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Supreme Court while setting aside the impugned order dated June 9, 2021 by the Calcutta High Court, issued directions to the respondents to file their application in support of their counter affidavit by June 28, before the High Court.

A Division Bench of Justice Vineet Saran and Justice Dinesh Maheshwari, while pronouncing orders in the matter, said,

“The grievance of the petitioner is that the affidavits in reply filed by them on June 7 & June 9 have not been taken on record which according to them cannot be justified in law as they were not granted sufficient opportunity.

Detailed arguments have been raised by Counsel of the petitioners. SGI has however submitted that the High Court’s order is wholly justified as petitioner had been participating in the proceedings of the HC and did not file their response.

We are of the opinion that the respondents ought to have given an application to take respective counter affidavits on record specially when the arguments of the parties were going on and have progressed substantially.

We direct that the petitioners may file their respective applications in support to bring their counter affidavits filed on June 7 and June 9 on record by Monday June 28, after serving advance copies on counsel for the CBI and other necessary parties, on or before June 27. The CBI and other parties, if they so desire, may file a reply to the application therein by June 29.

We request the High Court to first decide the applications of the petitioners herein, before proceeding to decide the merits of the case.

Order dated June 9 stands annulled.”

After hearing preliminary submissions, Court expressed inclination to remand the matter back to the High Court, stating that,

“You all were aware of the proceedings, formally or informally. You chose to file the affidavit on June 7 and June 9. There can be a presumption that you chose to waive your right…

Mr Dwivedi and Mr Singh, in the midst of the hearing what has happened is, High Court thought that you wished to waive your right. However if you wished to place affidavit on record, you should have filed an application. The option given by SGI by filing an application before the High Court seems appropriate. If you agree, we’ll remand the matter back to the High Court.”

Appearances were made by Learned Solicitor General, Mr. Mehta for the CBI;

Senior Advocate Rakesh Dwivedi for the Law Minister and the State CM;

Senior Advocate Vikas Singh for the State of West Bengal.

Placing reliance on the order dated May 27, 2021 by the Calcutta High Court, Senior Counsel Singh submitted, “Your Lordship can't allow CBI to file an affidavit without an application and thereafter direct the state to file an application to merely file a counter.”

The matter was listed before the present bench after Justice Aniruddha Bose recused to hear the plea on June 22.

“This matter has been listed before us as it has been released by bench of Justice Gupta and Justice Bose. Since the matter was listed during the course of hearing, we could not read the files. By previous order, the court had directed the Calcutta High Court to not take up the matter on June 21 and June 22. Parties have further stated that the next date is tomorrow. We hope that the High Court will not take up the matter on 23rd or any date prior June 25”, said the present bench on last date of hearing.

Earlier, Justice Indira Banerjee had recused from hearing plea seeking CBI probe into West Bengal Post Poll violence citing some difficulty; “I have some difficulty. I cannot hear this matter.”

The Supreme Court on June 18 agreed to hear the plea by West Bengal Government and State Law Minister Moloy Ghatak against the Calcutta High Court’s refusal to place on record affidavits filed by them in the Narada Scam case.

The five Judge bench of the Calcutta High Court on June 9 refused to admit the affidavit filed by the state government on the ground that,

 “if the Petitioner wanted to file its response, time should have been sought at the time of issuing notice and not when the arguments are at an advances stage, more so when the Petitioner was a party, which only had to respond to certain factual assertions made in the pleadings by the CBI, in utter disregard to the Principles of natural justice and de hors the applicable rules of the High Court for completion of pleadings”.

Case Title: Moloy Ghatak v. CBI