"The Matter Has To Be Heard De Novo": Supreme Court Hearing In Narada Scam Case- Full Courtroom Exchange
In connection with the Narada hearing, the state of West Bengal on Friday told the SC that it was not even given a copy of CBI's letter to the Calcutta HC CJ, that the HC had stated that it shall hear only the recall applications first and not the matter on merits and that it sends out a wrong message that while the CBI can file it affidavit without any application, the state is required to...
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In connection with the Narada hearing, the state of West Bengal on Friday told the SC that it was not even given a copy of CBI's letter to the Calcutta HC CJ, that the HC had stated that it shall hear only the recall applications first and not the matter on merits and that it sends out a wrong message that while the CBI can file it affidavit without any application, the state is required to file one to have its affidavit taken on record.
The Supreme Court on Friday directed the State of West Bengal, West Bengal Chief Minister Mamata Banerjee, and the State Law Minister Moloy Ghatak - who are challenging the refusal of the Calcutta High Court to accept their affidavits filed in the Narada case - to file an application before the High Court stating the reasons for not filing such affidavits earlier.
They are directed to file the applications by June 28, after serving advance copies to the CBI on June 27. The CBI has been given liberty to file reply to the applications.
The Supreme Court further requested the High Court to decide first the applications seeking acceptance of affidavits on the next scheduled hearing date, June 29.
The bench of Justices Vineet Saran and Dinesh Maheshwari was hearing the matter
'Counter affidavit necessary because CBI alleges presence of CM, Law Minister as grounds for transfer, nullifying special judge proceedings; Also, idea of 'filling up lacuna' not relevant in criminal jurisdiction where court, CBI bound to ascertain truth'- Rakesh Dwivedi
Senior Advocate Rakesh Dwivedi, for the CM and the Law Minister: The matter is about counter affidavits filed by chief minister, the state and law minister. The state filed it on June 7 and we filed on June 9. Without going into the merits of the matter, because that is still before larger bench of the HC, and confining myself to the issue of admission, let me begin by saying that this is a case where effective hearing began on 31st of May. The larger bench sat for the first time on 24th of May but it kept getting adjourned. We were impleaded right from the beginning, when an application-cum-writ petition was filed by CBI. They were also 4 applications filed by the accused persons who were arrested. On June 9, when the impugned order was passed, only the first accused had addressed the court. On 27th May, the Court said that, first of all, we will decide the applications of recall of stay on bail, moved by the accused persons. On 31st May, the hearing began, the court had some queries from SG Tushar Mehta about timings etc. On June 2, an additional affidavit was filed by CBI. On June 3, the SG finished his argument. On the same date, Mr. Kalyan Banerjee, the senior advocate who appeared before the special Judge and who is member of Parliament, filed his personal affidavit which has not been rejected. (The affidavit stated that West Bengal Law Minister Moloy Ghatak was not present in the court room of the special CBI court on May 17 when the bail plea of four TML leaders arrested in the Narada case was being heard). On June 4, 5 and 6, there was no sitting of the larger bench. The state filed a counter on 7 and we filed it on 9th morning.
Mr. Dwivedi explained that the main ground for why their counter affidavit must be taken on record is that though the question raised by the CBI is with regard to the transfer of the matter to the High Court itself, their second prayer is on account of what happened in the office of the CBI where the chief minister is said to be present with the crowd and on account of the second incident which is attributed to the law minister being present in the court with the crowd. "These are the reasons for the transfer also and they are made the reason for another prayer that on account of the presence of these people and the crowd, the impression which will go to the people is that the special judge granted bail because of the influence of the state ministers. The argument was that the justice must not only be done but must also be seen to be done.They prayed that the order of the special judge be declared a nullity on account of this event which creates a likelihood of bias and is obstructionist in nature", he submitted, adding that though the charge of obstruction is an offence under sections 186 and 189 of the IPC, there is no FIR.
"The HC said because the SG has concluded his arguments, by filing this counter affidavit, we are trying to fill up the lacuna. This idea of 'lacuna' is an idea pertaining to civil jurisdiction where suits et cetera are filed. It has no relevance to criminal jurisdiction because here, both the court and the CBI as an agency, need to find the truth and the correct facts as they happened and then see their repercussions. To shut out the affidavit on the ground that it seeks to fill some lacuna is not relevant", he argued.
'State impleaded on May 27 by HC order and served notice, HC said it will first hear recall; CBI filed affidavit on June 2 without liberty and introduced completely new facts'- Vikas Singh for state of West Bengal
Senior Advocate Vikas Singh, for the state: Under the High Court rules, there is a right to file the reply. I really did not need any permission to file the reply. It was only out of courtesy that I informed the Court that I have filed the reply. The rule only said if the court directs otherwise, say, the court had said file a reply within two days, then the rule would not apply. Then the court could have said that you did not file in two days.
Justice Saran: The court says it is presumed that you give up the right?
Mr. Singh: On 17th May, at 3 PM the hearing starts. There is no averment to the trial judge that they have already move the High Court. Nothing in the order also that they have moved the High Court. CBI is a highly contested party in the state of WB. Writing a letter to the CJ, first of all, was highly inappropriate! They should have filed a substantive writ petition!
