Calcutta High Court Quarterly Digest: January To March 2022 [Citations 1-101]

Nominal Index  [Citations 1-101]

Dr. Avinandan Mondal v. State of West Bengal & Ors 2022 LiveLaw (Cal) 1

Bimal Bhattacharya v. State of West Bengal & Ors 2022 LiveLaw (Cal) 2

Pratik Maitra v. State of West Bengal 2022 LiveLaw (Cal) 3

Shri Aloke Singh & Ors v. Indian Statistical Institute & Ors 2022 LiveLaw (Cal) 4

Amit Kumar Das and Ors v. State of West Bengal 2022 LiveLaw (Cal) 5

Bagaria Properties and Investment Pvt. Ltd. & Anr v. Union of India 2022 LiveLaw (Cal) 6

 Sumit Roy v. The Union of India & Ors 2022 LiveLaw (Cal) 7

Raich Laskar v. State of West Bengal and Ors 2022 LiveLaw (Cal) 8

Durgabala Mandal v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 9

Radharani Saha v. The State of West Bengal and Ors 2022 LiveLaw (Cal) 10

Suhana Khatun v. State of West Bengal 2022 LiveLaw (Cal) 11

Pabitra Rajbanshi and Ors v. The Chief Secretary, Government of West Bengal and Ors 2022 LiveLaw (Cal) 12

Rama Prasad Sarkar v. Union of India 2022 LiveLaw (Cal) 13

 Lindsay International Private Limited v. Laxmi Niwas Mittal 2022 LiveLaw (Cal) 14

 Pawan Kumar Niroula v. Union of India 2022 LiveLaw (Cal) 15

Dr. Nazrul Islam v. Basudeb Banerjee & Ors 2022 LiveLaw (Cal) 16

Amirul Gazi v. State of West Bengal 2022 LiveLaw (Cal) 17

Biswanath Das v. State 2022 LiveLaw (Cal) 18

Md. Wasim v. The State of West Bengal 2022 LiveLaw (Cal) 19

Divyajot Singh Jendu v. Manikaran Analytics Limited 2022 LiveLaw (Cal) 20

Sumit Roy v. Union of India 2022 LiveLaw (Cal) 21

Lakshi Ram Hembram @ Laxmiram Hembram v. State of West Bengal 2022 LiveLaw (Cal) 22

Md. Israil v. The State of West Bengal 2022 LiveLaw (Cal) 23

Supratik Ghosh v. State of West Bengal & Anr 2022 LiveLaw (Cal) 24

Manik Das @Manik Chandra Das v. The Narcotics Control Bureau (NCB) 2022 LiveLaw (Cal) 25

Sumana Layek v. State of West Bengal & Ors 2022 LiveLaw (Cal) 26

Sukanya Mirbahar v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 27

Uttam Saha & Anr v. State of West Bengal 2022 LiveLaw (Cal) 28

Anubrata Mondal v. Union of India 2022 LiveLaw (Cal) 29

West Bengal State Electricity Distribution Company Limited v. Sukanta Kumar Singha and Anr 2022 LiveLaw (Cal) 30

Union Of India and Others v. Ratna Sarkar 2022 LiveLaw (Cal) 31

Surojit Mandal v. National Investigation Agency (NIA) 2022 LiveLaw (Cal) 32

Ganesh Orang v. State of West Bengal & Anr 2022 LiveLaw (Cal) 33

Bimal Bhattacharya v. State of West Bengal 2022 LiveLaw (Cal) 34

Dabur India Limited v. Shree Baidyanath Ayurved Bhawan Pvt Ltd 2022 LiveLaw (Cal) 35

Tania Mukherjee & Ors v. State of West Bengal & Ors 2022 LiveLaw (Cal) 36

Tapan Saha v. State Election Commissioner & Ors 2022 LiveLaw (Cal) 37

Srimanta Ghosh & Ors v. Debabrata Ghosh 2022 LiveLaw (Cal) 38

Gaurav Purakayastha v. State of West Bengal 2022 LiveLaw (Cal) 39

Satya Narayan Banik & Ors v. Union of India & Ors 2022 LiveLaw (Cal) 40

Abu Sohel v. The State West Bengal and others 2022 LiveLaw (Cal) 41

Nivedita Basu v. State of West Bengal 2022 LiveLaw (Cal) 42

Sabita Roy v. State of West Bengal 2022 LiveLaw (Cal) 43

Ramaprasad Sarkar v. Union of India 2022 LiveLaw (Cal) 44

Rajib Chakraborty and Ors v. The State of West Bengal and Ors 2022 LiveLaw (Cal) 45

Manick Sardar v. State of West Bengal 2022 LiveLaw (Cal) 46

Manav Investment and Trading Co. Ltd v. DBS Bank India Ltd 2022 LiveLaw (Cal) 47

West Bengal School Service Commission v. Sandeep Prasad and Ors 2022 LiveLaw (Cal) 48

Rajib Paul v. The State of West Bengal and Anr 2022 LiveLaw (Cal) 49

Rakesh Kumar Singh v. Director, Alipore Zoological Garden & Ors 2022 LiveLaw (Cal) 50

Anindita Mandal v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 51

Md. Abdul Gani Ansari v. State of West Bengal & Ors 2022 LiveLaw (Cal) 52

Iti Pandit v. The Union of India and Ors 2022 LiveLaw (Cal) 53

Pratap Banerjee v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 54

Bharat Heavy Electricals Limited v. Optimal Power Synergy 2022 LiveLaw (Cal) 55

Chandan Jana & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 56

Ashoke Ghosh v. State of West Bengal 2022 LiveLaw (Cal) 57

Shueli Panda Mishra & Ors v. State of West Bengal 2022 LiveLaw (Cal) 58

Swadhin Kumar Sarkar v. Chandana Sarkar and Ors 2022 LiveLaw (Cal) 59

Dipak Singha v. State of West Bengal 2022 LiveLaw (Cal) 60

Nasrin Khatun v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 61

Ashok Kumar Sureka v. Assistant Commissioner State Tax, Durgapur Range, Government of West Bengal 2022 LiveLaw (Cal) 62

Zia Sharif Hussain @ Tushar Subash Roy 2022 LiveLaw (Cal) 63

Habibur Rahaman v. State of West Bengal 2022 LiveLaw (Cal) 64

Budhin Soren v. State of West Bengal 2022 LiveLaw (Cal) 65

Sashi Jain @ Shashi Jain v. Sandip Sarka 2022 LiveLaw (Cal) 66

Saptaparna Ray v. District Magistrate and Collector, North 24 Parganas and others 2022 LiveLaw (Cal) 67

Latika Ghosh v. The Commercial Tax Officer/Assistant Commissioner, West Bengal Goods & Service Tax, Raiganj Charge & ors 2022 LiveLaw (Cal) 68

Setab Uddin & Ors v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 69

Creative Museum Designers v. Income Tax Officer, Exemptions, Ward-1(1), Kolkata 2022 LiveLaw (Cal) 70

Dharanidhar Ghosh Vs. Union of India 2022 LiveLaw (Cal) 71

Unisource Hydro Carbon Services Private Limited Versus Union of India 2022 LiveLaw (Cal) 72

Sankar Mondal v. Swapan Debnath & Ors 2022 LiveLaw (Cal) 73

Piyali Tewari Dey v. Baidyanath Dey & Ors 2022 LiveLaw (Cal) 74

Ashlesh Biradar v. State of West Bengal 2022 LiveLaw (Cal) 75

In the goods of Mahesh Kumar Agarwal and Anr. v. Meena Agarwal and Ors 2022 LiveLaw (Cal) 76

Tushar Kanti Das v. Kajal Saha 2022 LiveLaw (Cal) 77

Anubrata Mondal v. Union of India & Ors 2022 LiveLaw (Cal) 78

In Re : Bhajagobinda Roy alias Bhajan Roy 2022 LiveLaw (Cal) 79

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

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

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

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

Precious Trade Link Private Limited Versus Assistant Commissioner of State Tax 2022 LiveLaw (Cal) 84

Alpine Distilleries Pvt. Ltd v. The State of West Bengal and others 2022 LiveLaw (Cal) 85

Ajoy Kumar Singhania v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 86

Naimuddin Laskar @ Naim v. The State of West Bengal 2022 LiveLaw (Cal) 87

Kabita Mondal (Gayen) v. West Bengal State Electricity Distribution Co. Ltd. and others 2022 LiveLaw (Cal) 88

Kamal Nath v. The Principal Commissioner of Income Tax, Kolkata 2022 LiveLaw (Cal) 89

The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum 2022 LiveLaw (Cal) 90

Malancha Mohinta v. Dipak Mohinta 2022 LiveLaw (Cal) 91

Ram Sevak Lohar v. State 2022 LiveLaw (Cal) 92

Dr. Kausik Paul v. Seacom Skills University and Others 2022 LiveLaw (Cal) 93

Anubrata Mondal v. Union of India & Ors 2022 LiveLaw (Cal) 94

Bharat Heavy Electricals Limited v. Optimal Power Synergy Ltd 2022 LiveLaw (Cal) 95

In Re : Guddu Mondal @ Guddu Ali Mondal & Anr 2022 LiveLaw (Cal) 96

Dr. Santi Prasad Sinha v. Md. Abdul Gani Ansari and others 2022 LiveLaw (Cal) 97

Abu Fazel Fakir & Ors v. The State of West Bengal 2022 LiveLaw (Cal) 98

Md. Abdul Gani Ansari v. State of West Bengal & Ors. 2022 LiveLaw (Cal) 99

Rajesh K.V. @ Rajesh Kaleerakath Venugopal v. Visva-Bharati & Ors 2022 LiveLaw (Cal) 100

Sabitri Bhunya v. The State of West Bengal and Others 2022 LiveLaw (Cal) 101

Orders/Judgments 

1. Gangasagar Mela Monitoring Panel Reconstituted, Negative RTPCR Report Made Mandatory: Calcutta HC Modifies Event Conditions

Case Title: Dr. Avinandan Mondal v. State of West Bengal & Ors

Citation: 2022 LiveLaw (Cal) 1

The Calcutta High Court modified certain conditions imposed earlier while allowing the State Government to hold this year's Gangasagar Mela amidst the fresh surge in Covid-19 cases in the State of West Bengal. It may be noted that every year, on Makar Sankranti, lakhs of Hindu devotees flock to the Sagar Island in West Bengal's South 24 Parganas district to take a holy dip and offer prayers at the Kapil Muni temple. This year, the Mela is scheduled to take place from January 8 to January 16, 2022. The Court modified and added certain conditions on the event, which is presently underway. The changes/additions made are as follows: Earlier, a three Member Committee comprising of (i) Leader of Opposition in the State or his representative, (ii) Chairman, West Bengal Human Rights Commission or his representative and (iii) representative of the State was constituted which will keep vigil in respect of compliance of the above directions as also measures suggested by the State in the affidavit dated 06th January 2022. - Now, this committee has been substituted by constituting a two-member Committee comprising Smt. Samapti Chatterjee, Retired Judge of the Calcutta High Court as Chairperson and Member Secretary, West Bengal Legal Services Authority as a member. This has been done in response to the submission of the State Government that the Committee formed by the Court should not only be an independent Committee but it should not have political members.

Also Read: Calcutta HC Allows Ganga Sagar Mela; Forms 3-Member Committee To Oversee Compliance Of COVID Protocols

Also Read: Calcutta High Court Reserves Judgment In Plea Seeking Cancellation Of Ganga Sagar Mela 2022; State Govt Favours Conduct Of Mela

2. Calcutta High Court Directs State Election Commission To Consider Postponement Of 4 Civic Polls For 4- 6 Weeks Amid Covid-19 Surge

Case Title: Bimal Bhattacharya v. State of West Bengal & Ors

Citation: 2022 LiveLaw (Cal) 2

The Calcutta High Court directed the State Election Commission to consider postponing the conduct of the upcoming municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol for a short period of 4 to 6 weeks in the wake of the 'galloping speed with which the COVID cases are increasing' in the State of West Bengal. A decision in this regard has to be taken by the State Election Commission within 48 hours, the Court directed further. The Court was adjudicating upon a Public Interest Litigation (PIL) petition seeking postponement of municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol which are due to take place on January 22, 2022 in the wake of the rising number of Covid-19 cases in the State of West Bengal.

A Bench comprising Chief Justice Prakash Shrivastava and Justice Ajoy Kumar Mukherjee observed, "We dispose of the present petition with a direction to the State Election Commission to consider the galloping speed with which the COVID cases are increasing and also to take into account the issue if holding of elections in such a situation will be in the public interest and if free and fair elections will be possible on the dates notified, and take a decision in respect of the postponement of date of elections of aforesaid four Municipal Corporations for a short period of 4 to 6 weeks. The respondent State Election Commission is directed to take a decision in this regard within a period of 48 hours. It will be open to the petitioner to submit all the relevant material relating to existing COVID situation before the Election Commission without any delay so that it can be considered by the Election Commission while taking the decision."

