Calcutta High Court Weekly Roundup: March 14 To March 20, 2022

Nominal Index 

1. Galaxy Mechanical Engineering Equipments Private Limited Versus Assistant Commissioner 2022 LiveLaw (Cal) 80

2. Concast Steel and Power Limited v. Sarat Chatterjee and Co 2022 LiveLaw (Cal) 81

3. Sariful Sk. & Anr v. The State of West Bengal 2022 LiveLaw (Cal) 82

4. Anindya Sundar Das v. Union of India and other connected matters 2022 LiveLaw (Cal) 83

Judgments/Orders 

1. Allegations Contained in SCN Were Vague: Calcutta High Court Suspends Order Cancelling GST Registration

Case Title: Galaxy Mechanical Engineering Equipments Private Limited Versus Assistant Commissioner

Case Citation: 2022 LiveLaw (Cal) 80

The Calcutta High Court bench consisting of Justice ​​Md. Nizamuddin has suspended the order cancelling GST registration on the grounds that the allegations contained in the show cause notice were vague. The petitioner/assessee challenged the show-cause notice for cancellation of the GST registration of the petitioner and suspended the registration of the petitioner by the show-cause notice itself. The petitioner challenged the impugned show-cause notice on the ground that the show-cause notice was passed without providing any opportunity for hearing to the petitioner. The court was convinced that the allegation of the petitioner was correct since no reason has been given in the impugned order of cancellation, which was a non-speaking order, which was not sustainable in law. The order of cancellation of registration of the petitioner is set aside and all legal consequences will follow. "So far as part of the impugned show-cause notice for cancellation of registration, where registration of the petitioner has been suspended, this part of the impugned order will remain suspended since the allegation in the impugned show-cause notice is very vague and a one-line allegation without any basis, and for the ends of justice, a person against whom a show-cause notice has been issued should be at least provided in brief the basis of such an allegation so that the person can meet the allegations in the show-cause notice," the court said.

2. Order 22 Rule 8 CPC| Delay By Liquidator To Implead Himself In Proceedings A Mere Technical Requirement, Not A Ground For Abatement Of Suit: Calcutta HC

Case Title: Concast Steel and Power Limited v. Sarat Chatterjee and Co

Case Citation: 2022 LiveLaw (Cal) 81

The Calcutta High Court recently had the opportunity to expound on the principles pertaining to abatement of a suit under Order 22 Rule 8 of the Code of Civil Procedure, 1908 (CPC) involving a corporate entity that had been declared as insolvent by the National Company Law Tribunal. Justice Shekhar B. Saraf was adjudicating upon an application seeking dismissal of the instant suit on the grounds of abatement and further direction upon the Special Officer appointed by the Court to restrain him from carrying out the valuation and sale of the concerned goods (10,000 Metric Tons of "Metallurgical Coke" hereinafter referred to as "Met Coke"). Justice Saraf observed that since in the instant case, the liquidator has rendered appearance in meeting held by the Receiver and has made a constant effort to protect the interests of the plaintiff, it cannot be said that the liquidator has declined to continue the suit. It was further underscored that a mere delay on the part of the liquidator to implead himself in the instant proceedings cannot be in any manner be presumed to be an abatement of the suit. "..it is crystal clear that the liquidator is fighting tooth and nail with regard to this litigation and a mere delay in making an application for substituting his name in the records of the suit would not in any manner lead to an abatement of the suit. In fact, in my view the liquidator has never stopped acting in the suit but has continued diligently to act in the suit for the protection of the goods in the suit which the plaintiff claims to have title on. The very fact of the presence of the liquidator in the meetings held by the Receiver indicate a constant endeavour to protect the interest of the plaintiff in this case", the Court opined.

3. 'Underwent A Traumatic Experience, Was Panic Stricken & Disoriented': Calcutta HC Dismisses Plea Of Delayed Lodging Of FIR, Upholds Conviction Of Gang Rape

Case Title: Sariful Sk. & Anr v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 82

The Calcutta High Court has recently observed that a delay of a few hours in lodging of the FIR by a victim of gang rape will not vitiate the prosecution case since it is natural for the victim to remain disoriented and confused after having gone through such a traumatic experience thereby justifying such a delay. A Bench comprising Justice Joymalya Bagchi and Bivas Pattanayak was adjudicating upon an appeal against a judgment of the concerned Sessions Court convicting the appellants for the offence of gang rape under Section 376(2)(g) of the IPC. Acknowledging that it is natural for a victim of gang rape to be disoriented and confused thereby causing a delay in lodging the FIR, the Court underscored further, "The victim underwent a traumatic experience of sexual assault and was panic stricken. She was confused and disoriented as to what would bring succour to her and naturally she waited for arrival of her husband who was in his office. After the arrival of her husband and on giving a cool thought she went to the police station to lodge complaint in the evening around 8.30/9PM. This obviously has led to delay of few hours in lodging of the FIR. There is no case of embellishment or concoction of facts in the FIR due to such delay." Reliance was also placed on the Supreme Court judgment in State of Chhattisgarh v. Derha to hold that 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.

