Calcutta High Court Weekly Round Up: June 20 To June 26, 2022

Nominal Index [2022 LiveLaw (Cal) 248 - 2022 LiveLaw (Cal) 257]

In the matter of : Ved Prakash Arya v. State 2022 LiveLaw (Cal) 248

Ramesh Malik & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 249

Sk. Manowar Ali & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 250

Salem Khan v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 251

Ramesh Malik & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 252

Maleka Khatun v. The State of West Bengal and others 2022 LiveLaw (Cal) 253

Siliguri Jalpaiguri Development Authority v. Bengal Unitech Siliguri Projects Limited 2022 LiveLaw (Cal) 254 

In the matter of : Kalu Sk. @ Kuran v. State 2022 LiveLaw (Cal) 255

Md. Safique Mallick v. The State of West Bengal & Anr 2022 LiveLaw (Cal) 256

Central Bureau of Investigation v. Sanjib Halder 2022 LiveLaw (Cal) 257

Orders/Judgments 

1. Sex Trafficking Cases Conducted With 'Indifference': Calcutta High Court Orders WB DGP To Transfer Cases To Anti Human Trafficking Unit

Case Title: In the matter of : Ved Prakash Arya v. State

Case Citation: 2022 LiveLaw (Cal) 248

The Calcutta High Court has recently expressed its displeasure at the way cases involving sex trafficking of minor girls are being conducted in the State and has accordingly directed the Director General of Police, West Bengal to ensure that such cases are transferred to the Anti Human Trafficking Unit so that they can be investigated by specialised officers, preferably lady officers.

Opining that victims require psychological counselling which the investigating agencies have failed to provide, a Bench comprising Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay underscored, "We note with anguish indifferent manner in which cases involving sex trafficking of minor girls are being conducted. These cases require to be investigated by a specialised agency manned by police personnel who are duly sensitised in the matter. Victims in such cases are either women or minor coming from weak and marginal sections of society. They require proper protection, support and assistance including psychological counselling. We notice no steps are taken by the investigating agencies in this regard." The Court thus directed the Director General of Police, West Bengal to take necessary steps so that cases involving trafficking of women particularly minors for sexual exploitation are transferred to the Anti Human Trafficking Unit for investigation and to ensure that victims are granted interim compensation and psychological support.

2. SIT Headed By CBI Joint Director N. Venugopal To Probe Primary Teacher Recruitment Scam & SSC Recruitment Scam Cases: Calcutta HC

Case Title: Ramesh Malik & Ors v. The State of West Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 249

The Calcutta High Court observed that a Special Investigation Team (SIT) of the CBI which is probing into the alleged illegal appointment of teachers in West Bengal government-sponsored and aided primary schools, will also look into the cases of irregularities in recruitment of teaching and non-teaching staff in secondary schools on the purported recommendation of the school service commission (SSC). The counsel appearing for the CBI apprised Justice Abhijit Gangopadhyay about the constitution of the SIT in accordance with his earlier order. The CBI submitted the names of six SIT members, who will be investigating the cases under close supervision of its anti-corruption branch's superintendent of police, and its joint director. The Court further ordered that CBI Joint Director N. Venugopal shall head the SIT and supervise the whole investigation. "..I want to make it clear that the Joint Director Mr. N. Venugopal shall be the head of the SIT meaning thereby he will supervise the investigation of SIT for the purpose for which it has been constituted", the Court underscored.

3. 'No Illegality': Calcutta High Court Upholds State Govt's Door Step Ration Delivery Scheme

Case Title: Sk. Manowar Ali & Ors v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 250

The Calcutta High Court has held that there is no illegality in the West Bengal Duare Ration scheme, under which the State government delivers foodgrains through the public distribution system at the doorsteps of beneficiaries. Justice Krishna Rao was adjudicating upon a plea wherein a prayer had been made stipulating that a notification by the state government on September 13, 2021, which amended Clause 18 of the West Bengal Public Distribution System (Maintenance and Control) Order, 2013, be declared as unconstitutional and ultra vires to Essential Commodities Act, 1955 and National Food Security Act, 2013 (NFSA, 2013). Upholding the constitutional validity of the impugned notification, the Court ruled, "On conjoint reading of Section 24 (2) (b) and Section 32 of NFSA 2013 and clause 35 of the West Bengal Public Distribution System (Maintenance and Control) Order, 2013 this Court hold that there is no illegality in amending clause 18 of West Bengal Public Distribution System (Maintenance and Control) Order, 2013 by notification dt. 13th September, 2021." The Court averred further, "Section 24 (2) (b) of the NFSA obliges the State Governments to ensure actual delivery of supply of food grains to the entitled persons at the prices specified in Schedule-I. Therefore, the State Government wishes to travel the extra mile to deliver the foodgrains at the doorsteps of the beneficiaries, such an endeavor cannot be said to fall foul of any provisions of NFSA, the rules framed there under or the orders issued under the ECA, 1955". 

