In his two-page letter, a copy of which is available with IANS, Justice Sinha wrote that the Appellate Side Rules of the High Court, which govern the procedure of listing such matters, require that a motion seeking transfer either on the civil or the criminal side, has to be heard by a single judge.
The transfer petition under Section 407 of the Code of Criminal Procedure was taken up by a division bench of the High Court on May 17 based on an email sent by the CBI to the court and a mentioning made by Additional Solicitor General Y J Dastoor. “However, the first Division Bench took up the matter treating it to be a writ petition. Even a writ petition under Article 228 of the Constitution should have gone to the single judge having determination,” he said.
The communication (sent by the CBI to High Court on May 17) could not have been treated as a writ petition simply because no substantial question as to the interpretation of law has been raised, he added. “The mob factor may be a ground on merits for adjudication of the motion but could the first division bench have taken it up and continue to hear it as a writ petition is the first question,” the letter said.
The judge also questioned the manner in which the division bench stayed the bail granted by the special court to the accused on May 17.
“Whether the High Court exercising power in the matter of transfer of a criminal case at this stage on its own initiative could have passed the order of stay is the second question,” the judge opined. He questioned the high court’s stay on the lower court’s bail order, saying that the CBI’s application was not supported by an affidavit.
He also criticized the way the division bench was not available the next day and did not entrust another bench to hear the matter. “The public were presented with the situation of the high court having interfered with the liberty of their elected representatives and then it would not be available for that day to adjudicate on their liberty,” the letter said.
He also said that the two-judge division bench had a difference of opinion, with one favouring the granting of interim bail and the other not, but the procedures for such situations were not followed. In case of difference within a bench, a third judge’s opinion is usually taken, Sinha wrote, adding that it had not been done in this case.
“When the judges on a division bench differ on any point or issue, the same is referred to a third learned judge for opinion. In the premises, Rule 1 in Chapter II of Appellate Side Rules do not apply, Chapter VII provides for references to a full bench. Such reference arises when the view taken by a division bench is inconsistent with the view taken by another division bench,” it was stated.
Justice Sinha, therefore, requested all judges to salvage the situation by taking suitable steps including convening of full court, if necessary, for “reaffirming the sanctity of our Rules and our unwritten code of conduct”.
-(NAV, Inputs: Agencies)