Calcutta High Court Weekly Round-Up: September 11 To September 17, 2023

NOMINAL INDEX

Rohan Builders (India) Pvt. Ltd. v Berger Paints India Limited & connected applications 2023 LiveLaw (Cal) 266

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

Arbitration Act | Tribunal’s Mandate Terminates U/S 29A Unless Extended During Subsistence: Calcutta High Court

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.

Life Sentence Inadequate Only When Reform Impossible: Calcutta High Court Refuses Death Penalty For Minor's Rape & Murder Convictions

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.

Agreement Between Companies, Case Against Directors Cannot Survive Without Impleading Firm: Calcutta High Court Quashes Cheating Case

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.

Voluntarily Leaving Home With Accused Does Not Give Any Right To Invade Victim’s Privacy: Calcutta High Court Upholds Rape Conviction

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.

Substitution Or Addition Of Parties Not Permissible Under Order VI Rule 17 Of CPC: Calcutta High Court

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.

'Unfortunate That State Has Forgotten Its Feminist Roots': Calcutta HC Directs Adherence To NALSA Guidelines For Compensation In Acid Attack Case

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."

'Kerosene Illuminates Homes Of Poor, Oil Companies Cannot Be Permitted To Fix Its Prices': Calcutta High Court Asks Govt To Step In

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.

S.202 CrPC | Magistrate's Order Showing Application Of Mind Not Bad For “Absence Of Magic Words” About Prima Facie Satisfaction: Calcutta HC

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.

Reserved Category Candidates Not Disentitled From Competing In General Category After Availing Relaxation In Age, Fees: Calcutta High Court

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.

Calcutta High Court Upholds Anganwadi Teacher’s Transfer Despite Absence Of Express Provision, Cites Her Problematic "Attitude"

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

Calcutta High Court Denies Relief To Bank Manager Demoted For ‘Undue Favours’ To Borrowers, Applies Wednesbury Test Of Reasonableness

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.

OTHER DEVELOPMENTS

CBI Approaches Calcutta High Court Against Special Court Order For Joint-Probe Into Alleged Custodial Torture Of Recruitment Scam-Accused

Case: Soumen Nandy v. The State of West Bengal & Ors.

Case No.: WPA 9979 of 2022

The Central Bureau of Investigation (“CBI”) on Monday approached a single-bench of Justice Amrita Sinha of the Calcutta High Court, who is in seisin of and monitoring the ongoing probe in the cash-for-jobs recruitment scam wherein many high-ranking officials of the ruling State government are accused by the CBI & Directorate of Enforcement (“ED”).

The central agencies have challenged a Special Court order directing joint-probe into alleged custodial torture of one of the accused, Kuntal Ghosh.

Counsel for CBI, DSG-I Billwadal Bhattacharya submitted that the Special court, which was trying the accused, had passed an order “completely overlooking the court-monitored investigation and orders passed by the High Court,” directing the Joint-Commissioner of Kolkata Police (Crime) and the CBI to conduct another parallel joint-enquiry on Ghosh’s complaint and to pass on the findings of the same to the jurisdictional police.

“Playing With Students’ Future”: Calcutta High Court Says FIR Must Be Registered Against School For Misrepresenting Affiliation To ICSE Board

Case: Swarup Poddar And Ors Vs Council For The Indian School Certificate Examination And Ors

Case No: WPA 22094/2023

The Calcutta High Court today hauled up the board and trustees of St Augustine’s Day School, Kolkata for allegedly misrepresenting itself as a school affiliated to the Council for Indian School Certificate Examinations (“ICSE”).

A single-bench of Justice Biswajit Basu was hearing a plea filed by guardians of 76 students complaining that their wards, studying in class 10, had not been registered for the board exams to be held in 2024.

Upon hearing this, the Court orally remarked, “You [School] have put your Council registration number in mark sheets of class 9 and 10 students…how is this possible? You have been de affiliated since 2022. I am concerned only about the students, I will not hear you blaming the Council…who has taken this decision to admit students while misrepresenting affiliation? This is a criminal offence, a FIR will have to be registered…I will protect the students, but this matter will not end here. All the board and trustees will face consequences. You are playing with the future of these students…not just the 76 before me…but all…why should these innocent children have to suffer? Why should they have to approach court?”

