The Telegraph
Saturday , April 12 , 2014
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Photo finish: govt relief after red face

- Higher bench stays Anubrata case order
Chief Justice AK Mishra

April 11: A Calcutta High Court division bench headed by the chief justice has stayed for three weeks the order of a single bench asking the director-general of police to explain why action was not taken against a Trinamul district leader accused in a murder case.

The three-week stay, unless challenged in a higher court and overruled, will mean that Anubrata Mondal, the Birbhum Trinamul president accused of instigating the murder of a dissident’s father last year, can function undisturbed till the Lok Sabha elections are over in the district on April 30.

The division bench will hear the case from now on.

The single bench of Justice Dipankar Dutta had taken “judicial notice” of newspaper photographs showing Mamata Banerjee on the same stage on Wednesday with Mondal.

The chief justice asked today why there is no clarification in Justice Dutta’s order why he took “judicial notice” of the matter (of Mamata sharing the dais with Mondal).

“Judicial notice” means a court is acting on its own after coming to know of some event. Article 226 of the Constitution says every high court “shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders or writs….”

After the single-judge bench made scathing observations yesterday and asked DGP G.M.P Reddy to be present in court at 2pm today, the government this morning moved the division bench. A division bench, which usually has two judges in Calcutta High Court, has the powers to overrule a single bench.

At 11am, government pleader Ashok Banerjee moved the division bench of Chief Justice A.K. Mishra and Justice Joymalya Bagchi.

“The single bench has made a comment on the chief minister. But the chief minister is not a party to the case. So, the observation referring to her should be set aside. The court has also directed the DGP to appear in person in court and we would appeal for a stay on this,” said Banerjee.

Justice Dipankar Dutta of the single bench had said yesterday: “I have taken judicial notice of the fact that accused Mondal has the blessings of the chief minister and it can be reasonably revealed that the DGP and other members of the special investigation team have not dared to take action because of political influences that the accused enjoys.”

Before the division bench today, government pleader Banerjee raised three points.

“The high court was moved by three accused in the murder case claiming innocence and demanding a CBI probe. How could a trial court accept a petition of the accused?” Banerjee said.

(In January, Nepal Chandra Roy and two others, who were also named in the FIR, had claimed they were falsely implicated and moved the high court seeking a CBI probe in the murder of Sagar Ghosh. The family members of the victim were later made a party to the case as they, too, raised the demand for a probe by the central agency.)

Banerjee added: “The single-bench judge has exceeded his jurisdiction by implicating the chief minister. Similarly, relating the speech (Mondal’s speech made on burning down houses of party dissidents) to the crime is also bad in law.”

Chief Justice Mishra and Justice Bagchi also raised three questions: “First, how is the leader’s (Mondal’s) speech related to the crime (the murder of Sagar Ghosh)? Second, why is there no clarification in the (Justice Dutta’s) order on why he took judicial notice of the matter (of Mamata sharing the dais with Mondal)? And, third, how can the accused, in any case, move court demanding a probe by another agency?”

Saying this, the division bench granted the stay order to the government.

Last July, Sagar Ghosh was shot dead four days after Mondal made a public speech in which he asked Trinamul supporters to burn down the houses of dissidents contesting the panchayat elections as Independents. Sagar Ghosh’s son Hriday, a Trinamul dissident, was contesting as an Independent.

Today’s division bench order said: “The state authorities are directed to produce all the documents related to the case, including the progress report of the investigation, before this court when the matter next comes up for hearing in the first week of May.”

Trinamul is banking on Mondal’s organisational strength also in the electoral battles of Satabdi Roy and Anupam Hazra in the two Lok Sabha seats in Birbhum. Mondal is among the 41 accused in the murder of Sagar Ghosh.

On today’s stay order, Hriday, the victim’s son, said: “We have not yet decided on the next course of action. We have faith in the law.”

The special investigation team appointed by the high court today moved the chief judicial magistrate’s court in Suri seeking permission for a polygraph test on the then officer-in-charge of Parui police station, Sampad Mukherjee, and the investigation officer Dwijaraj Sahana. The murder had taken place in Parui in Birbhum.

“The CJM has asked the SIT to serve notices on the two officers seeking their consent to the polygraph test,” said Ranjit Ganguly, the public prosecutor in Birbhum.