'Is Protesting In Streets The Way To Respond When Matter Is Considered By Court?' : Calcutta HC Asks In Narada Case Against Trinamool Leaders

During the hearing, Acting Chief Justice Rajesh Bindal asked if protests are a way to respond when the matter is being considered by a Court of Law. He also asked if political leaders have a duty to not incite their followers.

Senior Advocate Dr Abhishek Manu Singhvi, appearing for three of the four arrested TMC leaders, said that the protests were peaceful expressions of outrage against "unlawful arrests" and that they did not impede neither the functions of the CBI nor the proceedings in the Special CBI Court.

Singhvi stressed that the Chief Minister had made an appeal for peaceful protests and that there were no exhortations for violence. He dubbed the Chief Minister's protests "Gandhian".

"You say CM went to CBI office to protest..Gandhian protest..peaceful protest. But is it the way to respond when the matter is considered by Court? By protesting in streets?", Acting Chief Justice asked.

To this,  Dr. AM Singhvi appearing replied that the case can be fought legally on merits and the issue of political vendetta can be protested democratically.

"It would be negation of democracy to say that just because the matter is before court you cannot peacefully protest outside. Merely because a matter has gone to Court, it will not stop democratic dissent," he added.

Singhvi responded, "Does the CM going to CBI create a situation where a judicial order cannot be passed by a court of law after a virtual hearing of 4 hrs?"

It is also his case that mere presence of protestors outside Trial Court did not affect the judicial proceedings as the hearing was virtual.

So far as arrests are concerned, Justice Banerjee noted that a chargesheet has already been filed in the matter.

"Do you have a case that they did not cooperate?" Justice Banerjee asked CBI.

He suggested that in these times of pandemic, Court may put more stringent conditions on the Respondents. "Is it necessary to put them in jail or correctional homes? You have to address us on that issue," he said.

Solicitor General Tushar Mehta appearing for CBI urged that the Respondents must be kept in custody to prevent them from influencing witnesses.

"The question of bail is not necessarily about they cooperating or not cooperating. The question is linked to their ability to influence the investigation or trial… All the four accused are highly influential and can influence the witnesses or the further investigation," he responded.

He assured the Court that if the accused have medical issues, they will be properly dealt with. Separate account of the Solicitor General's submissions may be read here.

Full live account of the hearing may be read here.

Factual Matrix

A case was registered against the accused persons under the Prevention of Corruption Act, allegedly for accepting illegal gratifications from one sting operator namely Mathew Samuel. They were arrested on Monday morning and were thereafter produced before Special CBI Court.

It was immediately after their arrest that a significant number of followers gheraoed the CBI office and did not allow the CBI officers to move out of their office to enable them to produce them in court. Moreover, Chief Minister of the State, Mamata Banerjee also arrived at the spot and sat on dharna along with the followers seeking an Unconditional release of the accused persons was sought from the CBI office.

Subsequently, a Special CBI Court granted bail to the accused TMC Leaders on May 17.

This order came to be stayed by a Division Bench of the High Court in an urgent sitting held that night, taking exception to the presence of state law minister Moloy Ghatak, with 2000-3000 supporters in the premises of the trial court which was hearing the bail applications.

"Confidence of the people in the justice system will be eroded if such incidents occur, while political leaders arrested, are being produced in the Court," the High Court had said.

CBI has filed an application for transfer of proceedings under Section 407 of CrPC. It has also invoked the writ jurisdiction of High Court under Article 226 of the Constitution and Inherent Powers under Section 482 of CrPC, seeking to declare Trial Court proceedings of May 17 void and non-est in law.

CBI stopped from doing its job: SG Mehta

It is the CBI's case that in light of "unprecedented pressure tactics and hooliganism" adopted by the Respondents in the form of overcrowding, both at the Trial Court and outside its offices, the proceedings before the Special CBI Court dated May 17 stand vitiated.

The SG submitted that the incident was an "orchestrated attempt" of the Respondents to frustrate the course of justice and to stop CBI from discharging its functions.

