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Calcutta High Court Monthly Digest: January 2022
Aaratrika Bhaumik
1 Feb 2022 8:55 AM GMT
A monthly round up of important judgments and legal developments from the Calcutta High Court for the month of January as reported by Live Law. Important Judgments/Orders 1. Gangasagar Mela Monitoring Panel Reconstituted, Negative RTPCR Report Made Mandatory: Calcutta HC Modifies Event ConditionsCase Title: Dr. Avinandan Mondal v. State of West Bengal & OrsCitation: 2022 LiveLaw (Cal)...
A monthly round up of important judgments and legal developments from the Calcutta High Court for the month of January as reported by Live Law.
Important Judgments/Orders
Case Title: Dr. Avinandan Mondal v. State of West Bengal & Ors
Citation: 2022 LiveLaw (Cal) 1
The Calcutta High Court modified certain conditions imposed earlier while allowing the State Government to hold this year's Gangasagar Mela amidst the fresh surge in Covid-19 cases in the State of West Bengal. It may be noted that every year, on Makar Sankranti, lakhs of Hindu devotees flock to the Sagar Island in West Bengal's South 24 Parganas district to take a holy dip and offer prayers at the Kapil Muni temple. This year, the Mela is scheduled to take place from January 8 to January 16, 2022. The Court modified and added certain conditions on the event, which is presently underway. The changes/additions made are as follows: Earlier, a three Member Committee comprising of (i) Leader of Opposition in the State or his representative, (ii) Chairman, West Bengal Human Rights Commission or his representative and (iii) representative of the State was constituted which will keep vigil in respect of compliance of the above directions as also measures suggested by the State in the affidavit dated 06th January 2022. - Now, this committee has been substituted by constituting a two-member Committee comprising Smt. Samapti Chatterjee, Retired Judge of the Calcutta High Court as Chairperson and Member Secretary, West Bengal Legal Services Authority as a member. This has been done in response to the submission of the State Government that the Committee formed by the Court should not only be an independent Committee but it should not have political members.
Case Title: Bimal Bhattacharya v. State of West Bengal & Ors
Citation: 2022 LiveLaw (Cal) 2
The Calcutta High Court directed the State Election Commission to consider postponing the conduct of the upcoming municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol for a short period of 4 to 6 weeks in the wake of the 'galloping speed with which the COVID cases are increasing' in the State of West Bengal. A decision in this regard has to be taken by the State Election Commission within 48 hours, the Court directed further. The Court was adjudicating upon a Public Interest Litigation (PIL) petition seeking postponement of municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol which are due to take place on January 22, 2022 in the wake of the rising number of Covid-19 cases in the State of West Bengal.
A Bench comprising Chief Justice Prakash Shrivastava and Justice Ajoy Kumar Mukherjee observed, "We dispose of the present petition with a direction to the State Election Commission to consider the galloping speed with which the COVID cases are increasing and also to take into account the issue if holding of elections in such a situation will be in the public interest and if free and fair elections will be possible on the dates notified, and take a decision in respect of the postponement of date of elections of aforesaid four Municipal Corporations for a short period of 4 to 6 weeks. The respondent State Election Commission is directed to take a decision in this regard within a period of 48 hours. It will be open to the petitioner to submit all the relevant material relating to existing COVID situation before the Election Commission without any delay so that it can be considered by the Election Commission while taking the decision."
Case Title: Pratik Maitra v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 3
The Calcutta High Court directed the District Magistrate, Jhargram to consider postponing the upcoming Jangalmahal Utsav, scheduled to take place across 6 districts of West Bengal from January 17- January 19, 2022, in view of the rising number of Covid-19 cases in the State. The decision has to be taken within a period of 24 hours, the Court directed further. Earlier, the Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had directed the State government to file a report detailing the arrangements made to follow Covid-19 protocol during the conduct of the Jangalmahal Utsav. Considering the Covid-19 situation in Jhargram district where the Utsav is slated to take place, the Court directed, "We direct the respondent No. 2, District Magistrate, Jhargram to take a decision in respect of postponement of Mela within a period of 24 hours from this order".
Also Read: Plea To Postpone Jangalmahal Utsav Amid Covid Surge: Calcutta High Court Seeks State's Response
Case Title: Shri Aloke Singh & Ors v. Indian Statistical Institute & Ors
Citation: 2022 LiveLaw (Cal) 4
The Calcutta High Court came down heavily on the administration of the Indian Statistical Institute (ISI) for its decision to outsource the services rendered by a batch of contractual employees who had been working as gardeners since 2013 to a government contractor. The Court set aside the resolution dated January 3, 2022, which contained such a direction and further ordered that under no circumstances can the contractual employees be pushed to a Government contractor from the aegis of the ISI administration. Justice Abhijit Gangopadhyay minced no words in disapproving of the practice of governmental interference in the functioning of autonomous institutions. Directing the ISI administration to consider giving permanent employee status to the petitioners, the Court further observed, "I wholly set aside and quash the resolution taken in the meeting dated 03.01.2022 that ISI should procure the cooking and gardening services by following the due procedure on GeM. In no circumstances petitioners can be pushed to a Government contractor from the fold of ISI. On the contrary, ISI should consider with sincerity about giving permanent employee status to the petitioners as artificial breaks were given in their contractual periods from 2013 to 2021."
Case Title: Amit Kumar Das and Ors v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 5
The Calcutta High Court directed the District Magistrate, Purba Medinipur to conduct an enquiry into the alleged defalcation of funds allocated under the Pradhan Mantri Awaas Yojana and also the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) scheme. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a plea alleging misappropriation of funds allocated under the aforementioned schemes. Furthermore, the Bench was apprised that the funds had not only been misappropriated but that payments have been shown to be made to deceased persons and those who are in custody. "Hence, we dispose of the present petition by directing the respondent no.2/District Magistrate, Purba Medinipur to duly consider the petitioners' representation in accordance with law and conduct enquiry after giving opportunity of hearing to all the concerned parties and take an appropriate decision in accordance with law as expeditiously as possible preferably within a period of three months from the date of receipt of a certified copy of this order", the Bench directed.
