SC stays proceedings in Calcutta HC on single-judge bench declaring division bench order 'illegal'

Taking up the matter, registered as suo motu, a five-judge Constitution bench of Chief Justice of India D Y Chandrachud and Justices Sanjiv Khanna, B R Gavai, Surya Kant and Aniruddha Bose decided to consider the matter on Monday.

New Delhi: In a special sitting, the Supreme Court on Saturday stayed all proceedings before the Calcutta High Court arising out of an unprecedented development wherein a single judge bench of Justice Abhijit Gangopadhyay declared a division bench's order as "illegal" and accused another judge of "acting to save personal interest of a political party in power in West Bengal".

"We have taken charge now. We will take up the matter on Monday," a five-judge Constitution bench led by Chief Justice of India D Y Chandrachud said, acting suo motu.

The bench also comprised Justices Sanjiv Khanna, B R Gavai, Surya Kant and Aniruddha Bose.

"We are issuing notice to WB, original petitioner...We will stay all proceedings on the writ petition and Letter Patent Appeal as well as on order of CBI probe," the bench said in a brief hearing.

Attorney General R Venkatramani and Solicitor General Tushar Mehta on behalf of the Centre questioned the validity of the procedure where the division bench passed stay on the single bench's order without a proper appeal.

"We don't want to make prima facie determination at this stage, sometimes in exceptional circumstances...it can be done," the bench said

Mehta said this can be done in case of hanging or demolition etc.

"I am not here defending either single judge or division bench order," Mehta explained.

Senior advocate Kapil Sibal for the West Bengal that it would be filing an appeal against the orders passed by the single judge on January 24 and 25, 2024 in the matter. Senior advocate A M Singhvi appeared for TMC MP Abhishek Banerjee. 

Mehta also said they would be filing a note to assist the court on procedure of law.

He said the manner in which the order was passed by the division bench was objectionable.

The unusual development in Calcutta High Court took place on January 25, a day after the larger bench stayed Justice Abhijit Gangopadhyay's direction for a CBI probe into irregularities into MBBS admissions in West Bengal.

On January 26, the Supreme Court registered the suo motu case as 'In Re: Orders of Calcutta High Court Dated 24.01.2024 and 25.01.2024 and Ancillary Issues'.

In the order on January 25, Justice Gangopadhyay had termed the division bench order as illegal. The division bench was headed by Justice Soumen Sen and also comprised by Justice Uday Kumar.

The division bench had on January 24 stayed the direction for CBI probe into the matter and held the state government should be allowed to complete its own investigation into the matter.

Subsequently, on January 25, Justice Gangopadhyay said, "It is clear from the order of the division bench that when it was stayed there was neither any memo of appeal nor any impugned order before the court."

He accused Justice Sen of indulging in "misconduct" saying what the judge has done is "to advance the cause of his personal interest to save some political party in power in this State".

"No rule has been shown to me that an appeal can be preferred and the order can be passed thereon in this High Court without the impugned order and without the memorandum of appeal," the judge said in the written order.

"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," he added.

Justice Gangopadhyay requested Chief Justice of India to look into the matter also citing an instance when Justice Soumen Sen allegedly called another Justice Amrita Sinha in his chamber and asked her to stop live streaming of a case involving Abhishek Banerjee, TMC MP and nephew of West Bengal Chief Minister Mamata Banerjee.

"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 Judges have been transferred by the same recommendation," he wrote.