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Calcutta High Court Monthly Digest: September 2023
Srinjoy Das
4 Oct 2023 4:30 AM GMT
Citations: 2023 LiveLaw (Cal) 259 To 2023 LiveLaw (Cal) 303NOMINAL INDEXSarat Chatterjee and Co. (VSP) Private Limited v Sri Munisubrata Agri International Limited (Formerly known as LMJ International Ltd.) and Anr. 2023 LiveLaw (Cal) 259Birendra Nath Mondal Vs State Of West Bengal And Ors 2023 LiveLaw (Cal) 260Zainul Haque v State of WB & Ors 2023 LiveLaw (Cal) 261Abhijit Das Vs. State...
Citations: 2023 LiveLaw (Cal) 259 To 2023 LiveLaw (Cal) 303
NOMINAL INDEX
Sarat Chatterjee and Co. (VSP) Private Limited v Sri Munisubrata Agri International Limited (Formerly known as LMJ International Ltd.) and Anr. 2023 LiveLaw (Cal) 259
Birendra Nath Mondal Vs State Of West Bengal And Ors 2023 LiveLaw (Cal) 260
Zainul Haque v State of WB & Ors 2023 LiveLaw (Cal) 261
Abhijit Das Vs. State of West Bengal & Anr 2023 LiveLaw (Cal) 262
Biswajit Mukherjee v The State of West Bengal & Ors. 2023 LiveLaw (Cal) 263
Kalyan Panda & Ors. Vs. The State of West Bengal & Anr 2023 LiveLaw (Cal) 264
Rajiv Kumar Sing alias Chotu Sing v The State of West Bengal 2023 LiveLaw (Cal) 265
Rohan Builders (India) Pvt. Ltd. v Berger Paints India Limited & connected applications 2023 LiveLaw (Cal) 266
Mrs. Nidhi Kedia Nee Chokhani v Sri Abhyudaya Kedia 2023 LiveLaw (Cal) 267
Nitya Gopal Pal & Anr. v The State of West Bengal 2023 LiveLaw (Cal) 268
Sukalyan Haldar v State of WB & Ors 2023 LiveLaw (Cal) 269
Siddhi Vinayake Puja Committee & anr v State of WB & ors 2023 LiveLaw (Cal) 270
Animesh Biswas Vs. State of West Bengal 2023 LiveLaw (Cal) 271
Prashant Bothra and another Vs. Bureau of Immigration and others 2023 LiveLaw (Cal) 272
Samsuddin Sk. & Ors. Vs. State of West Bengal 2023 LiveLaw (Cal) 273
G. Venkatesh Babu & Anr. V The State Of West Bengal & Anr. 2023 LiveLaw (Cal) 274
Hemanta Barman V The State Of West Bengal 2023 LiveLaw (Cal) 275
Thakurani Shree Shree Durga Mata Jew, & Ors. v Kangali Charan Raul & Anr. 2023 LiveLaw (Cal) 276
Paramita Bera & Anr. V The Union of India & Ors. 2023 LiveLaw (Cal) 277
Yeasin Molla & Ors. -Vs- Union of India & Ors. 2023 LiveLaw (Cal) 278
Pawan Kumar Agarwal –Vs- The State of West Bengal & Anr. & connected applications 2023 LiveLaw (Cal) 279
Smt. Meghna Nandi (Maiti) Vs. Sri Asit Nandi & Anr. 2023 LiveLaw (Cal) 280
Sahim Hossain & Ors. Vs. The State of West Bengal & Ors. and connected applications 2023 LiveLaw (Cal) 281
Suily Banerjee -Vs.- The State of West Bengal & Ors. 2023 LiveLaw (Cal) 282
Sri Uttam Kumar Das v Bangiya Gramin Vikash Bank & Ors. 2023 LiveLaw (Cal) 283
Amit Polley Vs. The State of West Bengal & Anr. 2023 LiveLaw (Cal) 284
Ashis Khamrai v State of West Bengal and others 2023 LiveLaw (Cal) 285
Amna Parveen Vs. The State of West Bengal & Ors. 2023 LiveLaw (Cal) 286
Kishore Kumar Singh Vs. The State of West Bengal & Ors 2023 LiveLaw (Cal) 287
State of West Bengal and others Vs. Kalpana Das Sarkar and others 2023 LiveLaw (Cal) 288
Mrs. Polin Mukherjee V Union Of India & Ors. 2023 LiveLaw (Cal) 289
Surendra Prasad v The Union of India & Ors. 2023 LiveLaw (Cal) 290
Partha Ghosh -Versus- The State Of West Bengal And Others 2023 LiveLaw (Cal) 291
Abhishek Banerjee v ED 2023 LiveLaw (Cal) 292
Suman Dutta And Ors Vs State Of West Bengal And Ors. 2023 LiveLaw (Cal) 293
St. Mary’s Technological Foundation and Another Vs. The West Bengal State Electricity Transmission Company Limited and Others 2023 LiveLaw (Cal) 294
Ankita Saha & Anr. V The State of West Bengal & Ors. 2023 LiveLaw (Cal) 295
Bijoy Kumar Banik and another vs State of West Bengal and others 2023 LiveLaw (Cal) 296
Ruksana Khatun Vs. Union of India and others 2023 LiveLaw (Cal) 297
Nand Kishor Shaw & Ors. -Versus- State of West Bengal & Anr. 2023 LiveLaw (Cal) 298
Dilip Adhikary Vs. Basanta Nath 2023 LiveLaw (Cal) 299
Pravash Dalui And Ors Vs State Of West Bengal And Ors 2023 LiveLaw (Cal) 300
Palash Das Vs. The State of West Bengal and others 2023 LiveLaw (Cal) 301
Sri Nirbhay Lodh Vs. The UCO Bank & Ors. 2023 LiveLaw (Cal) 302
Sushil Kumar Thard vs. National Jute Manufactures Corporation Limited & Ors. 2023 LiveLaw (Cal) 303
Case: Asgar Ali Vs. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 256
The Calcutta High Court has dismissed the appeal of a man accused of committing unnatural offences (under Section 377 of the IPC) on his 3-year-old neighbour, upon the prosecution having established his guilt beyond a reasonable doubt.
Justice Shampa Dutt (Paul) observed that the evidence rendered by the child’s mother would be the ‘best evidence’ in such cases.
"A mother’s evidence in a case of this nature is the best evidence before the Court. As truthful and sacred as the love in her heart for her tender helpless child of 3 years. A mother is the shield which protects her child against any harm that may befall upon the child. Cases of such nature do not come with eyewitness/eyewitnesses and one should not expect the same, as such acts are done in private, being against nature and the law. The act of the appellant herein constitutes the ingredients required to constitute the offence under Section 377 of the Indian Penal Code and the same has been proved by the prosecution beyond reasonable doubt by way of evidence both oral and documentary evidence. The appellant is directed to surrender before the Trial Court within a week from the date of this order to serve out his sentence in default, Trial Court shall proceed in accordance with law."
