Calcutta High Court
Case BriefsHigh Courts

   

Calcutta High Court: Moushumi Bhattacharya, J. heard a petition and issued directions relating to a matter of non- payment of victim compensation pursuant to an order made by the Secretary, District Legal Services Authority fixing the compensation amount as Rs.1,50,000/-.

Counsel for the petitioner submitted that the petitioner had filed an appeal from the said order in 2021 for enhancing the compensation amount to Rs. 18 lacs and the said appeal was pending from date and is due to be considered by the appellate body on 24-06-2022.

Counsel appearing for the State Legal Service Authority (‘SLSA’) submitted that they did not have any fund at its disposal and was therefore unable to pay the amount of Rs.1,50,000/- to the petitioner till date.

The Court stressed on the fact that Section 357-A of Criminal Procedure Code, 1973 is a special provision for Victim Compensation Scheme according to which it is the duty of the State Government in co-ordination with the Central Government to prepare a Scheme for providing funds for the purpose of compensation to the victim or his/her dependent who has suffered loss or injury as a result of the crime and who requires rehabilitation.

The Court noted that in other matters of similar nature, the SLSA has not been provided with the funds for disbursement towards victim compensation. Reminding of a similar matter in 2021 where the SLSA had submitted that it had funds only of an amount of Rs.5,000/- and was hence not in a position to disburse the victim compensation, the Court remarked that it is a sorry state of affairs. The Court stated that it is mandatory on the State Government not only to make a separate budget for victim compensation but also to constitute a fund with the specific nomenclature of “Victim Compensation Fund” for disbursing amount to the victims who need rehabilitation.

The State or the SLSA cannot take the position that it does not have funds to compensate the victims.

The SLSA and the State were directed to file a report within six weeks from date as to the steps which are proposed to be taken for ensuring that adequate amount of funds reach the State Legal Services Authority within six weeks from date indicating the funds which are proposed to be put in with SLSA within the time directed for dealing with the pending cases of victim compensation.

The prayer for immediate disbursement of Rs.1,50,000/- was declined in view of the practical compulsions namely that SLSA was not in a position to inform the court as to the quantum of funds at its disposal.

[Maleka Khatun v. State of West Bengal, W.P.A. 4 of 2022, decided on 20-06-2022]


Advocates who appeared in this case :

Mr Kaushik gupta, Mr Anirban Tarafder and Ms Munmun Gangopadhyay, Advocates, for the Petitioner;

Mr Arindam Sen and Mr Sagnik Bhattacharya, Advocates, for the respondent 3.


*Suchita Shukla, Editorial Assistant has reported this brief.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Ajoy Kumar Mukherjee, J. allowed a revisional application which was filed for quashing of the proceeding under Sections 3, 4, 5, 7 and 18 of the Immoral Traffic (Prevention) Act, 1956 (in short, I.T.(P) Act) read with Section 120-B of the Penal Code, 1860 and also for setting aside the order whereby the Additional Chief Metropolitan Magistrate had taken cognizance against the present petitioner.

The petitioner is a non-residential Indian businessman and in course of such business he visited Kolkata in the month of January, 2019. On 04-01-2019, the petitioner was having a backache and the petitioner was looking for a place where he could get a back massage, he found a place on the internet and went there for the service. During the session a raid was conducted and the petitioner was informed by the police officer that the alleged place was involved in certain offences and that he was required for the purpose of investigation. He was later informed that he was arrested in connection with a police case registered against the said Spa for violation of said I.T.(P) Act. However, the petitioner was granted ad interim bail on 05-01-2019.

The advocate for the petitioner strenuously argued that the petitioner at best can be termed as a customer and accordingly, he cannot be held liable under any of the provisions of the said Act. The advocate representing the State submitted that the petitioner was caught red-handed from the brothel and after completion of investigation, the investigating agency had rightly submitted a charge-sheet against the petitioner under Sections 3, 4, 5, 7 and 18 of the said Act, on the basis of materials collected during investigation.

It was specifically mentioned in the charge sheet that accused 1, 2 and 4 to 10 were living on the earning of prostitution and accused 3 (present petitioner) being “customer” was receiving sexual enjoyment in lieu of money.

The Court observed that there was no material in the case diary which could suggest that the present petitioner was living on earning of the prostitution. It was further noted that there was nothing to show that the petitioner exercised control, direction or influence over the sex-worker’s movement in the way, which can be shown to be aiding or abetting sex work. Mere visiting the house of a sex worker as customer cannot be presumed to be living on earnings of sex workers. To invoke the presumption it must be shown that he was found in the company of the sex worker on some other occasion.

Prostitution per se is not prohibited under I.T. (P) Act but it is also equally true that a “customer” may virtually encourages prostitution and may exploit the sex worker for money but in the absence of any specific allegation and materials, the Court had serious doubt as to how present petitioner (accused 3) who was according to prosecution case merely a “customer” can be convicted with the help of materials in the case diary. and under the said provisions of law.

The Court while allowing the application found that the sections under which the cognizance had been taken by the Magistrate against the present petitioner are bad in law and the said cognizance was taken without considering the materials in the case diary. The Court quashed the chargesheet and set aside the cognizance of offences under the the I.T. (P) Act.

