Appellate Side of Calcutta High Court: Important Judgments of October 2019

Appellate Side of Calcutta High Court: Important Judgments of October 2019

Bar & Bench

Subhro Prokas Mukherjee

A summary of important judgments and orders passed by the Principal Bench of the Calcutta High Court on the Appellate Side, for the month of October.

Section 406, 420, 120B of the Indian Penal Code 1860

Priknit Retails Ltd. & Ors v. The State of West Bengal CRR 731 of 2017

Dealing with a petition filed under Section 482 CrPC for quashing a case filed under Sections 406, 420, 120B IPC, the Calcutta High Court referred to State of Haryana v. Bhajan Lal in order to revisit the principles regulating the exercise of Section 482 CrPC. Perusing through the FIR, the Court noted that the allegation was that the complainant was induced into purchasing securities by wilful representation and that the mens rea of the accused was the deciding factor in a case of cheating.

While agreeing that the transaction was commercial in nature, the Court held that commercial transactions may have a criminal element and furthermore, averments made in the FIR did reveal the commission of a cognizable offence. The Court rejected the petition because its answer would be in the negative to the Bhajan Lal parameter as to “whether the continuance of the criminal proceedings would be a total abuse of the process of Court.”

Investigation into a crime against an Indian national outside India

Rahima Mallick v. The State of West Bengal & Ors. WP No. 19472(W)/2019

In the present case, the High Court issued notice to the opposite parties where the allegation is that of murder in Nepal by an Indian accused of an Indian victim. The complainant/petitioner is the victim’s mother.

Section 438 CrPC

Rajeev Kumar v. CBI, SP, Economic Offences-IV, CGO Complex, CRM No. 9230/2019

Here, the Court was hearing a Section 438 application filed by the petitioner (Rajeev Kumar, former Commissioner of Police of Kolkata) apprehending arrest in connection with a case under Section 120B read with Sections 420/406/409 of Indian Penal Code and Section 4/6 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978.

The Court distinguished the cases cited by the CBI for denying anticipatory bail to the petitioner and relied upon Siddharam Satlingappa Mhetre v. State of Maharashtra reinforced in Bhadresh Bipinhai Sheth v. State of Gujarat. The Court noted that while it is true that from 13.9.2019, the petitioner turned from a witness into an accused, yet it did not think that it was a case where the petition could be dismissed as it was not a case where custodial interrogation was justified when the petitioner had largely cooperated with the CBI. 

Habeas Corpus

Somnath Bera v. State of West Bengal W. P. No.19342 (W) of 2019

Dealing with a habeas corpus application, the petitioner asked for access to his child born on 4.9.2017 and admittedly in the company of her biological mother. The Calcutta High Court disposed of the petition, stating that the mechanism under the Family Courts Act, 1984 was better suited to dealing with these questions.

Written Statement in a civil suit

Tridibesh Das v. Smt. Tinku Das C.O. 3526/2019

Terming the revision petition as raising a valid question of law, the Court issued notice and stayed trial proceedings in a suit where the petitioner questioned the powers of the civil court in not granting an opportunity to the petitioner to explain the delay in filing the written statement, prior to fixing the suit for ex-parte hearing. 

Section 360 CrPC

Tamal Bhalla & Ors v. The State of West Bengal & Another CRR 1480 of 2006 

The present revision application was filed against the first appellate court’s judgment dated 17.3.2006, wherein it upheld the trial court’s judgment dated 28.3.2001 confirming the conviction for offences under Sections 147, 148, 323/34 IPC and the sentence of INR 1000 for each of the accused, in default of which they were to suffer 4 months simple imprisonment.

Refuting the petitioner’s contentions that they were not connected with the main accused, who carried out the overt act of hitting the victim with an iron rod, the Calcutta High Court held that in a case where charge had been framed under Sections 147-148 IPC, the overt act of each and every accused need not be proved, especially given the accompanying aggression in which the petitioners participated in the offence. Be that as it may, the Court relied upon Om Prakash v. State of Madhya Pradesh to invoke Section 360 CrPC to allow the revision petition to a limited aspect.

Territorial jurisdiction while deciding petitions under Article 226 of the Constitution of India

Tarak Nath Nayak v. The Director General, Central Reserve Police Force WP 18991 (W) of 2019 

The petitioner was serving at Kashmir when he took leave and overstayed his leave. Eventually, disciplinary proceedings were initiated against him outside West Bengal and he was removed from service in June 2016. The petitioner approached the Appellate Authority in Haryana and lost again. A revision petition was preferred and dismissed by the same appellate authority in Haryana. Eventually, he approached the Calcutta High Court, where the respondents raised the plea of territorial jurisdiction.

The petitioner claimed that the Calcutta High Court had jurisdiction as he overstayed his leave at Burdwan (West Bengal), was treated for ailments at Burdwan, and preferred his appeal and revision petition from West Bengal. Disagreeing with the petitioner’s contentions, the High Court dismissed the petition for lack of territorial jurisdiction citing that the integral part of the cause of action did not arise within the Court’s jurisdiction.

