Calcutta High Court
Case BriefsHigh Courts

   

Calcutta High Court: Stressing on legal liability as well as moral obligation to pay maintenance to parents, Kausik Chanda, J. held that when the stepfather fulfils same responsibility as a biological father would have then the stepson is also obligated to provide maintenance to him. And also, biological mother always has the right to maintenance from her son even if she remarries.

Facts of the Case

The petitioner, Sunil Debsharma, lost his father in his early childhood. Petitioner’s mother, Fuldi Debsharma (Opposite party no. 3) remarried Thelu Debsharma (Opposite party no. 2) when he was aged about 3 years. Thelu was a widower, who had a son and two daughters from his first marriage. Sunil was raised by his biological mother and stepfather along with his step siblings. Fuldi and Thelu filed an application under S. 125 of the Criminal Procedure Code, 1973 seeking maintenance from Sunil.

Issues for consideration:

  • Whether a stepfather is entitled to get maintenance from his stepson?

  • Whether a mother after her remarriage is entitled to be maintained by her son from the previous marriage?

Court’s Observation and Analysis

The Court pointed he the legal liability to pay maintenance to parents under S. 125 of CrPC arises out of the moral obligation of children as they have a reciprocal obligation towards their parents for the unconditional love and affection and immense sacrifices that they have made to raise them.

Taking into account, the fact that no case was made out that Thelu being a stepfather has not taken due care of the petitioner or has not shown his love and affection towards him, the Court held that stepfather can claim maintenance from the petitioner leaving aside his biological children. Moreover, the Court held that for the same reason the biological mother who has contracted a second marriage has a right to claim maintenance from her son. The Court stated that

“When a stepfather fulfills the same responsibilities as the biological father, a stepson cannot deny his obligation to maintain him. For the same reason, a biological mother, who has contracted the second marriage, has always a right to claim maintenance from her son.”

[Sunil Debsharma v. State of W.B., 2022 SCC OnLine Cal 2491, decided on 30.08.2022]


Advocates who appeared in this case:

Mr. Nanigopal Sarkar and Mr. Devranjan Das, Counsel for the Petitioner.


*Ritu Singh, Editorial Assistant has put this report together.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court | While awarding the injunction, Sabyasachi Bhattacharyya, J. restrained the Enforcement Directorate from giving effect to the impugned order dated 16.02.2022 which provided for provisional attachment protecting corporate debtor for an offence committed before Corporate Insolvency Resolution Process (CIRP) begin.

The instant writ petition was filed by the petitioners against the order of provisional attachment dated 16.02.2022 passed by the respondent authorities. The point of discussion was the mutual interplay between two statutes – the Prevention of Money Laundering Act, 2002 (‘PMLA’) and the Insolvency and the Bankruptcy Code, 2016 (‘IBC’).

The factual matrix of the case is that the corporate insolvency resolution process of petitioner no. 2 regarding petitioner no. 1-corporate debtor, started on 08.01.2018. The resolution plan got approval from the National Company Law Tribunal (‘NCLT’) on 04.09.2019. The National Company Law Appellate Tribunal (NCLAT) affirmed the approval on 04.03.2021. The respondent authorities on 16.02.2022 passed an order of provisional attachment of one property located in Kharagpur where the Steel Plant of the Corporate Debtor was situated.

The contention of the petitioners was that the order of provisional attachment was passed in relation to an FIR dated 11.09.2014 and since S. 32-A of the IBC protects the corporate debtor from any liability for an offence committed prior to the commencement of the Corporate Insolvency Resolution Process (CIRP), the said order of attachment was illegal. It was further contended that the entire proceeding under the PMLA against the corporate debtor has been rendered infructuous upon approval of the Resolution Plan by the NCLT.

The respondent authorities challenged the maintainability of the writ petition for there being availability of an equally efficacious alternative remedy by way of an appeal under S. 26 of the PMLA before the Appellate Tribunal. The respondent further argued that “the petitioners are not prevented in any manner from their enjoyment of the said property due to the attachment order.”

