Calcutta High Court Weekly Roundup: January 24 To January 30, 2022

Important Judgments/Orders of the Week 

1. 'Belatedly Approached Court': Calcutta High Court Dismisses PIL Against Centre's Decision To Exclude WB Gov's Netaji Tableau For Republic Day

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.

2. West Bengal Post Poll Violence: Calcutta High Court Takes On Record Latest Status Reports Filed By CBI, SIT; Next Hearing On Feb 28

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.

 3. 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".

4. Sec 8 Arbitration Act - Court Can't Adjudicate Bifurcability Of Causes Of Action Or Presence Of Necessary Parties After 2015 Amendment: Calcutta HC

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.

5. 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 HarishTandon 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.

6. 'Last Opportunity': Calcutta HC Raps State Gov For Not Filing Response In Plea Alleging Non-Appointment Of Appellate Authority Under POSH Act

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.

7. Calcutta High Court Seeks Response From Howrah Municipal Corporation In Plea Alleging Conduct Of 'Mangla Haat' Inside Howrah District Court Premises

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.

8. 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. 

9. Calcutta High Court Seeks State Govt's Response On Progress Made In Implementation Of Street Vendors Act

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.

10. Prior Sanction Required For Referring A Complaint Against Public Servants For Investigation U/S 156(3) CrPC

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.

11. 'Consent Was Immaterial': Calcutta High Court Upholds Conviction Of Man For Raping Girl Aged Below 16 Yrs

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."

Other Development 

Calcutta High Court Sets Up 7 'VC Kiosks' To Aid Advocates In Virtual Hearings

The Calcutta High Court has established seven Virtual Court Kiosks (VC Kiosks) in order to enable counsels to participate in virtual hearings as an urgent measure. The VC Kiosks have been set up pursuant to the order of Chief Justice Prakash Shrivastava.The VC Kiosks have been set up in the following places, 3 (three) VC KIOSKS at the Ground Floor of the Main Building (Beside the staircase of Gate B), I (one) VC KIOSK at Gate E of the Main Building, 2(two) VC KIOSKS at the Ground Floor of the Centenary Building, 1(one) VC KIOSK at the Sesquicentenary Building (at e-Seva Kendra). The VC Kiosks have been functional from January 20 and will continue to do so until further orders. Furthermore, a notification released to this effect further stipulates, "The Ld. Advocates are requested to join virtual hearing utilizing the Zoom Meeting ID and Passcode of the respective Court received through email. The Ld. Advocate shall vacate the KIOSK immediately after his/her matter gets over providing access to the next one."