Also Read: Specify If Sufficient No. Of COVID Infection Free Poll Workers Available: Calcutta HC To Election Commission On PIL To Postpone 4 Civic Polls

Also Read: WB Municipal Polls: Calcutta High Court Reserves Judgment In Plea Seeking Postponement Of 4 Civic Polls Amid

3. 'Not In Public Interest': Calcutta High Court Directs Jhargram District Magistrate To Decide On Postponement Of Jangalmahal Utsav Amid Covid Surge

Case Title: Pratik Maitra v. State of West Bengal

Citation: 2022 LiveLaw (Cal) 3

The Calcutta High Court directed the District Magistrate, Jhargram to consider postponing the upcoming Jangalmahal Utsav, scheduled to take place across 6 districts of West Bengal from January 17- January 19, 2022, in view of the rising number of Covid-19 cases in the State. The decision has to be taken within a period of 24 hours, the Court directed further. Earlier, the Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had directed the State government to file a report detailing the arrangements made to follow Covid-19 protocol during the conduct of the Jangalmahal Utsav. Considering the Covid-19 situation in Jhargram district where the Utsav is slated to take place, the Court directed, "We direct the respondent No. 2, District Magistrate, Jhargram to take a decision in respect of postponement of Mela within a period of 24 hours from this order".

Also Read: Plea To Postpone Jangalmahal Utsav Amid Covid Surge: Calcutta High Court Seeks State's Response

4. 'Wholly Illegal': Calcutta High Court Quashes Decision To Outsource Services Of Contractual Employees Of Indian Statistical Institute To Gov Contractor

Case Title: Shri Aloke Singh & Ors v. Indian Statistical Institute & Ors

Citation: 2022 LiveLaw (Cal) 4

The Calcutta High Court came down heavily on the administration of the Indian Statistical Institute (ISI) for its decision to outsource the services rendered by a batch of contractual employees who had been working as gardeners since 2013 to a government contractor. The Court set aside the resolution dated January 3, 2022, which contained such a direction and further ordered that under no circumstances can the contractual employees be pushed to a Government contractor from the aegis of the ISI administration. Justice Abhijit Gangopadhyay minced no words in disapproving of the practice of governmental interference in the functioning of autonomous institutions. Directing the ISI administration to consider giving permanent employee status to the petitioners, the Court further observed, "I wholly set aside and quash the resolution taken in the meeting dated 03.01.2022 that ISI should procure the cooking and gardening services by following the due procedure on GeM. In no circumstances petitioners can be pushed to a Government contractor from the fold of ISI. On the contrary, ISI should consider with sincerity about giving permanent employee status to the petitioners as artificial breaks were given in their contractual periods from 2013 to 2021."

5. Payments Made To Deceased Persons': Calcutta HC Directs Purba Medinipur District Magistrate To Conduct Enquiry Within 3 Months Into Alleged Misappropriation Of MGNREGA Funds

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.

6. Calcutta High Court Quashes Reassessment Notices Issued Post March 31, 2021 U/S 148 Of Income Tax Act, 1961

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."

7. 'Unable To Appreciate Why Interrogation Cannot Be Done At Kolkata': Calcutta HC Raps ED Over Non-Issuance Of Summons In WB Coal Scam Probe

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.

8. 'Funds Released To Dead Persons': Calcutta HC Directs Conduct Of Enquiry Within 3 Months Into Alleged Misappropriation Of Govt Scheme Funds

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.

9. Daughter-In-Law Bound By Undertaking Given While Obtaining Compassionate Appointment To Maintain Mother-In-Law

Case Title: Durgabala Mandal v. The State of West Bengal & Ors.

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."

10. 'Ensure There Is No Breach Of Peace': Calcutta HC Directs Police On Senior Citizen's Plea Against Alleged Harassment By Son & Daughter-In-Law

Case Title: Radharani Saha v. The State of West Bengal and Ors

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.

11. Can A Juvenile Seek Anticipatory Bail U/S Section 438 CrPC? Calcutta High Court Refers Question To Larger Bench

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.

12. Calcutta High Court Directs Malda District Magistrate To Conduct Enquiry Into Alleged Misappropriation Of MGNREGA Funds

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.

13. '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.

14. 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.

15. 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 Harish Tandon 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.

16. 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.

17. '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."

18. 'He Has Suffered Mental Pain': Calcutta High Court Reduces Sentence For Conviction U/S 489B IPC In Appeal Pending Since 1986

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.

19. 'Vague Reference To Previous Medical Treatment' : Calcutta HC Dismisses Plea Of Legal Insanity, Upholds Life Sentence Of Man For Murdering His Mother

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." In the judgment authored by Justice Joymalya Bagchi, it was further noted that the evidence on record discloses that the appellant had an inimical relationship with his mother. The Court observed that the appellant had been demanding money from his mother to run his business and on her refusal to lend any money, the appellant had murdered her in the middle of the night.

20. Summons U/S 204 CrPC Can't Be Issued To Accused Residing Outside Magistrate's Jurisdiction Without Holding Inquiry U/S 202 CrPC: Calcutta HC

Case Title: Divyajot Singh Jendu v. Manikaran Analytics Limited

Citation: 2022 LiveLaw (Cal) 20

The Calcutta High Court 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.

21. Calcutta High Court Directs CBI To Not Arrest TMC MP Abhishek Banerjee's Secretary During Appearance In WB Coal Scam Probe

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.

22. Sole Eyewitness Testimony Cannot Be Ignored Only Because Testimony With Regards To Other Co-Accused Persons Has Been Found To Be Unreliable

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."

23. 'Not Unmindful Of Social Stigma Attached To Nature Of The Offence': Calcutta HC Condones Delay In Lodging FIR In POCSO Case Of Man Raping 14 Yr Old

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.

24. Magistrate Cannot Discharge Accused U/S 245(2) CrPC On The Ground That Complainant Was Absent Without Recording Reasons & Examining Witnesses

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."

25. S. 37 NDPS Act| 'Reasonable Grounds' Mean Something More Than 'Prima Facie' Grounds: Calcutta High Court

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.

26. 'Deliberately Tried To Hoodwink The Court': Calcutta High Court Raps Former Chairman Of WBCSSC, Imposes 20K Costs

Case Title: Sumana Layek v. State of West Bengal & Ors

Citation: 2022 LiveLaw (Cal) 26

The 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.

27. 'Unconditionally Undertakes To Take Good Care': Calcutta High Court Directs NGO To Return French Mastiff Dog 'Bruno' To Its Rightful Owners

Case Title: Sukanya Mirbahar v. The State of West Bengal & Ors.

Citation: 2022 LiveLaw (Cal) 27

In an interesting development, the Calcutta High Court 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".

28. S.311 CrPC Confers Power To Examine Witnesses At Any Stage Of Trial: Calcutta HC Asks Trial Court To Consider Plea Of Alibi After Closing Of Evidence

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."

29. Calcutta High Court Directs CBI To Not Take Any Coercive Action Against TMC Leader Anubrata Mondal In WB Post Poll Violence Case

Case Title: Anubrata Mondal v. Union of India

Citation: 2022 LiveLaw (Cal) 29

The Calcutta High Court 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."

Also Read: Territorial Limitations Of Section 160 CrPC Apply Even To CBI Investigations: Calcutta High Court

30. 'Suffered Unnecessary Ignominy And Harassment': Calcutta HC Orders WBSEDCL To Pay Rs 6 Lakhs Compensation To Consumer For Unauthorised Disconnection Of Electricity Supply

Case Title: West Bengal State Electricity Distribution Company Limited v. Sukanta Kumar Singha and Anr

Case Citation: 2022 LiveLaw (Cal) 30

The Calcutta High Court has directed the West Bengal State Electricity Distribution Company (WBSEDCL) to pay an amount to the tune of Rs.6,07,000 to a consumer for unauthorised disconnection of electricity supply due to which the consumer had suffered unnecessary harassment. Calling the conduct of WBSEDCL as 'deplorable', Justice Sabyasachi Bhattacharyya observed, "In cases such as the present one, it is the gross laches of the Distribution Licensee which compelled the respondent no.1, a consumer, to suffer unnecessary ignominy and harassment..As far as the conduct of the Distribution Licensee in the present case is concerned, the same is deplorable and the consumer was compelled to run from pillar to post at every point of time." Accordingly, the Court directed, "Hence, there was no scope of reducing the total amount of compensation at the rate of Rs. 500/- per day, as calculated by the Ombudsman. Rather, in exercise of this court's powers under Article 226 of the Constitution of India, the impugned order of the Ombudsman is modified to the effect that the Distribution Licensee shall pay compensation not to the tune of Rs.1,21,400/- as awarded but will pay a total amount of Rs.6,07,000/- to the consumer-respondent no.1 within a month from date, deducting any amount, if already paid pursuant to the impugned order of the Ombudsman."

31. Married Daughter Who Became Widowed After The Death Of The Pensioner Is Not Entitled To Family Pension: Calcutta High Court

Case Title: Union Of India and Others v. Ratna Sarkar

Case Citation: 2022 LiveLaw (Cal) 31

The Calcutta High Court observed that the benefit of family pension cannot be extended to a widowed daughter of a pensioner who was married at the time of the death of her father/mother. The Court held that a daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. The issue in consideration before a Bench comprising Justices Harish Tandon and Rabindranath Samanta was whether a daughter of a pensioner who was married, but became widowed after the death of the pensioner is entitled to family pension. Answering in the negative, the Court observed, "As the legislative intent is demonstrated, the scheme of family pension never included a daughter of a pensioner who was married at the time of the death of the pensioner..A daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. In the absence of any legislation in this regard, the benefit of family pension cannot be extended to a daughter of a family pensioner who was married at the time of the death of her father/mother. It will be unwise on the part of this Court to exercise its extraordinary or discretionary power to come to any inference contrary to the policy decision of the Government."

32. Disclosure Of Identity Of Protected Witness Defeats The Purpose Of Section 44 (3) UAPA: Calcutta HC Orders Trial Court To Redact Name Of Protected Witness

Case Title: Surojit Mandal v. National Investigation Agency (NIA)

Case Citation: 2022 LiveLaw (Cal) 32

The Calcutta High Court on Friday observed that Section 44 (3) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) mandate Courts to undertake measures to protect the identity of a protected witness and accordingly directed the concerned Trial Court to to redact the name, address and other particulars of the protected witness from the records immediately. A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak noted that in the instant case, the statement of the protected witness recorded under Section 164 CrPC discloses his indignity. Opining that such disclosure of indignity defeats the provision of Section 44 (3) of the UAPA, the Bench observed, "Sub-section (3) of section 44 of the Unlawful Activities (Prevention) Act, 1967, inter alia, provides the measures which the court may undertake to protect the identity of a protected witness which includes avoiding to mention the name and address of the witness in its orders or judgment and any record of the case accessible to public. Statement under section 164 Cr.P.C. of the witnesss is required to be served upon the accused. Hence, disclosure of identity of the protected witness in such statement clearly defeats the purpose of the aforesaid provision of law." The Court further directed the Trial Court to exercise more caution in ensuring that the indignity of protected witnesses are not divulged.

33. Lacunae In Prosecution Case Due To Patent Contradictions Cannot Be Cured By Resorting To Statutory Presumption U/S 29 POCSO Act: Calcutta HC

Case Title: Ganesh Orang v. State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 33

The Calcutta High Court observed that lacunae in the prosecution case due to patent contradictions or inherent improbabilities cannot be cured by resorting to statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak observed, "Glaring lacunae in the prosecution case undermines the credibility of the factual foundations which require to be prima facie established to attract the statutory presumption. When the primary facts relating to time, place and circumstances constituting the offence are not prima facie established due to patent contradictions or inherent improbabilities, such lacuane cannot be cured by resorting to statutory presumptions in law". Accordingly, the Court acquitted the appellant by observing, "In order to attract the statutory presumption under Section 29 of the POCSO Act the factual foundations with regard to the ingredients of the offence under Section 6 of the said Act require to be established in the first place..in the light of the contradictory and inconsistent versions with regard to the allegation of rape levelled against the appellant, the factual foundations of the prosecution case has not been laid on the basis of preponderance of probabilities so as to attract the statutory presumption and the appellant is therefore entitled to an order of acquittal."

34. 'Period Of 4-6 Weeks Was Only Suggestive': Calcutta High Court Dismisses Contempt Petition Against SEC Regarding Postponement Of 4 Civic Polls

Case Title: Bimal Bhattacharya v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 34

The Calcutta High Court has dismissed a contempt petition filed against the State Election Commission (SEC) alleging that it had failed to comply with an earlier order of the Court directing the SEC to consider postponing elections to four municipal corporations for a short period of 4 to 6 weeks in the wake of the rising number of Covid-19 cases. The Court vide order dated January 14 had directed the SEC to consider postponing the conduct of the upcoming municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol for a short period of 4 to 6 weeks in the wake of the 'galloping speed with which the COVID cases are increasing' in the State of West Bengal. Thereafter, the State Election Commission had decided to postpone the date of election by 3 weeks and had notified that elections to the four municipal corporation would take place on February 12. A Division Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "The period of 4 to 6 weeks mentioned in the order was only suggestive leaving it upon to the State Election Commission to take a decision in this regard within a time bound period..Having regard to the nature of the order passed by this Court and considering the fact that there was no positive direction in the order of this Court, we are of the opinion that there is no deliberate non-compliance or violation of the order of this Court by the respondents herein, hence no case for initiating the contempt proceedings is made out."