4. BREAKING | Anis Khan Death: Calcutta High Court Refuses To Transfer Probe To CBI, State Constituted SIT Ordered To File Chargesheet

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

Case Citation: 2022 LiveLaw (Cal) 251

The Calcutta High Court refused to transfer to the Central Bureau of Investigation (CBI) the investigation into the death of student activist Anis Khan. Anish Khan was found dead at his home in Amta block in Howrah district in the early hours of Saturday, February 19, 2022 under mysterious circumstances. Justice Rajasekhar Mantha refused to transfer the investigation to the CBI by opining that the SIT in its investigation report has itself implicated some police officials and thus the apprehension that the accused police officers wold be shielded by SIT is unfounded. "In the instant case, the SIT itself has implicated some police officials in its investigation report, finding fault with the manner and conduct of raid. The petitioner's apprehension that the accused police officers would be shielded by the police, is therefore devoid of merit. In the facts of the case, merely because some police officers are involved there is no need for apprehending of impropriety in the investigation or the trial as the SIT is comprised of very highly ranked police personnel. Any other omission or mistake in future can be addressed under the provisions of the Cr.PC", the Court ruled. Justice Mantha further averred that it is expected that the charge-sheet is put up for committal and the trial is commenced and concluded expeditiously, but not later than six months from the date of committal.

Also Read: Anis Khan Death: Calcutta High Court Says SIT's Prima Facie Findings Against Police Officials, Raiding Party Are 'Plausible'

5. Primary Teacher Recruitment Scam: Calcutta HC Orders Removal Of Chairman Of WB Board Of Primary Education

Case Title: Ramesh Malik & Ors v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 252

The Calcutta High Court removed Trinamool MLA Manik Bhattacharya from the post of Chairman of the Board of Primary Education with immediate effect in connection with alleged irregularities in the recruitment of teachers in state government-sponsored and aided primary schools. Justice Abhijit Gangopadhyay had earlier ordered a court-monitored probe by a special investigation team of the CBI into the alleged illegal appointments of at least 269 primary teachers. The Court further ordered that Ratna Chakraborty Bagchi, the Secretary of the Board, would remain in charge till a new appointment is made to the Chairman of the Board. Furthermore, Bhattacharya was instructed to appear in person before the Court by 2pm on Tuesday for further interrogation. "..this court removes Mr. Manik Bhattacharya from the post of President of the West Bengal Board of Primary Education forthwith and I direct the Government to appoint any other fit person as President of the Board and till the new President is appointed, the Secretary of the Board namely, Ratna Chakraborty Bagchi will perform the function of the President of the Board", the Court ordered.

6. 'Sorry State Of Affairs': Calcutta High Court Orders State To Disburse Funds For Victim Compensation In 6 Weeks

Case Title: Maleka Khatun v. The State of West Bengal and others

Case Citation: 2022 LiveLaw (Cal) 253

The Calcutta High Court came down heavily on the State Legal Services Authority (SLSA) for not having enough funds to provide compensation to victims as per the West Bengal Victim Compensation Scheme, 2017 and thus directed the State government to ensure disbursal of adequate funds within 6 weeks. Justice Moushumi Bhattacharya observed, "This court has noted in other matters of similar nature that the SLSA has not been provided with the funds for disbursement towards victim compensation. In a similar matter of 2021, SLSA has submitted before this court that it had funds only of an amount of Rs.5,000/- and was hence not in a position to disburse the victim compensation. This is a sorry state of affairs to say the least." Opining that the current state of affairs cannot be permitted to continue indefinitely, the Court ruled, "The Code of Criminal Procedure as well as the Notification published by the State in 2017 makes it mandatory on the State Government not only to make a separate budget for victim compensation but also to constitute a fund with the specific nomenclature of "Victim Compensation Fund" for disbursing amount to the victims who need rehabilitation. This state of affairs cannot surely be permitted to continue for an indefinite period of time. Victims who have suffered loss or injury or any kind of physical or mental agony have been brought within the purview of The Code of Criminal Procedure for a stated purpose. The State or the SLSA cannot take the position that it does not have funds to compensate the victims."

