Protection from Arrest: SC grants relief to BJP leader, but not to ex-Kolkata CP

Two different benches of the Supreme Court on Friday made parallel observations on a common issue concerning non-functioning of courts in West Bengal due to lawyers' strike.

The matter involved protection from arrest of two high-profile petitioners from West Bengal - former Kolkata Commissioner of Police Rajeev Kumar, who was declined any relief, and BJP's District President Siliguri, Praveen Agarwal, who was allowed relief. A vacation bench headed by Justice Arun Mishra rejected Kumar's plea seeking extension of protection from arrest observing that he should move a competent court in Kolkata. "Is it maintainable (the writ petition)? You can go to the high court or the trial court, the courts are functional there," the bench told advocate Sunil Fernandes, representing Kumar.

Fernandes insisted the court consider Kumar's plea citing lawyers' strike in West Bengal. "You are wrong. The courts are functioning there. Your client is a former commissioner of police who knows the law better than many young lawyers. He can personally go to courts there. Please do not force us to pass harsh orders or make harsh comments," said Justice Mishra, declining to entertain Kumar's plea. The CBI has alleged Kumar is responsible for destruction of evidence in the multi-crore Saradha scam.

The court told Kumar's counsel that Chief Justice Ranjan Gogoi had already passed an order on the matter and had also declined urgent listing. A court order uploaded later on the apex court website said: "A petition under Article 32 of the Constitution should not have been filed. Be that as it may, since it is open to the petitioner to approach the court concerned, he may appear in person and seek remedy as the courts in West Bengal are functioning." The state government had contended before the court that the CBI is attempting to falsely implicate Kumar.

In another matter in the court adjacent to Justice Mishra's, Praveen Agarwal, BJP District President Siligudi, contended before a bench headed by Justice M.R. Shah, that he apprehended he might fall victim to political vendetta of the ruling party.

"The petitioner apprehends that the notice under Section 160 CrPC issued to him could be a plot to call him as a witness and then arrest him in false and frivolous cases", Agarwal said in the petition. Observing Agarwal's contention, the court said, "It is very unfortunate that the strike is going on in all the courts in West Bengal and due to which litigants are the ultimate sufferers."

The bench headed by Justice Shah observed that in view of the peculiar facts and circumstances of the case, it has no other alternative but to entertain the present writ petition filed under Article 32 of the Constitution as Agarwal apprehended arrest. The court directed Agarwal to appear before the Investigating Officer concerned pursuant to notice issued to him, and cooperate with investigation. "However, the petitioner shall not be arrested till the next date of hearing," said the court in its order.

On diametrically opposite court orders on a common issue, West Bengal counsel, Fernandes said, "Today a three-judge bench headed by Justice M.R. Shah granted relief to petitioner Praveen Agarwal because of a strike in all the trial courts in West Bengal and the High Court. Rajeev Kumar was also in a similar situation. However, the top court in its wisdom felt that similar relief should not be granted to Kumar as his writ petition was maintainable against earlier judgment on May 17 of the SC".

Fernandes also said that the May 17 judgment had given seven days to Kumar to approach a lower court for bail, but in view of the lawyers' strike, he could not have effectively taken recourse to this liberty unless this period is extended till the time lawyers' strike was over.

(Sumit Saxena can be contacted at sumit.s@ians.in)

--IANS

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