35. 'Misleading Statements Cannot Be Allowed Under Guise Of Free Speech': Calcutta HC Injuncts Chyawanprash Ads Of Baidyanath Ayurved For Disparaging Dabur Trademark

Case Title: Dabur India Limited v. Shree Baidyanath Ayurved Bhawan Pvt Ltd

Case Citation: 2022 LiveLaw (Cal) 35

The Calcutta High Court permanently injuncted four advertisements by the makers of Baidyanath Chyawanprash Special for being disparaging to all other brands of Chyawanprash including Dabur Chyawanprash. Justice Shekhar B Saraf was adjudicating upon a plea moved by Dabur seeking an injunction against the uploading of five advertisements that had allegedly disparaged the goodwill and reputation of its trademark. "Precedents cited by both parties make it clear that true statements can be made even if it denigrates the rival's product, but false and misleading statements cannot be allowed under the guise of free speech. In light of the same, this video advertisement is disparaging and an action from this Court would lie. In light of the reasons provided above, this video advertisement is permanently injuncted", the Court observed. The Court further underscored that the concerned advertisements are misleading and accordingly opined, "A misleading advertising, as the term implies, is one that deceives, manipulates, or is likely to deceive or manipulate the consumer. These commercials have the potential to influence consumer's purchase preference in the market and it also harms its rivals, hence, they must be used with caution. There should be a balance between the right of commercial speech and the interest of public and competitors. In the present case, the video advertisement is, to a large extent, misleading".

36. NEET-PG| Service In Specialized Units Doesn't Amount To Serving In Rural/ Difficult Area To Qualify For 40% In-Service Quota

Case Title: Tania Mukherjee & Ors v. State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 36

The Calcutta High Court observed that service in Specialized Units would not amount to serving in "remote and/or difficult areas" for the purpose of qualifying for the stipulated 40% in-service quota in Post Graduate Medical counselling for seats in Government/private colleges in West Bengal. Justice Moushumi Bhattacharya was adjudicating upon a plea moved by 53 graduate doctors who are serving as Medical Officers in different hospitals in the State and had contended that they should be eligible for availing the 40% in-service quota for presently serving in Specialized Units. "This Court recognizes the commitment shown by the in-service doctors who render 24x7 service in these Specialized Units. However, to include service in such Specialized Units within the definition of "rural and/or difficult areas" would amount to making in-roads into the policy frame-work of the State Government which a Writ Court should normally hesitate to do unless compelling reasons exist. A policy decision is not a perpetual no-go area and a Writ Court can certainly interfere in fit cases including where the policy is not backed by legislative competence or where there is an excessive delegation of essential legislative functions or an infraction of the fundamental rights guaranteed under the Constitution of India", the Court observed.

37. Gross Suppression Of Facts, Petitioner Himself Contesting Candidate: Calcutta HC Imposes 50K Cost On Plea Alleging Fake Caste Certificate For Elections

Case Title: Tapan Saha v. State Election Commissioner & Ors

Case Citation: 2022 LiveLaw (Cal) 37

The Calcutta High Court while hearing a plea alleging issuance of fake Scheduled caste certificate to a candidate contesting from a scheduled caste constituency, imposed costs to the tune of Rs. 50,000 on the petitioner for suppressing the fact that he himself was also a contesting candidate in the concerned Bidhannagar municipal polls. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "The fact now revealed by the respondents shows that the petition is by one contesting candidate against another. This fact has changed the entire complexion of the case. Hence, we dismiss this writ petition by imposing costs of 50,000/- which is to be deposited by the petitioner with the Legal Services Authority within a period of two weeks from today." Opining that the conduct of the petitioner amounts to 'gross suppression of facts', the Court further underscored, "The petitioner has suppressed this fact in the petition that he is one of the candidates contesting election of concerned municipal corporation. This amounts to gross suppression of fact and the present writ petition is liable to be dismissed with costs on the sole ground of suppressing the fact."

38. Running Of Mill By Neighbour Causing Rattling Noise Amounts To Actionable Nuisance

Case Title: Srimanta Ghosh & Ors v. Debabrata Ghosh

Case Citation: 2022 LiveLaw (Cal) 38

The Calcutta High Court has observed that while it is acceptable that every little discomfort or inconvenience cannot be brought into the category of an actionable nuisance, however if such inconvenience or annoyance exceeds all reasonable limits then the same would amount to an actionable nuisance. A Bench comprising Justice Soumen Sen and Justice Ajoy Kumar Mukherjee was adjudicating upon a plea wherein the plaintiff had contended that the defendant had been running a mill in the adjoining plot which caused rattling noise and vibration thereby causing discomfort to him and his wife. Taking cognisance of the grievance raised, the Court observed, "While it is acceptable that every little discomfort or inconvenience cannot be brought on to the category of an actionable nuisance but if such inconvenience or annoyance exceeds all reasonable limits then the same would amount to an actionable nuisance. Frequent and loud noise has been proved to trigger stress and anxiety in both adult and children – more often affecting mental health. A constant cacophony in neighbour's land causing disquietude in one's own abode is beyond a common man's realm of expected endurance."

39. 'Serious Question About Locus Of Petitioner': Calcutta HC Dismisses PIL Against Physical Classes For Unvaccinated Students Aged Below 15 Yrs

Case Title: Gaurav Purakayastha v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 39

The Calcutta High Court dismissed a Public Interest Litigation (PIL) seeking directions to ensure that conduct of physical classes for Class VIII students in the State should resume only for vaccinated children and that children who are below 15 years of age i.e. are born after the year 2007 should be permitted to attend online classes. It may be noted that the Central government had issued a notification stipulating that children aged 15 years or more i.e. all those whose birth year is 2007 or before shall be eligible for Covid-19 vaccination with effect from January 3, 2022. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj dismissed the plea on the ground that there arises 'serious question about the locus of the petitioner' and further observed that the plea filed is not supported by adequate materials and documents. The Bench further opined that since one PIL is already pending before the Court regarding the issue of reopening of schools, entertaining the instant petition would result in multiplicity of proceedings. However, liberty was granted to the petitioner to file a fresh application along with all relevant materials as so advised.

40. 'Public At Large Cannot Be Put To The Whim & Fancy Of Recalcitrant Directors': Calcutta HC Upholds Disqualification Of Directors U/S 164(2) Of Companies Act

Case Title: Satya Narayan Banik & Ors v. Union of India & Ors

Case Citation: 2022 LiveLaw (Cal) 40

The Calcutta High Court observed that the provisions for disqualification of directors due to non-filing of balance sheets and annual returns as envisaged under Section 164(2) and Section 167(1) of the Companies Act, 2013 is aimed at ensuring probity and the highest standard of governance in both private and public companies. Justice Rajasekhar Mantha was adjudicating upon a case wherein the petitioners had been disqualified as directors of a company one M/s. Hahnemann International Pvt. Ltd pursuant to Section 164(2) of the Companies Act, 2013 for not filing balance sheets and annual returns for a continuous period of three years from the year 2014-15. Opining that such a conduct of the petitioners amounts to deliberate and wilful negligence, the Court underscored, "This Court is of the view that the object and purposes of Section 164 and 167, as amended is to ensure probity and the highest standard of governance in Companies both public and private. A failure to file balance sheet and the annual returns for three consecutive years amounts to deliberate and wilful negligence. The public at large dealing with such companies cannot be put to the uncertainty, whim and fancy of recalcitrant directors. After all the requirements and compliances mandated under the Companies Act, are not only for the benefit of the shareholders of a particular company but also for the public at large, which rely upon such compliances, in assessing the conduct of and in deciding their relations with such companies." The Court held further, "The object and purpose of Section 164(2) and 167(1) is indeed laudable. It is aimed at ensuring good governance and maintenance of high standards of probity and protection of the interest of Shareholders. Transparency in the activities of Companies is very vital for ensuring an enduring business atmosphere in an economy."

41. 'Take Recourse To CrPC': Calcutta High Court Dismisses Writ Petition U/A 226 Seeking Directions For Registration Of FIR

Case Title: Abu Sohel v. The State West Bengal and others

Case Citation: 2022 LiveLaw (Cal) 41

Opining on the established principle of availability of alternate remedy, the Calcutta High Court observed that a writ petition under Article 226 of the Constitution cannot be filed for adjudicating upon a grievance pertaining to the non-registration of FIR by police authorities on the basis of a complaint made. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed while dismissing a PIL, "The grievance is in respect of non-registration of FIR on the basis of the complaint made by the petitioner therefore it is a grievance of personal nature, which cannot be agitated in a PIL. That apart, the writ under Article 226 of the Constitution is not a proper remedy seeking direction to register an FIR or to carry out the investigation." The Court further underscored that if the petitioner has any grievance in respect of non- registration of the FIR or improper investigation, then the proper remedy available to him is to take recourse to the provisions of the Code of Criminal Procedure (CrPC).

42. 'Remote Chances Of Child Surviving Or Leading A Normal Life': Calcutta HC Allows Medical Termination Of Approx 35 Weeks Old Foetus

Case Title: Nivedita Basu v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 42

In a significant development, the Calcutta High Court allowed termination of 34 weeks 6 days old foetus of a woman after taking into consideration that there are remote chances of the child surviving or leading a normal life. The Court also underscored that there are risks to the health of both the mother and the child if medical termination of the pregnancy is not permitted. Justice Rajasekhar Mantha was adjudicating upon a plea moved by the petitioner seeking medical termination of the pregnancy on the ground that a large number of medical complications have been detected by three medical practitioners which are affecting the health of the petitioner as well as the foetus. "The medical report it is clear and explicit, that there are remote chances of the child being born out of the instant pregnancy surviving or leading ay normal life. The risks to the mother as well as the child are also highlighted in no uncertain terms. Considering the entire gamut of facts and circumstances, this Court permits the petitioner to medically terminate her pregnancy at an authorized hospital and/or medical facility", the Court observed.

Also Read: Consider Mental & Physical Health Of Mother As Well As Foetus: Calcutta HC Directs Constitution Of Medical Board In Plea Seeking Termination Of 34 Weeks Foetus

43. Calcutta HC Raps Police Authorities For Non-Registration Of FIR In Case Of Non-Payment Of Compensation Under Land Acquisition Act

Case Title: Sabita Roy v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 43

The Calcutta High Court expressed displeasure at the conduct of the police authorities of Alipurduar Police Station in not registering an FIR despite receipt of complaint with regards to non-payment of compensation under Land Acquisition Act, 1894. Justice Rajasekhar Mantha observed, "This Court, therefore, takes exception to the conduct of the Alipurduar Police Station in not registering FIR." The Court further underscored, "Having heard the rival contentions of the parties, this Court is of the considered view that since after receipt of a complaint as regards the commission of a cognizable offence, the Alipurduar Police Station was bound to register FIR and commence investigation, as per the dicta of the Hon'ble Supreme Court in the case of Lalita Kumari vs Govt. Of U.P. & Ors reported in (2014) 2 SCC 1."In the instant case, the petitioner had preferred a complaint dated September 3, 2021 addressed to the Alipurduar Police Station with regards to the non-payment of compensation under the Land Acquisition Act, 1894. A complaint in this regard had also been filed by the office of the District Magistrate, Alipurduar on September 4, 2021 with the Kotwali and Alipurduar Police Stations.

44. Calcutta High Court Dismisses PIL Seeking Removal Of WB Governor Jagdeep Dhankhar

Case Title: Ramaprasad Sarkar v. Union of India

Case Citation: 2022 LiveLaw (Cal) 44

The Calcutta High Court dismissed a PIL praying for a direction to the Central government to remove Jagdeep Dhankhar as the Governor of West Bengal, claiming that he was acting as the 'mouthpiece of the Bharatiya Janata Party'. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj on Friday placed reliance on Article 361 of the Constitution which stipulates that a Governor cannot be made answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The Bench also referred to Article 156 of the Constitution which states that the Governor shall hold office during the pleasure of the President for a term of five years. "We find that the writ petition is based upon some tweets, one letter of the Governor and the publications made by one newspaper. We are not satisfied that the material placed along with the petition furnishing any ground to entertain the petition or to issue any such direction to the respondent No. 1 as prayed in the petition. Hence, the petition is dismissed", the Court ruled.

Also Read: 'We Are Of The View That Such A Petition Cannot Be Maintained': Calcutta HC Reserves Judgment in PIL Seeking Removal Of WB Governor Jagdeep Dhankhar

45. Schools Allowed To Charge Full Fees For Physical Classes From Feb 16; No Coercive Action For Default In Payment Until March 31: Calcutta HC

Case Title: Rajib Chakraborty and Ors v. The State of West Bengal and Ors

Case Citation: 2022 LiveLaw (Cal) 45

The Calcutta High Court held that considering the abatement in the Covid-19 pandemic and the reopening of schools across the State, its earlier direction stipulating 20 percent reduction in fees charged by private schools would cease to exist from February 16, 2022 onwards with regards to physical classes. The Court observed that schools and other educational institutions shall be permitted to charge fees according to their policy and arrangement with the students from February 16, 2022 onwards. A Bench comprising Justice IP Mukherji and Justice Moushumi Bhattacharya was adjudicating upon a bunch of PILs filed by aggrieved parents seeking a partial remission of school fees for the session 2021-2022 due to the ongoing pandemic owing to which students are attending schools only through virtual mediums. The Bench vide its order dated October 13, 2020, had slashed the fees charged by private schools in the State by 20% due to the ongoing pandemic." "Till 31st March, 2022 or until further orders, whichever is earlier, no coercive action like expulsion of any student from the school, withholding of admit card to sit for any Board or school examination, withholding of mark-sheets or certificates on the ground of default in payment of school fees, shall be taken by the schools or other educational institutions covered by this litigation against any student", the Court directed further.