7. Award Holder U/S 36 Of Arbitration Act Entitled To Be Secured Of Entire Award Value: Calcutta High Court

Case Title: Siliguri Jalpaiguri Development Authority v. Bengal Unitech Siliguri Projects Limited

Case Citation: 2022 LiveLaw (Cal) 254 

The Calcutta High Court observed that an award holder has the statutory safeguard under Section 36 of the Arbitration and Conciliation Act, 1996 (Act) to secure the entire arbitral award amount even during the pendency of an application for setting aside of the award and that such a security must be real and not illusionary or insignificant. Justice Shekhar B. Saraf was adjudicating upon a petition filed under Section 34 of the Act along with an application under Section 36 (2) of the Act praying for stay of the award passed by the arbitral tribunal on December 27, 2021. Dismissing the contention of the petitioner that the land in possession of the respondent must be considered as sufficient security under Section 36 of the Act, the Court underscored, "Lastly, it is my view that the amended Section 36 of the Act, provides for securing the award holder for the entirety of the award value. It should also be noted that the security must be real and not illusionary or insignificant. Thus, the argument by the senior counsel appearing for the petitioner that the land in possession of the respondent must be considered as sufficient security under Section 36 does not hold water. The land offered for the purpose of security is part of the dispute between the parties. Furthermore, no document has been placed before this court to indicate that the value of the land would cover the entirety of the award. Ergo, the same cannot be accepted for securing the interest of the award holder." Accordingly, the Court directed the petitioner to deposit 50% of the arbitral award (including interest calculated till June, 2022) by way of cash security or its equivalent to the satisfaction of the Registrar Original Side, High Court at Calcutta.

8. Draconian Provisions Of NDPS Act Misused: Calcutta High Court Orders Mandatory Videography Of Recovery Procedure

Case Title: In the matter of : Kalu Sk. @ Kuran v. State

Case Citation: 2022 LiveLaw (Cal) 255

In a significant judgment, the Calcutta High Court directed that in all cases involving recovery of narcotic substances, seizing officers shall make a video recording of the entire procedure and that reasons for failing to videograph the recovery must be specifically stated in the investigation records. A Bench comprising Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay opined that all police officers are ordinarily equipped with smartphones and other electronic gadgets which would enable them to videograph such a recovery procedure. It was further observed that reliance on such technology must be placed to instil fairness, impartiality and confidence in the investigative process. Highlighting the importance of a legitimate recovery procedure, the Court averred, "While a strict law is necessary to control organized crime like drug trafficking and protect the youth from the menace of drug abuse, its draconian provisions are sometimes misused by investigating agency leading to false implication and prolonged unjustified detention of individuals. Most of the cases registered under the N.D.P.S. Act revolve around recovery of narcotic substance from the accused. Heart and soul of the prosecution is the legitimacy of such recovery. Prosecution in such cases primarily relies on the evidence of official witnesses particularly seizing officers to prove lawful recovery of contraband. In most cases as in the present case, independent witnesses are either not examined or turn hostile. There may be myriad reasons for that ranging from false implication to winning over of such witnesses by resourceful accuseds." Thus, the Court proceeded to issue a host of directions in this regard. 