Case: M/S Hytone Merchants Pvt Ltd V Prasenjit Das And Anr
Citation: 2023 LiveLaw (Cal) 257
The Calcutta High Court has recently utilised its contempt jurisdiction to direct those in violation of the Court’s orders to contribute towards social and ecological good.
In directing the contemnors to pay costs of Rs 25,000 each, to one Gram Samriddhi Foundation for utilisation in the furtherance of sustainable rural development and prosperity of villages in Bengal, as well as to plant “ten fruit-bearing trees” under the aegis of the aforesaid foundation, a single-bench of Justice Shekhar B Saraf held:
The Contemnors have graciously admitted that they have committed flagrant violation of the Court’s orders, but have further submitted that there were compelling circumstances for them to undertake such actions and tendered an unconditional apology. To secure the ends of justice, I am the view that the Contemnors must do some social good for this Court to countenance their act of contempt. Plantation of trees is one such exercise which this Court would consider because trees, for as long as they are alive, be it for decades or for centuries, would incessantly and silently provide multiple benefits to the people.”
Case: Radha Bhattad v Rashmi Cement Limited
Citation: 2023 LiveLaw (Cal) 258
The Calcutta High Court has recently held that, as a Court of record, a High Court can review and correct its own orders by invoking its jurisdiction under Article 215 of the Constitution.
In upholding the maintainability of the present review application, a single-bench of Justice Moushumi Bhattacharya held:
It is important to demarcate the source if invocation of the power of review and the power to enter into a substantive review of the order on merits. Article 215 of the Constitution declares High Courts to be Courts of records. Being Courts of records, the High Courts are invested with inherent powers to correct the records. The term “Courts of records” does not simply mean keepers of records but that the High Courts have an obligation, indeed a duly, to maintain correct records within its jurisdiction in accordance with law. The power to correct orders, including where there is an apparent error on the face of the record, falls within the plenary powers of the High Court as a Court of record.
Case: Sarat Chatterjee and Co. (VSP) Private Limited v Sri Munisubrata Agri International Limited (Formerly known as LMJ International Ltd.) and Anr.
Citation: 2023 LiveLaw (Cal) 259
The Calcutta High Court has recently held that the security furnished by an award-debtor for stay of an arbitral award must be “clean, unblemished and with good exchange value.”
In refuting the arguments of the applicants, while expressing its insecurity about the security proposed by them, a single-bench of Justice Moushumi Bhattacharya held:
The Court is empowered to impose conditions on the award-debtor who seeks stay of an Award and must look to the provisions of the CPC for taking recourse to the principles for grant of stay of a decree or order. The Court must simply ensure that the security offered by the award-debtor has good currency value and is not an empty reassurance given by the award-debtor on a speculated value of unsold goods. The limited protection by the Division Bench for sale of the 10,000 MTs of Met Coke in 2015 cannot be resurrected after years to urge that the award-holder stands secured to the extent of the projected sale value of the goods amounting to Rs. 45 crores. Besides the uncertainties listed above, the 10,000 MTs of Met Coke has admittedly not been sold till date and even the sale was mired in litigation.
"PIL Not Genuine": Calcutta High Court Dismisses Plea Claiming Illegal Immigrants From Bangladesh Included In Indian Voters List
Case: Birendra Nath Mondal Vs State Of West Bengal And Ors
Citation: 2023 LiveLaw (Cal) 260
The Calcutta High Court has dismissed a PIL challenging the inclusion of certain alleged ‘illegal immigrants’ from Bangladesh, residing in Bagdah, North 24 parganas in Indian voters' list published by the Election Commission of India.
In dismissing the PIL, a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya held:
“This is not a genuine PIL, because petitioner has certain private grievances against the private respondents regarding immovable property, which is subject matter of a criminal case, which is pending. In light of the above we are not convinced that the present petition is a PIL. Another prayer is for deletion of private respondents from the voter list, alleging that they are Bangladeshi nationals. However, this prayer cannot be granted at this stage because the [panchayat] elections are already concluded after voter list having being drawn up. Petitioner will have liberty to approach the appropriate forum.”
Case: Zainul Haque v State of WB & Ors
Citation: 2023 LiveLaw (Cal) 261
The Calcutta High Court has dismissed a PIL challenging alleged embezzlement of public funds to the tune Rs 8.8 crores allocated to self-help group ‘Milan Mohila Mahasanga’ in Uttar Dinajpur, for manufacturing of school-uniforms.
A division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya directed the District Magistrate to look into the allegations. It held,
“Admittedly the project for supply of uniforms, is one of the State government. If there is any allegation of embezzlement of public funds, obviously, the authority shall look into the same. As we are disposing of the petition without calling for affidavits, and without going into the allegations made by the petitioner, we direct the DM, Uttar Dinajpur, to take into account the petitioners earlier representation, issue notice to parties and consider whether the allegations made by the petitioner are true or not. An order on the same be passed by the DM within 8 weeks from date.”
Case: Abhijit Das Vs. State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 262
The Calcutta High Court has recently quashed criminal case on charges of inter alia rape, against one Abhijit Das, who contested the Lok Sabha Elections in 2014 and 2020 for a political party from Diamond Harbour constituency.
In noting that the complainant herself had withdrawn the allegations of rape, and refused to undergo a medical examination, a single-bench of Justice Shampa (Dutt) Paul, held:
In view of the said materials on record, it is very unfortunate that in spite of the complainant withdrawing her allegations against the petitioner and also refusing medical examination as she reiterated that she was not raped, charge sheet has been submitted for allegations which were withdrawn five years ago. In such facts and circumstances, it is clear that there was no materials on record against the petitioner to submit the charge sheet as filed (the de facto complainant herself not willing to proceed with the case). As the de facto complainant herself does not wish to press the charges, the case being permitted to proceed towards trial will be a futile exercise.
Case: Biswajit Mukherjee v The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 263
The Calcutta High Court has dismissed as being 'patently illegal', a plea filed under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“LARR”) seeking compensation for and restoration of possession of a land acquired 52 years ago.
In dismissing the writ petition, a single-bench of Justice Shekhar B Saraf held:
I am amazed that such a frivolous and vexatious petition has been filed, and that too, after a lapse of more than 50 years. The acquisition by the Government is not in dispute. The present petition is nothing but a circuitous method of trying to get unjust enrichment. The petitioner can’t ask compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and then pray for such land to be put under their possession. I am of the view that this petition that has been filed after an inordinate delay of 52 years, is completely baseless and without any merit whatsoever. The prayers itself are contradictory and no relief whatsoever can be sought by the petitioner.
