Calcutta HC: Mere Complaint Through MHA Cybercrime Portal Cannot Justify Freezing Of Bank Accounts

The bank has freezed the accounts of the petitioners on the instruction received through the portal. As per the submission made by the learned counsel for the Union of India, he has not received any instruction from the Union of India. In the case of Kartick Yogeshwar Chatur (supra), the Hon’ble Division Bench of Bombay High Court relying upon the judgment passed by the Kerala High Court in the case of Headstar Global Private Limited (supra) held that a police officer investigating a crime has to approach the jurisdictional Magistrate under Section 107 of BNSS to seek attachment of any property believed to be derived directly or indirectly from criminal activity or the commission of an offence. Subsequently, Courts will have to be adopted in terms of the order passed by the Magistrate. Support further clarified that while Section 106 speaks of seizure, Section 107 deals with attachment, forfeiture and restoration. Seizure under Section 106 can be carried out by a police officer and an ex post facto report submitted to the Magistrate. On the other hand, attachment under Section 107 can be effected only upon the orders of the Magistrate. The logic behind the distinction being that the purpose of seizure is more to secure the evidence during an investigation, whereas attachment is intended to secure the proceeds of crime by preventing its disposal and thus ensuring its availability for legal procedure such as forfeiture and distribution to the victim. Thus the judgment makes it clear that freezing account is not permissible under Section 106 of BNSS. {Para 7}

CALCUTTA HIGH COURT

WPA 8453 of 2025

Xenixt Technologies Private Limited & Ors. Vs  Reserve Bank of India & Ors.

Dated: 06.05.2026.

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Calcutta HC: Whether plaintiff must issue legal notice before filing civil suit for recovering damages for defamation?

10. In that view of the matter Mr. Dutt's submission that a letter of demand by the Solicitor was not condition precedent before filing a civil suit for damage for defamation, is irrelevant. Normally and almost universally the practice in a civil suit for defamation is a prior Solicitor's letter demanding damage or apology or both. It is a normal, natural and conventional part of the civil law and procedure of defamation. In strict law the Solicitor's demand is not a condition precedent for a suit for defamation claiming damages, but it is only a natural and appropriate step to take to notify a person that he will be faced with a suit for damage for a particular amount unless he apologizes or unless e does certain things. In the absence of such a notice the question of motive and question of cost in a suit for damage may become important. In some of the Canadian Provinces it is a condition precedent to an action for newspaper libel that the plaintiff shall give the defendant notice in writing specifying the particular statements of which he complains. No doubt, such is not the law here in India. From that point of view it cannot be said in India that the letter of demand is a condition precedent to an action for damages for defamation in a civil suit. Rut the letter of demand in a civil suit for damages for defamation is almost a universal practice in India. In fact, Gatley on Libel and Slander, Fourth Edition at page 432 speaking of English law on the point, which is more like the law in India than Canada on the point, observed:

'No such notice is requisite under our law. It is however, always advisable to give the defendant an opportunity before writ to withdraw and apologise. Such a letter will help to show that the plaintiff's real object is to vindicate his character and not merely to make money out of the attack. Moreover, a refusal to withdraw and express regret for statements that are without foundation is a matter which the jury, may take into consideration in assessing damages. And, if the reply to the demand for an apology be a letter of abuse or reiteration of the charge, such letter will materially strengthen the plaintiffs case if malice is an issue in the action." This is the common sense justification of the universal practice of Solicitor's letter of demand before filing a civil suit for damages for defamation and its essential raison d'etre. Mr. Dutt's submission apparently was that if a notice for a suit for defamation was not necessary then to give a notice of such a character while a criminal proceeding is pending, invariably constitutes contempt of such criminal proceeding. In the view that we have taken we are unable to accept that unqualified submission. {Para 10}

 IN THE HIGH COURT OF CALCUTTA

Criminal Misc. Case Nos. 206 and 214 of 1965

Decided On: 28.02.1966

Asoke Kumar Sarkar and Ors. Vs. Radha Kanto Pandey and Ors.

Hon'ble Judges/Coram:

P.B. Mukharji and A.K. Das, JJ.

Author: P.B. Mukharji, J.

Citations: AIR1967 CAL178, 1967CRILJ455,  MANU/WB/0054/1967

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What are essential pre-requisite conditions the court should consider before passing the order of attachment before judgment?

14. Perusal of the law relevant for the purpose as contained in Rule 5 of Order 38 of the Code, is felt relevant. Therefore, the said provision is quoted hereinabove:--

"Attachment before Judgment

R. 5. Where defendant may be called upon to furnish security for production of property.-- (1) Where, at any stage of a suit, the Court is satisfied, by affidavit, or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,--

(a) is about to dispose of the whole or any part of his property; or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

(4) If an order of attachment is made without complying with the provisions of Sub-rule (1) of this rule, such attachment shall be void." {Para 14}

15. The said Rule 5 is under the heading Attachment before judgment. It appears from the said provision that Court was entitled to exercise the power for attachment before judgment only when the defendant with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property from the local limits of the jurisdiction of the Court. It appears from the impugned order that the said aspects were not at all taken into consideration and no satisfaction in that respect was recorded by the trial Court as appears from the impugned order. Law in this regard as settled in the case of Premraj Mundra (supra) is relevant and in paragraph 10 of the said judgment, guiding principles have been noted as follows :--

"10. From a perusal of all the authorities, I think that the following guiding principles to be deduced :

(1) That an order under Order 38 Rules 5 & 6, can only be issued, if circumstances, exist as are stated therein.

