Thread by @barandbench

Calcutta High Court 5-judge Bench to resume hearing in CBI transfer plea in Narada matter

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@AITCofficial @MamataOfficial

Read an exchange between lawyers hearing from yesterday's hearing

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Bench assembles; hearing commences.

Solicitor General Tushar Mehta resumes arguments.

He says he will conclude his arguments today

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Tushar Mehta now addressing the Court on maintainability of the petition.

Citing Appellate Rules of Calcutta High Court.

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Mehta cites provision empowering Chief Justice to list an appeal, question of law arising in an appeal or any other matter to Bench of 3 or more judges.

As a general rule, bail applications will go before single judge but there is exception for bail applications in pre conviction stage for offences which are punishable with more than 7 years: Tushar Mehta

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But de hors nature of proceedings, master of roster (Chief Justice) has power to sent a matter entertainable by single judge to a larger Bench: Tushar Mehta.

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This technical argument by them is the 'last resort of a losing litigant': SG Tushar Mehta

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Mehta maintains that his petition is not merely a section 407 petition but is a also a Art 226 petition read with S. 482.

Hence, rules on Art 226 petitions will apply: Tushar Mehta

Mehta point out how Supreme Court transferred a trial from Uttar Pradesh to Delhi based on a letter.

Of course, this is not something which can be exercised routinely. It is only in exceptional circumstances: Tushar Mehta

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Court says relevant rule on Art 226 is wrt to Public Interest Litigation. Will it apply to all Art 226 petitions: Bench

My submission is it will considering the facts and circumstances of the case: Tushar Mehta

The Chief Justice could have taken it as single judge. But he in his wisdom thought, let Division Bench deal with it: Tushar Mehta

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Bench asks why CBI adopted this extraordinary way to approach High Court. Why could CBI not have approached High Court by way of a normal appeal say two days later.

How would investigating agency be prejudiced if normal course was adopted?

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Mehta responds; says the merits of circumstances/ facts be ignored while looking into maintainability.

Bench points out that the CBI email of May 17 did not mention whether it was writ petition or appeal or section 482 plea

Mehta says court should consider maintainability divested of facts.

Was the procedure adopted so atrocious that the plea cannot be considered: Mehta

Whether what 'I could have done' should not affect Your Lordships consideration on whether the plea is maintainable: Mehta

Bench persists with question under what category the Email/ plea by CBI should be treated.

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Since Mehta has taken resort to a proviso in the Rules relating to PIL, court persists whether this is to be treated as a PIL?

#NaradaScam #WestBengal

Mehta says the notion should not be that PILs can be filed only by NGOs.

Explains the situation which forced CBI to file the present plea.

Says the plea by CBI can be treated as PIL also.

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Mehta reads out Cal HC judgment which say while writ petitions aside from Habeas Corpus matters go to single judge, inherent power of court confers powers for DBs to hear such matters.

There is no rule that writ petition has to be heard by single judge and single judge only, Tushar Mehta quotes the judgment

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Which Bench of High Court would hear the same is the prerogative of the Chief Justice: SG Tushar Mehta

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Mehta citing judgments which say matters heard by single judge can busy heard and decided by Division Bench though not vice versa subject to statutory provisions.

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Only two conditions for the same:

A. Chief Justice should allot;

B. Statute should not prohibit.

Tushar Mehta stresses on power and prerogative of Chief Justice as master of roster.

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Tushar Mehta places reliance on Constitution Bench judgment of Supreme Court in 2004 Dawoodi Bohra case that CJ has power to allot case to a bench of any strength.

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This judgment conclusively settles the issue: Tushar Mehta

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My nomenclature on email does not matter. I have mentioned as invoking jurisdiction under Art. 226 and 227: SG Tushar Mehta

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We don't have a system where Constitutional functionaries barge into office of investigation agency while some others gharaoe the court: SG Tushar Mehta

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Senior Advocate Kalyan Bandhopadhyay says he will be appearing as counsel for accused Subrata Mukherjee and in person as R8.

Bench rises for lunch. To reassemble at 2 pm.

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Bench reassembles; Hearing resumes.

SG Tushar Mehta continues.

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@AITCofficial

Jurisdiction under Articles 226, 227 and S. 482 is very wide: Tushar Mehta

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Tushar Mehta reading out judgment on accepting letters as petition.
Cites instance of Supreme Court taking up letter by Upendra Baxi as petition

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Section 439 CrPC requires that prosecution be given sufficient opportunity.

