Mamata Banerjee-I-PAC Case: Supreme Court To Hear ED Plea For CBI Probe On September 2

The Bench of Justices P.K. Mishra and N.V. Anjaria heard extensive submissions on the maintainability of the ED’s plea under Article 32 and whether the matter should be transferred to the CBI.

Solicitor General Tushar Mehta, appearing for the ED, maintained that the agency was pressing its plea and urged the Court to decide the issue rather than leave it to the present West Bengal government following the change in government.

“We are pressing our petition. We want Your Lordships to decide whether we are right or wrong,” Mehta submitted.

He said the ED did not want a subsequent decision by the State government to transfer the case to the CBI to invite allegations that the transfer was politically motivated merely because there had been a change in government.

“We don’t want to fall into that trap,” Mehta said, adding that the Court could either dismiss or allow the petition, but should decide the issue itself.

Earlier, Senior Advocate Menaka Guruswamy, appearing for the respondents, submitted that with the change in government in West Bengal, the present government could decide whether the matter should be investigated by the State police or transferred to the CBI.

The Bench questioned why the Court should decide the issue if the State was now willing to consider the appropriate course of investigation.

Guruswamy, however, objected to the Court itself directing a transfer and maintained that the respondents were not conceding anything.

Additional Solicitor General (ASG) S.V. Raju raised a broader question: whether an alleged offence committed by a sitting Chief Minister should be investigated by the State police or transferred to the CBI.

Guruswamy responded that this was not the basis on which the matter should be decided.

During the exchange, Mehta told Raju: “Maintain your dignity, Mr Raju. At least you are a senior law officer.”

Raju later submitted that the issue had to be examined with reference to the circumstances prevailing at the time of the alleged offence and not merely because there had subsequently been a change in government.

Raju told the Court that he had completed his submissions and relied on several judgments, including State of West Bengal v. Committee for Protection of Democratic Rights, to contend that the Supreme Court had the power to direct a CBI investigation.

He also relied on Section 156 CrPC, submitting that the ED could not obtain the relief it sought by approaching a Magistrate, as the Magistrate did not have the power to direct investigation in the manner sought.

Raju said he had also addressed the maintainability of the petition under Article 32.

He submitted that offences including theft were also made out and said a list of alleged offences had been placed before the Court. Raju further relied on A.K. Antulay to contend that any person could set the criminal law in motion.

He also addressed the ED’s plea concerning cross-FIRs and pointed to the prayer seeking a writ of mandamus directing registration of an FIR over the alleged obstruction of public officials.

Guruswamy, appearing for former Chief Minister Mamata Banerjee and other respondents, objected to the matter proceeding to merits. She submitted that she, Senior Advocates Kapil Sibal and Shyam Divan, had so far argued only on maintainability and had not been heard on merits.

“We will file written submissions,” she said.

Justice P.K. Mishra, however, observed: “There won’t be piecemeal hearing.”

The Bench said the questions of maintainability and merits were intertwined.

“There is nothing on merits. If you argue on merits, whatever it is, then there will be difficulty for you,” the Bench told Guruswamy.

Guruswamy responded: “Then rule on merits.”

Justice Mishra observed that if the Court found the plea maintainable, it could refer the matter to the CBI. However, if the parties wanted the Court to decide the merits, “we will say something you should be ready for.”

“Please begin,” the Bench said, asking Guruswamy to address the merits.

Guruswamy thereafter began her submissions by stating that her first argument would be on maintainability.

Justice Mishra said, “We will go by the watch.”

Guruswamy replied: “My Lords will go by the Constitution, I know.”

Justice Mishra responded: “We will regulate our Court.”

Guruswamy submitted that the protection available to every citizen under Part III of the Constitution would be diluted if the Court did not first determine the maintainability issue. She said the respondents had proceeded on the understanding that the Bench would decide maintainability first.

“Be that as it may, I have five judgments to submit that a writ petition seeking registration of an FIR is not maintainable,” she submitted.

She began with Sakiri Basu v. State of Uttar Pradesh, asking the Bench to consider the judgment.

Raju countered that Sakiri Basu itself dealt with maintainability. He argued that the Magistrate could not direct a CBI investigation, which was why the ED had approached the High Court under Article 226.

Guruswamy responded that the ED had filed a writ petition and said the matter raised the question of whether registration of an FIR could be directed through a writ petition.

She subsequently relied on the Kantilal Patel judgment. Raju responded that he did not want the West Bengal Police to investigate and argued that the judgments relied upon by Guruswamy concerned cases where investigation by the local police was sought.

Guruswamy also informed the Court that the respondents would place on record a note citing 12 judgments which, according to her, consistently held that matters involving adjudication of disputed facts should not be decided under Article 32.

At the conclusion of Tuesday’s hearing, the Court directed Solicitor General Tushar Mehta and ASG S.V. Raju to conclude their arguments on merits. Guruswamy had not yet concluded her submissions on merits.

The matter has been posted to September 2, at the top of the board, at 2 PM.