Case: Kalyan Panda & Ors. Vs. The State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 264
The Calcutta High Court has quashed criminal proceedings against the petitioners, who were accused by their daughter-in-law (“opposite party no 2”) of conspiring to beat her up on several occasions.
Justice Shampa (Dutt) Paul noted that the daughter-in-law's claims were not supported by any medical evidence and that she was being treated for mental illnesses, due to which on several occasions she had been violent towards her husband.
"It is clear that even after filling the complaint, the complainant continued to WhatsApp the petitioner no. 2. There are no medical papers for the injuries sustained by opposite party no 2. Her prescriptions also advise her regarding marital therapy, anger management, etc. There are no materials on record to show that the ingredients required to constitute the offences alleged are present against any of the petitioners and permitting such a case to proceed towards trial will be an abuse of the process of law."
Case: Rajiv Kumar Sing alias Chotu Sing v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 265
The Calcutta High Court has refused to quash criminal proceedings against the petitioner, who along with 4 other accused, was charged with offence of abetment of suicide under Section 306 IPC, based on a complaint filed by the opposite party no 2, accusing them of causing “severe mental trauma” to her husband, leading to him taking his own life.
In directing for the matter to proceed towards trial, a single-bench of Justice Subhendu Samanta held,
On perusal of the case diary, it appears that police has collected sufficient materials during the course of investigation. This revisional court has no power to determine the correctness, validity and probative value of the evidences collected by the I.O. during the course of investigation. This court is obliged in law to exercise jurisdiction u/s 482 Cr.P.C to quash a proceeding where there is no prima facie case. The fishing and roving inquiry regarding plausible defence is not acceptable at this stage. Thus, I am of a specific view that the instant criminal proceeding cannot be quashed at this stage.
Case: Rohan Builders (India) Pvt. Ltd. v Berger Paints India Limited & connected applications
Citation: 2023 LiveLaw (Cal) 266
The Calcutta High Court has recently held that the mandate of an arbitral tribunal is held to be terminated under Section 29A of the Arbitration & Conciliation Act, 1996, (“1996 Act”), unless the same is extended during its subsistence, in the absence of which, an arbitrator would become de jure inadmissible.
In disposing of three arbitration petitions containing the aforesaid identical point of law, a single-bench of Justice Moushumi Bhattacharya held:
Section 29-A of The Arbitration and Conciliation Act, 1996 contemplates making of the award within the prescribed statutory timelines. The timelines are to be read as mandatory limits where the arbitrator and the parties to the arbitration are required to be conscious and vigilant of the cut-off dates for applying for extension of the mandate of the arbitral tribunal. The application for extension must be made during continuation of the mandate and not thereafter. If the arbitral tribunal proceeds to make an award after expiry of the timelines, the award would suffer from a jurisdictional error. This is by reason of the fact that there is no provision for renewal of mandate of the tribunal once it stands terminated by operation of law.
Case: Mrs. Nidhi Kedia Nee Chokhani v Sri Abhyudaya Kedia
Citation: 2023 LiveLaw (Cal) 267
The Calcutta High Court recently upheld a decree of divorce granted by the trial court in favour of a husband, who claimed divorce on the grounds of ‘cruelty’ suffered by him at the hands of his wife.
In dismissing the appeal of the wife for restoration of marital rights, a division bench of Justice Rajasekhar Mantha and Justice Supratim Bhattacharya held:
The FIR lodged by the appellant/wife is in the nature of a counterblast as because the same has been filed after the initiation of the matrimonial suit for divorce. The acts of cruelty alleged by the husband against the wife have not been condoned by the former. This Court cannot also lose sight of the fact that elderly members of the husband’s family stood discharged from the criminal proceeding having regard to the frivolity of the charges brought against them. It needs no iteration either that the parties are continuing with their corrosive and divergent courses without any whisper of reconciliation.
Case Title: Nitya Gopal Pal & Anr. v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 268
The Calcutta High Court recently dismissed an appeal filed by a husband (“appellant no 1”) and his brother (“appellant no 2”) who were convicted by the trial court under Section 498A and 304B of the IPC, for causing the ‘dowry death’ of the victim, who poisoned herself and her daughter in her matrimonial home.
In upholding the duo’s conviction, a single-bench of Justice Rai Chattopadhyay held:
The entire incident of transmission of the money as above happened ten days prior to the date of death of both the victims. The proximity of time between the alleged ill-treatment and time of death is a relevant factor so far as applicability of Section 304B is concerned and to raise presumption under Section 113B of the Indian Evidence Act and is an essential and necessary evidence for proof of a case of dowry death. The law would require the accused person, to come up with adequate rebutting evidence, to prove their innocence or to set the prosecution evidence at naught. Such statutory duty is grossly unfulfilled by the appellants, in the trial. In the considered opinion of this Court, the finding of the trial Court on the point as above renders any reconsideration or setting aside of the same due to alleged illegality or impropriety, unwarranted.
Case: Sukalyan Haldar v State of WB & Ors
Citation: 2023 LiveLaw (Cal) 269
The Calcutta High Court has granted interim relief to the Secretary of St. Stephens School, Dumdum, (“petitioner”) in a case involving his termination on the basis of a complaint made by a female colleague under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”), alleging that he referred to her as “faltu meye.”
In directing the petitioner’s reinstatement to the post of Secretary pending reconsideration of his case, a single bench of Justice Sabyasachi Bhattacharya observed that the Local Complaints Committee (“LCC”) which had adjudicated over the issue, had violated the principles of natural justice, and had failed to enquire into the context of the alleged remark.
The Bench held, The expression “faltu meye” can be used in various contexts. The backdrop of the usage would lend colour and texture to the comment…the interpretation applicable in the present case would entirely depend on the backdrop. I find nothing in the impugned order to indicate that the appropriate context and backdrop in which the said expression was used by the petitioner, if at all, was discussed by the LCC…it cannot be said that the tenets of Natural Justice have been duly complied with by the LCC. There are ingredients of perversity and lack of opportunity of informed hearing to the parties, particularly the petitioner, in the decision of the LCC, which vitiates the impugned decision on the ground of violation of principles of Natural Justice.
Case: Siddhi Vinayake Puja Committee & anr v State of WB & ors
Citation: 2023 LiveLaw (Cal) 270
The Calcutta High Court has directed the Asansol Durgapur Development Authority (“ADDA”) to grant permission to the petitioners to hold celebrations of Ganesh Puja between September 18-22 on a public ground, which was admittedly used for government functions and Durga Puja.
