Calcutta High Court Weekly Round-Up: 2022 LiveLaw (Cal) 49 to 2022 LiveLaw (Cal) 58

Nominal Index 

Rajib Paul v. The State of West Bengal and Anr 2022 LiveLaw (Cal) 49

Rakesh Kumar Singh v. Director, Alipore Zoological Garden & Ors 2022 LiveLaw (Cal) 50

 Anindita Mandal v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 51

 Md. Abdul Gani Ansari v. State of West Bengal & Ors. 2022 LiveLaw (Cal) 52

Iti Pandit v. The Union of India and Ors 2022 LiveLaw (Cal) 53

Pratap Banerjee v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 54

Bharat Heavy Electricals Limited v. Optimal Power Synergy 2022 LiveLaw (Cal) 55

Chandan Jana & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 56

Ashoke Ghosh v. State of West Bengal 2022 LiveLaw (Cal) 57

Shueli Panda Mishra & Ors v. State of West Bengal 2022 LiveLaw (Cal) 58

Orders/Judgments of the week 

1. 'Reduced Investigation To A Mockery': Calcutta HC Orders CBI Probe Into Haldia Dock Extortion Case, Rejects State's Plea For SIT Probe

Case Title: Rajib Paul v. The State of West Bengal and Anr

Case Citation: 2022 LiveLaw (Cal) 49

The Calcutta High Court ordered the Central Bureau of Investigation (CBI) to probe into alleged extortion of truckers at Haldia Port and observed that "syndicates" have a stranglehold on most businesses and commerce in the state. The Court thus stayed the ongoing investigation by the State police and furthermore rejected the State's plea to allow a Special Investigation Team (SIT) to be entrusted with the investigation. Justice Rajasekhar Mantha observed, "The investigation is being carried out in a perfunctory manner. The faith of the public at large in such investigation could be eroded. There is therefore strong and prima facie case made out for transfer of the case from the State to the CBI. The Court directed the CBI to collect all the case material including case diary and all evidence from the Haldia Police and commence investigation. However, the Court ordered that final report shall not be filed by the CBI without the leave of this Court.

2. Outsiders' Entry Inside Alipore Zoo| Calcutta HC Disposes Of Plea By Directing Police To Act Impartially, Submit Report To Magistrate Within 1 Month

Case Title: Rakesh Kumar Singh v. Director, Alipore Zoological Garden & Ors

Case Citation: 2022 LiveLaw (Cal) 50

The Calcutta High Court disposed of a plea pertaining to the alleged entry of outsiders inside the Kolkata Alipore Zoo premises by directing the concerned police authorities to investigate into the matter and submit a report to the concerned jurisdictional Magistrate within a period of one month. The Court was adjudicating upon a plea moved by BJP leader Rakesh Kumar Singh alleging that on January 24 about 600-700 persons had forcefully entered the Zoo premises even though the premises were not open to the public due to the ongoing Covid-19 pandemic. Justice Mantha opined that the claims of the petitioner cannot be adjudicated under writ jurisdiction and accordingly observed, "This Court is of the view that the claims and grievances of the petitioner as recorded hereinabove, cannot be dealt with under Article 226 of the Constitution of India." The Court further directed the concerned police authorities to investigate into the complaints lodged in an impartial manner and submit a report to the concerned jurisdictional Magistrate within a period of one month. "The Zoo Administration and police are ordered not to take sides and be impartial in dealing with any situation inside or outside the Zoo premises. The complaint filed by the police shall be investigated and suitable report be submitted to the jurisdictional Magistrate within a period of one month from date. The complainants may take appropriate steps against such final report as they may be advised in accordance with law", the Court directed.

3. 'Not A Case Where Family Can't Arrange Two Square Meals': Calcutta HC Denies Compassionate Appointment To Petitioner Whose Mother Is Working

Case Title: Anindita Mandal v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 51

The Calcutta High Court dismissed a plea seeking compassionate appointment by observing that the mother of the petitioner is a teacher of a school and thus there is no immediate crisis faced by the family members. The petitioner one Anindita Mandal had sought compassionate appointment on the ground that her father had passed away when she was ten years old. The mother of the petitioner is working as a teacher in a school. Justice Abhijit Gangopadhyay observed, "The compassionate appointment is given to tie over immediate crisis faced by the family members for untimely death of the bread earner. It is not a case where the family is facing crisis to arrange even two square meals as the mother of the petitioner is working". The Court ruled that the instant case would not come within the the policy of the State for compassionate appointment. Accordingly, the petition was disposed of.

