By Lokendra Malik
Recently, the Calcutta High Court granted interim bail to four Trinamool Congress leaders, who were accused in the Narada case, on a personal bond of Rs 2 lakh each with two sureties. The Court asked the accused to join the investigation via video-conferencing. They were also directed not to give interviews to the press regarding the case.
The CBI arrested them on May 17, 2021, after filing the chargesheet. The offence was undisclosed in 2014 and the CBI arrested them after seven years. This demonstrates the unprofessional approach of the CBI.
On May 17, the accused moved an application for bail before the Special CBI court, which gave them bail the same day. Aggrieved by this order, the CBI knocked on the doors of the Calcutta High Court and requested a stay order. The High Court entertained the CBI’s request, and a division bench of Acting Chief Justice Rajesh Bindal and Justice Arjit Banerjee stayed the bail order without even hearing the accused persons. After a day, the division bench delivered a split order where Justice Banerjee granted bail to the accused persons, while Acting Chief Justice Bindal had a different view. Thereafter, the acting chief justice, who is also the master of the roster, referred the matter to a larger bench comprising of five judges of the High Court to decide the issue and placed the accused persons under house arrest till the adjudication of the case.
As per the practice and procedure of the Calcutta High Court, the acting chief justice had to refer the case to a third judge, but instead, he constituted a larger bench to hear the issue. Why was the matter not sent to a third judge?
Meanwhile, Justice Arindam Sinha, a senior sitting judge of the High Court, wrote a letter to all his colleagues, including Acting Chief Justice Rajesh Bindal, and raised serious questions relating about the listing and hearing of the Narada case by the Court. He requested all his colleagues to consider the issue in a full court meeting.
“Our conduct is unbecoming of the majesty of 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 sanctity of our rules and our unwritten code of conduct,” the judge said in his letter. Indeed, it is a matter of grave concern for the entire legal community in the country.
Justice Sinha, in his letter, indicated certain procedural violations in listing and transferring the case to the High Court that need a serious consideration. He stated: “The Appellate side rules of the Calcutta High Court require a motion seeking transfer, either on the civil or the 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 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 the interpretation of the Constitution has been raised, as not recorded in the 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.”
Notably, the senior judge has raised some very substantive questions that need a timely answer and consideration by the entire High Court for protecting the integrity, credibility and independence of the judiciary. It is difficult to understand why the matter was not referred by the master of the roster to a third judge when the division bench had returned a split verdict. Had it been done, the situation could not have taken a different turn.
Not only this, the division bench should have refrained from staying the bail order and heard the accused persons whose interests were affected adversely. There was some minimum requirement for issuing a notice to the accused persons. What was the hurry to bypass the entire procedure of fair and reasonable hearing and rules of the High Court itself? “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,” the judge questioned. Doubts were raised about the procedure adopted by the bench in staying the bail order by the special CBI court. Currently, the five-judge bench which is hearing the matter should not miss the opportunity to consider this question seriously.
Further, Justice Sinha questioned why a five-judge bench was constituted for hearing the matter when generally a third judge is added in case of a split order passed by a division bench. This question goes to the roots of the issues.
The judge said in his letter: “When the Judges on a Division Bench differ on ay point(s) or issue(s) same is referred to a third learned Judge for opinion. In the premises rule, 1 in Chapter II of the Appellate Side Rules don’t apply. Chapter VII provides references to a Full Bench. Such references arise when view taken by a Division Bench is inconsistent with the view taken by another Division Bench.”
As per the law of precedent, cases are referred to larger benches only in such situations when there are conflicting judgments of the coordinate benches. In the Narada case, no such issue was involved. So there was no need to refer the matter to a five-judge bench. Referral to a third judge was sufficient to decide the issue. This is the general practice in all High Courts.
High Courts have a supervisory role over the subordinate judiciary as per the constitutional scheme of things, but this role should be performed subject to relevant constitutional and statutory provisions confirming the scheme of natural justice. All litigants are equal before the courts of justice. Courts need to follow rules equally while examining the claims of litigants.
There is a belief in society that the CBI is nothing but a handmaiden agency that dances as per the instructions of its political masters who misuse it to settle political scores again rivals. The Supreme Court has also called the CBI “a caged parrot” seven years ago. The High Court should consider why the CBI arrested the accused TMC leaders after seven years. What happened overnight that the investigation agency arrested them after filing the chargesheet soon after the West Bengal elections?
Many people are rightly questioning the timing of the arrest of the TMC leaders and the CBI has to answer them. There is no justification to arrest the accused persons after filing the chargesheet if they are not avoiding the trial.
In Dataram v. State of U.P., 2018, the Supreme Court has observed categorically: “…among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case.”
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Given the above discussion, the letter penned by a senior judge of the High Court needs to be considered by the entire Court on a priority basis for sustaining public confidence, integrity and credibility of the judiciary. This is a big challenge for the Calcutta High Court, and it is likely to face it boldly. If something has gone wrong on its part, it should be corrected without any delay for strengthening public trust, the Court’s reputation and commitment for protecting the rule of law, constitutionalism and judicial independence.
—The writer is Advocate, Supreme Court of India