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Modern criminal justice prioritizes the Reformative aim of punishment, not mere Retribution: Calcutta High Court.

Case Title: Mahuya Chakraborty Vs. The State of West Bengal and others

Case No: W.P.A 22366 of 2023

Decided on: 05.01.2024

Coram: The Hon’ble Justice Shampa Dutt

 

Facts of the Case

Two key arguments have been raised by the petitioner, the wife of a life-sentenced convict, against the West Bengal State Sentence Review Board’s (SSRB) rejection of her application. Firstly, she claims the SSRB’s composition wasn’t compliant with proper procedures. Secondly, she asserts that the Board’s reasoning for denial contradicts rulings consistently upheld by the Supreme Court, this Court, and other High Courts. In support of this second point, she cites the Supreme Court’s judgment in Rajo alias Rajwa alias Rajendra Mandal vs. The State of Bihar, where the apex court stressed the reformative purpose of imprisonment, even for major offenses, after serving a substantial sentence.

The details outlined in the writ petition about the comprehensiveness of the rejection grounds, stemmed from the petitioner’s Right to Information Act,2005 request seeking clarification on her husband’s denied premature release application. Notably, the petitioner’s husband has already served over two decades in custody.

Issue

  • Whether Article 21 can be denied merely because the petitioner’s husband was convicted?
  • Whether petitioner through Right to Information Act,2005 seek clarification on her husband’s denied premature release application?

Legal Provision

Article 21 of the Indian Constitution –

“No person shall be deprived of his life or personal liberty except according to the procedure established by law”.

Right to Information Act 2005 –

It mandates timely response to citizen requests for government information. It is an initiative taken by Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions to provide a– RTI Portal Gateway to the citizens for quick search of information on the details of first Appellate Authorities,PIOs etc. amongst others, besides access to RTI related information / disclosures published on the web by various Public Authorities under the government of India as well as the State Governments

Court Decision and analysis

In considering a life sentence review, the court went beyond the mere severity of the crime and its wider impact. They emphasized additional factors for the government to assess, not just future danger but also the possibility of redemption and societal reintegration. This includes considering the convict’s age, health, family ties, and potential for rebuilding life. Positive developments like earned remission, educational progress, and prison engagement are vital indicators. Notably, the court warned against relying solely on the judge’s opinion or police reports, highlighting the need for a nuanced evaluation based on various factors contributing to the convict’s overall development and potential for a positive future. This holistic approach emphasizes the possibility of rehabilitation and reintegration, offering hope beyond the initial sentence. The same view was reiterated in certain judgments like Gopal Sarkar vs. State of West Bengal AIR Online 2022 CAL 2520 as well as two unreported judgments in Narayan Mahato alias Naran Mahato vs. State of West Bengal and Biresh Poddar and another vs. State of West Bengal and others etc.

It’s crucial to remember that modern criminal justice prioritizes the reformative aim of punishment, not mere retribution. Moreover, apart from the crime’s nature and future risk, the Supreme Court has consistently stressed several additional factors for consideration in such cases.

Examining the rejection grounds, we find a crucial absence – consideration of the factors beyond the crime itself. No reports appear to have been consulted from the Probation Officer or prison management regarding the petitioner’s ongoing conduct and progress throughout his incarceration. Similarly, details about his participation in rehabilitation programs, education, or productive work while in custody are missing. Notably, the cited police report seems fixated on the crime’s distant past, offering cryptic reasons without concrete evidence. The supposed risk of witness retaliation, for instance, feels like mere speculation. Adding to this, while the family’s poor socio-economic status and victim’s family’s opposition are mentioned, these lack clear justification. Furthermore, the petitioner’s own wife seeking his release casts doubt on the narrative of family resistance. In essence, the rejection grounds fail to address crucial aspects of the petitioner’s present circumstance and potential for reintegration, raising concerns about the process’s thoroughness and fairness.

The right of the petitioner under Article 21 to live a life of dignity cannot be deprived merely because the petitioner was convicted.

The petitioner, having endured lengthy incarceration, deserves a chance at reintegration. Denying premature release becomes double punishment, especially considering their potential eligibility. Further, the Board’s improper composition casts doubt on the process. Therefore, we direct the authorities to have a properly constituted Board re-evaluate the petitioner’s request, considering all relevant factors, including those outlined above. This reconsideration should be done within a month. No costs awarded.

 

 

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Written by- Bhawana Bahety

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Calcutta High Court held that when documentary evidence is available the oral testimony of witness is not sufficient to rebut its probative value.

Case Title: Minati Bhadra & Ors. Vs Dilip Kr. Bhadra & Ors.