4. 'Deliberate Illegal Action': Calcutta High Court Raps WBSSC, Cancels Appointment Of 6 Teachers In Recruitment Scam

Case Title: Md. Abdul Gani Ansari v. State of West Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 52

The Calcutta High Court ordered the cancellation of appointment of six assistant teachers in the Murshidabad district after noting that they had been illegally appointed pursuant to the illegal recommendation of the West Bengal School Service Commission (WBSSC). The Court was adjudicating upon a plea alleging illegal appointments pertaining to the West Bengal State Level Selection Test (SLST) for Class 9 and Class 10 mathematics teachers. Justice Abhijit Gangopadhyay observed that the illegally recruited candidates do not have any 'legal right' to o work as assistant teachers in the schools pursuant to the letter written by the District Inspector of Schools (S.E.), Murshidabad dated February 8, 2021 to the President of West Bengal Board of Secondary Education. Furthermore, the Court noted that the WBSCC had stated that the illegally recruited candidates had been recommended by the Commission due to a 'mistake'. Opining that this was a 'deliberate illegal action' on the part of the Commission and not a mistake, the Court further remarked, "Though the School Service Commission has taken shelter under the expression 'mistake', this court wholly disbelieves such shroud of the Commission now placed on its face. This cannot be a mistake. These are deliberate illegal action otherwise the wait-listed candidates in serial nos. 229, 242, 250, 265, 289 and 302 could not have been recommended selectively by the Commission."

5. Trafficked Girl Rescued From Bangladesh & Reunited With Parents In India: Calcutta HC Lauds Efforts Of All Stakeholders, Directs Rehabilitation Of Victim

Case Title: Iti Pandit v. The Union of India and Ors

Case Citation: 2022 LiveLaw (Cal) 53 

In a significant development, a victim girl who had been trafficked to Rangpur, Bangladesh has been rescued and reunited with her parents back in India. The Court had earlier directed the Central government to take concrete measures to ensure immediate repatriation of the victim to India.  Justice Rajasekhar Mantha recorded his appreciation and gratitude towards the efforts put in by the High Commission of India at Dhaka and High Commission of Bangladesh at Kolkata in helping with the recovery of the victim girl. He further appreciated the efforts of other stakeholders by observing, "In the present case as well, this Court had attempted to employ all the faculties available to it, to rescue the victim, a little girl, from her traffickers, and to reunite her with her parents. Its efforts were complemented by a host of individuals and institutions, and the Court expresses its immense gratitude to the all those involved in the rescue efforts." The Court further averred that the writ jurisdiction of Constitutional Courts under Article 32 and Article 226 forms the life- blood of the Constitution as it effectuates and enforces the Fundamental Rights of citizens, in the absence of which, the existence of those rights would be in vain. "This case has proven that territorial and other limitations are easily defeated in the face of an overwhelming determination of find suitable solutions. This Court hopes that this will set a precedent for future cases where Courts or other authorities feel helpless and tied down by such similar difficulties. In the words of two famous people, "It always seems impossible until its done.", and "Perseverance is not a long race: it is many short races one after the other", the Court further underscored. 

Also Read: 'Take Immediate Measures To Repatriate Victim To India': Calcutta High Court Directs Union In A Case Of Trafficking Of Girl From India To Bangladesh

6. WB Municipal Polls: State Election Commissioner To Be Held Personally Liable If Central Forces Not Deployed, Decision To Be Taken In 24 Hrs 

