'If hearing was virtual & judge didn't know about protest, how is there an influence'

MP, 1 June 21, Kolkata: The five-judge bench of the Calcutta High Court on Tuesday continued its hearing in the Narada case, in which the CBI has sought to transfer the trial and to declare that the hearing in the trial court on May 17 — which led to bail being granted to four TMC leaders — was vitiated on account of mob pressure, Live Law reported. 

Solicitor General Tushar Mehta, appearing for the CBI, argued that a Court proceeding must not only be free of any judicial bias but must also reflect the same to the minds of the common man. 

He submitted that it is a settled principle of law that justice must not only be done but must also be seen to be done. 

"Principle of 'Justice must seem to be done' is engrained in the jurisprudence of many countries, including ours. This is more so in criminal proceedings...," Mehta argued. 

The submissions were made before a five-judges bench comprising Acting Chief Justice Rajesh Bindal, and Justices IP Mukherjee, Harish Tandon, Soumen Sen and Arijit Banerjee which is hearing the transfer application filed by the CBI in the Narada scam case. 

The Solicitor General started the arguments on Tuesday by giving a factual background of the case, relating to the dharna held by the Chief Minister before the CBI office and the demonstration led by the Law minister in front of the court complex to protest the arrest of four leaders. 

He argued that their presence was intimidating enough to vitiate the entire atmosphere. 

"The effect of terror engineered outside the CBI office and Court had an effect not only on investigating agency but also on the administration of justice," he submitted. 

He stated that the 'mobocracy' has not been disputed and it is admitted that members of the Legislative Assembly were present at the scene. 

He also insisted that these events are reasonably likely to leave an impression on the minds of the common man that the justice system was stifled with. 

"The bias here is not due to the Judge's personal prejudice but due to fear created by acts of people gathered outside the court. The judge may not have been influenced but the impression of common man has to be assessed," Mehta argued. 

At this juncture, Justice IP Mukherjee told Mehta that both open Courts and peaceful assembly are features of our Constitution and one cannot be perceived to be hindering the other. 

"In our country, there is a concept of open Courts. In our democracy, peaceful assembly and protests are allowed against executive action. So how does it create an impression in common man that such a protest will influence the judiciary?" the judge asked. 

Justice Soumen Sen also asked Mehta that how could he say that the Judge was influenced when firstly, the hearing was on a virtual platform and secondly, the Special Judge had no knowledge that people have gathered outside. 

"How is there an influence on the judge?" Justice Sen asked. To this Mehta responded: "It is not about what the Judge felt, he may not have known that people have gathered outside. But it is about what a reasonably informed common man would feel." 

The Bench also inquired as to why the CBI counsels did not seek for an adjournment from the Special Court. 

"They could have said that when things turn congenial, we will resume the hearing," one of the judges asked. Mehta persistently urged the Bench to not restrict itself to "softer issues" like bail and adjudicate upon the larger issue of purported 'mobocracy' during the arrest of a political leader. 

The Bench however asked the SG, "why should the accused suffer" for the acts of the mob. In response, Mehta stated that the gathering outside the CBI office and the Special CBI Court was well orchestrated and the only beneficiaries were the accused persons. The matter will continue on Wednesday. 

(With agency inputs) 

(http://www.millenniumpost.in/kolkata/if-hearing-was-virtual-judge-didnt-know-about-protest-how-is-there-an-influence-442031)