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Calcutta High Court Weekly Round Up: January 31 To February 6, 2022
Aaratrika Bhaumik
6 Feb 2022 4:01 PM GMT
Judgments/Orders of the Week 1. 'He Has Suffered Mental Pain': Calcutta High Court Reduces Sentence For Conviction U/S 489B IPC In Appeal Pending Since 1986Case Title: Biswanath Das v. State Citation: 2022 LiveLaw (Cal) 18The 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...
Judgments/Orders of the Week
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. "The conviction as recorded by the learned Trial Judge in the aforesaid Sessions trial case is confirmed. However, the sentence is reduced to only one and half months which the appellant has already served out", the Court directed further.
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." During the proceedings, it was argued that the appellant was suffering from mental imbalance and hence ought to be acquitted. However, the Court dismissed such a contention by stating that the record only shows that he had received some treatment for mental problems, however no witness evidence had divulged that the appellant was violent due to any mental disorder. Accordingly, the Court observed further, "I find little force in such submission. PW-6 merely stated that the appellant was a simple person and had previously received some treatment for mental problems. He, however, denied that the appellant was violent due to mental disorder. On the contrary, ample evidence has come on record that the appellant was leading a healthy and normal life. He was carrying on business in perfume on his own."
Case Title: Divyajot Singh Jendu v. Manikaran Analytics Limited
Citation: 2022 LiveLaw (Cal) 20
The Calcutta High Court on Monday held that before issuing summons to an accused under Section 204 of the CrPC, a Magistrate has to mandatorily hold an inquiry under Section 202 of the CrPC. Justice Ananda Kumar Mukherjee held that the scope of such enquiry under section 202 CrPC is limited to the ascertainment of truth or falsehood of the allegations made in the complaint: (i) on the materials placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defense that the accused may have. The Court therefore set aside an order of the concerned Magistrate issuing summons to the accused (residing outside its jurisdictional limits) after observing that the Magistrate had merely conducted an inquiry under Section 200 of the CrPC and not under Section 202 of the CrPC. "In the case under considering the learned Magistrate did not hold any inquiry under section 202 of Cr. P.C though it is apparent from the complaint that the accused resided outside the jurisdiction of the court where the complaint has been lodged. Learned Magistrate on the other hand held an inquiry under section 200 of Cr. P.C simpliciter and only examined the complainant and no other witness or document", the Court observed.
Case Title: Sumit Roy v. Union of India
Citation: 2022 LiveLaw (Cal) 21
The Calcutta High Court directed the Central Bureau of Investigation (CBI) to not arrest Sumit Roy, secretary to All India Trinamool Congress MP Abhishek Banerjee, during his appearance before the agency in the ongoing investigation the alleged coal scam in West Bengal. The CBI had issued a notice dated January 25, 2022 to Roy, directing him to appear before the investigating authorities on February 1 at 11 am. Justice Ravi Krishan Kapur observed, Justice Ravi Krishan Kapur observed, "I am inclined that upon the petitioner resuming the investigation before the Central Bureau of Investigation and cooperating with the Investigating Authorities in terms of the impugned notice, the petitioner shall not be arrested in terms of the impugned notice requesting the petitioner to appear on 1 February, 2022. I make it clear that no other issue is being decided in this petition. In view of the fact that the matter has been heard at a belated stage, this limited order is passed only in respect of the impugned notice dated 25 January, 2022." Further considering that the matter was being heard after the petitioner has practically complied with the impugned notice, the Court opined that there appears to be no immediate threat or apprehension of the petitioner being arrested on Tuesday in terms of the impugned notice.
Case Title: Lakshi Ram Hembram @ Laxmiram Hembram v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 22
The Calcutta High Court has recently held that the testimony of a sole eyewitness with respect to an accused cannot be ignored solely because her evidence with respect to the other co-accused persons has been found to be unreliable. A Bench comprising Justice Joymalya Bagchi and Justice Bibhas Ranjan De observed that the principal of 'falsus in uno, falsus in omnibus' (false in one thing, false in everything) is not applicable in India with respect to appreciation of evidence. Accordingly, the Bench upheld the sentence of life imprisonment imposed upon the appellant for the offence of murder under Section 302 IPC on the basis of the testimony of the sole eye witness (PW 5). The Court held, "In India, the principal 'falsus in uno, falsus in omnibus' does not apply in the matter of appreciation of evidence. When the Court is called upon to assess the evidence of a witness, it becomes its bounden duty to assess the evidence of the witness on the anvil of probability and separate the kernel of truth from the chaff of embellishment. The trial court has rightly assessed the evidence of PW 5 and upon ignoring her embellished effort to implicate other associates of the appellant in the crime, correctly relied on the role of the appellant as the sole assailant of the deceased." It was further held that although the sole eye witness (PW 5) may have been 'over enthusiastic' in implicating the other co-accused persons, however, her testimony with regards to the role of the appellant in the murder of the deceased has been corroborated by other sources. "Effort of PW 5 to implicate other accused persons appears to be over enthusiastic and was rightly mixed by the trial Judge due to lack of corroboration. However, her version vis-à-vis role of the appellant in the murder resonates with truth and finds corroboration from other sources. It would be wrong to ignore her evidence qua the appellant while discarding her embellished version with regard to other accused persons. Hence, the acquittal of the other accused persons does not affect the truthfulness of the prosecution case, vis-à-vis the appellant", the Court underscored.