Justice Saran interrupted this thread of arguments, saying that they are on the merits.
Mr. Singh: By the 27th May order, the state is impleaded as a party on the orders of the court! I was not a party in the original petition filed on 19th of May!
Justice Saran: And though the law minister and chief minister were party, they were also asked to be served on 27th?
Mr. Singh: Yes, they are also served on the same day. On 31st, I raised an objection as regards maintainability of the petition. The HC says we will hear it. The High Court said we are only hearing the recall first. The 27th May order also records that we are hearing the recall first. Main writ petition was not to be heard at all!
Justice Saran: You are saying that on the first opportunity, you filed a counter?
Mr. Singh: There was no further notice because I was impleaded as a party. I accepted notice. CBI filed its affidavit on 2nd of June, without taking liberty! They introduced completely new facts without taking any liberty!
Justice Saran: We have noted all that.
'State, CM and Law Minister represented throughout right from the beginning and have not disputed any facts; June 2 CBI affidavit not on merits but filed because HC asked for chronology'- SG Tushar Mehta, for CBI
SG Mehta, for the CBI: 17th of May is the date on which under certain circumstances, which are on merits and which I am not touching, the trial court granted bail. We were not able to produce the accused physically and therefore, we moved the chief justice. 17th May is the first date on which the division bench of chief Justice and Justice Banerjee heard the matter. The AG for the state was present. I was also there. The matter was heard for about two hours. The court passed a particular order. On 19th of May, I moved an application under section 407 of CrPC, read with A. 226 and section 482 for transfer of trial and to declare the proceedings of 17th May to be null and void.
Justice Saran: You are going into the merits of the matter. We are restricted only on the grant of time for filing counter affidavit. Give us dates- when was the notice issued etc
SG Mehta: On 19th May, the AG was present and was heard...
Justice Saran: Take it out from us- we have gone through the matter so far as background is concerned from 17th May to 19th May, we have seen the content and prayers. The limited aspect before us is the 9th June order whereby the prayer for taking on record the affidavit is declined. That is the only scope of the matter before us.
SG Mehta: the AG was heard on 17th and 19th! On 21st May, there was a split order (by the DB of the CJ and Justice Banerjee on the aspect of bail, whereby the reference to the larger bench was made).
Justice Saran: The state was not a party till then?
SG Mehta: The AG was appearing but state was not a party in the sense that it was not joined. But he participated, he appeared and he was heard fully. On 24th of May, we filed an affidavit against the accused persons and we pointed out one fact that some incident in past also has taken place so there is a consistent history. On 27th of May, the state was formally joined as a party and notices were issued. On 27th the AG accepted the notice on behalf of the state, the chief minister and the law minister. On 28th, the court granted interim bail to the accused. On 31st of May, I started my arguments. The AG also said he wants to raise some preliminary objections regarding maintainability et cetera. I argue for the whole day on 31st and the HC said file a chronology of all this. So the June 2 affidavit is not an affidavit on merits filed without permission! My submission is over on June 3. My submissions ultimately boil down to one fact that they have been representing all throughout and have not disputed the facts. On June 3, the counsel for the accused started his arguments and arguments were almost on the verge of conclusion. Then on seventh and ninth of June, the affidavit of the state and the CM and law minister was filed. It was objected to on the ground that right from the beginning you are aware, from 27th of May you are appearing. That the assertions specifically made are not controverted is what I have substantiated in my three days of argument! Now by way of this affidavit they are trying to fill up the lacuna!
SG Mehta: Before Your Lordships, the issue is very limited- whether the affidavit is to be taken on record or not. In my submission, there are three options that you may consider, subject to Your Lordships' coming up with a fourth option – One, The SLP can be dismissed, two, the SLP can be allowed, or three, Your Lordships can require them to go back and make a request once again and then the wider combination of the HC can decide this issue.
'State, CM and Law Minister aware of proceedings from Day 1, there could be presumption that they have waived their right to reply; An application explaining why you did not or could not file earlier ought to have been made'- SC
Justice Saran: We want to know from Mr. Dwivedi and Mr. Singh that you all were aware of the proceedings right from day one, whether formally, informally or whatever. And you choose to file an affidavit on seventh and on ninth. There could be a presumption that you have waived your right. Why you have not waived your right, you should explain that!
"Is there any application filed along with your counteraffidavit to take it on record?", asked the judge
Mr. Dwivedi: No application. In Calcutta High Court, all affidavits are filed across the board and the court accepts them.
Justice Saran: There is a presumption that you waived your right. Whether it is right or wrong, we are not going to into that. You could havee filed an application saying that we are filing this counteraffidavit. You can file it today or tomorrow. And you can have that matter heard. If that suits you, we can go by the third option suggested by the SG
Justice Maheshwari: When there is a particular set of allegations or assertions, then you propose to counter it. We have gone through the chronology and the order sheets in seriatum, we are not finding fault anywhere that the court was in a rush or everything was pushed. The things proceeded in such a manner that the focus was on bail and personal liberty. After that was over, the matter immediately started on the argument side. When SG started his arguments, the AG said that I want to raise preliminary objection as regards maintainability. The SG said I will reply to all aspects. I have seen that argument. SG argued for three days. Then came one affidavit on third of June by Mr. Kalyan Banerjee.
