7 Sep 2023 7:18 AM GMT
Citations: 2023 LiveLaw (Cal) 203 To 2023 LiveLaw (Cal) 255 NOMINAL INDEXNigrani Sansthan Vs State Of West Bengal And Ors. 2023 LiveLaw (Cal) 203The West Bengal Small Industries Development Corporation Limited WBSIDC Vs. Kaushalya Infrastructure Development Corporation Limited KIDCO 2023 LiveLaw (Cal) 204Sulekha Chatterjee & Anr. Union Of India & Ors 2023 LiveLaw (Cal) 205Susanta Ghosh...
Citations: 2023 LiveLaw (Cal) 203 To 2023 LiveLaw (Cal) 255
Nigrani Sansthan Vs State Of West Bengal And Ors. 2023 LiveLaw (Cal) 203
The West Bengal Small Industries Development Corporation Limited WBSIDC Vs. Kaushalya Infrastructure Development Corporation Limited KIDCO 2023 LiveLaw (Cal) 204
Sulekha Chatterjee & Anr. Union Of India & Ors 2023 LiveLaw (Cal) 205
Susanta Ghosh v The State of West Bengal and others 2023 LiveLaw (Cal) 206
Sushil Kr. Gupta v The State of West Bengal & connected applications 2023 LiveLaw (Cal) 207
Goodricke Group Limited & Ors. v The State of West Bengal & Ors. 2023 LiveLaw (Cal) 208
The Board of Major Port Authority for the Shyama Prasad Mookerjee Port, Kolkata. v Marine Craft Engineers Private Limited. 2023 LiveLaw (Cal) 209
Mithu Dash @ Bhuiya v State of West Bengal & Anr. 2023 LiveLaw (Cal) 210
M/s. Odisha Slurry Pipeline Infrastructure Ltd. & Anr. v Rakesh Sharma & Ors. 2023 LiveLaw (Cal) 211
Goalbadan Mandal v State of West Bengal & ors. 2023 LiveLaw (Cal) 212
Raja Paul & Ors. v State of West Bengal & Anr. 2023 LiveLaw (Cal) 213
Hira Bittar v The State of West Bengal 2023 LiveLaw (Cal) 214
Senjuti Chakrabarti Vs Learned Registrar General High Court At Calcutta And Ors 2023 LiveLaw (Cal) 215
Union Of India And Anr. v Rashmi Metaliks Limited 2023 LiveLaw (Cal) 216
Bithika Sil v. Kartick Paik & Ors. 2023 LiveLaw (Cal) 217
Swapan Manna v The State of West Bengal & ors. 2023 LiveLaw (Cal) 218
Pooja Mehta & Ors. vs. The State of West Bengal & Anr. 2023 LiveLaw (Cal) 219
Sri Shubhendu Kumar Goswami & Ors. Versus The State Of West Bengal & Ors. 2023 LiveLaw (Cal) 220
Mritunjoy Poria & Ors. Versus The State of West Bengal & Ors. 2023 LiveLaw (Cal) 221
Kobelco Construction Equipment India Private Limited vs. Lara Mining & Anr. 2023 LiveLaw (Cal) 222
M/S. Gammon Engineers And Contractors Pvt. Ltd. V The State Of West Bengal 2023 LiveLaw (Cal) 223
Prapti Chakraborty v State of West Bengal & Ors. 2023 LiveLaw (Cal) 224
Dr. Sujoy Biswas Vs. State of West Bengal & Anr 2023 LiveLaw (Cal) 225
Debarati Banerjee v The State of West Bengal & Anr. 2023 LiveLaw (Cal) 226
Sk. Reajul Hoque @ Sk. Riajul Vs The State of West Bengal 2023 LiveLaw (Cal) 227
HDFC Bank Limited & Anr. V The State Of West Bengal & Anr. 2023 LiveLaw (Cal) 228
Surojit Dasgupta Vs State Of West Bengal And Ors 2023 LiveLaw (Cal) 229
Dwaipayan Das Vs. State of West Bengal & Anr. & connected application. 2023 LiveLaw (Cal) 230
Sri X v State of West Bengal & ors 2023 LiveLaw (Cal) 231
Sanjoy Mondal Vs. The State of West Bengal 2023 LiveLaw (Cal) 232
Bishal Das & Ors. Vs. The State of West Bengal & Ors 2023 LiveLaw (Cal) 233
Subhas Chandra Patra Vs. The State of West Bengal & Ors. 2023 LiveLaw (Cal) 234
Rajib Samanta v The State of West Bengal & Ors. 2023 LiveLaw (Cal) 235
Manab Jati Kalyan Foundation and another Vs. The State of West Bengal and others 2023 LiveLaw (Cal) 236
Pritimoy Chakraborty Vs. Union of India & Ors. 2023 LiveLaw (Cal) 237
Nirmal Kumar Das @ Nirmal Das v The Kolkata Municipal Corporation & Ors. 2023 LiveLaw (Cal) 238
Uphealth Holdings Inc. v Glocal Healthcare Systems Pvt. Ltd. & Ors. 2023 LiveLaw (Cal) 239
Case: Rakesh Sha vs The State of West Bengal 2023 LiveLaw (Cal) 240
Avinaba Dutta & Another v State of West Bengal & Ors. 2023 LiveLaw (Cal) 241
Satyendranath Halder And Ors Vs State Of West Bengal And Ors. 2023 LiveLaw (Cal) 242
Suvendu Adhikari v State of West Bengal 2023 LiveLaw (Cal) 243
Apurba Biswas & Ors. v. The State of West Bengal & Ors 2023 LiveLaw (Cal) 244
Sri Ravi Kumar v Union of India & Others 2023 LiveLaw (Cal) 245
Payel Paul Adhikary v Union Of India And Ors 2023 LiveLaw (Cal) 246
Debabrata Chakraborti @ Debabrata Chakraborty Vs State Of West Bengal And Ors. 2023 LiveLaw (Cal) 247
Suvendu Adhikari v State of West Bengal & ors 2023 LiveLaw (Cal) 248
Abdul Rakib v The State of West Bengal 2023 LiveLaw (Cal) 249
Ashadullah Biswas @ Asadulla Biswas v The Union of India & Anr. 2023 LiveLaw (Cal) 250
Shri Jagannath Goswami & Ors. Vs The State Of West Bengal & Anr 2023 LiveLaw (Cal) 251
Park Hospitals and another Vs. The West Bengal Clinical Establishment Regulatory Commission and another 2023 LiveLaw (Cal) 252
Thaddeus Lakra And Others Vs. State Of West Bengal And Ors. 2023 LiveLaw (Cal) 253
X v State of West Bengal 2023 LiveLaw (Cal) 254
Ranjan Das v The State of West Bengal & Anr. 2023 LiveLaw (Cal) 255
Calcutta High Court Suggests State To Conduct Periodic Raids To Prevent Illegal Manufacture Of Packaged Drinking Water
Case: Nigrani Sansthan Vs State Of West Bengal And Ors.
Citation: 2023 LiveLaw (Cal) 203
The Calcutta High Court has suggested the State's Health and Family Welfare Department to conduct periodic raids in order to quell instances of illegal manufacture of packaged drinking water, without license.
Previously, the Court had sought a report regarding the measures taken by the State to ensure the safety of packaged drinking water. Upon perusing such report on Tuesday, a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya disposed of the writ petition observing:
[This] problem is not a one-day affair and requires vigilant monitoring over all packaged drinking water manufacturers. Court suggests that a database be created by relevant department of State where all certified manufacturers can be enlisted and a caution notice be issued that without licenses no unit can produce packed drinking water. Apart from continuous monitoring, public may also be sensitized through leaflets and boards during festivals, warning the public not to drink water which are packed and do not display requisite permissions. The court trusts that the monitoring system is strengthened and continuous monitoring be done so that the safety and health of general public can be maintained.”
Arbitration Act | Admitted Facts Don’t Breach ‘Twin-Benchmark’ Of Fraud Or Corruption: Calcutta High Court Declines Stay Of Award
Case: The West Bengal Small Industries Development Corporation Limited WBSIDC Vs. Kaushalya Infrastructure Development Corporation Limited KIDCO
Citation: 2023 LiveLaw (Cal) 204
The Calcutta High Court has recently dismissed a plea filed by petitioners West Bengal Small Industries Development Corporation Limited (“WBSIDC”) for unconditional stay of an arbitral award passed against it in 2019, on the grounds of fraud and corruption, under Section 36(3) of the Arbitration & Conciliation Act, 1996 (“Act”).
