Police Custody Is Not Permissible After Submission Of Charge Sheet: Sr Adv Siddharth Luthra Argues Before Calcutta High Court In Narada Case

A 5-Judge Bench comprising of Acting Chief Justice Rajesh Bindal, and Justices IP Mukherjee, Harish Tandon, Soumen Sen and Arijit Banerjee is seized of the matter.

Today, Senior Advocate Siddharth Luthra, appearing for one of the four arrested Trinamool Congress leaders, told the bench that the question of custody and remand does not arise once the investigation is complete and charge sheet is filed.

"Investigation includes arrest and where investigation is concluded, arrest has no meaning. Arrest was neither warranted nor permissible," he said referring to the case of KK Girdhar v. MS Kathuria in Delhi High Court.

He also cited Supreme Court's verdict in HN Rishbud & Inder Singh v. State of Delhi, 1955 SCR (1)1150, which has been followed by a Calcutta High Court in a recent judgment.

Narada Case : Will Alleged Unlawful Arrests Give Right To 'Mobocracy'? Calcutta High Court Asks

However, Justice Mukerji opined that the power of investigating agency to arrest an accused person after filing of charge sheet remains theoretically. "The necessity to arrest might perhaps not be there. So, intensity of right to bail may become higher. But arrest can be made," the Judge said.

Luthra then argued that CBI's argument that it could not produce the accused before the Special Court because of an alleged mob is fallacious for the reason that the state amendments made by the West Bengal Government in Section 167 of CrPC enable production of accused before Magistrate via audio-video linkage, since pre-covid era.

"Therefore, CBI's replete argument that they could not produce the accused before Magistrate/ could not seek custody is fallacious. VC production is the norm in West Bengal," Luthra submitted citing a recent Calcutta High Court order permitting actor Mithun Chakraborty to participate in investigation for alleged incitement to post-poll violence, by way of video conference.

Similarly, he cited another provision of the state amendments that allows Court to peruse the case diary during inquiry or Trial.

"This is neither an inquiry nor a Trial. Admittedly, it is only a bail application. So question of not being able to produce case diary doesn't arise," Luthra argued.

He also claimed that the rigours of CrPC and the CBI Manual were not followed by the agency at the time of arrest, which led to an elaborate discussion on whether the manual is of binding nature or not.

Justice Tandon pointed out that the manual is for administrative working of agency and may not have a statutory flavour. Concededly, Luthra insisted that the CBI Manual has been recognized by a Constitution Bench of the Supreme Court in Lalita Kumari case and that the agency has to comply with its internal mechanism.

He pointed out that Chapter 11 of the Manual obligates the CBI "scrupulously follow" Section 41 of CrPC. It also provides that information about arrest of an MP must "immediately" be given to the Lok Sabha Speaker or Rajya Sabha Chairman, as the case may be. However, he alleged, none of these prescriptions were complied with by the Central agency.

Luthra continued that the arrest of accused TMC leaders in this case was unlawful for various reasons, and therefore bail was inevitable. "If arrest is wrong, Bail has to follow," Luthra argued citing the Munawar Faruqui case in Supreme Court.

In this regard, he referred to MLA Madan Mitra's (unrebutted) affidavit which claims that Mitra was picked up from his house on May 17 at 8.10 am, without any warrant or grounds. However, as per CBI's affidavit, the time of arrest is 8.45 am.

Luthra claimed that the arrest memo was prepared at 8.45 am at CBI's office in Nizam palace and that is a clear violation of Supreme Court's judgments in Nandini Satpathy v. Dani (1978) and DK Basu v. State of West Bengal (1977).

"They act in breach of Supreme Court's judgment and then come up with a new word mobocracy?" he remarked.

He further informed the Bench that the CBI had earlier said that custody of accused is not required and there is no need for further investigation. However, the agency proceeded to conduct further investigation without seeking Magistrate's permission under Section 173(8) CrPC. Reliance was placed on Vinubhai Haribhai Malaviya v. State Of Gujarat.

"This is not the subject matter of proceedings before us. Scope of proceedings are unnecessarily being expanded. Question of validity of arrest may arise collaterally but it is not an issue before us," Justice Mukerji told Luthra at this juncture.

Luthra then clarified that he is raising these points because the Solicitor General said that their right of further investigation has been hindered.

He pointed out that as per CBI's own processes, a final report is prepared when investigation is concluded. "In this case there was a final report. Then as per their own process, where was the question of arrest?" Luthra asked.

He also claimed that the CBI is seeking "interpretation of a judicial order" passed by the Special Court on May 17, and the same is unheard of in law. "When a Judge puts pen to paper, that is final," he argued.

The matter is will now be taken up tomorrow at 11 am.

CBI moved the High Court seeking transfer of Trial proceedings from the Special CBI Court to the High Court on the ground of 'mobocracy' and perceptional bias. It is represented by Solicitor General Tushar Mehta.

Dr. AM Singhvi who concluded his arguments yesterday has claimed that public perception is not a valid ground in law & question is whether May 17 protest affected administration of justice.

Read full updates here.

Read CBI's arguments here, here and here.

Read Senior Advocate AM Singhvi's arguments here, here and here.