[Suresh Babu v. State of West Bengal, 2022 SCC OnLine Cal 1485, decided on 13-06-2022]


Advocates who appeared in this case :

Mr Tusher Kanti Mukherjee and Mr Abu Abbas Uddin, Advocates, for the Petitioners;

Mr Madhusudan Sur and Mr Dipankar Paramanick, Advocates, for the State;


*Suchita Shukla, Editorial Assistant has reported this brief.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J. took up a petition which was filed with an allegation that the Commissioner of Police, Kolkata did not grant permission to Utshi United Primary Teachers Welfare Association to take out a peaceful procession on 11-06-2022 from Raja Subodh Mullick Square Park to Rani Rashmoni Avenue. 

The petitioner association had organized a protest rally on 11-06-2022 between 12 noon and 4 p.m. with an expectation of around 3,000 people, use of 5 vehicles and 20 loudspeakers was also mentioned. Accordingly, a permission was sought for from the Commissioner of Police and it was alleged that he had not responded to such request dated 31-05-2022. Thus, the instant petition was filed. 

According to senior standing counsel neither the Commissioner of Police nor the officer of Kolkata Police have ever objected to peaceful marches. It was further submitted that if the protest march is restricted to the route as mentioned in the application and there is no destruction of public property or unruly behaviour during such march, the police will keep a vigil, but shall not disturb the procession. It was however requested that if it is found during such rally that the protesters obstruct the traffic or cause damage to any property or commit public nuisance, the police authority must be allowed to take preventive measures. 

The Court finding that the petitioner wishes to have a peaceful rally with limited number of loudspeakers and vehicles issued certain directions allowing the rally:  

  • The protest rally through the route as mentioned hereinabove, shall be held peacefully strictly between 12.00 noon to 4.00 p.m. The loudspeakers, if used, shall be within the permissible sound limit;
  • Banners and placards will be permitted, but instigating speeches and abusive language will not be permitted.
  • The rally shall be moving in a way that the common passerby and the vehicular passage is not
  • The procession will end at Rani Rashmoni Avenue and the protesters may hold a meeting at Rani Rashmoni Avenue for not more than an hour.
  • The assembly at Rani Rashmoni Avenue shall end by 3.45 p.m. and the entire crowd shall disperse by 4 p.m.

It was made clear that police authorities shall be at liberty to ensure that no breach of peace takes place and law and order is maintained. 

[Usthi United Primary Teachers Welfare Assn. v. State of West Bengal, WPA 10043 of 2022, decided on 09-06-2022] 


Mr Bikram Banerjee, Mr Sudipta Dasgupta, Ms Dipa Acharyya : for the Petitioners 

Mr Amitesh Banerjee, Ms Ipsita Banerjee : for the State 


*Suchita Shukla, Editorial Assistant has reported this brief.

Appointments & TransfersNews

President appoints (i) Smt. Shampa Dutt (Paul), to be an Additional Judge of the Calcutta High Court for a period of two years with effect from the date she assumes charge of her office and (ii) Shri Siddhartha Roy Chowdhury, to be an Additional Judge of the Calcutta High Court, with effect from the date he assumes charge of his office, till 27-12-2023.


Ministry of Law and Justice

[Notification dt. 31-5-2022]

Case BriefsHigh Courts

Calcutta High Court: Md. Nizamuddin, J. allowed a petition which was filed challenging the impugned assessment order under Section 147 read with Section 144B of the Income Tax Act, 1961 relating to assessment year 2013-2014 on the ground of violation of principle of natural justice by not providing the petitioner with an opportunity to file reply to the show-cause-notice.

The show cause notice asked the petitioner to give his reply/show-cause-notice to the proposed draft assesment through Department’s Register e-filing account by 23:17:59 hours IST of 30-03-2022, on the ground that before expiry of such time granted to file such reply/objection to the aforesaid showcause- notice/draft assessment. Respondent/Assessing Officer passed the impugned assessment order on 30-03-2022 at 15:17:08 IST and it is the specific case of the petitioner that the petitioner could not file reply or objection to the aforesaid show-cause-notice due to technical glitches in the portal of the Department.

The Court was of the view that the impugned assessment order which had been passed before the expiry of the time granted by the Assessing Officer to the petitioner to file reply to the aforesasid show- cause-notice relating to the draft assessment in question and further in view of the technical glitches in the portal of the Department by which petitioner could not file his aforesaid objection.

The Court found that the impugned assessment order is not sustainable in law and the same was set aside and the case was remanded back to the Assessing Officer concerned to pass a fresh assessment order in accordance with law after giving an opportunity to the petitioner to file reply to the aforesaid show-cause-notice which shall be filed by the petitioner within seven days from date and shall pass a reasoned and speaking order and by observing principle of natural justice.[Bhadrish Jayantilal Sheth v. Income Tax Officer, WPA 8232 of 2022, decided on 17-05-2022]


Mr Avra Majumder, Sk. Md. Bilwal Hossain : For the Petitioner.

Mr Om Narayan Rai :  For the Respondents


Suchita Shukla, Editorial Assistant has reported this brief.