Case Title: Md. Israil v. The State of West Bengal
Citation: 2022 LiveLaw (Cal) 23
The Calcutta High Court observed that there is existing social stigma associated with the offence of rape and accordingly held that a delay in lodging FIR in cases of such nature would not vitiate the prosecution case. The Court accordingly upheld the conviction of a man for raping a minor victim aged 14 years who had subsequently given birth to a still born child. A Bench comprising Justices Joymalya Bagchi and Bivas Pattnayak observed that it is apparent that the victim did not inform anyone about the crime due to continuous threats by the appellant and that she had proceeded to lodge the police complaint only after her pregnancy was discovered. "I am also not unmindful of social stigma attached to the nature of the offence which might have also attributed to the delay in lodging FIR. Even otherwise, the mere factum of delay in filing complaint in regard to an offence of this nature by itself would not be fatal so as to vitiate the prosecution case", the Court underscored. Further the Court observed that there is no evidence of concoction of a false version or embellishment and accordingly dismissed contentions pertaining to the delay lodging of an FIR.
Case Title: Supratik Ghosh v. State of West Bengal & Anr
Citation: 2022 LiveLaw (Cal) 24
The Calcutta High Court has recently held that a Magistrate while discharging an accused under Section 245(2) CrPC has to record reasons showing that no case has been made out and thus cannot simply order for such discharge on the ground that the complainant has failed to show cause by not verifying and affixing proper signature on the application. Justice Ananda Kumar Mukherjee observed, "In my considered view it would be a legal necessity on the part of learned Magistrate under section 245 (2) of the Cr. P.C to consider and record reasons that no case against the accused has been made out which, if unrebutted would warrant his conviction. In absence of such evidence the accused may be discharged. I do not find any such finding or observation made by the learned Magistrate in the impugned order. It appears that learned Magistrate has been swayed by the sole reason that he did not find the cause shown by the complainant to be in proper form." The Court further noted that an accused can be discharged under Section 245(2) CrPC if the Magistrate for reasons recorded comes to the conclusion that the charge is groundless. However, it was observed that in the instant case, the Magistrate has discharged the accused without considering the evidence of the complainant (PW-1) and the concerned S.I of Police (PW-2). "The provision under section 245 of the Criminal Procedure Code however does not foresee a situation where the absence of the complainant can be a ground for discharging of the accused without considering the evidence already adduced by the complainant witnesses before charge", the Court underscored further.
Case Title: Manik Das @Manik Chandra Das v. The Narcotics Control Bureau (NCB)
Citation: 2022 LiveLaw (Cal) 25
While interpreting Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Calcutta High Court has recently opined that 'reasonable grounds' to believe that the accused has not committed an offence must be more than mere 'prima facie' grounds. Justice Bibhas Ranjan De observed, "It is axiometic that 'reasonable grounds' means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. It requires existence of such facts and circumstances as are sufficient to justify satisfaction that the accused is not guilty of the alleged offence. Section 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act." "After careful scrutiny of section 37 of the NDPS Act 1985 we find that the exercise of power to grant bail is not only subject to the limitations contained in section 439 Cr.P.C, but is also subject to the limitations placed by section 37 which commences with non-obstante clause", the Court underscored further. Enumerating further, the Court observed that enlargement on bail of any person accused of commission of an offence under the NDPS Act must satisfy two conditions- First condition is that the persecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are 'reasonable grounds for believing' that he is not guilty of such offence. If either of these two conditions is not satisfied, rejection of bail is rule, the Court stated further.
