New Delhi: A sitting judge of the Calcutta High Court has taken strong exception to the manner in which a division bench led by acting Chief Justice Rajesh Bindal heard the transfer petition filed by the Central Bureau of Investigation in the Narada scam case as a writ petition, stayed the bail granted to four Trinamool Congress (TMC) leaders, and then went on to constitute a larger bench in view of divergent opinions between the two judges.
In a letter to Justice Bindal and all judges of the HC on 24 May, Justice Arindam Sinha cited several HC rules, which, according to him, were not followed in the case at hand.
The CBI had on 17 May filed a petition seeking transfer of the case from trial court to the high court. However, the same petition was later heard as a writ petition and on the CBI’s oral request the court proceeded to hear its arguments against the trial court order that granted bail to four TMC leaders.
“The High Court must get its act together. Our conduct is unbecoming of the majesty the High Court commands,” noted Justice Sinha’s letter, a copy of which was accessed by ThePrint.
The Calcutta HC has 31 judges, and Justice Sinha is number seven in seniority.
Hours after the letter became public, the five-judge bench of the High Court released the TMC leaders on bail.
The judge has called for a meeting of the full court to “salvage the situation.” The full court should also consider whether by citing Covid the judges can stop coming to court and conduct its business from wherever they are, Justice Siha said, indirectly questioning the absence of the acting Chief Justice who is conducting court proceedings from his hometown, Chandigarh.
Despite Justice Sinha’s letter, the five-judge bench led by Justice Bindal has heard the matter thrice.
SC too expressed surprise over HC hearing
Justice Sinha is not the only who has objected to the way in which the high court heard CBI’s plea on the evening of 17 May, within hours of a trial court granting bail to four TMC leaders arrested on the same day in the corruption case.
The Supreme Court, on 25 May, had also expressed surprise over the HC according a hearing to CBI at its behest “to take away liberty granted to someone”.
“Special benches are assigned to ensure someone’s liberty is protected. We are seeing for the first time that a special bench is held to take away the liberty granted to someone,” the top court said.
The Supreme Court was hearing CBI’s appeal against Calcutta HC’s order to keep the arrested TMC leaders under house arrest. While refusing to intervene in the matter, the top court had also rejected CBI’s verbal plea to transfer the matter to itself.
A bench of Justices Bindal and Arijit Banerjee had on 17 May put on hold the trial court’s bail order in the matter. It, however, ordered house arrest of the four leaders. On 19 May, the bench delivered a split verdict on the CBI’s plea to cancel the leaders’ bail.
While Justice Bindal held the four should remain in judicial custody, Justice Banerjee ordered their bail. Considering the divergent views, the matter was referred to a bench of five judges and the leaders were directed to remain under house arrest till the larger bench decided the issue.
The division bench of justices Bindal and Banerjee took up CBI’s transfer petition, filed under section 407 of Criminal Procedure Code, on 17 May. This was based on an email sent by the CBI to the court and a mention by its lawyer.
Necessary to ‘reaffirm sanctity of our rules’
According to Justice Sinha’s letter, as per the HC rules a single judge should have heard the matter.
“However, the first division bench took up the matter treating it to be a writ petition. Even a writ petition under Article 228 of the Constitution should have gone to the single judge having determination,” he mentioned in the letter.
Furthermore, the communication sent by the CBI could not have been treated as a writ petition because no substantial question as to the interpretation of law was then raised, the judge highlighted.
The CBI had cited protests led by Mamata Banerjee and TMC party workers as a ground to seek transfer of the case to the High Court. The Chief Minister and her supporters had gathered inside the CBI office at Nizam Palace, while the state law minister was present inside the trial court that was hearing the bail applications. The atmosphere vitiated court proceedings, the CBI had claimed.
According to Justice Sinha, however, mob factor may be a ground on merits for adjudication, but only by a single-judge bench and not a two-judge bench.
Also questioning the manner in which the two judges stayed the trial court’s bail order, Justice Sinha wrote: “Whether the High Court exercising power in the matter of transfer of criminal case at this stage on its own initiative could have passed the order of stay is the second question.”
He then went on to point out the technical flaw in the Constitution of a five-judge bench which was set up to hear the case. According to HC rules, he emphasised, in case of a difference of opinion between two judges of a bench, the matter is referred to a third learned judge for opinion.
Reference of such nature, as done in the Narada case, arises when two division benches give contrary opinions on a law point, Justice Sinha said.
Requesting all judges to “salvage the situation,” Justice Sinha said it was necessary to “reaffirm the sanctity of our rules and our unwritten code of conduct.”
Calling for a full court meeting — to be attended by all judges — the letter said: “It (meeting) should include consideration as to whether by citing the covid, we can stop coming to court and conduct its business from wherever we are, our court being a court of record within the meaning of Article 215 of the Constitution. The accompanying question would be how we have made the rules our conditions of service redundant, citing covid-19.”
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