Manas Dasgupta
NEW DELHI, Sept 28: The Supreme Court on Tuesday issued notices to the union government and other respondents on the West Bengal government’s petition challenging the direction of the Calcutta High Court to hand over the serious post-poll violence cases involving alleged murders and rapes to the Central Bureau of Investigation.
In a fillip to the West Bengal government, the Supreme Court said it felt hat the State had “made out a case on the face of it” in its appeal against the decision of the Calcutta High Court.
“On the face of it, you have made a case for issuance of notice. Let us see. We will give a short time for respondents to file counter,” Justice Vineet Saran, heading a Bench also comprising Justice Aniruddha Bose, addressed senior advocate Kapil Sibal, for West Bengal.
The court fixed the hearing for October 7. The court directed West Bengal to serve the petition on the respondents. Sibal went on to urge the court to stay future filing of FIRs by the CBI but the court refused. “We don’t have to do it. Mr. Sibal, you know better than that… Anyway, it is only a week, nothing is going to happen,” Justices Saran and Bose said. Sibal said the CBI was already issuing notice to police officers in the cases. “You have argued about natural justice, we should not pass any order without hearing the other side,” Justice Saran responded.
During nearly two-hour-long hearing, Sibal made a case for issuance of notice by arguing that the Calcutta High Court Bench led by Acting Chief Justice Rajesh Bindal violated the natural principles of justice by “castigating the State, passing strictures against the State” without giving it “adequate time” to present the results of its investigation into the post-poll violence cases.
The High Court had shifted cases of rape and murder to the CBI. Other cases, including arson and looting, would remain with the Special Investigation Team led by a judge.
The senior lawyer contended that the High Court Bench did not even properly hear the State and whatever was presented in court before the Bench on affidavit was not “considered.”
“Can the High Court, acting under Article 226, order the en masse transfer of cases from the State police to the CBI in a federal structure? Should it not be, if required, transfer on a case-to-case basis?” Mr. Sibal asked and added there was no “concept of en masse transfer of cases.”
“As a consequence, investigation is on against people who are already dead… You castigate the State… Transfer the cases. But we have investigated and arrested people in these cases. But you go on to give us only seven days to complete the investigation when thousands of complaints have been filed… What we said was never considered,” Sibal submitted.
Sibal acknowledged that it was indeed the obligation of the State to “mete out justice” in these cases. “But you [HC] question as if every police officer cannot be trusted. You question as if every police officer is under the influence of the State government… Before coming to that conclusion, there should be some evidence. But you transfer the cases en masse without asking the same questions to the Centre where the party behind these complaints is in power,” Sibal submitted. He said the allegations made by the petitioners were treated as “facts” by the High Court.
“There can be no ascertainment of facts without an investigation. There should be prima facie ascertainment of the crime either by the National Human Rights Commission (NHRC) or under the Code of Criminal Procedure,” he said.
The High Court’s judgment of August 19, transferring the cases, was based on the findings of the NHRC committee on July 12. West Bengal had accused the committee of “apparent bias” and argued that the members of the committee were either “members of the Bharatiya Janata Party or were closely associated” with it.
The State’s petition had named two committee members, Atif Rasheed and Rajulben L. Desai, in this regard.
“Are you saying there should have been a proper investigation and not just an enquiry?” Justice Saran asked. “Yes, this is a process unknown to law,” Sibal contended.
Meanwhile, the Calcutta High Court on Tuesday refused to interfere with the schedule of the Bhabanipur state Assembly constituency bypoll scheduled to be held on Thursday. It rejected a petition seeking to cancel the September 4 notification of the Election Commission of India scheduling the bypoll from where the West Bengal chief minister Mamata Banerjee is contesting to enter the state Assembly.
The division bench of High Court comprising Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj, however, took exception to a letter by West Bengal Chief Secretary to the Election Commission of India (ECI).
“As the process of election was initiated with the issuance of press note dated September 04, 2021 and the polling has to be held on September 30, 2021 we do not find it appropriate to interfere with the decision of the Commission to hold byelection to Bhabanipur Assembly Constituency at this stage,” the order by the Bench said.
But the court recorded its “strong reservation about the conduct of the Chief Secretary in writing a letter to the Election Commission stating that there would be ‘constitutional crisis’ in case by-election to the constituency is not held.”
“He is a public servant, who is to discharge his duties in terms of provisions of law, whosoever may be in power. He is not to ensure that any particular person should come in power and in the absence there would be ‘constitutional crisis,” the court further added.
Banerjee who was defeated in Nandigram in the general elections in May, has time till first week of November to enter the state Assembly to stay as the chief minister. The chief secretary’s letter to the ECI seeking early by-election for the Bhabanipur seat apparently referred to Banerjee’s timeline which irked the High Court.