46. Absence Of Injuries On Victim's Body Will Not Render Commission Of Offence Improbable: Calcutta HC Upholds Conviction Of Man For Raping 7 Yr Old Girl

Case Title: Manick Sardar v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 46

The Calcutta High Court has recently upheld the conviction of a man for raping a 7 year old girl by observing that mere penetration is sufficient to prove the offence of rape and that presence of injuries on the body of the victim is not necessary. A Bench comprising Justices Bivas Pattanayak and Joymalya Bagchi observed, "It has also been strenuously argued that the allegation of rape on a seven year old minor is improbable as no injuries were found on the body of the victim including her private parts. Her hymen was intact. It is trite law mere penetration is sufficient to prove the offence of rape. It is not necessary that penetration must be of such nature that it would cause injuries or rupture the hymen..In the aforesaid factual matrix, it is clear that there was a slight penetration into the private parts of the victim, which though sufficient to constitute rape, did not result in rupture of hymen." "Thus, I am of the opinion that the prosecution case has fully been proved beyond doubt and cannot be rendered improbable due to absence of injuries being noted on the body of the victim", the Court opined further.

47. S.176 Contract Act| Notice Of Sale By Pawnee Must Contain A Positive Assertion Disclosing Intention To Sell: Calcutta HC

Case Title: Manav Investment and Trading Co. Ltd v. DBS Bank India Ltd

Case Citation: 2022 LiveLaw (Cal) 47

The Calcutta High Court observed that a notice of sale by a pawnee under Section 176 of the Indian Contract Act, 1872 (Act) must contain a 'positive assertion' indicating the intention of the pawnee to dispose of the security. Justice Shekhar B. Saraf observed while enumerating on the requirements of such a notice of sale under Section 176 of the Act, "A notice of the character contemplated by Sec. 176 cannot be implied. Such notice has to be clear and specific in language indicating the intention of the pawnee to dispose of the security. What is contemplated by Sec. 176 is not merely a notice but a 'reasonable' notice, meaning thereby a notice of intended sale of the security by the creditor within a certain date so as to afford an opportunity to the debtor to pay up the amount within the time mentioned in the notice." Opining on the nature of statements envisaged in the notices of sale, the Court further observed, "It is noticeable that in both of the clauses, the respondent bank states that they shall have the right to enforce the pledge. However, I don't find an unequivocal statement stating that the shares shall be sold. In my view, there is a clear distinction between having a right of sale and intention to sell. The very philosophy of Section 176 and 177 is that a protection is given to the pawnor with regard to having an opportunity to redeem the shares upon a proper and reasonable notice being given to him."

48. SSC 'Group-D' Recruitment Scam: Calcutta HC Expunges Single Bench Remarks Against Inquiry Committee; Extends Time For Filing Report By 4 Months

Case Title: West Bengal School Service Commission v. Sandeep Prasad and Ors

Case Citation: 2022 LiveLaw (Cal) 48

The Calcutta High Court extended the time granted to the Court appointed inquiry committee to submit its report in respect of the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the West Bengal Board of Secondary Education (WBBSE) on the purported recommendation by the West Bengal Central School Service Commission (WBSSC). A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta observed on Monday, "We extend the time by 4 months from date to complete the enquiry" The Division Bench took into account that substantial progress had been made by the inquiry committee and that a good number of people were left to be interrogated by the committee for disclosure of facts. Hence, the Bench extended the time granted to the committee for filing of the inquiry report by 4 months. The Bench further expunged the adverse remarks made by Justice Abhijit Gangopadhyay in its order dated February 9 against the inquiry committee pursuant to the request made by the concerned counsels. The Bench ordered that the adverse remarks should not form a part of the record and shall be treated as expunged.

49. 'Reduced Investigation To A Mockery': Calcutta HC Orders CBI Probe Into Haldia Dock Extortion Case, Rejects State's Plea For SIT Probe

Case Title: Rajib Paul v. The State of West Bengal and Anr

Case Citation: 2022 LiveLaw (Cal) 49

The Calcutta High Court ordered the Central Bureau of Investigation (CBI) to probe into alleged extortion of truckers at Haldia Port and observed that "syndicates" have a stranglehold on most businesses and commerce in the state. The Court thus stayed the ongoing investigation by the State police and furthermore rejected the State's plea to allow a Special Investigation Team (SIT) to be entrusted with the investigation. Justice Rajasekhar Mantha observed, "The investigation is being carried out in a perfunctory manner. The faith of the public at large in such investigation could be eroded. There is therefore strong and prima facie case made out for transfer of the case from the State to the CBI. " The Court directed the CBI to collect all the case material including case diary and all evidence from the Haldia Police and commence investigation. However, the Court ordered that final report shall not be filed by the CBI without the leave of this Court.

50. Outsiders' Entry Inside Alipore Zoo| Calcutta HC Disposes Of Plea By Directing Police To Act Impartially, Submit Report To Magistrate Within 1 Month

Case Title: Rakesh Kumar Singh v. Director, Alipore Zoological Garden & Ors

Case Citation: 2022 LiveLaw (Cal) 50

The Calcutta High Court disposed of a plea pertaining to the alleged entry of outsiders inside the Kolkata Alipore Zoo premises by directing the concerned police authorities to investigate into the matter and submit a report to the concerned jurisdictional Magistrate within a period of one month. The Court 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. Justice Mantha opined that the claims of the petitioner cannot be adjudicated under writ jurisdiction and accordingly observed, "This Court is of the view that the claims and grievances of the petitioner as recorded hereinabove, cannot be dealt with under Article 226 of the Constitution of India." The Court further directed the concerned police authorities to investigate into the complaints lodged in an impartial manner and submit a report to the concerned jurisdictional Magistrate within a period of one month. "The Zoo Administration and police are ordered not to take sides and be impartial in dealing with any situation inside or outside the Zoo premises. The complaint filed by the police shall be investigated and suitable report be submitted to the jurisdictional Magistrate within a period of one month from date. The complainants may take appropriate steps against such final report as they may be advised in accordance with law", the Court directed.

51. 'Not A Case Where Family Can't Arrange Two Square Meals': Calcutta HC Denies Compassionate Appointment To Petitioner Whose Mother Is Working

Case Title: Anindita Mandal v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 51

The Calcutta High Court dismissed a plea seeking compassionate appointment by observing that the mother of the petitioner is a teacher of a school and thus there is no immediate crisis faced by the family members. The petitioner one Anindita Mandal had sought compassionate appointment on the ground that her father had passed away when she was ten years old. The mother of the petitioner is working as a teacher in a school. Justice Abhijit Gangopadhyay observed, "The compassionate appointment is given to tie over immediate crisis faced by the family members for untimely death of the bread earner. It is not a case where the family is facing crisis to arrange even two square meals as the mother of the petitioner is working". The Court ruled that the instant case would not come within the the policy of the State for compassionate appointment. Accordingly, the petition was disposed of.

52. 'Deliberate Illegal Action': Calcutta High Court Raps WBSSC, Cancels Appointment Of 6 Teachers In Recruitment Scam

Case Title: Md. Abdul Gani Ansari v. State of West Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 52

The Calcutta High Court ordered the cancellation of appointment of six assistant teachers in the Murshidabad district after noting that they had been illegally appointed pursuant to the illegal recommendation of the West Bengal School Service Commission (WBSSC). The Court was adjudicating upon a plea alleging illegal appointments pertaining to the West Bengal State Level Selection Test (SLST) for Class 9 and Class 10 mathematics teachers. Justice Abhijit Gangopadhyay observed that the illegally recruited candidates do not have any 'legal right' to o work as assistant teachers in the schools pursuant to the letter written by the District Inspector of Schools (S.E.), Murshidabad dated February 8, 2021 to the President of West Bengal Board of Secondary Education. Furthermore, the Court noted that the WBSCC had stated that the illegally recruited candidates had been recommended by the Commission due to a 'mistake'. Opining that this was a 'deliberate illegal action' on the part of the Commission and not a mistake, the Court further remarked, "Though the School Service Commission has taken shelter under the expression 'mistake', this court wholly disbelieves such shroud of the Commission now placed on its face. This cannot be a mistake. These are deliberate illegal action otherwise the wait-listed candidates in serial nos. 229, 242, 250, 265, 289 and 302 could not have been recommended selectively by the Commission."

53. Trafficked Girl Rescued From Bangladesh & Reunited With Parents In India: Calcutta HC Lauds Efforts Of All Stakeholders, Directs Rehabilitation Of Victim

Case Title: Iti Pandit v. The Union of India and Ors

Case Citation: 2022 LiveLaw (Cal) 53

In a significant development, a victim girl who had been trafficked to Rangpur, Bangladesh has been rescued and reunited with her parents back in India. The Court had earlier directed the Central government to take concrete measures to ensure immediate repatriation of the victim to India. Justice Rajasekhar Mantha recorded his appreciation and gratitude towards the efforts put in by the High Commission of India at Dhaka and High Commission of Bangladesh at Kolkata in helping with the recovery of the victim girl. He further appreciated the efforts of other stakeholders by observing, "In the present case as well, this Court had attempted to employ all the faculties available to it, to rescue the victim, a little girl, from her traffickers, and to reunite her with her parents. Its efforts were complemented by a host of individuals and institutions, and the Court expresses its immense gratitude to the all those involved in the rescue efforts." The Court further averred that the writ jurisdiction of Constitutional Courts under Article 32 and Article 226 forms the life- blood of the Constitution as it effectuates and enforces the Fundamental Rights of citizens, in the absence of which, the existence of those rights would be in vain. "This case has proven that territorial and other limitations are easily defeated in the face of an overwhelming determination of find suitable solutions. This Court hopes that this will set a precedent for future cases where Courts or other authorities feel helpless and tied down by such similar difficulties. In the words of two famous people, "It always seems impossible until its done.", and "Perseverance is not a long race: it is many short races one after the other", the Court further underscored.

Also Read: 'Take Immediate Measures To Repatriate Victim To India': Calcutta High Court Directs Union In A Case Of Trafficking Of Girl From India To Bangladesh

54. WB Municipal Polls: State Election Commissioner To Be Held Personally Liable If Central Forces Not Deployed, Decision To Be Taken In 24 Hrs

Case Title: Pratap Banerjee v. State of West Bengal and other connected matters

Case Citation: 2022 LiveLaw (Cal) 54

The Calcutta High Court directed the State Election Commission (SEC) to hold a joint meeting with the officials of the West Bengal government within 24 hours and decide as to whether deployment of central paramilitary forces will be required for the peaceful conduct of the upcoming elections to the remaining 108 municipalities which is scheduled to take place on February 27. The Court underscored that in the event it is decided that central forces will not be deployed then the State Election Commissioner would be held personally liable to ensure that no violence takes place and there is peaceful conduct of elections. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed, "We direct that the Commissioner, State Election Commission will collect information in respect of the conditions prevailing in each of the Municipalities where the elections are scheduled and will hold the joint meeting with the Home Secretary of the State and the Director General and Inspector General of the Police within 24 hours and will examine the ground situation of each of the 108 Municipalities and take a decision in writing in respect of deployment of paramilitary forces by mentioning the relevant circumstances in support of his decision to deploy/not to deploy the paramilitary forces". The Court noted that although it has been alleged that BJP candidates have been prevented from filing their nomination papers however neither the names of those candidates have been disclosed nor have their supporting affidavits been filed. It was further averred that in respect of the already concluded elections to 4 municipalities, conflicting material has been placed on record about the alleged violence.

Also Read: Calcutta HC Reserves Judgment In BJP's Plea Alleging Large Scale Violence During WB Municipal Polls

55. Order XLVII Rule 1 | 'Error Can Be Corrected Without Clamour, Correction Would Not Alter Decree': Calcutta HC Explains Requirements For Review

Case Title: Bharat Heavy Electricals Limited v. Optimal Power Synergy

Case Citation: 2022 LiveLaw (Cal) 55

The Calcutta High Court had the opportunity to expound on the requirements that need to be fulfilled before a Court can revisit a judgment under Order XLVII Rule 1 of the Code of Civil Procedure, 1908. Justice Moushumi Bhattacharya observed that 'an error apparent on the face of the record' is an error which would be self- evident and obvious even at first glance. It was further enumerated that Order XLVII does not permit reappraisal of the merits of the matter and thus determination of such an error should not involve a long-drawn process of reasoning on points requiring a contested hearing. "The sub-text of Order XLVII Rule 1(1) is that the error can be corrected without clamour; the parties being on the same page that the correction of the error would not alter the decree, subject to the importance and the new-ness of the evidence which is subsequently discovered", the Court averred further.

56. 'An Election Gimmick': Calcutta HC Dismisses BJP Candidates' Plea Alleging Threats By Rival Party Members Amid Municipal Polls

Case Title: Chandan Jana & Ors v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 56

The Calcutta High Court dismissed a petition filed by BJP candidates contesting in the upcoming West Bengal Municipal elections, seeking police protection from the State so that they get a fair chance to compete in the elections. The Court noted that several discrepancies had been found in the allegations levelled and further labelled such allegations to be an 'election gimmick'.Justice Sabyasachi Bhattacharyya observed, "There is a fair chance that the representation, at least in respect of some of the candidates, might very well be an election gimmick more than a genuine grievance being expressed before a Court of Law". Opining that there are several discrepancies in the complaints filed by the BJP candidates, the Court observed further, "Looking into the specific allegations made by the writ petitioners in the representation given in pursuance of the order of the coordinate Bench, as compared to their initial complaints and allegations made in the writ petition, several discrepancies are noted."

