10 Sep 2023 9:30 AM GMT
NOMINAL 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 of West Bengal & Anr 2023 LiveLaw (Cal)...
1. Security Offered By An Award-Debtor For Stay Of Arbitral Award Must Be ‘Clean, Unblemished With Good Exchange Value’: Calcutta High Court
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.
2. "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.”
3. Calcutta High Court Orders DM To Probe Alleged Embezzlement Of Public Funds By Self-Help Group Tasked With Producing School Uniforms
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.”
4. Chargesheet Submitted 5 Yrs After Rape Allegations Were Withdrawn: Calcutta High Court Quashes Case Against Local Politician
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.
5. Calcutta High Court Dismisses 'Contradictory' Plea Seeking Both Compensation & Possession Of Land Acquired By Govt 52 Yrs Ago
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.
6. WhatsApp Messages By Daughter-In-Law After Lodging FIR Shows Relationship With In-Laws Was Normal: Calcutta High Court Quashes 498A Case
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."
7. Fishing & Roving Inquiry’ On Plausible Defence Not Acceptable At Revisional Stage: Calcutta HC Refuses To Quash Abetment Of Suicide Case
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.
8. Wife’s Claim For Restoring Marital Rights Without Withdrawing ‘Vexatious Criminal Complaint’ Doesn't Mitigate Cruelty Suffered By Husband: Calcutta HC
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.
9. Money Exchanged 10 Days Before Victim's Death Gives Presumption Of ‘Dowry Death’: Calcutta High Court Upholds Husband’s Conviction
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.
10. Calcutta High Court Grants Interim Relief To School Secretary Booked Under PoSH Act For Calling Colleague 'Faltu'
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.
11. Denying Permission For Other Festivities On Ground Earmarked For Durga Puja Violates Article 14: Calcutta HC Paves Way For Ganesh Pujan
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.
12. Rape-Accused Cannot Plead Insanity Merely Because Locals Called Him “Mad”, Survivor’s & Doctor’s Evidence Crucial: Calcutta High Court
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.
13. Authority’s "Paranoia" Not Sufficient For Issuance Of Look-Out Circulars Curtailing Individual Liberty: Calcutta High Court
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
1. Recruitment Scam: Calcutta High Court Defers Verdict In MP Abhishek Banerjee's Quashing Plea After ED Raids Company Linked To Him
Case: Abhishek Banerjee v Directorate of Enforcement (ED)
The Calcutta High Court has deferred its verdict in a 482 CrPC petition filed by Trinamool Congress MP Abhishek Banerjee for quashing the criminal cases registered against him in the Municipal and Teacher-Recruitment scam, wherein prospective candidates were offered government jobs in exchange for money.
In taking on record Banerjee's submissions that the Enforcement Directorate (“ED”) unauthorisedly raided “Leaps & Bounds”, a company where he was the CEO, only after conclusion of arguments in the present case, a single-bench of Justice Tirthankar Ghosh held:
On 21.08.2023, the hearing of the arguments in connection with this case was concluded…and this Court reserved the judgment and fixed 05.09.2023, as the date for pronouncement of the judgment. Subsequently, an application was taken out on behalf of the petitioner claiming that in the interregnum period, a raid was conducted at an office, namely, “Leaps & Bounds” wherein the petitioner happens to be the Chief Executive Officer and for a limited period of time, the petitioner was also a Director. Mr. Datta, learned senior advocate for the petitioner submits that the same was not with the consent and knowledge of the employees or the Officers of the said Company. In view of the present circumstances, the date fixed for delivery of the judgment for the time being is kept in abeyance.
2. Calcutta High Court Issues Notice To State On PIL Against Non-Implementation Of Centre’s ‘CSC 2.0’ Scheme In Bengal, No Interim Relief
Case: Dr Sukanta Majumdar v State of WB
The Calcutta High Court has issued notice to the West Bengal government on a PIL by Dr Sukanta Majumdar, President of State BJP, challenging the non-implementation of the Central Government’s Common Services Centres, E-Governance Committee scheme 2.0 (“CSC”) in West Bengal which formed part of the Digital India Mission.
A division-bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya orally remarked,
Petitioner’s grievance is that the CSC which provides for social justice, and access, is not being implemented in the state of West Bengal, which is a matter of great concern, and therefore he prays for appropriate directions. It is not clear as to what are the services available in the BSK, and what was the reason behind the State government issuing a notification stating that all public services would rendered through the BSK, and no service shall be rendered through CSC. Such a notification in our prima facie view, speaks of schemes and services offered by the Govt of WB, and these do not cover schemes available through the CSC. Therefore we direct the State, to show-cause as to why the direction sought for by the petitioner, should not be issued to forthwith implement the CSC 2.0 in WB….no interim orders can be granted at this stage.”