(2) Whether such circumstances exist is a question of fact that must be proved to the satisfaction of the Court.

(3) That the Court would not be justified in issuing an order for attachment before judgment, or for security, merely because it thinks that no harm would be done thereby or that the defts. would not be prejudiced.

(4) That the affidavits in support of the contention of the applicant, must not be vague, & must be properly verified. Where it is affirmed true to knowledge or information or belief, it must be stated as to which portion is true to knowledge the source of information should be disclosed, and the grounds for belief should be stated.

(5) That a mere allegation that the deft. was selling off his properties is not sufficient. Particulars must be stated.

(6) There is no rule that transaction before suit cannot be taken into consideration, but the subject of attachment before judgment must be to prevent future transfer or alienation.

(7) Where only a small portion of the property belonging to the deft, is being disposed of, no inference can be drawn in the absence of other circumstances that the alienation is necessarily to defraud or delay the pltf.'s claim.

(8) That the mere fact of transfer is not enough, since nobody can be prevented from dealing with his properties simply because a suit has been filed; There must be additional circumstances to show that the transferrer is with an intention to delay or defeat the plft.'s claim. It is open to the Court to look to the conduct of the parties immediately before suit, and to examine the surrounding circumstances, and to draw an inference as to whether the deft, is about to dispose of the property, and if so, with what intention. The Court is entitled to consider the nature of the claim and the defence put forward.

(9) The fact that the deft, is in insolvent circumstances or in acute financial embarrassment is a relevant circumstance, but not by itself sufficient.

(10) That in the case of running businesses, the strictest caution is necessary and the mere fact that a business has been closed, or that its turnover had diminished, is not enough.

(11) Where however the deft, starts disposing of his properties one by one, immediately upon getting a notice of the plft.'s claim, and/or where he had transferred the major portion of his properties shortly prior to the institution of the suit, and was in an embarrassed financial condition, these were grounds from which an inference could be legitimately drawn that the object of the deft. was to delay and defeat the plft.'s claim.

(12) Mere removal of properties outside jurisdiction, is not enough, but where the deft. with notice of the plft.'s. claim, suddenly begins removal of his properties outside the Jurisdiction of the appropriate Court, and without any other satisfactory reason, an adverse inference may be drawn against the deft. where the removal is to a foreign country, the Inference is greatly strengthened.

(13) The deft. in a suit is under no liability to take any special care in administering his affairs, simply because there is a claim pending against him. Here neglect, or suffering execution by other creditors, is not a sufficient reason for an order under Order 38 of the Code.

(14) The sale of properties at a gross undervalue, or benami transfers, are always good indications of an intention to defeat the plft.'s claim. The Court must however be very cautious about, the evidence on these points and not rely on vague allegations."

 IN THE HIGH COURT OF CALCUTTA

R.M.A.T. No. 1388 of 2003

Decided On: 16.07.2003

R.B.M. Pati Joint Venture Vs. Bengal Builders

Hon'ble Judges/Coram:

A. Chakrabarti and Sadhan Kumar Gupta, JJ.

Citation: AIR 2004 Calcutta 58,(2003) CALHN 569, MANU/WB/0220/2003.

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Whether insurance Company can refuse to pay compensation to third party if certificate of Insurance was wrongly issued?

If a question of fraud or misrepresentation arises by and between the insurer and the insured, the third party claimant is not concerned therewith. A vehicle is required to be compulsorily insured in terms of the provisions of the Motor Vehicles Act, 1988. Keeping in view the aforementioned provisions, we are of the opinion that the learned tribunal has committed an error in going into the issue raised by the respondent No. 1. In our opinion, if according to the respondent No. 1, the contract of insurance did not come into force on 18-2-1992 and the certificate of insurance was wrongly granted either by reason of any mistake or fraud committed by either of the parties or by its officers, the remedy of the respondent No. 1 may be to initiate a separate proceeding for realisation of the amount so paid by it from the owner of the vehicle, but keeping in view the letter and spirit of the Motor Vehicles Act, we are of the opinion that a third party claimant should not suffer therefore.

 IN THE HIGH COURT OF CALCUTTA

Misc. Appeal No. 7 of 1995

Decided On: 31.07.1996

V. Ravi Vs. New India Assurance Company Ltd. and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and S.K. Tiwari, JJ.

Author: S.B. Sinha, J.

Citation: MANU/WB/0032/1997, 1998ACJ598, AIR1997CAL242.

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Whether complaint of sexual harassment made by one woman against another woman is maintainable?

A cursory glance at Section 2(m) of the 2013 Act shows that the term "respondent" brings within its fold "a person", thereby including persons of all genders. {Para 11}

12. Although there is substance in the submission of the petitioner that the said expression has to be read in conjunction with the rest of the statue as a whole, there is nothing in Section 9 of the 2013 Act [which has been referred to in Section 2(m)] to preclude a same-gender complaint under the Act. Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized.