Hot Off The PressNews

President appoints (1) Miss Justice Kesang Doma Bhutia, S/Shri Justices (2) Rabindranath Samanta, (3) Sugato Majumdar, (4) Bivas Pattanayak, and (5) Ananda Kumar Mukherjee, Additional Judges of Calcutta High Court to be Judges of Calcutta High Court with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 27-4-2022]

Appointments & TransfersNews

The Supreme Court Collegium has approved the proposal for the appointment of the following Additional Judges of Calcutta High Court as Permanent Judges of that High Court:

1. Ms Justice Kesang Doma Bhutia,

2. Shri Justice Rabindranath Samanta,

3. Shri Justice Sugato Majumdar,

4. Shri Justice Bivas Pattanayak, and

5. Shri Justice Ananda Kumar Mukherjee


Supreme Court of India

[Collegium Statement Dt. 19-4-2022]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., in a penetrative sexual assault case of a 14-year-old girl, expressed that,

“Crime against woman is increasing as a whole. Such type of crime is a direct insult to the human dignity of the society and therefore imposition of any inadequate sentence not only results in injustice to the victim and the society in general but also stimulates criminal activities.”

An appeal was directed against the decision of lower Court arising out of POCSO Case, convicting and sentencing the appellant for offence punishable under Section 448 and 506 of the Penal Code, 1860 and Section 6 of the POCSO Act, 2012.

The appellant used to come to the house of victim for last 7, 8 years and he used to call the girl as his granddaughter. Taking advantage of the absence of other family members, the appellant trespassed into the house of the victim and forcibly committed rape on her repeatedly on different occasions for 6-7 months.

In view of the complaint lodged by the victim under Section 376(2)(i) of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 investigation was initiated against the appellant and charge sheet was filed against the appellant under Section 376(2)(i) of the Indian Penal Code and Section 6 of the POCSO Act, 2012.

Analysis and Discussion

High Court noted that during the period of occurrence, the victim girl was aged just above 14 years.

Bench remarked that,

In a case relating to sexual assault and rape, the evidence of the victim girl is very much vital and if found reliable can form the basis of conviction of the accused without seeking for further corroboration. 

High Court noted that the victim herself lodged the written complaint, wherein she had categorically stated that the appellant, who called her grand daughter, committed rape upon her many times. She tried to protest against such unsocial nasty work, but the appellant threatened her by killing her along with her younger brother, father and grandmother.

FIR is never an encyclopedia rather it is information made at the first instance which sets the criminal law into motion. Criminal courts should not be fastidious with mere omissions in the first information statements, since such statements cannot be expected to be a chronicle of every detail of what happened nor to contain an exhaustive catalogue of events which took place [Rattan Singh v. State of H.P, (1997) 4 SCC 161]

Bench observed that the statement of the victim was recorded under Section 164 CrPC, the defence indicated certain omissions in her statement made in the Court during deposition.

Though, the Court noted that,

There are no material contradictions or contrary circumstance to disbelieve the evidence of the victim girl.

Court opined that the evidence of the victim girl before the Court, her written complaint and her statement before the Judicial Magistrate was consistent with the fact that the appellant committed forcible rape upon her on several occasions.

Hence, the evidence of the victim girl was very reliable to act upon. 

Pregnancy

From the evidence on record, it was quite apparent that the victim was pregnant of 5/6 months at the time of lodging of the complaint and she gave birth to a stillborn baby.

Though the investigating agency did not conduct any DNA Test, the Court held that the said was a drawback on the part of the investigating officer in not conducting the DNA test but that cannot be a ground to discredit the testimony of the victim girl.

Therefore, from the consistent evidence of the victim regarding the sexual assault perpetrated upon her by the appellant which resulted in her pregnancy and other evidences on record and the medical evidence stating of pregnancy, there cannot be any doubt that due to such sexual assault, she became pregnant.

High Court remarked that,

“…the evidence of the victim girl and other evidence as discussed above unerringly point to the guilty of the appellant as the person who ravished the victim on several occasions by entering into their house during the absence of other family members resulting in her pregnancy and also of threatening the victim with consequences to kill her and her family members in order to coerce her from disclosing such fact to her family members.”

Bench also observed,

In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to anyone, overpowered by feeling of shame and her natural inclination would be avoid talking about it to anyone, lest the family name and honour is brought into controversy.

With respect to delay in lodging an FIR, High Court expressed that it was not unmindful of social stigma attached to the nature of the offence which might have also attributed to the delay.

It was apparent that the appellant committed rape upon the victim aged just above 14 years forcibly. Therefore, as per the defining provisions of the IPC, the consent of the victim becomes immaterial. Accordingly, the presumption of law under Section 114(A) of the Evidence Act that the act was committed without the consent of the victim was of no relevance in the facts and circumstances of the present case.

Further, it was added that the presumption of law envisaged under Section 29 of the Act is also up against the appellant to have committed aggravated penetrative sexual act upon the victim as the same has not been rebutted.

As there was also evidence of trespass into the house of the victim by the appellant for committing the heinous offence of rape and subsequent threatening of killing the victim and her family members for not disclosing the fact to anyone the ingredients of Section 448 and Section 506 (II) of the Indian Penal Code is also established, Bench stated.

In view of the above discussion, the conviction of the appellant by the trial court was upheld.

In the present case, offence of penetrative sexual assault has been committed upon a helpless victim of 14 years which is inhumane and shakes the judicial conscience.

