The Calcutta High Court’s specially convened five-judge bench – comprising Acting Chief Justice Rajesh Bindal and Justices IP Mukherji, Harish Tandon, Soumen Sen and Arijit Banerjee – today decided that it will hear the recall (of order) application made by the State of West Bengal’s counsels on Friday.
Four senior Trinamool Congress leaders – ministers Firhad Hakim and Subrata Mukherjee and TMC legislators Madan Mitra and former MLA Sovan Chatterjee – are now under house arrest, because the high court had stayed a bail order by the Special CBI court. Lawyers want this order recalled.
The high court’s two-judge bench had earlier differed in opinion on the bail issue, hence the five-judge bench.
Today, Solicitor General Tushar Mehta started arguments on a somewhat tangent, stressing that the law and order situation in the state was so bad that it was time that the case was transferred out of the state. The court listened to the SG for a while, before Senior Advocate Kalyan Bandopadhyay, appearing for the state, said that while the SG’s contentions were going on, his clients remained hanging under house arrest. Other state counsels, Senior Advocates Abhisekh Manu Sihnghvi and Siddharth Luthra also agreed that the recall application may be heard.
The bench clarified that deciding on the recall application was not an easy affair and then went into consultation. Following their conference, the judges told the counsels that they will take up the bail issue first things tomorrow morning.
Before the arguments stated, Advocate General Kishore Dutta made a point of law. He said that when the SLP was filed in the Supreme Court, the State of West Bengal was made a party. SG Mehta argued that there was no problem in making the state party. To that, Dutta requested the bench that an order may be passed, adding the State of WB as party in this case in this court. The court allowed that.
Mehta said: “Apart from seeking transfer, I am invoking the court’s jurisdiction under Art 226 of the Constitution and Section 482 CrPC that the entire proceedings before special court are vitiated and non est. The issue involves seminal issues as to how rule of law and dispensation of justice is perceived by the Constitution. In this State, similar incidents are happening frequently. Today we are seeing political leaders indulging in orchestrated attempts. If this mobocracy is not checked by Constitutional courts of the country, then tomorrow, if a gangster is arrested, his supporters will also gherao the CBI office.
“My submissions should not be seen as casting aspersions on the Special Judge who granted bail. The issue is that the proceedings should not be perceived as not inspiring public confidence. In this regard, the confidence of the common man has to be the benchmark to be considered while ascertaining the public confidence in system.”
The court said: Mr Mehta, you say you don’t have exception to the judge’ s order. Unless you can show that alleged mobocracy had any effect on the judge, how can you invoke Art 226?”
Mehta: “The question is not whether the judge was under intimidation or not. The question is whether the perceived intimidation could shake the common man’s faith in the system. I ask you to please forget the issue of legality of arrest for the time being. The question now is, can they seek bail by such conduct? You are not being disturbed in a 5-judge composition to decide whether they can be granted bail. You are being called upon to decide the larger issue of rule of law and whether it warrants this Court’s interference.
“Tomorrow this could happen in some other state. Tomorrow, if a gangster is arrested or a leader of a community is arrested, people can gather and intimidate investigation agency, said Mehta.
The court reminded the SG that there have been many such sensitive issues in India which can lead to public outrage. Justice Harish Tandon clearly said: “The common man might go with sentiments. But the rule of law is paramount. I don’t think the judge who wrote order of bail… the other issues are different. I don’t think perception of common (man) will avert dispensation of justice.”
Mehta insisted: “This incident of ministers barging into court and the CBI office for supporting the accused has replaced Constitutional rule of law.”
At that point Justice Arijit Banerjee asked whether these issues should be considered at all for grant of bail.
Mehta said: “Your Lordships need not be sitting in 5-judge combination to decide bail. This bench is deciding more significant issue of whether the proceedings before the CBI court were vitiated.”
Justice Mukerji corrected the SG and said that the five-judge bench was “considering all issues, including the bail aspect.”
At that Mehta said: “Please don’t misunderstand me. What I am saying is the bail aspect should not cloud the larger issue I am raising. You are correct when you said when a film star or spiritual leader is arrested, supporters come out in open. But this is a case where Constitutional functionaries laid siege to CBI office. This is mobocracy, not democracy. I have placed on record video footage, and other evidence. As of now, this is un-rebutted.
This is a serious issue.”That As when state counsel, Senior Advocate Kalyan Bandhopadhyay interfered. He said that his recall application should be heard first. “Otherwise the Solicitor General will go on arguing the main matter, while my clients will remain under house arrest. I have not understood which jurisdiction Your Lordships are exercising. It is paining me. In my 40 years, I have never seen an order passed by this High Court in violation of natural justice. We are not here for academic submissions or to listen to anyone’s speech.”
Dr Singhvi also said that Bandhopadhyay was rightly perturbed. “I am endorsing it with less emotion. Your Lordships are not entitled to transfer. And even if you are so entitled, bail order cannot be stayed without hearing the accused. Mr Mehta’s opening submissions makes it clear that he wants the Court to go into everything except bail.”
Justice IP Mukerji said: “If bail is granted today it would virtually amount to dismissal of this case. So it is not a simple issue.”
Dr Singhvi said: “Even if bail is granted and later the court decides in favour of the CBI on the mobocracy issue, then they can be put back in jail. My issue is, Mr Mehta is not arguing on bail at all.”Senior Advocate Sidharth Luthra also echoed similar sentiments.
Bandopadhyay said: “Question is, my application should be heard. Matter may continue.” He insisted that the recall application has to be heard first under Article 226(3)(b).
The SG said: “That Art. 226(3) comes in when the main matter is not heard. Not when main matter is being heard like here.”
Justice Soumen Sen said: “The issue is, can their liberty be curtailed in the interim by way of an order which was passed without hearing them?”
The court went into a conference and later said that it will hear recall application first thing tomorrow. The time set was 12 noon.
Bandhopadhyay said: “Why are Subhendu Adhikary and Mukul Roy not joined as parties? Why only those on the Trinamool side made party?”
SG said: “My answer is only charge-sheeted accused have been made parties.”
At the end of the day, the State of West Bengal, which was officially made party to the case, was served notice, which was accepted by the Advocate General.
It was also decided that applications for recall from respondents 1 to 4 (the TMC leaders under house arrest) would be heard first tomorrow, before hearing larger issues raised by Solicitor General Tushar Mehta. ILNS\SJ