In holding that the facts of the case, along with the arguments made by the petitioners would not satisfy the twin threshold of fraud or corruption under Section 36(3), a single-bench of Justice Moushumi Bhattacharya held:
The complaint of the petitioner…by no means touches (or even brushes) the threshold of the award being liable to be unconditionally stayed on the ground of fraud or corruption (or more likely being dragged down to the depths) as envisaged under the second proviso to section 36(3) of the Act. Granting stay of an award without imposing conditions on the award-debtor is a departure from the scheme of the Act and must be established within the strict vocabulary used in the second proviso. Any act which falls short of a certain kind of conduct on the part of the arbitrator or of the proceedings will not amount to fraud or corruption. The failing must be brought within the sharpness and intensity of the parameters as decided in the case-law together with the causal nexus with the award. This Court is not satisfied, prima facie, as to the existence of facts which warrant unconditional stay of the operation of the Award.”
Post Office Guardian Of Nation's Savings: Calcutta HC Asks Postmaster-General To Settle Claim Of Martyr’s Wife Duped Of Deposit By ‘Authorised’ Agent
Case: Sulekha Chatterjee & Anr. Union Of India & Ors
Citation: 2023 LiveLaw (Cal) 205
The Calcutta High Court has directed the Chief Postmaster General to settle a claim of Rs 6, 99,500 along with interest, in favour of a martyr's wife who had invested the amount in her local Burnpur Post Office’s MIS and Fixed deposit scheme, which was subsequently misappropriated by an authorised agent.
A single-judge bench of Justice Shekhar B. Saraf held:
Based on the unfortunate events that led to this writ petition, this Court cannot help but conclude that the submissions made by the respondents are nothing but an attempt to shrug off their legal and ethical responsibility to compensate the petitioners for the loss suffered by them on account of the fraud perpetrated by Sri Routh, the authorised SAS agent, acting in nexus with the concerned officials of the post office. This Court, in the strongest possible terms, condemns the actions of Sri Routh, and other officials from the post office who were involved in the entire scheme of fraud in the instant case. This Court, also expresses its regret at the unnecessary and undue suffering caused to the petitioners for no fault of their own. Accordingly, this Court holds the respondents liable for the actions of Sri Routh, and the concerned officials of the Burnpur Post Office.
Authorities Deciding Valuable Constitutional Rights So Cryptic In Their Consideration': Calcutta HC Sets Aside BDO's Order Denying OBC Certificate
Case: Susanta Ghosh v The State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 206
The Calcutta High Court has, ex parte set aside an order of the Block Development Officer- Domjur (“BDO”), affirmed by the Sub-divisional Officer (“SDO”), which rejected the claim of the petitioner for an Other Backward Classes (“OBC”) certificate, without allowing him an opportunity for hearing or to produce relevant documents in support of his application.
In dismissing the BDO's enquiry report as “cryptic”, a single-bench of Justice Sabyasachi Bhattacharya emphasised on the sanctity of the petitioners Constitutional Rights, and directed the BDO to consider the petitioner's claim afresh on merits and pass a reasoned order within six weeks. It held:
“It is surprising that when the rights asserted by a person to fall under a Constitutional category is being considered, such a cryptic “enquiry report” is placed on record, which forms the very basis of rejection of such claim. It is unhappy that the said authorities, who decide valuable Constitutional rights of persons, are so cryptic in their consideration of such claims. Not a single document produced by the petitioner and annexed in the present writ petition was considered by the authorities, nor was any fruitful hearing given to the petitioner. No opportunity is found to have been given to the petitioner to produce his documents in support of his claim.”
Food Safety & Standard Act Doesn't "Impliedly Repeal" S.273 IPC, Police Officer Not Debarred From Investigating Adulteration: Calcutta High Court
Case: Sushil Kr. Gupta v The State of West Bengal & connected applications
Citation: 2023 LiveLaw (Cal) 207
The Calcutta High Court has refused to quash three separate criminal proceedings initiated under Sections 272/273 (Adulteration of food or drink intended for sale), 420 (Cheating) and 120B (Criminal Conspiracy) of IPC, against manufactures of allegedly spurious food items.
In refuting the petitioner’s argument that the provisions under the Food Safety and Standard Act 2006 (“FSSAI Act”) impliedly debar the police from being able to conduct their own investigation into instances of food adulteration under the IPC, a single bench of Justice Subhendu Samanta held:
“The police is not specifically debarred to conduct investigation over the offence mentioned in Section 272/273 of IPC. It is true the police not being Food Safety Officer under FSS Act 2006 are not empowered to investigate into the offences mentioned specially in FSS Act. But nothing can debar police to investigate an offence punishable under IPC. The argument of implied repeal of Section 272/273 IPC appears to me not satisfactory or justified. Considering the same I am of a clear view that though a separate, specific, distinct procedure has been laid down in FSS Act 2006 to initiate/launch a proceeding against the offender of Food Laws that does not ipso facto debar the police to initiate/register a case u/s 272 or 273 of IPC. Thus in my view the investigation conducted by the police according to the provisions of Cr.P.C for the offence punishable u/s 272/273 IPC is maintainable.”
Calcutta High Court Upholds Interim Hike In Minimum Wage For Tea-Plantation Workers, Directs State To Finalise Minimum Wage In 6 Months
Case: Goodricke Group Limited & Ors. v The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 208
The Calcutta High Court has dismissed a plea by owners/lessors of several tea plantations, for setting aside an advisory dated 27th April 2023, issued by the State Labour Commissioner hiking interim minimum wage for tea plantation workers to Rs 250/- per day w.e.f. 1st June 2023.
A single-bench of Justice Raja Basu Chowdhury also directed the State to finalise the minimum wage settlement for such workers within a period of six months, and said:
I find that the Labour Commissioner had from time to time enhanced the wages pending finalisation of the minimum wage settlement. Such arrangement, obviously, had to be worked out since, the workers could not be called upon to wait indefinitely for the settlement of Wages under the said Act. I find that it is the petitioners had, in fact, all along accepted the enhancement of wages of the daily rated workers working in the tea garden. Having regard to the conduct of the petitioners, and the peculiar facts of this case, considering the human problem involved, it is only reasonable to conclude that the approach that was adopted by the parties, was to consciously overcome the delay in finalisation of the minimum wage structure.
Without Pre-Deposit U/S 19 MSMED Act, Application U/S 34 Arbitration Act Remains 'Stillborn’ For Purpose Of Stay: Calcutta High Court
Case: The Board of Major Port Authority for the Shyama Prasad Mookerjee Port, Kolkata. v Marine Craft Engineers Private Limited.
Citation: 2023 LiveLaw (Cal) 209
The Calcutta High Court recently dismissed an application filed by the Board of Major Port Authority for the Shyama Prasad Mookerjee Port, Kolkata, for staying the operation of an arbitral award passed by the West Bengal State Micro Small Enterprises Facilitation Council (“MSME Council”).
In refuting the petitioners contention that filing an application u/s 34 of the Arbitration & Conciliation Act, 1996 (“1996 Act”) would be sufficient for the Court to deliberate on the question of stay, a single bench of Justice Moushumi Bhattacharya held, that in the absence of a pre-deposit of 75% of the award, in compliance with Section 19 of the MSMED Act, the application u/s 34 of the 1996 Act would remain “stillborn” for the purpose of stay of the award. It said:
The application under section 34 must be a valid application in terms of section 19 of the MSMED Act for the Court to consider stay of the arbitral award under section 36(2). Since the petitioner has admittedly not made the pre-deposit under section 19 of the MSMED Act, the section 34 application filed by the petitioner remains eclipsed in the eye of law as the foundation for a prayer for stay of the arbitral award under section 36(2) of the 1996 Act. Therefore, the present application for stay of the impugned award filed under section 36(2) of the 1996 Act cannot be entertained as the said application is foisted on a stillborn section 34 application. The petitioner must first comply with section 19 of the MSMED Act to breathe life into the application. AP 252 of 2023 is accordingly dismissed as not maintainable for the above reasons.
Woman Taking Regularly Worn Ornaments When Leaving Matrimonial Home After 29 Yrs Can’t Be Basis For Criminal Proceedings: Calcutta High Court
Case: Mithu Dash @ Bhuiya v State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 210
The Calcutta High Court recently quashed the criminal proceedings initiated against a woman by her husband, a practising advocate, for the alleged theft of certain gold ornaments and valuables from her matrimonial home.
A single-bench of Justice Shampa (Dutt) Paul opined that the items she was accused of stealing were “worn on a regular basis by traditional Bengali married women.” It said,
“From the materials on record, it appears that the petitioner allegedly left her matrimonial home after 29 years of marriage with:- i. One piece gold Bala (bangle) (marriage ornament), worn as a sign of a married woman. ii. One Loha covered with gold (marriage ornament), also worn as a sign of a married woman. iii. Two piece (one pair) (red) pola, covered with gold (marriage ornament), also worn as a sign of a married woman. iv. One pair Sankhabadhano churi covered with gold (marriage ornament). v. Two mobile phones. vi. One Gold chain (gents), she has taken her son with her. vii. One necklace. These ornaments/accessories as described, are worn on regular basis by a traditional Bengali married woman, who chooses to wear them. The phones which might be for her own use and the ornaments as described, cannot be the basis of a criminal case between a married couple, that too, after 29 years of marriage. These allegations, clearly do not make out any case as alleged under the Indian Penal Code against the petitioner and thus, this is a fit case where the inherent powers of this court should be exercised"
'Even Live-Streaming Being Abused': Calcutta High Court Regrets Misuse Of Provision For Recall, Imposes ₹5 Lakh Cost
Case: M/s. Odisha Slurry Pipeline Infrastructure Ltd. & Anr. v Rakesh Sharma & Ors.
