Transfer Power Must Be Exercised Rarely As It Reflects On Judge's Conduct: Siddharth Luthra Tells Calcutta High Court In Narada Case

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 perception of common man. 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.

Luthra, appearing for one of the four arrested Trinamool Congress leaders, told the bench that there are very rare aberrations when it comes to transfer and for that, a very strong case has to be made out.

In the present case, he pointed out, the impugned bail order was silent as to any obstruction during the course of proceedings and the Judge had recorded each and every allegation raised by CBI against the accused. "If the Judge was so scared, would he record all this?" he asked.

"Virtual mode obviates the scope of any interference in a judicial proceeding or order," he added.

Luthra insisted that judicial orders have to be read circumspectly and they cannot be interpretated on the basis of news reports or extraneous allegations made by a party.

In this regard, he relied on the case of Kripashankar Mishra v. Anup Singh Bedi where it was held that: "Official records like an order of the court are much so sacrosanct to be brought into controversy by adducing evidence pro and con as to what they mean."

He also cited provisions of the Indian Evidence Act to the effect that there is a presumption that judicial and official acts have been regularly performed.

"An order has to be read in the manner in which it is written. It cannot be read as CBI interprets," he submitted.

He also cited Supreme Court's verdict in State of Maharashtra v. Admane Anita Moti to argue that in the absence of "sufficient rebuttal" of statement of fact in Court's order, adverse conclusions cannot be drawn.

At this juncture, the Bench opined that if a Judge is under influence, he will take "extra pain" to see that his order does not reflect it.

However, Luthra responded that this may happen only when the Judge has a personal bias.

Physical production of accused not mandatory

CBI has argued that it was prevented from producing the accused before the Magistrate due to concentrated efforts of the accused who organized mobocracy outside its office.

Luthra on the other hand stated that West Bengal state amendments to CrPC permit production of accused via audio-video linkage.

He then referred to Section 317 of CrPC which provides for procedure in case of disruption caused by the accused. The provision provides that a disruptive accused person may be granted exemption from personal appearance.

"Something the law contemplates (virtual production of accused), cannot be a ground to claim vitiation of Court proceeding… Section 317 provides that even 'disruptive accused' can be given exemption. There is a mechanism in law to deal with disruption. Then ostensible non-production of accused cannot be a ground to say that proceedings are vitiated," he argued.

No occasion to arrest

He further pointed out that CBI did not mention about any factum about obstruction in its charge sheet or remand application and therefore, an inference must be drawn that its claims of mobocracy are cooked up.

In this regard, he cited the Supreme Court's order granting bail to ex-finance Minister P. Chidambaram from CBI's custody, after noting that there were no allegations in CBI's remand applications that the he was trying to influence the witnesses and that any material witnesses have been approached.

In this backdrop, he argued that there was no occasion to arrest the accused persons and the discretion exercised by Trial Court under Section 438 CrPC need no interference.

He cited the case of Santosh v. State of Maharashtra where it was held that a man who is cooperating cannot be arrested. "There was no occasion to justify Police custody in this case" Luthra said.

CBI manual mandatory

During his arguments, Luthra also averred that the agency did not follow the processes prescribed in its Manual, which he claimed is a mandatory prescription.

He stated that CBI Manual is issued with consent of CVC, which exercise superintendence over CBI in relation to prevention of corruption offences. He therefore argued that the Manual is binding on CBI and this fact has been noticed by the Calcutta High Court and the Supreme Court in earlier decisions.

Justice Tandon asked Luthra that in case of non-adherence with the Manual, there may be Departmental action against CBI but will that create a right in favour of the accused?

In response, Luthra cited Supreme Court's verdict in Union of India v. Ashok Kumar Aggarwal (2013) where it was observed that "executive instructions have binding force". He added that CBI Manual fills the gap on how to apply a certain provisions of CrPC and is therefore binding.

Newspaper Reports not evidence

So far as news reports regarding protests and obstruction outside CBI office/ Court complex is concerned, Luthra cited several judgments on its stunted evidentiary value.

"Newspaper reports cannot be the basis for filing writ petitions. And we still don't know what CBI wants. Is this to be a writ petition or a transfer petition? This is some new creature. They keep shifting their goals," he told the Bench.

He urged the Court to call for CCTV footage of CBI office which he says would indicate that its rear entrance was unobstructed. He also questioned as to why CBI has not produced its correspondence with Special Court where it had iterated the reasons and circumstances for seeking a virtual hearing.

He added that protests are a party of people's democracy and in many high-profile cases, there have been crowds and protests. However, such extraneous consideration ought not to be taken into account in judicial proceedings.

Read full updates here.

Read CBI's arguments here, here and here.

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

Read Luthra's arguments here and here.