13. That apart, the definition of "sexual harassment" in Section 2(n) cannot be a static concept but has to be interpreted against the back-drop of the social perspective. Sexual harassment, as contemplated in the 2013 Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act. A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act.

14. If Section 3(2) is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se. In such context, the language of Section 2(m), Section 2(n) and Section 3 of the 2013 Act is set out below:-

"2(m) "respondent" means a person against whom the aggrieved woman has made a complaint under section 9;

15. In such view of the matter, the act alleged by the private respondent to have been perpetrated by the petitioner, as evident from the complaint dated September 15, 2020 (Annexure P-5), is maintainable under the 2013 Act. Hence, the complaint cannot be turned down at the outset.

 IN THE HIGH COURT OF CALCUTTA

W.P.A. 9141 of 2020

Decided On: 27.11.2020

Malabika Bhattacharjee Vs. Internal Complaints Committe, Vivekananda College and Ors.

Hon'ble Judges/Coram:

Sabyasachi Bhattacharyya, J.

Citation:  MANU/WB/0752/2020.

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Whether muslim mother can claim maintenance from her children U/S 125 of CRPC?

 Section 4(1) of the Act contains the provision for maintenance to the divorced woman from her children but this does in fact not debar the divorced Muslim woman from invoking the provision of Section 125 of Cr. PC against her children. Even under the Act the application of the provisions of Section 125 of Cr. PC has been contemplated and the Act has not specifically made any ouster of the application of Section 125 Cr.PC Section 5 of the Act has imposed one condition for the application of sections 125 to 128 of Cr. P C against former husband of the divorced Muslim woman but it is conspicuously silent as regards their application against others. The framework of the Act itself and the ratio decided in the case of Danial Latifi (supra) which we have discussed above will show that the Act itself is not a substituted measure of Section 125 of Cr. P C but in addition thereto. This suggests that the proceeding under Section 125 of Cr.PC against children of the respondent mother is quite maintainable despite the pendency of the proceeding under sections 3, 4 of the Act against her husband.

 IN THE HIGH COURT OF CALCUTTA

C.R.R. No. 516 of 2001

Decided On: 10.12.2001

Makiur Rahaman Kha and Ors. Vs.  Mahila Bibi

Hon'ble Judges/Coram:

N.C. Sil, J.

Citation: MANU/WB/0390/2001.

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How to appreciate evidence if son is claiming that his mother had no earnings and is holding immovable property as benamidar of his father?

Crucial question which is to be answered in the present appeal is whether the transaction i.e. the purchase of suit property under registered deed of sale dated 20.01.1970 by Lila is benami transaction. {Para 11}

12. Benami Transaction (Prohibition) Act, 1988 defines the expression, 'benami transaction' and equipped the appropriate authority with powers to acquire benami property. Provisions of three sections being Sections 3, 5 & 8 of the 1988 Act, which was initially a 9-section legislation, came into force with effect from 5.9.1988 whereas the remaining provisions thereof came into force from the date being 19.9.1988. Section 3 being a prohibitory legislation cannot have retrospective operation but the Section 2(a) of the Act which is a piece of declaratory legislation can have its application irrespective of its date or duration. So, definition of the expression 'benami transaction' can be borrowed from Section 2(a) of the 1988 Act in respect of the transaction held prior to promulgation of the said Act. As defined in Section 2(a) of the Act 'benami transaction' means any transaction in which property is transferred to one person for a consideration paid or provided by any other person. A transaction must, therefore, be benami irrespective of its date or duration.

13. In India, two kinds of benami transactions are generally recognized. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami. In that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he is the real owner. The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. [See, the judgment delivered in the cases of Bhim Singh - vs- Kan Singh, reported in (1980) 3 SCC 72 and Pulin Behari Addy (supra)].

14. However, there is a presumption in law that the person who purchases the property is the owner of the same and such presumption can be displaced only by pleading and successfully proving that the person whose name appears in the document is not the real owner, but only a benami and heavy burden lies on the person who pleads that recorded owner is mere name-lender.

15. Now, coming to the case at hand, it can be argued that to hold the subject transaction as benami transaction, it is to be proved by the principle of preponderance of probability that although the suit property was purchased in name of Lila but the consideration money was paid or provided by her husband and not by Lila.

16. Indisputably, subject deed of sale was executed and registered on 20.01.1970. Sekhar preferring the suit in 2011 claimed that Lila, transferee was mere name-lender and Sekhar adduced his oral testimony only and he did not produce any document whereas Lila deposed in 2016 and adduced her oral accounts which found support from the evidence of DW-2 and Lila had produced all the documents relating to suit property.

17. During course of hearing, both the appellant and the respondents advanced their arguments on the issue relating to 'burden of proof'. So, main question centred around the present appeal is whether it was Sekhar who had to discharge the burden to prove that the subject sale transaction was benami transaction or it was Lila who was to prove that she purchased the suit property from own fund or 'stridhan' properties detailing the source of such fund and disclosing every details of payment of consideration money.

18. The question relating to burden of proof has been set at rest in the judgment of Jaydayal Poddar (Deceased) thr. Lrs. -vs. Mst. Bibi Hazra reported in AIR 1974 SC 171 in which the Hon'ble Apex Court ruled as follows:

"It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact or benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale."

