'There Can't Be En Masse Transfer Of Cases To CBI': Kapil Sibal Argues For West Bengal Govt In Post-Poll Violence Case

The Supreme Court on Tuesday issued notice in petition filed by the State of West Bengal challenging the Calcutta high Court's direction for CBI investigation into cases of murder, rape and crimes against women which allegedly took place during the post-poll violence in West Bengal.

A bench comprising Justices Vineet Saran and Aniruddha Bose observed that the State of West Bengal through its counsel Senior Advocate Kapil Sibal has made out a prima facie case for issuance of notice.

In a detailed hearing that took place on Wednesday, Senior Advocate Kapil Sibal, on behalf of State of West Bengal argued that orders were passed and remarks were made by Calcutta High Court against the State in the present case without giving them an adequate opportunity to make submissions or reply.

Further, he argued that the High Court even passed orders without furnishing the copy of relevant reports of NHRC committee and some annexures.

"We are in a federal structure, You don't give us an opportunity, you castigate us, we request you to give us an opportunity to reply and you dismiss the application. We give a chart you say its not supported by an affidavit. This is not fair!" Mr Sibal remarked.

"You castigate the state, you pass strictures against the state, you never allow the State to tell you what kind of investigation is going on, that in fact we have investigated those cases, infact FIRs have been filed, we have arrested people, and we are given only 7 days time to file response to thousands of cases." Sibal said.

Courtroom Exchange:

At the outset, Mr Sibal apprised the Court of the broad submissions that he would be making during his arguments.

"These kind of proceedings have not been seen anywhere before what happened in Calcutta." he said

Mr Sibal argued that the definition of "post-poll violence" was stretched. Even ordinary crimes which took place after the government was formed were brought under the ambit of "post-poll violence" cases.

"Your Lordships will have to decide what do you mean by post poll violence. I am indicating what will have to be decided. Further, till which date does post poll violence continue. If Chief Minister  took oath in May and you've an incident in July, will that be post poll violence?" he said.

NHRC Committee Members Openly Affiliated to BJP : Senior Advocate Kapil Sibal for West Bengal

Mr Sibal submitted that the moment there was violence in the state, petitions were filed and a 5 Judge Bench was constituted by the High Court. Orders were passed from time to time with most significant one being on 18th June, in terms of which the High Court requested the Chairman of NHRC to constitute a Committee.

"The committee constituted at instance of Chairman of NHRC, according to us it consists of people openly affiliated or associated with the ruling party in power at the Centre." Mr Sibal said.

In response to the Court's query as to how many members of the Committee were objectionable to the State, Sibal stated that objection was against 3 lead member who were leading the teams.

Is It appropriate To appoint Committee With Members Who Belong To Particular Ideology & What Is Court's Duty?

Mr Sibal submitted that "In a federal structure when one political party is ruling in centre and other is ruling in State, and there's an open electoral battle, is it appropriate to appoint people belonging to a particular ideology associated with a party which has bitterly lost an election against another party in the State ideologically opposed to it? And what is duty of court in allowing such committee to conduct whatever it is directed to conduct?

According to him, this issue needs to be decided

Principle Of Apprehension of Bias: 

Elaborating on the issue, Mr Sibal submitted that in context of administrative law there is a concept of bias. He added that in this case what is being dealt with is criminal law, which according to him is far more important because lives of people are dependent on investigation.

"If you allow processes of law in hands of particular ideologically inclined individual, then concept of bias in setting up committees dealing with election matters will have to be decided by the Court. The principle is not have actual bias, but fear of bias." Sibal said.

Discovery Of Facts Only Possible By Investigation, Through CrPC or Human Rights Act: 

Mr Sibal argued that the only way that facts can be discovered with respect of any incidence is through investigation, there's no other way that facts can be discovered. If an incident takes place, only way to discover if complaint is true or not is through way of investigation under the Code of Criminal Procedure Code. In context of violation of human rights, Human Rights act itself sets out a procedure for arriving at conclusion in respect of violations. In this case, neither was followed.

There cannot be en masse transfer of cases to CBI.

" Can power of court under 226 allow for an en masse transfer of cases? The principle evolved is that the transfer is case by case" Mr Sibal said.

" You can't say i have received 100 complaints I will transfer it without looking it on a case to case basis! There is no en masse transfer of cases!"

Submissions Regarding List of dates:

"The list of dates itself tells you the breach of natural justice" Mr Sibal argued 

Taking the Court through the list of relevant dates, Mr Sibal stated that on 2nd May 2021 assembly election results were announced, and 3 May alleged acts of violence had taken place. On 3rd, model code of conduct remained in force therefore law and order machinery including both Central Armed Police forces and State Police were under Election Commission of India. 3rd May to 4th May letters were addressed to Chief Justice of High Court and Commissioner of Police on situation of post poll violence. On 5th May CM took oath , on 6th may letter was issued to Governor and a writ was filed before High Court.