The Court while staying the impugned order stated that the writ petition is required to be heard on merits and asked the respondents to submit affidavits and file reply. [Ramsarup Industries Ltd. v. Union of India, 2022 SCC OnLine Cal 2571, decided on 26.08.2022]


Advocates who appeared in this case :

Mr. Ratnanko Banerji, Mr. Joy Saha, Mr. Jishnu Chowdhury, Mr. S. Mitra, Ms. Sristi Barman Roy, Ms. Vaibhavi Pandey and Mr. K. Tibarewal, Counsel for the Petitioners;

Mr. Shailendra Kr. Mishra, Counsel for the Union of India;

Mr. Phiroze Edulji, Ms. Anamika Pandey, Counsel for the Enforcement Directorate.


*Ritu Singh, Editorial Assistant has put this report together.

Calcutta High Court
Case BriefsHigh Courts

   

Calcutta High Court | While awarding injunction restraining the defendants for infringement of registered trademark and passing off, Krishna Rao, J. held that Trademark “AMUL” a movement among Indian Rural Community towards prosperity and being a wellrecognized brand should be provided with broader scope of protection against even the non—competing goods and services.

The instant suit was filed by the plaintiff which is a registered proprietor of the trademark “AMUL”, seeking perpetual injunction restraining the defendants, a local candle distributing company in West Bengal who is selling their candles using trade name “Amul Candels”, for infringement of registered trademark and passing off.

The Court observed that after a comparative analysis of the marks, it is clearly seen that defendants have cleverly used the trademark AMUL”' on their candle packet and there is well settled law that the mark should not be meticulously compared side by side as it is not possible for the consumer to have an opportunity to do the same. The Court held that defendants have infringed the registered trademark of the plaintiff under Ss. 29(4)(a), 29(4)(b) and 29(4)(c) of Trade Marks Act, 1999.

Relying on Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73 and Heinz Italia v. Dabur India Ltd., (2007) 6 SCC 1 where the Supreme Court had laid down the following decisive tests for checking deceptive similarity

“5. Broadly stated, in an action for passing-off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors are to be considered:

  1. The nature of the marks i.e. whether the marks are word marks or label marks or composite marks i.e. both words and label works.

  2. The degree of resembleness between the marks, phonetically similar and hence similar in idea.

  3. The nature of the goods in respect of which they are used as trade marks.

  4. The similarity in the nature, character and performance of the goods of the rival traders.

  5. The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.

  6. The mode of purchasing the goods or placing orders for the goods.

  7. Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.

6. Weightage to be given to each of the aforesaid factors depending upon facts of each case and the same weightage cannot be given to each factor in every case.”

and held that the defendants have tried to mislead the general public by using of an identical mark thereby violated statutory rights as well as the common law rights of the plaintiffs and have indulged into the offence of passing off.

Since the suit is of commercial in nature the Court invoked Or. 8 R. 10 of the Code of Civil Procedure, 1908 which allows expeditious disposal of suits when defendants use dilatory tactics by not filling the written statements and held that the defendants have infringed the registered trademark of the plaintiff as well as committed the torts of passing off. [Kaira District Cooperative Milk Producers Union Ltd. v. Maa Tara Trading Co., 2022 SCC OnLine Cal 2516, judgment dated 01.09.2022]


*Ritu Singh, Editorial Assistant has put this report together.

Calcutta High Court
Case BriefsHigh Courts

   

Calcutta High Court : While deciding an application under Article 227 of the Constitution of India dealing with issue of maintenance and welfare of parents, Kesang Doma Bhutia, J. directed the daughter to allow her aged parents to reside with her in a residential flat which was gifted to her by her parents via gift deed. The Court also directed both son and daughter to pay Rs. 10,000/- per month respectively as maintenance to their parents.

Facts of the Case

The instant application was filed by the petitioner-daughter from being aggrieved by the order of cancellation of gift deed dated 10.07.2017 by the Additional District Magistrate in favor of her father.

The father of the petitioner, out of love and affection gifted the flat to petitioner before her marriage via gift deed. The father used to live with his wife and petitioner in that flat. Even after the petitioner's marriage, she along with her husband used to live with her parents in that flat. The relationship between petitioner and parents had deteriorated after the marriage of the petitioner. The petitioner had driven the parents out from the flat and they had taken shelter in the house of their married son.

The father filed an application under S. 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 seeking maintenance as well as for cancellation of the gift deed executed by him. The ADM after inquiry directed the cancellation of gift deed and ordered the son to pay maintenance of Rs. 5000/- per month to the parents.