In holding that denial to host Ganesh Puja, while allowing celebrations of Durga Puja on the same grounds would violate the petitioner’s fundamental rights under Article 14, a single-bench of Justice Sabyasachi Bhattacharya held,
If Durga Puja is allowed on the ground, which is also a festivity of Hindus, there is no reason why festivities of other religions or the same religion, be it of other idols, should not be allowed thereon. The differentia sought to be projected by the ADDA is not sufficiently intelligible to come within the purview of reasonable classification within the exceptions to Article 14 of the Constitution. More absurd is the equation of government programmes with Durga Pula festivities. If Durga Puja can be said to be on equal footing with other government programmes, there is no plausible reason why Ganesh Puja or some other performance of public religious or celebratory activity should not come within the purview of the same.
Case: Animesh Biswas Vs. State of West Bengal
Citation: 2023 LiveLaw (Cal) 271
The Calcutta High Court has dismissed the appeal preferred by a man convicted under Section 9 of the POCSO Act, for committing rape on a 9-year-old girl at her school.
In holding that the testimony of the minor, as well as medical evidence regarding the accused’s stable mental state could not be ignored merely because appellant was referred to as ‘pagol’/’mad’ by local persons, a single-bench of Justice Bibhas Ranjan De held:
On overall evaluation of the evidence, I find that consistent evidence of victim was supported by her parents and also by the Doctor of Nadia Sadar Hospital. I cannot disbelieve the evidence of victim, a nine-year-old girl only on the plea of defence that accused was called as ‘Pagol’ in the locality ignoring the evidence of Dr. Poulami Ray Chowdhury as well as a report of Medical Board. From the evidence of Dr Chowdhury, called for at the instance of this Court, we cannot, in any manner, suggest that at the time of incident accused was insane or abnormal. To show such abnormality/insanity defence did not adduce any evidence in spite of having enough opportunity to rebut the presumption under Section 29 of the POCSO Act. This Court thus upheld the conviction and dismissed the appeal.
Case: Prashant Bothra and another Vs. Bureau of Immigration and others
Citation: 2023 LiveLaw (Cal) 272
The Calcutta High Court has observed that the mere paranoia of Authorities whenever a person against whom any allegations are levelled seeks to leave the country, cannot be sufficient grounds for issuance of a lookout circular (“LOC”), which curtails the individual’s liberty to travel abroad.
Quashing the LOCs issued against the two petitioners, a single-bench of Justice Sabyasachi Bhattacharya held,
It has to be kept in mind that the high grounds which are required to be made out for restraining the personal liberty of a person as guaranteed under Article 21 of the Constitution and the right of a person to move within the country under Article 19, a necessary corollary of which is the right to travel abroad, have to be on a much elevated footing than mere pendency of an investigation or allegations of financial frauds against the concerned person. The mere paranoia of the authorities whenever a person against whom allegations are levelled seeks to leave the country cannot be sufficient for issuance of LOCs and curtailing the person’s personal liberty to travel abroad.
However, at the request of the investigating authorities for time to prefer an appeal, the Court stayed the operation of this order for two weeks
Case: Samsuddin Sk. & Ors. Vs. State of West Bengal
Citation: 2023 LiveLaw (Cal) 273
The Calcutta High Court has upheld the conviction of four persons under Section 302 and 376(2)(g) of the IPC, for the rape and murder of a minor girl in 2004.
However, refusing to impose punishment of death penalty, a bench of Justices Joymalya Bagchi and Gaurang Kanth referred to Supreme Court’s decision in Bachan Singh’s case and held:
It is true the appellants have perpetrated the most brutal act of rape and murder of a minor child. The offence is a heinous one and needs strongest condemnation from society. However, nature and gravity of offence is not the only criteria on which imposition of death penalty depends…the Court must satisfy its conscience that the possibility of reformation and rehabilitation of the convict is completely ruled out and the sentence of life imprisonment is thereby rendered inadequate. Reports have been filed before us. All the reports show that their conduct in jail is satisfactory. In these circumstances after lapse of 17 years I do not find any justification to enhance the life sentences of the appellants to the extreme and irreversible sentence of death.
Case: G. Venkatesh Babu & Anr. V The State Of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 274
The Calcutta High Court’s Circuit Bench at Jalpaiguri has recently quashed criminal cases against the MD and Director of Lanco Infratech Limited, who had been accused of inter alia cheating, by one of their industrial oxygen suppliers, who alleged that in the course of business, the accused had failed to return back empty cylinders, thereby misappropriating approx. Rs 38 lakhs worth of oxygen cylinders.
In allowing the petitioners’ application, a single-bench of Justice Siddhartha Ray Chowdhury held:
Upon considering facts and circumstances of the case, I am of the view that the criminal proceeding being C.R. Case No. 11 of 2019 is attended with malafide as the complainant initiated the proceeding suppressing the material fact knowing fully well that the company and the accused persons no. 2 and 3 being the alter ego of the company had no authority to deal with the fund of the company to transfer the same. That apart the agreement was entered into by and between the companies. Therefore, at all any offence was committed, it was committed by the company. Therefore, criminal proceeding cannot be allowed to survive without the company being arrayed as an accused.
Case: Hemanta Barman V The State Of West Bengal
Citation: 2023 LiveLaw (Cal) 275
The Calcutta High Court’s Circuit bench at Jalpaiguri has recently held that the actions of a girl in voluntarily leaving her home with the accused person did not give the accused any right to invade upon her privacy or commit sexual offences upon her.
A single-bench of Justice Siddhartha Roy Chowdhury upheld the appellant’s Trial court conviction for rape under Section 376 IPC and held:
If it is assumed that the victim was not abducted or kidnapped she left her house with accused person on her own, that does not give the accused person the right to invade upon the privacy of the victim girl or to commit any penetrative sexual offence within the meaning of rape as defined under Section 376 of the Indian Penal Code. In her evidence-in-chief the victim stated that the accused person kept her confined for three days in a house and committed rape upon her. Here in this case nothing has come out from the cross-examination of the victim to shake her credibility, therefore, there is no reason to seek corroboration as it would amount to add an insult to the injury already suffered by the victim.
Case: Thakurani Shree Shree Durga Mata Jew, & Ors. v Kangali Charan Raul & Anr.
Citation: 2023 LiveLaw (Cal) 276
The Calcutta High Court has held that substitution of legal heirs of a deceased plaintiff as well as addition more plaintiffs in a suit, would not be permissible under Order VI Rule 17 of the Civil Procedure Code, 1908, (“CPC”).
A single-bench of Justice Krishna Rao disposed of the application by allowing the prayer for amendment of pleadings by the plaintiffs and held:
This Court finds that the said amendments will not change the nature and character of the suit and the said amendment is formal in nature. As regard the deletion of the name of the plaintiff no. 4 on account of the death of the plaintiff no. 4 and substitution of the legal heir of the plaintiff no. 4 and addition of the name of the plaintiff nos. 8 and 9 are not permissible within the preview of the provisions of Order VI, Rule 17 of the Code of Civil Procedure.
