If Accused Have Not Been Arrested For 7 Years, Why Suddenly Arrest Them After Chargesheet? Calcutta HC Asks In Narada Case

When the hearing started, the Solicitor General Tushar Mehta, appearing for the CBI, made a request for deferring the hearing till day after tomorrow, as the CBI has approached the Supreme Court against the May 21 order allowing house-arrest of the TMC leaders, and that the agency is trying to get the matter listed tomorrow in the top court.

The bench did not immediately adjourn the hearing, and held over a two hour long hearing on the issues to be formulated in the case. Full minute-by-minute account of the hearing may be read here.

SG Tushar Mehta, Advocate General Kishore Dutta and Senior Advocates AM Singhvi and Siddhartha Luthra made submissions regarding the issues which can be formulated in the case.

Issues suggested by the Solicitor General

He continued,

"Procedure must be the handmaiden of justice, especially when personal liberty is involved. Is there a valid exercise of Section 407 powers by the hon'ble division bench on May 17 including the power to stay bail already granted?"

The second issue, Singhvi said, is whether the accused were entitled to bail and could the bail already granted be reversed. The third issue he said is the effect of not hearing the accused, as a facet of natural justice and fair play, while reversing bail.

Singhvi also question the legality of arrest as the CBI did not obtain sanctions from the Speaker, before effecting the arrest.

"The sanction from Governor is bad in law since as per Constitution Bench judgments Speaker is the authority to grant sanction with respect to legislators," he submitted.

Singhvi insisted that the triple tests of bail are satisfied in the case and there is no flight risk of accused, as they are MLAs and Ministers, and the arrest happened after 7 years.

In this context, Senior Advocate Sidharth Luthra submitted,

"It is a case where there is abuse of power of arrest. Voice samples were taken in 2019. Without getting a report on the voice samples, which is the only evidence, a chargesheet was filed. Chargesheet was placed before the Governor.

Police custody will not lie after chargesheet. Further investigation against other accused is no ground for police custody of accused, against who investigation is over."

Submissions by Advocate General

The Advocate General raised the following points:

• whether a judicial order can be reversed on the ground of perceived law and order problems? This is an issue.
• Whether an investigation agency seeking such petition on ground of law and order amount to undermining the independence of judiciary.

Advocate General also submitted that the Calcutta High Court has no original criminal jurisdiction and therefore there is the issue whether the CBI prayer to transfer to the HC that case is untenable.

 Background

On 21st May, following a split in the Calcutta High Court Division Bench of Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee hearing the case pertaining to the bail of four Trinamool Congress leaders – Firhad Hakim, Subrata Mukherjee, Madan Mitra and Sovan Chatterjee, who have been in custody from May 17 since their arrest by the CBI in the Narada Scam case, the matter was referred to a larger Bench.

Justice Banerjee had passed an order allowing interim bail, while ACJ Bindal had disagreed and stated that the four arrested TMC leaders must be kept in house arrest, which led to the reference. Accordingly, for the timebeing, the accused were directed to be kept under house arrest and were permitted to access files, meet officials through video-conferencing so as to allow them to discharge their functions.

The Bench had rejected the request made by the CBI to stay the order for house arrest. It had also declined the requests made by the TMC leaders' counsels for their release on interim bail.

Later, ACJ Bindal constituted a 5-Judge Bench comprising of ACJ Bindal, and Justices IP Mukherjee, Harish Tandon, Soumen Sen and Arijit Banerjee, to hear the matter.

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.

The next day, the TMC leaders filed applications seeking recall of the stay order on the ground that it was passed without issuing notice to them.

On May 19, the Bench heard Solicitor General Tushar Mehta for the CBI, and Senior Advocates Dr. Abhishek Manu Singhvi and Sidharth Luthra for the arrested TMC leaders. Singhvi and Luthra had prayed for interim bail on the ground that the accused are aged persons having comorbidities. The Bench was told that three of the arrested persons were shifted to hospital and one of them, Sovan Chatterjee continued to be in jail.