57. No Adverse Inference Can Be Drawn Against Prosecution For Not Examining A Vulnerable Witness In Control & Custody Of Accused

Case Title: Ashoke Ghosh v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 57

The Calcutta High Court has recently held that non-examination of a minor child who was in the control and custody of an accused would not adversely affect the prosecution's case as it is natural for her to be subjected to undue influence or tutoring by the accused. In the instant case, the appellant had been convicted of murdering his wife and their 5 year old minor child was deemed to be a vital witness. It was alleged by the defence that non-examination of the minor child by the prosecution casts an adverse inference on the prosecution's case. Rejecting such a contention, a Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak observed, "It is trite law a child is ordinarily prone to tutoring. When a minor witness was in the control and custody of an accused it is all but natural that she would be subjected to undue influence and/or tutoring by the accused and, therefore, the prosecution may consider it unsafe to examine her. It is for the prosecution chose its own witnesses to prove the case". Opining further that non-examination of a vulnerable witness would not draw an adverse inference, the Court further stated, "If circumstances in a case like the present one give rise to an impression that a vulnerable witness is under the malefic influence of an accused, it would give sufficient justification to the prosecution not to examine her. Such course should not cast an adverse influence on its case."

58. WB Municipal Polls: Calcutta HC Directs State To Provide Police Protection To BJP Candidates On Payment Of Costs

Case Title: Shueli Panda Mishra & Ors v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 58

The Calcutta High Court directed the State government to extend police protection to BJP candidates contesting in the upcoming West Bengal Municipal elections by providing one Armed Police Officer to each candidate subject to payment of costs by the candidates themselves. The BJP candidates had preferred an appeal before the Division Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj against the decision of a Single Bench that had dismissed such a prayer seeking police protection on the ground that there were several discrepancies in the allegations of intimidation and threats levelled by the BJP candidates. The Division Bench directed, "..we direct that all the appellants will be extended police protection by the respondent State by providing one Armed Police Officer each subject to payment of cost by the appellants in accordance with law. While assessing the cost the authority concerned will keep in mind that the protection has been extended to for safety of the candidates in the election, therefore, the cost at the minimum will be assessed".

59. Long Pendency Of Election Petition Affects Smooth Functioning Of Legislature: Calcutta HC Dismisses BJP Candidate's Plea Over Delay In Filing Pleadings

Case Title: Swadhin Kumar Sarkar v. Chandana Sarkar and Ors

Case Citation: 2022 LiveLaw (Cal) 59

The Calcutta High Court dismissed an election petition of a BJP candidate after reprimanding him for his lackadaisical approach in handling the matter and further observing that it is essential that expeditious disposal of trial of election petitions take place for the smooth functioning of the legislature. Justice Amrita Sinha was adjudicating upon an election petition moved by a BJP candidate who had contested elections from 54-Baishnabnagar Assembly Constituency in the General Assembly Elections of West Bengal which took place in May 2021. Opining that the time period prescribed under Section 86(7) of the Representation of the People Act, 1951 (Act) is extremely essential for the purpose of conclusion of trial in an election petition, the Court underscored, "Time limit as prescribed in the Act is extremely essential for the purpose of conclusion of trial in an election petition, otherwise the returned candidate and the members of the constituency will remain in suspense with regard to their elected candidate and the smooth functioning of the legislature will suffer. Showing any leniency to the petitioner will be against the every object and purpose of expeditious disposal of trial of election petition. Spending any further time for trial of the present petition will amount to sheer wastage of valuable judicial hours which the Court ought not permit to do."

60. 'Penetration Even Of Slightest Degree Is Necessary To Establish Offence Of Rape': Calcutta HC Modifies Order Of Conviction To 'Attempt To Rape' In Case Concerning 11 Yr Old Girl

Case Title: Dipak Singha v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 60

The Calcutta High Court has recently observed that penetration even of the slightest degree is necessary to establish the offence of rape and accordingly held that the appellant should be convicted for the offence of attempt to rape instead of the offence of rape. A Bench comprising Justices Bivas Pattanayak and Joymalya Bagchi was adjudicating upon a case wherein the appellant had been convicted for raping a victim girl aged around 11 years. The Division Bench observed that the evidence on record shows that no case of penetration has been deposed either by the victim or other witnesses and accordingly held, "It is settled law penetration even of the slightest degree is necessary to establish the offence of rape. An analysis of the evidence on record shows no case of penetration has been deposed either by the victim or other witnesses. Although absence of injuries or non-rupture of hymen is not a sine qua non to prove the offence of rape, in the factual matrix of the case where the victim herself states that the appellant attempted to rape her absence of injuries in her private parts corroborate the conclusion that the case was one of attempt to commit rape."

61. SLST Recruitment Scam | Calcutta High Court Orders CBI Probe Into Alleged Illegal Appointment Of Asst. Teachers In WB

Case Title: Nasrin Khatun v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 61

The Calcutta High Court directed the Central Bureau of Investigation (CBI) to probe into the alleged illegal appointment of assistant teachers pertaining to the West Bengal State Level Selection Test (SLST) for Class 9 and Class 10 teachers. The Court had earlier ordered the cancellation of appointment of six assistant teachers in the Murshidabad district after noting that they had been illegally appointed pursuant to the illegal recommendation of the West Bengal School Service Commission (WBSSC). Justice Abhijit Gangopadhyay on Monday handed over the investigation into the matter to the CBI and directed that the probe should be conducted under the supervision of an officer not below the rank of a Joint Director and accordingly observed, "I direct the Director, Central Bureau of Investigation to constitute a committee, headed by an officer not below the rank of a Joint Director, with officers not below the rank of DIG to initiate the enquiry. It is expected that no person connected with the matter will be left out of this enquiry." Opining that the police authorities are controlled by the State machinery and that an independent agency is required to impartially probe into the allegations, the Court further noted, "It is not that, I do not have any confidence upon the Police of this State. But the Police is controlled by the State and in effect they are chained by orders from different quarters. Otherwise I have the belief that the Kolkata Police or the Police of the State is fully capable to inquire into the matter. Therefore, I am directing the CBI to hold this enquiry which has happened in this State, by statutory authority of this state, as an agency outside the control of this State."

62. Calcutta High Court Quashes Order Imposing Penalty For Expiry Of E-Way Bill As There Was No Intention To Evade Tax

Case Title: Ashok Kumar Sureka v. Assistant Commissioner State Tax, Durgapur Range, Government of West Bengal

Case Citation: 2022 LiveLaw (Cal) 62

The Calcutta High Court has quashed the order imposing penalty for expiry of e-way bill as there was no intention to evade tax. The single bench of Justice Md. Nizamuddin has set aside the impugned order of the appellate authority as well as the order of the adjudicating authority and consequently, the petitioner will be entitled to get the refund of the penalty and tax paid on protest subject to compliance of all legal formalities. The petitioner/assessee has challenged the impugned order of the appellate Commissioner confirming the original order passed by the adjudicating authority under section 129 of the West Bengal Goods and Services Act, 2017 for detention of the goods in question on the grounds that the e-way bill relating to the consignment in question had expired one day before, and that the goods was detained on the grounds that the e-way bill has expired which is even less than one day and extension could not be made.

63. 'Not Entitled To Relief U/Art. 226': Calcutta HC Refuses To Interfere With Show Cause Notice Issued By UIDAI Suspecting Petitioner's Citizenship

Case Title: Zia Sharif Hussain @ Tushar Subash Roy

Case Citation: 2022 LiveLaw (Cal) 63

The Calcutta High Court refused to interfere in a dispute over the citizenship of a Hindu man, claiming to have converted his religion from Islam, by observing that no relief can be granted under Article 226 of the Constitution. The petitioner had challenged a show cause notice dated January 27, 2022 issued by the UIDAI stipulating that his Aadhar Card would be deactivated if he fails to provide any decision authenticating his citizenship or residence in India. Dismissing the plea, Justice Rajasekhar Mantha observed, "In the above circumstances, the petitioner is not entitled to any relief under Article 226 of the Constitution of India with regard to his Aadhar Card or its proposed de activation." Upon a perusal of the submissions, Justice Mantha noted that a statutory authority had found discrepancies in the petitioner's passport and accordingly remarked, "This Court notes that there is a finding by an authority constituted statute of discrepancies in the petitioner's passport based on which it has been revoked. There is also charge sheet filed against the petitioner under the appropriate penal laws referred to herein above."

64. If Evidence Of Official Witnesses Inspire Confidence, Lack Of Corroboration By Hostile Independent Witnesses Will Not Affect Prosecution Case: Calcutta HC

Case Title: Habibur Rahaman v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 64

The Calcutta High Court has recently observed that if the evidence of official witnesses inspire confidence then the absence of corroboration by independent witnesses who have turned hostile will not make a dent in the prosecution case. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi was adjudicating upon a case involving the seizure of fake currency notes. The Court underscored, "It is settled law if the evidence of the official witnesses are clear, convincing and inspire confidence, lack of support from the independent witnesses who have been won over and had turned hostile would not make a dent in the prosecution case. Hence, I am of the opinion, seizure of counterfeit notes suspected to be forged valued at Rs. 8 lakhs from the appellant and Rs. 2 lakh from the juvenile accused has been proved."

65. Poverty No Justification For Husband To Perpetrate Torture Upon Wife: Calcutta High Court Upholds Conviction For Abetment Of Suicide

Case Title: Budhin Soren v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 65

The Calcutta High Court has recently observed that poverty even if acute cannot be a justification for a husband to perpetrate torture upon his wife thus compelling her to commit suicide. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi upheld the conviction of the husband for abetment of suicide by observing that the deceased wife named Bimali had been subjected to torture at her matrimonial home which had compelled her to commit suicide within six years of marriage. "Evidence on record shows a pitiable condition in the matrimonial home of Bimali where she was tortured for non-availability of food. Poverty, though acute, cannot be a justification for the husband to perpetrate torture upon his wife and compelling her to commit suicide", the Court underscored. Opining that the prosecution evidence in this regard is further strengthened by the statutory presumption under Section 113A of the Evidence Act, the Court remarked further, "It is, therefore, crystal clear that life of Bimali at her matrimonial home was a bed of thorns. Her husband, Shyamal inflicted inhumane torture upon her. Unable to bear such torture, she decided to take her own life. I am convinced the live link between torture meted out by Shyamal upon his wife and her ultimate act of self-extermination is clearly established. Ample evidence has come on record that the housewife was subjected to torture and was compelled to commit suicide within six years of marriage. Prosecution evidence in this regard is also fortified by the statutory presumption under Section 113A of the Evidence Act."

66. Agreement Of Sale Alters Landlord-Tenant Relationship, Parties Cannot Go Back & Seek Relief In Terms Of Such Old Relationship: Calcutta High Court

Case Title: Sashi Jain @ Shashi Jain v. Sandip Sarka

Case Citation: 2022 LiveLaw (Cal) 66

The Calcutta High Court observed that when an agreement of sale is entered into by a landlord and a tenant, the nature of the existing relationship changes and thus parties cannot go back to their old relationship and seek relief in terms of such relationship. Opining that the appellant had consciously surrendered her right as a tenant, a Bench comprising Justice Soumen Sen and Justice Ajoy Kumar Mukherjee observed, "The parties who have acted in terms of the agreement for sale and altered their relationship consciously cannot now go back to their old relationship and seek relief in terms of such relationship. There is a clear and conscious act on the part of the appellant to surrender her right as a tenant to acquire a superior right of an owner of the second floor of the suit premises." Reliance was also placed on the Kerala High Court judgment in Velu v Lekshmi & Ors to observe that two sets of mutually contra relationships cannot co-exist and accordingly it was further underscored, "Whenever a certain relationship exists between two parties in respect of a subject-matter and a new relationship arises as regards the identical subject-matter the two sets of mutually contra relationships cannot co-exist as being inconsistent and incompatible, that is to say, if the latter can come into effect only on termination of the earlier that would be deemed to have been terminated in order to enable the latter to operate."

67. Only SC Can Clarify Whether Orders Passed Under Repealed 'WB Housing Industry Regulation Act' Can Be Executed: Calcutta High Court

Case Title: Saptaparna Ray v. District Magistrate and Collector, North 24 Parganas and others

Case Citation: 2022 LiveLaw (Cal) 67

The Calcutta High Court observed that only the Supreme Court under Article 142 of the Constitution can clarify whether the orders passed under the repealed legislation, the West Bengal Housing Industry Regulation Act, 2017 (WBHIRA), are saved and the execution thereof can be continued. The Supreme Court in the case of Forum for People's Collective Efforts (FPCE) and another v. State of West Bengal had declared the WBHIRA Act, 2017 as being ultra vires the Constitution of India and repugnant to the provisions of Real Estate (Regulation and Development) Act, 2016 and thus struck down the legislation. Justice Rajasekhar Mantha observed while declining to entertain the plea, "..this Court is of the view that it is only the Hon'ble Supreme Court under Article 142 of the Constitution of India, that can clarify as to whether the orders passed under the erstwhile WBHIRA, are saved and the execution thereof can be continued post the decision in the Forum for People's Collective Case or whether the execution should be carried out under the Real Estate Regulation Authority Act, 2016." The Court further averred, "It is clear and evident from the aforesaid paragraph that what has been saved by the Supreme Court under Article 142 under the Struck Down Act, are legislation, sanction and permission already granted. The orders already passed under the said Repealed Act, have not been specifically mentioned to have been saved", the Court averred.