Case Title: Bagaria Properties and Investment Pvt. Ltd. & Anr v. Union of India
Citation: 2022 LiveLaw (Cal) 6
The Calcutta High Court allowed a batch of writ petitions seeking quashing of impugned re-assessment notices issued post March 31, 2021 by the concerned Income Tax Authority under Section 148 of the Income Tax Act, 1961. Justice Md. Nizamuddin was adjudicating upon a batch of petitions challenging the impugned notices under Section 148 of the Income Tax Act, 1961 on the ground that the same are barred by limitation and that the concerned Income Tax Authority had not complied with statutory formalities under Section 148 A of the Income Tax Act as prescribed by the Finance Act, 2021 which are applicable with effect from April 1, 2021 before issuance of such notices. Setting aside the impugned re-assessment notices, the Court observed, "All the impugned notices under Section 148 of the Income Tax Act are quashed with liberty to the Assessing Officers concerned to initiate fresh re-assessment proceedings in accordance with the relevant provisions of the Act as amended by Finance Act, 2021 and after making compliance of the formalities as required by the law." The Court further observed, "Respectfully agreeing with the reasonings and views taken by the Allahabad High Court, Rajasthan High Court and Delhi High Court in the cases referred hereinabove, all these Writ Petitions herein are disposed of by allowing the same. Explanations A(a)(ii)/A(b) to the Notifications dated 31st March, 2021 and 27th April, 2021 are declared to be ultra vires the Relaxation Act, 2020 and are therefore bad in law and null and void."
Case Title: Sumit Roy v. The Union of India & Ors
Citation: 2022 LiveLaw (Cal) 7
The Calcutta High Court expressed displeasure at the manner in which the Enforcement Directorate (ED) is investigating a money laundering case linked to the alleged coal scam in West Bengal. The Court was adjudicating upon the plea of Sumit Roy, who is the secretary to All India Trinamool Congress MP Abhishek Banerjee.Roy had challenged the jurisdiction of the Enforcement Directorate to register a case in New Delhi when the offence has been allegedly committed within the territory of West Bengal and a specific case was registered by the CBI in the State. Justice Rajasekhar Mantha on Tuesday was apprised by the petitioner that although he is cooperating with the investigation, not a single summons has been issued to him till date. However, the counsel appearing for the Enforcement Directorate submitted that summons were issued initially asking the petitioner to appear for interrogation at New Delhi. Expressing reservation to such a submission, the Court remarked further, "This Court is unable to appreciate as to why the interrogation cannot be done at Kolkata at least in the interregnum." However, the Court observed that the interim order issued vide order dated November 9, 2021 would continue for a period of 2 months.
Case Title: Raich Laskar v. State of West Bengal and Ors
Citation: 2022 LiveLaw (Cal) 8
The Calcutta High Court directed the District Magistrate, South 24 Parganas to conduct an enquiry into the alleged misappropriation of funds allocated under the Pradhan Mantri Awas Yojana scheme and pass a reasoned order within a period of 3 months. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition alleging that the Facilitator of the Pradhan Mantri Awas Yojana had allegedly misappropriated funds allocated under the government scheme. "Hence, we dispose of the present writ petition directing the respondent No.2, District Magistrate, South 24 Parganas, to duly consider the petitioner's representation and conduct an enquiry in respect of the allegation made therein and pass a reasoned speaking order and in case if any defalcation is found, then to take an action in accordance with law without any delay. Let this exercise be completed within a period of 3 months from the date of receipt of a copy of this order", the Court directed.
Case Title: Durgabala Mandal v. The State of West Bengal & Ors.
Citation: 2022 LiveLaw (Cal) 9
The Calcutta High Court observed in a case that the daughter-in-law is bound by the undertaking given while obtaining a compassionate appointment to maintain and extend medical assistance to the mother-in-law. The Court was adjudicating upon a plea moved by an 80 years old widow (appellant) whose husband had passed away a long time back. Her son Bajadulal Mandal who was working as a Primary School Teacher had also unfortunately passed away on October 14, 2014. Thereafter, the daughter-in-law (respondent no.9) had applied for a compassionate appointment in the school and had also given an undertaking dated July 25, 2016, stating that she will bear the responsibility of maintaining and providing medical assistance to the appellant in the future. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "Once the respondent no. 9 had obtained the compassionate appointment by giving an undertaking as above to maintain and extend medical assistance to the appellant, then she is bound by that."
Case Title: Radharani Saha v. The State of West Bengal and Ors
Citation: 2022 LiveLaw (Cal) 10
The Calcutta High Court granted police protection to a senior citizen against the alleged harassment perpetrated by her son and daughter-in-law. Justice Rajasekhar Mantha was adjudicating upon a plea moved by a senior citizen, one Radharani Saha seeking the Court's intervention since her complaint of harassment against her son and daughter-in-law had not been addressed by the Dumdum Police Station. Taking cognisane of the grievance raised, the Court directed, "Considering the above, the Officer-in-Charge, Dumdum Police Station shall ensure that there is absolutely no breach of peace in the area and maintain strict vigil in the said premises and address any threat of peace immediately." In the instant case, the Court was informed that the son of the petitioner does not reside with her and further it was informed that there exists a serious matrimonial discord between the petitioner's son and daughter-in-law. It was further submitted that the daughter-in-law had forcefully occupied some portions of the petitioner's residential premises.