Citation: 2023 LiveLaw (Cal) 211
The Calcutta High Court recently slammed the practise of the Bar invoking procedural formalities in order to take a “circuitous route" to reopen an issue which is already decided and having an order reviewed under the garb of recall.
"A desperate attempt is made to have the order reviewed in the garb of recall...Even a live streaming, which has started with the. avowed object is being misused and/or abused despite the disclaimer having been shown therein," a division-bench of Justice Harish Tandon and Justice Prasenjit Biswas regretted.
The Bench was in seisin of a recall application filed against an order passed on the 13th of March 2023, wherein the Court had refused to initiate contempt proceedings against the respondents at the behest of the applicants, M/s Odhisha Slurry Pipeline Infra Ltd. It was argued by the applicants that the respondents had played “serious fraud” on the Court, which led to the Court making specific findings regarding the ownership of the pipeline.
Pension: Calcutta High Court Says Employee Can't Be Penalised For Shortfall In Service Due To Delay By Authority In Making Appointment
Case: Goalbadan Mandal v State of West Bengal & ors.
Citation: 2023 LiveLaw (Cal) 212
The Calcutta High Court recently allowed a writ petition filed by an Assistant Teacher of a primary school, who challenged the order of the Principal Secretary to the Government of West Bengal School Education Department, denying him pensionary benefits. The petitioner had also sought condonation of “deficiency in the qualifying service period” for pension.
In allowing the petitioner’s prayer, single-bench of Justice Hiranmay Bhattacharya held that the ‘deficiency in service’ that had accrued to the detriment of the petitioner had been due to the delay caused by the State authorities in making his appointment. It ordered,
“The petitioner cannot be held responsible for the time taken by the authorities starting from taking decision to forward the name of the petitioner till the date of such appointment. The right of the petitioner to be appointed to the post of Primary School Teacher, however, got crystalised when a decision was taken to forward the name of the petitioner to the Director of School Education for approval. Such delay is solely attributable to the conduct of the respondent authorities and it ultimately led to the shortfall in the qualifying service period for pensionary benefit. The petitioner cannot be penalised for the delay caused by the respondent authorities in appointing the petitioner to the post in question. It is well settled that the petitioner should not be penalized for the lack of promptness in taking action by the concerned authorities.”
Raids By Eastern Coalfields Officials Not Illegal: Calcutta High Court Quashes FIRs Against Officials On Counts Of Theft, Outraging Modesty Of Woman
Case: Raja Paul & Ors. v State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 213
The Calcutta High Court recently quashed the criminal proceedings initiated against officials of the Eastern Coalfields, who had, in accordance with directions of the Court, undertaken a raid to crack down on the “terror and running of parallel administration of illegal [coal] mining within the Eastern Coalfield area in Burdwan.”
Eastern Coalfields Limited is a subsidiary of Coal India Limited and is a government company.
A single-bench of Justice Bibhas Ranjan De held:
Raid by the officials of Eastern Coalfield Ltd. by virtue of repeated directions of this Hon’ble Court cannot be said to be an illegal in any way. Therefore, the allegation made in the F.I.R in my opinion, is absurd and cannot be believable that security officers of Eastern Coalfield committed the offence of theft and outrage of modesty. After careful perusal of the all documents produced before this court, I have no hesitation to exercise jurisdiction under section 482 CrPC…in coming to the conclusion that proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice.
S.498A IPC | Mental Cruelty Is A State Of Mind, Cannot Have Uniform Standard In Matrimonial Cases: Calcutta High Court
Case: Hira Bittar v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 214
The Calcutta High Court recently allowed the appeal preferred by a husband against trial court order convicting him for alleged offences of mental and physical cruelty allegedly inflicted upon his spouse/ complainant.
A Single-bench of Justice Shampa (Dutt) Paul held:
Though this witness has stated that she was assaulted by the appellant and his family members and suffered bleeding injuries, there are no medical papers nor any injury report on record. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, and the environment in which they live. The conduct of the concerned party should be grave and substantial and it must be much more serious than the ordinary wear and tear of daily life. Mental cruelty is a state of mind - The feeling of deep anguish, disappointment, or frustration in one spouse caused by the conduct of the other over a long period of time may lead to mental cruelty. And such feeling and intensity are felt differently by each person. Some are stronger in mind than others. In the present case there is absolutely no evidence/proof on record of any physical cruelty.
“Absolutely Premature”: Calcutta High Court Dismisses PIL Seeking Strict Implementation Of PoSH Act Within The High Court
Case: Senjuti Chakrabarti Vs Learned Registrar General High Court At Calcutta And Ors
Citation: 2023 LiveLaw (Cal) 215
The Calcutta High Court on Monday dismissed a PIL filed by a practising advocate for the “strict implementation” of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”) within the Calcutta High Court.
Petitioner claimed that various RTIs filed by him revealed that the PoSH Act had not been complied with in its entirety.
In noting that such an issue could not be examined in a PIL, and highlighting the presence of a robustly functioning committee dealing with PoSH complaints arising at the Calcutta High Court, a division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya remarked:
A writ of mandamus can only be issued when there has been inaction by authorities, or a genuine representation is not acted on in accordance with law. The petitioner has not made any such representation and it appears that the writ petition is founded on replies obtained under the RTI Act. Therefore, we find that the writ petition is absolutely premature and cannot be entertained. However, it shall be open to the petitioner to make appropriate representation before the concerned forum.
‘Fraudulent’ Conduct Of Railways Has Shocked Our Conscience: Calcutta HC Unconditionally Stays Arbitral Award, Directs Probe By Union Govt
Case: Union Of India And Anr. v Rashmi Metaliks Limited
Citation: 2023 LiveLaw (Cal) 216
The Calcutta High Court today unconditionally stayed an award granted in favour of the South Eastern Railways (“SER”) under the Arbitration & Conciliation Act, 1996 (“Arbitration Act”) on grounds of fraud and corruption perpetrated by collusion between the parties in obtaining the impugned award.
In expressing his dismay and directing an investigation into the matter by a high-level committee of the Ministry of Finance, Government of India, a single-bench of Justice Shekhar B Saraf held:
The Court cannot overlook fraud being perpetuated in the making of the award by way of collusion between the parties. Furthermore, I hereby also direct the Ministry of Finance, Union of India to immediately constitute a multi-member high-level enquiry committee headed by a Secretary to the Government of India level rank officer to holistically inquire into the shocking conduct of the Railways and its officials (both serving and retired) and the other stakeholders in the aforementioned matter. The Committee shall be at liberty to take assistance of central investigation agencies as it may deem fit. The Committee is further requested to complete the enquiry and submit a report before this Court within three months from the date of this order.
[Grievous Hurt] Calcutta High Court Criticises Trial Court For Relying Solely On Party's Submissions, Not Calling For Injury Report
Case: Bithika Sil v. Kartick Paik & Ors.
Citation: 2023 LiveLaw (Cal) 217
The Calcutta High Court recently took exception to a Sessions Court order solely relying on prosecutor's failure to raise objections to grant of bail to accused in a case of grievous hurt and rejecting the complainant's plea for cancellation of bail, without calling for an injury report.
A single bench of Justice Shampa (Dutt) Paul held:
It is unfortunate that considering the nature of offences alleged, the Court relied upon the submission of the APP, without calling for the injury report. It is the duty of the Court to ensure justice and not rely totally on the submission of either party. Though at that stage there has been prima facie abuse of the process of law/Court before the Trial Court as discussed, but considering the present circumstances, this Court is not inclined to grant the relief prayed for at this stage in the interest of justice.
Calcutta High Court Allows BJP Functionary To Hold Rally On World Tribal Day, Issues Directions To Avoid Clash With TMC Rally
Case: Swapan Manna v The State of West Bengal & ors.
Citation: 2023 LiveLaw (Cal) 218
The Calcutta High Court has allowed a plea filed by a functionary of the Bharatiya Janata Party (“BJP”) seeking permission to hold a rally and meeting on the 9th of August (today) at the Pingbone Nabkung Ground (Math) in Paschim Medinipur, on the occasion of World Tribal Day.
It also issued directions to avoid any clashes with another rally to be held on behalf of Trinamool Congress (“TMC”) in the nearby area.
A single-bench of Justice Jay Sengupta ordered:
Let the petitioner hold his meeting at the venue that was selected for it from 9 a.m. to 1.30 a.m. at the Pingboni Nabakung Ground. The said area shall be carefully manned by police personnel from the local police station who shall ensure that no breach of peace takes place. The petitioner shall abide by the conditions for hold such meeting. They shall name three persons responsible for compliance of all terms and conditions to hold the meeting. The meeting shall not cause any obstruction to the public at large. The sound volume stipulations should also be scrupulously maintained. After the meeting is over, the venue of the meeting shall be cleaned up by the petitioner’s men and agents. The police authorities shall make necessary arrangements to ensure that no breach of peace takes place.