Case: Paramita Bera & Anr. V The Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 277
The Calcutta High Court recently allowed a plea for enhancement of compensation awarded to a minor girl, who was the victim of an acid attack in 2018.
Justice Shekhar B Saraf directed the State to pay a further compensation of Rs 7.5 lakhs to the minor girl child, under the NALSA’s Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes, 2018 (NALSA guidelines), which has been directed to be implemented pan India, by the Apex Court in the case of Nipun Saxena v Union of India.
Condemning the State’s lackadaisical approach of awarding inadequate compensation to a minor acid attack survivor, in violation of the Supreme Court’s directions of implementation of NALSA’s compensation scheme, the Bench held:
This Court, directs the Government to immediately act in accordance with the Supreme Court judgement and frame its scheme as per NALSA’s [guidelines] within a period of eight weeks from date...It is unfortunate that this State, which was once known for its progressive feminist discourse… has forgotten its feminist roots."
Case: Yeasin Molla & Ors. -Vs- Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 278
The Calcutta High Court has directed the Central Government to take a policy decision regarding the fixation of price of Kerosene oil, widely used for cooking, which was classified as an essential commodity under the Essential Commodities Act.
The Court was hearing a plea filed in representative capacity by Bengal’s ration-card holders challenging the “soaring price of kerosene under the Public Distribution System (“PDS”)”
Further directing the State to impose minimum rates of taxes on the selling price of kerosene which is bought by “poorest of poor citizens who need it to illuminate their homes and prepare their food,” a single-bench of Justice Bibek Chaudhuri held:
The oil companies cannot fix the price of kerosene in the manner on the basis of import party pricing. In the instant writ petition the court cannot fix selling price of kerosene oil. Therefore, it is disposed of directing the Central Government to adopt and take a policy decision for fixing the rate of subsidized price of kerosene oil for the consumers…[for] the poorest of the poor citizens of our country who really need kerosene oil to illuminate their homes and prepare their food burning cow dung, coal etc with the help of kerosene oil.
Case: Pawan Kumar Agarwal -VsThe State of West Bengal & Anr. & connected applications
Citation: 2023 LiveLaw (Cal) 279
The Calcutta High Court has recently held that before the issuance of process, in cases where a Magistrate comes to a prima facie conclusion regarding the reasons for summons to be issued against the accused, and if the order shows compliance and application of mind vis-à-vis holding of inquiry under 202 CrPC, then such an order could not be set aside on technical grounds.
A single-bench of Justice Bibek Chaudhuri in answering a common question in multiple criminal revision applications on whether an inquiry under Section 202 of the Code of Criminal Procedure is mandatory before issuance of process in a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act when the accused resides outside the territorial jurisdiction of the magistrate, held:
While issuing process the learned Magistrate adverted to the petition of complaint, evidence of the complainant affirmed under Section 145(1) of the N.I Act and the documents filed by the complainant. Thus, before issuance of process, the learned Magistrate obviously came to the conclusion that there are prima facie reasons to issue process against the petitioner and lastly, if the impugned order prima facie proves application of mind by the learned Magistrate in respect of compliance of mandatory provision under Section 202 of the Cr.P.C, the order cannot be set aside only on technical ground for absence of the magic words that inquiry under Section 202 was held and the learned Magistrate was satisfied that process should be issued against the accused.
Mere 4K Interim Maintenance To Wife, Two Daughters Not Reasonable: Calcutta High Court
Case: Smt. Meghna Nandi (Maiti) Vs. Sri Asit Nandi & Anr.
Citation: 2023 LiveLaw (Cal) 280
The Calcutta High Court on Wednesday observed that an interim maintenance of Rs 4,000 per month, awarded by the magistrate in favour of a wife and her two daughters, would simply not be enough for their sustenance.
A single-bench of Justice Shampa (Dutt) Paul was seized of a revision application against the order of a magistrate rejecting the wife/petitioners prayer for enhancement of interim maintenance u/s 127 CrPC as ‘premature’ due to the pendency of their application for maintenance u/s 125 CrPC.
While refusing to interfere with the magistrate’s order, the Bench directed the trial court to dispose of the 125 CrPC application within a period of three months, and held:
It was in no way logical to grant such a low amount as interim maintenance for 3 persons and leave the balance for the husband. Of course at the time of final disposal of the case, all factors have to be taken into consideration by the learned Magistrate, but an amount of Rs. 4000/- for three persons is just not reasonable.
Case: Sahim Hossain & Ors. Vs. The State of West Bengal & Ors. and connected applications
Citation: 2023 LiveLaw (Cal) 281
The Calcutta High Court on Wednesday held that candidates under ‘reserved categories’ could be considered for vacancies against ‘unreserved’ seats even if they had opted to avail for fees and age relaxations statutorily available to them, as members of reserved categories.
A division bench of Justice Debangshu Basak and Justice Md Shabbar Rashidi while quashing an order of the WB Administrative Tribunal (“WBAT”) held,
Relaxation in age and fees cannot be construed to be obtaining a benefit in the course for ascertainment of merit of a candidate. It is merely an enabling provision to enable designated section of the society, an opportunity to complete. Facilitating a designated section of the society to partake in a selection process cannot be equated to grant of privilege during ascertainment of merit in the selection process. [It] does not mean that any advantage has been granted to the reserved category candidates so as to disentitle them to be considered in unreserved category in accordance with merit.
Case: Suily Banerjee Vs. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 282
The Calcutta High Court has upheld the transfer of an ‘Anganwadi worker’ (“appellant”) despite absence of an express provision under the applicable scheme and rules.
Appellant had argued that her transfer was bad in law, since the memorandum dated 25.01.2006 issued by the Government of West Bengal, Department of Women and Child Development and Social Welfare for recruitment of Anganwadi workers, did not make any provisions for transfer, and laid down that only ‘local women” were to be appointed to Anganwadi centres.
In upholding the order of transfer, a division-bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray observed: [Villagers complained that] the appellant being the teacher of ICDS centre North Jambad was not regular in her duty though all the children used to be present in the concerned Anganwadi centre. Although all the children were entitled to a full egg but the appellant was providing half an egg to each of them. The water used for cooking was also not good for which they were apprehensive about the health of their children. Though they tried to discuss the matter with the appellant but she misbehaved with them…therefore, when public services are disrupted due to an Anganwadi worker’s attitude, the Authority can make appropriate order commensurate with the situation for the interest of the public. It is true that there is no express provision for transfer of an Anganwadi worker in the abovementioned Rules but at the same time, there is no express prohibition of transfer also
Case: Sri Uttam Kumar Das v Bangiya Gramin Vikash Bank & Ors.