Case Title: Suhana Khatun v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 11
The Calcutta High Court referred to a larger bench the legal issue as to whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC) at the behest of a juvenile is maintainable. A Bench comprising Justice Arijit Banerjee and Justice Bivas Pattanayak was adjudicating upon an application for anticipatory bail sought by four minors accused of offences under the Indian Penal Code pertaining to wrongful restraint, causing grievous hurt, attempt to murder, and murder. The Bench ruled that sufficient safeguards have been provided to a child in conflict with the law should they be apprehended by the police under the Juvenile Justice Act of 2015 and thus an application for anticipatory bail is not maintainable. "Taking into consideration the safeguards provided under the 2015 Act and in the light of the legal position that a child in conflict with law cannot be arrested, the question of granting bail in anticipation of arrest of a child in conflict with law does not arise at all. In the 2015 enactment the legislature did not, consciously, empower the police to arrest a child in conflict with law. Accordingly, we are of the considered view that an application for anticipatory bail under section 438 of the Criminal Procedure Code at the instance of a child in conflict with law is not maintainable," the Bench observed.
Case Title: Pabitra Rajbanshi and Ors v. The Chief Secretary, Government of West Bengal and Ors
Citation: 2022 LiveLaw (Cal) 12
The Calcutta High Court directed the District Magistrate, Malda to conduct a probe into alleged irregularities and defalcations in the funds allocated under the Mahatma Gandhi National Rural Employment Guarantee Act 2005 (MGNREGA) scheme in the Gazole Development Block. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition wherein it had been alleged that there has been embezzlement of huge public money in respect of funds allocated under the MGNREGA scheme. "Having regard to the nature of allegation, we are of the opinion that the respondent No.6, District Magistrate, Malda should look into the matter. Hence, we dispose of the present petition with direction to the respondent No.6 to conduct an enquiry in respect of the allegations contained in legal notice dated 14.01.2021 and if the allegations are found to be correct, then to take an action against the erring officers/parties in accordance with law", the Bench directed.
Case Title: Rama Prasad Sarkar v. Union of India
Citation: 2022 LiveLaw (Cal) 13
The Calcutta High Court dismissed a Public Interest Litigation (PIL) petition filed against the decision of the Centre to reject the tableau of Netaji Subhash Chandra Bose as proposed by the West Bengal government for the ensuing Republic Day parade. The PIL filed by advocate Ramaprasad Sarkar sought the Court's interference to issue a direction to the Central Government to permit the State of West Bengal Tableau of Netaji Subhas Chandra Bose in the ensuing Republic Day parade scheduled to take place on January 26, 2022. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj expressed reservations to the delayed filing of the PIL and accordingly observed, "..the writ petitioner has belatedly approached this Court. As the Republic Day celebration is day after tomorrow, therefore, at this stage, no effective direction can be issued. Hence, no case for interference in the present writ petition is made out which is accordingly dismissed." The Bench further took note of the various defects in the filing of the instant PIL as pointed out by the Additional Solicitor General Y.J. Dastoor while dismissing the PIL.
Case Title: Lindsay International Private Limited v. Laxmi Niwas Mittal
Citation: 2022 LiveLaw (Cal) 14
The Calcutta High Court on Friday had the opportunity to expound on the issue as to whether Courts should consider the dictum of the Supreme Court as laid down in Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya regarding non-permissibility of bifurcation of subject-matter or causes of action in a suit while adjudicating upon an application filed under section 8 of the Arbitration and Conciliation Act, 1996 (Arbitration Act). Section 8 of the Arbitration Act as amended with effect from October 23, 2015, mandates a judicial authority to refer parties to arbitration 'unless it prima facie finds that no valid arbitration agreement exists. Justice Moushumi Bhattacharya ruled that 'without a doubt' the dictum as laid down in Sukanya Holdings is no longer a relevant factor for the Court to consider at the stage of reference in an application under section 8 of the Arbitration Act."The Court is not even under a mandate, post amendment, to adjudicate on the bifurcability of the causes of action or the presence of parties who are necessary parties to the action but not to the arbitration. The only brake in the momentum of reference is the court finding, prima facie, that no valid arbitration agreement exists", the Court emphasised.
15. POSH Act Applicable To Girl Students Of A School
Case Title: Pawan Kumar Niroula v. Union of India
Citation: 2022 LiveLaw (Cal) 15
The Calcutta High Court observed that the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act) is applicable to girl students of a school. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta placed reliance on the definition of 'aggrieved woman' as provided under Section 2 (a) of the 2013 Act and accordingly ruled, "As per Section 2 (a) an aggrieved woman means in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent. That being so, the provisions of the Act squarely apply to the students of the school." The petitioner, a teacher by profession, had been appointed by the Navodaya Vidyalaya Samiti on November 17, 1997, as a Trained Graduate Teacher (TGT), Nepali. On February 15, 2020, the principal of Jawahar Navodaya Vidyalaya, Ravangla, South Sikkim had filed a written complaint with the Officer-in-Charge of Ravangla Police Station stating that he had received several complaints from students of the school alleging that the petitioner had committed sexual harassment. In the complaint lodged with the police station, it had been further averred that around 67 students had complained of sexual harassment against the petitioner.