19. In the given case, Sekhar claimed that his mother, Lila was a mere name-lender. He deposed that at the relevant time of sale, he was not present and he could not say the actual amount of consideration money and he admitted that he did not verify from attesting witness, identifier etc. whether his father paid the consideration money and he admitted that his father never claimed himself to be the real owner of the suit property and he admitted that he did not have any document to show that his father paid the consideration money.

20. From evidence of Lila, it appears that Lila admitted that she was a home-maker throughout her life and she had no independent income of her own and she asserted that she purchased the suit property from her 'stridhan' properties. She claimed that she herself purchased the property selling her gold ornaments. Admittedly, Lila testified that during his stay in the suit property, Sekhar used to behave well with her.

21. Mr. Poddar tried to convince us that since both the parties have led evidence, question of burden of proof has lost its significance and Court should pass judgment appreciating evidence let in by the parties and since, Lila failed to disclose the particulars of her 'stridhan' properties and since, Lila admitted that she was a home-maker throughout her life having no independent income of her own, the learned Court below should have come to the conclusion that Lila was nothing but a mere name-lender.

22. At the cost of reiteration, it may be stated that a Court is required to bear in mind the well-settled principles to the effect that the burden of showing that a transfer is a benami transaction always lies on the person who asserts it. In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction. Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami. In other words, even if it is proved that Sailendra paid the consideration money, the plaintiff must further prove that Sailendra really intended to enjoy the full benefit of the title in him alone.

23. In the case before us, Sekhar could not bring any evidence even to show what was amount of consideration money and how the consideration money was paid and how the suit property was purchased and even he could not prove who paid the consideration money. He could not produce any document relating to the suit property. Title deed and all documents relating to the suit property were all along in the custody of Lila and Lila all along paid municipal tax and got the suit property mutated in her name and Sekhar could not bring any evidence on record to lead any prudent man to infer that his father had a motive to create benami in name of his mother or Sailendra intended to enjoy the full benefit of the title in him alone. Judgments relied upon by the appellant in spite of having unquestionable value of the proposition laid down therein, shall not come in aid of the appellant in the factual matrix of the case at hand.

24. As a result, we are inclined to hold that learned Court below has correctly held that Sekhar has failed to discharge his burden to prove that subject sale transaction is benami transaction and we have not found any wrong in the approach and decision of the learned Court below and we are of the view that judgment and decree impugned cannot be annihilated. 

Calcutta High Court (Appellete Side)

Sri Sekhar Kumar Roy vs Smt. Lila Roy & Another on 7 June, 2023

Present: The Hon'ble Justice Tapabrata Chakraborty 

&The Hon'ble Justice Partha Sarathi Chatterjee

Author: Partha Sarathi Chatterjee, J.

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Can a magistrate automatically stop the investigation in a summons case on the expiry of six months, as per S 167(5) of the CRPC?

Under Section 167 (5) of the Code of Criminal Procedure, in any case triable by a Magistrate as a summons-case, if the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of investigation beyond the period of six months is necessary. The provision unequivocally states that the Magistrate can stop investigation on contingency that the Investigating Officer has failed to satisfy the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. There cannot be any automatic order without anything else on expiry of a period of six months from the date of arrest. 

 IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

APPELLATE SIDE

CRR 3168 of 2012

I.A. No. CRAN/3/2014 (Old No. CRAN/4575/2014)

Kamal Ghosh & Anr. Vs. The State of West Bengal & Anr.

Before: Hon’ble Justice Sugato Majumdar

Judgment on : 23.03.2023

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Can Police Disclose WhatsApp Chats and Photos Collected During Investigation Under RTI Act?

I. Conclusions of the Court

28. The competing arguments advanced on behalf of the parties lead to the following conclusions :

a)􀀁 The designated Information Officer has a duty and an obligation to apply his

mind on the nature of the information which is to be furnished to an

applicant who has sought for such information. This obligation calls for an

active determination taking into account Section 8(1) (a)-(j) and whether an

overwhelming pressure of public interest justifies the disclosure of the information at hand.

b)􀀁 The determination must also involve an assessment of whether the personal

information has any nexus with a public activity or furnishing of such

information would cause an unwarranted invasion of the privacy of the

individual concerned.

c)􀀁 The IO must also take into account the mechanism provided under section

11 of the Act involving the information supplied by a third party and treated

as confidential by that third party. In essence, the disclosure must be with

the consent of the third party.

d)􀀁 The IO must also consider whether the information is in the public domain

on the date of the application made for it and trace the movement of the

information from the private to the public domain. In other words, the IO

must see whether the information was put in the public sphere voluntarily

or under threat or compulsion.

e)􀀁 The determination must also include a fact-check as to whether the

information travelled to the public domain at the instance of one party or all

the parties who created and shared the content of the information.

f)􀀁 The determination must be nuanced and sensitive where one of the parties

to the conversation is no longer alive. In such cases, the consent of the other

(living) party to the disclosure of the information may not be relevant for the

purposes of section 8(1)(j) of the Act.

g)􀀁 The significance of section 8(1)(j) which upholds the right to privacy and

ultimately the reputation and dignity of an individual under Article 21 of the

Constitution goes against the tide of a free flow of information and remains

steadfast in holding on to the private space of an individual. The significance

of this provision must not be forgotten or diluted under any circumstances

(Ref. Subramanian Swamy vs. Union of India, Ministry of Law; (2016) 7 SCC

221).

