New Delhi: Probing questions by the Supreme Court Tuesday on the Narada graft case put the Central Bureau of Investigation (CBI) on the back foot, leading to the investigating agency withdrawing its appeal against two Calcutta High Court orders passed on the case.
One such question posed by the top court was: “Who is more capable of influencing? The accused against whom chargesheet has been filed or the one against whom chargesheet is yet to be filed?”
A bench of Justices Vineet Saran and B.R. Gavai also turned down CBI’s verbal request to transfer the case from Calcutta High Court to itself, saying it would demoralise the judges. At the same time, the bench took strong exception to the high court staying the trial court order that granted bail to the Trinamool Congress (TMC) leaders arrested in connection with the case.
“We do not feel our judiciary is that weak to be influenced by a mob,” the judges further told Solicitor General Tushar Mehta, who had claimed that the atmosphere inside and outside the court in Kolkata was not conducive for hearings.
The Narada graft case relates to a sting operation by the Narada News website in 2016 that had allegedly shown TMC leaders, MPs and cabinet ministers accepting bribes. The CBI had registered a case on the matter in 2017.
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No order on merits of the case
On 19 May, a Calcutta High Court division bench, comprising acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee, gave a split verdict on the CBI’s plea against a trial court order that granted bail to four TMC leaders — cabinet ministers Firhad Hakim and Subrata Mukherjee, sitting MLA Madan Mitra and former minister Sovan Chatterjee — arrested in the Narada graft case.
The arrests drew sharp criticism from TMC leaders, who accused the CBI of making selective arrests and serving their “political masters in the Union cabinet”.
While Justice Bindal declined bail and ordered house arrest for the leaders, Justice Banerjee granted them bail.
Since there was a difference of opinion, the matter was sent to a larger bench for further examination. Later, on 21 May, both judges opined that the leaders should be kept under house arrest till the issue got decided.
Meanwhile, CBI appealed against both the 19 May split verdict and the 21 May’s unanimous decision on the leaders’ house arrest.
After hearing and cross-questioning SG Mehta, who was appearing for the CBI, for more than an hour, the two-judge Supreme Court bench felt it would be imprudent for the top court to entertain an appeal against an interim order while a five-judge bench of the high court is examining the matter.
“Either you withdraw or we shall be forced to hear the opposite side and deliver an order (on merits). It is your choice. Also, why do you want to deprive the HC of hearing it? Let us have the benefit of a HC order,” the bench told Mehta, who agreed with the court’s view after holding deliberations with the CBI officers.
“The solicitor has accepted the fact that issue is being heard by a five-judge bench of Calcutta HC. He has made a request that he be permitted to withdraw the petition with liberty to raise all such issues and all other contentions before the five-judge bench of the HC. All other parties shall also have liberty to raise such contentions available to them in law. We have not examined the matter or merits or are not passing any observations on the merits of the case,” the bench noted in its written order.
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Special bench to protect a person’s liberty, not take it away
The four TMC leaders, who were arrested on 17 May, were granted bail on the same day by a special CBI court in Kolkata. However, hours later, the HC bench stayed the bail order, without issuing notices to the accused.
Taking note of the “extraordinary manner” in which the special HC hearing was accorded to the CBI, at the latter’s behest, the top court remarked: “HC took up the matter at your request and heard it while it was pending before the special court. 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.”
Mehta then sought to highlight the “dharna” by West Bengal Chief Minister Mamata Banerjee as an extraordinary circumstance, compelling the high court to hold an urgent hearing.
Banerjee had reached the CBI’s Kolkata headquarters just an hour after the leaders were arrested and had asked the CBI to either “arrest her or release the ministers”.
On this, the top court observed: “We do not support the CM or the law minister (who attended the hearing in the special CBI court). But should the accused be made to suffer for their conduct?”
It further noted that the CBI was well within its right to proceed under law against the violators.
The judges were also surprised with the split verdict of the high court on the bail pleas. Justice Gavai specifically remarked: “I have been a lawyer for 19 years and also a judge for long time. If one of the two judges feels that bail is to be granted, then normally a senior judge goes by that view.”
“The practice is followed when a stay is to be granted,” added Justice Saran.
CBI asked for judicial custody before special CBI court
Mehta urged the Supreme Court to take the matter under its fold, in view of the hostile environment in West Bengal, which, he emphasised, was not new. Mehta recalled past incidents where the state government stalled the CBI probe at crucial stages of investigation.
However, the bench wondered whether people against whom chargesheet is filed can be more influential than those against whom there is no chargesheet. “There are two sets of accused here (in this case). So, who do you think can influence more,” Justice Gavai asked the solicitor general.
Noticing that the question stumped Mehta, the judge quickly clarified that as a lawyer he always took this argument for his clients whenever bail was sought after a chargesheet was submitted against them.
The judge further drew Mehta’s attention to CBI’s remand application filed before special CBI court in which the agency never asked for police custody. Instead, they requested that the accused be sent to judicial custody, considering they were in a position to influence the investigation pending against the other accused who have not been arrested.
Noting that the probe against the five arrested was complete, the CBI judge had released them on bail.
Meanwhile, in its appeal before the Supreme Court, the CBI claimed that it did not ask for police custody because of the breakdown of law and order in the city. However, this assertion was not made before the trial court.
During the arguments as well, Mehta made an attempt to justify the plea for TMC leaders’ judicial custody, but could not convince the judges.
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