Case No: S.A. 406 of 2016

Decided on: 19th October, 2023

CORAM: Hon’ble Justice Siddhartha Roy Chowdhury

 

Facts of the Case

This appeal challenges the judgement and decree passed by learned Additional District Judge, 1st Court, Jangipur, Murshidabad.

The plaintiff, son of Chabi Rani Bhadra and Aswini Bhadra, filed the suit for partition stating, inter alia, that Chabi Rani Bhadra was the original owner of the suit property which was acquired by purchase and Chabi Rani died intestate on 15th March, 1984 and she was survived by her husband Aswini and son Dilip Kumar Bhadra who thus acquired the property by inheritance.

Aswini Bhadra entered into her second marriage. His second wife, Minati Bhadra, bears him two children: a son named Swadhin Kumar Bhadra and a daughter named Payel Munmun Bhadra. Following the birth of defendant no. 3, Swadhin Kumar Bhadra, the plaintiff’s stepmother’s conduct towards him underwent a radical transformation, and she began inciting Aswini against the plaintiff. Aswini Kumar Bhadra passed away on March 12, 2003, leaving behind his widow, defendant number 1, and plaintiff and defendant number 3, who were his sons and defendant number 2, who was his sole daughter.

After the demise of Chabi Rani Bhadra the plaintiff acquired the half share in the suit property and he acquired 1/8th share by way of inheritance after the demise of Aswini Kumar Bhadra.  Seeking peaceful co-ownership with the defendants failed due to their denial of his rights. Defendant 1 claims sole ownership through a purchase.

According to defendants, the plaintiff was not the biological son of Chabi Rani Bhadra, but was the son of Ashwini’s elder brother.

Legal Provisions

Section 50 of the Indian Evidence Act, 1872

Opinion on relationship, when relevant.—When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860). Illustrations

  1. The question is, whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant.
  2. The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant. Comments Contradiction in evidence of relationship of witness of triffle nature, not material in a partition suit; Gowhari Das v. Santilata Singh, AIR 1999 Ori 61.

Section 35 of the Indian Evidence Act, 1872

Relevancy of entry in public 1[record or an electronic record] made in performance of duty.—An entry in any public or other official book, register or 1[record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or 1[record or an electronic record] is kept, is itself a relevant fact.

Issues

  • Whether Dilip, the plaintiff, was the biological son of Ashwini?
  • What would happen if there is conflict between the document admissible under Section 35 and oral evidence as to conduct under Section 50?

Court analysis and decision

The High court took referral to supreme court case like MOHD. SALIM VS. SHAMSUDEEN (2019) 4 SCC 130, M. YOGENDRA VS. LEELAMMA N. (2009) 15 SCC 184 to come to the conclusion that when documentary evidence is available the oral testimony of D.W. 2 is not sufficient to rebut the probative value of Exhibits – 7, 8, 8/1 and 9 (the Admit Card, Mark Sheet of Board of Secondary Education wherein Aswini has been depicted as father of Dilip Bhadra, the plaintiff). Based on this it can be said that Dilip was not the biological son of Aswini.

The Calcutta High Court Judge, therefore, was of the view that the oral testimony of D.W. 2 is not sufficient to outweigh the evidentiary value of Exhibits, which unerringly indicate the relationship between Aswini and Dilip as father and son. Therefore, I do not find any reason to interfere with the judgment impugned.

The appeal does not merit any consideration and is dismissed, however, without cost.

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Calcutta High Court Backs Contractor: Mehrotra Buildcon Obtains Right to Choose Sole Arbitrator Against Railway

 

Case Title: M/s. Mehrotra Buildcon Pvt. Ltd. vs South Eastern Railway

Case No: AP 736 of 2023

Decided on: 15.12.2023

CORAM: Hon’ble Justice Moushumi Bhattacharya

 

Facts of the Case

The petitioner, a contractor for the Jharsuguda foot-over bridge construction, seeks the court’s intervention in appointing an arbitrator as outlined in the relevant contract. The respondent, South Eastern Railway, engaged the petitioner for construction.

The NIT outlined the Standard General Conditions of Contract (September 6, 2019) as the governing mechanism for dispute resolution. A disagreement emerged between the parties regarding the price variation clause. The petitioner subsequently issued multiple notices between September 8, 2021, and August 5, 2022, highlighting their grievances and submitting invoices for the respondent’s consideration.

Counsel submits that the very act of the respondent sending four names for the petitioner to choose three of the panel is contrary to the decisions of the Supreme Court in terms of the impartiality and independence. Counsel also places a letter where the petitioner disagreed to waive the applicability of Section 12(5) of the 1996 Act.

 

Legal Provisions

Section 11 of The Arbitration and Conciliation Act, 1996 deals with the Appointment of arbitrators. It has 12 clauses.

