Thread by @barandbench

Five judge Bench of Calcutta High Court is slated to take up the case on arrest of four senior TMC leaders in TMC case.

The hearing is slated to commence at 11 am.

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@AITCofficial @FirhadHakim

The CBI has, however, requested that hearing be deferred since it has approached Supreme Court challenging the May 21 order of High Court which has allowed the TMC leader to be placed under house arrest instead of jail.

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Bench assembles. Hearing commences

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Solicitor General Tushar Mehta says he has a request to make at the outset.

The CBI has preferred a SLP, it is numbered and we have moved registry for placing it before CJI to constitute Bench: SG Tushar Mehta says

He seeks deferment of hearing till day after tomorrow.

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Have you mentioned it before CJI: Acting CJ Bindal.

There is no mentioning as such. We have submitted a note to registry. It will he considered by CJI today and could be posted tomorrow: Mehta

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AM Singhvi says it is sad and unbecoming of an investigating agency, which uses words like premier to describe itself, to seek adjournment.

This very same request was made by Mr. Mehta on Friday and was rejected. It is recorded in the order. This is effectively review of that: Dr. Singhvi

How does this hearing cause prejudice to the Bench, CBI or country, demands Dr. Singhvi.

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This is unbecoming of CBI to make this request knowing what happened on Wednesday, Friday: Dr. Singhvi

Sidharth Luthra for accused says mentioning does happen in SC. They did not mention because they were not in a position to mention.

The SLP only has a provisional number and does not even have a diary number: Luthra

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Sr. Kalyan Bandhopadhyay for accused submits mere filing of SLP does not mean that the HC Bench which is hearing before HC should not proceed at all.

Solicitor General Tushar Mehta responds.

It is unfortunate that unbecoming acts are happening in Calcutta where CM barges into CBI and other leaders intimidate central agencies. This is not rule of law: Mehta

What would happen in Supreme Court I cannot speculate.

My prayer is not that I am going today, you stay it. I never make such arrogant submissions: Mehta.

If the CBI feels that due to unprecedented events in which CM lays siege of CBI office, we feel we need to go to SC, then we might be permitted and my request is to defer till day after tomorrow: Mehta

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Bench asks whether CBI has grievance regarding Constitution of larger Bench also or is it limited to house arrest aspect.

Mehta says he has challenged first order (of Justice Banerjee) and third order.

Bench says Justice Banerjee order cannot be challenged since it is not majority order.

How does us hearing this matter today prejudice your right to move Supreme Court: Bench to CBI

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I cannot speculate what SC will do. I think I have a right to raise the issue before Supreme Court.

If I have to persuade Your Lordships this long to defer the matter, then I would leave it to Your Lordships: Mehta

Mr. Mehta, please also take into account the fact that a cyclone is set to hit Bengal today evening at a speed of more than 100 kmh. We might not even be able to sit for next 5 to 7 days: Justice Mukerji

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Dr. Singhvi says bench hearing will not prejudice anyone. Even if they are released today by HC, if SC overturns it, they will go back to jail. Where is the prejudice.

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Sidharth Luthra says an agency which makes arrests on a FIR from 6 years ago is speaking about rule of law.

Mehta responds says CM barging into CBI office shows absence of rule of law

Advocate General Kishore Dutta says Mehta should be allowed to argue only on pleadings and allegations made on affidavit.

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Bench takes 5 minutes to confer.

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Hearing resumes.

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@AhmedAitissad @MamataOfficial

Acting CJ says let us understand bthe issues we have to deal with.

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Mehta says issues are in four compartments.

He says he will give a brief background

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On May 17, CBI arrested four individuals.

Two events happened when CBI was taking them to office. Then there was a well orchestrated attempt to prevent them from being taken: Mehta

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Later, Chief Minister entered CBI office with a crowd so as to stop accused from being taken to court: Mehta

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Simultaneously, a cabinet minister along with a crowd of 1000 also assembled in special court complex: Tushar Mehta.

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CBI then sent a mail requesting for virtual hearing since they cannot move from office due to jam.

There was stone pelting at CBI office: Tushar Mehta

The terrorising impact of these was that we could not argue property and case diary could not be placed before special court: Tushar Mehta

Before the special court passed order, I requested the Chief Justice of HC to hold hearing pointing out these facts

I asked court to invoke powers under Section 407 CrPC to pass order: Mehta

#naradastingcase

First issue is "Can Your Lordships act on request by email and on oral submissions by investigation agency when what had happened was in public glare and entire media was capturing it": Tushar Mehta

Mr. Mehta what was the prayer in the email sent to CJ: Bench

ASG Dastoor reads out the prayer in the email.

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Dastoor reads out the email.

Bench points out since there was no request for stay of order in email.

Can you by filing an application under Section 407 cancel bail order? Justice Sen asks.

Acting CJ Rajesh Bindal says no order was passed by special court when HC was hearing the matter. There were some media reports only that order was passed: Justice Bindal

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SG agrees.

Next issue is whether it was proper for Division Bench to have taken up matter when bail matters are to be heard by Single judge: Mehta.

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Mehta says CBI petition is not merely 407 petition alone. It is Art 226 petition as well as section 482 CrPC petition: Tushar Mehta.

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So the issue is where the proceedings before the High Court are vitiated in view of these facts? Mehta

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I had made the request saying since the court has powers to stay proceedings, it could stay any order passed also.