Case Title: Pratap Banerjee v. State of West Bengal and other connected matters

Case Citation: 2022 LiveLaw (Cal) 54

The Calcutta High Court directed the State Election Commission (SEC) to hold a joint meeting with the officials of the West Bengal government within 24 hours and decide as to whether deployment of central paramilitary forces will be required for the peaceful conduct of the upcoming elections to the remaining 108 municipalities which is scheduled to take place on February 27. The Court underscored that in the event it is decided that central forces will not be deployed then the State Election Commissioner would be held personally liable to ensure that no violence takes place and there is peaceful conduct of elections. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed, "We direct that the Commissioner, State Election Commission will collect information in respect of the conditions prevailing in each of the Municipalities where the elections are scheduled and will hold the joint meeting with the Home Secretary of the State and the Director General and Inspector General of the Police within 24 hours and will examine the ground situation of each of the 108 Municipalities and take a decision in writing in respect of deployment of paramilitary forces by mentioning the relevant circumstances in support of his decision to deploy/not to deploy the paramilitary forces". The Court noted that although it has been alleged that BJP candidates have been prevented from filing their nomination papers however neither the names of those candidates have been disclosed nor have their supporting affidavits been filed. It was further averred that in respect of the already concluded elections to 4 municipalities, conflicting material has been placed on record about the alleged violence.

Also Read: Calcutta HC Reserves Judgment In BJP's Plea Alleging Large Scale Violence During WB Municipal Polls

7. Order XLVII Rule 1 | 'Error Can Be Corrected Without Clamour, Correction Would Not Alter Decree': Calcutta HC Explains Requirements For Review 

Case Title: Bharat Heavy Electricals Limited v. Optimal Power Synergy

Case Citation: 2022 LiveLaw (Cal) 55

The Calcutta High Court had the opportunity to expound on the requirements that need to be fulfilled before a Court can revisit a judgment under Order XLVII Rule 1 of the Code of Civil Procedure, 1908. Justice Moushumi Bhattacharya observed that 'an error apparent on the face of the record' is an error which would be self- evident and obvious even at first glance. It was further enumerated that Order XLVII does not permit reappraisal of the merits of the matter and thus determination of such an error should not involve a long-drawn process of reasoning on points requiring a contested hearing. "The sub-text of Order XLVII Rule 1(1) is that the error can be corrected without clamour; the parties being on the same page that the correction of the error would not alter the decree, subject to the importance and the new-ness of the evidence which is subsequently discovered", the Court averred further. 

8. 'An Election Gimmick': Calcutta HC Dismisses BJP Candidates' Plea Alleging Threats By Rival Party Members Amid Municipal Polls

Case Title: Chandan Jana & Ors v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 56

The Calcutta High Court dismissed a petition filed by BJP candidates contesting in the upcoming West Bengal Municipal elections, seeking police protection from the State so that they get a fair chance to compete in the elections. The Court noted that several discrepancies had been found in the allegations levelled and further labelled such allegations to be an 'election gimmick'.Justice Sabyasachi Bhattacharyya observed, "There is a fair chance that the representation, at least in respect of some of the candidates, might very well be an election gimmick more than a genuine grievance being expressed before a Court of Law".  Opining that there are several discrepancies in the complaints filed by the BJP candidates, the Court observed further, "Looking into the specific allegations made by the writ petitioners in the representation given in pursuance of the order of the coordinate Bench, as compared to their initial complaints and allegations made in the writ petition, several discrepancies are noted." 

9. No Adverse Inference Can Be Drawn Against Prosecution For Not Examining A Vulnerable Witness In Control & Custody Of Accused 

Case Title: Ashoke Ghosh v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 57

The Calcutta High Court has recently held that non-examination of a minor child who was in the control and custody of an accused would not adversely affect the prosecution's case as it is natural for her to be subjected to undue influence or tutoring by the accused. In the instant case, the appellant had been convicted of murdering his wife and their 5 year old minor child was deemed to be a vital witness. It was alleged by the defence that non-examination of the minor child by the prosecution casts an adverse inference on the prosecution's case. Rejecting such a contention, a Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak observed, "It is trite law a child is ordinarily prone to tutoring. When a minor witness was in the control and custody of an accused it is all but natural that she would be subjected to undue influence and/or tutoring by the accused and, therefore, the prosecution may consider it unsafe to examine her. It is for the prosecution chose its own witnesses to prove the case". Opining further that non-examination of a vulnerable witness would not draw an adverse inference, the Court further stated, "If circumstances in a case like the present one give rise to an impression that a vulnerable witness is under the malefic influence of an accused, it would give sufficient justification to the prosecution not to examine her. Such course should not cast an adverse influence on its case."