Citation: 2023 LiveLaw (Cal) 283
The Calcutta High Court has recently dismissed a writ petition filed by a former Branch Manager for Bangiya Gramin Vikash Bank (“Bank”), challenging his demotion arising out of a punishment order passed upon him for unauthorisedly refinancing certain loan accounts, and failing to check the ‘end-use’ of loans obtained under the PM Employment Generation Programme Scheme (“PMEGP”).
In refusing to interfere with the “punishment order,” by referring to various Apex Court judgements, and invoking the Wednesbury Principle of Reasonableness, a single-bench of Justice Shekhar B Saraf held:
[Petitioner] was found extending undue favour to borrowers without taking into consideration their past track record; and financing accounts under the PMEGP scheme without undertaking post lending inspection. Lord Diplock held that for a decision to be unreasonable under the Wednesbury Test, it must be so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Considering there is prima facie proof of misconduct on behalf of the petitioner, demotion in salary pay scale does not shock the conscience of this Court.
Case: Amit Polley Vs. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 284
The Calcutta High Court has refused to quash criminal proceedings initiated against a man accused of abetting the suicide of a minor girl whom he was “in love” with, by allegedly inflicting physical and mental torture upon her, as well as demanding money from her.
Accused is booked under Section 306 IPC. Single-bench of Justice Shampa (Dutt) Paul directed the Trial Court to be mindful of Section 305 IPC (Abetment of suicide of child or insane person) during framing of charges. It observed,
In the present case, it is prima facie on record that the victim was a minor on the date of incident (alleged suicide). Thus the offence alleged prima facie has the ingredients required under Section 305 IPC, on record. Accordingly, the learned Trial Judge shall consider the said materials on record at the time of consideration and framing of charge or at the relevant stage, in accordance with law. The present case has to thus proceed towards trial to be decided in accordance with law as there is prima facie materials in this case against the petitioners to go to trial and quashing a case of such a nature will cause miscarriage of justice.
Case: Ashis Khamrai v State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 285
The Calcutta High Court has allowed a ‘rally’ to be organised by job aspirants on 27th September, who were denied appointments as Group-D employees under the Government of West Bengal, despite having requisite qualifications.
A single bench of Justice Jay Sengupta, while allowing the plea, directed the petitioners to hold such a procession, along the designated route, until 5pm, and in accordance with law.
"It is clarified that the entire programme should come to an end at 5 pm."
State government was directed to make necessary police arrangements for security of the demonstrators and passers-by
Case: Amna Parveen Vs. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 286
The Calcutta High Court has recently dismissed a challenge against the Teachers Entrance Test (“TET”) 2014, by a candidate who claimed that she was not selected after the interview, even after allegedly scoring high marks.
In dismissing the petitioner’s plea after perusing video footage of her interview, bench of Justice Abhijit Gangopadhyay observed:
With such sense of spelling a person cannot be allowed to be a primary teacher. I have asked one spelling namely, ‘Durga’ [in Bengali] which also she spelt wrongly. Therefore, I think that the performance on that particular day of the petitioner was not up to the mark and we need not spend further time to see the video of the interview. I accept the result i.e. the marks given by the experts in the interview and communicated to this court as correct assessment and, therefore, the writ application is dismissed.
Case: Kishore Kumar Singh Vs. The State of West Bengal & Ors
Citation: 2023 LiveLaw (Cal) 287
The Calcutta High Court has refused to quash criminal proceedings against a Branch Manager of Standard Chartered bank who had been accused u/s 506 (criminal intimidation) and 509 (outraging modesty of a woman) of the IPC for allegedly threatening an employee who had approached the Labour forum against illegal termination of service.
Complainant submitted that the petitioner had threatened her to withdraw her case before the labour forum by allegedly “giving wrong signs” and stating that “Standard Chartered Bank, a big institution can purchase judgement”
In denying the petitioner any relief, a single-bench of Justice Bibhas Ranjan De held:
I am unable to come to a conclusion that the written complaint is so absurd and inherently improbable on the basis of which no prudent person can ever reach to a conclusion that there is sufficient ground for proceedings against the accused/petitioner.
Case: The State of West Bengal and others Vs. Kalpana Das Sarkar and others
Citation: 2023 LiveLaw (Cal) 288
The Calcutta High Court has recently upheld the order of a single-judge which transferred to the CBI, an ongoing probe into allegations of money laundering by the functionaries Alipurduar Mohila Samabay Rindan Samity Limited, a cooperative society.
A single-judge had earlier ordered the State’s CID which had been investigating the matter, to transfer the same to the CBI & ED (Eastern Zone), due to lack of progress in the investigation, and had subsequently dismissed a ‘frivolous’ recall application taken out by the CID by imposing costs of Rs 5 lakhs upon the CID.
In dismissing the appeal arising out of the single-bench’s orders, while setting aside the payment of costs, and expunging “aspersions” cast on the CID by the single-judge, a division-bench of Justice Sabyasachi Bhattacharya and Justice Uday Kumar held:
On merits, no fault could be found with the order dated September 15, 2023 inasmuch as the recall application of the CID was rejected.
Calcutta High Court Directs Post Master General To Release MIS Dues Pending For Almost 15 Yrs
Case: Mrs. Polin Mukherjee V Union Of India & Ors.
Citation: 2023 LiveLaw (Cal) 289
The Calcutta High Court has directed the Chief Postmaster General to release sum of Rs 50,000 including a bonus of Rs 5,000 along with interest of 6% p.a. from the date of maturity of the petitioner’s Monthly-Investment-Scheme (“MIS”) account at the Bhadrakali Post Office.
A single-bench of Justice Shekhar B Saraf held:
The petitioner states she is being deprived of her savings due to the arbitrary and negligent actions of the respondents. [Respondents] contend there was a procedural lapse on behalf of the concerned Postal Assistant, and he was punished accordingly. It is established that the respondents were aware of the gravity of such acts from a reading of SB Order No. 3/2008 dated February 19, 2008. Thus, the respondent cannot argue that the action of the concerned Postal Assistant was a mere procedural lapse. As observed in Sulekha Chatterjee v. Union of India and Others (2023), the Post Office serves as a guardian of savings and operates on the trust of the citizens of this country that has been built over decades. However, such acts tarnish this trust and utmost effort must be made to redress the wrong done.
Case: Surendra Prasad v The Union of India & Ors.
Citation: 2023 LiveLaw (Cal) 290
The Calcutta High Court has directed the Food Corporation of India (“FCI”) to pay the petitioner’s gratuity along with 8% interest, within four weeks in a challenge against withholding of his gratuity due to ongoing criminal investigations under allegations of ‘moral turpitude.’