Court's Observation

The Court observed that “…it has become a part of Indian society to see aged parents and aged senior citizens seeking shelter of the Courts for their social and economic safety as we see some of them driven away from their home by their own children and not being provided proper maintenance and basic necessaries. And some is taking shelter in old age home run by government or by NGOs.”

The Court placed reliance on Debashish Mukherjee v. Sanjib Mukherjee, 2018 SCC OnLine Cal 616 where it was held that gift deed for transfer of immovable property executed by the parents in favor of their children cannot be declared null & void by the Tribunal until and unless such deed contains a clause that the child in whose favor the deed is being executed is liable to maintain their parents and provide them with basic amenities then such cancellation.

The Court also observed that since the gift deed is not conditional as per S. 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, therefore order of the ADM is not maintainable.

Taking into consideration of the facts of the case, age and health conditions of the parents, the Court directed the petitioner to provide shelter to her parents in the disputed flat and restrained her from alienating the disputed flat during the life-time of her both parents. The Court further directed the petitioner to pay Rs. 10,000/- per month maintenance towards basic needs and medical expenses of her parents and also, directed the son to pay Rs. 10,000/- per month towards the maintenance of his parents.

[Piyali Tewari Dey v. Baidyanath Dey, C.O. 2059 of 2021, order dated 09.03.2022]


*Ritu Singh, Editorial Assistant has put this report together.

Appointments & TransfersNews

The President appoints following to be the  Additional Judges of the Calcutta High Court, in that order of seniority, for a period of two years with effect from the date they assume charge of their respective offices: 

  1. Shri Biswaroop Chowdhury;
  2. Shri Partha Sarathi Sen;
  3. Shri Prasenjit Biswas;
  4. Shri Uday Kumar;
  5. Shri Ajay Kumar Gupta;
  6. Shri Supratim Bhattacharya;
  7. Shri Partha Sarathi Chatterjee;
  8. Shri Apurba Sinha Ray; and
  9. Md. Shabbar Rashidi.
Calcutta High Court
Case BriefsHigh Courts

   

Calcutta High Court: While deciding a review petition, Debangsu Basak, J. held that the court while exercising powers under Section 11 of the Arbitration and Conciliation Act, 1996 cannot substitute arbitration agreement with conduct of parties.

Facts of the Case

The respondent filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 for the appointment of an arbitrator after a dispute arose between the parties regarding the execution of the work as per Clause 13 of the work order issued by the applicant in favor of respondent.

On the direction of the Supreme Court, the applicant filed a review petition as he could not place relevant judgement before the High Court when the impugned order was passed for which he filed Special Leave Petition before the Supreme Court.

Contention of the Parties

The Applicant contended that there was no arbitration agreement between the parties and merely because the applicant did not dispute the same at the relevant stage, the Court couldn't have appointed the arbitrator.

The respondent contended that since the applicant did not dispute the arbitration agreement in its pleadings, therefore, it was a consent order, and it cannot be allowed to take a different stand now. Moreover, the applicant has submitted to the jurisdiction of the Arbitration Tribunal as he filed the counter claim and also, filed an application under Section 16 of the Arbitration and Conciliation Act, 1996.

The respondent also contended that if there is a dispute regarding the existence of arbitration agreement, the same shall be determined by the Arbitration Tribunal.

Observation and Analysis:

The Court observed that as per Clause 13, the option of arbitration was only available to government enterprises and since the respondent is not a government enterprise, it cannot avail the same remedy.

Relying on Pravin Electricals (P) Ltd. v. Galaxy Infra and Engineering (P) Ltd., (2021) 5 SCC 671, the Court held that “…the fundamental basis for referring the parties to arbitration being an arbitration agreement in writing between them, never existed between the parties for the applicant herein to waive or acquiesce any of its rights.”

The Court also observed that the Court while exercising powers under Section 11 of the Arbitration and Conciliation Act, 1996 is bound to examine the existence of the arbitration agreement and if it is not possible for the court “to weed out manifestly and ex-facie non-existent and invalid arbitration agreements and non-arbitrable disputes” then only it can refer the issue related to existence of arbitration agreement to the arbitrator for determination as a preliminary issue.

The Court held that in absence of the agreement, the Court cannot refer the parties to arbitration merely because the respondent did not raise objections.