Sentence

High Court held that a term of 14 years of rigorous imprisonment will be commensurate with the nature of offence and accordingly sentence for rigorous imprisonment for life imposed in respect of Section 6 of POCSO Act, 2012, is reduced to rigorous imprisonment for a term of 14 years. The sentence of fine together with default clause as imposed by the trial court is maintained. The sentence in respect of offence under Section 6 of the POCSO Act, 2012 is modified to the aforesaid extent.

The conviction of the appellant was upheld.[Israil v. State of West Bengal, 2022 SCC OnLine Cal 209, decided on 2-2-2022]


Advocates before the Court:

For the Appellant: Mr Sourav Chatterjee, Adv.

Md. M. Nazar Chowdhury, Adv.

Ms Priyanka Saha, Adv.

For the State: Mr Binay Panda, Adv. Mrs Puspita Saha, Adv.

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Bibhas Ranjan De and Debangsu Basak, JJ., while addressing a bail application in a case under NDPS Act, remarked that,

Section 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act. 

Bench also observed that,

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.

On receiving information with regard to trafficking a substantial quantity of “Ganja” and likely to be unloaded in the house of one Susanta Dey and then to be supplied to Asim Mirdha, a team of NCB Officers reached near the vicinity of the said house.

NCB team found the vehicle and got hold of two persons who were unloading the sacks of Ganja.

The entire contraband article weighing 215 kg was seized under Section 43 of the Narcotics Drugs and Psychotropic Substances Act, 1985. Thereafter voluntary statement of the suspects was recorded under Section 67 of the NDPS Act.

All seized articles were found to be Ganja by the examination report of the chemical laboratory and the said report was submitted before the Jurisdictional Court. During investigation, Asit Karmakar and Manik Das were arrested and their statements were recorded under Section 67 NDPS Act.

Analysis and Decision

Supreme Court in Union of India v. Nawaz Khan, (2021) 10 SCC 100, relied on Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, where Supreme Court observed that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of NDPS Act.

Supreme Court further relied on Union of India v. Prateek Shukla, (2021) 5 SCC 430, and noted that non-application of mind to the rival submission and the seriousness of the allegations involving an offence under the NDPS Act are grounds for cancellation of bail.

Limitations under Section 37 of the NDPS Act regarding grant of bail for offence involving a commercial quantity are:

(i)The prosecutor must be given an opportunity to oppose the application for bail; and

(ii)There must exist ‘reasonable ground to believe’ that:

(a) the person is not guilty of such offence; and

(b) he is not likely to commit any offence while on bail.

High Court expressed that, considering the seriousness of offence punishable under NDPS Act and in order to control the menace of drug trafficking, stringent parameters for grant of bail under the NDPS Act has been prescribed.

Elaborating further, the Bench observed that the operative part of that section is in the negative form proscribing the enlargement on bail of any person accused of commission of an offence under the NDPS Act unless two conditions are satisfied.

First condition is that the persecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are ‘reasonable grounds for believing’ that he is not guilty of such offence.

Bench observed that,

It is axiomatic 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.

High Court while referring to a catena of decisions held that while dealing with a bail application it cannot overlook the complicity of the petitioner in terms of Section 10 of the Evidence Act.

Noting that the petitioner did not establish cogent and unimpeachable evidence that he was not in conversation or contact with the arrested co-accused through the mobile phones which the NCB relied upon to claim nexus between the petitioner and other co-accused and the conspiracy between them, Bench held that the petitioner failed to discharge the onus as mandated under Section 37 of NDPS Act.

In view of the above discussion, bail was rejected. [Manik Das v. Narcotics Control Bureau, 2022 SCC OnLine Cal 195, decided on 28-1-2022]


Advocates before the Court:

For the Petitioner:

Mr. Shekhar Bose, Sr. Adv Mr. Apalak Basu

Ms. Pritha Bhaumik

Mr. Nazir Ahmed

Ms. Snehal Seth

For the OP:

Mr. Y.J. Dastoor, Ld. A.S.G Mr. Phiroze Edulji

Ms. Amrita Pandey

Appointments & TransfersNews

The Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendation for the elevation of the following two Judicial Officers as Judges in the Calcutta High Court:

1. Smt. Shampa Dutt (Paul), and

2. Shri Siddhartha Roy Chowdhury


Supreme Court of India

[Collegium Statement dt. 1-2-2022]

Case BriefsHigh Courts

Calcutta High Court: 80-year-old widow approaches Court to seek direction towards her daughter-in-law to provide for her maintenance as she had taken compassionate appointment on the death of her son, Division Bench of Prakash Shrivastava, CJ and Rajarshi Bharadwaj, J., held that the daughter-in-law is bound by the undertaking by which she had obtained a compassionate appointment.

In the present case, a widow lady aged about 80 years challenged the order of Single Judge, whereby WP No. 3672(W) of 2019 was dismissed.

Further, the record reflected that the petition was filed by the appellant seeking the issuance of a direction to respondent 2 to provide financial assistance to the appellant for survival and medical treatment.

Reason for filing of the above petition

The Husband of the appellant had died long back, and her son was working as a primary school teacher but unfortunately, he also died. The daughter-in-law of the appellant had applied for compassionate appointment in the school and had also filed an affidavit stating that she will bear the responsibility of all the maintenance with the treatment of the appellant in future and forever.

