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Synopsis

In a special hearing on Saturday, a bench of the Supreme Court's five judges issued an order halting all proceedings before the Calcutta High Court in a case where a single bench had defied a stay order passed by a division bench.

A unique controversy had surfaced within the high court when Justice Abhijit Gangopadhyay on January 25,  ignored and declared an order of a division bench of Justices Soumen Sen and Uday Kumar illegal. He accused Justice Sen of showing favoritism towards a political party in West Bengal.

The background of the matter was that in a plea by one Itisha Soren alleging that in the State several persons had obtained fake caste certificates to get admission to medical courses, Justice Abhijit Gangopadhyay passed an order calling for a CBI inquiry on January 24. He ordered the Advocate General to transfer the investigation documents from the State Police to the CBI while stating that he had little faith in the West Bengal Police.

Notably, Itisha Soren's petition had not sought any direction for a CBI probe in the matter.

On the same day, the State government contested the aforementioned order before a division bench of the high court rather than the Supreme Court. The matter was mentioned before a division bench of Justices Soumen Sen and Uday Kumar by the Advocate General within a few minutes of the single-judge order being passed. 

The  Advocate General told the division bench that Justice Gangopadhyay had not allowed the State to effectively place on record the steps taken to investigate the case. Having considered the State's submissions, the division bench stayed the single-judge order. 

The division bench opined that unless the petition explicitly seeks a CBI investigation or there is a substantiated case warranting such an inquiry, the authority of the State to conduct a fair and impartial investigation should not be readily disrupted. The bench said that it would result in the "disruption of the co-operative federal structure of the country."

The division bench stayed the order passed by Justice Gangopadhyay, for a period of two weeks and adjourned the hearing till January 25.

However, the issue did not end with the stay order. Justice Gangopadhyay took up the matter for hearing again after the lunch break. As ordered in the morning session, a CBI officer was present in the courtroom. The judge, therefore, handed over the case documents submitted to the court by the State government to the CBI officer.  

Notably, the counsel for the petitioner, Itisha Soren, apprised the single judge bench that "the issue was brought up before a division bench on behalf of the state. However, Justice Gangopadhyay noted that no one from the State had communicated such information to him. Having made this observation, the judge posted the matter for further hearing again on the morning of January 25.

The next day, the division bench called Justice Gangopadhyay's order of handing over the case record to CBI void ab intitio. It, consequently, directed the CBI to return all the documents collected from the court by 29th January 2024 without retaining any copy to the learned Advocate-on-Record for the State. It also asked the CBI to not proceed with the matter any further.

Furthermore, the division bench went on to quash the FIR already lodged by CBI.

However, soon after the division bench's this order, Justice Gangopadhyay, in his order dated January 25, called the division bench's decision illegal. He held that since there was no memo of appeal nor any impugned order before the division bench, it could not have passed a stay order on the CBI probe.

Moreover, he made some scathing remarks against Justice Sen. He stated that Justice Sen was acting for a political party. He claimed that a few days back, he had been told by Justice Amrita Sinha that Justice Sen had called her and like a political leader he had dictated Justice Sinha to favour TMC leader Abhishek Banerjee. 

"What Justice Sen has done today is to advance the cause of his personal interest to save some political party in power in this State. Therefore, his actions clearly tantamount to misconduct," noted Justice Gangopadhyay.

He added,

"I do not know how a Judge, being Justice Soumen Sen, who is under an order of transfer for last more than two years, is acting here as a Judge defying the Supreme Court Collegium’s recommendation (dated 16th September, 2021) from this court to Odisha High Court. Who are the persons behind him, who are saving him from such transfer whereby the order of the Supreme Court Collegium can be ignored while the other Hon’ble Judges have been transferred by the same recommendation?"

As a result, he made a request to the Chief Justice of India to look into this matter and directed the Registrar General to send copy of his order to the CJI.

Moreover, he ordered that the FIR by the CBI would remain intact and CBI should start acting by investigating into the matter.

Suo Motu cognizance by Supreme Court

The Top Court on January 26, took suo motu cognizance of the orders passed by Justice Abhijit Gangopadhyay. It posted the matter for hearing on January 27 (today).

The matter was heard today by CJI DY Chandrachud led bench which also consisted of Justices Sanjiv Khanna, BR Gavai, Surya Kant, and Aniruddha Bose.

The next date fixed in the matter is January 29, 2024.