Order XX Rule 6A of the Civil Procedure Code 1908

Sri Santosh Kumar Kamila v. Sri Mohan Das & Others CO No. 1703/2018

The Calcutta High Court allowed a revision petition filed under Article 227 stating it disagreed with the executing court that it could draw up the decree in an eviction case. The High Court held that because the formal decree was not drawn up when the suit was disposed of, the executing court, being the court of first instance, was competent to draw up the decree on the basis of the certified copy of the judgment available on record. The trial court was directed to draw up the formal decree by taking aid of Order XX Rule 6A of the CPC.

Motor Vehicles Act 1988

Janaki Mondal and Others v. M/s National Insurance Co. Ltd and Another FMA 1186/2019

The High Court held that the Tribunal failed to understand that the claim was under Section 166 of the MVA 1988 and not Section 163A. It reaffirmed that the minimum income in 2015 was to be taken as INR 5000 per month “since even an unskilled labour could earn such amount if working on all days the month”, and added 10% on account of future prospects. The compensation was computed accordingly. 

Section 35 of the NDPS Act

Sagar Debnath v. State of West Bengal CRA 343/2016

Dismissing an appeal against a finding of conviction by the accused/appellant, the Division Bench held that although it is true that the independent witness PW-5 turned hostile and did not support the official witnesses, in the absence of any inherent improbability of the official witnesses and the ‘hollowness’ in the defence of the accused, the prosecution had succeeded in proving that the accused was indeed present inside the car from which 103 kgs of ganja was recovered.

Thus, the statutory presumption of mens rea under Section 35 of the NDPS Act was rightly inferred by the trial court. However, given the absence of any criminal antecedent and rigorous imprisonment of 10 years undergone by the accused, the Division Bench invoked Section 428 CrPC to the accused’s benefit. 

Order VI Rule 17 and Section 153 of the Civil Procedure Code 1908

M/s Triyash Proejcts and Projects and Others v. Sri Subho Ghosh and Another C.O. No. 3349/2019

Dismissing a revision petition against an order passed under Order VI Rule 17, the Calcutta High Court held that the impugned order was not restricted to merely Order VI Rule 17 but had ingredients of the general power to amend, conferred on the court under Section 153 of the Code of Civil Procedure. Referring to section 153, the High Court stated,

“…said Section enables the court, at any time, and on such terms as to cost or otherwise it may think fit, to amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or dependent on such proceeding.”

The High Court further held in view of the original reliefs sought and the pleadings in the original plaint, even after the initial amendment, all ingredients necessary for incorporating the relief of recovery of possession were already present. Thus, it was for the trial court to mould the reliefs claimed by the plaintiff originally, even suo motu, by granting the relief of recovery of possession or allowing the plaintiff to incorporate such prayer in the plaint, event without the aid of Order VI Rule 17 of the Code of Civil Procedure, for the purpose of determining the real questions in controversy in the suit, as contemplated both in Section 153 and Order VI Rule 17 of the Code of Civil Procedure.

Section 28 of the Specific Relief Act 1963

Sri Sabyasachi Ghosh v. Smt Pushparani Das CO 4271/2016 and CO 454/2017

In the present case, the Calcutta High Court set aside the impugned order wherein the trial court exercised its powers under Section 28 of the Specific Relief Act 1963 to rescind the agreement between the parties due to price escalation and reiterated the Court’s principles in Tapan Kumar Chatterjee v. Kalyani Debi to understand the scope and ambit of Section 28 of the 1963 Act.

The admitted facts of the case was that a suit was decreed on 19.2.2008. The judgment debtor applied for setting aside the same under Order IX Rule 13 on 4.7.2008 (with a condonation for delay application). Pending the challenge, the decree holder put the decree into execution and deposited the balance consideration before the executing court on 6.6.2013. He paid the requisite stamp for registration of the deed on conveyance on 19.9.2013. The executing court sealed the deed on 20.9.2019 and authorised an officer to execute the same. Despite the overt acts manifesting its intention to protect the decree, the trial court erred in holding that the decree holder was negligent and not ready to pay the balance consideration while allowing the judgment debtor’s application under Section 28 of the Specific Relief Act.

Disagreeing with the trial court, the High Court held that Section 28 could not be invoked when the decree was under challenge by way of an Order IX Rule 13 application. Moreover, price escalation under an agreement was not a ground for rescission of the Agreement under Section 28 of the 1963 Act (reliance upon Kumar Dhirendra Mullick v. Tivoli Park Apartments.

Service Law

Shri Rajesh Kumar Singh v. Union of India & Others CO 124/2018, Union of India & Others v. Shri Rajesh Kumar Singh MAT 239/2017

The question before the Division Bench was ‘whether the circumstances were such that the Commandant, as the disciplinary authority, could have dispensed with an enquiry of the nature contemplated by rule 34 of the 1969 Rules on the ground that it was not “reasonably practicable to follow the procedure prescribed” and dismiss the writ petitioner from service? 