Dhulagarh Riots Coverage| Calcutta HC Quashes Case Against Journalists Sudhir Chaudhary, Pooja Mehta For Allegedly 'Promoting Enmity'
Case: Pooja Mehta & Ors. vs. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 219
The Calcutta High Court last week QUASHED a case against Former Zee News Editor (presently Consulting Editor, Aaj Tak) Sudhir Chaudhary, Zee News Journalist Pooja Mehta and cameraperson Tanmay Mukherjee under Section 153A IPC for allegedly 'promoting enmity' during their coverage on 2016 Dhulagarh Riots.
The bench of Justice Bibhas Ranjan De observed that the prosecution could not produce any material before the Court which would attract any offence under Section 153A of the IPC and hence, further proceeding with the case would result in an "abuse of process of court" and "will not serve the ends of justice.”
Blame-Game Between Govt Authorities Highly Deprecated’: Calcutta HC Directs Accountant-General To Refund Amount Deposited By Litigant In 2004
Case: Sri Shubhendu Kumar Goswami & Ors. Versus The State Of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 220
The Calcutta High Court today directed the West Bengal's Accountant General to refund an amount of Rs 66,000 to a litigant who was made to deposit the said amount in relation to a civil proceeding back in 2004.
In rebuking the “procrastination on behalf of the authorities” in refunding the petitioners deposit even after the case had been settled out-of-court in 2008, a single-bench of Justice Shekhar B. Saraf held:
The facts before me present a rather unfortunate scenario wherein the petitioners have had to vie with pain for the refund of the deposit they made in court. As per my order dated July 11, 2023, another report was filed by the District Judge, Paschim Medinipur on July 26, 2023, which further surfaces the rather sorry state of affairs that have unravelled. There appears to be no contestation to the fact that the petitioners deposited the said amount, nor to their right to get a refund of the same.
The procrastination on behalf of the authorities is clearly without any logical reasoning and simpliciter a lackadaisical attitude on the part of the authorities.
Panchayat Elections: Calcutta High Court Provides Police Protection To Victorious BJP Candidates For Panchayat Board Formation
Case: Mritunjoy Poria & Ors. Versus The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 221
Ahead of the formation of ‘panchayat boards’ pursuant to the declaration of results in the West Bengal Panchayat Elections 2023, the Calcutta High Court has issued a spathe of directions for police protection to the winning candidates during the process to be held on the 11th August.
One such petition was filed by victorious candidates belonging to the Bharatiya Janata Party (BJP), from the district of Paschim Mednipur apprehending violence by “miscreants belonging to the ruling dispensation.”
In allowing the prayer for police protection as sought in the writ petition, a single-bench of Justice Jay Sengupta held:
“It appears that on the basis of the petitioners’ complaint some steps have been taken. The petitioners are the winning candidates of Bandipur – I Gram Panchayet. The board formation process would take place at the Bandipur – I Gram Panchayet office on August 11, 2023 at 11.00 A.M. It further appears that the petitioners apprehend that the local miscreants may not allow the petitioner to participate in the said meeting. In view of the above and in the interest of justice, let the petitioners report to the Officer-in-Charge, Chandrakona Police Station on August 11, 2023 at 09.00 A.M. so that the Officer-in-Charge can make adequate police arrangement to escort them to the venue for participating in the process of board formation. With the above observations and directions, this writ petition being WPA No. 19216 of 2023 is disposed of.”
Arbitration Clause Cannot Be Incorporated By Reference, Without Clear Intention Of Parties: Calcutta High Court
Case: Kobelco Construction Equipment India Private Limited vs. Lara Mining & Anr.
Citation: 2023 LiveLaw (Cal) 222
The Calcutta High Court has recently dismissed applications for interim relief filed by Kobelco Construction Equipment India Private Limited under Section 9 of the Arbitration and Conciliation Act, 1996 (“Act”).
In dismissing the prayer for an interim injunction on the respondents, and holding that the petitioners could not be allowed to incorporate an arbitration clause by-reference from the ‘Master’ agreement to the ‘Settlement’ agreement in the absence of unambiguous intention of both parties, a single-bench of Justice Moushumi Bhattacharya opined:
The present case involves two arbitration clauses and the Court is being asked to hold that the arbitration clause of the first Agreement should be treated as being incorporated into the second Agreement by reference…there is no special reference indicating a mutual intention on the part of the petitioner, SREI and the respondent no. 1 to incorporate the arbitration clause from the Master Facility Agreement to the Settlement Agreement. A general reference to the Master Facility Agreement is not sufficient to incorporate the arbitration clause.
Application For Removal Of Arbitrator Must Be Made Before Same ‘Court’ As Envisaged In s.2 (i) (e) & s.42 Of Arbitration Act: Calcutta High Court
Case: M/S. Gammon Engineers And Contractors Pvt. Ltd. V The State Of West Bengal
Citation: 2023 LiveLaw (Cal) 223
The Calcutta High Court recently dismissed an application filed by M/S Gammon Engineers and Contractors Private Limited (“petitioners”) u/s 11(6), 14 and 15 of the Arbitration and Conciliation Act, 1996 (‘Act’), for removal of arbitrator while challenging their unilateral appointment.
In dismissing the application, a single-bench of Justice Shekhar B Saraf held that a challenge for withdrawal/removal of arbitrator would not be maintainable before the High Court, since an earlier Section 9 application for interim relief had been filed before the Jalpaiguri District court.
The understanding of ‘court’ under Section 42 is indisputably in terms of Section 2(1)(e) of the Act. The application under Section 9 is also made to a ‘court’ as understood under Section 2(1)(e) of the Act. Once such an application to a ‘court’ as understood under Section 2(1)(e) of the Act is made, all further applications under Part I to a ‘court’ must be to the ‘court’ to which the prior application has been made. This is the mandate of Section 42 of the Act. Therefore, the bar under Section 42 would lie and all applications to be made to a ‘court’ must be made to the District Judge at Jalpaiguri. In light of the above, A.P. 785 of 2022 is disposed of for not being maintainable before the High Court at this stage,” it held.
Teachers Can Claim Transfer On Fulfilment Of Criterion Under Service Conditions, Authority Must Take Steps To Fill Resultant Vacancy: Calcutta HC
Case: Prapti Chakraborty v State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 224
The Calcutta High Court has recently allowed an appeal, challenging the order of a single-bench dismissing the writ petition filed by a high-school teacher against refusal of her transfer application by the head of institution.
In directing the Commissioner of School Education to consider the petitioners transfer application in accordance with prevalent norms and students’ interest, a division-bench of Justice Soumen Sen and Justice Uday Kumar held:
We are not unmindful of the fact that in view of the Right of Children to Free and Compulsory Education Act, 2009 it is the obligation of the State to implement the provisions of the said Act. We cannot also lose sight of the fact that there is a need for rationalization of policy of transfers of the teachers. The service conditions gives right to claim transfer on fulfilment of certain conditions. An application for transfer has to be considered on the basis of existing and/or prevailing rules. We do not find any material to reject the said application of the petitioner by the Head of Institution and no sufficient material is produced before us to justify the said stand.
Calcutta High Court Refuses To Quash Case Against ‘Doctor’ Accused Of Criminal Intimidation By 85 Yrs Old Advocate
Case: Dr. Sujoy Biswas Vs. State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 225
The Calcutta High Court has refused to quash criminal proceedings against a ‘doctor’ accused of wrongful restraint and criminal intimidation by an octogenarian Advocate, residing in the same co-operative society as him.
In directing the case to proceed towards trial due to a prima facie case being made out, a single-bench of Justice Shampa (Dutt) Paul held:
The complainant is a 85 years old resident of the same co-operative society. The medical papers in respect of the opposite party/complainant in the case diary include an injury report dated 10.08.2019, which shows that on examination, the doctor found pain and swelling over the left cheekbone. It has been noted by the learned Mediator that the petitioner has failed to appear for mediation on two occasions, in spite of being duly served. The offences alleged are all compoundable. The mediation could not be taken up because of the absence of the petitioner in this case on two dates. The medical papers in this case diary and other materials show that there is prima facie materials in the present case against the petitioner to proceed towards trial. The revisional application being CRR 2365 of 2022 is accordingly dismissed.
Employee’s Transfer Based On Organisation’s Policy Does Not Amount To Criminal Intimidation/ Conspiracy Under IPC: Calcutta High Court
Case: Debarati Banerjee v The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 226
The Calcutta High Court has quashed criminal proceedings initiated against the Human Resources Manager of IDBI Bank (“petitioner”), by an employee/opposite party No 2, against whom a female co-worker had earlier filed a complaint for sexual harassment at the workplace.
