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If Accused Have Not Been Arrested For 7 Years, Why Suddenly Arrest Them After Chargesheet? Calcutta HC Asks In Narada Case

LIVELAW NEWS NETWORK
24 May 2021 10:29 AM GMT
If Accused Have Not Been Arrested For 7 Years, Why Suddenly Arrest Them After Chargesheet? Calcutta HC Asks In Narada Case
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While adjourning the hearing in the Narada case to May 26, a 5-judge bench of the Calcutta High Court observed on Monday that one of the issues in the case is the necessity of the arrest of the four Trinamool Congress leaders - two of them cabinet ministers, and one an MLA - in the case."One issue, is if the accused have not been arrested during investigation for over 7 years, what is...

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While adjourning the hearing in the Narada case to May 26, a 5-judge bench of the Calcutta High Court observed on Monday that one of the issues in the case is the necessity of the arrest of the four Trinamool Congress leaders - two of them cabinet ministers, and one an MLA - in the case.

"One issue, is if the accused have not been arrested during investigation for over 7 years, what is the occasion for arrest suddenly after filing chargesheet?", Justice IP Mukerji, the second senior judge of the 5-judge bench, asked Solicitor General of India Tushar Mehta, who was appearing for the Central Bureau of Investigation.

"If the power of arrest has not been exercised for over 7 years, why should they be arrested suddenly now? This is one of the issues", Justice Mukerji added.

In response, the Solicitor General said that the issue would have been relevant, had the High Court been considering the mere issue of bail. The larger issue before the Court, the Solicitor General added, was whether the bail hearing before the Special CBI Judge on May 17 was vitiated and non-est in law on account of the external pressure created by the mass protests led by the Chief Minister and the Law Minister.

The judge also asked the Solicitor General the status of trial. The SG informed that chargesheet in the case was filed on May 17 as against the four arrested accused - Firhad Hakim, Madan Mitra, Subrata Mukherjee and Sovan Chatterjee - and charges are yet to be framed.

The bench comprising Acting Chief Justice Rajesh Bindal, Justices IP Mukerji, Harish Tandon, Soumen Sen and Arijit Banerjee was having discussions on the issues to be formulated in the case for hearing.


Can bail granted be stayed under Section 407 CrPC?

The bench also asked the Solicitor General if the High Court can stay the bail granted by the trial court while acting on a petition under Section 407 of the Code of Criminal Procedure, which deals with the power of the High Court to transfer trial of a case from one court to another.

Justice Soumen Sen, another member of the bench, said that another issue is whether the bail already granted can be stayed while exercising powers under Section 407 CrPC.

In this connection, the bench pointed out that the division bench comprising Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee, which had stayed the bail order on May 17, was acting on an e-mail petition sent to the Acting Chief Justice by Additional Solicitor General YJ Dastoor about the dharna held by the Chief Minister in front of the CBI office.

In response to a query by the bench, ASG Dastoor read out the prayers in the e-mail petition regarding directions to enable the CBI to discharge its official functions amidst the Chief Minister's protests and mass demonstrations.

Terming the CBI's application "skeletal", Justice Mukerji observed : "One of the issue is whether the HC can stay the bail order without notice when there is no application seeking cancellation, and by filing an application under Section 407 CrPC".


The Solicitor General then pointed out to the bench that the CBI had filed a detailed application later, invoking not only Section 407 of the CrPC but also Section 482 and Article 226 of the Constitution.

Acting Chief Justice Rajesh Bindal said that the bail order was passed by the trial court while the division bench was hearing the CBI's letter petition.

The Solicitor General said that the during the hearing of the division bench, there was a news flash that bail order was granted, and on knowing that, a request was made by CBI to stay the bail order, and the bail order was accordingly stayed.

Senior Advocate Dr Abhishek Manu Singhvi, appearing for three of the arrested TMC leaders, contended that the CBI suppressed from the division bench that the hearing before the Special CBI judge was virtual and that the trial judge did not given any indication in the bail order that the hearing was obstructed by protests.

"The trial court heard the matter virtually. The learned Special Judge does not give any hint of either access to justice being disturbed or hearing being obstructed. The test of martial law is courts cannot function. The Special Judge gives no such indication", Dr. Singhvi said. He submitted that these facts were suppressed from the division bench.

"Mr.Singhvi, you mean to say that the division bench did not have the benefit of seeing the (bail)order?", one of the judges of the bench asked.

"The division bench did not have the benefit", Singhvi replied.

At this juncture, Acting CJ Bindal clarified that by the time the division bench completed the hearing, it had got the bail order, and the division bench passed the order after seeing the bail order.

The bench adjourned further hearing in the case to May 26.


When the hearing started, the Solicitor General Tushar Mehta, appearing for the CBI, made a request for deferring the hearing till day after tomorrow, as the CBI has approached the Supreme Court against the May 21 order allowing house-arrest of the TMC leaders, and that the agency is trying to get the matter listed tomorrow in the top court.

The bench did not immediately adjourn the hearing, and held over a two hour long hearing on the issues to be formulated in the case. Full minute-by-minute account of the hearing may be read here.

SG Tushar Mehta, Advocate General Kishore Dutta and Senior Advocates AM Singhvi and Siddhartha Luthra made submissions regarding the issues which can be formulated in the case.

Issues suggested by the Solicitor General

The SG submitted that the first issue could be whether the Court can act on a letter and an oral submission made by the investigating agency when the incidents were happening in public glare. Entire media was capturing it, the SG said.

The second issue, the SG pointed out, pertains to the contours of the court's jurisdiction under Section 407 CrPC .

The third issue would be, he said, as argued by the respondents,  whether the Division Bench could have considered the matter, when bail and transfer are before the single bench as per roster.

Issues suggested by the resppndents

Senior Advocate AM Singhvi submitted that there is only one issue— whether the persons who were granted bail by the Trial Court should be released on liberty. "Should the order of special judge of May 17 be allowed to operate? That is the only issue," he said.

He continued,

"Procedure must be the handmaiden of justice, especially when personal liberty is involved. Is there a valid exercise of Section 407 powers by the hon'ble division bench on May 17 including the power to stay bail already granted?"

The second issue, Singhvi said, is whether the accused were entitled to bail and could the bail already granted be reversed. The third issue he said is the effect of not hearing the accused, as a facet of natural justice and fair play, while reversing bail.

Singhvi also question the legality of arrest as the CBI did not obtain sanctions from the Speaker, before effecting the arrest.

"The sanction from Governor is bad in law since as per Constitution Bench judgments Speaker is the authority to grant sanction with respect to legislators," he submitted.

Singhvi insisted that the triple tests of bail are satisfied in the case and there is no flight risk of accused, as they are MLAs and Ministers, and the arrest happened after 7 years.

In this context, Senior Advocate Sidharth Luthra submitted,

"It is a case where there is abuse of power of arrest. Voice samples were taken in 2019. Without getting a report on the voice samples, which is the only evidence, a chargesheet was filed. Chargesheet was placed before the Governor.

Police custody will not lie after chargesheet. Further investigation against other accused is no ground for police custody of accused, against who investigation is over."

Submissions by Advocate General

The Advocate General raised the following points:

  • whether a judicial order can be reversed on the ground of perceived law and order problems? This is an issue.
  • Whether an investigation agency seeking such petition on ground of law and order amount to undermining the independence of judiciary.

Advocate General also submitted that the Calcutta High Court has no original criminal jurisdiction and therefore there is the issue whether the CBI prayer to transfer to the HC that case is untenable.

 Background

On 21st May, following 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 from 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 timebeing, 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.
















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