68. 'Violation Of Principles Of Natural Justice': Calcutta High Court Orders Restoration Of GST Registration Within 7 Days

Case Title: Latika Ghosh v. The Commercial Tax Officer/Assistant Commissioner, West Bengal Goods & Service Tax, Raiganj Charge & ors.

Case Citation: 2022 LiveLaw (Cal) 68

The Calcutta High Court on Tuesday ordered for the restoration of the appellant's certificate of registration under the provisions of both West Bengal Goods & Service Tax Act and Central Goods & Service Tax Act within one week after noting that the order for cancellation of registration is in violation of principles of natural justice. A Bench comprising Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya observed, "The authorities are directed to restore the appellant's certificate of registration under the provisions of both West Bengal Goods & Service Tax Act and Central Goods & Service Tax Act within one week from the date of receipt of the copy of this order. We grant liberty to the authorities to issue show cause notice to the appellant." The Court further noted that the order of cancellation of the registration made by the state authorities as well as central authorities is unsustainable and the order rejecting the application for revocation dated October 6, 2021 is also not tenable.

69. 'Influence Of Highly Placed Individuals' : Calcutta HC Orders CBI Probe In Another Teacher Recruitment Scam Case In WB Gov Run Schools

Case Title: Setab Uddin & Ors v. The State of West Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 69

The Calcutta High Court again ordered for a Central Bureau of Investigation (CBI) probe in another matter pertaining to the alleged illegal appointment of assistant teachers in State run schools in West Bengal. The Court was adjudicating upon a batch of pleas alleging the illegal appointment of assistant teachers for Class 9 and Class 10 in State run schools pertaining to the West Bengal State Level Selection Test (SLST) on the purported recommendation by the West Bengal School Service Commission (WBSSC). The Court had earlier ordered for a CBI probe in a similar matter after observing that such a scam with regards to public employment could not have taken place without the complicity of people in power in the State machinery. Thereafter, the West Bengal government had moved a Division Bench of the High Court challenging the Single Bench order.

Justice Abhijit Gangopadhyay directed the Director, Central Bureau of Investigation to constitute a Committee immediately headed by an officer not below the rank of Joint Director with officers not below the rank of D.I.G. to initiate the enquiry. "..in this matter also, I direct the C.B.I. enquiry, as the C.B.I. is an expert agency which is not under the control of State Government, in a scam where a Committee has been formed with the important officers of the State Government by the School Education Department. Therefore, I direct the Director, Central Bureau of Investigation to constitute a Committee immediately, headed by an officer not below the rank of Joint Director with officers not below the rank of D.I.G. to initiate the enquiry. It is expected that all the persons named in the said order of the Government including the "competent authority‟ with whose concurrence the order was issued and any other person from whom CBI want to gather facts for inquiry of the matter should come under the umbrella of the enquiry", the Court underscored.

70. Imparting Education By Section 25 Company Is A Charitable Activity Under Income Tax Act: Calcutta High Court

Case Title: Creative Museum Designers v. Income Tax Officer, Exemptions, Ward-1(1), Kolkata

Case Citation: 2022 LiveLaw (Cal) 70

A Bench of Calcutta High Court, consisting of Justices T.S. Sivagnanam and Hiranmay Bhattacharyya, has ruled that when a Company has been established as a non-profit organization under the Companies Act, and its profits are applied solely for the promotion of its objects, its activities would by necessary implication fall under the definition of a "charitable purpose" under the Income Tax Act, 1961. Holding that the Assessee Company was a non-profit organisation that was engaged in imparting education and the advancement of general public utility, the High Court held that its activities would fall within the definition of a "charitable purpose" as defined under Section 2 (15) of the Act. "Thus, when the assessee has not been established for the purpose of earning profit and the income it generates has to be applied for promoting the objects as spelt out in the memorandum and no portion of the income can be directly or indirectly paid by way of dividend or bonus etc, it has to be necessarily held that the assessee is a not for profit organisation but public utility company and the activities of the company for which it has been established would undoubtedly show that the company by establishing knowledge parks, engaged in imparting education and also undertakes advancement of other aspects of general public utility to fall within the definition of charitable purpose as defined under Section 2 (15) of the Act", the Court observed.

71. Calcutta High Court Quashes Penalty Imposed By Customs Dept. Without Enquiry & Adjudication

Case Title: Dharanidhar Ghosh Vs. Union of India

Case Citation: 2022 LiveLaw (Cal) 71

The Calcutta High Court consisting of Justice Md. Nizamuddin, has quashed the penalty which was imposed by the customs department without initiating any enquiry or adjudication. The petitioner/assessee has challenged the order passed by the Commissioner of Customs which imposed several punishments including Punishment No. V, imposing a penalty of Rs.1 crore under Section 112 (b) of the Customs Act on account of some past offences without initiating any proceeding and any adjudication order. The court while criticising the act of the department said that how an authority like a Commissioner can pass order without initiating any proceeding and any adjudication order and it shows total non-application of mind on his part since order of punishment on the offence is not a part of subject matter of the adjudication proceeding. The court has held that the impugned order is bad, in total non-application of mind and on the face of it, is not sustainable in law; and accordingly, punishment order imposing penalty for alleged past offence without any enquiry and adjudication, is set aside.

72. Income Tax Commissioner In Discretionary Power Of Revision Can't Act As Appellate Authority: Calcutta High Court

Case Title: Unisource Hydro Carbon Services Private Limited Versus Union of India

Case Citation: 2022 LiveLaw (Cal) 72

The Calcutta High Court has ruled that the power of an Appellate Authority is much wider than that of a Revisional Authority and the Commissioner, in the exercise of his discretionary power of revision under Section 264 of the Income Tax Act, cannot act as an Appellate Authority and go into the merits of the assessment by re-appreciating the facts and evidence. The single bench of Justice Md. Nizamuddin has observed that the petitioner/assessee has not filed any statutory appeal before the Commissioner of Income Tax (Appeals) with the sole intention of avoiding the payment of a huge amount of tax determined in the assessment order. The court stated that the High Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, cannot act as an Appellate Authority over the assessment order on merits, facts, and evidence involved in an assessment proceeding. The court noted that the petitioner has deliberately chosen the forum of revision under Section 264 of the Income Tax Act with a view to making out a case to come up before the Court again under Article 226 of the Constitution of India tactfully indirectly to get interference in the assessment order which the Commissioner in exercising the power under Section 264 of the Income Tax Act has refused.

73. Calcutta HC Stays Ex-Parte Injunction On Sale Of Books Of Veteran Cartoonist Narayan Debnath, Rs 7 Lakhs Deposit To Be Paid To Legal Heirs By Publisher

Case Title: Sankar Mondal v. Swapan Debnath & Ors

Case Citation: 2022 LiveLaw (Cal) 73

The Calcutta High Court imposed a stay on an ex-parte injunction issued by a trial Court in favour of the elder son of renowned illustrator Late Narayan Debnath against a publisher claiming infringement of copyright of several works of his deceased father. A Bench comprising Justice Ajoy Kumar Mukherjee and Justice Soumen Sen was apprised by the appellant publisher that the injunction application was moved ex parte on February 24, 2022 with the oblique motive to prevent the appellant from selling books authored by Late Narayan Debnath just before the commencement of the International Kolkata Book Fair, 2022. The Bench observed that the concerned trial Court should not have issued the ex parte ad-interim order without giving an opportunity of hearing to the publisher especially considering the fact that the Book Fair was to commence shortly and that such an order of injection would cause irreparable injury to him. However, taking into consideration that the appellant is obligated to pay royalties to the legal heirs of the deceased illustrator unless their inter se disputes are settled, the Court ordered the appellant to pay an amount of Rs 7 lakhs by March 14, 2022. Imposing a stay on the impugned order of injunction, the Court observed further, "The order of stay of operation of the impugned order shall remain stayed unconditionally till 14th March, 2022 and in the event the said amount is deposited within the aforesaid period, the stay of operation of impugned order shall continue till the disposal of the appeal."

74. 'Indian Values Being Eroded With Adoption Of Western Culture': Calcutta HC Orders Daughter To Pay Maintenance To Parents, Provide Accommodation

Case Title: Piyali Tewari Dey v. Baidyanath Dey & Ors

Case Citation: 2022 LiveLaw (Cal) 74

The Calcutta High Court directed a daughter to allow her aged parents to reside with her in a residential flat which had been gifted to her by her parents and further restrained her from alienating the disputed flat during the life time of both her parents. She was also ordered to pay a monthly maintenance of Rs 10,000 to meet the basic needs and medical expenses of her aged parents. Justice Kesang Doma Bhutia observed at the outset that the instant case represents how dynamic human relationship can be in the present socio economic condition. She further observed while directing the daughter, "The petitioner is hereby directed to provide shelter to her parents in the flat where they are residing with her but in different mess during their lifetime and to see they live peacefully their remaining days in the house which originally belonged to them. She is further restrained from alienating the disputed flat during the life time of her both parents. She is further directed to pay Rupees Ten Thousand per month towards their maintenance to meet their basic needs and medical expenses." Pertinently, the Court observed that once a gift deed in respect of the transfer of any immovable property has been executed in favour of a child, such a gift deed cannot be cancelled or declared void under Section 23 in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act) unless the deed in question is conditional in nature.

75. Calcutta High Court Stays WB Gov Order Temporarily Suspending Internet Services Amid Class 10 Board Exams

Case Title: Ashlesh Biradar v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 75

The Calcutta High Court on imposed a stay on an order dated March 3, 2022 issued by the State government temporarily suspending internet services in eight districts of West Bengal between March 7 and March 16. The decision was purportedly taken by the State in order to prevent mass cheating in the upcoming Class 10 State board (Madhyamik) examination.Pursuant to the perusal of the record, the Court noted that the impugned order for suspension of internet service in specified districts has been issued by the Additional Chief Secretary, Home & Hill Affairs Department, Government of West Bengal under Section 144 of the Cr.P.C. The Court opined that such an order under Section 144 CrPC can be issued only by a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate empowered by the State Government. Reference was also made to the Supreme Court judgment in Anuradha Bhasin v. Union of India wherein the Apex Court had considered the scope of Rule 2(2) of the 2017 Rules by holding that such an order must be a reasoned order and reasoning of the authorities and officers should indicate unavoidable circumstances necessitating passing of such an order. In this regard, the Court observed that although the impugned order had made reference to 'intelligence inputs', the report of the Review Committee had made no such mention of intelligence inputs. The Bench held that no material had been placed by the State government to show that such an order suspending internet services was require on account of a 'public emergency' or 'public safety'. Reliance was also placed on the Supreme Court judgment in People's Union For Civil Liberties (PUCL) v. Union of India and Another in this regard.

Also Read: PIL In Calcutta High Court Challenges State's Decision To Suspend Internet Services Amid Class 10 Board Exams, Govt To Respond By Tomorrow

76. 'Unfortunate': Calcutta HC Judge Recuses From Hearing Saying Lawyer Approached Him Personally For Favourable Order

Case Title: In the goods of Mahesh Kumar Agarwal and Anr. v. Meena Agarwal and Ors

Case Citation: 2022 LiveLaw (Cal) 76

In an unprecedented development, Justice Shekhar B. Saraf of the Calcutta High Court on Friday recused from hearing a matter after alleging that a lawyer representing one of the parties had approached him personally to issue a favourable order. Calling the incident 'extremely unfortunate' Justice Saraf indicated to senior advocate Harish Salve who was appearing through video conferencing that the errant lawyer also belonged to the party the he was appearing for i.e. the petitioner. Consequently, senior counsel Salve underscored that he was returning the brief immediately by terming the entire incident to be 'obnoxious'. He also highlighted that unfortunately, this was not the first time that he was being made aware of such a complaint alleging corrupt practices. Recusing from hearing the matter, Justice Saraf recorded in the order, "Due to circumstances which are quite unfortunate, I release this matter on my personal ground".

77. 'Conduct Not Fit To Be Guardian': Calcutta HC Overrules Prior Direction, Grants Custody Of 4 Yr Old To Father Over Deceased Mother's Friend

Case Title: Tushar Kanti Das v. Kajal Saha

Case Citation: 2022 LiveLaw (Cal) 77

The Calcutta High Court has recently overruled its prior decision in a case by granting the custody of a four and a half years old girl child to her biological father instead of a family friend of her deceased mother. The Court issued the direction by relying upon the report of a clinical psychologist who had personally interacted with the child. The Court had earlier refused to grant custody of the minor girl to her biological father and had instead permitted the child to be in the care and protection of the family friend of her deceased mother. The biological father had however been granted visitation rights. Overruling the Court's prior direction, a Bench comprising Justice Ajoy Kumar Mukherjee and Justice Soumen Sen opined that the family friend, Julie Roy, is incapable of taking care of the minor child in question and further remarked, "we were of the view that Julie Roy was unfit for the custody of the child. Her conduct does not make her fit to become a guardian of the child. She is neither financially capable of rearing of the child nor can provide the child with education. She has her own family along with grown up son. On the contrary, the biological father is an engineer and is financially sound. He also had an attachment towards his child, and over a period of time as the report would suggest a bonding has developed between the father and the child."