Case Title: Dr. Nazrul Islam v. Basudeb Banerjee & Ors
Citation: 2022 LiveLaw (Cal) 16
In a significant development, the Calcutta High Court on Thursday observed that a prior sanction for prosecuting public servants is required before setting in motion even the investigative process under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC). The Court was adjudicating upon an appeal moved by former IPS officer Nazrul Islam seeking initiation of criminal proceedings against Chief Minister Mamata Banerjee and other top officials of the State for purportedly forging a Supreme Court verdict in order to deprive him of his promotion. Justice Tirthankar Ghosh observed, "Having regard to the subject matter by way of which the petitioner has attempted to invoke the provisions of Section 156(3) of the Code of Criminal Procedure against the public servants this Court is of the opinion that as the provision of Section 197 of the Code of Criminal Procedure has been incorporated in the statute, the same has been for a meaningful purpose of allowing the public servants to discharge their duties without fear or favour or without any anticipation of being harassed because of the rigours of law. Therefore, ordinarily a valid sanction would be required in a proceeding where the provisions of Section 156(3) Cr.P.C. are invoked against public servants". The Court also noted that the issue in consideration as to whether prior sanction for prosecution qua allegation of corruption in respect of public servants is required before setting in motion the investigative process under Section 156(3) CrPC has been referred to a Larger Bench vide the Supreme Court judgment in Manju Surana v. Sunil Arora & Ors. Justice Ghosh opined that the Supreme Court in Manju Surana v. Sunil Arora & Ors had not declared the dictum laid down in two earlier judgments i.e. in L. Narayana Swamy v. State of Karnataka & Ors and Anil Kumar & Ors v. M.K. Aiyappa & Anr to be either per incuriam or a bad law.
Case Title: Amirul Gazi v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 17
The Calcutta High Court upheld the conviction of a man for the offence of rape after observing that the consent of the minor victim is immaterial as she was below 16 years of age at the time of the alleged incident. It was alleged that there was an ongoing love affair between the accused and the victim and that the alleged sexual intercourse was consensual. It may be noted that pursuant to the Criminal Law Amendment of 2013, the age of consent in India has been increased from 16 years to 18 years. A Bench comprising Justices Joymalya Bagchi and Bibhas Ranjan De observed, "With regard to the issue whether the victim was a consenting party, I note such plea is of little consequence. As discussed above, the prosecutor has established she was below 16 years at the time of the incident and her consent was immaterial in view of 6th clause of section 375 IPC. In the backdrop, even if we assume that sexual intercourse was with the consent of the victim, we cannot consider such consent as a valid one as the age of the victim as below 16 years. Hence, the offence of rape is proved beyond doubt."
Case Title: Biswanath Das v. State
Citation: 2022 LiveLaw (Cal) 18
The Calcutta High Court reduced the sentence awarded to a man charged under Section 489B and Section 489C of the IPC for forging currency notes after observing that he had undergone mental agony due to long pendency of criminal proceedings. The appellant had been convicted only on April 13, 1986 in criminal proceedings initiated against him on December 28, 1983. Thereafter, the instant appeal preferred by him has been pending since 1986. Justice Rabindranath Samanta noted that the appellant had already served out the sentence for one and half months and accordingly observed, "Owing to continuance of the appeal, the appellant/convict suffered worries, mental pains and agonies. As stated above, he has already served out the sentence for one and half months. Considering the long pendency of the criminal proceedings and the instant appeal and the mental pains suffered by the appellant/convict I feel that the sentence as imposed by the learned Trial Judge if reduced to the sentence already undergone by him would sub-serve the interest of justice." Accordingly, the Court reduced the sentence imposed to the period already served by the appellant which is only one and half months.
Case Title: Md. Wasim v. The State of West Bengal
Citation: 2022 LiveLaw (Cal) 19
The Calcutta High Court has recently upheld the life sentence awarded to a man for murdering his mother by dismissing his plea of legal insanity. A Bench comprising Justices Joymalya Bagchi and Kausik Chanda while dismissing the plea of legal insanity underscored, "I find it difficult to persuade myself that the appellant had discharged his onus to establish that he committed the crime while suffering from a bout of insanity. To fall within the general exception of legal insanity, it is incumbent on the part of the defence to establish that the accused was suffering from mental ailment of such degree at the time of commission of the offence that he was unaware of the consequences of his act. Appellant has singularly failed to discharge such onus. Vague reference to previous medical treatment by PW-6 without cogent materials like prescriptions or other medical evidence being placed on record to prove the nature and degree of mental impairment at the time of commission of the offence would not sustain the plea of legal insanity." In the judgment authored by Justice Joymalya Bagchi, it was further noted that the evidence on record discloses that the appellant had an inimical relationship with his mother. The Court observed that the appellant had been demanding money from his mother to run his business and on her refusal to lend any money, the appellant had murdered her in the middle of the night.
Other Significant Developments
1. Calcutta High Court Seeks Report On Existing VC Facilities At District Courts & Tribunals In State
Case Title: Mangal Sardar v. High Court Administration and Ors
The Calcutta High Court has recently directed the State government to apprise the Court about the steps which are taken to set up video conferencing facilities in the tribunals and forums of the State. Furthermore, the High Court Administration was directed to procure reports from all the district courts in respect of the existing video conference facilities. A Bench comprising Chief Justice Prakash Shrivastava and Rajarshi Bharadwaj observed, "Learned counsel for the High Court Administration is also directed to get the reports from all the district courts in respect of the existing video conference facility and the need and requirement of its further enhancement and improvement. He will place the report in tabulated form before the concerned Committee who, after examining the same, will take necessary decision to forward it with/without modifications to the State for taking steps to provide the requisite infrastructure."
Case Title: Mousumi Roy v. West Bengal State Election Commission & Ors
The Calcutta High Court has sought response from the West Bengal government as well as the State Election Commission as to why Howrah Municipal Corporation has been excluded from the election schedule notified on December 28, 2021. Through the impugned notification however, the SEC has finalized the schedule for elections of four municipal bodies, namely, Siliguri Municipal Corporation, Chandernagore Municipal Corporation, Bidhannagar Municipal Corporation and Asansol Municipal Corporation. The Howrah Municipal Corporation has been excluded from the list. Taking note of the same, a Bench comprising Justice Shampa Sarkar and Justice Bibhas Ranjan De observed, "We are of the view that the reasons for which the respondents have decided not to hold the election for Howrah Municipal Corporation on January 22, 2022, although there was a proposal submitted before the court, is to be brought on record by way of affidavits".