[Eastern Coalfields Ltd. v. RREPL-KIPL (JV), 2022 SCC OnLine Cal 2350]


*Ritu Singh, Editorial Assistant has put this report together.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Sugato Majumdar, J. allowed a criminal appeal which was assailed against the judgment and order of Additional Sessions Judge whereby the Appellants were convicted of offence under Section 304 of the IPC.

The de-facto complainant who was the mother of the deceased. The deceased was a private tutor of the son of Appellant 2 and 3 and appellant 2 was his close friend. A love-affair developed between Appellant 3 and the deceased. It was alleged that all the Appellants black-mailed the deceased and extorted lump-sum amount from him. On 12-01-2004, the deceased left his residence at 10:30 A.M. for the residence of the Appellants and later that afternoon appellant 1 told complainant that the deceased had consumed poison. On hearing this the de-facto complainant rushed to the doctor’s chamber where he was found lying on a bench. After few hours, victim expired and Hospital report showed that cause of death was poisoning. A complaint was registered.

On conclusion of the investigation, charge sheet was filed under Section 304/34 of the IPC. The Trial Court convicted the accused persons under Section 304/34 of the IPC and sentenced them to suffer rigorous imprisonments of seven years and fine of Rs. 2000/- in default rigorous imprisonment for another six months. Thus, the instant appeal.

During pendency of the appeal, the Appellant 1 expired. So, the appeal abated against him. The Counsel appearing for the appellants submitted that the instant case was a glaring example of aberration of justice. It was contended that the charge was framed for culpable homicide not amounting to murder alleging that the Appellants applied force upon the victim to consume unknown poison. In contrast, the impugned Judgment was delivered convicting the Appellants on the ground that the Appellants caused head and other injuries to the person of the deceased resulting in his death. The Appellants were never informed of or given opportunity to set up defense in respect of the different set of facts allegedly constituting the crime, for which the Appellants were convicted. Neither any question was put, nor any hints was given to the Appellants, in course of their examination under section 313 of the Criminal Procedure Code, 1973 about the different set of facts and circumstances to be considered against them. It was also stressed upon the fact that there is no evidence to the effect that the deceased ever visited the residence of the Appellants. He also contended that the post-mortem report was of some other person.

The Court noted that the Trial Judge based his findings on circumstantial evidence. The court further noted that the Postmortem Report concluded that cause of death was head injury caused by hard blunt instrument. This contradicts the medical papers associated with treatment of the deceased. Postmortem examination might have been conducted on a different dead body other than that of deceased in question. The Court was of the opinion that the Postmortem Examination Report cannot be relied upon for coming to any conclusion on cause of death of the deceased.

Once the postmortem examination report is disregarded, the very basis of conviction becomes nugatory. There remains no basis of the finding that the Appellants assaulted and caused injury to the deceased resulting in his death.

The Court also noted the aspect that except with the Appellant 2, the deceased was not seen with the other Appellants by any of the witnesses. There is no evidence to connect the deceased with the Appellant 1 and the Appellant 3 on the fateful day inviting inference that those Appellants were instrumented to cause his death in whatever manner that may be. The Court also agreed with the view of the Counsel of the appellant that the charges were framed referring to one set of facts which were read over and explained to the Appellants. The Appellants were convicted with reference to another set of facts, as noted above. The Judgment, delivered on the basis of a different set of facts of which the Appellants had hitherto been unaware of, undermines the principle of natural justice.

It is not understandable why the Trial Court, in oblivious of ocular testimonies as well as documentary and other oral evidence solely relied upon the Postmortem Report and developed a story as if to sanctify a wrong report. Inspite of absence of any evidence the Trial Court concluded that the Appellants assaulted and injured the deceased causing his death.

The appeal was allowed, and the impugned order was set aside finding that the impugned order by the Trial Court was based on surmise and conjecture, was opposed to any reason, rationality, principles of evidence and natural justice. The impugned judgment is anathema to all rationality and reasoning. Such perverse findings should be seriously looked into.

Appellant 2 and the Appellant 3 were set at liberty, and they were also released from their bail bonds.