10. WB Municipal Polls: Calcutta HC Directs State To Provide Police Protection To BJP Candidates On Payment Of Costs

Case Title: Shueli Panda Mishra & Ors v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 58

The Calcutta High Court directed the State government to extend police protection to BJP candidates contesting in the upcoming West Bengal Municipal elections by providing one Armed Police Officer to each candidate subject to payment of costs by the candidates themselves. The BJP candidates had preferred an appeal before the Division Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj against the decision of a Single Bench that had dismissed such a prayer seeking police protection on the ground that there were several discrepancies in the allegations of intimidation and threats levelled by the BJP candidates. The Division Bench directed, "..we direct that all the appellants will be extended police protection by the respondent State by providing one Armed Police Officer each subject to payment of cost by the appellants in accordance with law. While assessing the cost the authority concerned will keep in mind that the protection has been extended to for safety of the candidates in the election, therefore, the cost at the minimum will be assessed". 

Important Weekly Updates 

1. Alleged Murder Of Student Leader Anish Khan: Calcutta HC Initiates Suo Moto Proceedings

Case Title: In the matter of Anis Khan

The Calcutta High Court on Monday took suo moto cognisance of the alleged murder of social activist Anis Khan in Amta in Howrah district. The incident led to widespread protests and demands for investigation by an independent agency. Earlier on Monday, an oral plea had been made before Justice Rajasekhar Mantha praying for the intervention of the Court by initiating a suo motu motion in finding out the persons responsible for the death of Anish Khan. On perusal of the submissions, Justice Mantha agreed to inmate suo moto proceedings. He observed, "Let the papers in the form of a list of dates and a notarized affidavit dated 21st February, 2022 be served on Mr. Amitesh Banerjee, learned Senior Standing Counsel for the State. Further, any other facts may also be communicated to Mr. Banerjee. Mr. Banerjee may take appropriate instructions from the State and make appropriate submissions on the adjourned date i.e. 24th February, 2022". Terming the incident as 'grave and shocking', the Court further recorded in its order, "The matter was mentioned expressing extreme urgency. A grave and emergent situation is stated to have emerged. In a shocking turn of events, one Anis Khan who is a social activist is stated to have been murdered. The said Anis Khan is stated to have publicly raised voice, inter alia, against donations being demanded by educational institutions and the poor condition of certain hospitals in Uluberia."

Also Read: Alleged Murder Of Student Leader Anish Khan: Advocate Requests Calcutta HC To Initiate Suo Moto Proceedings

2. Anis Khan Murder Case: Calcutta HC Orders Second Post-Mortem; SIT To Continue Probe Under The Supervision Of District Judge

Case Title: Salem Khan v. State of West Bengal and Ors

The Calcutta High Court on Thursday ordered a second post mortem in the murder case of Allah University student Anis Khan. The Court directed that the second post mortem and the investigation by the State constituted Special Investigating Team (SIT) would be monitored by a District Judge. The Court had earlier taken suo moto cognisance of the case after terming the incident as 'grave and shocking'. Justice Rajasekhar Mantha refused to transfer the investigation to an independent outside agency by observing that it is too premature to opine whether the investigation by the SIT would be appropriate or not. Directing the SIT to proceed with the investigation with urgency, the Court further directed, "This Court would like to first evaluate the investigation of the SIT, the adequacy of which can only be determined thereafter. The SIT shall, therefore, proceed with urgency and expedition. It is expected that no stone will be left unturned in course of such investigation which shall be carried out in letter and spirit and by the book." The Court further ordered that District Judge, 24 Parganas (North) Ms. Rai Chattopadhyay shall oversee the SIT investigation in general and also the second post mortem. The District Judge was also directed to examine the mobile phone of the deceased and the Test Identification parade in particular. The Court further ordered that the mobile phone should be sealed in presence of the petitioner or his representative by the concerned Investigating Officer (IO) of the SIT and transmitted to the Central Forensic Science Laboratory at Hyderabad.

3. Calcutta High Court Directs State To Install CCTV Cameras At Main Entrance Of BJP MLA Suvendu Adhikari's Residence

Case Title: Suvendu Adhikari v. State of West Bengal & Ors

The Calcutta High Court directed the State government to install two CCTV cameras at the main gate of the residence of BJP MLA and Leader of the Opposition Suvendu Adhikari. The Court issued the direction while addressing a plea moved by Adhikari alleging that the State government has failed to provide him with adequate security measures and that taking advantage of the loopholes in the security arrangements third parties are continuously infringing upon his privacy. Justice Rajasekhar Mantha directed, "This Court is of the view that the issue can put up at rest by granting liberty to the writ petitioner and the CRPF to place two CCTV cameras at the main gate as per their own security and risk assessment."However, the Court underscored that the State shall not be responsible.