Though the respondent 9 did not do as stated by her in an affidavit.

As no decision on the representation of the appellant was taken, the appellant approaches the Writ Court by filing the petition but the learned Single Judge by the order under challenge had dismissed the petition taking the view that the appellant’s son aged about 37 years is in a position to look after her.

Appellant’s counsel submitted that the only surviving son of the appellant was unemployed and was not in a position to look after the appellant.

High Court stated that once respondent 9 had obtained the compassionate appointment by giving the undertaking to maintain and extend medical assistance to the appellant, then she was bound by that.

Therefore, in view of the above present appeal was disposed of and the appellant was granted liberty to file an appropriate detailed representation before respondent 6 who will duly consider her grievance of the appellant and pass an appropriate order after giving an opportunity to the appellant and respondent 9. [Durgabala Mdandal v. State of W.B., 2022 SCC OnLine Cal 169, decided on 20-1-2022]


Advocates before the Court:

For the appellant:

Mr Rabindra Nath Mahata

Mr T.M. Saha

Ms Aninda Bhattacharya

For respondent 6:

Mr Ranjan Saha

For respondent 6:

Mr Sudip Sarkar

Appointments & TransfersNews

President appoints the following as Judges /Additional Judge of the following High Courts, w.e.f. the date they assume charge of their respective offices, vide notifications dated 03.01.2022:

No. Name (S/Shri Justices) Name of High Court
l. Aniruddha Roy, Additional Judge, Calcutta High Court As Judge of the Calcutta High Court
2. Madhav Jayajirao Jamdar, Additional Judge, Bombay High Court As Judges of the Bombay High Court.
3. Amit Bhalchandra Borkar, Additional Judge, Bombay High Court
4. Shrikant Dattatray Kulkarni, Additional Judge, Bombay High Court
5. Abhay Ahuja, Additional Judge, Bombay High Court As an Additional Judge of the Bombay High Court for a fresh term of one year with effect from 04th March, 2022.

 


Ministry of Law and Justice

[Notification dt. 3-1-2022]

COVID 19Hot Off The PressNews

In view of the threat of the imminent third wave of the Covid pandemic and also the alarming rise in the number of Covid affected cases, the Court shall function with effect from 03-01-2022 in the following manner until further directions:

  • The Court proceedings shall be through virtual mode only. Hybrid mode is allowed only in respect of bail matters where public prosecutors will be allowed to be physically present with case diary and in other matters where Government and other Advocates are to produce or tender documents in court. Trial of suits by witness examination shall be suspended. Other proceedings in suits to continue.
  • Staff attendance shall not be more than 66 & 2/3 percent with rotational transferable duty. Non-essential departments may be suspended and their staff shall be utilised in essential departments.
  • The same system shall be followed in the District Courts as far as applicable and practicable.
  • The same system shall be followed in the Circuit Benches subject to adaptation by the Senior most Hon’ble Judge in Circuit.
  • The concerned stakeholders including Court-staff shall get themselves fully vaccinated and shall strictly adhere to the norms of social-distancing and Covid-19 protocols, guidelines, directions etc. issued by the Government of India, the State Government, the Hon’ble Supreme Court of India and this Hon’ble Court from time to time.

Calcutta High Court

[Notice dt. 1-1-2022]

Case BriefsHigh Courts

Calcutta High Court: While expressing that, Sexual perversity is not only a personal disease, but also a social menace; The act itself is not merely a solitary harrowing experience of the victim; The trauma and the ensuing stigmatization pervades every aspect of her social life; The effect of trauma and insecurity in the mind of the victim are more pervading when she is sexually harassed and assaulted by her stepfather, Bibek Chaudhuri, J., laid down additional guidelines with regard to non-identification of sexual victim’s identity as the same was disclosed in the instant case

In the present matter, the defacto complainant lost her first husband in an accident and while she was staying with her two children she had an acquaintance with one Prabir Bhuia the appellant.

Later the appellant developed love relations with defacto complainant and married for the second time.

In 2014  her daughter told her that during midnight when everybody was sleeping the appellant touched several sensitive parts of her body inappropriately. On hearing this a hot altercation ensued between the de facto complainant and the applicant during which she was severely beaten by the appellant however the matter got solved after receiving an apology from the appellant.

In November, 2014 the defacto complainant noticed that her husband was sleeping in the adjacent room where her daughter used to sleep by the side of her daughter keeping his hand on her body. She asked her daughter about the incident when she said that she wanted to sleep with her mother, but the appellant forcibly seized her and resisted her from going to the bed of her mother. Over the said incident there was a quarrel between the defacto complainant and her husband for a week.

In December 2014, the appellant knocked at the door of the room of the daughter of the defacto complainant where she was sleeping. The daughter used to sleep in the adjacent room closing the door from inside on being directed by her mother. Further, he also called the daughter of the defacto complainant over the phone repeatedly and he tried to take the mobile phone of his wife from below her pillow and when she resisted, the appellant assaulted her severely.

Defacto complainant also raised hue and cry and on hearing the same, the daughter opened the door and came out of her room. Though the defacto complainant somehow entered the room of her daughter and closed the door from inside.

Police registered the case under Sections 7 and 12 of the POCSO Act and took up the case for investigation.