Case Title: Suvendu Adhikari v. The State of West Bengal & Ors
The Calcutta High Court sought the State government's response in a plea moved by BJP MLA and Leader of the Opposition Suvendu Adhikari alleging that despite several orders of the High Court, the State government has failed to adequately provide him security. The counsel appearing for Adhikari submitted before the Court that despite prior orders of the Court in several proceedings, the security provided to Adhikari is being compromised. Taking cognisance of the grievance raised, Justice Rajasekhar Mantha observed, "Let an affidavit and/or a report by way of affidavit be filed on behalf of the State on the allegations in the writ petition and the supplementary affidavit within a period of one week from date. Prior service of such report be made on the Counsel for the petitioner".
Case Title - Rama Prasad Sarkar v. The State of West Bengal & Ors
The Calcutta High Court asked the West Bengal State Government to file an affidavit disclosing the measures which can be taken to avoid Child Trafficking incidents in the future. The Bench of Chief Justice Prakash Shrivastava and Justice Kesang Doma Bhutia sought the details on the above-mentioned subject while dealing with a Public Interest Litigation (PIL) plea filed raising the issue of child trafficking in the state. The PIL, moved by petitioner in person Rama Prasad Sarkar, referred to the alleged child trafficking racket busted in Salkia, Howrah on 20th November 2021 and it also raised the grievance that no proper action has been taken in respect thereof. Regarding, the alleged Child Trafficking racket busted in Salkia, Howrah, the Advocate General informed that a case had been registered under the provisions of IPC, POCSO and Juvenile Justice Care and Protection Act and arrests have been made. Against this backdrop, the Court gave him time to file an appropriate affidavit disclosing the relevant details and posted the matter for further hearing on February 28, 2022. Essentially, the PIL alleged that the child trafficking racket busted in Salkia, Howrah was being run by the daughter-in-law of the former deputy mayor of Howrah municipality.
Case Title: Ahamadur Rahaman v. State of West Bengal and Ors
The Calcutta High Court sought response from the State government in a Public Interest Litigation (PIL) petition seeking the establishment of Special Courts which would deal exclusively with offences under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) pursuant to the directions issued by Supreme Court in the case of Thana Singh v. Central Bureau of Narcotics. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was apprised by the counsel appearing for the High Court administration that despite the directions issued by the Supreme Court vide order dated January 23, 2013, till date no effort has been made by the State government to establish such Special Courts for exclusively trying offences under the NDPS Act.
Case Title: Mousumi Roy v. The West Bengal State Election Commission & Ors and other connected matters
The Calcutta High Court recently declined a plea to initiate suo moto proceedings against Advocate General S.N Mookherjee for purportedly 'misleading the Court' by making an incorrect averment that a Bill passed in the West Bengal assembly to bifurcate Howrah Municipal Corporation into Howrah Municipal Corporation and Bally Municipality had received the assent of the Governor of West Bengal. A Bench comprising Chief Justice Prakash Shrivastava and Justice Kesang Doma Bhutia observed, "Having regard to the fact that a bona fide mistake of making incorrect statement was made by the learned Advocate General, we are not inclined to initiate the suo moto proceedings against the Advocate General or any other authority." The Court was adjudicating upon a batch of petitions questioning as to why the Howrah Municipal Corporation has been excluded from the election schedule notified on December 28, 2021.
Case Title: Aminuddin Khan v. Union of India and other connected matters
The Calcutta High Court sought response from the Central Industrial Security Force (CISF) in a batch of petitions pertaining to the incident of alleged firing by CISF personnel on April 10, 2021, at Sitalkuchi in Cooch Behar district during the West Bengal Assembly polls which claimed the lives of four persons. The petitions alleged that the incident was a result of police firing in the course of electioneering. As a result, an independent probe into the matter had been sought. Consequently, the investigation had been transferred to West Bengal's Criminal Investigation Department (CID). On the previous date of hearing, a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had taken on record the interim status report filed by West Bengal's Criminal Investigation Department (CID) on the ongoing investigation. "Learned Additional Solicitor General has also raised a preliminary ground about maintainability of the petition by submitting that the petitioners are residing about 600 kilometers away from the place of incident and they have sworn in their affidavit on the basis of their personal knowledge which is incorrect. He is permitted to raise objection about maintainability in the affidavit-in-opposition, which may be filed before the next date of hearing", the Court recorded in its order.
Case Title: The Court On Its Own Motion In Re Monitoring Of Pending Criminal Trials Against MPs and MLAs v. State of West Bengal
The Calcutta High Court took on record an affidavit filed by the High Court administration detailing the status of pending criminal cases against MPs and MLAs in various courts across the State of West Bengal. The Court was hearing suo-motu petition initiated in view of the directions issued by the Supreme Court asking the Chief Justices of the High Courts to formulate an action plan to rationalize the disposal of criminal cases pending against legislators. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj recorded in its order, "The response in the form of affidavit in pursuance to the order dated 15.12.2021 has been filed by the Registrar General today. In that response, it has been disclosed that 244 criminal cases relating to MPs/ MLAs were pending in the State of West Bengal and Union Territory of Andaman & Nicobar Islands as on 31st December, 2021. It has been pointed out that out of these 244 cases there are 130 cases pending in the Special Court at Mayukh Bhawan, Salt Lake City and in other courts of the State 114 cases are pending". Furthermore, the Court observed, "Learned counsel for the High Court Administration has drawn the attention of this Court to the suggestions given in the response relating to the cases not only in the Special Court but in the other Courts of the State. The suggestion relates to appointing the Nodal Officer if any, in the rank of Deputy Commissioner of Police exclusively for this purpose and that timely production of witnesses, expeditious examination of investigating officer and improvement in infrastructural facilities."