4. Calcutta High Court Seeks State's Response In PIL Alleging Non-Implementation Of RERA In West Bengal

Case Title: Partha Sarathi Dutta v. State of West Bengal and Ors 

The Calcutta High Court has sought response from the State government in a Public Interest Litigation (PIL) alleging that members of Real Estate Regulatory Authority (RERA) and the Appellate Tribunal have not yet been appointed in West Bengal despite the State government having notified the establishment of the West Bengal Real Estate Regulatory Authority and the the Real Estate Appellate Tribunal. The counsel appearing for the petitioner apprised a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj that the State government vide notification dated July 29, 2021 had notified the establishment of the RERA Authority in West Bengal. Pertinently, during the proceedings the counsel for the petitioner further submitted that as per his knowledge, the Chief Justice has appointed Justice Harish Tandon to head a high powered committee for selecting the members of the RERA authority and the Appellate Tribunal. The Bench was further apprised that while the State government has notified RERA rules, established the RERA Authority and the Real Estate Appellate Tribunal, it has yet to appoint the personnel therein thereby making the RERA authority in the State almost defunct. It was further contended that the Chairman and the members of the RERA authority are yet to be appointed by the State government.

5. French Mastiff Dog 'Bruno' | Calcutta HC Directs Alleged Owner To Return Dog To NGO; Orders Police Enquiry Over Cruelty Allegations

Case Title: Debasree Roy & Anr v. The State of West Bengal & Ors

The Calcutta High Court directed the concerned police authorities to conduct an enquiry to find out whether the alleged owner in whose possession a French Mastiff dog named 'Bruno' is currently residing is actually the real owner. The Court also ordered that the dog should be returned to the concerned NGO from the possession of the alleged owner. A Single Bench had earlier directed the concerned NGO to return the dog to its alleged owner after the dog had gone missing and was subsequently kept in the custody of the concerned NGO. The NGO was however allowed to visit and inspect the dog at least once in a month. While hearing an appeal preferred by the concerned NGO, a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was apprised by the appellate that the alleged owner was not the actual owner and further it was submitted that the dog had been subjected to cruelty by the alleged owners. Taking into consideration the grievance raised, the Division Bench observed, "The direction contained in the order of the learned Single Judge will not be given effect to subject to the condition that the appellants will permit the son of the writ petitioner to visit the dog once a week making due provision for his safety." The Court further ordered, "Let the enquiry in this regard be conduced by the concerned police authority having the territorial jurisdiction over the place where the writ petitioner is residing and to submit the report before this Court within two weeks."

6. SSC 'Group-D' Recruitment Scam| 'Shocking State Of Affairs': Calcutta HC Raps WBSSC, Extends Interim Order By 4 Weeks

Case Title: State of West Bengal v. Sandeep Prasad & Ors

The Calcutta High Court came down heavily on the West Bengal Central School Service Commission (WBSSC) pertaining to the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the West Bengal Board of Secondary Education (WBBSE) on the purported recommendation by the WBSSC. A Division Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta had earlier set up an inquiry committee headed by Justice Ranjit Kumar Bagh, former judge of the Calcutta High Court. The Bench observed with dismay, "The Court cannot be a mute spectator and allow the litigant to get a clean chit even if they took a stand that they have not issued any recommendation. The Commission is answerable for such act and cannot shy away from such responsibilities by taking a stand that no recommendation was issued." Opining further that the records produced by the inquiry committee reveals a 'shocking state of affairs', the Court observed further, "The record reveals the shocking state of affairs and we refrain ourselves to make any observations thereupon in the midst of an investigation/enquiry by the committee constituted by this Court..The moment prima facie evidence has been produced raising a serious concern on the modalities of the recommendation/appointment made to the candidates not only beyond the expiration of the panel but to the candidates who were not included in the panel itself, such stand has been taken in order to shirk the responsibilities." The Court further extended the earlier issued interim order for a period of 4 weeks or until further orders.