"There were unprecedented extraordinary circumstances… I don't think anywhere else in the country such shocking incidents have happened where a premier investigating agency, which has been entrusted with the investigation by this court, is stopped from doing its job," he said.

He further submitted that the bail was granted by the Trial Court on the first day and the CBI was not given an opportunity to respond to the application.

"We could not even place the case-diary before the court because we were physically restrained," SG said referring to the huge gathering outside its offices due to the CM's dharna.

He added,

"All this was happening in an orchestrated manner to stop the CBI from seeking police custody of the accused approaching the court… Thousands of party workers laid a seige on the CBI office. There was stone-pelting and officers were heckled and threatened.

Due to these circumstances, the accused could not be medically examined and could not be physically produced before the Court, and CBI could not submit the records before the Court. Therefore, accused were produced only virtually."

He continued that that the CBI did not seek policy custody of the arrested accused because of the 'terror' situation created by the mob. "CBI did not think seeking police custody was safe," he remarked.

Further referring to the gathering outside the Trial Court led by Law Minister Moloy Ghatak, SG submitted,

"The Law Minister reached the court premises with his supporters and remained there throughout the hearing. This had a terrorizing effect not only on the prosecution but also on the administration of justice.

The agency was terrorized not to effectively oppose the bail and not to seek police custody. The agency was prevented from producing the case diary before the Special Court. Therefore, the prosecutor could not effectively oppose bail."

He stated that the CBI has also invoked Section 482, which is applicable against abuse of process of law.

"If this is not abuse of process of law, I don't know what can be abuse of process of law. They now want to vacate this order, so that their orchestrated and well-designed attempts to frustrate justice are successful," he said opposing the recall petition.

No obstruction was caused, hearing was Virtual: Singhvi & Luthra

Senior Advocate Dr. AM Singhvi appearing for the TMC leaders vehemently opposed CBI's appeal. "What is the urgency for arrest seven years later...Supreme Court has directed to release even hardened criminals taking note of COVID," he submitted.

He stated that a wrong impression was given to the High Court regarding overcrowding in Trial Court and consequent intimidation, as the CBI was arguing 'virtually' before the Special Court.

"The Special Court has not expressed any difficulty… Special Judge has not made any remotest suggestion of being over-awed," he said.

At this juncture, ACJ Rajesh Bindal intervened, "The Special Judge should have recorded that he was being pressurized?"

"At least there should be a hint, a suggestion," Singhvi responded.

Senior Advocate Sidhharth Luthra also submitted, "The learned Special Judge was hearing the case through VC. The Special Judge was not confronted by anybody."

At this juncture, ACJ Rajesh Bindal said that it is CBI's case that it was unable to produce the accused before the Trial Court because people were sitting outside its office.

"There is a charge sheet filed. There is a remand application filed on the same day. It has no mention of law and order situation," Luthra responded.

Right to Protest against unlawful arrest: Singhvi

Senior Advocate Singhvi alleged that the arrests were a reaction to "bitter election results" and CBI did not obtain sanctions from the Speaker, before effecting the arrest.

He argued that if there is a perception of unlawful arrest, people have a right to protest, so long as the lawful functions of the agency are not restrained.

"In this context, there was outrage. There is right to feel outraged. That is the meaning of democracy. There was expression of anger against arrest after 7 years…

As it happens in democracy, there was protest by co-ministers, co-MLAs. But there was no hindrance to the CBI. The protestations are being used as an excuse by CBI now," he submitted.

He stated that CM Mamta Banerjee went to the CBI in the capacity as an MLA. "What power she has over the CBI or Special CBI Court? CBI is not required to take orders from CM. If CM says 'North', CBI will say 'South'" he said when ACJ inquired about the CM's presence at the site.

