Narada Case: Calcutta High Court Reserves Orders On Applications Filed By WB Govt, CM Mamata Banerjee & Law Minister For Accepting Their Affidavits

A 5-Judge Bench comprising of Acting Chief Justice Rajesh Bindal, and Justices IP Mukherjee, Harish Tandon, Soumen Sen and Arijit Banerjee said it will consider the reasons set out for not filing the counter affidavits on time and will deliver its verdict tomorrow.

The development comes after the Supreme Court set aside Calcutta High Court's order which had refused to take on record their affidavits saying that they waited for the arguments in the case to be substantially completed before seeking to place on record their pleadings in response.

The Top Court directed the legislators to file an application before the High Court stating the reasons for not filing such affidavits earlier and requested the High Court to decide the applications first before proceeding with hearing on merits.

The CBI has argued that the Respondents took a calculated risk by not filing their affidavits after issuance of notice. The State on the other hand claims that there was no delay in filing of affidavits and even otherwise, the Court must allow full facts to be presented before it.

Courtroom Exchange

Advocate General Kishore Datta submitted before the High Court that State is responsible for maintaining law and order in the State and thus, it is best suited to show the actual facts of the alleged incident and assist the Court to decide if the mobocracy argument raised by the CBI sustains.

"Records of alleged events are with State and thus, its affidavit must be taken on record to ascertain the true picture of law and order situation on May 17…Providing security is the job of State. Therefore, it should have an opportunity to present actual state of affairs before this Court, indicating where the State sprang into action and where it failed," Datta said.

"There will be no loss of time if affidavits are taken on record," he added.

Datta also relied on Rule 38 to claim that the parties are given 4 weeks' time (in this case starting from May 27) to file their affidavits. Hence, he claimed that their affidavit was affirmed on June 5 and there was no delay on their part.

However, the Bench asked the AG what will happen if arguments are concluded before expiration of 4 weeks.

"Can you come and say after entire hearing is over that my 4 weeks have not expired? We have to take this Rule to logical end," ACJ Bindal remarked.

Senior Advocate Rakesh Dwivedi, appearing for CM Mamata Banerjee and State Law Minister Moloy Ghatak, submitted that even assuming that there has been some delay in filing of affidavits, the Bench may not proceed on principle of non-traverse.

"It is settled that mere delay is not a sufficient ground for rejecting pleadings and evidences that are material for adjudication of a case…This is not a simplictor case of transfer. It involves vital findings, nullification of bail order, serious impact on the Respondents," he submitted.

Both Datta and Dwivedi argued that investigating agencies are supposed to ascertain the truth and present it before the Court even if it is not in support of their case.

"CBI ought not to oppose our affidavit because it's not a civil proceeding where some grave loss will occur to the institution personally. Even assuming some injury happens, is it irreparable? CBI can file a rebuttal, produce CCTV footage from May 17. Let all facts be placed before the Court. Then nobody will be prejudiced," Dwivedi said.

Opposing the applications, Solicitor General Tushar Mehta pointed out that AG Datta waived notices for the CM & Law Minister on May 27 but, he was present in the proceedings since May 17.

"So, he was aware that question of rule of law, breach of peace and public tranquility was involved," Mehta said.

He added,

"By not filing the affidavits, the CM and Law Minister took a calculative chance and therefore, delay holds significance. It is not a case of not getting an opportunity to respond. Not responding to notice of a Constitutional Court is not only arrogant but also unpardonable."

At this juncture, Justice Soumen Sen said that while exercising supervisory jurisdiction, Court can always ask for record as to what was the state of affairs on the alleged date of incident.

"Non-traverse may not be applicable strictly. Merely on assertion of CBI, this Court cannot say that mobocracy occurred," Justice Sen said.

Justice Mukerji also asked Mehta if the Court can take the affidavit on record and then examine judicially, whether the affidavit is an afterthought or not.

As Mehta conceded to this suggestion, he further urged the Bench to impose a cost on the Respondents for delay in filing of affidavit, even if the same is taken on record.

"Notice means you are called upon to say something. But you don't say anything till arguments are over? You can't sit on fence and hope that the application will be dismissed on some ground.

This Court must send a message that taking court proceedings lightly will not be treated on a light pedestal. There must be some cost imposed which may go to the Advocates Welfare Fund," the SG submitted.

During the course of hearing, Justice Mukerji also expressed anguish at the fact that the Bench has been entangled into procedural aspects instead of adjudication of merits.

"Arguments in these kind of applications have to be very short, otherwise it gives a very wrong signal. First you came here with your affidavit. Then you appealed to the Supreme Court. Now you have filed this application. This is leading to a very 'protracted hearing'," Justice Mukerji told the AG.

He added, "Courts are concerned with dispensing justice. If procedural aspects take so long, what impression will this give to the public about functioning of Judiciary?"

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.

The accused TMC leaders are represented by Senior Advocates Dr. AM Singhvi and Siddharth Luthra. They have argued 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.

Read Luthra's arguments here, here, here and here.