3. Conduct Student Body Elections, Set-Up Anti-Ragging Committee: Calcutta High Court To State In Plea Against Ragging In Bengal’s Universities
Case: Sudip Raha v Jadavpur University & Ors and Sayan Banerjee v State of WB & ors
The Calcutta High Court has expressed concerns over the endemic of ragging prevalent across Universities in West Bengal, and the non-implementation of a report by the RK Raghavan Committee, which was constituted in 2009 by the Supreme Court to reduce instances of ragging.
In taking note of the plea, which arose out of the unfortunate death of a 1st year student at Jadavpur University, due to incidents related to ragging and violence, a division-bench of CJ TS Sivagnanam and Justice Hiranmay Bhattacharya directed the implementation of the committee’s report, as called for by the SC, and held:
“Petitioner points out that the RK Raghavan report’s recommendations on regular conduct of student elections, as well as constitution of anti-ragging committees and anti-ragging squads had not yet been implemented. Be that as it may, we direct state to immediately issue directions for conduct of student union elections [in Universities throughout the State] and forthwith direct for the constitution of anti-ragging committees and anti-ragging squads, with functionaries as pointed out in the committee report, if it has not yet been done.”
4. Won’t Use Files Downloaded From Server Of Firm Linked To Abhishek Banerjee In Any Criminal Cases: ED To Calcutta High Court
Case: Abhishek Banerjee v ED
The Directorate of Enforcement (ED) has told the Calcutta High Court that it will not use any of the 16 files allegedly downloaded from computers of a firm linked to AITC MP Abhishek Banerjee in criminal cases against him.
A single-bench of Justice Tirthankar Ghosh noted:
"Mr. SV Raju, learned ASG submits that the Enforcement Directorate would on a covering letter certify that these 16 downloaded files which have been downloaded and print out of which are being handed over to this court by the CFSL Authorities would not be used in any evidence in any criminal proceedings by the Enforcement Directorate or any other Agency,"
5. National Flag Not Desecrated On 15th August, Plea Based On “Rumour Mongering”: State Tells Calcutta High Court In Suvendu Adhikari’s PIL
Case: Suvendu Adhikari v State of West Bengal & ors
The Calcutta High Court heard a PIL filed by BJP leader Suvendu Adhikari, claiming that the Indian National Flag had been desecrated by “members of certain communities” in a state-funded primary school.
On an earlier occasion, a bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya had issued notice to the State through the Advocate General, calling for affidavits over what transpired on that day.
AG SN Mookherjee submitted that no flag had been desecreated and that he was in possession of the flag in question, which did not show any signs of tampering.
AG submitted that the PIL was filed on the basis of “rumour mongering” in the absence of actual defacement of the flag.
It was submitted: “Rumour mongering led to these communal disturbances. This area is not usually peaceful, and there have been disturbances between religious groups. Even the concerned school’s principal has given it to us in writing that the flag was not desecrated.”
6. Midnight Calls & Visits To Victims, Particularly Of Sexual Assault Violates Privacy, Dignity: Calcutta High Court Slams Lake Police Officers
Case: In re: The Court of Its Own Motion
In a suo moto motion, the Calcutta High Court has expressed severe condemnation over the conduct of police officers from the Lake Gardens and Narendrapur Police Station who were probing a case involving a gang rape victim.
In reprimanding the police officers for making midnight calls and visits to the victim and in enlarging on bail someone who had attempted to influence her to drop the case, a division-bench of Justice Joymalya Bagchi and Justice Gaurang Kanth said,
"This Court has never come across a case where in the name of ‘investigation’ or ‘interest of justice’ as the deponents would persuade us to believe midnight knocks or Whatsapp calls are made to female victims of crime particularly that of sexual assault...Right to privacy and dignity of every individual particularly a victim of sexual assault is the cornerstone of a civilized society. The Investigating Agency which is duty bound to preserve, protect and champion the fundamental right of privacy of the victim appears to have encroached upon it themselves. This factual background shows brazen disregard to the rule of law, privacy and dignity of a victim of sexual offence."
7. Saradha Chit-Fund Scam: Calcutta High Court Permits TMC Leader Kunal Ghosh's Travel To Spain As Bengal Global Business Summit Delegate
Case: Kunal Ghosh v CBI
The Calcutta High Court has recently allowed an application for relaxation of bail conditions moved by Trinamool Congress (TMC) leader and journalist Kunal Ghosh, an accused in the Saradha Chit-fund scam.
In allowing his application, a division-bench of Justice Joymalya Bagchi and Justice Gaurang Kanth held:
Petitioner is on bail since 2017. There is no allegation of misuse of liberty. He has not yet been convicted. Right to go abroad is a fundamental right and ought not be restricted unless interest of justice demands such a course. Nothing is placed on record to show the course of trial would be hampered if the petitioner is permitted to go abroad. Presently he has been selected as a delegate of Bengal Global Business Summit (BGBS), 2023 to accompany the Chief Minister to Madrid and Barcelona in Spain to invite investments. Though we refrain from commenting on the wisdom of the State machinery to select an undertrial to represent itself in a foreign country to invite investments, the right of the petitioner to go abroad is unexceptionable.