The Calcutta High Court’s five Judge Bench, comprising Acting Chief Justice Rajesh Bindal and Justices IP Mukherjee, Harish Tandon, Soumen Sen, and Arijit Banerjee, formed to hear the plea moved by the CBI to transfer the Narada sting case presently pending before a special court to the High Court today started by hearing arguments in favor of the state of West Bengal and the four Trinamool Congress (YMC) leaders who had recently been granted interim bail.
The leaders out on bail are Firhad Hakim, Subrata Mukherjee, Madan Mitra, and Sovan Chatterjee. They were arrested by the CBI on May 17. The CBI’s case is that there was mobocracy in the state, and this will affect judgment in the case. The bail issue is also being discussed.
During the first half of the hearings, Senior Advocate Dr Abhisekh Manu Singhvi, said that casual arrest (as has allegedly happened) “is a draconian thing. It is against the rights of all, deprived classes and privileged classes alike.”
Starting his arguments, Singhvi said: “There is one additional issue aside from the five issues earlier discussed. That is the Violation of Rules of High Court in listing. Their submission is one issue – mobocracy – must submerge all other issues. If the perception test advanced by them is accepted, it will become a wild, unruly horse. Any order of a court will be sought to be overturned citing some democratic protest.”
Talking about the bail issue, he said: “The Governor grants sanction to CBI on May 7. The new cabinet is sworn in on May 10. Charge-sheet is filed on May 17 and arrest happens on May 17. The test for bail is flight risk, noncooperation and tampering of evidence. If court finds these three things are not likely to happen, then bail is granted. It is common sense. One of the accused is a minister since 2011. Second person is MLA for 50 years.
“My question is, since 2014, when the sting happened, what else is left for them to tamper with if they want to? How much non-cooperation can they do? And with such roots, how much flight risk are they? Are they such flight risks that only way for CBI to deal with them is custodial interrogation?
“Res Ipsa loquitur (the principle that the mere occurrence of some types of accident is sufficient to imply negligence) is used for civil law. But let me with your permission use it in this criminal case. The facts speaks for themselves and the facts are enough to grant relief to accused,” Singhvi said.
He cited the P Chidambaram judgment of Supreme Court in INX media case on grant of bail. He explained how the top court applied the triple test to grant bail.
Then he cited the DK Shivakumar judgment of the single judge of Delhi High Court.
“I am on general principle,” he said. “They (the accused) had gone and given their voice samples years ago. Immediately after elections, they are arrested. The IO itself had given in writing to the court that these people have been investigated. The discussion now on Section 41A of CRPC on requiring persons who need not be arrested, to appear before police if there is reasonable suspicion that such person has committed a cognizable offense.
Nobody is questioning their power. But they do not have any obligation to arrest. Casual arrest is a draconian thing. It is against the rights of all, deprived classes and privileged classes alike. Of course, it affects and is applied more detrimentally against deprived classes.”
At this, Justice IP Mukerji said: “The CBI is not challenging the bail order on merits. What it is saying is the environment due to mobocracy was such the entire proceedings stood vitiated.”
Singhvi: “The CBI is trying to brush all other issues under the carpet of mobocracy. But let me come to the issue of mobocracy. There is no material to show such mobocracy. We are proud in this country that there is democracy thriving. That is why our building and highways take longer than China. We are 10 to 12 years behind because of D word – democracy. MLAs had come out in support of colleagues.”
Singhvi said: “The CBI knows well that in all five points which I have raised, it has no case.”
Justice Mukherjee asked: “If a protest is peaceful then it is not mobocracy. Mobocracy suggests highly illegal action by the mob. It is a question of fact. Was there such mobocracy?”
Acting CJ Rajesh Bindal asked: “Why was the law minister in court? Does he usually go to court?”
Singhvi: “Assuming he was there, let me put bluntly. It makes a jot of difference to the bail order’s validity.”
Justice Soumen Sen asked: “Public perception regarding events happening in a court complex; will it vitiate proceedings or not?” Singhvi then said that he would deal with the mobocracy issue before going on to other arguments.
The Acting CJ commented that it was not a common man’s protest, but one by constitutional functionaries. “That needs to be kept in mind.”
Singhvi: “I am not saying the judge has to record details. But there has to be some material in the order suggesting that the judge was overawed. There is not even a whisper of that in the order.”
Acting CJ Bindal wanted a clarification: “Is there is any such order where a judge records it (of him being overawed)?”
Singhvi: “There are many orders where the judge records the conduct of parties and lawyers and then recuses or passes order. Mobocracy is an excuse. They misrepresent as if there is martial law in Kolkata. And they raise the issue after arguing before the court and after the passing of the order. Suddenly, the proceedings become null and void. It an ex post facto (‘out of the aftermath) afterthought to justify their actions that day.
“They could not have proved bias. So they tried to say it is not actually biased they are trying to prove, but some perception of bias that might have been caused to the common man. They in all fairness conceded that there was no pecuniary or personal bias on the part of the judge. How will you control this horse of perception test? Singhvi asked.”
“When a prosecuting agency of the Centre is clearly acting maliciously, then it makes no difference whether those who are protesting are ministers or is the Chief Minister. The fact that the CM and minister was there should be seen in the context of who the prosecuting agency is. I have never seen a prosecuting agency more malevolent in arresting leaders after swearing in after getting sanction when cabinet was not there,” Singhvi said.
Justice Arijit Banerjee asked: “When can a proceeding stand vitiated due to mobocracy?”
Singhvi: “There has to be very high degree of such mobocracy and it has to affect courts. The 1984 Delhi and 2002 Gujarat were instances of mobocracy, but even that did not affect courts. So there must be an objective conclusion that the city was in flames and it affected courts. But to say subjective perception of people is decisive factor would be a travesty. Who will decide this if this allowed? My perception is not Mr (Tushar, SG) Mehta’s perception. And Mr Mehta’s perception might not be Mr Dastoor’s perception,” Singhvi said.
“No judgment will be safe if any democratic protests are a ground to hold those court proceedings had been vitiated. When the Sanjay Dutt TADA case came to the Supreme Court, there were emotional scenes outside Supreme Court,” Singhvi said.