Case Title: Farid Mollah v. State of West Bengal and Anr
The Calcutta High Court sought the State government's response in a Public Interest Litigation (PIL) petition the issuance of directions to the State government to ensure garlanding of the statue of Netaji Subhash Chandra Bose in District Head Quarters and also to ensure that the tune of Kadam Kadam Badhaye Jaa is played on January 23 (Desh Prem Divas) every year in accordance with its 2011 memorandum. It may be noted that January 23 is also known as Netaji Jayanti as he was born on 23 January 1897. The memorandum stipulated that 'Desh Prem Divas' would be celebrated every year on January 23 by garlanding statutes of Netaji Subhash Chandra Bose in the District Head Quarters by the concerned District Magistrates, the Bench was informed further. Taking cognisance of the grievance raised, the Bench directed the counsel appearing for the State to obtain instructions in the matter and apprise the Court within a period of 2 days.
Case Title: In Re: Matters pending with interim orders in the High Court at Calcutta and Courts subordinate to it including the Tribunals within the State of West Bengal and Union Territory of Andaman & Nicobar Islands during the prevailing COVID-19 situation related non-availability of access to Courts
Restoring a suo moto case registered last year, the Calcutta High Court on Tuesday extended the life of all interim orders passed by the High Court and courts subordinate to it, including the Tribunals till February 28, 2022 in light of the Covid-19 situation in West Bengal. A five-judge Bench of the High Court placed reliance on the order passed by the Supreme Court last week relaxing the limitation period to file cases under all general and special laws across the country till February 28, 2022 in view of the surge in COVID-19 cases. The Bench comprising Chief Justice Prakash Shrivastava and Justices TS Sivagnanam, IP Mukerji, Harish Tandon and Tapabrata Chakraborty issued the following directions, " i. The order dated 24th of March, 2020 as modified and continued by the subsequent orders is restored with the condition that interim orders in matters which are subsisting as on today i.e. 17th of January, 2022 and are due to expire on or before 28th of February, 2022 will stand extended till 28th of February, 2022 or until further order of the Court, unless specifically dealt with by any judicial order to the contrary. All parties affected by the continuation of the interim orders will be at liberty to apply for vacating or variation of such orders. This order will also apply to orders pertaining to the Original Side of this Court. ii. Conditional orders of Courts allowing occupation of any premises subject to payment of rent or occupational charges will continue, notwithstanding the non-deposit of rent or occupational charges during the period 17th of January, 2022 till 28th of February, 2022. Similarly, rent or occupation charges not deposited in terms of the rent control legislations will not immediately make the tenant or occupant liable for eviction till 28th of February, 2022 or earlier orders of this Court. iii. All other conditional orders of Courts will continue to remain inoperation until 28th of February, 2022, notwithstanding the nonfulfilment of the conditions imposed. This will apply to nonfulfilment of the conditions for the period from 17th of January, 2022 till 28th of February, 2022 or earlier order of Court."
Case Title: People For Ethical Treatment Of Animals (PETA) v. State of West Bengal and Ors
The Calcutta High Court directed the State government to frame a policy to address the deplorable condition of horses used to haul tourist carriages near Victoria Memorial in Kolkata. The West Bengal Department of Home Affairs was ordered to place on record such a policy before the next date of hearing which is slated to take place on February 28. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a batch of Public Interest Litigation (PIL) petitions moved by PETA India and CAPE Foundation seeking an end to the use of horses for carriage rides near the memorial. "Learned counsel for the State has submitted that he has a meeting with learned counsel for the petitioners after the previous order and suggestions have been received to take care of the miserable conditions of horses near the Victoria Memorial. He submits that the issue has now been referred to the Home Department of the State and a policy decision is required in this regard which will be taken by the Home Department considering all the relevant material", the Bench recorded in its order. The Court adjourned the matter for further hearing on February 28 by directing, "Let the policy so formulated by the State be placed on record before the next date of hearing."
Case Title: Pradip Kumar Das v. Partha Ghose & Anr
The Calcutta High Court came down heavily on the District Magistrate, Purba Medinipur for failing to comply with a direction of the Court issued nearly two years ago regarding removal of unauthorized constructions on a public highway. A Bench comprising Chief Prakash Shrivastava and Justice Rajarshi Bharadwaj on Thursday enquired from the counsel appearing for the District Magistrate, Purba Medinipur, "Why has the order of the Court not been complied with even after 2 years?" Accordingly, the Court recorded in its order,"In this view of the matter, we are prima facie of the opinion that the order of this Court has not been complied with." Accordingly, the District Magistrate, Purba Medinipur was directed to place his stand on record before the next date of hearing which is slated to take place on January 27. "Learned counsel for the petitioner has pointed out that there was a clear direction to the respondent District Magistrate, Purba Medinipur to file an affidavit of compliance with the Registrar General within three months of receipt of a copy of this order. He has pointed out that a copy of the order was duly delivered to the District Magistrate, Purba Medinipur on 03.02.2020 and thereafter again on 16.09.2020 but till now neither affidavit of compliance has been filed before the Registrar General of this Court nor the requisite action as stated by the counsel for the State before this Court has been taken", it was further recorded in the order.
Case Title: Suvendu Adhikari v. State of West Bengal
The Calcutta High Court issued a host of directions to address a plea moved by BJP MLA and Leader of the Opposition Suvendu 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 underscored, "The respondents shall bear in mind that the petitioner is the Leader of Opposition in the State and is entitled to the same privileges as that of a Cabinet Minister." The Court further affirmed that admittedly the petitioner is mandatorily entitled to "Z" category security. "The placing of CCTV Cameras is essentially and exclusively a matter within the purview of the authorities responsible for the security of the petitioner. The invasion of privacy by reason of the placement of the security cameras must be addressed by the CRPF. The placement of the CCTV Cameras and petitioner's privacy shall be addressed, in a joint meeting between CRPF and the State police", the Court directed. The Court further ordered that there shall be no loudspeakers in and around the residence of the petitioner after 8 p.m. The State was further instructed to come up with appropriate suggestions regarding the concern raised about political rallies, meetings and functions, being held in the vicinity of the petitioner's residence.
