ILNS: A five-judge bench of the Calcutta High Court – incorporating acting Chief Justice Rajesh Bindal and Justices IP Mukherji, Harish Tandon, Soumen Sen and Arijit Banerjee – hearing the case related to the bail of four Trinamool Congress leaders Firhad Hakim, Madan Mitra, Subrato Mukherjee and Sovan Chatterjee, heard arguments from both sides on Monday, and decided that it will take the case up again on Wednesday, because the Acting Chief Justice would not be available tomorrow.
The matter was referred to larger bench following a split between Chief Justice Bindal and Justice Banerjee on the grant of interim-bail.
At the outset, the court was informed by Solicitor General Tushar Mehta that the CBI has approached the Supreme Court against the order allowing house arrest of the four TMC leaders, and that the agency is trying to get a listing tomorrow. With that the SG requested the 5-judge bench to defer its hearing till day after tomorrow. However, the hearing continued.
The bench asked the SG against which order had the SLP has been filed. To which the SG said that as far as he recalls, it was against the order of Justice Arijit Banerjee, allowing interim bail, and also the order of the division bench allowing house arrest of the TMC leaders.
Senior Advocate Dr AM Singhvi: “It is sad and unfortunate that an investigating agency, which calls itself premier, has sought an adjournment when the question of personal liberty is involved. It is “unbecoming of the CBI” to make this request, knowing what transpired in court, and knowing the urgency.” He pointed out that the CBI’s request for stay of the house-arrest order was rejected by the division bench. “Mere filing of an SLP is not an automatic stay,” Singhvi said.
Senior Advocate Siddharth Luthra said that the CBI opted not to mention the SLP before the Supreme Court. He said that while mentioning is allowed in the Supreme Court, yet the CBI did not mention the matter. He added that the SLP has not been given a diary number and only a provisional number has been given.
Senior Advocate Kalyan Bandhopadhyay also said that the mere filing of an SLP will not preclude the 5-judge bench from hearing the matter. He said that in the matter related to COVID issues, though the Centre had appealed to the Supreme Court, the Delhi High Court had refused to stay its hearing, rejecting the Centre’s request for stay.
SG: “I’m not aware of such an order.” The SG, however took objection to Singhvi using the adjective “unbecoming” against the CBI. He said: “Let us not go into that, I have much stronger adjectives to use. I can’t speculate what the Supreme Court will do, but he added that while there was mentioning last week, now there is a change and mentioning can be done only before the Registrar. He said that the CBI has made a request for listing tomorrow.”
The SG also clarified that he had not asked for a deferment of the house arrest order but he just wanted the hearing to be deferred to day after tomorrow. The TMC leaders are in the comfort of their homes.
When a judge asked the SG which orders had been challenged, the SG clarified that they were the order of Justice Banerjee granting interim bail and the order allowing house-arrest, while referring the matter to larger bench.
The bench clarified that the order of Justice Banerjee could not be challenged, as it does not constitute the order of the bench. The bench said it had 3 options – to continue house-arrest, to grant interim-bail, or to totally dispose of the matter. Whatever orders passed by it can be the subject matter of SLP in SC. So what is the prejudice caused by bench hearing the matter today, the bench asked the SG.
The bench reminded all that there was also the threat of a cyclone hitting West Bengal soon and the Court may not be able to hear the matter in the coming days. That also needs to be taken into account.
Luthra: “I find it really discomforting that an agency, which carries out hostile arrests, in violation of all procedure, gives a lecture on rule of law.”
The SG intervened: “The CM barged into the CBI office. Let us not stoop to the level of street fight.”
That comment, however, was not liked by Advocate General Kishore Dutta – the comment about the CM barging into the CBI office – and he said the State of West Bengal has not been made a party in the CBI’s petition and no copy has been served on the state
SG: “Mr Singhvi has not denied CM going there.”
As SH described the chaotic incident of the day, Justice Sen asked: “Can you by filing an application under Section 407 cancel bail order?”
Acting CJ Rajesh Bindal clarified that no order was passed by special court when High Court was hearing the matter. “There were some media reports only that order was passed,” he said.
SG agreed to that and said: “The terrorising impact of these (the incidents of the day) was that we could not argue property and case diary could not be placed before special court. Before the special court passed order, I requested the Chief Justice of HC to hold hearing pointing out these facts. I asked court to invoke powers under Section 407 CrPC to pass order.”
The bench wanted a clarification and asked: “Are you seeking transfer of proceedings interstate or transfer to this court?”
SG said it was to the HC.
The bench asked: “Have charges been framed?”
SG: “Charges have not been framed, as far as I know.”
Justice Mukerji: “Were the 4 accused arrested before?”
SG: “No, they were arrested only on May 17, 2022.”
Singhvi: “There is only one mega issue – whether the persons who obtained bail on May 17 should be set at liberty. In other words, should order of High Court Division Bench of May 17 be affirmed or order of bail by special court be allowed to continue. Under that mega issue, there are the other issues. Does the division bench have the power to stay a bail order under section 407? Under established principles of bail jurisprudence, were the accused entitled to bail and/or could the order granting bail be reversed? The additional effect of not hearing the accused as a facet of natural justice and fair play while reversing bail. Prima facie for purposes of bail, is the clear absence of sanction from appropriate authority fatal to initiation itself including arrest?
“90 percent of what is stated by way of adjectives by CBI is nonexistent. CBI wants to believe that we were under martial law in an East Indian state called West Bengal,” he added.
He said the sting (Narada) is from 2014. The accused persons are lawmakers from 2011. “There are two Constitution Bench judgments of the Supreme Court which says sanction for minister should be by Council of Ministers. And for MLAs, it is speaker. They get Governor’s sanction when there is a Constitutional vacuum (between government formation from May 5 to May 9). The special judge hears matter virtually on request by CBI. There is no whisper of mention in that order about hearing being obstructed or access to court being disturbed. However, when order (by special judge) goes southwards, they are come running here with oral prayers. But no whisper of it during four hours before special judge.” Singhvi said.
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Singhvi: “I am giving some starting bullet points under each issue. Will your lordships countenance a 407 order without an application filed under section 407? 407(3) mandatorily requires an affidavit which is absent. The May 19 plea was a retrospective validation of what was done orally on May 17.”
Mehta: “We are not on merits of bail. Our primary argument is could this court have gone into the issue in view of extraordinary circumstances.”
Following more arguments the court adjourned