[Anil Das v. State of West Bengal, 2022 SCC OnLine Cal 2347, decided on 18-08-2022]


Advocates who appeared in this case :

Subir Ganguly, Sumanta Ganguly, Advocates, for the Appellants;

Faria Hossain, Anand Keshri, Mamta Jana, Advocates, for the State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. took cognizance of a writ petition which was filed by a practicing advocate of this Court with the plea that one of the members of the Bar Association had expired few days back and his body was found on 29-07-2022 and no one has claimed the dead body, therefore, a prayer was made for handing over the body for performing the last rites to the office bearers of the Bar Association.

Advocate General informed that the post-mortem of the body has already been done and since no one had come forward to claim the body, therefore, the dead body was kept in mortuary of Vidyasagar State General Hospital.

The Court noted that no relative of the deceased was known and till then no one had come forward to take the body.

Assured by the fact that the State Authorities had no objection grating the above relief, the Court issued the following directions:

1) The State authorities are directed to hand over the dead body of deceased to the petitionerwithout any unnecessary delay as per rule on completion of due formalities.

2) We make it clear that handing over of the body is for the limited purpose of performance of last rites and will not affect any legal right of any legal heir etc.

3) The original death certificate will be handed over by the authorities to the Secretary of the Bar Association who will keep it safely for handing it over if any lawful claimant comes forward later.

4) The State authorities will extend full cooperation for smooth performance of the last rites of the deceased advocate.

[Manabendranath Bandhopadhyay v. State of West Bengal, 2022 SCC OnLine Cal 2150, decided on 01-08-2022]


Advocates who appeared in this case :

Mr Biswabrata Basu Mallick, Mr. Dipayan Kundu, for the Petitioner;

Mr S.N. Mookherjee, AG, Mr N. Chatterjee, Advocate, for the State;

Mr Billwadal Bhattacharyya, Advocate, for the Union of India.


*Suchita Shukla, Editorial Assistant has reported this brief.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J. disposed of a writ petition with certain directions to police authorities in relation to an investigation in lieu of protection of animals.

Petitioners are members of the Kalyani Bar Association. They filed a complaint that a piglet which had been rescued and brought up by them, was forcefully taken away by some miscreants. It was alleged that four unknown persons entered the Court premises in a swift desire and forcefully took away the animal.

It was noted that the entire incident was video-graphed in a mobile phone by a security guard and forwarded to the police. It was further urged that forceful removal of the animal from its familiar surroundings and from the custody of the persons who looked after it, amounted to cruelty and it should have been incorporated in the FIR.

The Court found substance in the contentions of the petitioner and opined that the police authorities ought to have conducted the enquiry with more seriousness. It was further opined that although, the statements of the security guards were recorded under Section 161,Criminal Procedure Code, whether attempts were made to track down the accused persons, do not reflect from the report. The Court dissatisfied by the investigation stated that from the photographs clicked by the security guards, the identity of the miscreants could have been ascertained.

The Court clarified that the paramount consideration in this investigation should be to protect the interest of the animal, apart from protection/security of court compound. Well-being of animals has been statutorily recognized. The right to get protection from unnecessary pain or suffering, is a right guaranteed to the animals under Section 3 and Section 11 of the Prevention of Cruelty to Animals Act, 1960 (PCA Act) read with Article 51-A(g) and (h) of the Constitution of India.

The Court further relied on Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547 where it was observed that freedom from fear and distress are recognized as a right in case of animals. Thus, when the pig was forcefully removed from its surrounding by unknown persons, the rights guaranteed, have been violated.

Consequently, the Court was of the view that Superintendent of Police shall supervise the investigation henceforth and take necessary steps in this regard. It was reiterated that it is to be kept in mind that it is fundamental duty to protect the animals, from cruelty. This is not a case that the civic body had removed the animal, for maintenance of hygiene etc. Further, the police authorities were directed to keep a strict vigil towards the security of the Court compound so that no such incident was repeated.

[Atasi Chakraborty v. State of West Bengal, 2022 SCC OnLine Cal 2021, decided on 15-07-2022]


Advocates who appeared in this case :

Mr Shibaji Kumar Das, Mr Bhaskar Prasad Vaisya, Advocate, for the Petitioner;

Mr Mrinal Kanti Ghosh, Advocate, for the State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Calcutta High Court
Case BriefsHigh Courts

   

Calcutta High Court: Shekhar B. Saraf, J. upheld the award granted by the Arbitral Tribunal holding that the award holder should be secured for the entirety of the amount along with interest and other costs.