Special Judge framed charge against the appellant under Sections 354 and 324 of the IPC and Section 8 of the POCSO Act.

The above-said decision was challenged.

Analysis, Law and Decision

In the present matter, the statement of the victim girl was consistent on one aspect that the appellant being his stepfather used to touch inappropriately different parts of her body and even the mother of the defacto complainant in the FIR stated that the appellant used to touch-sensitive parts of her body.

Though, there were minor discrepancies in the evidence of the victim but such discrepancies cannot be held to be material contradictions. Evidence of the victim was corroborated by her mother, defacto complainant.

The victim stated in most clear terms that her stepfather used to touch her different parts of body inappropriately.

 Hence, Court had no reason to disbelieve the evidence of the victim and her mother.

The fact that even after the incident the appellant took the victim to various schools for collecting admission forms for class XI did not matter most because the victim was allowed to go with the appellant being accompanied by her brother.

The above-said was the most unfortunate part of the story when a little brother was engaged in the act of policing to prevent their stepfather from committing any indecent act upon the victim.

Whether the specific act of the accused amount to an offence of sexual assault within the meaning of Section 7 of the POCSO Act?

A girl attaining the age of 15-16 years only understands whether any touch on her body is appropriate or inappropriate act. She can only understand whether a person touches her with sexual intent or not.

In the present matter, the victim girl more than once stated that her stepfather touched different parts of her body inappropriately and on one occasion during her sleep, she woke up and found that her father was trying to touch her breast and she removed the hand of the appellant.

High Court opined that the prosecution was able to establish the charge against the accused/appellant beyond any shadow of reasonable doubt.

Therefore, no infirmity was found in the decision of the Additional Sessions Judge.

Identity of the Victims

Keeping in view the social object of preventing social victimization or ostracisms of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of High Court or lower Court, the name of the victim should not be indicated.

We have chosen to describe her as ‘ victim’ in the judgment.

It is the duty of the Special Court under the POCSO Act to see that the name of the victim was never disclosed in course of the investigation and if the same was disclosed, it was his statutory duty to stop such disclosure.

The Court stated that unfortunately the name of the victim was disclosed by the defacto complainant in the written complainant and in the formal FIR her name was recorded and during the investigation also her name was often recorded in her statements under Section 161 of the Code of Criminal Procedure and even under Section 164 of the Code recorded by the Judicial Magistrate.

Inspite of the statutory protections and several guidelines of the Supreme Court, the victim’s name was not kept concealed.

In view of the above, in addition to the guidelines of the Supreme Court, this Court was of the view that the following guidelines were to be issued for effective compliance of Section 33(7) of the POCSO Act:

  1. The Officer-in-Charge of every police station shall ensure that in the written complaint the name of the victim girl shall not be stated. The victim girl shall be identified by her age, her father’s name and other particulars sufficient to identify the victim during investigation without disclosing her name.
  2. In the formal FIR and charge-sheet the name of victim girl shall not be stated by the Investigating Officer. On the other hand, she shall be described as “victim”.
  3. In the column of witnesses in the charge-sheet the victim girl shall not be referred to by her name but as “victim.”
  4. In her statement recorded under Section 161 of the Code of Criminal Procedure, the Investigating Officer shall not record the name of the victim. The said statement shall be referred to as “statement of the victim”.
  5. Similarly, while recording the statement of the victim under Section 164 of the Code of Criminal Procedure, the learned Judicial Magistrate shall not record her name. On the other hand she shall record the statement as “the statement of the victim”.
  6. In order to identify the victim, she shall take help of the parents of the victim. He shall also endorse such identification of the victim by her parents at the top of the statement of the victim recorded under Section 164 of the Code of Criminal Procedure.
  7. The Judicial Magistrate shall obtain the signature or LTI of the victim on a separate page after her statement is read over and explained to the victim by him. The signature of the victim along with the certificate of the Magistrate in separate page shall be kept separately in a sealed cover and the Special Judge shall be entitled to open the said sealed envelop, if necessary during trial.
  8. In the deposition sheet of the victim girl, the Special Judge shall not record the name of the victim. He/she shall be identified as “victim” in the deposition sheet.
  9. The signature of the victim witness in her deposition shall be taken by the Special Judge in a separate sheet and the said sheet of paper with signature and certificate by the Special Judge shall be kept in the record in sealed envelop. The Appellate Court shall open the envelop case of the identity of the victim girl being made an issue.
  10. In the judgment the name of the victim girl shall never be stated or recorded by the Special Judge.
  11. The Medical Officer shall not record the name of the victim girl in the Medical Examination Document. On the other hand, the victim girl shall be identified as the “victim” in Medical Examination Report. Similarly, in forensic report victim’s identity by taking her name is prohibited.

[Prabir Bhuian v. State of West Bengal, 2021 SCC OnLine Cal 3063, decided on 16-12-2021]


Advocates before the Court:

For the appellant: Mr Abhijit Basu, Adv., Mr J.N. Pal, Adv., Mr Arghya Kamal Das, Adv.

For the Respondent/de facto complainant: Mr Sukanta Chakraborty, Adv., Mr Zuber Ahmed, Adv., Mr Anindya Halder, Adv.

For the State: Mr Ranabir Roy Chowdhury, Adv., Mr Mirza Firoj Ahmed Begg, Adv.