Case Title: Sumana Layek v. State of West Bengal & Ors
Citation: 2022 LiveLaw (Cal) 26
he Calcutta High Court has recently come down heavily on the former Chairman of the West Bengal Central School Service Commission (WBCSSC) while setting aside an order issued by the former Chairman depriving a candidate for the recruitment of assistant teachers in secondary and higher secondary classes in the State of her right to counselling. Justice Abhijit Gangopadhyay while referring to the rules for recruitment as envisaged under the West Bengal Central School Service Commission (Selection for Appointment to the Posts of Teachers for Classes IX and X in Secondary and Higher Secondary Classes) Rules, 2016 (2016 Rules) observed with dismay, "It is clear from the order that the order is an incomplete, suppressing and evasive one. The order is motivated to deprive the petitioner of her valuable accrued Right of counselling. The Commission is mandated under Rule 16 (1) of the above mentions Rules of 2016 to hold counselling. The order has deliberately tried to hoodwink the court and other persons, if possible, which has not been possible because of the scrutinizing eyes of the petitioners and of the court." Accordingly, the Court set aside the impugned order passed by the Commission and further directed the former Chairman of WBCSSC to pay costs to the tune of Rs 20,000 from his own pocket and not form the fund of WBCSSC. The Court observed further, "I do not know what kind and quality of person is now manning the post of Chairman of a statutory body, namely, WBCSSC. On the basis of the discussion made above, the report filed by the Chairman is quashed and set aside with a cost of Rs.20,000/- to be paid personally by the Chairman of the West Bengal Central School Service Commission from his own pocket to the petitioner by cheque and not from the fund of the WBCSSC within a period of 15 days from date."
Case Title: Sukanya Mirbahar v. The State of West Bengal & Ors.
Citation: 2022 LiveLaw (Cal) 27
In an interesting development, the Calcutta High Court on Thursday directed an NGO to return a French Mastiff dog named 'Bruno' to its rightful owners 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. The NGO Debasree Roy Foundation had deposed before the Court that the dog had not been treated well by the owners and was thus not in a very good state of heath. Accordingly, the NGO had opposed the plea of the petitioners to take back custody of the dog. Justice Rajasekhar Mantha observed, "Bruno shall be returned to its owners, i.e. the writ petitioner and her family in course of the day by the Debasree Roy Foundation. The writ petitioner unconditionally undertakes before this Court that she will take good care of the French Mastiff Dog, 'Bruno', physically and mentally".
Case Title: Uttam Saha & Anr v. State of West Bengal
Citation: 2022 LiveLaw (Cal) 28
The Calcutta High Court has recently observed that powers under Section 311 of CrPC have been conferred upon the Court to serve the ends of justice and may be exercised at any stage of inquiry, trial or proceeding for reaching to a just decision. Accordingly, it proceeded to allow the petitioners in the present murder case to adduce evidence on their plea of alibi after closing of evidence. Justice Ananda Kumar Mukherjee observed, "One cannot be oblivious of the fact that when a substantial legal right is claimed by the litigants, the court has to consider its implication and to exercise its jurisdiction judiciously for meeting the ends of justice...their plea of alibi needs to be admitted in evidence if they are in a position to adduce substantive evidence on that count and stand the test of cross-examination. Denial of such right would lead to miscarriage of justice." Opining on the necessity to allow the plea of alibi, the Court underscored further, "Whatever the outcome of the case may be, on consideration of the totality of the evidence together with its trustworthiness, I am of the view that the petitioners who raised a question of being away at the time the incident of fire, should get an opportunity to examine relevant witness and prove the documents they are relying upon. End of justice would be served if the petitioner witness proving such documents for the purpose of admission, stands the test of cross-examination for which prosecution will not suffer any prejudice. "
Case Title: Anubrata Mondal v. Union of India
Citation: 2022 LiveLaw (Cal) 29
The Calcutta High Court on Thursday directed the Central Bureau of Investigation (CBI) to not take any coercive measures against Trinamool Congress Birbhum district president Anubrata Mondal without the leave of the Court. Mondal had moved the High Court seeking protection from arrest pursuant to the issuance of a CBI notice directing him to appear before its investigating team for the ongoing probe into the West Bengal post poll violence cases. He had been summoned by the CBI as a witness at the NIT camp office in Durgapur in neighbouring Paschim Bardhaman district at 11am on Thursday in connection with a murder case at Alambazar in Birbhum which is alleged to have a connection with the post-poll violence in West Bengal. Justice Rajasekhar Mantha directed the petitioner to appear before the CBI at its Durgapur office and corporate with the ongoing investigation and further observed, "In the event of any such fresh notice, the petitioner shall appear and cooperate in such investigation. However, no coercive measures shall be taken by the CBI against the petitioner without the leave of this Court." While dictating the order, the Court further noted that the instant petition had become infructuous since the impugned notice issued by the CBI had directed the petitioner to appear on Thursday at 11am. However, it was observed that the notice issued under Section 160 CrPC by the CBI is still at large as such a notice has not been withdrawn by the CBI. Accordingly, Justice Mantha observed that the CBI is entitled to fix any other time for investigation and accordingly directed the CBI to issue notice afresh if necessary and call upon the petitioner for questioning at its Durgapur office.