4. WB Post Poll Violence: Calcutta HC Grants Police Protection To 303 Alleged Victims, Takes On Record Latest Status Reports Filed By CBI, SIT

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

Case Citation: 2022 LiveLaw (Cal) 83

The Calcutta High Court has granted police protection to 303 alleged victims of violence that had 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 a detailed affidavit filed by petitioner Priyanka Tibrewal appearing in person wherein the names and contact details of 303 alleged victims of post-poll violence had been enumerated.Taking cognisance of the grievance raised, the Court directed the petitioner to serve a copy of the affidavit filed to the Advocate General as well as the DG & IG of Police, West Bengal so that necessary action could be taken. Furthermore, the DG & IG of Police was directed to ensure that the 303 alleged victims are not harassed by police authorities or local goons. During the hearing, the petitioner also averred that a Committee should be constituted comprising 2 members- one from the National Human Rights Commission (NHRC) and another from the West Bengal Human Rights Commission (WBHRC) so that the affidavit containing the names of the 303 alleged victims can be placed before the Committee in order to ascertain the real ground position. Accordingly, the Court allowed the petitioner to implead the NHRC as a party to the instant proceedings.

Important Developments 

1.  TMC Leader Anubrata Mondal Moves Calcutta High Court Against Order Refusing Protection From Arrest In Cattle Smuggling Case

Trinamool Congress (TMC) leader Anubrata Mondal on Monday moved a Division Bench of the Calcutta High Court against a Single Bench order wherein he had been denied any relief from appearing before the Central Bureau of Investigation (CBI) in Kolkata for questioning in the ongoing cattle smuggling probe. Mondal had moved a Single Bench of the High Court pursuant to the issuance of a CBI notice under Section 160 of CrPC directing him to appear before its investigating team for questioning in the CBI office at Nizam Palace, Kolkata. He had declined to appear before the CBI on three prior occasions citing various medical ailments. Mondal had also requested for the questioning to take place at a place nearer to his residence considering the ongoing pandemic. Justice Rajasekhar Mantha  had dismissed the plea of Mondal after noting that he had travelled outside Bolpur on several occasions and that his aliments as examined by the Medical Board are not that serious that would requirement confinement to his home or a hospital. "Having carefully heard the submissions of the parties, this Court notes that indeed the petitioner has been traveling outside Bolpur and on a couple of instances traveled all the way to Howrah. He has appeared in Kolkata before the Medical Board, the ailments referred to by the Medical Board are not as serious as to require the petitioner to remain confined to his home or a hospital", the Court had recorded. The Court had further observed that the instant case does not warrant an interference under Article 226 of the Constitution of India as an alternate remedy is available under Section 438 of CrPC.

2. Anis Khan Death: Calcutta High Court Orders SIT To Complete Investigation Within 1 Month

The Calcutta High Court  has directed the Special Investigation Team (SIT) to complete investigation into the death of student activist Anis Khan within 1 month. 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. The Court had earlier taken suo moto cognisance of the case after terming the incident as 'grave and shocking'. On Monday, Justice Mantha directed the SIT to complete investigation into the case within 1 month without any delay following which the Court would take a decision as to whether the investigation is required to be handed over to the CBI. Opining that it is expected that the investigating agency will conclude its investigation expeditiously the Court adjourned the hearing to April 18 and further remarked, "Let this matter stand adjourned and be listed on April 18, 2022. It is expected that the investigation will be completed in the meantime. Extension of time shall not be considered except for reasons completely beyond the control of the Investigating Agency." Justice Mantha further observed that the SIT should function without any external interference. Directing the concerned forensic laboratories to submit the forensic reports to the SIT within a period of 1 week, the Court observed further, "It is submitted that FSL and CFSL reports are awaited by the Investigating Agency. The laboratories and/or institutions preparing the reports, are requested to expedite the process and ensure such reports positively reach the SIT within a period of one week from date."

3. Calcutta High Court Directs Police To Ensure Presence Of Lawyer Who Allegedly Misled Court To Secure Client's Bail, Fled Upon Confrontation

Case Title: In the matter of : Ansar Ali @ Md. Ansar Ali

In an unprecedented development, the Calcutta High Court directed the concerned police authorities to ensure the presence of a lawyer who had allegedly tried to mislead the Court while seeking bail for an accused. Such an order was issued after the lawyer had left the Court premises during recess and had failed to appear before the Court post recess to continue with his submissions despite the Court's direction to this effect. A Bench comprising Justice Debangsu Basak and Justice Bibhas Ranjan De recorded in the order that prior to recess, advocate Arindam Roy had been asked to appear and make his submissions. However, he had requested the Bench for further time and had therefore been directed to come back post recess at 2pm to continue with his submissions. However, post recess, the Bench was surprised to learn that advocate Arindam Roy had left the Court's premises during recess. Directing the police authorities to ensure his presence on the next date of hearing, the Court directed, "The Court is informed that Mr. Arindam Roy left the Court premises during recess. He is not appearing now...In such circumstances, the police are requested to ensure the presence of Mr. Arindam Roy, Advocate in Court on the next date." The Court further underscored that given the serious allegations levelled against him by the State it would be appropriate to grant him an opportunity to explain his conduct and accordingly observed, "In view of the serious allegations levelled against him and in view of the affidavit filed on behalf of the State relating to the case, it would be appropriate to grant an opportunity to Mr. Arindam Roy, Advocate to appear and explains his conduct. Given his conduct his presence should be ensured."