'We Find You Made Out A Case For Issuing Notice' : Supreme Court On West Bengal Govt Challenge To CBI Probe In Post-Poll Violence Cases

Stating that the State of West Bengal has made out a prima faice case in its challenge against the Calcutta High Court direction for CBI investigation in post-poll violence cases relating to murder and rape, the Supreme Court on Tuesday issued notice on its petition.

"We find you made out a case for issuing notice", observed a bench comprising Justices Vineet Saran and Aniruddha Bose,which considered the Special Leave Petition filed by the State of West Bengal against the August 19 order of the Calcutta High Court.

Saying that it will not give a long posting, the bench posted the petition for further hearing on October 7. Notice was directed to be served on the respondents in the meanwhile.

Senior Advocate Kapil Sibal, appearing for the West Bengal Government, raised the following broad points :

• The law and order was under the superintendence of the Election Commission of India during May 2 to May 5.
• The definition of "post-poll violence" was stretched. Even ordinary crimes which took place after the government was formed were brought under the ambit of "post-poll violence" cases.
  
• The NHRC fact finding committee comprised of members who had open affiliation with the BJP and hence there is an apprehension of bias.
• The NHRC fact finding committee did not follow the proper procedure under the Protection of Human Rights Act.
  
• The High Court order is contrary to the principles of natural justice, as the State was not given adequate opportunity to respond. State was asked to respond to thousands of complaints within 7 days. No investigation can be completed within 7 days. The High Court also did not consider the materials on record placed by the State.
• In a federal structure, the State Government cannot be castigated without giving it adequate opportunity.
• The High Court passed the order without furnishing the copy of the interim report of the NHRC committee to the State. The High Court refused to share with the State the annexures of rape complaints, saying that the victims' anonymity needs protection.
  
• There cannot be en masse transfer of cases to CBI. Before ordering CBI investigation, there has to be a finding of failure on part of local police on a case-to-case basis.

"They said there's inaction on part of the state, etc. What happens is this is flashed all over the country, there's a matter of reputation of the state also. You don't give us an opportunity, you castigate us & you pass an order!", Sibal submitted.

He argued that the High Court proceeded on an assumption that the entire police force in the State cannot be trusted, and there was no factual basis to support this premise.

After hearing Sibal for nearly two hours, the bench said, "Mr Sibal, on the face of it, we find out that you have made out a case for issuance of notice. Let us see what they have to say. We'll hear it in one go when the other side is also there. We find that you've made out a case for notice".

After the bench ordered notice, Sibal sought for an observation from the bench that the CBI investigation will be subject to the outcome of the case.

The bench said that it is understood so even without passing a specific order. "We don't need to say that", Justice Saran said.

Sibal also sought for a direction that the CBI be restrained from registering fresh FIRs. However, the bench said that nothing is going to happen within a week before the next hearing date.

Minute-by-minute updates from the hearing available here.

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