Later I filed a detailed petition on may 19.

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Are you seeking transfer of proceedings interstate or transfer to this court? Bench

Transfer to Your Lordships. Transfer to Calcutta High Court: Tushar Mehta

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Have charges been framed: Bench

Charges have not been framed as far as I know: Tushar Mehta

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Were the 4 accused arrested before: Justice Mukerji

No. They were arrested only on May 17, 2022: Tushar Mehta

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Tushar Mehta request for being excused for three to four minutes. Let Dr. Singhvi argue till then: Mehta

Bench agrees.

Dr. Singhvi advancing arguments now.

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There is only one mega issue - whether the persons who obtained bail on May 17 should be set at liberty.

In other words, should order of HC Division Bench of May. 17 be affirmed or order of bail by special court be allowed to continue: Dr. Singhvi

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Under the mega issue these are the other issues:

- Does DB have power to stay bail order under section 407?

- Under established principles of bail jurisprudence, were the accused entitled to bail and / or could the order granting bail be reversed?

- The additional effect of not hearing the accused as a facet of natural justice and fair play while reversing bail.

- Prima face for purposes of bail, is the clear absence of sanction from appropriate authority fatal to initiation itself including arrest?

- 90 percent of what is stated by way of adjectives by CBI is non existent. CBI wants to believe that we were under martial law in an East Indian state called West Bengal

Singhvi sets out the above issues which court should consider.

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Dr. Singhvi recounting how Delhi HC long ago kept a pre deposit of Rs. 50,000 for filing PILs but later withdrew it since it went against Article 226.

Art 226 is not only Constitutional right but also extraordinary.

Some people argue that even a Constitutional amendment circumscribing 226 will be violative of Basic Structure: Dr. Singhvi

#CalcuttaHighCourt

SG Tushar Mehta has rejoined the hearing.

We are not on merits of bail.

Our primary argument is could this court have gone into the issue in view of extraordinary circumstances: Tushar Mehta

The issue is in deciding a Section 407 plea can this court stay a bail order?

By a 407 order, can court stay a section 439 order: Justice Sen

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Dr. Singhvi resumes his arguments.

I am giving some starting bullet points under each issue.

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Will Your Lordships countenance a 407 order without an application filed under section 407?

407(3) mandatorily requires an affidavit which is absent: Dr. Singhvi

The May 19 plea was a retrospective validation of what was done orally on May 17: Dr. Singhvi

The special judge hears matter virtually on request by CBI.

There is no whisper of mention in that order about hearing being obstructed or access to court being disturbed: Dr. Singhvi

When order (by special judge) goes southwards, they are running here with oral prayers. But no whisper of it during four hours before special judge: Dr. Singhvi.

Are you saying that DB did not have benefit of seeing Special judge order? Dr. Sen

Yes. When the bulk of period when the matter was argued before DB, it did not have. It later came into DB's hands later in the day before order was passed by DB: Dr. Singhvi.

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Mehta interjects, says Singhvi is arguing on merits.

Singhvi says Mehta should not interfere.

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Singhvi says sting is from 2014. The accused persons are lawmakers from 2011: Dr. Singhvi

There are two Constitution Bench judgments of SC which says sanction for minister should be by Council of Ministers.

And for MLAs, it is speaker.

They get Governor's sanction when there is Constitutional vacuum (between government formation from May 5 to May 9): Dr. Singhvi

In view of such obviously unjust arrest, there was an emotional outburst.

CM went with family of accused and say in CBI office.

No minister obstructed Virtual hearing. One minister went to court complex with supporters: Dr. Singhvi concludes formulation of issues

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Sidharth Luthra now setting out the issues:

- natural justice violation
- judicial order cannot be cancelled by petition under section 407 or 226. The remedy if at all is section 439(2) or section 482

- writ is not the remedy. And no circumstances to invoke 482.

- chargesheet placed before Governor in Jan. What is the justification to arrest in May?

#NaradaScam

Police custody does not lie when investigation is over: Luthra.

- The transfer petition itself is not maintainable in view of Antulay's judgement and a series of other judgments: Luthra

- Their contentions oral and in pleadings are belied by the records: Luthra

- There is attempt to rely on case diary which is barred by s. 172 CrPC since investigation is over: Luthra

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- There is reliance on new reports which is not permissible

- Issue of liberty is sacrosanct and even judicial custody is deprivation of liberty: Luthra

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Sr. Adv Sudipto Maitra making submissions now.

Unless there is a valid order of remand, they cannot be kept in custody.

Senior Advocate Kalyan Bandhopadhyay says Calcutta HC Appellate Side rules says Section 407 petitions have to be heard by Single judge.

This issue has already been flagged by Dr. Singhvi: Bench

Whether Court can exercise all jurisdictions under articles 226, 227 and sections 482, 407 in one single matter: Kalyan Bandhopadhyay

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Advocate General Kishore Dutta asks can investigation agency seeking such petition on ground of law and order amount to undermining the independence of judiciary

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Whether any Constitutional or statutory provision empowers HC to transfer unto itself a criminal case at the stage of submission of report.

Our HC does not have any original criminal jurisdiction. No such power is provided under our rules: Dutta

Bench says it will frame the issues so that it is easy to hear the matter. Not that it is a civil suit.

Bench is now rising. Court says it will continue day after tomorrow.

Acting CJ says he is not available tomorrow.

Hearing ends for the day.

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