In holding that the petitioner could not be considered guilty of the offences of criminal intimidation or criminal conspiracy in the matter of the opposite party’s transfer, a single-bench of Justice Ajoy Kumar Mukherjee opined:
The petitioner herein according to complaint has only communicated the previous complaint to his higher authority. Transfer is an usual incident concerning service and does not generally require the consent of the employee. Under the Bank’s transfer policy an officer is liable to be transferred in different station and he cannot claim to remain in a particular place unless his appointment itself is to be specified non-transferable post. Ingredients of offence of criminal conspiracy suggests an agreement to commit an offence. There is nothing in the allegation that the present petitioner /accused no.2 has made any agreement with other accused persons to commit any offence. In fact in the present case there is absolutely nothing to establish that there was any agreement with the petitioner herein to commit any illegal act or any legal act by illegal means. If the bank authority decided to transfer any of its employee from one place of posting to another branch, may be in a distant state, which is permissible under the transfer policy, that must not constitute any offence punishable under section 506 of I.P.C, since it does not amount to threat to cause any “injury” to the complainant’s reputation or property.
Calcutta High Court Refuses To Quash FIR Against Teacher Booked For Creating 'Communal & Administrative Disturbance' Around School
Case: Sk. Reajul Hoque @ Sk. Riajul Vs The State of West Bengal
Citation: 2023 LiveLaw (Cal) 227
The Calcutta High Court has refused to quash criminal proceedings against a teacher of the Tehatta Balika Prathamik Vidyalaya, under various sections of the IPC for offences including unlawful assembly, rioting, causing injury to a public servant, etc. during ‘unauthorised’ celebrations by the school’s Muslim students on the occasion of ‘Nabi Diwas’.
In directing the case registered against the petitioner to proceed towards trial, a single-bench of Justice Shampa (Dutt) Paul held:
The alleged time of occurrence as shown in the formal FIR is between 6 hrs to 16:30 hrs. The petitioner has shown by documents that on 28.01.2017 he was not present from 10.30 am onwards till 7 pm but no explanation is there for the period from 6.00 hrs (am) to 10.30 am. Case diary contains injury report in respect of the Police personnel, who sustained injuries in due course of carrying out their official duty to maintain law and order. Considering the nature of the offences alleged and materials on record, there appears a prima facie case against the petitioner to proceed toward trial.
Car Loan | Bank Repossessing Vehicle Due To Borrower’s Default Does Not Tantamount To Robbery: Calcutta High Court
Case: HDFC Bank Limited & Anr. V The State Of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 228
The Calcutta High Court has quashed criminal proceedings against employees of HDFC Bank Limited, initiated by one Sunil Kumar Sharma/opposite party no 2, who had availed a car loan from the aforesaid bank, to be repaid over 60 instalments, alongside taking another personal loan of Rs 90,000.
It was contended by the opposite party/complainant that he had fallen on extremely hard financial times in 2009 and could not repay further instalments of the loan, due to which the Bank and its agents had “forcibly and deceitfully repossessed” his vehicle.
In quashing the FIR filed against the Bank’s officials on counts of robbery, criminal intimidation, etc., a single bench of Justice Siddhartha Roy Chowdhury held:
From the attending facts of the case when it is found that the lender or financer took repossession of the vehicle, pursuant to the agreement executed by and between the parties, it cannot be said that the lender committed offence within the meaning of Penal Code with the requisite mens rea and dishonest intention. At best it could be a civil dispute which has been imbibed with the colour of criminality. In my humble opinion, this is the fit case to invoke the provision of Section 482 of the Code of Criminal Procedure to quash the proceeding of Jadavpur P.S. Case No. 657 of 2009 pending before the learned Additional Chief Judicial Magistrate, Alipore to avert abuse of process of law, which I accordingly do. The criminal revision is thus allowed.
‘Discipline Must Be Maintained By Devotees’: Calcutta HC Dismisses PIL For Guidelines On Visiting Jalpesh Shiv Temple, Directs DM To Consider
Case: Surojit Dasgupta Vs State Of West Bengal And Ors
Citation: 2023 LiveLaw (Cal) 229
The Calcutta High Court has dismissed a PIL seeking issuance of guidelines for regulation of pilgrims visiting the Jalpesh Temple shivmandir in North Bengal, on the grounds that the authorities were “depriving the petitioners of the fundamental right” to observe their age-old practise of offering holy water to the deity at the temple by entering its “garba griha.”
In ordering the District Magistrate and other officials to hold a public consultation/hearing looking into the suggestions placed by the petitioners “bearing in mind the convenience of the worshipping public,” a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya held:
“So far as regulating manner of worship in temple or any other place, it best be left with the district administration to take care of the same. There are several instances in West Bengal where the district administration has been proactively regulating the influx of the pilgrims in various places of worship as well as places of public importance. Therefore the petitioner and his co-signatories should bestow confidence in the district administration that they will do the best to ensure that the devotees offer their prayers in an appropriate manner.”
Misuse Of S.498A IPC By Women Unleashes “Legal Terrorism”: Calcutta High Court Quashes Domestic Violence Case Against Husband & In-Laws
Case: Dwaipayan Das Vs. State of West Bengal & Anr. & connected application.
Citation: 2023 LiveLaw (Cal) 230
The Calcutta High Court on Monday, quashed two criminal complaints filed by a wife (“opposite party no 2"), against her husband and in-laws (“petitioners”), on various counts of domestic violence, attempted murder, criminal intimidation, etc. under the IPC.
In noting that the medical evidence on record, as well as witness statements did not corroborate with the opposite party no 2’s version of events, a single-bench of Justice Subhendu Samanta quashed the criminal proceedings, and held:
“The allegation of physical and mental torture in both the cases appears to be general and omnibus. The ingredients of the offence specifically the statement of available witnesses does not disclose any specific prima facie materials by which the present petitioner can be entangled for the offences u/s 498A IPC. The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed.”
'Wishing The Best' To Minor Gang-Rape Survivor, Calcutta High Court Allows Termination Of 25+ Weeks Pregnancy
Case: Sri X v State of West Bengal & ors
Citation: 2023 LiveLaw (Cal) 231
The Calcutta High Court permitted medical termination of pregnancy of a minor gang rape survivor, which had exceeded the 24-week statutory limit under the Medical Termination of Pregnancy Act, 1971.
On an earlier occasion, the Court had noted that the present case fell under the exception envisaged under the 1971 Act, wherein there could be a risk to the life of the mother in case the pregnancy was allowed to continue, and had directed the formation of a medical board to assess the viability of abortion for the minor girl who was 25+ weeks pregnant.
Upon perusing the report of the medical board, a single bench of Justice Sabyasachi Bhattacharya held:
The crux of the said report is that considering the circumstances and the physical and mental conditions of the patient, the Board Members have arrived at a decision that pregnancy should be terminated, but for the safety of the patient and to mitigate any complication, it should preferably be done at a higher centre than the one where the survivor is now located. Since an extremely fair stand has been taken by the respondent nos. 7 and 8, the respondent nos. 7 and 8 are directed to ensure that the survivor, whose pregnancy is to be terminated medically, is brought to the SSKM Hospital at Kolkata, taking due care that the said survivor is attended to medically during such transit.
Victim’s Statement Cannot Be 'Blindfolded Foundation Of Guilt': Calcutta HC Discharges Man Accused Of ‘Pouring Hot Oil’ On Octogenarian Lady
Case: Sanjoy Mondal Vs. The State of West Bengal
Citation: 2023 LiveLaw (Cal) 232
The Calcutta High Court on Wednesday allowed a criminal appeal, setting aside the appellant's Trial court conviction under Section 324 IPC (voluntary hurt by dangerous means) for allegedly ‘pouring hot oil on an octogenarian lady’ after a brief argument on previous dues owed by the appellant,
Based on witness statements it noted that although the victim did suffer oil-burns, the same was not due to the fault of the appellant. A single-bench of Justice Rai Chattopadhyay held,
All questions that may arise reasonably in the mind of a prudent man, must receive answer from the evidence that has been brought on record. Merely that the victim has spoken in the trial Court would not be sufficient and safe to rely on the same blindfolded, as a foundation of his guilt. There are missing links [in victim’s statement] raising strong doubt as regards reasonability for what the victim has stated before the trial Court.
Multiple Inmates Kept In Separate Cell Due To Threat Perception Of Jail Authorities Not Solitary Confinement: Calcutta High Court
Case: Bishal Das & Ors. Vs. The State of West Bengal & Ors
Citation: 2023 LiveLaw (Cal) 233
The Calcutta High Court has recently rejected a transfer petition from three inmates at the Chinsurah District Correctional Home, Hooghly upon holding that keeping them in the same prison cell, away from the main population due to jail authorities’ perception of violence from other inmates, did not tantamount to solitary confinement, or a violation of their human rights.
On an earlier occasion, a single-bench of Justice Sabyasachi Bhattacharya had taken on record the State’s report on the facilities extended to the petitioners in their time as inmates.