Also Read: Calcutta HC Grants Custody Of 4-Yr-Old Girl To Deceased Mother's Friend Over Biological Father, Grants Visitation Rights To Father

78. 'Medical Ailments Not As Serious': Calcutta HC Refuses To Grant Relief To TMC Leader Anubrata Mondal From Appearing Before CBI In Cattle Smuggling Probe

Case Title: Anubrata Mondal v. Union of India & Ors

Case Citation: 2022 LiveLaw (Cal) 78

The Calcutta High Court dismissed a petition moved by Trinamool Congress (TMC) leader Anubrata Mondal seeking relief from appearing before the Central Bureau of Investigation (CBI) in Kolkata for questioning in the ongoing cattle smuggling probe. Mondal had moved 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 on Friday 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 recorded. The Court 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.

79. 'Exposes Unfortunate & Deplorable Sharp Practices': Calcutta HC Raps Lawyer For Procuring Anticipatory Bail By Misleading Sessions Court

Case Title: In Re : Bhajagobinda Roy alias Bhajan Roy

Case Citation: 2022 LiveLaw (Cal) 79

The Calcutta High Court came down heavily on a lawyer for having procured anticipatory bail before the concerned Sessions Court through 'fraud' and by making a 'brazen incorrect submission' that no such similar relief had been previously turned down by the same Sessions Court or the High Court. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi expressed displeasure at the conduct of the lawyer by underscoring that members of the legal profession are expected to perform their duties with utmost honesty. "Legal profession is a noble profession. Its members are expected to perform their duties with responsibility and honesty and uphold the high and moral ideals of the profession. The present case is one which exposes the unfortunate and deplorable sharp practices resorted to by a member of the said profession to procure an order of anticipatory bail in favour of his client by misleading the Court by making false submissions that no earlier prayer to an anticipatory bail had been turned down earlier either by the session court or the high court", the Court averred.Opining that the conduct of the concerned counsel was motivated to avoid any judicial scrutiny, the Court enumerated further, "In fact subterfuge and/or sharp practice resolved to procure the impugned order of bail is evident from the fact that the pleadings regarding rejection of similar prayer has not been pleaded in the body of the application but is surreptitiously couched in the affidavit accompanying the application so as to avoid judicial scrutiny by the presiding judge."

80. 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.

81. 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.

82. '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.

83. 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.

84. No Opportunity Of Hearing Was Given By The GST Department: Calcutta High Court Quashes Detention Order

Case Title: Precious Trade Link Private Limited Versus Assistant Commissioner of State Tax

Case Citation: 2022 LiveLaw (Cal) 84

The Calcutta High Court bench of Justice Md. Nizamuddin, has quashed the detention order passed by the Goods and Service Tax Department (GST) on the grounds that the opportunity of hearing was not accorded to the assessee. The petitioner/assessee has challenged the order passed by the Deputy Commissioner of State Tax on the ground that the order was bad in law for the reason that the goods of the petitioners were detained without giving any opportunity of hearing to the petitioners under the relevant provision of Section 129 of the West Bengal Goods and Service Tax Act,2017 (WBGST Act). The court ordered that the detained goods shall be released on making payment as per the amended provision of Section 129(1) of the WBGST Act and directed the petitioner to make payment within seven days from the date. On receipt of such payment, the department shall release the detained goods in question within 72 hours from receipt of payment. The court quashed the detention order passed by the Deputy Commissioner of State Tax and remanded it to the authority concerned to consider afresh and pass a reasoned and speaking order in accordance with the law after giving an opportunity of hearing to the petitioners or their authorised representative.

85. Possession Of Land In Excess Of Ceiling Area Can't Be Interfered With U/S 14T(3) WB Land Reforms Act If Used For Commercial Purposes: Calcutta HC

Case Title: Alpine Distilleries Pvt. Ltd v. The State of West Bengal and others

Case Citation: 2022 LiveLaw (Cal) 85

The Calcutta High Court has recently restrained the concerned Block Land and Land Reforms Officer from interfering with the possession of the land under Section 14T(3) of the West Bengal Land Reforms Act, 1955 (Act) after noting that a person is entitled to land in excess of the ceiling area defined under Section 14M of the Act if the same is intended to be used for commercial purposes. A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta observed, "Accordingly, the respondents shall remain restraint from interfering with the possession of the land, which has/have been passed by an order of the relevant Block Land and Land Reforms Officer." However, the petitioner was restrained from creating any third party interest in respect of the land or change the nature and character thereof without obtaining prior leave of the West Bengal Land Reforms and Tenancy Tribunal. "Since it is alleged that the petitioner is holding the excess land beyond the ceiling limit provided under Section 14M of the said Act, the petitioner is restrained from creating any third party interest in respect of the same nor shall change the nature and character thereof without obtaining prior leave of the tribunal", the Court directed. It was further ordered that the correction of the record of rights shall not be made without obtaining the prior leave of the Tribunal.

86. Calcutta HC Directs District Registrar To Ensure Supply Of Legible Copies When Application Is Made For Certified Copies Of Registered Documents

Case Title: Ajoy Kumar Singhania v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 86

The Calcutta High Court has recently directed the District Registrar to ensure that legible copies are always provided when certified copies of a registered document is applied for otherwise the intervention of the Court will always be required for the supply of such legible copies. In the instant case, the petitioner had applied for obtaining the certified copy of a sale deed however the copy of the sale deed which had been provided to the petitioner was illegible. Subsequently, the petitioner had applied to the District Registrar to furnish a legible copy of the concerned document, however such no action had been taken on such a request. Thereafter, the instant plea had been filed. Justice Amrita Sinha observed it is evident from the photocopy of the deed supplied to the petitioner that it is absolutely illegible and accordingly remarked, "The copy of the deed which was supplied to the petitioner is absolutely illegible. Not a word from the said deed can be read." Taking into consideration the grievance raised, the Court directed, "The District Registrar is directed to ensure that when certified copy of a registered document is applied for, then legible copy should always be provided to the applicants; otherwise, the applicants will be required to approach Court for obtaining order for supplying legible copy of the document(s) they require." The order was also directed to be communicated to the District Registrar and the other Sub-Registrars within the jurisdiction to ensure compliance.

87. Calcutta HC Grants Default Bail To Accused For Non-Compliance Of Notice Of Application For Extension Of Time U/S 36A(4) NDPS Act

Case Title: Naimuddin Laskar @ Naim v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 87

The Calcutta High Court has recently granted default bail after noting that no notice of the application seeking extension of time in filing of chargesheet under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) had been served upon the accused thereby violating principles of natural justice. A Bench comprising Justice Debangsu Basak and Justice Bibhas Ranjan De observed, "In an adversarial proceeding, the requirement to adhere to the principles of natural justice is imbedded in a statute governing the adjudicating process unless the same is expressly excluded by statute. The right to a fair trial is fundamental to the rule of law. Right to fair trial is recognized as a part right to life enshrined in Article 21 of the Constitution of India. Compliance with the principles of natural justice ensures a fair trial. Audi alteram partem or hear the other side is one of the fundamental pillars of the principles of natural justice. The principle audi alteram partem needs to applied at every stage of an adversarial proceeding to ensure fair trial, unless its applicability is expressly ousted by statue." The Court further underscored that Section 36A(4) of the NDPS Act does not expressly exclude the application of principles of natural justice and thus an accused is entitled to notice of an application seeking extension of time to submit a chargesheet under Section 36A(4) of the NDPA Act so that he is in a position to oppose the same if need be.

88. Calcutta HC Asks Legislature To Consider Introducing Provisions In Electricity Act, 2003 For Payment Of Compensation For Death/Injury Caused By Electrocution

Case Title: Kabita Mondal (Gayen) v. West Bengal State Electricity Distribution Co. Ltd. and others

Case Citation: 2022 LiveLaw (Cal) 88

The Calcutta High Court called upon the legislature to immediately introduce specific provisions in the Electricity Act, 2003 (2003 Act) regarding payment of compensation to victims of injury, death or damage to property caused by electrocution or to their next of kin. The Court also observed that the legislature should also consider providing for a dedicated hierarchy of forums to decide such cases and that Rules may also be formulated by the Central or State Electricity Regulatory Commissions for effective implementation of such provisions. Justice Sabyasachi Bhattacharyya observed, "It is desirable that the legislature considers the immediate introduction of specific provisions in the Electricity Act, 2003 itself, regarding payment of compensation to victims of injury, death of damage to property caused by electrocution or their next of kin and, if deemed fit, to also consider providing for a dedicated hierarchy of forums to decide such cases. Rules in that regard may also be formulated by the Central and/or State Electricity Regulatory Commissions for effective implementation of such provisions." The Court further noted that relegating such matters of compensation to a Civil Court would aggravate the misery of the victim's kin and accordingly remarked, "The option of relegating such matters of compensation to a civil court, considering the usually sorry plight of the victim's dependants, would involve much time and resources which the applicants in such matters mostly cannot afford to spend. Civil suits, by their implicit nature and statutory structure, require oral and documentary evidence to be led and considered in detail before final disposal."

89. Justice Md Nizamuddin Of Calcutta High Court Recuses From Hearing Former MP Chief Minister Kamal Nath's Case

Case Title: Kamal Nath v. The Principal Commissioner of Income Tax, Kolkata

Case Citation: 2022 LiveLaw (Cal) 89

Justice Md Nizamuddin of the Calcutta High Court recused himself from hearing a petition by former Madhya Pradesh Chief Minister Kamal Nath against the Income Tax authorities in connection with the IT department's decision to transfer his case from Kolkata to Delhi. The matter arose from income tax raids in multiple states, including West Bengal, in the premises of people allegedly linked to Nath in April 2019, when he was the chief minister of Madhya Pradesh. The raids were conducted in connection with a notice issued to the senior Congress leader by the IT authorities. On Tuesday, Justice Nizamuddin recused from hearing the matter and further ordered for the case to be placed before Chief Justice Prakash Shrivastava. "On my personal ground, this matter is released from my list. Let it be placed before the Hon'ble the Chief Justice", the order read. In the instant case, Kamal Nath had moved the Principal Commissioner of Income Tax, Kolkata-9, challenging the IT summons against him asking him to appear in New Delhi, and not in Kolkata, under which he is a tax assessee.

90. Birbhum Massacre| Calcutta HC Orders CBI Probe, SIT Asked To Stop Investigation

Case Title: The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum

Case Citation: 2022 LiveLaw (Cal) 90

The Calcutta High Court transferred to the Central Bureau of Investigation (CBI) the investigation into the violence in Birbhum district of West Bengal, in which 8 persons were killed allegedly in retaliation to the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Friday observed that in the interest of justice and considering the circumstances of the instant case, the ongoing probe should be transferred to the CBI. "Having regard to the aforesaid we are of the opinion that facts and circumstances of the case demand that in the interest of justice and to instill confidence in the society and to have fair investigation to dig out the truth it is necessary to hand over the investigation to the CBI. Accordingly, we direct the State Government to forthwith hand over the investigation of the case to CBI. We also direct the State authorities to extend full cooperation to CBI in carrying out the further investigation", the Bench ordered. The State constituted Special Investigating Team (SIT) which had been carrying on its investigation till now was further ordered to not carry out any further investigation in the matter from the time the same is handed over to CBI. "In view of this order the State police authorities or SIT formed by the State will not carry out any further investigation in the matter from the time the same is handed over to CBI. CBI will not only be handed over the case papers but also the accused and suspects who were arrested in the matter and in custody", the Court ordered further. The CBI has been ordered to submit a progress report on the next date of hearing that is to take place on April 7.

Also Read: Birbhum Massacre| Calcutta HC Reserves Order, Takes On Record Case Diary

Also Read: Birbhum Massacre | 'No Effective Contribution Of SIT In Investigation': Calcutta HC Says While Ordering CBI Probe

91. Letter Written To Husband's Superior In Good Faith Intimating Him About Criminal Complaint Lodged U/S 498A CrPC Does Not Constitute Criminal Defamation

Case Title: Malancha Mohinta v. Dipak Mohinta

Case Citation: 2022 LiveLaw (Cal) 91

The Calcutta High Court observed that writing a letter to the husband's superior at work in good faith intimating him about a criminal case lodged against the husband for inflicting torture would not amount to criminal defamation under Section 499 of the IPC. In the instant case, the wife (petitioner) had written a letter dated May 24, 1997 to the Manager, Indian Overseas Bank intimating him that her husband who was the Assistant Manager of Overseas Bank had tortured her and driven her out of the matrimonial home and that a criminal case under Section 498A CrPC (cruelty) had been initiated against him following which he had been arrested and subsequently released on bail. The petitioner had enclosed a certified copy of the order and had requested the Manager to take such action as may be deemed fit under the facts and circumstances. Justice Ananda Kumar Mukherjee noted that the petitioner in her letter had made representation of facts which were consistent with the incidents relating to filling of cases for alleged torture. He further opined that there had been no 'embellishment of facts' and that no coercive action had been sought by the petitioner against her husband vide the letter. "There remains little to be said that the letter in question was a statement of fact instead of any imputation to harm the reputation of the opposite party", the Court observed. Opining further that the the ingredients of offence of defamation are not attracted by the contents of the letter as they are covered by the Eighth Exception laid down under Section 499 IPC, the Court underscored, "..preferring an accusation against any person to any of the persons who have lawful authority over that person, would not amount to defamation. In the instant case the petitioner wife made accusation against the opposite party before his superior in office in good faith and consistent to her accusation made in the petition of complaint. Therefore, the same would not amount to any defamation as the same is excepted in the 8th exception."

