Two Different orders - Are courts functioning in West Bengal, Supreme Court says yes and noMay 24 2019
Two vacation Benches of the Supreme Court which sat today have taken diametrically opposite stances in relation to the factual position regarding the functioning of courts in West Bengal.
This has led to the two Benches passing contrary orders, one granting relief and the second refusing relief in two petitions which had been filed on the same grounds.
One petition was filed by former Kolkata Police Commissioner Rajeev Kumar who was seeking protection from arrest. A three-judge Bench of the Supreme Court had earlier granted him a seven-day window by the Supreme Court to approach appropriate forum seeking protection from arrest. However, with the lawyers strike in West Bengal resulting in courts remaining closed, Kumar was forced to approach the Supreme Court under Article 32 seeking extension of the said period of seven days.
Bench of Justices Arun Mishra, BR Gavai and Suryakant
A Bench headed by Justice Arun Mishra heard the matter today and noted in its order that an application has already been filed by Kumar in the main case which is being heard by a three-judge bench. Thus, an Article 32 petition seeking the same relief would not be maintainable.
"A petition under Article 32 of the Constitution of India cannot be said to be maintainable as the petitioner has also filed an application for extension of time before this Court. A bench of Hon’ble the Chief Justice of India, Hon’ble Mr. Justice Deepak Gupta and Hon’ble Mr. Justice Sanjiv Khanna, on 17.05.2019, has passed an order, which is at page Nos.155-162 of this petition. In view of the aforesaid, a petition under Article 32 of the Constitution of India should not have been filed."
It then went on to note that the courts in West Bengal are now functional and hence Kumar can approach the concerned court seeking relief.
“Be that as it may, since it is open to the petitioner to approach the concerned Court, as the Courts in the State of West Bengal are functioning, appear in person and seek the remedy before the concerned Court. 1 With the liberty to seek remedy to approach the concerned Court in the State of West Bengal, this writ petition is disposed of.”
Bench of Justices MR Shah, A Bose and AS Bopanna
However, in another petition filed by a BJP leader Praveen Agrawal a vacation bench headed by Justice MR Shah has stated opposite facts in relation to the strike in West Bengal. The order passed by Justice Shah states notes that due to lawyers strike in West Bengal the petitioner cannot be allowed to suffer.
“Learned Senior Counsel appearing for the petitioner has submitted that due to the strike in all the trial courts as well as the Calcutta High Court in the State of West Bengal, the normal judicial function is paralyzed and therefore, the petitioner is not in a position to approach either the trial court or the Calcutta High Court. It is very unfortunate that the strike is going on in all the courts in the State of West Bengal and due to which, ultimate sufferers are the litigants. By such a strike, the entire judicial function cannot be made paralyzed and the litigants cannot be allowed to be suffered. Therefore, as such, a day has come to stop such illegal strike. We hope and trust that wiser counsel will prevail. The Bar Council/concerned Bar Associations may look into the matter with all seriousness."
In view of the peculiar facts and circumstances of the case, the Court held that it has no other option but to entertain the writ petition under Article 32.
“In view of the aforesaid peculiar facts and circumstances of the case, we have no other alternative but to entertain the present writ petition filed under Article 32 of the Constitution of India as the petitioner is apprehending his arrest."
The Court, therefore, issued a notice in the matter and also granted him protection from arrest till the next date of hearing.
“Issue notice returnable in the first week of July, 2019. In the meantime, by an ad interim order, it is directed that the petitioner may appear before the concerned Investigating Officer pursuant to notice under section 160 of the Code of Criminal Procedure issued to him by the concerned Police Station, within a period of one week from today and the petitioner shall cooperate with the investigation.
However, the petitioner shall not be arrested till the next date of hearing.”
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