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Calcutta High Court Weekly Roundup: January 17 To January 23, 2022
Aaratrika Bhaumik
23 Jan 2022 4:43 PM GMT
Important Judgments/Orders of the Week 1. Calcutta High Court Seeks State Gov's Response In Plea Seeking Establishment Of Special Courts Under NDPS Act In Compliance With SC DirectionsCase Title: Ahamadur Rahaman v. State of West Bengal and OrsThe Calcutta High Court sought response from the State government in a Public Interest Litigation (PIL) petition seeking the establishment of...
Important Judgments/Orders of the Week
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: 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: 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. "Affidavit of service has been filed by the petitioner. State prays for 2 days time to obtain instructions", the Court recorded in its order.
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: 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: 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: 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: 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: Durgabala Mandal v. The State of West Bengal & Ors.
Case 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
Case 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: 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: 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.
