold a sit-in demonstration for twelve days at Sahid Minar Grounds in Kolkata over non-payment of their wages and non-commissioning of their work.
The bench of Justice Rajasekhar Mantha ordered thus while dealing with a writ petition filed by Paschim Banga Khet Mazdoor Samity & Another who were earlier denied permission to hold the protests by the local administration.
Case Title: Girish Lahoti & Anr. v. Firdous Alam
Citation: 2023 LiveLaw (Cal) 130
The Calcutta High Court quashed the criminal proceedings under Sections 484, 406 and 34 of IPC against a businessman who had allegedly refused to pay a portion of the price of goods purchased by him, on the ground that the accused did not have any fraudulent or dishonest intention right from the beginning of the transaction.
The single judge bench of Justice Ajoy Kumar Mukherjee observed:
“Someone's inability to pay a portion of the price of goods purchased by him cannot give rise to a criminal prosecution or criminal breach of trust or cheating unless fraudulent and dishonest intention is shown right from the beginning of the transaction, as mens rea is the crux of the offence.”
Case title - Chitra Mukherjee vs. Union of India & Ors.
Case citation: 2023 LiveLaw (Cal) 131
The Calcutta High Court has observed that a death caused by a mosquito bite wouldn't count as an “accident” and hence, the same wouldn't be covered as an insurable claim under the 'Accident' insurance.
Observing that any disease caused by a mosquito bite can not be termed an accident, the bench of Justice Moushumi Bhattacharya upheld the decision of an Insurance Company which denied its liability on account of the cause of death of the petitioner's son who died of Dengue.
Case Title: Nilkamal Sarkar v. State of West Bengal & Ors. and other related petitions
Citation: 2023 LiveLaw (Cal) 132
The Calcutta High Court transferred the investigation of a case, related to the incident of firing and bombing at Darivit High School in the Islampur block of Uttar Dinajpur district, to the National Investigation Agency (NIA).
The single judge bench of Justice Rajasekhar Mantha observed:
“Given the fact that the police mentioned in the chargesheet about the mobs attacking with bombs during the agitation, the first and foremost action from their end would have been to inform the Central Government, Ministry of Home Affairs about the same, so that the matter could be considered or be sent to the National Investigation Agency (NIA).”
Case Title: In re: Piyali Mandal Majumder @ Madhumita Mandal v. State & Anr.
Citation: 2023 LiveLaw (Cal) 133
The Calcutta High Court at Jalpaiguri circuit bench has discharged a widow in an FIR under Sections 498A, 494 and 506 of IPC accusing her of marrying the husband of the complainant, on the ground that materials on record including complaint prima facie revealed that the allegations were levelled against the against the principal accused i.e. the husband of the complainant.
The single judge bench of Justice Ajoy Kumar Mukherjee observed:
“Here the materials on record including complaint prima facie reveales that allegations were leveled against principal accused, i.e., husband of defacto complainant and as such the court below ought to have held that the criminal prosecution against the present petitioner under the aforesaid section is not sustainable.”
Case Title: State of West Bengal v. Soumen Nandy & Ors.
Citation: 2023 LiveLaw (Cal) 134
The Calcutta High Court has dismissed the review petition filed by the West Bengal government against its order transferring the probe in West Bengal Municipality Recruitment Scam to CBI.
The single judge bench of Justice Amrita Sinha observed:
“It does not appear that the department of Urban Development and Municipal Affairs has suffered or may suffer any prejudice by the order sought to be reviewed. On the contrary, the Court is of the opinion that, the State including its departments, ought to cooperate with the investigating agencies and ensure that the investigation that is continuing reaches a logical conclusion at the earliest, so that the offenders can be booked and appropriately dealt with in accordance with law.
Case Title: Priyanka Naskar & Ors. v. The Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 135
The Calcutta High Court cancelled the appointment of 36,000 "untrained" primary school teachers who were recruited by the West Bengal Board of Primary Education in 2016.
The single judge bench of Justice Abhijit Gangopadhyay observed:
“From the gross illegality in the selection procedure in the recruitment exercise of 2016 conducted by the Board it is clear that the Board and its officials including its former President (who is now in custody after arrest by Enforcement Directorate for transaction of huge money in the recruitment procedure) conducted the whole affair like affair of a local club and now it is gradually coming to light by investigation of Enforcement Directorate that jobs for primary school teachers were actually sold to some candidates who had the money to purchase the employment. A corruption of this magnitude was never known in the State of West Bengal."
Case Title: Dipak Kumar Giri v. Union of India & Ors
Citation: 2023 LiveLaw (Cal) 136
The Calcutta High Court recently directed the Union Government to transfer the pension entitlements of a deceased Freedom Fighter, which was due to him and was credited under the Swatantra Sainik Samman (SSS) Pension Scheme but was later returned to the Union Home Ministry as he had failed to submit the Life Certificate (LC), to his only son.
The single judge bench of Justice Moushumi Bhattacharya observed:
“The return of the pension was sought to be justified by the respondents on an incorrect premise and on the presumption of a retrospective application of a Revised Policy Guidelines. Thus, the reason to deny the petitioner his right to the amounts as the sole surviving heir of his freedom fighter father is baseless.”
Case Title: Godrej & Boyce Mfg. Co. Ltd vs Shapoorji Pallonji and Company Pvt Ltd
Citation: 2023 LiveLaw (Cal) 137
The Calcutta High Court has ruled that a single composite invocation of arbitration under Section 21 of the Arbitration and Conciliation Act, 1996 (A&C Act), pertaining to a consolidated claim arising out of three different Purchase Orders, containing separate arbitration clauses, cannot be labelled as invalid or unlawful.