This question arose after one RK Singh was first suspended and then dismissed without an enquiry as the Disciplinary Authority (Commandant) did not have access to him. Access, in this case, was said to be impractical because RK Singh was in police custody due to Section 304B, 498A IPC cases pending against him and his father. While in police custody, theRK Singh tried to commit suicide but failed. The said act along with the criminal cases were cited to dismiss him from service.

The Court found itself appalled at the order of suspension which was passed merely because a FIR – not even a charge sheet – was lodged against RK Singh. As regards the absence of an enquiry, the High Court was constrained to observe,

Having said so in the final order, it defies logic as to how the Commandant only on the ground that the writ petitioner was in judicial custody could have dispensed with the enquiry. A formal charge-sheet could have been served on the writ petitioner while he was in judicial custody and his response thereto elicited while waiting for the statutory period for filing police report to be over.”

Union of India & Others v. Ram Krishna Mondal & Others WPCT 44/2017, WPCT 573/2000, WPCT 271/2001 (Full Bench)

On reference from a Division Bench, the Full Bench of the Calcutta High Court was asked to answer as to whether or not the Central Administrative Tribunal had the power to entertain a review application presented beyond 30 days from the date of an order sought to be reviewed upon condonation of delay. The CAT was of the opinion that neither the Administration of Tribunals Act, 1985 nor the CAT (Procedure) Rules, 1987 conferred it with such powers.

The Division Bench felt the need to refer the question even as it observed that the issue was settled by a Full Bench in Union of India v. Central Administrative Tribunal (which stated that the Tribunal had the power to condone). This was so because the Division Bench noted that an earlier Division Bench in WPCT 271/2001 disagreed with yet another Division Bench in Union of India v. Anup Chandra Sanyal wherein the latter had held that the Tribunal did not have the power to entertain a review filed beyond 30 days. The Full Bench noted that the Division Bench which had referred the matter in the present case was more agreeable with the ratio in Anup Chandra Sanyal and not with the Full Bench in Union of India v. CAT. 

The Full Bench noted that if its found itself in disagreement with the Full Bench in Union of India v. CAT, it could only refer the matter to a Constitution Bench. The Full Bench referred to Central Board of Dawoodi Bohra v. State of Maharashtra to enumerate the criteria on the basis of which the earlier Full Bench could be overturned.

As the earlier Full Bench gave its interpretation relating to the construction statute, the present Full Bench found itself as not having the power to interfere. Apart from the same, the Full Bench also held that a general statute could always be relied upon if the special statute was silent on a particular subject matter. Thus, Section 5 of the Limitation Act 1963 could always be resorted to.

Section 54 of the Limitation Act

The Chief Executive Officer, Kolkata Metropolitan Development Authority & Anr v. Pragati 47 Development Limited FMAT 812/2019 and CAN 8453/2019

The appellants before the Court were the defendants in the trial court. In the suit for specific performance of a construction agreement stipulating the nature of work and time of its completion, the appellants argued that the Court ought not pass an order of temporary injunction as decree for specific performance cannot be granted due to time being the essence of the contract.

Relying upon M/s. Hind Construction Contractors by its sole proprietor Bhikam Chand Mulchand Jain (Dead) by LRs v. State of Maharashtra, the Court referred to the correspondence to hold that time was not of the essence as the contractual clauses allows for powers to extend the time necessary for the fulfilment of the contract. Referring to Section 54 of the Limitation Act, the High Court held that if

the time was fixed for a performance of the respective obligation of the parties, the limitation for seeking a decree was specific performance of an agreement or contract would reckon from the date fixed for the performance. On the other hand, if there is no date fixed meaning thereby that the contract does not imbibe any clause that the time is essence of the contract, the limitation would reckon from the date when the plaintiff has noticed that the performance is refused.”

Service Law, concept of estoppel in evidence and equitable estoppel

Asim Kumar Chakrabarti v. The State of West Bengal & Others WPST 112/2019

In the present case, the State contended before the Division Bench that from 4.8.2009 (date of appointment) till the date of retirement, the petitioner neither raised any objection of any arbitrariness in the delay in appointing him despite the orders of the Tribunal, nor raised any objection to his entitlement to such appointment at an earlier date than as granted by the respondents.

Thus, according to the State, the petitioner was estopped by his inaction from 4.8.2009 till 24.8.2016 (date of first objection). Dealing with the contention of estoppel, the Court distinguished between estoppel as a rule of evidence and equitable estoppel on evidence. After drawing the distinction, the Court held that either way, it was clear that the petitioner had been wronged and it was a case of a ‘pygmy signing on the dotted line rather than the pygmy making a false allegation misleading the giant State’. 

Subhro Prokas Mukherjee is an advocate practising in Delhi. He would like to thank his chamber senior Mr. Gourab Banerji (Senior Advocate) for his constant encouragement and motivation at initiating this series. Last but not the least, the author wishes to acknowledge that the idea of recording this series came from Dr. Amit George.

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