Plea In Calcutta High Court Alleges Bengal Governor "Sitting" On Bill Replacing Him With CM As Chancellor Of State Universities

Case: Sayan Mukherjee & anr v Principal Secretary to His Excellency the Governor of West Bengal & anr

Case No: WPA(P) 247 of 2023

The Calcutta High Court on Tuesday called for affidavits from the Office of West Bengal Governor, Dr C.V. Ananda Bose, in a PIL challenging his alleged inaction in either assenting to or sending back to the House for reconsideration, the West Bengal Universities (Amendment) Bill 2022, which was passed by the State legislature in June 2022.

Petitioners argued that the Governor has been “sitting on the Bill” due to it recognising the Chief Minister as Chancellor of the State Universities, ousting the Governor from the role.

The division bench of Justice I.P. Mukherji and Justice Hiranmay Bhattacharya took up the plea on an urgent motion however, noted that the issue can be decided only after filing of affidavit by the Governor's office.

Calcutta HC Halts Panchayat Sthayee Samiti Elections At Raninagar, Opposition Candidates Claim Ruling Dispensation Lodging False Criminal Cases

Case: Ruhul @ Ruhul Sk. & Ors. v The State of West Bengal & Ors

Case No: W.P.A 22025 of 2023

The Calcutta High Court has restrained the Subdivisional Officer (SDO) Domjur, from carrying on with the process of election of the members of the Sthayee Samity, Raniganagar-II Panchayat Samity, upon objections raised by thirteen members of the Panchayat Samiti.

A single-bench of Justice Amrita Sinha took note of the petitioners claims that the “ruling dispensation had created an atmosphere of terror” by falsely implicating members of the Samity in criminal cases, with the help of local police, and accordingly granted their prayer for postponement of the election process which was scheduled on 11^th September.

It observed: It has been submitted that the Sabhapati of the Panchayat Samity has been implicated in false criminal case and taken in custody. Six other members of the Panchayat Samity have been named in an FIR lodged before the police and the said members are absconding, fearing arrest. The Pradhan is also absconding and is under the threat of being arrested by the police. It will be practically impossible for all the members to attend the meeting for election of the Sthayee Samity.

Cash-For-Jobs Scam: Calcutta High Court Seeks ED Report On Assets Of Abhishek Banerjee, Directors Linked To His Firm 'Leaps & Bounds'

Case: Soumen Nandy v. The State of West Bengal & Ors. and connected applications

Case No. WPA 9979 of 2022 & connected applications

The Calcutta High Court on Thursday directed the Central Bureau of Investigation (“CBI”) and Directorate of Enforcement (“ED”) to submit before it, the names and assets of CEO and Directors of 'Leaps & Bounds', a company linked to recruitment-scam accused AITC MP Abhishek Banerjee.

The company offices were raided by the central agencies last month. It is alleged that the company was being used to siphon large sums of money.

A single-bench of Justice Amrita Sinha further directed that the names and assets of all the film-industry actors who are allegedly associated with the multi-tier cash-for-jobs scam, also be placed on record.

The development comes in ongoing cases pertaining to the municipal, SSC and college-recruitment scam, being investigated jointly by the CBI and ED under the monitoring of the High Court. High-level functionaries of the State government are accused in these cases.

Centre Discriminating Against West Bengal In Allotment Of Funds Under PM Awas Yojana: PIL In Calcutta High Court

Case: Mayureshwar Amdebkar Smriti Sangha and Anr.-versus- Union of India and Ors.

Case No: W.P.A.(P) 502 of 2023

The Calcutta High Court today called for affidavits from appropriate authorities of the Central Government, in a plea alleging that the Centre has failed to make any contribution to the Housing Scheme under the Pradhan Mantri Awas Yojana (Gramin) (“scheme”) in West Bengal.

A division-bench was apprised by the petitioners, that under the scheme, adopted by the central government in 2016, financial assistance was to be provided to eligible persons living in kachha and dilapidated houses to build pucca houses in rural areas by 2024. 2.94 crore houses were contemplated for 2023-24.

It was submitted by the petitioners that a list had been annexed to their writ petition with names of eligible persons, the date of sanction of a house for them, the sanctioned amount, etc.

It was argued that under the housing scheme, the Central government was to contribute 60% of the sanctioned amount, while the remaining expense would be borne by the State.