On June 25,2021, the Supreme Court asked West Bengal chief minister Mamata Banerjee and Law Minister Moloy Ghatak to file fresh applications before the Calcutta High Court giving reasons for their late filing of affidavits in the Narada scam case.
A Vacation Bench of Justices Vineet Saran and Dinesh Maheshwari allowed the Chief Minister, Mr. Ghatak, and the State government to apply to the High Court again for permission to file their affidavits by June 28, 2021.
The Supreme Court also requested the Calcutta High Court to consider their applications afresh on June 29, the next date of hearing.
The Supreme Court further said that it did not get into the merits of the case, but went to the extent of opining that the petitioners (Chief Minister, Mr. Ghatak, and the State government) ought to have first applied to the Calcutta High Court, urging it to take their counter-affidavits on record, “especially when the arguments were going on [in the Narada case] and had progressed substantially”.
Submissions of CM and Law Minister
Senior Advocate Rakesh Dwivedi appeared for Chief Minister Mamata Banerjee and Law Minister Moloy Ghatak submitted that the effective arguments before the larger bench started only on May 31, 2021. On May 27, 2021, the larger bench stated that it would first decide the applications before proceeding with the case relating to bail granted to TMC leaders in the Narada scam.
On June 2, 2021, the CBI filed an additional affidavit. On June 3, 2021, The Solicitor General finished his arguments for CBI. On June 7, 2021, The State filed its counter. On June 9, 2021, Banerjee and Ghatak filed their counter-affidavits.
Further, the counter-affidavits of Banerjee and Ghatak stated the allegations made by the CBI that the protests led by them on May 17, 2021, against the arrest of TMC leaders vitiated the bail hearing before the Special CBI Court at Kolkata.
However, the bench refused to take the counter affidavit of Banerjee and Ghatak by stating that it was an attempt to fill the lacunae after the arguments of the Solicitor General.
Mr. Dwivedi remarked that “the concept of 'not-allowing filling of lacunae' is only there in civil proceedings and not in criminal proceedings",
Submissions of State of West Bengal
Senior Advocate Vikas Singh, showing up for the State of West Bengal, stated that the Calcutta High Court rules offer the right to a party to file a reply. It was only out of courtesy that the State asked for permission to file a reply, otherwise there was no need to ask such consent since it's anything but a right. Such right can't be presumed to be surrendered. Only if the High Court has given a time limit to file a reply, the filing of counter-affidavit can be barred beyond such time-limit, Mr. Singh said.
On May 27, 2021, the State was impleaded as a party, and notice was also served to the law minister and Chief Minister. On May 31, 2021, the State marked an objection to the maintainability of the petition.
On this Mr. Singh stated that the 5-bench judge had decided to first hear recall applications of 4 TMC leaders and from May 27,2021, the bench will hear the arguments related to recall applications.
Submissions of CBI
Solicitor General Tushar Mehta, showing up for the CBI, stated that the Advocate General was available in all procedures, and orders of May 17 and 19 were passed only after hearing him. Even though the State was not joined as a party then, at this point, the Advocate General was heard.
Further, General Tushar Mehta, said that “what was filed by CBI on June 2, 2021, was not an affidavit, it only a chronology of events, which was presented on the request of a bench made after oral arguments on May 31,2021.
He also stated that the State was represented throughout the hearing and that they waited till June 9., 2021 taking a "calculated risk", to file the affidavits belatedly, to "fill up the lacunae" within the case.
The Solicitor General also stated that the Supreme Court can ask the parties to form an invitation before the Calcutta High Court asking for permission to file an affidavit.
Bench asked parties to approach the High Court within the application
First of all, Justice Saran asked Senior Advocate Vikas Singh that, if an application was filed alongside the affidavit asking for permission to take it on record.
Justice saran remarked that,
You were aware of the proceedings from Day 1. You decided to file it on 7 and 9. There can be a presumption that you simply waived your right. Whether that presumption is true or not is another matter. Why you haven't, there should be evidence. Is there any application?".
Further Justice Maheshwari added that,
"If while hearing, if you would like to put anything on record, probably you were required to submit an application stating why the affidavit could not be filed earlier",
The Bench submitted that it can remand the matter to high court if the parties are ready to file such an application. On this Dwivedi answered that "The reasons stated within the impugned order will come in our way".
The bench stated that it'll ask the high court to think about the matter afresh. The Solicitor General stated that the right of the CBI to oppose such an application ought to be reserved. However, the bench informed the SG that such a right follows the freedom granted to the parties.
Senior Advocate Vikas Singh stated that if CBI might be allowed to file an affidavit without an application on June 2, 2021, the state couldn't put to special treatment. The bench said that it had been not going into the merits of the dispute and can leave all contentions open to be raised within the application.
The bench said that it'll put aside the June 9 order, and can ask the parties to file the application to accept the affidavit on June 28,2021. The high court is slated to listen to the matter next on June 29.
At the last hearing, the bench had adjourned the matter as the same has been enrolled during the day on account of Justice Aniruddha Bose. The court further extended the order of the bench which is headed by Justice Hemant Gupta on 18th June 2021, pertaining to the Calcutta High Court being requested to not take up the matter before the instant pleas are heard.
The high court further remarked that,
"The Respondents have taken a calculated risk in not filing their affidavits at the right time, now they cannot be allowed to do so at their whims and fancies, whenever they wish to do the same. The urgency of the matter could be appreciated on behalf of the accused, who were in custody but it cannot be on behalf of the State, hence, if the State or other persons impleaded by the CBI wanted to file their response, time could have been sought at that time and not when the arguments are at an advanced stage".
The pleas have been filed before the Supreme Court that ‘rights which is granted by law should not be hampered’, especially when the CBI was permitted to file additional affidavits. This was also presented by Senior Advocate Rakesh Dwivedi, appearing for the law minister who submitted that if the affidavit was ignored then the interest of justice would not be served.
However, Solicitor–General Tushar Mehta had objected to affidavits being taken on record in light of the arguments being completed.
Earlier the petition was filed by the State and the State Law before the Supreme Court and later the new petition has been filed by Chief Minister Mamata Banerjee.
Direction issued by the Supreme Court:
- Given the fact, on 29.06.2021 is the date fixed before the High Court, that the petitioners can file their respective application giving reasons to bring the counter-affidavits filed by them on 7.06.2021 and 9.06.2021 respectively on 28.06.2021 (Monday), after serving the advance copies on the counsel for the CBI and other parties before 27.06.2021.
- We request the High Court to first decide the aforesaid application of the petitioners, for taking the counter affidavit in response on record, before proceeding to decide the merits of the 5 cases.
- They further added that to avoid any kind of discrimination or loss to any parties, the order dated 9.06.2021 shall stand cancelled and the High Court shall decide the matter de-nova. After deciding the aforesaid applications of the petitioner, the high court can decide further the course of action and proceed with the matter accordingly.
Moloy Ghatak, State of West Bengal Vs CBI Mamata Banerjee Vs CBI