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Supreme Court Dismisses WB Govt’s Plea Challenging HC Order Granting Protection To BJP’s Suvendu Adhikari

On December 13, 2021, bench of Justices D. Y. Chandrachud and A. S. Bopanna was hearing the state of West Bengal’s and Chakraborty’s wife’s challenge to the order of Justice Rajasekhar Mantha issuing a stay on proceedings initiated against Adhikari in respect of cases registered at Contai police station and the Nandigram police station on March 18. Against this order, the state of West Bengal had filed a batch of intra-Court appeals before a Bench comprising Justices Subrata Talukdar and Kesang Doma Bhutia. The Bench, dismissing the same, had observed, “This batch of analogous intra-Court appeals are held to be not maintainable”.

On December 13, 2021, Senior Advocate Kalyan Bandyopadhyay, for the state of West Bengal, submitted, “Can this sort of blanket stay order be passed by the single judge in view of your lordships’ orders in Neeharika Infrastructure (2021). In the impugned order, the single judge says that in the instant case, there is prima facie evidence of abuse of police machinery by registration of cases based on concoction. And this is on the very first day of the hearing, without calling for any affidavit! How can the court come to such a finding? And the court says that there shall be a stay of all proceedings!”

“Have you filed your counter before the High Court?”, asked Justice Chandrachud.

“No! Everything has been stalled, every proceeding. No coercive action shall be taken against them? Nothing will be done? The cases against him are that he abused police officers!”, urged Mr. Bandhopadhyay.

Justice Chandrachud pointed out that one of the allegations is of theft of tarpaulin sheets, and another about suicide committed by a personal security officer in 2018. The judge also observed that Neeharika was a case where High Courts do not give reasons for a ‘no coercive steps’ order, while here, the High Court has given reasons at the ad interim stage.

“What you do is this- file your return before the single judge and apply to the single judge either to vacate the interim order or to dispose off the petition expeditiously”, ventured the judge

“In that case, the matter would not be heard. 600 admission cases are pending before the court. Court will not decide”, advanced Mr. Bandhopadhyay.

“We will request the single judge…also, this is the order of the single judge order in a 226 petition. This would be subject to intra-court appeal?”, asked Justice Chandrachud.

Mr. Bandyopadhyay replied, “We have preferred an intra-court appeal. Clause 15 of the letters patent act gives the provision to prefer this appeal. Our appeal was dismissed, saying it is not maintainable. We have preferred an SLP also against that order”

As regards his contention that FIRs not subject of the writ petition are also stayed, Justice Chandrachud asked Senior Advocate Harish Salve, for Adhikari, “2 FIRs are not referred to in the prayers at all?”
Mr. Salve responded, “It is almost embarrassing to read those FIRs- that Some people stole Rs.5000 and a gold chain outside a Dhaba! And he and the persons who are supposed to have stolen are very affluent people. The idea is to grab them, to arrest them. These are the kind of FIRs. To use a term which Dr. (Rajeev) Dhawan (senior advocate) had coined a while back, this is ‘regime revenge’! We mentioned it to the court. This is the residuum of powers which the courts reserve to protect citizens…we say a lot about judges who, despite pressures, continue to work. The Single Judge was told that the SLP is pending. The advocate general was appearing. He was on a demurrer and took 2 objections. The court gives prima facie reasons. He says on the very first day, the decision was taken? If no reason is given, he would have come to the court to say no reason. The court is between a rock and a hard place. The court said file an affidavit in opposition in four weeks on 6th of September. We are today on December 13, they have not filed this affidavit!”
Senior Advocate P. S. Patwalia, who represented Adhikari before the High Court, also advanced, “The matter was heard for 4-5 hours a day for a month every day. The judge used to keep his entire list on the hold. Everything was argued threadbare. Repeatedly, the court told them ‘if you want to find an affidavit, please file an affidavit’. The advocate general used to appear. It is being uncharitable to the judge. All records were seen. And this is not a one-off scene. There are nine such people who crossed over after the declaration of results from TMC to BJP, and there are a series of cases against all nine. Three judges of the High Court have stayed all FIRs. 2 subsequent FIRs were brought to the notice of the court by way of an affidavit. The FIRs are ridiculous. That I was having food, two people came inside and stole my chain, and this was Done at the behest of Suvendu Adhikari! Another says that 25 tarpaulin sheets were stolen! The judge saw all this!”

