In a fillip to the West Bengal government, the Supreme Court on Tuesday said the State had “made out a case on the face of it” in its appeal against the decision of the Calcutta High Court to hand over post-poll violence cases, involving murder and rape, to the CBI.
“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 issued notice to the Union of India and other respondents in the case. It fixed the hearing for October 7. The court directed West Bengal to serve the petition on the respondents.
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Mr. Sibal went on to urge the court to stay future filing of FIRs by the CBI.
“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 replied.
Mr. Sibal said the CBI was already issuing notice to police officers in the cases.
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“You have argued about natural justice, we should not pass any order without hearing the other side,” Justice Saran responded.
During the nearly two-hour-long hearing, Mr. 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,” Mr. Sibal submitted.
Mr. 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,” Mr. 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 argued that the members of the committee were either “members of the Bharatiya Janata Party or were closely associated” with it.
West Bengal has accused the committee of “apparent bias”. 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,” Mr. Sibal contended.