Read more here: Narada Case- "Do You Deny CM Sitting In Dharna In Front Of CBI Office"? Asks Court, "It Was A Means Of Democratic Protest": Dr Singhvi

Don't leaders have a duty to not incite followers: ACJ Bindal

As Singhvi argued that CBI is using the protests as an excuse to subvert the grant of bail and that the gathering did not affect Court proceedings, ACJ Bindal inquired,

"What is the duty of the leaders? Should they stand to disperse the followers or to incite them?"

Dodging the query, Singhvi responded, "I will answer as a lawyer. I keep Chinese walls between by different roles. No leader should do anything to impede the course of justice."

He added,

"There is a democracy tax. Protests will have something disorderly or chaotic. That is the price we pay for democracy."

Singhvi informed the Bench that the Chief Minister had appealed for peaceful protests. "CM's dharna was a 'Gandhian way of protest' without any exhortation of violence," he said.

"Stone-pelting is Gandhian?," ACJ asked.

"Certainly not. I can show video of Minister getting down from car and asking protestors to maintain calm and make way. None of these told by CBI. That is why it was important to issue notice (on recall application)" Singhvi responded.

Unconvinced, ACJ remarked, "You say CM went to CBI office to protest...Gandhian protest...peaceful protest. But is it the way to respond when the matter is considered by Court? By protesting in streets."

To this, Singhvi submitted that the response van be both legally and democratically. "The case can be fought legally on merits and the issue of political vendetta can be protested democratically," he said.

"It would be negation of democracy to say that just because the matter is before court you cannot peacefully protest outside. Merely because a matter has gone to Court, it will not stop democratic dissent," he added. In this context, he cited the example of farmers protests.

Transfer application not maintainable: Singhvi & Luthra

Senior Advocate Siddhrth Luthra argued that CBI's application for transfer under Section 407 CrPC was not maintainable and the stay order could not have been passed.

Adding to this, Singhvi claimed that the CBI did not mention of the transfer application in the letter served on them. "Section 407 mandates the filing of an affidavit which was not present in the case," he said.

He stated that they were not even given notice of hearing before the High Court. "No court can stay interim-bail without giving notice to the accused," he argued.

He alleged that "Principles of natural justice were violated. Aged persons are arrested in a 2014 sting. The stay order was obtained by complete false representation and suppression of facts."

Singhvi insisted that the correct course would have been to challenge the order of Special Court.

"My learned friend is entitled to appeal against the bail order. But the majesty of law requires that the wrong committed by CBI by moving the court in parallel must be corrected by releasing them forthwith," he said.

Police custody not required after filing of Charge sheet

Senior Advocates Singhvi and Luthra urged the Court to recall the stay on bail as the investigation in the case is complete and charge sheet as already been filed.

"Accused are in hospital. Where can they run away?" Singhvi said.

Luthra added that the investigation against the accused are over and chargesheet has been filed. He told the Court that even voice samples of four accused were collected and sent to Forensic test.

"On the day of filing chargesheet, they were arrested. Police custody is needed only for investigation. Where is the question of police custody after chargesheet? You have not arrested us for four years. Where is the need for arrest on the day of filing chargesheet?" Luthra remarked.

Senior Advocate Kalyan Bandhopadhyay, who appeared for the accused before the Special CBI Court, told the Bench that before Special Court, CBI asked for police custody.

"The Magistrate asked them thrice if they were asking police custody. CBI said yes. Later they changed the stand during the course of hearing."

He also said that CBI had sought for sanction from Governor in the month of January 2021, when the government was there. Sanction was finally given on 9th May. "If the Governor keeps the matter for five months, what is the need for custody now?" he remarked.

Accused' Health conditions warrant bail

Singhvi and Luthra also cited the health conditions of the accused to plea for bail. The Bench was informed that Subrata Mukherjee is 75 years old and has been an MLA for 50 years.

"There is no flight risk. Other accused are also aged with comorbidities," Singhvi said.

Luthra submitted that his client Sovan Chatterjee is in custody and he is a COPD patient and a high-risk case for COVID. "He is not an MLA and not a person in power," he submitted.

Opposing these grounds, SG Mehta submitted that the accused are under 24-hours medical supervision.