Narada Case : Calcutta High Court To Hear Tomorrow TMC Leaders' Plea To Recall Stay On Bail

After conferring with each other, the bench led by Acting Chief Justice Rajesh Bindal said, "We will hear the recall applications tomorrow morning."

The Court has also allowed the request for impleading State of West Bengal as a party to the proceedings.

The development comes after Advocates appearing for the arrested leaders urged the High Court to take up the issue of bail first, as it involves the question of personal liberty of the arrested persons, who are presently under house arrest.

Solicitor General Tushar Mehta, appearing for the Central Bureau of Investigations, made most of the submissions during the two hour long hearing which commenced at 2 PM today.

The SG sought a declaration that the May 17 proceedings of the Special CBI Court, Kolkata - which granted bail to the 4 TMC leaders - are vitiated on account of the mob pressure created by Chief Minister and Law Minister through mass protests and a direction to transfer of the case outside Calcutta.

While the SG was making his arguments, Senior Advocate Bandopadhyay, representing the accused, interjected to make an emotional appeal before the bench to consider the recall applications first.

"In a matter of personal liberty, the recall applications cannot be kept aside", he said.

The Advocate General also supported this request, referring to Article 226(3) of the Constitution, which says that applications seeking vacation of ex-parte stay must be decided within 14 days. So, as per the spirit of the Constitution, the recall applications need priority consideration, the AG said.

"Article 226(3) casts a duty on the court that a vacation application of an ex-parte order must be heard within 14 days. Therefore, our applications have to be heard first", Bandopadhyaya added to the AG's submission.

A Bench comprising Acting Chief Justice Rajesh Bindal, Justices IP Mukerji, Harish Tandon, Soumen Sen and Arijit Banerjee is hearing the bail of four Trinamool Congress leaders - Firhad Hakim, Madan Mitra, Subrata Mukherjee and Sovan Chatterjee- who have been under judicial custody since their arrest by the CBI on May 17 in Narada case.

The bench has also requested the lawyers to send a one-page note on what they are going to argue tomorrow.

COURTROOM EXCHANGE

Protests against arrests may encourage gangsters to gherao authorities: Solicitor General

The Solicitor General urged the High Court to exercise its powers under Section 482 of CrPC and 226 of the Constitution to declare the court proceedings dated May17 as vitiated and non-est.

He stated that that the dharna held by the Chief Minister of West Bengal before the CBI office and the protest led by Law Minister in front of the court complex to protest the arrest of four leaders was "well-designed and orchestrated attempt" to prevent the CBI from performing its functions.

"Apart from seeking transfer, I am also invoking jurisdiction under 482 CrPC, 226 and 227 of Constitution seeking a declaration that entire proceedings of May 17 post-production of accused are vitiated and non-est. The Issue is of seminal importance relating to rule of law. In this State, similar instances are happening frequently, which are placed on record by way of affidavit," the SG submitted.

He argued that today it is a case of political leaders indulging in "methodical and orchestrated attempts". However, if this "mobocracy" is not checked by the constitutional court, tomorrow a situation may arise, where a gangster is arrested and his henchmen gherao the CBI office and attempt to derail the investigation.

"The fundamental principle is whatever order passed by a civil or a criminal court, must inspire confidence. Public confidence in system is important. A common man's perception of justice must be the guiding principle. It is his confidence which makes this system going. Therefore, the perception shall have to be that of the common man.

If the Court does not check this, this may not confine to this state alone and may spread to other state, and this may not confine to politicians and may spread to gangsters," the SG argued.

He urged that the facts of this case are peculiar and none of his arguments may be treated as attributing anything to the Judge who granted the bail.

Justice Mukerji, speaking for the Bench, told the SG that as a court of law, it can only check if the alleged mobocracy has influenced the Judge who passed the order.

"We can only take into account the legal factors considered by the judge. You have said you are not attributing anything to the judge. If there is nothing on record to show if the learned judge was influenced, how can we as a court of law look into other factors," the Judge observed.

Can a judicial order be set at naught on the basis of public perception? Bench asks

The SG clarified that he meant he is not attributing bias to the judge. But the question is what will be perception of the common man.

"The question is not whether the bail granted was right or not. For argument sake, presume arrest is illegal. The question is whether the perceived intimidation could shake the common man's faith in the system."

He insisted that if the CBI's motive was to seek cancellation of bail, they would have filed application under Section 439(2). However, the agency seeks to raise more fundamental questions pertaining to the rule of law.

