SC 'takes charge' amid tussle between 2 HC judges; stays proceedings

Seeking to resolve a piquant judicial situation, the Supreme Court on Saturday decided to 'take charge' and stay all proceedings in a tussle between two benches of the Calcutta high court over institution of a Central Bureau of Investigation (CBI) probe into alleged irregularities in issuance of caste certificates to candidates aspiring for reserved category seats.

A five-judge bench of the apex court chaired by Chief Justice D Y Chandrachud sat on a holiday to address the dispute where a defiant judge overruled an order of a division bench that had quashed his direction for a CBI probe and asked the central agency to go ahead with the investigation.

Justice Abhijit Gangopadhyay had accused brother judge Soumen Sen of the division bench of pandering to the interests of West Bengal's ruling party to overrule his order for a CBI probe.

The apex court, in probably an unprecedented step, taken cognisance of the unpleasant situation on Friday, constituted a five-judge bench, and decided to hold a special sitting today to resolve the issue that understandably caused it great discomfiture.

The Supreme Court stayed all proceedings before the Calcutta high court and execution of the orders issued by the two benches.

"We will stay further proceedings. We are issuing notice to the State of West Bengal and the original petitioner before the HC. We will list the proceeding on Monday again. We will stay all further proceedings in the writ petition and the Letters Patent Appeal and the implementation of the single bench order referring the investigation to CBI," the bench, also comprising justices Sanjiv Khanna, B R Gavai, Surya Kant and Aniruddha Bose, said.

The top court also allowed the West Bengal government to file separately a Special Leave Petition (SLP) against Justice Gangopadhyay's order for a CBI probe into the alleged irregularities.

Justice Kant joined the proceedings through video conferencing as he was out of station.

Justice Gangopadhyay had overruled the decision of a division bench of Justices Soumen Sen and Uday Kumar Ganguly which had quashed his order of registering a first information report (FIR) in the case.

In the course of hearing on Saturday, Senior advocate Kapil Sibal, appearing for the West Bengal government, said the state intended to file an appeal against Justice Gangopadhyay's order for a CBI probe.

Solicitor General Tushar Mehta, representing the CBI, submitted the order of the division bench lacked jurisdiction as it stayed Justice Gangopadhyay's order without even an appeal memo having been filed.

"I am more concerned about passing of an order without an appeal memo or any impugned order in place. This court had under Article 141 prohibited the same. I am not here defending either a single judge or division bench order," Mehta said and sought permission for the CBI to file a note on the issue.

"We will take this up on Monday, We have taken charge now," the bench said.

A single-judge bench of Justice Gangopadhyay had on Thursday held that the order passed by the division bench of Justices Soumen Sen and Uday Kumar Ganguly was wholly illegal and needed to be ignored. He asked the CBI to go ahead with the probe.

Justice Gangopadhyay had on Wednesday directed the CBI to launch an investigation, saying he had no faith in the state police.

He had passed the order on a plea by MBBS aspirant Itisha Soren alleging irregularities in the admission process for candidates belonging to the reserved categories.

The West Bengal government rushed to the division bench on Thursday and it imposed an interim stay on the order passed by Justice Gangopadhyay.

A defiant Justice Gangopadhyay took up the matter the same day and asked the Advocate General how a stay order could have been passed without a memo of appeal and the impugned order in place.

"I have no other option but to ignore the order of the said Division Bench as the order has been passed in continuation of the illegal appeal void ab initio. I have ignored the said illegal order passed by the said Division Bench for the reasons as has been stated above including the ground of 'interested person' Hon'ble Justice Soumen Sen...

"Thus, Justice Sen is acting clearly for some political party in this State and, therefore, the orders passed in the matters involving State, are required to be relooked if the Hon'ble Supreme Court thinks so," Justice Gangopadhyay said.

He also alleged what Justice Sen has done 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, he said.

"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 September 16, 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?" Justice Gangopadhyay wrote in his order.

Justice Gangopadhyay had angered the apex court in April last year when he demanded from the Supreme Court's secretary general documents that were placed before a bench headed by Chief Justice Chandrachud involving a case related to Abhishek Banerjee, a top Trinamool Congress leader and nephew of Chief Minister Mamata Banerjee.

Justice Gangopadhyay had directed the apex court secretary general to provide him the translation of his controversial interview on the West Bengal teachers' recruitment scam that was placed before Justice Chandrachud Justice P S Narasimha.

Abhishek Banerjee, a Lok Sabha MP, is being probed in the alleged scam.

A bench of Justices A S Bopanna and Hima Kohli had sat late in the evening and stayed Justice Gangopadhyay's order.

A bench led by Justice Chandrachud had then directed Justice T S Sivagnanam, the acting chief justice of the Calcutta high court, to reassign the case to another judge.