Section 12(5) of The Arbitration and Conciliation Act, 1996 stipulates that regardless of any preexisting agreement, individuals with specific conflicts of interest, as outlined in the Seventh Schedule, are automatically disqualified from being appointed as arbitrators.

Clause 64(3)b(ii) of General Condition of Contract :- Replace numeral 30 with 60. After modification, the complete clause would read as follows:-

“A party may apply for corrections of any computational errors, any typographical or clerical errors or any other error of similar nature occuring in the award of tribunal within 60 days of the receipt of the award.” 

 

Issues

  • Whether the parties are bound by Clause 64(3)(b)(ii) of the General Condition of Contracts with regard to the arbitration mechanism provided under the said clause?
  • Whether the petitioner would be bound by the dictum in Union Territory of Ladakh?

Court analysis and decision

  • After considering the arguments of both parties, the Court finds that the key question hinges on the impact of the Supreme Court’s decision in Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML, A Joint Venture Company (JV) (2020) 14 SCC 712, which was later referred to a larger bench due to potential discrepancies with Union of India v. Tantia Constructions Limited (2021) SC 271.
  • The court rejected the contentions made on behalf of the respondent and appointed an arbitral tribunal of 3 learned arbitrators to adjudicate the disputes between the parties.
  • Counsel appearing for the parties submitted that instead of 3, the Court may appoint 1 Arbitrator.
  • The Supreme Court, in Union Territory of Ladakh vs. Jammu and Kashmir National Conference 2023 SC 1140, ruled that High Courts cannot decline to apply a Supreme Court judgment solely due to potential doubts raised by a subsequent co-equal Bench. In instances of conflicting rulings by Benches of equal strength, the earlier judgment remains binding.
  • The Supreme Court, in Central Organisation, addressed clause 64(3)(b) of the GCC. They upheld the use of retired Railway Officers as arbitrators, emphasizing their expertise as a reason for their inclusion in the dispute resolution process. This countered the High Court’s decision to appoint a sole arbitrator outside the GCC framework.
  • The Supreme Court further held that there was room for suspicion of the other party picking its favorites. The Supreme Court accordingly recommended that the panel must be made more broad-based to cut back any apprehension of partiality or lack of independence of the arbitrators.

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Written by- Bhawana Bahety

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“The issues of patient care service are dependent upon the competence of the concerned doctor or the ECG technician” : State of West Bengal

Title: B.M. Birla Heart Research Centre -Vs.- State of West Bengal & Ors.

Citation: MAT 1595 of 2019

Decided on: 15.12.2023

Coram: Justice Arijit Banerjee & Justice Apurba Sinha Ray

 

 

Introduction

This case highlights the potential consequences of inadequate patient care, even if medical negligence isn’t proven. It also demonstrates the importance of thorough investigations and fair compensation for families impacted by hospital shortcomings.

 

Facts of the case

A writ petition was filed under article 226 of the constitution of India before a single judge of  Calcutta High court by BM Birla Heart Research Centre (BMBHRC) challenging the judgement and order of West Bengal Clinical Establishment Regulatory Commission. The case involved a bereaved son accusing BMBHRC of negligence as the reason for his mother’s death. He cited delays in shifting her, improper medication, diagnosis, and communication.

The Commission investigated, finding no medical negligence but significant deficiencies in patient care. They awarded the family 20 lakh rupees (approximately $26,000) in compensation.

The court, after hearing the parties and taking into consideration the materials on record, dismissed the said writ application holding that the conclusion arrived at by the Commission was correct and justified.

Aggrieved by this judgement and order, BMBHRC challenged the decision, arguing the judge overlooked their arguments and evidence and that he had flawed analysis and findings.

 

Court’s observation and analysis

The Court set aside the impugned judgment passed by the learned Single Judge as well as the order of the Hon’ble Commission. The instant appeal, was thus, allowed but without any order as to costs. In this case the issues of patient care service was dependent upon the competence of the concerned doctor or the ECG technician. The court made reference to the case – State of Punjab Vs. Shiv Ram & Ors.( AIR 2005 SC 3280 ), wherein the Hon’ble Apex Court has been pleased to observe in paragraph 28 that unless primary liability is established, vicarious liability on the state cannot be imposed. The Commission lacked authority to judge doctor misconduct because a specialized body handles such cases under specific regulations. The court wasn’t informed of this. The court made the wrong judgment about the expected level of doctor’s competence due to incomplete guidance. According to the commission had the ECG of the patient been done and interpreted by the BMBHRC’ through a competent doctor and technician, such untimely death of Arati Pal might have been averted. The questions whether or not the doctors or the clinical establishment were at fault in diagnosis, are issues of medical negligence which the Commission could not have BEEN adjudicated and the Commission had rightly refused to enter into that arena. Furthermore, there is no material on record showing that there was any nexus between the ECG report done and the death of the patient Arati Pal. The allegation against the incompetent doctor is such that he has committed professional misconduct under Regulation 7.20 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 and for which a specific provision has been made for determining whether he has committed any professional misconduct or not. The Commission has therefore no authority to observe that the doctor  was not qualified to conduct as well as interpret the ECG report.