Petitioners had submitted that their incarceration had led to several human rights violations, on counts of solitary confinement, lack of medical assistance, denial of visitation rights from their relatives and advocates, etc.
During the present hearing, the Bench noted the petitioner’s response to the report filed by the State, and held that, while the confinement of the petitioners could not be construed to be solitary confinement, the jail authorities would be under a duty to provide them with necessary medical facilities during their incarceration.
‘Prima Facie Forgery, No Equity For Practising Fraud Before Court’: Calcutta High Court Proposes Perjury Action Against School Headmaster
Case: Subhas Chandra Patra Vs. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 234
The Calcutta High Court has dismissed a writ petition filed by the headmaster of Bora Junior High School (“school”) and directed for a criminal investigation and trial against him, upon perusing expert evidence which prima facie indicated that signatures in one of the main documents relied upon by him, were forged.
Court also directed initiation of perjury proceedings in case the petitioner was found to be guilty of forging the aforesaid signature.
In dismissing the petition, and refusing to exercise equitable jurisdiction in favour of the petitioner due to the alleged fraud perpetrated by him, a single-bench of Justice Aniruddha Roy held:
The moment a cloud is created in the mind of the Writ Court as to the authenticity and existence of a document, which is the sole basis of the writ petition and that too with the allegation of fraud against the petitioner practiced on Court, no equity shall be exercised in favour of the petitioner. It is settled that he who seeks equity must apply before the Court of equity with clean hands. The Court of equity cannot and should not indulge the applicant who, prima facie, applies with unclean hands.
Level Playing Field For Political Parties: Calcutta High Court Allows Opposition Rally, Says S.144 CrPC Cannot Be Promulgated At The Drop Of A Hat
Case: Rajib Samanta v The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 235
The Calcutta High Court recently set aside an order under Section 144(2) CrPC (apprehension of nuisance or danger), passed by Sub-divisional magistrate, Contai, preventing public gatherings, due to which the petitioner, an opposition party leader, was prevented from holding a political rally.
In setting aside the magistrate’s order, and laying down a comprehensive set of guidelines for the petitioners to hold their political rally, a single-bench of Justice Jay Sengupta held:
Promulgation of an order under Section 144 of the Code cannot be done at the drop of a hat. It has to be done by exercising more care and circumspection and with a better reasoning. Afterall, we are dealing with rights of the citizens of India. In view of the above, the impugned order passed under Section 144(2) of the Code cannot be sustained. Accordingly, the same is set aside. The duty of the Administration is to provide a level playing field to all political dispensations to hold rallies and processions. The law and order is a thing that the Administration would have to take care of. The circumstances do not appear to be such where a political rally or a meeting cannot be held.
Durga Puja Not ‘Mere Religious Offering’, Meeting Ground For People Of All Caste, Creed, Gender Or Religion: Calcutta High Court
Case: Manab Jati Kalyan Foundation and another Vs. The State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 236
The Calcutta High Court has recently observed that Durga Puja, celebrated predominantly in West Bengal, is not merely a religious offering, but rather “much more secular in nature than a pure religious performance by a particular community.”
In allowing the petitioner’s plea for hosting their “Durga Utsab 2023” celebrations on the New Town Mela Ground, a single-bench of Justice Sabyasachi Bhattacharya opined:
Argument of the respondent-Authorities [New Town Kolkata Development Authority] regarding the petitioners not having any choice to hold worship or organize religious offerings wherever they wish, falls flat, in view of the implicit character of the Durga Puja Festival held in the State of West Bengal. As is public knowledge, the Durga Puja Festival is not confined merely to the worship or religious offerings component of the incarnation of feminine power but also a melting pot of different cultures. People from all over the state, the country and even from abroad, come to West Bengal purely for the purpose of observing the fanfare and the cultural milieu in the state during Durga Puja Festivals. Hence, there is as much an element of ceremony, cultural programmes, festival and fanfare involved as religious worship.
Too Much To Ask ED To Record Reasons At Every Stage, Even While Issuing Summons Under PMLA: Calcutta High Court
Case: Pritimoy Chakraborty Vs. Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 237
The Calcutta High Court recently dismissed a plea for no coercive measures and quashing of summons moved by one Pritimoy Chakraborty against the Enforcement Directorate (“ED”) under the Prevention of Money Laundering Act (“PMLA”).
In holding that the petitioner failed to show any patent illegality in the ED’s summons, or to make out a case for “the extraordinary relief of no-coercive action,” a single-bench of Justice Jay Sengupta held:
In exercise of powers under Section 50 of the PMLA Act, it was specifically directed that the petitioner should attend in person. It will be too much to ask the authorities to record reasons at every stage even while issuing summons in terms of Section 50 of the PMLA Act. Therefore, I do not find any reason as to why the petitioner could not co-operate with the proceeding. The petitioner also could not show any patent illegality in the summoning of the petitioner by the Enforcement Directorate. No case is made out either to seek the exceptional relief of ‘not to take coercive action’. In fact, such relief could be granted only in very exceptional cases.
Case: Nirmal Kumar Das @ Nirmal Das v The Kolkata Municipal Corporation & Ors.
Citation: 2023 LiveLaw (Cal) 238
The Calcutta High Court recently upheld a demolition order by the Kolkata Municipal Council (“KMC”) issued under Section 400(8) of the KMC Act against an unauthorised construction made by the petitioner who had ignored previous ‘stop-work’ notices and even an FIR filed by KMC in that regard.
A division-bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray expressed its objections on the extent of illegal constructions being initiated within the jurisdiction of the KMC without their immediate intervention.
"When a stop work notice was issued from the side of the KMC, the person responsible should have stopped the construction work and approached the KMC authority. Admittedly he was carrying on the construction without sanctioned plan in violation of the provisions as laid down in Sections 392 and 393 of the KMC Act. If the person responsible thinks that whatever be the nature and extent of his erection work, he can raise construction defying the stop work notice and defying the allegations made against him in the FIR only because that there are certain beneficial provisions for regularizing unauthorized constructions, he has committed a grave mistake and the KMC authority certainly has powers to demolish the unauthorized structure…in societal interest…even without giving him any opportunity of hearing."
Holistic, Common-Sense Approach Required To Interpret Arbitration Clause: Calcutta HC Grants Interim Relief To US-Based Healthcare Company
Case: Uphealth Holdings Inc. v Glocal Healthcare Systems Pvt. Ltd. & Ors.
Citation: 2023 LiveLaw (Cal) 239
The Calcutta High Court while exercising its admiralty jurisdiction, recently allowed an application for interim relief by Uphealth Holdings Inc. a wholly owned subsidiary of Uphealth Inc., a US-based healthcare company under section 9 of the Arbitration & Conciliation Act, 1996.
Justice Ravi Kishan Kapur observed that the applicant had made out a prima facie case for interim relief regarding an arbitrable dispute over its Share-Purchase Agreement (“SPA”) with the respondent.
"There is no question of non-arbitrability of any of the disputes raised in this proceeding. All the disputes raised in this proceeding are covered under the SPA and are ex facie contractual disputes. There is also no merit in the contention that the SPA is confined only to the purchase and sale of shares. This argument is misconceived and ignores the entire scope, purport and ambit of the SPA. All the reliefs sought for are in aid of and to protect the subject matter of the arbitration and to preserve the rights of the parties under the SPA. The Arbitral Tribunal is fully competent to consider and decide all other issues. For the foregoing reasons, the petitioner has been able to demonstrate a strong prima facie case on merits. The balance of convenience and irreparable injury are also in favour of orders being passed as prayed for herein."
NDPS Act | Lab Report ‘Most Vital’ Evidence, Cannot Be Filed Through Supplementary Chargesheet: Calcutta High Court
Case: Rakesh Sha vs The State of West Bengal
Citation: 2023 LiveLaw (Cal) 240
The Calcutta High Court’s Circuit Bench at Jalpaiguri recently allowed the bail plea of an accused under the Narcotic Drugs & Psychotropic Substances Act (“NDPS”) upon taking note of various ‘procedural infirmities’ in the chargesheet.
A division-bench of Justice Moushumi Bhattacharya and Justice Prasenjit Biswas held:
A mere statement of filing of a supplementary charge-sheet upon obtaining the Examination Report does not conform to the statutory mandate under the proviso to section 36A(4) of the NDPS Act. The Chemical Examination Report becomes the most vital piece of evidence which is required to be made part of the charge-sheet.
Court said filing of charge-sheet within 180 days without the Chemical Examination Report with simply a line that a supplementary charge-sheet will be filed in future with the Examination Report is beyond the contemplation of the proviso to section 36A(4) of the NDPS Act.
Calcutta High Court Grants Relief To Transgender Rights Activist, Quashes Kidnapping Case Lodged By Transwoman's Family
Case: Avinaba Dutta & Another v State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 241
The Calcutta High Court’s Circuit Bench at Jalpaiguri recently quashed criminal proceedings against a transgender rights activist & researcher, who had been accused of kidnapping by the family of a trans-woman, whom he helped escape from alleged mental and physical torture at her home.
