Narada Case : Judges Of Division Bench Can't Be Part Of 5-Judge Bench, Argues WB Advocate General

The Advocate General stated that Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee, who formed the Division Bench that referred the matter to a larger Bench, cannot be a part of the 5-Judge Bench which is hearing the case.

He further challenged the competency of the five-Judges Bench, stating that the matter should have been referred to a third Judge in case of split in the Division Bench.

A 5-judge Bench of the Calcutta High Court comprising of ACJ Bindal, and Justices IP Mukherjee, Harish Tandon, Soumen Sen and Arijit Banerjee is hearing the transfer application filed by CBI in Narada scam case.

Today, AG Dutta raised three preliminary issues, viz.:

• The letter petition filed by CBI on May 17 could not have been heard by a Division Bench;
• Calcutta High Court Rules contemplate only a Letter Patent's Appeal and it does not have original criminal jurisdiction;
• The Division Bench Judges who referred this case (ACJ Bindal & Justice Arijit Banerjee) to a larger Bench cannot be a part of the 5-Judge Bench.

He urged the Bench to first decide these issues before proceeding on merits.

Solicitor Tushar Mehta urged that he may be allowed to make his submissions first and assured that he will address all these issues raised by the AG.

The Bench also expressed its inclination to hear Mehta and stated that it will address all the issues, including the preliminary objections, in the final judgment.

"May I respectfully submit, my argument is that this Court is incompetent to hear the matter," the AG reiterated.

At this juncture,  Justice Sen remarked, "A party should not be permitted to recalibrate. Before the Supreme Court, you say that a 5-Judge Bench of the High Court is hearing the case. Here you come and challenge its competency. You should have told the Supreme Court that you will go and challenge the 5-Judge Bench's jurisdiction."

Justice Harish Tandon assured the AG that the Court is not shying away from hearing the jurisdiction issue and in case it strikes at the very roots of the matter, the Bench will decide accordingly.

The AG then submitted that he wished to raise this issue first so that the Petitioners are not taken by surprise.

The matter has been adjourned for hearing tomorrow at 11.30 am.

Last week, a sitting judge of the Calcutta High Court, Justice Arindam Sinha, had written to the Acting Chief Justice expressing serious reservations about the listing of the Narada case.

On May 28, the Calcutta High Court granted interim bail to four Trinamool Congress leaders- Firhad Hakim, Madan Mitra, Subrata Mukherjee and Sovan Chatterjee- who have been under judicial custody since their arrest by the CBI in the Narada case on May 17.

On 21st May, there was 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 since 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 time being, 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.