The petitioner had filed this petition under Section 34 of the Arbitration and Conciliation Act, 1996 (“the 1996 Act”) along with an application under Section 36(2) of the 1996 Act praying for stay of the award passed by the arbitral tribunal on 27-12-2021 where the respondent was entitled to a refund of Rs. 84.24 crores along with interest which it had deposited with the petitioner on 27-12-2006. Tribunal had also awarded a sum of Rs. 25,00,000/- towards reimbursement of litigation and arbitral costs.

The dispute between the parties had arisen out of an agreement to carry out a new township project for which the petitioner invited financial bids through a tender process. The financial bid of the respondent was accepted and the petitioner via letter dated 21-12-2006 issued a Letter of Award. Possession of 90.19 acres of land was handed to the respondent on 10-08-2007, however no lease deed was entered between the parties at the time of handing over of the possession. Even after a lapse of one year, the lease agreement for execution of work and the development agreement for the same were still not executed between the parties. Finally, in order to govern the relations between the parties a formal development agreement mentioning the terms and conditions were reduced in writing on 25-04-2008. Due to non-execution of the lease between the parties, the new township project was not commenced meanwhile, the petitioner demanded the remaining sums required to be paid by the respondent claimant. The respondent did not pay the remaining amount due to non-execution of the lease document. Finally, the petitioner terminated the development agreement due to nonpayment of the balance instalments constituting event of default by the respondent. Resultantly, arbitration clause was invoked for settlement of the dispute wherein the abovementioned order was passed by the Tribunal.

Senior Advocate appearing for the petitioner argued that the court has the discretion to decide the mode of security to be furnished by the petitioner. He stated that the land in possession of the respondent can be accepted as a valid security for granting stay of the arbitral award under Section 36 of the 1996 Act.

Advocate appearing for the respondent highlighted the default committed by the petitioner as per the development contract entered between them.

The Court perused the relevant clauses and provisions of law cited by the advocates and opined that proviso to Section 36(3) of the 1996 Act makes it clear that the Court must, while considering the stay application in proceedings under Section 34 of the Arbitration Act, have due regard to the provision for grant of stay of a money decree under the provisions of the Civil Procedure Code, 1908 (“CPC”). Order XLI, Rule 5(1) of the CPC grants the court discretion to stay the execution of a decree for ‘sufficient cause'.

The Court reiterated what was held in the case of Pam Developments (P) Ltd. v. State of West Bengal, (2019) 8 SCC 112 that the mandate of the amended Section 36 of the 1996 Act is such that the Court while considering an application for stay filed along with filing of quashing petitioner under Section 34 of the Arbitration Act can grant the stay subject to conditions as it deems fit. Section 36 also mandates recording of reasons for such stay being granted. The Court at the initial stage of proceeding, was satisfied that there does not appear to be any illegality, perversity or violation of any law on the face of the arbitral award as Arbitrator has duly considered the pleadings on behalf of the parties, and thereafter, framed issues and dealt with specific claims and counterclaims of the parties with reasons — hence, the award is a speaking award.

The petitioner was directed to deposit 50% of the arbitral award (including interest calculated till June, 2022) by way of cash security or its equivalent and the Registrar Original Side was directed to make a fixed deposit of the said amount with any nationalised bank and keep the same renewed till the disposal of the application under Section 34 of the Act or until further orders of Court. The remaining 50% of the awarded amount was directed to be secured by way of bank guarantee(s) of a nationalised bank by the petitioner to the satisfaction of the Registrar Original Side, High Court.

[Siliguri Jalpaiguri Development Authority v. Bengal Unitech Universal Siliguri Projects Ltd., I.A. G.A. No. 1 of 2022, decided on 22-06-2022]


Advocates who appeared in this case :

Mr S.N. Mookherjee, Senior Advocate, Mr Anirban Ray, Mr Raja Saha, Mr Chayan Gupta, Mr Sandip Dasgupta, Mr Saaqib Siddiqui, Mr Aviroop Mitra, Advocates, for the Plaintiff/Respondent;

Mr Siddharth Batra, Mr Ashish Shah, Mr Chinmay Dubey, Ms Moumita Chakraborti, Advocates, for the Respondent/Claimant.


*Suchita Shukla, Editorial Assistant has reported this brief.

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, 2022 SCC OnLine Cal 1755, 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]