'Solitary Incident Not Justifiable Ground For Transfer': Calcutta High Court Tells CBI In Narada Case

Today, Justice Soumen Sen told the Solicitor General Tushar Mehta, appearing for CBI, that a mere solitary incident would not be a sufficient ground for allowing transfer of proceedings. The Judge opined that there should be continuous set of events that would make it apparent that if the Trial is continued, it shall be vitiated.

"Solitary incident may not be a justifiable ground for transfer. There needs to be a continuous activity," observed Justice Sen.

The Solicitor General was addressing the Bench comprising of Acting Chief Justice Rajesh Bindal, and Justices IP Mukherjee, Harish Tandon, Soumen Sen and Arijit Banerjee on the principles of bias and perception of common man.

It is his case that the presence of protestants was intimidating enough to vitiate the entire atmosphere and leave an impression on the mind of a common man that the Justice system was stifled with.

He cited the case of Zahira Habibullah Sheikh & Anr v. State Of Gujarat & Ors., where the Supreme Court had observed, "Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings…"

He also referred to Hazara Singh Gill v. State Of Punjab, where the Supreme Court has observed, "The question really is whether the petitioner can be said to entertain reasonably an apprehension that he would not get justice. One of the highest principles in the administration of law is that justice should not only be done but should be seen to be done. In the present case, there is ,enough allegation to show that certain strong parties are opposed to the petitioner in various ways. Whether they would exercise any influence upon the magistracy and whether magistracy would be able to withstand such a pressure, if made, is not germane to the present petition."

In this backdrop, the Solicitor General argued that the question is not whether the Special Judge was influenced by the mobocracy but what a reasonably informed common man would feel.

"Free and fair trial is sine qua non of Article 21 of the Constitution. Justice must seem to be done. If criminal trial is not free from bias, Judicial system would be at stake, shaking public confidence and disrupting Rule of Law. Atmosphere needs to be congenial. It need not be shown that Judge is a victim or has been influenced," he submitted.

At this juncture, Justice Sen pointed out that the judgments cited by him refer to disruptive circumstances that arose 'during the course of trial'.

"Can you give us any illustration of present case where such transfer was allowed in bail application?" he asked.

To this, the Solicitor General responded,

"The Judgments are 'de hors the stage'. If at any stage I feel proceedings have been vitiated, or due to the past conduct I see that future trial may be vitiated, I may approach the Court for transfer… The provision of transfer is not restricted. It may be used at any Stage."

He added that his argument is that even if the arrest is found to be illegal, whether such conduct of the executive can be legitimized by a Constitutional Court.

"My question is, can one get a Bail order by showing rowdiness and hooliganism? And what would be the response of a Constitutional Court as the custodian of Rule of Law? It is a question of Majesty of Court."

The Bench also asked the Solicitor General as to why the CBI counsels did not seek for an adjournment from the Special Court. It also expressed dissatisfaction as to why the CBI did not present the case diary before the Special Court when a Police Officer had gone to deliver the charge sheet physically.

"Let me tell you what is troubling me. We have always deprecated media trial. But public perception of conduct of trial in a case where the order of special court otherwise seem to survive (on merits). That order has also not yet been challenged.Will public perception override all other considerations?", asked Justice Sen.

"If hypothetically let us say bail application was rejected despite such external actions, then will the trial be vitiated", Justice Harish Tandon asked.

The Solicitor General replied that each case will have be examined on its individual facts.

The 5-judge bench had granted interim bail to the four arrested leaders - Firhad Hakim, Madan Mitra, Subrata Mukherjee and Sovan Chatterjee - on May 29. They were under judicial custody since May 17. On May 19, they were allowed to be kept under judicial custody by the division bench, after the two judges differed on grant of interim bail.

Previous reports:

• If Hearing Was Virtual & Judge Didn't Know People Were Protesting Outside, How Is There An Influence? Calcutta HC Asks CBI In Narada Case
• Can Judicial Order Be Set Aside On Public Perception? Calcutta High Court Asks CBI In Narada Case