Case Title: The Court in its own motion: In re: Overcrowding in prisons
The Calcutta High Court directed the State government to file a detailed affidavit stipulating the status of prisoners with regards to the following concerns- overcrowding in prisons, mental health problems faced by prisoners, and the issue relating to non-functioning of bodies and filing up of vacant posts in prisons across the State. The Court directed such an affidavit to be filed before the next date of hearing which is slated to take place on March 7. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a suo-moto case (In re: Overcrowding in prisons) dealing with the issue related to the manner in which Terminally Ill Prisoners (TIPs) are required to be dealt with. The suo moto case was registered pursuant to a directive issued by the Supreme Court in 2018 the case of Re: Inhuman Conditions in 1382 Prisons. The Court further directed the State government to undertake a fresh exercise to find out the current status of Terminally Ill Prisoners lodged in prisons across the State and duly file a fresh report in this regard before the next date of hearing.
Case Title: Buddhadeb Bhowmick v. The State of West Bengal & Ors
The Calcutta High Court appointed Advocate General S.N Mookherjee to conduct a thorough probe into the case wherein an undertrial had allegedly gone missing from judicial remand at the Presidency Correctional Home. The Court was adjudicating upon a Habeas Corpus Plea filed by one Buddhadeb Bhowmick alleging that his father (an accused in a criminal case) had gone missing from the Presidency Correctional Home just before he was scheduled to be released on bail under the Court's order. A Bench comprising Justices T. S. Sivagnanam and Hiranmay Bhattacharyya observed that an independent person was required to probe into the matter and accordingly remarked, "Considering all these factors, we are of the opinion that an independent person should probe into the matter as the famous the adage goes "that the police cannot be polished. Therefore, we entrust this responsibility to the learned Advocate General of the State of West Bengal." The Bench further opined that in case the Advocate General finds it difficult to probe into the matter on account of his busy schedule, he should nominate an officer in the rank of the Director-General of Police, who does not exercise any control over the correctional home in question. "In our prima facie view, much importance and credence cannot be given to the registers as the registers were in the custody of the Superintendent of the Presidency Correctional Home and his officers. We are not here to say that there has been an insertion but we can always say that there is a good possibility of an insertion being made. Therefore, unless the other records are compared to examine as to whether the stand taken by the respondent is factually correct or not, a conclusion cannot be arrived at", the Bench observed further.
Case Title: Anindya Sundar Das v. Union of India and other connected matters
The Calcutta High Court took on record the latest status report filed by the Special Investigation Team (SIT) and the Central Bureau of Investigation (CBI) pertaining to the progress of the investigation with regards to cases of violence that had allegedly taken place post the declaration of the West Bengal assembly elections in May 2021. The Court vide order dated August 19, 2021 had handed over to the CBI the investigation of cases related to murder, rape and crime against women whereas an SIT had been constituted to investigate other criminal cases related to post-poll violence. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj was apprised by Additional Solicitor General Y.J Dastoor appearing for the CBI that a total of 51 cases had been initially registered out of which 48 cases had been referred to by the NHRC committee constituted by the Court and 3 cases had been registered on the basis of individual complaints. ASG Dastoor also informed the Bench that in 20 cases charge sheets had been filed and that out of the 20 cases, in 18 cases an application had been filed under Section 173(a) of the CrPC for further investigation. He further submitted that 3 cases had been transferred to the SIT and that currently, 28 cases are still under investigation by the CBI. The counsel appearing for the SIT informed the Bench that 689 cases had been registered initially and that on the last date of hearing investigation was pending in 12 cases. However, till date investigation is pending only in 2 cases, the counsel informed further.
17. By-Poll Expenses Can't Be Recovered From Candidate Who Resigns: ECI, State Govt To Calcutta HC
Case Title: Sayan Banerjee v. Election Commission of India and Ors
The Calcutta High Court was apprised by both the Election Commission of India (ECI) and the State government that expenditure incurred by the State exchequer in conducting an election cannot be recovered from a candidate even if he resigns from his constituency before completion of his term in order to enable another person to contest the election from that constituency. The Court was adjudicating upon a suo-moto issue framed by a Bench comprising former Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj in a Public Interest Litigation (PIL) petition challenging the decision of the Election Commission of India to prioritize the bye-elections of Bhabanipur Assembly Constituency from where the Chief Minister of West Bengal Mamata Banerjee had contested elections on September 30, 2021, and had subsequently won. The Court vide order dated September 24, 2021 had farmed the following issue for consideration, "It is a matter of common knowledge that it costs crores of rupees to the public exchequer to hold elections. It should not be taken merely at the whims and fancies of the persons who are in power or otherwise elected or losing candidates. In case an elected candidate resigns from his constituency before completion of term without there being any legal disability, to enable another person to contest the election from that constituency as to who should bear the cost to be recurred by the State exchequer is a larger issue which is required to be considered."
A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was informed by advocate Siddhant Kumar appearing for the ECI that the issue in consideration had been squarely settled by the Madras High Court in the case of K.K Ramesh v. NHRC and Ors. Advocate General S.N Mookerjee appearing for the State government submitted before the Court that even for by-polls, expenses incurred cannot be recovered from a candidate and that the State has to bear all such expenditure. Reliance was placed on the Supreme Court judgment in Pramod Laxman Gudadhe v. Election Commission Of India in this regard. Reliance was further placed on Section 151A of the Representation of the People Act, 1951 which stipulates that a bye-election for filling any vacancy shall be held within a period of six months from the date of the occurrence of the vacancy. The Advocate General further remarked, "The principle which emerges is that no constituency should go unrepresented for a long period of time".