The court made the observation while noting that all the Purchase Orders, though issued at different times, were a sub-set of the respondent's performance of a single Main Contract. Further, the relevant clauses of the Purchase Order established a link between the liabilities arising out of the Purchase Orders and the Main Contract, and contained identically worded arbitration clauses.
Case title - Soumen Nandy Vs. The State of West Bengal & Ors
Citation: 2023 LiveLaw (Cal) 138
The Calcutta High Court DISMISSED TMC leader and MP Abhishek Banerjee's plea to recall HC's order permitting CBI and ED to interrogate him in connection with the Teacher Recruitment Scam case. Court also imposed a fine of Rs. 25 Lakh on him.
With this, the court also dismissed a plea moved by Kuntal Ghosh, an accused in the scam who has already been arrested, who had complained that ED officers had been torturing and pressuring him to implicate Banerjee in the scam. He has also been fined Rs. 25 Lakh.
Case title - Soumen Nandy Vs. The State of West Bengal & Ors
Citation: 2023 LiveLaw (Cal) 139
In a strongly worded order, the Calcutta High Court said that TMC leader and MP Abhishek Banerjee is trying tooth and nail to oppose an investigation in the West Bengal School Job Scam case, despite the fact that being in the top rung of the ruling political party, he ought not to shy away from the investigation process.
The bench of Justice Amrita Sinha observed that the proper approach for him should be to put himself to the test and come out clean instead of avoiding or running away from the entire process. The State machinery, especially the police, also appears to back the accused, the Court added.
Case Title: State of West Bengal & Ors. v. The National Commission for Scheduled Castes & Ors.
Citation: 2023 LiveLaw (Cal) 140
The Calcutta High Court directed the National Commission for Scheduled Castes (Commission) to recall and withdraw the recommendations by which it directed the Department of Health and Family Welfare, Government of West Bengal to reinstate an ex-employee who was dismissed from service, on the ground that the Commission has acted beyond its jurisdiction.
Case Title: East India Minerals Limited v. The Orissa Mineral Development Company Limited
Citation: 2023 LiveLaw (Cal) 141
The Calcutta High Court has held that once the arbitral proceedings have been commenced pursuant to reference under Section 21 of the Act, any delay in the conclusion/resumption of the such proceedings would not wipe out the arbitral reference.
The bench of Justice Shekhar B. Saraf held that arbitral proceedings cannot be rendered inoperative for the reason that there was some delay in the conclusion of the proceedings or that the proceedings were stalled and its resumption took a long time.
Case Title: Rupen Dhar & Ors. v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 142
The Calcutta High Court recently quashed the criminal proceedings under Section 498A of IPC initiated by a woman against her husband and his relatives alleging that she was subjected to physical and mental torture and was driven out from the matrimonial home, on the ground that an earlier proceeding initiated by her on the basis of almost same allegations against the same accused persons had ended in acquittal and no appeal was preferred by her.
Case Title: Suvendu Adhikari v. State of W.B
Citation: 2023 LiveLaw (Cal) 143
Observing that the “initial cognizance and the order of issuance of process is bad” in the matter, the Calcutta High Court has quashed a defamation case filed by a Public Prosecutor against BJP leader Suvendu Adhikari.
The bench of Justice Bibek Chaudhuri said,
“Without going into the merit of the case this Court fails to understand as to how the learned Chief Judge took cognizance of the offence in view of the decision of the Supreme Court in Ashwani Kumar Upadhyay's case to the effect that a criminal case shall have to be instituted and tried before the competent Court of the learned Magistrate.”'
Case Title: Shyam Steel Industries Ltd. & Anr. v. Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 144
The Calcutta High Court recently refused to stay summons issued to two senior officials including a Director of Shyam Steel Industries Ltd. by the Director General of Competition Commission of India (CCI) with regard to the investigation being conducted into the alleged cartelization by steel manufacturers.
The single judge bench of Justice Moushumi Bhattacharya observed:
“It follows from the above that section 26(1) does not involve any adjudicatory processes and would also not cause any particular prejudice to the petitioners at the stage of investigation. In the absence of any adjudication, the petitioners would not be visited with civil consequences or any imminent threat of irreversible prejudice. The petitioners will have every opportunity to challenge the investigation process or the decision arising therefrom at a later stage.”
Case Title: Prabha Surana v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 145
While observing that human liberty is most valuable to every civilised human being, the Calcutta High Court recently reaffirmed its order granting bail to an accused. An earlier order granting bail to her was set aside by the Supreme Court and the matter was remanded back to the High Court for reconsideration.
The division bench of Justice I. P. Mukerji and Justice Biswaroop Chowdhury observed:
“Human liberty is most valuable to every civilized human being. Liberty includes the right and opportunity to free movement without unreasonable restrictions, the freedom to talk, to be talked to, to write, to be written to, to express views, be influenced by expression of views, to work, eat, rest, play, recreate and do activities becoming of a civilized human being, without interference from anybody or unreasonable interference from any state authority.”
Case Title: Jamir Hossain v. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 146
The Calcutta High Court recently quashed proceedings under Sections 419, 420, 467, 471 and 478 of IPC against a truck driver who allegedly affixed the 'On Duty PDS Food and Supply Department, Government of West Bengal' board on the front portion of the his vehicle to pass through a no entry zone area, on the ground that the allegations against him do not fall within definitions of the offences.
The single judge bench of Justice Ananya Bandyopadhyay observed that there should be certain mechanism on the part of the traffic police to restrict the vehicles from plying through the 'no entry zone' area with such stickers.
Case Title: Sri Protip Roy Basunia v. The State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 147
The Calcutta High Court has quashed criminal proceedings against a school teacher who was accused in a case alleging spreading of communal hatred and violence through comments made on Facebook.
The court ruled that being tagged in comments on social media by any other person necessarily "does not confer any liability or responsibility" on the person being tagged.