"All said and done, what has happened is that prima facie, it could be taken by the court that you were not interested in filing the affidavit. Nobody is forced to file anything, it is your choice, you can waive it. In the midst of the hearing, you want to file an affidavit on record, then probably you were required to move an application, a formal one, indicating the reasons that why we didn't file or we could not file earlier and now please take it on record. Now everything has been argued, orally prayers were made, and on that basis the High Court has decided. That is what we wonder why that application was not filed.
Justice Saran: Very fairly, the SG has given the option. If you agree, we can remand the matter back to the High Court. There is nothing on record to show what were your grounds before the High Court for taking on record the affidavit. Now your application is ready because it is placed here for the first time. You go to the High Court.
Mr. Dwivedi: The reasons given in the impugned order will come in our way
Justice Saran: If we are remanding, we will say that it is to be considered the earlier order notwithstanding. If it is going back, it is going back afresh
Mr. Dwivedi: If it is de novo, I have no problem
Justice Saran: The matter has to be heard de Novo on the basis of the application which we propose to direct you to file
SG Mehta: And the contention that we raised before the High Court, we can raise again when that application is filed?
Justice Saran: If they are being given the liberty to give an application, it ipso facto follows that you have the right to file a counter
Mr. Dwivedi: I am not raising any objections because I have to raise them before the High Court now
SG Mehta: Not only my arguments are over, but the arguments of all accused are also over!
Mr. Dwivedi: That is subsequent!
Justice Saran: We are not going to comment anything on that. It is for them to explain why they have come up and filed an affidavit at that time.
SG Mehta: Speculatively, if the High Court was to accept the affidavit, then I must be given an opportunity to argue on the merits of the affidavit. The accused may not start a second round of arguments now!
Justice Saran: We can't say anything about that. Because the accused are not before us.
SG Mehta: You can request the High Court?
Justice Saran: We will not request anything to the High Court except to hear the application.
Senior Advocate A. M. Singhvi, for the accused before the HC: The High Court knows how to decide.
'State not even given copy of CBI's letter, HC said it will hear on recall applications and not the matter on merits; It sends wrong message that CBIcan file affidavit without any application but we have to file an application for taking our affidavit on record'- Mr. Singh
Mr. Singh: As a state, Mr. Mehta is saying I was there. I was not even given what letter was given to the court when I was called on 17th.
Justice Saran: Do you repeatedly want to go into the merits? We don't want to...
Mr. Singh: He is saying I was there from day one! I was there because the court said the AG must be present. But the letter was not given to me. Your Lordships can't allow that CBI on second of June can file an affidavit without application and we should be asked to go back to the High Court to file an application! On 27th of May, High Court said we will hear only recall application so the petition was not to be heard. 31st May order said the HC will hear only preliminary objections.
Justice Saran: We are conscious of this
Mr. Singh: These are new facts which are not at all before the High Court. If the CBI can do it, so can we. If CBI can file an affidavit without application, you cannot devise a new procedure for the state to file an application. Hearing was not on the merits of the matter. I was not given time for filing a reply. Hearing was only for question of maintainability and recall. That is recorded in the judicial order.
Mr. Singh indicated the 27th May order which noted that the application filed by the accused for recalling the order of 17th May read with 19th May be heard first before hearing the arguments on the larger issue being raised by the solicitor general. "We accept the prayer and direct that applications for recall will be heard first and then we will proceed further", recorded the HC.
Mr. Singh: June 9 order will have to be set aside!
Justice Saran: The same thing was said by Mr Dwivedi and we said we are doing that. If that order stands, then what is the purpose of your filing the application? But we will not like to go into any merits. That may unnecessarily influence the High Court this way or that way. We will not even record your arguments.
Mr. Singh: It will still give a wrong impression that CBI is filing affidavit without application but we are being asked to file application.
Mr. Dwivedi: On 14th, the SG did inform the high court that the counter affidavits to our affidavits are ready. But it was not taken on record because the court had already rejected our affidavit. I want to point this out
Then the bench passed its order requiring the SLP petitioners to file an application for taking on record their affidavit by Monday, with advance copies to the CBI. The CBI may file its response by Tuesday with advance copies to the petitioners. Further, the court requested the HC, when it is next scheduled to hear the matter on June 29, to first hear these applications before proceeding with the matter on merits.
The Court added that the June 9 order stands nullified to avoid prejudice to any party.
"Please keep this SLP pending or give us some time to come back here, if the application is rejected. I don't want the High Court to start hearing if it is rejected. Keep this pending. Otherwise, I will be prejudiced",prayed Mr. Singh.
Justice Saran: Why are you presuming? We can't prejudge the thing.
When Mr. Singh prayed that the order record that the CBI hadnot filed any application along with its June 2 affidavit, Justice Saran said, "We will not writ it down, it is for you to point it out. You give it in writing"