Also Read: Territorial Limitations Of Section 160 CrPC Apply Even To CBI Investigations: Calcutta High Court
Important Weekly Updates
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.
2. 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.
Case Title: Rakesh Kumar Singh v. Director, Alipore Zoological Garden & Ors
The Calcutta High Court took cognisance of incidents of alleged trespass at the premises of the Kolkata Zoological Garden popularly known as the Alipore Zoo over control of its employees' trade union. The police authorities and the Zoo authorities were directed to submit detailed reports in this regard by February 2 pursuant to the examination of the relevant CCTV footage. Justice Rajasekhar Mantha 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. It was contended by the petitioner that on January 24, a group of about 600-700 persons some of them with firearms and weapons had barged into the Alipore Zoo primarily through its main gate after breaking open its padlocks while others had jumped in over the surrounding walls. It was further submitted that till date such trespassers are still residing inside the zoo premises illegally. Taking cognisance of the grievance raised, the Court directed, "The Director of Zoo, shall inspect the entire Zoo premises today and tomorrow and submit a report of what he sees including the outsiders. All such outsiders shall be identified, from the regular employees." Furthermore, the Court directed the police authorities to examine the relevant CCTV footage from January 23 till January 28 and submit a detailed report. The zoo management authorities were also ordered to submit a report after examining the CCTV footage in their possession.
Case Title: Mostafizur Molla v. The State of West Bengal & Ors
The Calcutta High Court on Tuesday sought the personal appearance of a school headmaster for not complying with an earlier order of the Court wherein the concerned school had been instructed to file an affidavit enumerating as to why a no-objection certificate (NOC) could not be granted to the petitioner. Justice Abhijit Gangopadhyay noted that the earlier order of the Court dated January 21, 2022 had been communicated by email to the school authorities on January 24, 2022. Furthermore, it was recorded that despite the Court's directions no affidavit enumerating the reasons for non-issuance of the NOC had been filed by the school authorities on January 28, 2022. "Despite having the said copy of the order of this court dated 21st January, 2022, neither the school filed any report in the form of an affidavit nor the school granted the petitioner no-objection", the Court observed. Accordingly, the Court sought the personal appearance of the school headmaster and further remarked, "This court is surprised by the letter of the school sent to the petitioner via email dated 29.01.2022 demanding order of this court dated 28.01.2022.In such circumstances I direct the headmaster of the school to appear personally on 08.02.2022 at 10.30 a.m. before this court either with the no-objection certificate or with the report if the school thinks that no- objection cannot be issued to the petitioner. The report should be in the form of an affidavit."
Case Title: Rita Mitra v. Narayan Swarup Nigam & Ors
The Calcutta High Court expressed displeasure at the conduct of the State government for not complying with the Court's earlier order directing the State to ensure a ban on plying of unregistered E-rickshaws in the State. The Court vide order dated August 17, 2018 had disposed of a Public Interest Litigation (PIL) petition after directing the State government to ensure that all E-rickshaws playing in the State are registered with the Regional Transport Authorities subject to compliance of such vehicles with Rule 126 of the Central Motor Vehicles Rules, 1989. The State authorities were further instructed to ensure that unregistered E-rickshaws are not allowed to ply on the roads. "We are taking a serious view of the matter. The parent order was passed about three and a half years ago. The Principal Secretary, Transport Department, Government of West Bengal, shall file a report before us on the next date stating the present status of compliance of the order dated August 17, 2018, as modified by the subsequent orders referred to above. It is in public interest that illegal plying of unregistered E-rickshaws must be stopped. We trust and hope that the Transport Department appreciates the immediate need and importance of stopping all unregistered E-rickshaws from plying", the Court directed.
Case Title: Israfil Sk. v. State of West Bengal & Ors
The Calcutta High Court on Thursday expressed displeasure at the manner in which the investigation is being carried out by police authorities of Kalna Police Station, Purba Bardhaman in a case pertaining to the disappearance of a minor girl in Kalna district of West Bengal. The Court was adjudicating upon a Habeas Corpus Plea moved by the parents of the missing minor girl. A Bench comprising Justices T. S. Sivagnanam and Hiranmay Bhattacharyya on Thursday took on record a status report filed by Rakesh Singh, Officer-in-Charge, Kalna Police Station, Purba Bardhaman dated February 1. On a perusal of the report, the Bench observed with dismay, "To say the least, the report is absolutely vague. We have expressed our displeasure to the learned Government counsel and gave an option to withdraw the report and file a proper report and ensure that the investigation is done in a proper manner."
