The Calcutta High Court’s somewhat hurried decision to stay the bail order of the CBI Special judge on four Trinamool Congress leaders has drawn some uncomfortable questions from legal luminaries. The fact that a bail issue was referred to the first division bench instead of a single judge has also been critiqued. Today a five judge bench of the high court granted interim bail to the four, but before that, the legal community in Kolkata and elsewhere was shaken by another incident.
Justice Arindam Sinha, a Judge of that High Court in a letter to Acting Chief Justice Rajesh Bindal, expressed his clear displeasure at the way in which the transfer plea filed by the premier investigating CBI agency in the Narada Sting Case (for which the four TMS leaders had been placed under house arrest) was listed before the Division Bench of the High Court as a writ petition.
In a strongly worded letter, Justice Sinha said: “Our conduct is unbecoming of the majesty the High Court commands. We have been reduced to a mockery.”
The letter, which is addressed to the ACJ, but is also meant for other brother judges, also says that the high court must get its act together. He requested that to salvage the situation, a Full Court should be convened for the purpose of re-affirming the sanctity of the Rules of the High Court.
He said: “Our High Court in dealing with WPA 10504 of 2021 (CBI ACB Kolkata Vs Shri Firhad Hakim @ Bobby Hakim & Ors) is cause for me to put a pen to paper.”
He also said that the appellate side rules require a motion seeking transfer, either on the civil or criminal side, to be heard by a single judge. However, the first Division Bench took up the matter, treating it to be a writ petition. The application, if the communication made on 17th May 2021, can be considered as one, is by the Investigating Agency/ Prosecution against the accused persons. It could not and was not treated as a Public Interest Litigation. Even a writ petition under Article 228 of the Constitution should have gone to the Learned single judge having determination.
“The Communication could not have been treated as such a writ petition simply because no substantial question of law as to interpretation of the Constitution has been raised, as not recorded in order dated, 17th May 2021 nor the subsequently filed application. The Mob factor may be a ground on merits, for adjudication of the motion, but could the first Division Bench have taken it up and continue to hear it as a writ petition, is the first question?” he questioned.
The Judge also questioned the way in which the bail granted to accused persons was stayed by the High Court’s interim order dated May 17, 2021, and they (accused persons) continued to be in custody. “On that day when, on intervention of the High Court, said persons were deprived liberty, there was no application on record of this Court, since the communication was not supported by affidavit, mandated by Sub-Section (3) in Section 407, Code of Criminal Procedure, 1973,” he said.
“Whether the High Court exercising power in the matter of transfer of a Criminal case, at that stage on its own initiative, could have passed the order of stay, is the second question? Sub-Section (6) under section 407 is the only provision for issuance of order of stay. It must be on the application for transfer,” he said.
He also raised the issue with regard to the reference of the matter to a five-judge bench after the judges on the Division Bench disagreed and passed separate orders expressing their divergent views.
The Judge said: “When the judges on a Division Bench differ on any point(s) or issue(s), the same is referred to a third learned judge for opinion. In the premises, Rule 1 in Chapter II of Appellate Side Rules do not apply. Chapter VII provides for references to a Full Bench. Such reference arises when the view taken by a Division Bench is inconsistent with the view taken by another Division Bench.”
He added: “Our conduct is unbecoming of the majesty the High Court Commands. We have been reduced to a mockery. As such I am requesting all of us to salvage the situation by taking such steps, including convening a Full Court, if necessary, for the purpose of re-affirming the sanctity of our rules and our unwitting code of conduct.
“It should include consideration as to whether by citing the Covid, we can stop coming to Court and Conduct its business from wherever we are, our Court being a Court of record within the meaning of Article 215 of the Constitution. The accompanying question would be as to how we have made the rules of our conditions of services redundant, Citing COVID-19,” said Justice Sinha in his letter dated May 24.
Read the full letter here;Justice-Arindam-Sinha-letter-1