"The question now is can they seek bail by such conduct" the SG said while claiming that incidents like those that occurred on May 17 are happening frequently in the State of West Bengal.

"Unless checked, this can get replicated in other states. This can be adopted by politicians, particular communities.

This 5-judge bench has not assembled to decide the question of whether bail has to be granted. We are not on that minimalistic question. I am on a more fundamental, more constitutional, more rule of law argument," he said.

At this juncture, Justice Mukerji interjected and told the SG that there are umpteen number of high profile arrests in country, where there is public outcry. "Unless you show that the learned judge was influenced by it, this will be counter-productive," the Judge said.

Justice Soumen Sen added, "Can a judicial order be set at naught on the basis of a perceived injustice?"

The Solicitor General responded, "That is the question. Justice must also be seem to be done."

Unconvinced, Justice Harish Tandon remarked, "I don't think the emotions of common man, dehors the rule of law, would avert the dispensation of justice…Common man may go by their emotions or sentiments. We have to see rule of law framework. Even if the emotions are high, rule of law does not permit them."

The SG continued to urge, "This system of barging into police station for supporting accused has replaced the constitutional rule of law. So let us not deviate. Kindly examine that."

Justice Arijit Banerjee told the SG that the Bench is also faced with the question of granting bail to the accused as four recalling applications have been filed against stay of bail.

"The judgments you were talking about public perception, would they be relevant if this court decides whether bail to be granted," Justice Banerjee asked.

He then urged the Bench to not reduce this case to a mere issue of bail, as it involves an issue of seminal importance relating to rule of law.

"Your lordships are dealing with a case where constitutional functionaries laid a seige at the CBI office at the behest of the accused. Such a situation is not normal…Is mob sacrosanct? This is mobocracy. This is not democracy. If it is illegal arrest, go to a court of law," he said.

Public intimidation is not a ground to cancel bail: Singhvi

Senior Advocates AM Singhvi, Sidharth Luthra and Bandhopadhyay urged the High Court to take up the recall applications as they pertain to the personal liberty of the detenus under house arrest.

Singhvi argued that public intimidation is not a ground to cancel bail. "These people are entitled to bail as per settled tests of bail. All "delicious questions of law" raised by Mr. Mehta can wait," he submitted.

However, Justice Mukerji told Singhvi that the question is not just about grant of bail. "If bail is granted, it will dispose of the entire proceedings. So, this becomes a vexed question. It is not very simple," the Judge said.

What jurisdiction is this court is exercising?: Bandopadhyay

Senior Advocate Bandopadhyay, expressing astonishment at the court proceedings, said :

"I am really surprised what jurisdiction this court is exercising. I am pained. I am really pained. We are not here for academic debate. We are not hear to listen to anyone's speech. In my 40 years of practice, I have never seen such a thing in Calcutta High Court"

He urged the Bench to first consider the issue of liberty.

"Hearing will go on for 4-5 days and my clients will remain in custody! In a matter of liberty, the recall applications cannot be kept aside. I have answers to all Solicitor's submissions. But let the recall applications be heard first," he submitted.

ACJ Bindal, in a lighter vein, told Bandopadhyay that everyone is in house arrest because of the lockdown.

However, he insisted that due house arrest, Firhad Hakim who is serving as a Cabinet Minister of Urban Development and Municipal Affairs Government of West Bengal, could not do anything whilst people were suffering due to the Yaas cyclone.

The Advocate General supported the submission that application for recall of stay order that was passed by the High Court on May 17, presumably under Article 226, must be heard first.

"Kindly see Article 226(3), which says recall application of stay must be heard within 2 weeks. So as per the spirit of constitution, recall application must be heard first," the AG submitted.

Solicitor General Mehta on the other hand argued that Article 226(3) merely provides that when the main matter is not heard, at least the recall applications must be heard.

Background

The CBI had approached the Supreme Court challenging the order allowing house arrest. However, after adverse observations from the Supreme Court, the central agency chose to withdraw its petition from the Supreme Court on May 25.

On May 17, the Division Bench had stayed the bail granted by the Special CBI Court at Kokata to four Trinamool Congress leaders - Firhad Hakim, Madan Mitra, Subrata Mukherjee and Sovan Chatterjee - who were arrested dramatically by CBI on May 17.

The bench passed the stay order after a dramatic late-night hearing held on the basis of a letter sent by the CBI seeking transfer of the case to the High Court citing "unprecedented mob pressure" exerted on the lower court by the mass protests led by Chief Minister and the Law Minister against the arrests of the TMC leaders.