Striking a big blow to submissions by Solicitor General Tushar Mehta (on behalf of the CB) to transfer the Narada sting case out of West Bengal, the Calcutta High Court on Wednesday observed that a mere solitary incident would not be “sufficient ground to allow transfer of the proceedings.
The five–judge bench of the court – comprising Acting Chief Justice Rajesh Bindal and Justices I.P. Mukherjee, Harish Tandon, Soumen Sen and Arijit Banerjee – continues its hearing of the Narada case. The CBI demands that the trial be transferred and has also asked for a declaration that the hearing in the trial court on May 17, where bail was granted to four Trinamool Congress (TMC) leaders was vitiated through mob pressure.
Justice Soumen Sen explained to Mehta that there should be a continuous set of events that would make it apparent that if the trial is continued, it shall be vitiated. He said that a “solitary incident may not be a justifiable ground for transfer.”
The SG’s contention before the bench was that the perception of bias by the common man could be evident in the presence of “intimidating” protesters. He argued that this was enough for the common perception to see a bias and that the justice system was stifled with.
Aiding his argument, the SG had cited the case of Zahira Habibullah Sheikh & Anr v. State Of Gujarat & Ors., in which the Supreme Court had observed that “Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings…”
Bolstering his argument, the SG had also cited the case of Hazara Singh Gill v. State Of Punjab, where, again, the Supreme Court had observed: “The question really is whether the petitioner can be said to entertain reasonably an apprehension that he would not get justice. One of the highest principles in the administration of law is that justice should not only be done but should be seen to be done. In the present case, there is enough allegations to show that certain strong parties are opposed to the petitioner in various ways. Whether they would exercise any influence upon the magistracy and whether magistracy would be able to withstand such a pressure, if made, is not germane to the present petition.”
The perception of the legal fraternity in the state of West Bengal is that the CBI, which was seemingly acting on a political mandate, rather that the mandate given to it on inception of an “independent” probe agency, wants a playing field where it, instead of the court, would possibly have more influence on the matter.
The fact that the Solicitor General argued that the question was not about whether the Special (CBI) Judge was influenced by the mobocracy (in allowing bail to the four TMC leaders) but what a reasonably informed common man would feel.
Justice Sen pointed out to the SG that the judgments cited by him (as above) referred to disruptive circumstances that arose ‘during the course of trial’. The judge asked: “Can you give us any illustration of the present case where such transfer was allowed in bail application?”
The SG said: “The judgments are ‘de hors the stage’. If at any stage I feel proceedings have been vitiated, or due to the past conduct I see that future trial may be vitiated, I may approach the Court for transfer… The provision of transfer is not restricted. It may be used at any stage.”
He also said that even if the arrest is found to be illegal, whether such conduct of the executive can be legitimized by a Constitutional Court. “My question is, can one get a bail order by showing rowdiness and hooliganism? And what would be the response of a Constitutional Court as the custodian of Rule of Law? It is a question of Majesty of Court.”
The bench then put forth some troubling issues to the SG, such as why the CBI counsels did not seek for an adjournment from the Special Court? Why did the CBI not present the case diary before the Special Court when a police officer had gone to deliver the charge sheet physically?
Said Justice Sen: “Let me tell you what is troubling me. We have always deprecated media trial. But public perception of conduct of trial in a case where the order of special court otherwise seems to survive (on merits). That order has also not yet been challenged. Will public perception override all other considerations?”
Justice Harish Tandon also asked: “If hypothetically let us say bail application was rejected despite such external actions, then will the trial be vitiated?”
The SG said each case will have to be examined on its individual facts.
The hearings will continue.