Narada Case : Calcutta High Court Refuses To Go Into Sanction Issue Saying It Might Affect Trial

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 Dr. AM Singhvi, appearing for the accused TMC leaders, addressed the Bench on three issues: (i) Issue of mobocracy; (ii) Issue of sanction; and (iii) Issue of Transfer.

He argued that arrest of accused is void in the absence of a proper sanction issued by the competent authority.

Singhvi pointed out that virtue of accused being MLAs, permission of Speaker of Legislative Assembly is mandatory to arrest them. So far as arrest of sitting Ministers is concerned, he said, sanctioning authority is the Council of Ministers. Whereas, in the instant case, arrest was effected based on Governor's sanction.

However, the Bench refused to make any remarks on this issue as the same is yet to be decided by the Special Judge.

"We are today concerned with whether court proceedings were vitiated. Sanction issue is pending before Special Court," Justice Soumen Sen said.

Justice Harish Tandon added that the Bench has to be very cautious even while making prima facie remarks so that they do not affect main trial. "Suppose we comment on jurisdiction, then that has a serious effect during maintainability arguments," he said.

The Bench will continue hearing the case tomorrow.

Mobocracy Issue

Yesterday, Singhvi argued that public perception of bias is not a valid ground in law for setting aside any judicial proceeding and that the question is whether May 17 protest had any real impact on administration of justice.

Today, he denied the allegations made by CBI on accused of making an 'orchestrated attempt' to impede the administration of justice by calling for public demonstrations. "CBI gave no notice of arrest. So, there was no occasion to orchestrate protests," Singhvi submitted.

He insisted that the allegations of 'mobocracy' made by CBI are false, malicious and an afterthought of their downfall before the Special Court. He pointed out that there is no mention of any law and order situation in CBI's remand application or in oral arguments before the Special Court.

"Hearing lasted 3-4 hours but no mention of obstruction was made by CBI. Such belated plea of mobocracy seems to be motivated to overturn bail order," he said.

He stated that the agency has deliberately and consciously not produced CCTV footage of its office, to conceal facts.

"It is open to CBI to file CCTV footage of the day. But they have not. There is a principle of adverse inference in law of Evidence. It is very important," Singhvi said.

He alleged that no one entered CBI office and all their entry/ exit points were unobstructed.

"Usual movement of people in CBI office and Court continued. There was no obstruction. This can be verified through cell phone location of CBI officials," he submitted.

At this juncture, Justice IP Mukerji said that it is an admitted position that there was some unrest and public outpour of emotions in the backdrop of accused' arrest. He asked if future apprehension of public reaction may be a ground to transfer the case.

"General convenience of parties is a ground for transfer under Section 407 CrPC. Tomorrow, if accused are not acquitted and sentence is to be handed out, what will be the public reaction? Today, we cannot assess the gamut of such reaction. Likelihood of public reaction may have some effect on the Judge," he said.

Responding to this, Singhvi stated that not a single complaint has been received by Kolkata Police by the CBI in this regard. He stated that on one hand, ninety per cent of CBI's arguments are on mobocracy but it is falsely said that thousands of persons were present outside CBI office. "Unverified and unauthentic photographs have been submitted of media persons who were present at the site," Singhvi alleged.

He also argued that no one entered the Courtroom and denied that there was any terrorizing effect on Special judge. "Law Minister was not present in the court room at any time. CCTV evidence will show it," he said.

He then referred to the case of Jatinderveer Arora v. State of Punjab, to argue that general allegation of surcharged atmosphere is not sufficient to transfer trial from one Court to another.

Sanction Issue

Singhvi alleged that the CBI had misused the 'Constitutional Vacuum' of five days between swearing in of Chief Minister Mamta Banerjee and her cabinet, and made a '1000 yard sprint to Raj Bhavan' to get sanction when Council of Ministers and Speaker were not sworn in.

He pointed out that the FIR against the accused is pending since 2017. However, sanction was granted by the Governor on May 7, after the Chief Minister was sworn in new but before the cabinet took oath.

"This whole case reeks of malice. Sanction was sought by CBI between swearing of new CM and swearing of cabinet. Either someone did no research or did extra research. They sought to bypass the Council. In future, no CM will make the mistake of swearing in before their cabinet because some misguided soul will interpret it as 'Constitutional vacuum'" Singhvi said.

He pointed out that virtue of accused being MLAs, permission of Speaker of Legislative Assembly is mandatory to arrest them. reliance was placed on Supreme Court's 3:2 majority judgment in PV Narasimha Rao v. State to argue that permission of Speaker is mandatory to prosecute the accused.

So far as arrest of sitting Ministers is concerned, he said, sanctioning authority is the Council of Ministers. "The only caveat he says is that the Council's decision may be overruled by Governor. But it has to go the Council first," he insisted.

The Bench inquired if the accused have challenged Governor's decision on this ground. Answering in the negative, Singhvi said that the High Court may form a prima facie opinion that the sanction was improper. "In bail matters, Courts often express their prima facie opinion," he said.

However, Justice Sen said that in a case for transfer, it is not appropriate to go into merits of case.

"We have to remain very cautious to not affect main Trail. Suppose we comment on jurisdiction, then that has a serious effect during maintainability arguments," Justice Tandon added.

Singhvi then conceded and left the issue at Bench's discretion.

Transfer Issue

Singhvi stated that under Section 407, an application in writing must exist. However, there was no mention of Section 407 in the two emails that CBI sent to the High Court on May 17. He alleged that CBI gave 'retrospective validation' to High Court's order dated May 17 by filing a formal application for transfer on May 19.

He further argued that it would not be prudent to exercise power of transfer when the Special Judge has not given even a hint regarding obstruction or impedance of Court proceedings. "Virtual hearings by their nature automatically negate the pleas of Section 407 on ground of mobocracy, in 99% cases," he insisted.

The Bench will continue hearing Singhvi's arguments on issue of transfer tomorrow.

Read full updates here.

Read previous reports here:

• Narada Case : 'Question Is Whether Protests Had Any Impact On Judicial Administration', Singhvi Argues For TMC Leaders In Calcutta HC

• 'Procedure Becomes Important When People's Rights Are Involved': Calcutta High Court Tells CBI In Narada Case
• 'Solitary Incident Not Justifiable Ground For Transfer': Calcutta High Court Tells CBI In Narada Case
• If Hearing Was Virtual & Judge Didn't Know People Were Protesting Outside, How Is There An Influence? Calcutta HC Asks CBI In Narada Case
• Narada Case : Judges Of Division Bench Can't Be Part Of 5-Judge Bench, Argues WB Advocate General