In setting aside the order of the Deputy Chief Labour Commissioner, a single-bench of Justice Shekhar B Saraf held:
The Deputy Chief Labour Commissioner decided upon the issue…depending on the possibility that the petitioner could be found guilty in the pending CBI proceedings. The petitioner has been acquitted of all charges in a criminal case and rest of the CBI cases are pending. Therefore, so long as the aforementioned [cases] are pending, the employer cannot forfeit the payment of gratuity to the petitioner. The Deputy Chief Labour Commissioner did not factor in, this seemingly trivial issue, but the petitioner was never dismissed nor terminated from service [even] the penalty order does not terminate, nor does it dismiss the petitioner from service.
Case: Partha Ghosh -Versus- The State Of West Bengal And Others
Citation: 2023 LiveLaw (Cal) 291
In a scathing verdict on the state-aided Rabindra Bharati University, the Calcutta High Court has expressed dismay and distress over the University’s insistence on engaging in ‘unnecessary’ litigation even though a Division-bench had warned them against doing so.
A single-bench of Justice Kaushik Chanda observed:
This Court is surprised that a State-aided university, at the cost of public exchequer, has engaged in extravagant litigations seemingly without a productive purpose. Despite being cautioned by the Division Bench of this Court, the learned advocate representing the university seems to have refused to internalise the lessons. The learned advocate for the university was allowed to place his case for nearly a full day. His submission has been followed by a 38 (thirty-eight) page written notes of argument…this Court is surprised that a learned advocate of this Court, despite being cautioned by the Division Bench refuses to learn any lesson and fails to discharge his obligation to assist the Court in arriving at a right decision.
Case: Abhishek Banerjee v ED
Citation: 2023 LiveLaw (Cal) 292
The Calcutta High Court has directed the Enforcement Directorate (“ED”) to not initiate any coercive action against TMC leader and MP Abhishek Banerjee pursuant to ECIR (Enforcement Case Information Report)II/19/2022 filed by the ED, accusing him in the ‘Teacher-recruitment scam.’
However, it refused to the quash the ECIR itself. A single-judge bench of Justice Tirthankar Ghosh directed the ED not to take any coercive action against Banerjee, except under Section 19 of the Prevention of Money Laundering Act (“PMLA”) as had been elaborated by the Apex Court in V. Senthil Balaji’s case.
As such, except the statement of Sujay Krishna Bhadra (an accused who is in custody) no materials were produced by E.D. before this Court to relate the petitioner with the ECIR under challenge. Having regard to the same I direct that no coercive measures would be taken against the petitioner by the E.D. without adhering to Section 19 of the PMLA, 2002. So far as the prayer for quashing of ECIR/KLZO-II/19/2022, I am of the view that the stage at which the petitioner approached this Court was premature compared to the present stage of investigation and as such the same cannot be interfered with, it was held
Calcutta High Court Refuses To Entertain PIL Seeking Permission To Organise 'Durga Puja', Asks Petitioner To Approach Appropriate Authority
Case: Suman Dutta And Ors Vs State Of West Bengal And Ors.
Citation: 2023 LiveLaw (Cal) 293
The Calcutta High Court dismissed a PIL filed by the Sonarpur Uttar Vidhan Sabha Saradutsab Committee, seeking the Court’s permission to construct a Durga Puja pandal and organise Durga Puja celebrations from 19th-25th October, near 45 A/B Bus Stand.
In noting that the petitioner’s prayers were not sustainable as a PIL, and that the State had opened a comprehensive portal for granting Durga puja permissions, a bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya held:
“This writ petition is not maintainable as a PIL…if an individual or group seeks to hold puja, they have to contact the appropriate authorities for consideration, by way of an application. If permission is granted, responsibility has to be affixed to whom permission has been granted. State has submitted that to obtain permission, application has to be made online through a dedicated portal, which has opened today. Thus, no directions are required to be issued, and the petitioners may seek permission by making applications through the portal.”
Case: St. Mary’s Technological Foundation and Another Vs. The West Bengal State Electricity Transmission Company Limited and Others
Citation: 2023 LiveLaw (Cal) 294
The Calcutta High Court has dismissed a plea challenging the passage of a “high-tension transmission line” overhead of a plot of land owned by the St. Mary’s Technological Foundation, which catered to Christian minorities and students from weaker sections of society.
In dismissing the arguments of the petitioners, while holding that the right to religious freedom ought to be balanced with overwhelming public interest, a single-bench of Justice Sabyasachi Bhattacharya held:
It is well-settled that the right to get electricity has been read as a component of Article 21 of the Constitution, conferring the right to life. [As the Apex Court held] the provisions of the Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest, necessary for growth and development of a country and economy and the wellbeing and progress of the citizens. The key is, thus, to strike a balance between Article 30 of the Constitution and overwhelming public interest. The High Tension transmission line is to cater to huge sections of society, in the locality and elsewhere, including the petitioners themselves, who would also be beneficiaries thereof. Such overwhelming public interest cannot be brushed aside to give precedence to the right of the petitioners under Article 30(1), as held by the Five-Judge Bench in Islamic Academy (2003).
Case: Ankita Saha & Anr. V The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 295
The Calcutta High Court has dismissed a plea by the writ petitioner, who challenged an order from the Chairman/Secretary, District Primary School Council, Dakshin Dinajpur (“Chairman’”), denying her compassionate appointment upon the passing of her father, who died-in-service in 2010.
In upholding the order passed by the Chairman, a single-bench of Justice Shekhar B Saraf observed:
This Court does not find any infirmity with the order passed by the Chairman dated December 15, 2017, because not only was petitioner no.1 a minor of 14 years of age on the date of death of her father, but the two-year application period had also expired for petitioner no.1 after she attained the age of majority. It is settled law that compassionate appointment is not a right, rather an exception to Articles 14, 15 and 16 of the Constitution of India wherein the same must be provided in terms of the rules framed for such an appointment.
Case: Bijoy Kumar Banik and another vs State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 296
The Calcutta High Court has allowed the writ petition filed by a couple who claimed that they had been driven out of their home by their son and daughter-in-law (“respondents”).
Petitioners claimed that they had right title and interest over the property and that the respondents had been torturing, intimidating and even assaulting them for a considerable amount of time, eventually ousting them from the house.
In reinstating the petitioners to their home, a single-bench of Justice Jay Sengupta held:
It appears that although the petitioner No.2 is presently the owner of the property in question which was originally owned by the petitioner No.1. They both have allegedly been ousted by their son and daughter-in-law. Regardless of the veracity of such allegations, the owners of the property have every right to stay there and their son and daughter-in-law could at best live there as licensees. At this age, the petitioners cannot be relegated to the civil court to obtain necessary relief in this regard.