In quashing the FIRs against the petitioner, a single-bench of Justice Prasenjit Biswas opined:
To prove the ingredients of section 365 IPC, it is essential that there should be abduction, if no abduction is there; the offence under section 365 is not made out. The victim/opposite party no.3 submitted that she left her house voluntarily and is presently residing at Bengaluru. There is neither any case of abduction nor kidnapping prevails with regard to the petitioners as the opposite party no.3 left home voluntarily by her own choice. So, I am of the opinion that the offence under section 365 of the Indian Penal Code does not attract in terms of the facts and circumstances of the case and the ingredients of the offence under section 365 of IPC can be said to be totally absent on the basis of allegation in the complaint.
Don’t Create Communal Tension: Calcutta HC Refuses To Exercise Writ Jurisdiction Over Private Ownership Of Waterbody Worshipped By Hindus
Case: Satyendranath Halder And Ors Vs State Of West Bengal And Ors.
Citation: 2023 LiveLaw (Cal) 242
The Calcutta High Court on Monday dismissed a PIL challenging the order of the Block Land & Land Reforms Officer (BL & LRO) allocating a portion of the Adiganga water body in the Sundarbans to the private respondents under the West Bengal Land Reform Act, 1955. (“WBLR”)
Petitioners argued that the respondents were preventing Hindus in the area from offering their worship at the water body, even though the same was attached to a temple, and prayers were carried on since 1933.
In dismissing the PIL with liberty to the petitioner to challenge the order of allocation under provisions of the WBLR Act, a division-bench of CJ Sivagnanam and Justice Hiranmay Bhattacharya held:
“It was submitted by the respondents that they are not preventing any Hindus from performing religious rituals during temple festivals and other days. No further direction is required to be issued, except to observe that the plot of land in question shall be preserved as a water body, and the public of area belonging to all faiths of religion shall be free to offer prayers and carry out rituals there. We leave it open to the petitioner to challenge the order of the authority under provisions of the WBLR Act.”
'Newspaper Reports And Next Morning There's A Writ': Calcutta High Court Dismisses PIL Against "Banned Student Union" In Jadavpur University
Case: Suvendu Adhikari v State of West Bengal
Citation: 2023 LiveLaw (Cal) 243
The Calcutta High Court on Monday dismissed a PIL filed by BJP’s Suvendu Adhikari against the “Revisionary Students Union/Federation”, an allegedly banned students union stated to be operating from within Jadavpur University.
Upon perusing the writ petition, a bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya expressed strong resentment and said,
“Are you very serious with the writ petition? We didn’t expect this. News paper reports, next day morning a writ petition. We find from the newspapers itself that already action has been initiated by the respondent police. Therefore, there is no reason to entertain this writ petition…don’t exhaust yourself. Writ petition dismissed as withdrawn.”
Swaccha Bharat Solid-Waste Management Facility Not ‘Illegal Organic Fertilizer Plant’, Baseless Apprehension: Calcutta High Court
Case: Apurba Biswas & Ors. v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 244
The Calcutta High Court has dismissed a PIL challenging an upcoming solid-waste management plant (“SWM”) set up under the Swaccha Bharat mission, on grounds of it ‘illegally creating organic fertilizer’, thereby causing a nuisance and hazard for general public.
Upon perusing a report of the Block-Development Officer, Bongaon, on the proposed steps to be taken at the facility, in terms of safety, sensitising the public, and converting organic waste into recyclable material, a division-bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held:
In the light of the report submitted by the Block Development Officer, which is taken on record, we find that the apprehension of the writ petitioners is baseless. Therefore, no direction as sought for in the writ petition can be granted except to observe that the authorities upon establishing the solid waste management plant shall ensure that the area is kept clean and the segregation of the garbage is done in a proper manner and also to ensure that the local residents are in not in any manner affected by the establishment of the solid waste management facility.
Baseless Comments By Disciplinary Authority Leave ‘Permanent Scar’ On Employee's Character: Calcutta High Court Reinstates CISF Constable
Case: Sri Ravi Kumar v Union of India & Others
Citation: 2023 LiveLaw (Cal) 245
The Calcutta High Court has allowed a writ petition moved by a CISF constable challenging his dismissal from service for alleged lack of oversight during his duty at the ISSCO Steel Plant in Burnpur, due to which certain miscreants entered the plant wielding weapons, in an attempt to steal copper wire.
In setting aside the order of dismissal, which labelled the petitioner a ‘conniver’ and of possessing ‘shady integrity’, a single-bench of Justice Partha Sarathi Chatterjee held:
A disciplinary authority acts a quasi-judicial authority and hence, observation and findings of such authority must be based on plausible evidence and such authority should not make any observation or comment which is not based on any evidence. Such an observation casts a stigma and leaves a permanent scar on the character of one person or employee and hence, it is expected that such authority must be circumspect in making such observation and/or comment.
Not Sufficiently Equipped On Judicial Side To Keep Tabs On Lower Courts For Promptly Uploading Daily Orders: Calcutta High Court
Case: Payel Paul Adhikary v Union Of India And Ors
Citation: 2023 LiveLaw (Cal) 246
The Calcutta High Court has recently dismissed a plea seeking a direction to the administrative wing of the Court to ensure that daily orders of both civil and criminal courts under its supervision are promptly uploaded on its E-Courts server.
The bench of Justice Sabyasachi Bhattacharya said the Court is not sufficiently equipped to grant such relief. It however granted liberty to the petitioner to agitate the issue on the administrative side or in a PIL.
"This Court, in its judicial capacity, is not sufficiently equipped to keep a tab on the uploading status of each and every civil and criminal court under the supervision of the High Court. In the event the petitioner has any particular instance of difficulty on such score, it will be open to the petitioner to approach the Registrar General or this Court, in its administrative capacity, to deal with such issue. The petitioner will also be at liberty, if necessary, to approach the concerned civil and criminal court, if need so arises, ventilating such grievance to the said authority. That apart, the petitioner will be at liberty to file a public interest litigation if the petitioner makes out a sufficient case for such exercise of power by the appropriate Division Bench. If so filed, nothing in this order shall influence or prejudice the rights of the petitioner in any manner whatsoever."
Litigant Not Genuine But, Direction To Probe Allegations Of ‘Fake Doctor’ Practicing Medicine Issued In Public Interest: Calcutta High Court
Case: Debabrata Chakraborti @ Debabrata Chakraborty Vs State Of West Bengal And Ors.
Citation: 2023 LiveLaw (Cal) 247
The Calcutta High Court has directed the State government to probe the allegations levelled against practice of medicine by a fake doctor in West Bengal. It added that though it had come to light that the PIL petitioner lacked bona fides, the direction was issued by the Court in public interest and will subsist.
Noting that the litigant had not disclosed in the petition that he was the alleged fake doctor's (respondent) brother and had already lost in a civil suit against him, a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya opined:
“After the order has been dictated, it is submitted that this PIL lacks bona fide since the petitioner is the respondent’s brother, and having been unsuccessful in the civil litigation has filed this PIL. In the petition, there is no disclosure of his relationship with the respondent or the civil litigation between the parties. We find that this is not a bona fide PIL. However, our direction (for State authorities to probe into matter) is keeping in mind the health of the general public, who should not be misled and cheated by being treated by someone unqualified. However, due to the non-disclosure of the petitioner, and in deprecating his conduct, we impose a cost of Rs 10,000.”
Duttapukur Explosions | 'Give Police Time To Complete Investigation': Calcutta HC Dismisses PIL For NIA Probe As Premature
Case: Suvendu Adhikari v State of West Bengal & ors
Citation: 2023 LiveLaw (Cal) 248
The Calcutta High Court has dismissed a plea moved by the BJP’s Suvendu Adhikari seeking a probe by the National Investigation Agency (NIA) into the recent explosions that occurred at an allegedly illegal firecracker factory in Duttapukur, West Bengal on 27th August.
In dismissing the PIL as premature, a division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya held:
“This incident occurred on 27th August 2023, your representation makes it seem like it happened in 2020. It only happened day before yesterday. Immediately you are filing PIL, what is to be done? If investigation is not happening, some irregularities are there…but you are filing this enclosing newspaper cuttings for something that happened two days ago. Already investigation has been taken up by the State police, and thus this petition is premature. The police has to be allowed time to complete the investigation, and thereafter if any grievances are there, the petitioner can pursue the same. Petition stands dismissed.”
Mere GD Entry For Recording 'Reason For Search', 'Intimation To Senior' Not Sufficient Compliance Of S.42 NDPS Act
Case: Abdul Rakib v The State of West Bengal
Citaiton: 2023 LiveLaw (Cal) 249
The Calcutta High Court’s Circuit Bench at Jalpaiguri recently granted bail to an accused under the NDPS Act, who had been charged with possession of commercial quantities of YABA Tablets.
