Stay of bail granted to four TMC leaders: An erroneous approach by the Calcutta High Court

The Calcutta High Court on May 17 stayed the order granting bail to four leaders of the Trinamool Congress (including two Cabinet Ministers in the West Bengal Government) passed by a Special CBI Court in Calcutta.

The four leaders - sitting Cabinet Ministers Firhad Hakim and Subrata Mukherjee, sitting MLA Madan Mitra and former Minister Sovan Chatterjee - had been arrested in connection with the Narada bribery case in which the Central Bureau of Investigation (CBI) has been conducting a probe since 2017. The CBI also filed its charge sheet against these four persons and virtually produced them before the Special Court on the same date.

The Special Court, after hearing the prosecution and the accused, decided to grant interim bail to the four TMC leaders. In its reasoned order, the Special Court considered that the investigation against the accused persons had been completed. Additionally, the Special Court was of the view that given the recent direction of the Supreme Court to ensure decongestion of jails, no purpose would be served by keeping them in judicial custody.

Prior to the bail hearing in the Special Court, earlier that day, the CBI had mentioned a writ petition before a Division Bench of the Calcutta High Court, presided over by the Acting Chief Justice, citing urgency. The CBI informed the High Court that the members of the ruling political party, including Chief Minister Mamata Banerjee, were impeding their activities by conducting dharnas outside the CBI office. It was also mentioned that one MP from the TMC party had entered the office of the CBI and was heckling the officers and staff.

The High Court took cognizance of the matter and conducted a special hearing on the same night. The prayers of the CBI included a direction for transfer of the case under Section 407 of the Code of Criminal Procedure (CrPC), 1973. The High Court, after hearing the CBI and the State of West Bengal, expressed its fear that the actions of the ruling party and “the manner in which pressure was sought to be put” do little to inspire confidence of the people in the rule of law. Citing the oft-quoted principle that justice must not only be done but also be seen to be done, the High Court deemed it fit to stay the order of bail passed by the Special Court.

Ordinarily, an order of bail can be challenged through an application for cancellation filed under Section 439(2) of the CrPC. However, the Supreme Court has also stated that the correctness of an order granting bail can be considered by an appellate or superior court and it can be set aside if “the court granting it did not consider material facts or crucial circumstances.” (See Sushila Aggarwal vs. State (NCT of Delhi) and another). The Supreme Court has held that such powers exist under the High Court’s inherent jurisdiction as saved by Section 482 of the CrPC as well. (See Puran vs. Rambilas).

In this article, I do not challenge the principle that a High Court has broad powers to consider the correctness of the order of a subordinate court granting bail. However, with great respect, the manner in which the Calcutta High Court decided to stay the order of bail passed by the Special Court leaves much to be desired. The High Court based its decision to stay the bail order on the singular logic that the manner and circumstances in which bail was granted would erode the confidence of the general public in the justice system. To quote from the order of the High Court:

“In addition to that the stand of learned counsel for the C.B.I. is that the Law Minister of the State along with supporters mobbed the Court where the accused were to be presented along with charge sheet. The Law Minister remained in the Court complex throughout the day till the arguments were heard. In these facts and circumstances if any order is passed by the Court the same will not have faith and confidence of the people in the system of administration of justice. Confidence of the people in the justice system will be eroded in case such types of incidents are allowed to happen in the matters where political leaders are arrested and are to be produced in the Court. Public trust and confidence in the judicial system is more important, it being the last resort. They may have a feeling that it is not rule of law which prevails but it is a mob which has an upper hand and especially in a case where it is led by the Chief Minister of the State in the office of CBI and by the Law Minister of the State in the Court Complex.”

While I do not argue that the apprehensions expressed by the High Court are unfounded, what is deeply worrying is the Court’s decision to stay the order of bail without even going into the grounds relied upon by the Special Court to grant bail. The principle to be extrapolated from the reasoning provided by the High Court is that whenever there is apprehension of political pressure upon a subordinate court, it is to be assumed that such a court not acting freely. Frankly, such a presumption is extremely dangerous and is likely to have an adverse impact on the morale of lower court judges.

It seems unclear as to why the High Court did not consider it appropriate to peruse the order of bail and examine whether it showed any prima facie bias or non-application of mind. The High Court’s decision to stay the order of bail may have been appropriate in the event bail was granted vide a non-speaking order without disclosing any grounds. In such a situation, it could have perhaps been presumed that the Special Court had not acted freely. However, in my humble view, the High Court missed a golden opportunity to contend with the reasoning provided by the Special Court and evaluate whether the grounds agitated by the accused persons merited an order of bail or not.

What makes the decision of the High Court even more suspect is that the stay was granted only upon hearing the CBI and the State of West Bengal. The accused persons were not given an opportunity to be heard by the High Court before passing the order of stay. It is also pertinent to mention that it seems, from the order of the High Court, that the order of bail was not directly impugned in the proceedings. In fact, the arguments of the CBI and the prayers made by it seem to only pertain to transfer of the case under Section 407 of the CrPC.

This order of the Calcutta High Court sets a dangerous precedent where the liberty of an individual is restrained summarily without considering the merits and facts of the case. The investigation against the four accused persons has been completed. Considering that they are prominent politicians in the State, they cannot be deemed to be flight risks either. There seems to be no purpose served by keeping them in judicial custody. Perhaps a better approach could have been to give the accused persons a chance to be heard before the High Court, and if the Court deemed fit after such hearing, it could have then set aside the order of bail. Restricting a person’s liberty on the presumption that the lower court did not act freely without engaging with the reasoning provided by the lower court to grant that very bail was perhaps not the way to go.

The author is an advocate at the Calcutta High Court.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.