29. In view of the above discussion is allowed and disposed

of by directing the Police Authorities to immediately withdraw the entire series of

photographs and WhatsApp messages between the deceased and

and treat the same as private information which falls within the

clamp of section 8(1)(j) of The Right to Information Act. The authorities are to

ensure that the WhatsApp messages and the photographs are not disclosed to any

person or authority by way of an application under the Right to Information Act or

otherwise.

 IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

Appellate Side

X Vs. State of West Bengal & Ors.

Present :-

The Hon’ble Justice Moushumi Bhattacharya.

Delivered on : 29.09.2022.

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Whether Magistrate can reject application U/S 156(3) of CRPC if there is delay of two years in its filing?

13. Mr. Basu next refers to the paragraph 120.6 of the decision of the Hon'ble Supreme Court in the case of Lalita Kumari vs. Government of U.P. reported in MANU/SC/1166/2013 : (2014) 2 SCC 1. Paragraph 120.6 states as follows:-

120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes.

b) Commercial offences.

c) Medical negligence cases.

d) Corruption cases.

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

29. All such points are to be decided by the Court during the trial of a case. While dealing with an application under Section 156(3) of the Code, the Magistrate cannot decide the effect of delay in lodging complaint. Lalita Kumari empowers the police authority to conduct preliminary inquiry over inordinate delay in lodging the complaint. The Supreme Court never directs in Lalita Kumari to throw an application away under Section 156(3) of the Code on the ground of delay without sending it to the police authority for either preliminary inquiry or investigation treating the same as FIR.

 IN THE HIGH COURT OF CALCUTTA

CRR/92/2021

Decided On: 01.10.2021

 Rajlakshmi Chaudhuri  Vs. The State of West Bengal and Ors.

Hon'ble Judges/Coram:

Bibek Chaudhuri, J.

Citation: MANU/WB/0732/2021

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Whether Charge Of Retaining Stolen Articles Of Dacoity is tenable If Prosecution Fails To Prove Offence Of Dacoity?

  Mr. Ayan Bhattacharya, learned lawyer appearing for the

appellant as Amicus Curiae vehemently argues that while the

charges under Sections 395/397, IPC have not been proved, the

appellant/accused could not be held guilty under Section 412, IPC

which forms an integral part of the charges under Sections

395/397, IPC. In support of his argument learned counsel has

cited a decision in the case of K. Venkateshwar Rao alias

Venkatal alias I. Rao-Vs- State Represented by Inspector of

Police, A.P. reported in (2002) 6 SCC 247. In the decision as

cited supra the Hon’ble Apex Court has held that while the charge of dacoity has not been proved by the prosecution, the charge under Section 412, IPC of retaining the stolen articles of dacoity fails automatically. In such context it will be apposite to refer to Section 412, IPC. Section 412, IPC provides that whoever

dishonestly receives or retains any stolen property, the possession

whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. The language employed in the Section clearly shows that the articles an accused retains shall be related to those articles captured or received during the commission of dacoity. While the charge of dacoity fails, the charge under Section 412, IPC automatically fails in the light of the decision as cited supra.

IN THE HIGH COURT AT CALCUTTA

Criminal Appellate Jurisdiction

Appellate Side

C.R.A. 21 of 1991

Ramabatar Rajbar @ Ramawatar Nimtar Rajwar Vs The State of West Bengal

PRESENT :

 JUSTICE RABINDRANATH SAMANTA

Judgment On: 18.05.2022

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Can the court stay the subsequent suit if the cause of action and the reliefs claimed in both cases differ?

I do not know why the learned Chief Justice used the expression 'cause of action', because Section 10 speaks of not 'cause of action' but of 'matter directly and substantially in issue'. It is also not clear how two persons, quarrelling over the same transaction and bringing separate suits with respect to it against each other, can have the same 'cause of action'.

I am unable to see that the matter in issue in the two suits might not yet be substantially the same, though different reliefs might have been claimed by the two different plaintiffs on the basis of their respective cases. It is true that no written statement has yet been filed in the Calcutta suit, but what the defence in the Calcutta suit will be is fairly clear from the plaint in the Bombay suit itself as also the application made to this Court by Modi. If the Calcutta plaintiff's defence in the Bombay suit is substantially his plaint in the Calcutta suit and if the Bombay plaintiff's defence in the Calcutta suit is virtually his plaint in the Bombay suit, the matter in issue between the parties in the two suits would seem to be substantially the same. The fact that one is a suit under the agreements and the other is a suit de hors the agreements does not make a substantial identity of the subject-matter per se impossible. The basis of the defence in the Bombay suit and the basis of the claim in the Calcutta suit appear to be both fraudulent misrepresentation and if the defence succeeds in Bombay, nothing will be left of that suit and, similarly, if in consequence the case of misrepresentation succeeds in Calcutta, this suit will be practically decided, the only, enquiry remaining being an enquiry as to the damages claimed in addition to a refund of the money paid. Similarly, again, if the defence fails in the Bombay suit, the basis of the Calcutta suit will be wholly destroyed. In my view, the principal matter in issue in the Calcutta suit is directly and substantially in issue in the Bombay suit, which is a suit previously instituted and that an un-necessary duplication of proceedings with the possibility of conflicting decisions being rendered will occur, if the Calcutta suit is not stayed.