At the outset, a division bench of Justice Moushumi Bhattacharya and Justice Prasenjit Biswas observed that the commercial truck in which the contraband was being transported being owned by an individual would not be a 'public place' and hence rigour of Section 42 NDPS Act would apply.
Section 42(1) casts a mandate on the designated officer to record his “reason to believe” with reference to personal knowledge or information received, before entering and searching. Section 42(2) continues the statutory mandate on the officer to intimate his immediate official superior the information recorded in writing and the grounds for his belief.
The Bench observed that while the petitioner’s vehicle was for commercial purposes, it remained under individual ownership, not meant for public use or transportation and thus, section 42’s mandate would apply to the present case, but the police had not complied with the same.
NDPS Act | Calcutta High Court Refuses To Quash Proceedings Against Ex-CPI(M) Leader Accused Of Smuggling 3400 Kgs Of ‘Poppy Seeds’
Case Title: Ashadullah Biswas @ Asadulla Biswas v The Union of India & Anr.
Citation: 2023 LiveLaw (Cal) 250
The Calcutta High Court has refused to quash criminal proceedings against former CPI(M) leader and alleged fake currency racketeer Mr. Asadullah Biswas, accused under the Narcotic Drugs & Psychotropic Substances Act, 1985 (“NDPS Act”) for allegedly storing and transporting 3400 kgs of poppy seeds, from a storage facility owned by him.
The Bench comprising Justice Shampa (Dutt) Paul while directing the matter to proceed towards trial, has held that:
"The prima facie case of the prosecution (NCB) against the petitioner Ashadullah Biswas is that he stores contraband in his godown and a huge quantity of poppy straw (85 bags each containing 40 kgs, total 3400 kgs) was loaded for transportation from the godown of Ashadullah Biswas. Further case is that Ashadullah Biswas, the petitioner on regular basis stores poppy straw (contraband) unlawfully in his godown and transports the same to different parts of the country. The said fact has been stated by a co-accused. Other than the said statements there are also other materials on record to show that there is a prima facie case against the petitioner to proceed towards trial.”
Irregularities In Sanctioning Loan Needs Thorough Examination: Calcutta High Court Refuses To Quash Criminal Case Against Co-op Bank Executives
Case: Shri Jagannath Goswami & Ors. Vs The State Of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 251
The Calcutta High Court has refused to quash criminal proceedings against the Vice Chairperson and Directors of the Tamluk Ghatak Co-operative Bank who are accused by the Deputy Registrar of Cooperative Societies, Burdwan, of inter alia cheating, criminal breach of trust, etc. during the sanctioning of a loan.
In directing for the instant case to proceed towards trial, a single-bench of Justice Shekhar B Saraf held:
Allegations outlined in the FIR do indeed amount to an offence against the accused individuals and reveal the presence of a cognizable offence. Secondly, it is evident that the accusations are neither ludicrous nor implausible, as there exist substantial reasons to proceed with the case against the accused parties. Lastly, this Court is of the view that there is no justifiable cause to quash the proceedings, as they are not tainted with malicious intent or motivated by any ulterior motive seeking retribution against the accused, driven by personal animosity or private grudges It is imperative to comprehend that the term "entrustment" in this context denotes the delegation of the authority to sanction loans to the customers of the cooperative bank, subject to adhering to the guidelines duly established by the competent authority. It is my considered view that such authority was vested in the petitioners. Consequently, allegations of irregularities arising during the disbursement of loan amounts have been brought to my attention, and I firmly opine that these issues necessitate thorough examination by the lower court.
Pregnant Doctor Dies Due To Delayed Medical Attention: Calcutta High Court Orders WB Commission To Re-Examine Hospitals' Conduct
Case: Park Hospitals and another Vs. The West Bengal Clinical Establishment Regulatory Commission and another
Citation: 2023 LiveLaw (Cal) 252
The Calcutta High Court on Wednesday directed the West Bengal Clinical Establishment Regulatory Commission (“Commission”) to re-adjudicate a case concerning the death of a pregnant doctor, who unfortunately passed away after being made to wait and thereafter being refused admission by various clinical establishments (“CEs”).
The plea moved by one of the accused clinical establishments (“BNWCCC”) averred that they were the only ones made liable for medical negligence, whereas two other hospitals who had also turned a blind eye to the deceased were given a clean chit.
A single-bench of Justice Sabysachi Bhattacharya directed the Commission to re-examine the matter and held:
Accordingly, WPA No.16381 of 2021 is allowed, thereby setting aside the impugned award passed the respondent no.1 Commission dated September 6, 2021 on the sad demise of Dr. Shraddha Bhutra. The matter is remanded to the respondent no.1-Commission for a re-adjudication, upon giving opportunity to the parties to produce further evidence to substantiate their cases and for a fresh decision on the issue as to the compensation to be awarded against the BNWCCC and/or Belle Vue Clinic in the facts and circumstances of the case, in the light of the observations as made hereinabove. It is expected that the Commission shall complete such re-adjudication at the earliest, preferably within three months from the date of communication of this order to the Commission.
‘Highly Belated Petition’: Calcutta High Court Dismisses PIL For CBI Inquiry Into Alleged Misappropriation Of Tribal Land
Case: Thaddeus Lakra And Others Vs. State Of West Bengal And Ors.
Citation: 2023 LiveLaw (Cal) 253
The Calcutta High Court has recently dismissed a PIL challenging agreements through which land allotted to scheduled tribe communities had been allegedly “grabbed” for illegally constructing a housing complex in Bidhannagar.
A division bench of Chief Justice T.S. Sivgananam and Justice Hiranmay Bhattacharya refused to allow the return of land and a CBI inquiry into their transfer, finding that the PIL was filed with over 15 years of delay.
"The schedule tribe raiyats who applied for permission to transfer does not appear to have any grievance against the said order dated 17.10.2006. Such order has already attained finality. The parties have also taken further steps acting on the said permission to transfer. Third parties have also acquired rights in the property in question who are also not before this Court. The original owners of the lands in question have also not approached the Court with any grievance. The action of writ petitioners amounts to assailing the order dated 17.10.2006 by which the Revenue Officer allowed the prayer of the raiyats of tribal lands to transfer their property. What the petitioners could not have done directly are attempting to do so in an indirect manner by filing this writ petition in the year 2022. The writ petitioners have approached this Court at a highly belated stage."
13-Year-Old Rape-Survivor’s Desertion By Parents Unfortunate, Duty Of Society At Large To Provide Adequate Care: Calcutta High Court
Case: X v State of West Bengal
Citation: 2023 LiveLaw (Cal) 254
The Calcutta High Court has recently allowed a plea by a 13-year old rape survivor for medically terminating her 26-week pregnancy and issued directions on the Child Welfare Committee, Purba Mednipur (“CWC”) to provide her younger sibling, and herself with all necessary assistance since they had been deserted by their migrant labourer-parents.
In allowing the minor’s plea, a single-bench of Justice Sabyasachi Bhattacharya directed the CWC to assist the survivor in travelling to SSKM Hospital, Calcutta who would set up a medical board to determine the viability of terminating her pregnancy.
Referring to one of its recently passed judgements, the Court held:
“The outer limit of 24 weeks of pregnancy as stipulated in Section 3(2)(b) of the MTP Act is not sacrosanct. there are situations where a decision can be taken for termination of pregnancy where the continuance of pregnancy would involve a risk to the life of a pregnant woman or of grave injury to her physical and mental health or if there is a substantial risk that the child, if born, would suffer from serious physical or mental abnormality. Hence, taking a comprehensive view of the relevant provisions of law as discussed above, the survivor is not only a minor but a victim of rape and aggravated penetrative sexual assault and, as such, the continuance of the pregnancy resulting from such heinous crime constitutes a grave injury to the mental health as well as physical constitution of the victim…for all practical purposes it would only be justified that the victim girl’s pregnancy is directed to be terminated.”
Day-To-Day Bickering Between Husband & Wife Not ‘Cruelty’ Under Section 498A IPC: Calcutta High Court
Case: Ranjan Das v The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 255
The Calcutta High Court’s Circuit Bench at Jalpaiguri has recently held that cruelty contemplated u/s 498A would be different from general matrimonial disturbances faced by a couple, and that general allegations could not be made to establish a crime u/s 498A.
In upholding the appellant’s conviction u/s 323 IPC for voluntarily causing hurt to his wife, while discharging him u/s 498A IPC, a single-bench of Justice Sugato Majumder held:
Cruelty contemplated in Section 498A of the Indian Penal Code is different from day to day bickering between the husband and wife. Sweeping and general allegations cannot be relied upon to conclude that offence under Section 498A of the Indian Penal Code has been perpetrated. The Trial Court committed error in coming to conclusion that the Appellant is guilty of offence under Section 498A of the Indian Penal Code. Therefore, conviction under Section 498A of the Indian Penal Code is liable to be quashed. However, conviction and sentence under Section 323 of the Indian Penal Code stands upheld, in view of oral and corroborating documentary evidence.