9. Denial Of Economic Support To Wife & Minor Son Amounts To 'Domestic Violence' Even If Parties Aren't Residing In Shared Household: Calcutta High Court

Case Title: Md. Safique Mallick v. The State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 256

The Calcutta High Court observed that denial of economic support to the wife and the minor son constitutes 'domestic violence' under Section 3 of the Protection of Women from Domestic Violence Act, 2005 (DV Act, 2005) and that it is immaterial whether the parties are still residing in a shared household or not. Justice Ajoy Kumar Mukherjee was adjudicating upon a plea seeking quashing of criminal proceedings against the petitioner under Section 12 of the DV Act pending before the concerned Judicial Magistrate. Opining that denial of economic support would constitute domestic violence, the Court underscored, "Denial of economic support to petitioner as well as their minor son, who has been brought up by the opposite party no. 2 may amount to "economic abuse" as per definition of "domestic violence" under the Act and for that purpose it is not material whether parties are still residing jointly in a shared household or not. In such case, even if opposite party No.2, might have been a working lady, even then whether her earning is adequate, fair and consistent with the living up bringing of their son to which the parties are accustomed is also to be looked into to decide the issue of economic abuse." Accordingly, the Court refused to quash the criminal proceedings against the petitioner by observing, "Having considered the facts and circumstances of the case and that prayer for the cancellation of Talak is still sub-judice and not yet finalised and also considering the fact that under Section 3 of DV Act, 2005, "domestic violence" includes emotional abuse as well as economic abuse, it can hardly be said at this stage that even though both the parties are residing separately the opposite party no. 2 cannot be categorised as "aggrieved person".

10. CBI Director Doesn't Have Better Legal Acumen Than ASG: Calcutta HC Reiterates Proposal To Empower ASG To Give Opinion On Filing Appeals To Curb Delay

Case Title: Central Bureau of Investigation v. Sanjib Halder

Case Citation: 2022 LiveLaw (Cal) 257

The Calcutta High Court reiterated its recommendation of amending the Crime Manual, 2022 of the Central Bureau of Investigation (CBI) to empower the Additional Solicitor General of the High Court to give his opinion on filing appeals challenging court orders and on the basis of such an opinion, the zonal office of the CBI may be permitted to file an appeal within the prescribed period of limitation. Justice Bibek Chaudhuri noted that despite prior directions of the Supreme Court the central agency always files appeals after the expiry of the period of limitation and that an inordinate delay is caused for filing appeals especially against orders of acquittal passed by Trial Courts. Opining that the CBI should trust the expert opinion of the Additional Solicitor General more than the Director of CBI as the former has a better legal acumen, the Court underscored, "In case of the High Court, the learned Additional Solicitor General is the authorized legal representative of the Central Government. His opinion may be obtained by the CBI to come to a decision as to whether an appeal should be preferred against a judgment and order of acquittal or for enhancement of sentence by the CBI or not. This Court fails to understand why the case record will travel to Delhi to obtain formal permission of the Director of CBI for filing an appeal before this Court when the Director of CBI is after all a senior police officer. This Court obviously trusts and hopes that the Central Government in its executive branch will also trust the expert opinion of the learned Additional Solicitor General more than the Director of CBI who may have varied experience in investigation but he does not have better legal acumen than the Additional Solicitor General."

Important Developments 

1. Calcutta High Court Seeks State Govt's Response On Plea Seeking CBI Probe Into Singer KK's Death

Case Title: Imtiaz Ahmed v. State of West Bengal and other connected matters

The Calcutta High Court sought the State government's response on a batch of Public Interest Litigation (PIL) petitions seeking an investigation into the death of singer-composer Krishnakumar Kunnath popularly known as KK, who passed away on May 31, 2022, hours after performing in a concert at Kolkata. The leading playback singer was in the city for a two-day concert at Nazrul Mancha as part of the Gurudas College fest organized by the TMC's student union. One of the PILs also sought for a probe by the Central Bureau of Investigation (CBI) on the ground that there had been utter mismanagement by the authorities at Nazrul Manch and that negligence on the part of the local administration was one of the reasons behind the chaos. Advocate General S.N Mookherjee appearing for the State government however questioned the maintainability of the petitions by contending that not a single complaint had been lodged by the family members of the deceased singer against the progress of the investigation as a result of which the demand for a CBI enquiry does not stand. Pursuant to the rival submissions, a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed the State government to file an affidavit-in-opposition responding to the allegations within a period of 3 weeks. Any reply was directed to be filed within one week thereafter.