 IN THE HIGH COURT OF CALCUTTA

A.F.O.D. No. 64 and A.F.O.O. No. 80 of 1955

Decided On: 01.03.1957

Shorab Merwanji Modi and Ors. Vs. Mansata Film Distributors and Ors.

Hon'ble Judges/Coram:

P.B. Chakravartti, C.J. and Sarkar, J.

Author: P.B. Chakravartti, C.J.

Citation: AIR 1957 Cal 727,MANU/WB/0188/1957

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Precaution to be taken by court before releasing Mobile or Laptop on Supratnama

 The aforesaid fiasco had come into being due to the ineptness of the investigating agency as well as the presiding officer in the court in failing to ascertain the IMEI number of the mobile phone before handing over custody of the said article which is alleged to be stolen property to the defacto complainant. Their conduct exposes serious deficiency in knowledge and experience in handling cases involving electronic gadgets. It must be borne in mind when electronic gadgets like mobile phone, tablet, laptop, etc. are subject-matters of theft and are required to be produced during trial as material exhibits of the case, necessary precautions must be taken to ascertain the IMEI number or other unique identification numbers of such equipments including its brand/product name, manufacturing date and other particulars prior to handing over interim custody of such electronic devices to a third party pending enquiry or trial. Handing over a mobile phone or any other electronic devices to a third party by way of interim custody pending investigation, enquiry or trial without ascertaining its IMEI or any other unique identification number is virtually equivalent to handing over interim custody of a motor vehicle to a third party without ascertaining its registration mark and other particulars. Courts dealing with such cases, therefore, must be most careful at the time of handing over interim custody of electronic devices and must bear in mind the following facts while dealing with applications for return of such articles:—

In the event electronic devices like mobile phone, laptop, tablet, etc. are seized as stolen property and are required to be produced and identified during trial, any prayer for return interim custody of such devices pending investigation, enquiry or trial shall not be granted till the IMEI number or other unique identification number, as applicable to the concerned device including its brand/product number and manufacturing details are ascertained and noted in the case records for identification of such device during trial. Till such ascertainment is made the concerned devices shall be retained in safe custody of the Court in accordance with law. {Para 9}

In the High Court of Calcutta

(Before Joymalya Bagchi, J.)

Om Prakash Verma  v. State of West Bengal 

C.R.R. No. 1076 of 2017

With

CRAN No. 3600 of 2017

Decided on September 1, 2017

Citation: 

2017 SCC OnLine Cal 13205 : 2018 Cri LJ 640 : (2018) 1 CHN 100 : (2017) 3 E Cr N 775 : (2017) 4 E Cr N 924 : (2018) 2 Cal LJ 189

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Can the court restrain the invocation of a bank guarantee if it is not in terms of a bank guarantee?

 Courts are usually slow to interfere with the transaction between a bank and the beneficiary which is seen as being independent of the underlying contract between the lender and the supplier unless conditions call for such interference. The three conditions, as accepted in several decisions, are fraud of an egregious nature; special equities or the invocation not being in terms of the bank guarantee. It is sufficient if a party seeking a restraint on the invocation is able to establish any one of the three requirements. The test of special equity or irrevocable injustice is a matter of an assessment by a court on the particular facts presented to it for stay on a notice of invocation. The injury or injustice must be irrevocable, irremediable and irreversible : Refer : State Bank of India v. Sun Pharmaceuticals Industries Ltd. : AIR 2019 Cal 385. The party seeking an order for restraint must show that the invocation and consequent payment by the bank to the intended beneficiary would set the party back-irreversibly-in monetary terms which may not be recovered in the foreseeable future. {Para 25}

26. In the present case, the petitioner has satisfied two of the three ingredients, namely special equity and the invocation not being in terms of the guarantee. The clauses in the contract and more particularly the GCC clearly demonstrate that the bank guarantee was furnished towards performance security. There can be no issue with regard to performance since the petitioner has already received 90% of the contract price as discussed above. The invocation letter also demonstrates that there cannot be any performance issue with regard to the supplies effected by the petitioner. The invocation letter does not contain any allegation of a breach of performance obligations by the petitioner. The special equity also stands satisfied by reason of the petitioner facing an immediate and irreversible financial loss if the payment is made by Citibank NA, Dhaka to the respondent No. 1 in terms of the Letter of Invocation. 

 In the High Court of Calcutta

(Before Moushumi Bhattacharya, J.)

KSE Electricals Pvt. Ltd Vs Project Director, Bangladesh Rural Electrification Board

A.P. 230 of 2021

Decided on November 23, 2021,

Citation: 2021 SCC OnLine Cal 2986

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Whether Rejection Of Application For Amendment of Counter-Statement Constitutes An 'Interim Award?