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Prakash Shrivastava, CJ and Rajarshi Bharadwaj, J., awarded compensation to a person who was remained in detention for almost 41 years without conclusion of the trial.

Instant suo motu petition was registered by this Court taking note of the factual situation that one person of Nepali origin was arrested and had remained in detention for almost 41 years without conclusion of trial, awaiting the report of appropriate authority as regards his mental status because apparently an issue was raised as to whether the said person was fit to withstand trial on a charge of having committed an offence.

With this Court’s intervention, the above-stated person was released and handed over to his relatives. But the fact remains that the said person was in detention without trial for almost 41 years.

In view of the above background, the issue of awarding compensation to the said person arose.

High Court directed respondent/State to pay a sum of Rs 5 lakhs by transferring the amount in the account of the said person by following due process of law.

Matter to be listed on 17-2-2022. [UTP Dipak Joshi, lodged in Dum Dum Central Correctional Home, In Re., 2021 SCC OnLine Cal 3020, decided on 7-12-2021]


Advocates before the Court:

Mr. Jayanta Narayan Chatterjee, Ms. Jayashree Patra

..for the SLSA.

Mr. Anirban Ray, Mr. Debasish Ghosh

..for the State.

Mr. Saikat Banerjee,

Ms. Juin Dutta Chakraborty, Mr. U.K. Roy

..for High Court Administration.

Case BriefsHigh Courts

Calcutta High Court: While addressing a matter under Section 376 of Penal Code, 1860 Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., observed that, it cannot be said that appellant had no intention to marry from the inception of the relationship, infact the relationship did not fructify due to obstruction from the elders of the family.

The instant appeal was directed against the decision passed by the lower court arising out of Sessions Case under Section 376 of the Penal Code, 1860.

Background

Prosecution alleged that the appellant cohabited with the victim girl who was a minor, on the false promise of marriage, due to which the girl became pregnant.

When the girl asked the appellant to marry, he evaded the issue. The said matter came to the knowledge of the family members, after which a salish was held, wherein the appellant refused to marry the victim girl due to the strong objection of his family members.

In view of the above, first information report was filed and charges were filed against the appellant under Sections 376/493 of IPC.

Analysis, Law and Decision

Bench noted that the evidence on record clearly established that the appellant had cohabited with her on the promise of marriage.

However, Court found it was difficult to accept that the initial cohabitation was forceful as such allegation was significantly absent in the FIR by PW1. It was argued that the appellant had agreed to marry her, but the marriage could not fructify due to the resistance of his parents. Hence, it could not be said that the appellant did not intend to marry her at the time when they cohabited.

Court found substance in the above contention.

Mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception.

Bench observed the evidence that the appellant and the victim girl wanted to marry each other and cohabited and as a result, she became pregnant but due to the resistance of the parents of the appellant marriage was not held.

It appeared that the date of birth of the victim was 18-3-1993 and she was above 16 years at the time of occurrence. Thus, victim had crossed the age of consent.

Therefore, Court opined that it cannot be said that the appellant did not have the intention to marry the victim, in fact the marriage could not fructify due to obstruction from elders in the family.

The materials on record also indicated that the cohabitation was consensual.

Concluding the matter, the conviction and sentence of the appellant was set aside and the appellant was acquitted. [Saddam Hussain v. State of West Bengal, 2021 SCC OnLine Cal 3012, decided on 7-12-2021]


Advocates before the Court:

For the appellant: Debarshi Brahma, Adv.
Ms. Ankita Das Chakraborty, Adv. Mr. Sagnik Mukherjee, Adv.

For the State: Mr. S. G. Mukherjee, P.P. Ms. Amita Gour, Adv.
Mr. N. P. Agarwal, Adv.

Case BriefsHigh Courts

Calcutta High Court: Expressing that, “Time has come that every dutiful citizen of the country must realize their duties and accountability to the society and must refrain from taking the law in their own hands”, Division Bench of Harish Tandon and Rabindranath Samanta, JJ., held that,

Destruction of the public property has a ramification on the society and the taxpayers are burdened for no fault on their part. The charging sections would evince that not only the Public Officers but the public properties have also been destroyed.

Petitioners filed the instant application for anticipatory bail while apprehending the arrest under Sections 147/148/149/325/332/353/435/427 of the Penal Code, 1860 read with Section 3 of the Prevention of Damage to Public Property Act and Section 9 of the West Bengal Maintenance of Public Order Act.

Matter of Great Concern

 The citizens of this country took the law into their own hands and vandalized not only the Police Officers while discharging their duties but also the public property.

Further, the Police Officers intercepted a person ferrying the sacred bull for performing the rituals and more than 100 people encircled the Police Station/Post to create a ruckus pressurizing the Police Officers to succumb to their unreasonable demand and refrain from discharging their statutory functions. The petitioners are the accomplices who accompanied such hooligans and according to the learned Advocate for the State they damaged public property.

High Court expressed that, in recent times, a tendency has developed in the society that if any action is taken by a Public Officer in pursuit of discharge of his duty, the mass gatherings are eminently done not only to create pressure upon them to desist them from discharging their pious duties but also to avoid any action to be taken by such Public Officers. Even sometimes public properties are damaged, and they do not owe any responsibility nor there is any mechanism for accountability towards the burden on the public exchequer. They appeared to have escaped easily as no overt act has been disclosed because of the large gatherings of the people and sometimes it is projected as an act of defence in the trial.