2. CISF Firing In Sitalkuchi : Calcutta High Court Seeks State's Response On CBI's Plea To Take Over Probe From WB CID

Case Title: Anindya Sundar Das v. Union of India and other connected matters

The Calcutta High Court directed the State government and the Central Bureau of Investigation (CBI) to place their respective positions on record on the plea moved by the CBI seeking to take over the investigation into the incident of firing by CISF personnel on April 10, 2021, at Sitalkuchi in Cooch Behar district during the West Bengal Assembly polls. Additional Solicitor General (ASG) SV Raju appearing for the CBI submitted before a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj that pursuant to the order of the 5 judge Bench of the High Court dated August 19, 2021, the investigation of 2 cases pertaining to the incident of alleged firing by CISF personnel must be transferred to the CBI. The two cases are- (1) Mathabhanga PS FIR No.180/2021 dated 10.04.2021 and (2) Mathabhanga PS FIR No.181/2021 dated 12.04.2021. On the other hand, Advocate General S.N Mookherjee opposed the prayer made by the CBI for transfer of investigation by contending that the concerned incident did not take place subsequent to the Assembly polls and is thus not the subject matter of the category of cases that the CBI has been instructed to probe by the 5-judge Bench order of the Court. He further argued that it is an admitted fact that the firing had taken place by CISF personnel and thus there are no allegations against the State police authorities. Pursuant to the rival submissions, the Court directed the State government as well as the CBI to place their respective stand on record before the next date of hearing which is slated to take place on July 11.

3. WB Post Poll Violence: Calcutta High Court Takes On Record Latest Status Reports Filed By CBI, SIT; Next Hearing On July 11

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 the cases of violence that had allegedly taken place post the declaration of the West Bengal assembly elections in May 2021.A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj took on record the seventh status report filed by Additional Solicitor General (ASG) SV Raju on behalf of the CBI. The Court also took on record the latest status report filed by the SIT. The counsel appearing for the SIT informed the Bench that 50 cases had been received from the CBI for investigation out of which in 41 cases chargesheets have been filed. It was further submitted by the SIT that in 2 cases non-cognisable reports have been filed and in one case final report has been filed. One case pertains to unnatural death and 3 cases are under investigation, the counsel averred further.

4. Chairman Of WB Taxation Tribunal Notified, Appointment Of Technical Member Under Consideration By Governor: State Govt Tells Calcutta HC

Case Title: Anindya Sundar Das v. State of West Bengal & Ors

The Calcutta High Court was apprised by the State government that the selection process for the appointment of a technical member to the West Bengal Taxation Tribunal has been completed and that the name of the appointee has been forwarded to the Governor for his consideration. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition seeking directions upon the State government to notify the name of the Chairman of the West Bengal Taxation Tribunal and to immediately appoint a technical member to the Tribunal. The Bench was informed by Advocate General S.N Mookherjee that Government of West Bengal vide notification dated June 18, 2022, had notified the appointment of the new Chairman. "So far as the first prayer is concerned, the same stands complied with pursuant to the notification issued by the Government of West Bengal dated 18th June, 2022 and the appointment of the Hon'ble Chairman has been notified", the Court recorded in the order. The Court further directed the State government to file a report indicating further developments in the matter on the next date of hearing which is slated to take place on July 4.

5. Calcutta High Court Seeks WB Govt's Response On Plea Challenging Deocha-Pachami Mining Project For Alleged Violation Of Land Acquisition Act

Case Title: Prasenjit Bose v. State of West Bengal

The Calcutta High Court sought response from the State government and the West Bengal Power Development Corporation Limited (WBPDCL) in a Public Interest Litigation (PIL) petition challenging the ongoing land acquisition for the Deocha-Pachami-Dewanganj-Harinsingha (DPDH) coal mine project on the ground that it violates Right to Fair Compensation and Transparency as prescribed under the Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Land Acquisition Act, 2013) and the Rules made thereunder. The petition moved by activist and economist Prasenjit Bose through advocate Jhuma Sen alleges that the proposed project breaches the Land Acquisition Act, 2013 and Rules framed thereunder, the West Bengal Land Reforms, Act, 1955 and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. A Bench comprising Chief Justice Prakash Srivastava and Justice Rajarshi Bharadwaj on Tuesday observed, "We deem it proper to give an opportunity to the respondents to place their respective stand on record before considering the prayer for interim order." Thus, the Court directed the West Bengal government and the WBPDCL to file their affidavit-in-opposition within 2 weeks. Thereafter affidavit-in-reply was ordered to be filed by the petitioner within one week. The matter is slated for further hearing on July 18.