 This is an application for setting aside of, what the petitioner calls, an Interim Award dated 15th October, 2020 passed by a learned Sole Arbitrator. By the said award, the Arbitrator proceeded to reject the petitioner’s application for amendment of the counter-statement seeking introduction of counter-claims/equitable set-off by the petitioner.

 In the present case, the rejection of Lindsay’s application for

amendment may have primarily been on the bar of limitation but was also on the fact that Lindsay’s claim for damages of Rs 10 crores did not arise out of the 12 transactions which formed the subject matter of the reference. Shorn of any other consideration, the basic premise is that rejection of an attempt to introduce a new cause of action, which is not part of the subject

matter of the reference, cannot amount to an interim award under section 31(6) of the Act. This is by reason of the fact that the decision (of rejection) of the matter (being a claim for damages arising out of the alleged breach of  the MOU) was not a part of and had no causal or factual link to the claim arising out of the 12 POs. This Court is therefore of the view that the

impugned order dated 15th October, 2020, is not an ‘Interim Award’ as  defined under sections 2(1)(c) and 31(6) of the 1996 Act and it hence follows that the present application is not maintainable under section 34 of the said Act. {Para 24}

IN THE HIGH COURT AT CALCUTTA

Ordinary Original Civil Jurisdiction

ORIGINAL SIDE

I.A No: G.A. 1 Of 2021 in A.P. 33 Of 2021

Lindsay International Private Limited  Vs. IFGL Refractories Limited

Delivered on : 25.06.2021.

Coram: Moushumi Bhattacharya, J.

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Whether sexual harassment complaint can be dropped if an aggrieved woman desire not to prosecute it?

Had the student been really aggrieved with the action of the petitioner then she ought to have taken steps in proper time to protest the same. On the contrary, it appears that there was no intention of the lady ever, to fight for her rights. Law provides enough scope and facility to an aggrieved woman to file a complaint either personally or through persons authorised by her. She sat tight over the matter for nearly two years and thereafter the alleged incident was brought to the forefront by

third parties, who neither had personal knowledge of the incident nor were witnesses to the incident. Reliance was placed on audio clippings, veracity of which have not been tested. It may be that the lady was threatened or intimidated not to proceed further in the matter. It is possible that the student was not advised and guided properly. But where the lady herself puts forth in writing that neither she nor her parents intend to proceed with the matter, then the desire of the lady has to be respected.

The Hon’ble Supreme Court in Dr. Vijayakumaran (supra) held that upon receipt of complaints from girl student of the University about sexual harassment in University campus, it was obligatory on the administration to refer such complaints to the ICC within the stipulated time period as pre-predicated in

Section 9 of the said Act. The same implies that the compliant of the lady and the time limit for filing such complaint both are equally important. The allegations against the petitioner have criminal connotations. No complaint was ever lodged before the police by any person alleging the incident. Without being convinced and satisfied with the documents, the University ought

not to have initiated any proceeding against the petitioner.

The submission of the University that the charge-sheet ought not to fail

automatically in the event the recommendation of ICC fails, cannot be accepted by

the Court. If the initial action of ICC cannot be supported, then obviously the

subsequent actions by the University are bound to fail. It is only on the basis of

the recommendation of ICC that the University initiated disciplinary proceeding.

In fact, the University has relied upon the UGC Guidelines which mention

that the Higher Educational Institution must mandatorily extend full support to

see that the recommendations of ICC are implemented in a timely manner. The

support which is to be extended in terms of the aforesaid provision of the UGC

guideline is with regard to the institutional resources given for functioning of ICC

and the office and building infrastructure as well as sufficient allocation of

financial resources. The recommendation as indicated therein does not mean the

recommendation for initiating disciplinary proceeding against a person even

though the very basis for initiating such proceeding does not exist.

 IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

Appellate Side

Present :- Hon’ble Justice Amrita Sinha

W.P.A. No. 8018 of 2020

With

W.P.A. No. 11995 of 2021

Angshuman Kar  Vs. The State of West Bengal & Ors.

Judgment on :- 07.09.2021

Author: Amrita Sinha, J.

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Whether accused can be prosecuted for theft of electricity U/S 379 IPC?

 When there is a specific/special law covering the question of theft of electricity i.e. Section 135 of the Act, the general law contained in Section 379, IPC will not be applicable. Any attempt by the notice to add offence under Section 379 IPC will be a crude devise by the prosecution to overcome the likely objection from the accused about the filing of the complaint instead of registration of FIR. Law is well-settled that special law will prevail over the general law. Once there is a specific provision is the Act in respect of providing of punishment for theft of electricity, no offence under Section 379, IPC could be alleged by the prosecution or later on added during the investigation so as to preempt the taking of plea by the accused that no prosecution for the offence under Section 135 of the Act could be launched except upon a complaint by the authorized officer.

7. That apart, the Electricity Act, 2003, which is a special statute, is a latter piece of legislation, than the Indian Penal Code, 1860, and therefore, it can be safely assumed that the legislature in its wisdom, after considering the general provision of offence of theft under the Indian Penal Code, decided to bring in the specific provision for offence of theft of electricity under the provision of Section 135 of the Electricity Act, 2003. Therefore, once a person is said to have committed an alleged offence of theft of electricity, no case under Section 379 of the Indian Penal Code, 1860 would lie in view of the specific provision of law contained in the Electricity Act, 2003 in this regard.