Furthermore, unless the Medical Council of the West Bengal declares through specific and appropriate disciplinary action that Dr. Giri is an unqualified doctor, the Commissioner has no authority to declare Dr. Giri as unqualified to perform ECG or to interpret the findings thereof.

 

 

 

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The court in command shall be careful when intervening with the arbitrator’s Interim Orders: Calcutta HC Preserves Deceased LLP Partner’s Share

APO 65 of 2023

Case: Concrete Developers LLP v Gaurav Churiwal and Ors

Appearance

Petitioner: Mr. Abhrajit Mitra, Sr. Adv.

Respondent : Mr. Ratnanko Banerji, Sr. Adv

CORAM: Hon’ble Justice Moushumi Bhattacharya

Order Dated: 24.11.2023

Introduction

The High Court of Calcutta recently contended that a Court exercising powers under Section 37 of the Arbitration & Conciliation Act, 1996 (“1996 Act”) must be circumspect in its interference with interim orders of an arbitrator.

Facts of the Case

The present appeal, filed under section 37 of The Arbitration and Conciliation Act, 1996, is from an order passed by a learned sole arbitrator The impugned order is an interim order and was passed in an application filed by respondent no. 1/claimant under section 17(1) of the 1996 Act whereby the appellant was directed to deposit Rs. 6 crores in a separate interest-bearing account in the name of the Limited Liability Partnership (LLP) namely Concrete Developers LLP.

he LLP was constituted according to an Agreement dated 24.11.2015 to develop a high-end real-estate project – “Raghu Estates” in Alipore, Kolkata. The project had a developer’s allocation of 16 flats of the total number of flats constructed for the project.

Upon considering the submissions made on behalf of respondent no. 1 / claimant and the appellants in the context of the claimant’s prayer for directing the appellants to set apart Rs. 6,41,73,413.00/- being the total balance about Pawan Kumar Churiwal’s shares (the father of the claimant) as on 12.1.2021, the learned arbitrator was of the view that the claimant and/or the other legal heirs of the deceased partner, Pawan Kumar Churiwal are entitled to accounts and a share in the profits in the LLP. The appellants were accordingly directed to keep a sum of Rs. 6 crores apart in a separate interest-bearing account in the name of the LLP. The appellants were also directed to furnish the particulars of accounts to the claimant and to maintain the accounts till disposal of the arbitration. Counsel submits that an order for securing a particular amount of money can only be made concerning an “amount in dispute” whereas the impugned order is based on equitable considerations which cannot be done under the provisions of the 1996 Act. Counsel submits that the claimant’s section 17 application did not contain any prayer for securing any particular amount and that the impugned order is also contrary to section 24(5) of the LLP Act, 2008 which restricts the entitlement of a person to the share of a deceased partner to the capital contribution of the former partner and the former partner’s share in the accumulated profits of the LLP. Counsel further submits that the impugned order suffers from an absence of reasons as to the basis of the direction on the appellant to set Rs. 6 crores apart and is also contrary to the arbitrator’s findings in the 10th sitting. Counsel further submits that the claimant’s conduct in the arbitration was inequitable and that the impugned order is patently illegal and perverse.

Counsel submits that the object and purpose of section 17 is to preserve the value of the share of the deceased partner at the time of his demise so that the claimant’s share is not frittered away by the other partners who are in control of the appellant LLP. It is submitted that the appellant and the other partners were siphoning away profits from the sale of flats during the arbitration.

Analysis of the court

The facts and circumstances that were presented before the learned arbitrator or were disclosed in fits and spurts by the appellant / surviving partners fully justify the impugned interim order There can be no jurisdictional objection to the impugned order as the Act of 1996 grants the arbitral tribunal plenary powers to pass such orders for preserving the dispute in the arbitration. The order also does not suffer from any factual or legal infirmity and is certainly not arbitrary or perverse. The Court’s view is supported by the reasons given above.

Taking into account the legal position, the case law on the subject, and the particular facts in the present matter, the Court is accordingly of the view that the impugned order does not call for any interference.

The aforesaid applications are accordingly dismissed. There shall be no order as to costs.

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Kaulav roy chowdhury

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