Court opined that petitioners should not be treated differently as equality and equal protection is the hallmark of the Constitutional vision.

However, Bench expressed serious concern on the role of such gatherings interfering with the carriage of the statutory duties by the Public Officers.

In view of the above discussion, anticipatory bail was allowed. [Ashish Singha, In re., 2021SCC OnLine Cal 2913, decided on 11-11-2021]


Advocates before the Court:

Mr Avinaba Patra, Advocate ……for the Petitioners

Mr Sudip Ghosh, Advocate

Mr Bitosok Banerjee, Advocate ……for the State

Appointments & TransfersNews

President appoints 3 Additional Judges to Calcutta High Court for a period of 2 years with effect from the date they assume charge of their office:

  1. Krishna Rao
  2. Bibhas Ranjan De
  3. Ajoy Kumar Mukherjee

Ministry of Law and Justice

[Notification dt. 16-11-2021]

Case BriefsHigh Courts

Calcutta High Court: In a case wherein directors of the Board of society had published defamatory statements against the Vice Chairman of the society and circulated the same in the whole society and pasted it on the elevators to defame him, Bibek Chaudhuri, J., explained the offence of defamation and what are the essentials to prove that harm has been caused to the reputation of a person.


Background


Instant application was filed under Section 482 of the Code of Criminal Procedure for quashing of proceedings under Section 500 of the Penal Code, 1860.


Facts leading to the present matter


An aged widow/apartment owner of society had applied for permission to effecting repairs of her apartment. Secretary of the society allowed the same.

The said repairing work was stopped by passing a resolution alleging that the aged widow/apartment owner might transfer her membership of the society and her apartment.

Later, the legal advisor of the society gave an opinion that the resolution adopted was illegal and in contravention of the applicable statute.

Complainant construed to the resumption of the repair work at the said owner’s apartment and accused 1 to 3/petitioners opposed the same. When accused 2 started shouting at the complainant, he decided to recuse himself from the said meeting.

An alleged defamatory letter was circulated amongst all the members of the society wherein the following was stated:

(i) Complainant threatened Petitioners with dire consequences and also demeaned female members of the society.

(ii) Opposite party caused premature dissolution of the meeting by indecorous behavior in breach of his duties as vice-chairman of the Board of Directors.

(iii) Opposite party was dismissive of the lawful suggestions made by petitioners.

OP through his advocate issued notice to petitioner for ceasing the publication and circulation of the alleged defamatory letter and to issue written apology denying the impugned allegations against him. Even after the said notice, the letter was found to be pasted on the wall of the elevators of the apartments.

In the present application, petitioners submitted that they were innocent and in no way connected with any offence far less offence alleged.


Analysis, Law and Decision


Section 499 IPC


High Court in view of a Supreme Court decision referred by the parties recorded that to constitute an offence of defamation under Section 499 of Penal Code, 1860, there has to be imputation and it must have been made in the manner as provided in the provision with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it has made.

Causing harm to the reputation of a person is the basis on which the offence is founded and the mens rea is a condition precedent to constitute the said offence.

 Section 44 of the Indian Evidence Act


Any harm whatever illegally caused to any person, in body, mind, reputation or property amounts to “injury” within the meaning of Section 44 of the Indian Evidence Act. The harm caused to the reputation of any person is a form of injury.

“…the offence of defamation is the harm caused to the reputation of a person.”

 OP was the Vice-Chairman of the society and petitioners were the directors of the Board of the same society.

Both the parties alleged that they were insulted by each other. OP alleged that publication of the letter containing defamatory statements was caused only to defame him in the estimation of others.

Further, the Bench stated that the following questions of facts are first to be determined by the Trial Court,

“Whether the content of the said letter was defamatory or not, or whether it was it was published by the petitioners or not, or whether it came to the notice of others or not or whether the complainant’s reputation was demeaned in the estimation by others or not…”

Therefore, in view of the above discussion criminal proceeding cannot be quashed invoking the inherent power of this Court contained under Section 482 of the Code. [Alpana Ghosh v. Amitava Ghosh, CRR 278 of 2018, decided on 1-10-2021]


Advocates before the Court:

For the Appellants:

Mr Rajdeep Mazumdar, Adv., Mr Mayukh Mukherjee, Adv.

For the Respondents:

Mr Sandipan Ganguly, Sr. Adv., Mr. Dipanjan Dutta, Adv.,
Mr Rajiv Kumar, Adv.,
Ms Sambrita Chatterjee, Adv.

Appointments & TransfersNews

President of India, in exercise of the power conferred by clause (l) of Article 217, Article 224 and Article 222 of the Constitution of India, after consultation with the Chief Justice of India, has made the following appointments/transfers:

No. Name (S/Shri) Name of High Court
1. Uma Shanker Vyas, Judicial Officer As Judge of the Rajasthan High Court.
2. Vikram D Chauhan, Advocate As an Additional Judge of the Allahabad High Court.
3. Shri Justice Joymalya Bagchi, Judge Transferred from Andhra Pradesh HC to Calcutta HC.

Ministry of Law and Justice

Notification dt. 25-10-2021]