Calcutta High Court

Biswanath Patra vs Divisional Engineer (E) S And Lp ... on 4 May, 2007

Equivalent citations: AIR 2007 Cal 189, 2007 (2) CHN 657

Bench: B Somadder

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Whether the gift of a immovable property to a stranger to the exclusion of the other heirs of Class-I can be regarded as a transfer ?

There is no ambiguity that the gift is a transfer without consideration. The legislature never conceptualised the gift for consideration or adequate consideration but it is a gratuitous transfer out of love and affection and sometimes for the spiritual benefit of the donor. It is incongruous to say that the gift is not a transfer. It has all the incident of transfer and the right, title and interest of the donor passes to the donee upon execution, registration and acceptances thereof.

 The element of “transfer” divest the executant of the deed of all his right which came to be vested upon the recipient thereof may be by way of a gift which does not contain the consideration. Such right of the recipient cannot be taken without the payment of the consideration and precisely for such reason sub-Section(2) has been incorporated. The vested right can only be divested by well recognised mode of transfer. The hypothetical example can be made in this regard when ‘A’ gifted his immovable property to ‘B’ out of love and affection. B in turn wanted to sale the said property to any stranger as such deed of gift is not conditional one. He is entitled to receive the consideration although he acquired the right, title and interest by way of a gift which admittedly does not contain consideration.

In the light of the above, Section 2 should be interpreted when the court deprives a stranger to the property acquiring an interest by way of a gift and such right is being vested upon the heir specified in Class-I of the Schedule. It is anomalous when a co-sharer who gifted the property and the donee who received the property shall not be entitled to any consideration if the property by the operation of the law is directed to be given to the co-sharer or the heir is specified in Class-I of the Schedule. The proper meaning which can be assigned to sub- Section(2) of Section 22 is the moment the Court finds that an heir is entitled to a preferential right under sub-Section(1), in absence of any agreement, the consideration so determined shall pass to the stranger purchaser. Any other interpretation would render the provision otiose and redundant. The word ‘transfer’ has to be given a pragmatic meaning and not in conjunction with the consideration appearing in sub- Section(2) of Section 22 of the Act. If any restrictive meaning of the word transfer is given, it would be a premium to the heir divesting his right by way of a gift to wriggle out of mischief of the provision contained in sub-Section(1) of Section 22 of the Act.

We, thus, held that even a gift being the transfer comes within the ambit of Section 22 of the Act and the heir coming within Class-I of the Schedule is entitled to preferential right.

So far as the concluded transfer is concerned, we do not find any restriction having put under Section 22 to have its restricted applicability in case of proposed transfer if the transfer has been affected without his knowledge, still the heir can maintain the proceeding invoking the preferential right enshrined under Section 22 of the Act. We thus modifying the decree of the Trial Court to the extent that plaintiff has a preferential right in respect of Ka(1) Schedule Property.

 IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

HARISH TANDON & KAUSIK CHANDA, JJ.

C.A.N 11623 OF 2017 IN F.A.T 661 OF 2017 

 Judgment On: 08.04.2021

Pabitra Kumar Maity Vs. Smt. Shyamali Manna & Ors

Harish Tandon, J.:

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Whether the court can accept Immovable Property As Security For the Stay Of enforcement of an arbitral award?

On a conjoint reading of the above provisions it is clear that the

intention of the framers of the law, which is relevant for consideration in the present case, was to refrain from a strict requirement that security to be furnished for stay of a decree would only be in monetary terms. The intent of the

provision relating to stay of a money decree is that the applicant who seeks stay of a decree must furnish some sort of effective cushion for the decree-holder to fall back on in the event the challenge to the decree fails. In other words, the

purpose is to secure the decree-holder in a manner which would be conducive to the decree-holder enjoying the fruits of the decree in the long run. The other significant issue which is found in all the above provisions namely, Order XLI,

Order XXI of the CPC and Section 36(3) of the 1996 Act is the clear discretion given to a Court for deciding the conditions which may be imposed. The words used in Order XLI are “. . . as the Court may think fit” which is repeated in Order

XXI Rule 26 and Rule 29 as “. . . as it thinks fit”. The principles enshrined in the provisions relating to stay of a money decree must be imported to the proviso to Section 36(3) of the 1996 Act. The language of Section 36(3) imparts an equal

amount of discretion to the Court namely “. . . subject to such conditions as it may deem fit, grant stay of operation of such award . . .”. The only stated requirement is that the Court must indicate its reasons in writing for granting an order of stay

of the award in question.

Having regard to the relevant statutory provisions which may be

understood as guidelines in the proviso to Section 36(3), this Court is of the view that there is no statutory fetter on a Court to be hemmed in by requiring cash security, bank guarantees and the like.

IN THE HIGH COURT AT CALCUTTA

Ordinary Original Civil Jurisdiction

ORIGINAL SIDE

AP/82/2021

IA No.GA/1/2021

NITU SHAW  Vs  BHARAT HITECH (CEMENTS) PRIVATE LIMITED

BEFORE :

The Hon’ble JUSTICE MOUSHUMI BHATTACHARYA

Date : 19th March, 2021

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