Even if arrests are assumed to be illegal, will they give a right to indulge in 'mobocracy', the Calcutta High Court asked during the hearing of the Narada case.
The question was posed by Acting Chief Justice Rajesh Bindal, who is leading the 5 judge bench which is hearing CBI's transfer application in the Narada Scam case that the Special Judge.
Senior Advocate Siddharth Luthra, appearing for one of the four arrested Trinamool Congress leaders, told the bench that the Special CBI Judge, who granted interim bail to the accused TMC leaders on May 17, decided the matter "without fear" of the alleged 'mobocracy'.
The matter is being heard by a 5-Judge Bench comprising of Acting Chief Justice Rajesh Bindal, and Justices IP Mukherjee, Harish Tandon, Soumen Sen and Arijit Banerjee.
Luthra stated that Judges take an oath to uphold the Constitution and to perform their duty "without fear or favour". He submitted that they are trained judicial minds, "made of much sterner stuff than a reasonable man" and are therefore not affected by public perception.
"The whole point of adjudicatory system is to have a dispassionate member. If we were to accept Solicitor General's submission then we will be left in a piquant situation. We will be told that the oath that your Lordships take is mere paper," he said.
He cited the case of State v. Ram Sia (1950), where the Allahabad High Court held that Sessions Judges occupy a position of distinct importance in judicial hierarchy and the legislature has conferred discretion upon them, knowing that trained judicial minds know how to exercise such discretion.
"Judges are not infallible," Justice IP Mukerji told Luthra.
He stated that Judge takes an oath to defend the Constitution and they must adhere to it. However, the circumstances must be conducive and enable them to uphold their oath.
"Judges are also humans. They're not a computer or a robot. Solicitor General's submission is that conditions must be such, that a Judge is able to uphold his oath. Their case is that on May 17, such circumstances did not exist," Justice Mukerji added.
Acting Chief Justice Rajesh Bindal also asked Luthra that what is the idea behind this argument. "Are you saying Judges have not adhered to their oath?" he asked.
"I am saying that Sessions Judge in allegiance of his oath decided the matter without fear," Luthra then clarified.
He insisted that merely because a crowd has gathered outside the Court would not preclude Judges from doing their duty and imparting justice. "In Vijay Kurle case, they were brow beating the Bench but, the matter went on," he said.
Luthra also pondered upon (in)validity of arrest and claimed that since arrest was illegal, the question of police custody would not arise.
In this regard, he pointed out that that MLA Madan Mitra was picked up from his house on May 17 at 8.10 am, without any warrant or grounds. However, as per CBI's affidavit, the time of arrest is 8.45 am.
Luthra claimed that the arrest memo was prepared at 8.45 am at CBI's office in Nizam palace and that is a clear violation of Supreme Court's judgments in Nandini Satpathy v. Dani (1978) and DK Basu v. State of West Bengal (1977).
"Does that give a right to mobocracy?" ACJ Rajesh Bindal asked.
Luthra also alleged that sanction for arresting public officials has to be obtained contemporaneously or before arrest. But in this case, it was obtained after arrest. "This is a mockery of law of the highest order. CBI has played a fraud on the Court," Luthra remarked.
At this juncture, Justices Soumen Sen and IP Mukerji asked Luthra how validity of arrest is relevant to the transfer proceedings.
"If arrest was not tenable then police custody could not be sought," Luthra responded.
"CBI's case is that they could not get Police custody because of mobocracy. My case is that they could not get custody because the arrest was embellished. The law does not permit it," he added.
Continuing his objections on the manner of arrest, Luthra alleged that MLA Madan Mitra was recovering from Covid-19 and his family was quarantined. However, the CBI officials picked him from his house in complete violation of Covid-19 protocols and conveniently chose to not respond to that part of the affidavit.
He further informed the Bench that the CBI had earlier said that custody of accused is not required and there is no need for further investigation. However, the agency proceeded to conduct further investigation without seeking Magistrate's permission under Section 173(8) CrPC. Reliance was placed on Vinubhai Haribhai Malaviya v. State Of Gujarat.
Interjecting at this point, Justice Harish Tandon opined that these questions are corelated to bail proceedings and may not be relevant in deciding whether Special Court proceedings are vitiated or not.
"We are not going into nuances of bail. Solicitor General has said that an impediment was created which he dubbed as mobocracy. SG said supervening circumstances were such that fair proceedings were vitiated in the mind of reasonable man. The perception was invoked only for conducting of case so far as Special Judge is concerned. It has nothing to do with arrest. Bail may be decided by the Special Court. At this stage, can this 5-Judge bench go into question of validity of arrest?" Justice Tandon observed.
Responding to this, Luthra argued that the perception test pleaded by the SG was diluted in 1994 and the real test applicable in this case is of Chapter 35 CrPC (irregular proceedings).
Luthra further alleged that the case presented by CBI is brazenly false and none of what is being claimed regarding (dis)functionality of CBI actually occurred on the said date.
"The CBI office is situated at 14th & 15th floor of the building. It has two entrances and the rear entrance was unobstructed. The prosecutor argued at length from CBI's VC room situated at 15th floor.
Despite all this, they have sought to show that it's a small office, that they were gheraoed and threatened due to which they were unable to argue properly. In the VC era, it's a mockery for them to say this," he argued.
The matter is will now be taken up on June 15.
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.
Dr. AM Singhvi who concluded his arguments yesterday has claimed that public perception is not a valid ground in law & question is whether May 17 protest affected administration of justice.
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