In this case, CBI did not get adequate opportunity: Tushar Mehta

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Prosecutor should be given a proper opportunity to show why bail should not be granted: Tushar Mehta

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Disturbances in audio.

Mehta refers to Delhi HC incident of yesterday in which a visitor was singing songs.

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Sidharth Luthra and SG Tushar Mehta says the petitioner @iam_juhi shared the link of hearing on her social media account and everybody jumped in.

Hearing continues.

Jurisprudentially there is difference for cancellation of bail and setting aside an order of bail: Tushar Mehta.

For setting aside order of bail, I don't need to show supervening circumstances which may happen after bail is granted.

I came here on ground that the proceedings itself were vitiated: SG Tushar Mehta

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You had argued that you are not challenging the order per se but you were on the proceedings being vitiated.

But your prayer now is to set aside the order: Justice Soumen Sen

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The order needs to be declared void due to atmosphere deliberately created to vitiate that order: Tushar Mehta

#NaradaCase #CalcuttaHighCourt

Under Section 439 CrPC, there is a mandate that public prosecutor be given adequate opportunity to oppose the bail as held in Gulab Rao: Tushar Mehta

In this case, I could not come out from CBI office.

My case diary could reach the judge physically only after hearing concluded.

I asked for time as well which was not granted: SG Tushar Mehta

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Justice Arijit Sen says if this bench has to decide on whether order needs to be set aside, then this Bench can decide on bail plea also.

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As an officer of court my answer is Your Lordships can. Only caveat is your Lordships should then give me hearing on bail aspect on merits after transferring bail petition here: Tushar Mehta

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Can we transfer trial to another court on ground of being vitiated but order that the interim arrangement ordered by us earlier continue till bail is decided: Bench.

My answer is once trial court proceedings go, Your Lordships order also go: Mehta

Mr. Mehta, you should also argue bail on merits: Acting CJ Rajesh Bindal says

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But in that respect, you will be replying to them (accused). They will have to argue for bail first: Acting CJ Rajesh Bindal

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SG Tushar Mehta concludes arguments.

Dr. AM Singhvi commences his submissions on behalf of accused.

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@DrAMSinghvi @AITCofficial

Five issues arise in the matter: Dr Singhvi.

He however clarifies these are not issues like in a civil suit.

Better word would be 'heads of submissions' : Dr. Singhvi

Five issues are:

1. On established principles of bail jurisprudence, should the May 17 order by special judge be reversed.

This is the single most important issue: Dr. AM Singhvi

2. What is the additional implication qua the accused of admittedly not being heard on May 17 by Division Bench of High Court?

3. Prima facie, regarding order of release of accused is the absence of sanction from a competent authority severely damaging the Prosecution case?

4. Would it be a valid exercise of 407 powers to transfer the present case from the special judge to High Court/ any other court?

5. The mobocracy issue: Even if question 4 were answered in the negative against CBI, should special judge proceedings be declared null and void on a 226/227/482 basis?

My second leg is submissions is general observation:

- it is truly an extraordinary case.
- from the arguments heard in great detail one thing is clear. Under no circumstances does CBI want facts or context. It just wants to look only at issue 5 alone.

The CBI does not want to look at issues 1 to 3 given by me and marginally wants to look at 4.

It is only on issue 5 that CBI wants to look into: Dr. AM Singhvi

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It is necessary for CBI to so argue by adopting a macro approach because they and we know the God and devil lies in the details and inconvenient truth lie in those details which they want to avoid.

Hence they want to avoid first 4 issues.

Hence, all queries are met with answers like 'mobocracy, vitiated, law and order' etc.

They don't want court to go into details: Dr. Singhvi.

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The mobocracy argument proceeds on a fundamental fallacy which has gone unnoticed: Dr. AM Singhvi

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The fallacy is that all cases cited by then is on a single principle - Nemo Judex or principle bias: Dr. Singhvi

There is nothing known in Indian law where perception argument can lie based on law and order.

No principle is there in any a country which suggests that to examine obstruction or access to justice, perception of common man is a ground.

If this is accepted, then no actual obstruction would be needed.
Only a perception of a common man would be required: Dr. AM Singhvi

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#WestBengal

In such a scenario, any protest on the streets of Kolkata would be obstruction. The problem with that argument is no actual obstruction, bias or denial of access to justice needs to be shown: Dr. AM Singhvi

#NaradaScam #NaradaCase

How does one write a judgment controlling this unruly horse (perception argument). How will a court boundary this vague argument? Dr. AM Singhvi

#NaradaScam

Bench rises.

Next hearing on Monday, June 7 at 11.30 am

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@MamataOfficial @AITCofficial