92. 'Evidence Of Sexual Assault Victim Need Not Be Tested With Same Amount Of Suspicion As That Of An Accomplice': Calcutta HC Upholds Conviction In POCSO Case

Case Title: Ram Sevak Lohar v. State

Case Citation: 2022 LiveLaw (Cal) 92

While opining that the sole evidence of a victim of sexual assault is enough to secure a conviction, the Calcutta High Court on Friday observed that the evidence of a victim need not be tested with the same amount of suspicion as that of an accomplice. A Bench comprising Justice Shekhar B. Saraf and Justice Kesang Doma Bhutia observed that the Supreme Court in various decisions have held that barring serious exceptions, the evidence of victim of sexual assault is enough for conviction. Opining that the evidence of a victim of sexual assault need not be tested with the same amount of suspicion as that of an accomplice, the Court underscored, "A girl, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. Maintaining that the sole and trust worthy evidence of a woman, who is a victim of a sexual offence, is enough to find her assailant guilty. An accused guilty for committing of offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality." The Court further observed that the testimony of a minor sexual assault victim must be appreciated taking into account the facts and circumstances of the case. It was also noted that even if the mother of the victim turns hostile. the sole evidence of the victim if found reliable can be enough to secure a conviction. "..it has been held rape is not mere physical assault but instead destroys the whole personality of the victim. The rapist degrades the very soul of the helpless female and therefore, the testimony of the prosecutrix must be appreciated on the background of the entire case, even if the mother turns hostile", the Court observed further.

93. Perceived Unfairness Of 'Hire & Fire' Policy Substantially Diluted If Sufficient Notice Is Given To Employee To Respond To Charges

Case Title: Dr. Kausik Paul v. Seacom Skills University and Others

Case Citation: 2022 LiveLaw (Cal) 93

The Calcutta High Court has recently observed that the perceived unfairness of a 'hire and fire policy' or a clause of summary dismissal is substantially diluted if an employee is given sufficient opportunity to respond to the charges levelled. Opining that Courts intervene only if the principles of natural justice is found to have been violated, Justice Moushumi Bhattacharya observed, "The perceived unfairness of a "hire and fire" policy or a clause of summary dismissal is substantially diluted where sufficient notice is given to the employee to respond to the charges made against the employee. Courts usually intervene and rectify a situation where a clear breach of the rules of natural justice is established on fact or where the notice of termination is opaque and indecipherable in failing to disclose reasons for the sudden dismissal." The Court further opined that in several sectors, such conditions of summary dismissal may be necessary for maintaining disciplinary standards and also for ensuring the competence levels of employees. "The words "hire and fire" carry a sense of an inherent and abrupt injustice. The underlying imputation is one of summary dismissal without an opportunity of a meaningful say in the decision of dismissal. There are also several sectors where the persons are employed under the condition of a summary dismissal on the happening of certain events. In other spheres, these conditions may be seen as necessary for maintaining disciplinary standards and the competence levels of employees", the Court opined further.

94. Calcutta High Court Upholds Single Judge Order Refusing Protection From Arrest To TMC Leader Anubrata Mondal In Cattle Smuggling Case

Case Title: Anubrata Mondal v. Union of India & Ors

Case Citation: 2022 LiveLaw (Cal) 94

The Calcutta High Court upheld a Single Bench order refusing to grant protection from arrest to Trinamool Congress (TMC) leader Anubrata Mondal in the ongoing cattle smuggling case, probed by the Central Bureau of Investigation (CBI). A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed that the order of the Single Bench does not suffer form any error. Furthermore, the Court dismissed the plea of the appellant that he is suffering from various medical ailments due to which he is being unable to appear before the CBI for the purpose of investigation by observing that sufficient material has been placed on record to show that Mondal has been travelling to different places and had even come down to Kolkata, near the place where he was asked to appear for questioning by the CBI. "..this Court also finds substance in the arguments of learned Counsel for respondents that the plea of the appellant that he is suffering from various ailments due to which he is unable to appear for the purpose of investigation, is unsustainable as material has been placed on record to show that the appellant is travelling to different places and had even come to Kolkata, near the place where he is required to appear in pursuant to notice. Appellant is seeking the interim protection to the effect that no coercive steps should be taken against him but there is no material on record showing that any such steps are intended by the respondent", the Court observed.

95. Scope Of Discretion To Stay Award U/S 19 MSME Act Wider Than U/S 36(3) Arbitration Act: Calcutta High Court

Case Title: Bharat Heavy Electricals Limited v. Optimal Power Synergy Ltd

Case Citation: 2022 LiveLaw (Cal) 95

The Calcutta High Court has recently observed that the discretion conferred upon a Court to stay an award or a decree under Section 19 of the Micro, Small and Medium Enterprises Development Act, 2006 (MSME Act) is broader in scope compared to Section 36(3) of the Arbitration and Conciliation Act, 1996 (Arbitration Act) where the discretion is limited to granting stay of an award subject to appropriate conditions. Justice Moushumi Bhattacharya noted that the rights of an award holder are enhanced under Section 19 of the MSME Act compared to Section 36(3) of the Arbitration Act with the object to not hasten the death of the enterprise under the weight of financial pressures aggravated by initiation of proceedings for realization of its dues from supply of materials to a buyer. "The object is to ensure that the small or medium scale enterprise survives; the object is not to hasten the death of the enterprise under the weight of financial pressures aggravated by initiation of proceedings for realization of its dues from supply of materials to a buyer. Section 19 of the MSME Act matches the object of the Act and strengthens its core by broadening the contours for stay of an award / decree compared to section 36(3) of The Arbitration and Conciliation Act, 1996 where the discretion is limited to granting stay of an award subject to appropriate conditions. There is no mandate to allow withdrawal of the amount deposited by the Award-holder", the Court observed.

96. Calcutta High Court To Consider Bail For Convicts Languishing In Jail For 14 Yrs Amid Pendency Of Their Appeals

Case Title: In Re : Guddu Mondal @ Guddu Ali Mondal & Anr

Case Citation: 2022 LiveLaw (Cal) 96

The Calcutta High Court directed the Registrar (IT) of the High Court to prepare a list of appeals where the appellants are in jail for 14 years or more and list those matters before the Court for consideration of bail within 2 weeks. The direction was issued while suspending the sentence and granting bail to two accused persons who were found to have suffered inordinate incarceration for about 20 years. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi ordered, "A large number of appeals are pending in this High Court too where the appellants-convicts are incarcerating in jail for a protracted period of time. Taking judicial notice of such fact, we are of the view similar exercise ought to be undertaken in this Court also. Accordingly, we direct the Registrar (IT) to prepare a list of appeals where the appellants are in jail for 14 years or more and list those matters before this Bench for consideration of bail within a fortnight."

97. SSC 'Group-D' Recruitment Scam: Calcutta High Court Upholds Single Judge Order Directing Former WBSSC Advisor To Disclose His Assets

Case Title: Dr. Santi Prasad Sinha v. Md. Abdul Gani Ansari and others

Case Citation: 2022 LiveLaw (Cal) 97

The Calcutta High Court upheld a Single Judge's order directing former West Bengal School Service Commission (SSC) advisor S.P. Sinha to furnish details about his properties to the Court while adjudicating upon a plea pertaining to the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the West Bengal Board of Secondary Education (WBBSE) on the purported recommendation by the WBSSC. Justice Abhijit Gangopadhyay in the impugned order had directed S.P. Sinha, the Advisor of the School Service Commission and the Convenor of the Five-Member Committee constituted by the Education Department to disclose in an affidavit details about his assets after suspecting corruption during the recruitment of staff in different schools by the SSC in recent years. A Division Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta ordered, "Taking into account the thought process behind the direction passed upon the appellant to file affidavit of assets, we do not find any element warranting interference at this stage. However, we make it clear that such affidavit of assets shall remain in a sealed cover and shall not be divulged or circulated to the litigating parties or the Counsels and shall be appropriately dealt with at the time of final decision to be taken on the issues involved therein." The time for filing such an affidavit was also extended by 5 days.

98. "Pawns In Hands Of Political Powers": Calcutta HC Reduces Sentence Of Agricultural Labourers Convicted For Assaulting Man Over Political Rivalry

Case Title: Abu Fazel Fakir & Ors v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 98

The Calcutta High Court reduced the sentence awarded to persons concurrently convicted under Section 324 read with Section 34 of the Indian Penal Code after noting that they are mostly agricultural labourers who had fallen prey to the hands of political powers without having any knowledge about politics. Justice Bibek Chaudhuri noted that the incident had occurred in the year 2008 and that the appellants had been facing trial for the last 14 years. Opining that the appellants had suffered mental agony due to the long pendency of the instant criminal proceedings, the Court underscored, "The appellants are facing trial before the learned court below and also in this court for last 14 years. They have suffered tremendous mental agony during these years with pendency of a criminal case on their head. All the appellants are villagers, mostly maintain their livelihood as agricultural labourer. Some of the convicts are village housewives. The appellants do not know the intricacies of political ideology they become supporters of different political parties without having any knowledge about politics. They are practically preys and pawns in the hands of political powers."

99. High Drama In Calcutta HC As Single Judge Objects To Division Bench Direction To Accept Document In "Sealed Cover"

Case Title: Md. Abdul Gani Ansari v. State of West Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 99

Justice Abhijit Gangopadhyay of the Calcutta High Court passed a scathing order against the observations made by a Division Bench in a case pertaining to the alleged irregularities in the appointment of 'Group-D' (non-teaching staff) in sponsored Secondary and Higher Secondary schools under the West Bengal Board of Secondary Education (WBBSE) on the purported recommendation by the West Bengal School Service Commission (WBSSC). Justice Gangopadhyay in an order dated March 25 had directed S.P. Sinha, former Advisor of the School Service Commission and the Convenor of the Five-Member Committee constituted by the Education Department to disclose in an affidavit details about his assets after suspecting corruption during the recruitment of staff in different schools by the SSC in recent years. Against this order, an appeal had been filed before a Division Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta seeking a stay. Although the Division Bench had declined to issue a stay on the impugned order and had directed Sinha to file the required affidavit, it had underscored that such an affidavit of assets should be filed before the Court in a sealed cover and should not be divulged or circulated to the litigating parties or their counsels. Recording serious displeasure against such an order by the Division Bench, Justice Gangopadhyay observed, "I do not know what this court will do with a sealed cover in this proceeding when the hand of this appeal court has been tied by the above observation. I have been prevented from taking any consequential step on going through the said affidavit of assets."

100. 'Registar Did Not Have Power To Initiate Disciplinary Action': Calcutta HC Quashes Suspension Order Of Visva Bharati University Asst. Professor

Case Title: Rajesh K.V. @ Rajesh Kaleerakath Venugopal v. Visva-Bharati & Ors

Case Citation: 2022 LiveLaw (Cal) 100

The Calcutta High Court set aside a showcase notice and the subsequent suspension of a Visva Bharati University assistant professor after observing that the Registrar (Acting) did not have the power to initiate disciplinary action against the professor. The Visva Bharati authorities had on February 24, 2021, showcaused Rajesh Kaleerakath Venugopal, assistant professor of Rabindra dance and drama at the varsity's Sangeet Bhavana, asking him to clarify why action would not be taken against him for negligence in duty and misconduct. Justice Moushumi Bhattacharya directed, "This Court is of the view that since the Registrar (Acting) did not have the power to initiate disciplinary action against the petitioner, who is an Adhyapaka of the University, the defect of jurisdiction goes to the root of the matter and nullifies all subsequent steps taken thereafter. The Charge-sheet and the order of suspension are hence without authority and should be quashed on that basis. In other words, to quote the legal maxim sublato fundamento cadit opus, if the foundation of the action is removed, the superstructure must fall".

101. All Acquittal Orders Must Be Forwarded To DLSA & District Magistrate For Due Intimation To Victim, Must Endorse Victim's Right To Appeal: Calcutta HC

Case Title: Sabitri Bhunya v. The State of West Bengal and Others

Case Citation: 2022 LiveLaw (Cal) 101

The Calcutta High Court ordered that every order of acquittal must be forwarded to the District Magistrate and the District Legal Services Authority (DLSA) for due intimation to the victim as per Section 2(wa) of the CrPC. The Court further directed that in every order of acquittal, the concerned trial court at the foot of the judgment must endorse the right of the victim to prefer an appeal as per the proviso to Section 372 CrPC and if necessary, to avail free legal assistance through the legal services authorities concerned to prefer such an appeal. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi directed, "(a) Copy of the judgment of acquittal be forwarded to the District Magistrate and DLSA concerned for due intimation to the victim as defined under section 2(wa) of the Code of Criminal Procedure. (b) In every copy of the judgment which ends in acquittal, the trial court shall at the foot of the judgment endorse the right of the victim to prefer an appeal under proviso to Section 372 of the Code of Criminal Procedure and if necessary, to avail free legal assistance through the legal services authorities concerned to prefer and prosecute such appeal (c) Necessary steps be taken to amend the Criminal Rules and Orders and incorporate such requirement in the aforesaid Rules."