'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 BengalMr 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 decidedPrinciple 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"...

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

Srishti Ojha

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