Case Title: Ashis Mondal v. Union of India and others
The Calcutta High Court came down on the State government for not filing its response in a Public Interest Litigation (PIL) petition alleging that the State government is yet to notify the appointment of an appellate authority as prescribed under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act). Section 18 of the 2013 Act stipulates that an aggrieved person can prefer an appeal before the concerned appellate authority within a period of 90 days. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had provided the State government three prior opportunities to place its stand on record in respect of the appointment of appellate authority under the 2013 Act. However, on Tuesday, the counsel appearing for the State government sought further time to submit an affidavit-in-opposition in this regard. Accordingly, the Bench observed with dismay, "In spite of repeated opportunities, the State has not placed its stand on record by filing the affidavit-in- opposition." "Last opportunity is granted to learned counsel for the State to file the affidavit-in-opposition within two weeks", the Court underscored.
Case Title: Ambooj Sharma v. State of West Bengal
The Calcutta High Court sought response from the Howrah Municipal Corporation in a plea seeking relocation of Howrah's Mangla Haat- one of the largest garments market in the State. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was apprised by the petitioner that the Manga Haat has now expanded further and is currently being organised inside the Howrah District Court premises. "The supplementary affidavit in pursuance to the previous order of this Court has been filed by learned counsel for the petitioner stating that 'Mangla Haat' is being held inside the Howrah District Court premises. Supporting photographs have been enclosed with the affidavit", the Court recorded in its order. Accordingly, the Court sought response from the Howrah Municipal Corporation and directed the Corporation to file a report in the form of an affidavit within a period of 3 weeks. The petitioner was permitted to file a reply thereafter within a week.
20. Calcutta High Court Seeks State Response To Plea Seeking Reopening Of Schools & Colleges In WB
Case Title: Soumen Halder v. State of West Bengal and other connected matters
The Calcutta High Court sought response from the State government on a batch of Public Interest Litigation (PIL) petitions seeking reopening of schools and colleges in the State. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed the State government to place its stand on record regarding the opening of schools and colleges before the next date of hearing which is slated to take place on February 14. Senior advocate Bikash Ranjan Bhattacharya appearing for one of the petitioners submitted before the Court that it is high time that schools and colleges in the State are reopened in compliance with the guidelines relating to Covid-19 norms since the students and children are being adversely affected on account of closure of educational institutions. Advocate General S.N Mookherjee appearing for the State government submitted a detailed report before the Court which included a chart wherein it was stipulated that out of the targeted population of 45,39,811 students only 33,99,170 students have been given the first dose of the vaccine as of January 25, 2022. He further informed the Court that the State government is aiming to vaccinate at least 85 percent of students before taking a decision to reopen educational institutions.
Case Title: Akshya Kumar Sarangi v. State of West Bengal
The Calcutta High Court on Friday directed the State government as well as the Kolkata Municipal Corporation to apprise the Court before the next date of hearing about the progress made with regards to the implementation of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. A Bench comprising Chief Justice Rajarshi Bharadwaj and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation petition seeking direction upon the authorities to implement provisions of the 2014 Act and the 2018 Rules framed thereunder.During the proceedings, Advocate Srikanta Dutta appearing for the petitioner submitted before the Court that more than 7 years have passed and yet no steps have been taken by the respondent authorities in respect of constitution of Town Vending Committees as necessitated under the 2014 Act. On the other hand, Advocate General S.N Mookherjee appearing for the respondents apprised the Bench that he will issue necessary communication to all concerned local bodies in respect of implementation of the 2014 Act and also gather information about the stage up to which progress has been made by each of the local bodies.
Case Title: Sudipta Bhattacharyya v. Visva-Bharati & Ors
The Calcutta High Court imposed costs to the tune of Rs 10,000 on the authorities of Visva-Bharati University, Santiniketan for its repeated failure to file an affidavit-in-opposition in a case pertaining to initiation of departmental proceedings against a professor of the University on the basis of allegations of sexual harassment. Justice Moushumi Bhattacharya on Friday noted that the University had failed to file its affidavit-in-opposition despite given three prior opportunities to do so. Accordingly, the Court recorded in its order, "It appears from the records that the University was to file its affidavit-in-opposition within two weeks from the order dated 25th September, 2020. The time to file the affidavit-in- opposition was extended by another order dated 6th January, 2021 by which the University was to file its affidavit-in-opposition within 20th January, 2021." Thereafter, the Court directed the University authorities to file its affidavit-in-opposition within 3 weeks and further ordered the authorities to pay costs amounting to Rs 10,000 to the Bharat Sevasram Sangha, Kolkata within 2 weeks. The petitioner was also directed to file its reply within 2 weeks thereafter.
23. Calcutta High Court Directs State To Disclose Number Of Pending Cases Under SC/ST Act In WB
Case Title: Thaddeus Lakra and Ors v. State of West Bengal and Ors
The Calcutta High Court directed the State government as well as the High Court administration to file an affidavit disclosing the existing number of pending cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) in the State as on January 31, 2022. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition alleging that land belonging to impoverished members of the Scheduled Case and Scheduled Tribe community are being forcefully seized by miscreants. Accordingly, the Bench directed, "Learned Advocate General for State as also learned counsel for respondent 6 are directed to file affidavit disclosing pending figures of cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as on 31st January, 2022".
Case Title: Subhas Datta v. Local Military Authority and Ors
The Calcutta High Court sought response from the State government in a Public Interest Litigation (PIL) petition seeking directions for regular maintenance and preservation of the Brigade Parade Ground and adjoining greens popularly known as the Maidan which is considered to be the lungs of the city. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was apprised by the petitioner Subhas Datta, an activist by profession that the Maidan ground and surrounding areas constitute a Heritage Zone and that the State government should take measures to preserve them. Accordingly, the Bench on Monday directed the State government to file its affidavit-in-opposition before the next date of hearing which is slated to take place on March 15. The petitioner was further directed to implead the Union of India in the instant petition and serve a copy of the petition along with relevant enclosures to the Additional Solicitor General Y.J Dastoor.