Case: Ruksana Khatun Vs. Union of India and others
Citation: 2023 LiveLaw (Cal) 297
The Calcutta High Court has refused to pass orders in favour of a volleyball player who challenged her non-selection by the Volleyball Federation of India (“VFI”) for the 2023 Asian Games contingent.
Petitioner claimed that she was highly accomplished in the sport of Volleyball at the national level, and that those had achieved far less than her in the sport, had been selected due to a non-transparent selection process.
In dismissing the plea, a single-bench of Justice Sabyasachi Bhattacharya held:
The court is not an expert in the field of Volleyball or, for that matter, in any sport. Hence, some amount of finality has to be attributed to the outcome of the selection process, which is supposed to be held by people having sufficient acumen of the concerned sport. However, the petitioner has a point in arguing that since the petitioner is one of the premier sports persons of the country in the field of Volleyball, she is at least entitled to know her deficiencies, as perceived by the selection committee [by accessing video footage of the selection process]…for the limited purpose of the petitioner assessing her own performance for future competitions.
Case: Nand Kishor Shaw & Ors. -Versus- State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 298
The Calcutta High Court has recently directed the State's Transport Department to publish all route/permit vacancies for plying of auto rickshaws in the State, to enable transparent allocation of the same.
In dismissing an appeal against a single-bench order which refused to interfere with the allocation of auto rickshaw permits for the Howrah-Don Bosco, Liluah route a division bench of Justices Rajasekhar Mantha and Supratim Bhattacharya held:
There may be some substance into individual grievances raised by the petitioners. If the same are entertained, they would not upset a number of awarded permits on a particular route, but could also deprive existing permit holders of rights. This Court is not inclined to interfere with the impugned judgement [but] directs that henceforth all vacancies in any permit on any route would be indicated and published on the website of the concerned RTA in the State.
Case: Dilip Adhikary Vs. Basanta Nath
Citation: 2023 LiveLaw (Cal) 299
The Calcutta High Court has observed that offences under Section 138 of the Negotiable Instruments Act (“N.I. Act”), cannot be compounded without the complainant’s consent, in violation of Section 320 CrPC.
In dismissing two criminal revisions, a single-bench of Justice Subhendu Samanta held:
It is clear that the prayer of compromise at the stage of criminal revision before this High Court is not possible without consent of the complainant. Nothing prevented the petitioner to make the proposal before the Magistrate or the appellate court. However, the law of the land is well established to the fact that the compounding cannot be held violating the principle enumerated in Section 320 of the Cr.P.C, thus I am of a view that the offences as proved against the petitioner cannot be compounded.
Case: Pravash Dalui And Ors Vs State Of West Bengal And Ors
Citation: 2023 LiveLaw (Cal) 300
The Calcutta High Court has allowed a writ petition moved by reserved category candidates in the WB Police Constable Recruitment 2019, whose names were excluded in a revised merit list that was published in 2022 pursuant to the impugned judgment by the WB State Administrative Tribunal (“SAT”).
The Bench restored the original merit list that quashed by SAT, in which reserved candidates who received marks equal to or more than general candidates, were treated as general category candidates.
In setting aside the decision of the SAT, and holding that the merit list published in 2021 was in accordance with the provisions of the various State Acts, a division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya cancelled the appointments made pursuant to the 2022 merit list and held:
In the case on hand the authorities prepared the original merit list/panel dated 26.03.2021 by placing the meritorious reserved category candidate in the unreserved category irrespective of the fact that they had availed the relaxation in age etc. The direction of the learned Tribunal in the impugned judgment to prepare a panel afresh is in effect directing an authority to act de hors the statutory provisions which is not permissible. The names of several candidates of the reserved category which found place in the original merit list, got excluded in the revised merit list/panel published pursuant to the impugned judgment. Therefore, the revised list/panel prepared pursuant to the direction of the learned Tribunal is liable to be set aside and quashed.
Case: Palash Das Vs. The State of West Bengal and others
Citation: 2023 LiveLaw (Cal) 301
The Calcutta High Court has directed the State to provide the petitioner, a person with 100% disability, with a wheel chair under the Prosthetic Aids and Appliances Scheme of the Government of West Bengal, as well as with a space/shop near Baranagar in order for the petitioner to start some business with the help of his wheelchair.
In taking exception to the apathy faced by the petitioner at the behest of the State, a single-bench of Justice Sabyasachi Bhattacharya held:
The State has taken a palpably nonchalant attitude in abstaining from hearing of the matter repeatedly. The State cannot shirk its responsibility as parens patriae, having liability to look after citizens who are not able to look after themselves for some reason or the other beyond their own control.
Case: Sri Nirbhay Lodh Vs. The UCO Bank & Ors.
Citation: 2023 LiveLaw (Cal) 302
The Calcutta High Court has directed UCO Bank to disburse within a period of 6 weeks, the salary arrears, retirement and service benefits of a retired employee whose conduct during service is being disputed by the Bank.
Earlier, the petitioner’s order of dismissal by the Bank was dismissed by a co-ordinate bench, whose order was subsequently upheld by a division-bench on 27th June 2023.
In allowing the writ petition, a single-bench of Justice Shekhar B. Saraf held:
“I see no merit in the arguments of the respondents to deny the petitioner his salary arrears, retirement and service benefits on grounds of pendency of appeal or the order of dismissal of service since both such grounds are redundant after the order of the Division Bench of this High Court dated June 27, 2023. The argument that they may file an appeal challenging the order of the Division Bench of this High Court in the future and therefore, in the eventuality of pendency of such future appeal, the petitioner must not receive his arrears is not sound in law. The possibility of pendency of future appeals cannot be grounds for not withholding an employee’s salary arrears, retirement and service benefits.”
Case: Sushil Kumar Thard vs. National Jute Manufactures Corporation Limited & Ors.
Citation: 2023 LiveLaw (Cal) 303
The Calcutta High Court has recently held that damages being claimed by a party, must satisfy the threshold of credibility, and not be mere “guesstimates” made without legal basis.
Petitioner was aggrieved by the National Jute Manufactures Corporation Limited (“NJMC/respondent no 1”), decision to forfeit the pre-bid earnest money deposited by the petitioner in response to a call for e-auction by the respondents.
In allowing the petitioner’s plea for refund of pre-bid earnest money held with the respondent, a single-bench of Justice Moushumi Bhattacharya held:
The right to forfeiture of earnest money cannot survive in the absence of proof of actual loss. Therefore, NJMC must prove that it has suffered loss or damage consequent to such refusal and is entitled to compensation. It is evident from the second affidavit of NJMC that the estimation of damages is inflated, exaggerated, unreasonable and remote, apart from failing to disclose any basis for the computation. NJMC simply seeks to make a windfall at the expense of the petitioner. As a Government of India undertaking, the act of forfeiture is also discriminatory and in breach of equality and fair play.