Continuing, Mr. Salve advanced, “It is a Little uncharitable to say that the High Court jumped to this conclusion. It was a slow long walk to this conclusion, it took one month of submissions, from what Mr Patwalia says. The state took the risk of arguing this case without counter affidavit…it is a Tribute to all our courts that no judge is bothered by who is what.”

Justice Chandrachud asked, “Give us the gist of the FIR”.
Mr. Salve replied, “The substratum is that the miscreants acted on the instructions of respondent 1. It is not that he defected to the BJP. He contested against the incumbent chief minister and that became a big prestige issue. It is alleged that the Complainant stopped for tea at about 7 PM. A Convoy of cars arrived. On instructions of R1, they assaulted and stole Rs.5000 and a gold chain. The offences are under sections 341, 323, 506, 379 (IPC). One Murshad Ali has filed this. This FIR is filed after the writ petition. Judge said hold on for four weeks and then you can investigate this. It is not a terrorist attack. This is not somebody’s house burned down…there are a series of cases against a number of ppl- in one case, the matter comes for final hearing and the court is requested to not hear the challenge against the interim order as an SLP is pending before the Supreme Court”.
“The state tripped over its 2 left feet in this case…this is what happens when the state starts arguing off the record, what the state is saying is not in the paper book. We can put facts in a counter affidavit. But Your Lordships may consider if this court should remove this matter from before the single judge and hear it because of a problem with the dispensation in the state? If it is of that moment?”, continued Mr. Salve.

Senior Advocate Maneka Guruswamy, also for the state of West Bengal, also urged, “The legal principle at stake before Your Lordships is can the High Court, hearing a matter on staying and quashing, conduct a mini trial or a roving inquiry?”

Senior Advocate Anand Grover, for the petitioner-woman seeking investigation into the alleged suicide of her husband in 2018, advanced, “My husband was an employee of the state government deployed in the office and residence of respondent 1. On October 13, 2018, at 10 AM, I got a call from my husband that he is just going to wear his shirt and come home. Then, I got a call from my brother-in-law saying that a serious incident has taken place and my husband has been hospitalised. These facts are not disputed. He was shifted to another hospital. And then he subsequently succumbed to his injury. The post mortem revealed that there was a bullet in the head. Mine is a genuine case, not a political one. The single judge stayed everything, my husband’s death has not been investigated…The FSL cannot say it is a suicide because of a bullet injury in the head. There also has to be gunshot residue on my hand if I shoot myself, which was not found here. It created a doubt that it was a suicide! That it was after the election that I made a complaint (on July 7) does not detract from the fact that the death was not investigated”.

The bench then proceeded to dictate its order- “The special leave petition under Article 136 of the Constitution arises from an interim order of a single judge of the Calcutta High Court in a writ petition. The single judge has permitted affidavits-in-opposition to be filed within a period of four weeks and the reply, if any, within a period of two weeks thereafter. As of date, the state of West Bengal and the investigating officer are yet to file their replies. The observations of the High Court prima facie are in support of the ad interim stay which has been granted. Since the High Court is seized of the proceedings and the SLP arises from an interlocutory order, we are not inclined to exercise the jurisdiction of this court under article 136. We leave it open to the petitioners to file their responses, their affidavits in opposition before the High Court. Thereafter, the High Court may either consider taking up the petition under article 226 for expeditious final disposal, or in the event that it is not possible to do so, to consider any application which may be filed for modification of interim order based on the material which is produced by the investigating officer in the affidavit in opposition. Subject to the aforesaid direction, the SLP is disposed off. No final opinion is expressed on the merits of the issues which will arise in the pending writ petition before the High Court”.