He added that another writ petition was filed by Priyanka Tibrewal, who is the candidate fighting against Mamta Banerjee now as a candidate for BJP. An order was passed by the High Court same day on 7 May and Chief Justice constituted a larger Bench to hear the petitions. On 31st May, directed the formation of 3 Member Committee. High Court had also directed that complaints could be submitted on email id provided.

On 3rd June the three-member committee submitted the purported report to the High Court. Through Order of 18th June, High Court observed that filing of affidavits may be a cumbersome process and requested NHRC Chairman to constitute a committee to examine all cases received or to be received by NHRC. The Chairman then constituted a committee with Rajiv Jain, Atif Rasheed, Rajulben L. Desai, Santosh Mehra, Pradip Kumar Panja, and Raju Mukherjee.

In response to the Court's query, Mr Sibal informed the court that State has objected to the first three lead members Rajiv Jain, Atif Rasheed and Rajulben L. Desai.

An application to recall order of 18th June was filed and was dismissed on 21st June. On 30th June, order passed by the High Court recording submissions of purported inquiry Committee constituted by NHRC Chairman before the High Court and granting extension on further investigation.

Mr Sibal argued that in order of 18th June, there was no direction to Committee to file an interim report, yet the Committee filed it. The State asked for a copy of the report and court refused to give the copy.

"Interim report is dated 30th June, and copy wasn't given to you?", the bench asked.

"We asked for it and they said no. And they relied on the report and made scathing observations against us.The Court told us that we will not rely on this and when final report comes you can make your submissions" Mr Sibal said.

Mr Sibal submitted that the final report on July 12th was given to the State on July 13th and consisted of 3400 pages along with other documents and several annexures which were not given to them. The Annexure relating to rape wasn't given on grounds that the State will get to know names of the complaint.

"The Police investigating needs to know name of the complainant. You can't disclose it to private party, how can you not disclose it to State? They say it can't be given under IPC!" Sibal said.

Mr Sibal informed that the State filed an exception to the report on 26th July against the Committee within 4 days. If there's an incident there are around 28 police districts headed by Superintendent of Police, 6 Commissionerates from DIG to ADG rank officers, 35 police units, police units will conduct and inquiry, submit and action taken report to office of DGP. "And the Court thinks all this can happen in 4 days, despite that we did it". he said.

"The list of dates itself tells you the breach of natural justice. In Muzaffarnagar Riots case this court took 5 months to analyse each case and action taken " Sibal said.

Mr Sibal submitted that no victim should be left without remedy, grievances should be genuinely dealt with. It is duty of the state to maintain law and order and there is no doubt about that. But before coming to any conclusion there should be evidence on record for each case

"When you come to violence in a state you question police officers as if no one can be trusted and you question them like political party in power is in control.But you don't apply same yardstick at the Centre! State agencies you don't trust because there's a political party in power, but Central Agency you trust even though the very political party that has made allegation is in power!" Mr Sibal remarked.

Referring to High Court's 18th June order, Mr Sibal stated that the Petitioner alleged facts and the High Court accepted and stated that State action is missing and no concrete action was taken by State.

"What is the basis of all this? We will show in each case what steps were taken!" He said.

Mr Sibal stated that the High Court's order stated that the State from very beginning has been denying the facts,

"Who has established these facts? How are these facts?" he remarked.

He added that the High Court's order stated that keeping in view the fact that there is infrastructure available with the NHRC and the instances sought to be projected by the petitioners are large in number, Chairperson was requested to constitute a Committee, to examine all cases and may be by visiting affected areas submit a comprehensive report with the steps to be taken to ensure confidence of people that they can peacefully live in their houses and also carry on their occupation.

"This is the jurisdiction of the Committee! " Sibal remarked.

Sibal further pointed that the order stated that the persons prima facie responsible for crime and the officers who maintained calculated silence on the issue, be pointed out.

"What is the limit of this committee? How does it decide a person prima facie responsible for the crime. The point is there can be no ascertainment of facts without an investigation" Sibal said.

"What you're probably meaning to say is examination means investigation and that they can't do." Justice Saran said.

Sibal added that persons prima facie responsible for the crime, cannot be determined by the Committee. It has to either be determined by the NHRC under the Human Rights Act or by Court under the criminal procedure.

Sibal further stated that the order dated 21st June was passed in an application seeking recall of Court's 18th June order. The ground sought to be raised was that opportunity wasn't given to state to place complete facts before the Court.

In response to the Court's query as to what were the allegations made by the Court against the State, Mr Sibal submitted that the Court in its order stated that 'action is missing, action should have been taken but no concrete steps were taken by the State, State has from beginning been denying everything, etc"

"What happens is this is flashed all over the country, reputation of the state is also at stake. We are in a federal structure, You don't give us an opportunity, you castigate us, we request you to give us a population to reply and you dismiss the application. We give a chart you say its not supported by an affidavit. This is not fair.!"

The matter will be next heard on October 7.

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