Division bench of Calcutta High Court asks Registrar General to explain why stay order was not communicated to single-judge

The tussle between contradictory orders passed by a single-judge and a division bench of the Calcutta High Court in the fake certificate scam case intensified on Thursday with the latter asking the Registrar General why its stay order passed on January 24 was not communicated to the single-judge [Backward Classes Welfare Department vs Itisha Soren]..A division bench of Justices Soumen Sen and Uday Kumar had on Wednesday stayed the order of single-judge Justice Abhijit Gangopadhyay to hand over the probe in the case to the Central Bureau of Investigation (CBI).Despite the same, the single-judge sat on Wednesday afternoon and handed over the documents related to the case to the CBI counsel. In his order, the Justice Gangopadhyay claimed that the State did not inform him of the division bench order..When the matter came up for hearing again on Thursday, the division bench quashed the said order of the single-judge and further directed the CBI to return the case papers to the State Police without keeping copies of it. The same has to be done by January 29, the division bench ordered.It also clarified that Justice Gangopadhyay did not properly exercise his 'extraordinary powers'. It noted that a clear direction was given to the Registrar General to inform the single-judge as well as the CBI counsel about its order staying Justice Gangopadhyay's order. Yet, the same was not done and case papers were handed over to the CBI and an FIR was lodged by the central agency on Wednesday night.Hence, it sought a report in this regard from the Registrar General. "The office of the Registrar General must file a report for not communicating our order dated January 24, 2024 to the CBI as we have specifically directed the Registrar General to communicate to the CBI that the presence of an officer from CBI at 2:30 PM could not be necessary in view of the stay of operation of the impugned order," the division bench ordered.The Registrar General has to disclose the circumstances under which the order of the single-judge was communicated to the CBI notwithstanding the stay order passed on the same day before the lunch recess.This report, the bench ordered, may be filed on or before February 15, 2024. The division bench further clarified that its order passed on Wednesday barring the CBI from probing the scam will operate for four weeks or until further orders..Wednesday, January 24.The petitioner Itisha Soren had moved the High Court alleging that the practice of issuing fake caste certificates was rampant in the State and that several persons have obtained such certificates to get admission to medical courses. The matter had first come up before Justice Abhijit Gangopadhyay on Wednesday morning. The judge passed an order calling for a CBI inquiry while also castigating the West Bengal Police and the State government.This, despite the fact that the petitioner had not sought a CBI probe.However, the single-judge said he has little faith in the West Bengal Police since it was unable to arrest Trinamool Congress (TMC) leader Sheikh Shahjahan, whose residence was recently sought to be raided by the Enforcement Directorate (ED) over his alleged role in a ration scam. During the said raid, certain ED officers were attacked.The purported failure of the State police to arrest Shahjahan despite such an attack on ED officers led Justice Gangopadhyay to express reservations about the effectiveness of the police.Accordingly, he ordered Advocate General Kishore Datta to hand over the probe papers to the CBI during the course of the day. .Within few minutes of the single-judge order being passed, the Advocate General mentioned the matter before a division bench of Justices Soumen Sen and Uday Kumar.AG Datta told the division bench that Justice Gangopadhyay had not allowed the State to effectively place on record the steps taken to investigate the case. Having considered the State's submissions, the division bench stayed the single-judge order.However, Justice Gangopadhyay took up the matter for hearing again after the lunch break on WednesdayAs ordered in the morning session, a CBI officer was present in the courtroom. The judge, therefore, handed over the case documents submitted by the State government to the CBI officer. Meanwhile, counsel for the petitioner is recorded to have informed the bench that "the matter was mentioned before the appeal court on behalf of the state."However, the single judge pointed out that "none from the State has intimated me any such thing."Having made this observation, the judge posted the matter for further hearing again on Thursday morning. .Thursday, January 25.In its order passed on Thursday, the division bench noted that the petitioner before the single-judge had not prayed for a direction to the CBI to investigate the case. It said that even if a prayer is made for CBI investigation or investigation by an impartial agency, it is settled law that the court shall not grant such relief on mere asking.It further said before handing over a probe to the CBI, the court is required to come to a conclusion that the material on record discloses a prima facie case for the same."In a situation where the case involves police authorities and high police officials are involved in the alleged crime, the court may consider in such circumstances to handover investigation to an independent agency like CBI," the division bench underscored.Citing numerous Supreme Court decisions it went on to say,"It is only in exceptional situations that the court may direct CBI or independent agency to investigate replacing the state agency where it become necessary to provide credibility and instil confidence in the investigation...".The division bench noted that Justice Gangopadhyay, in his order directing a CBI probe, relied on the attack on ED officers by supporters of Shahjahan.However, that is a separate case that cannot have any bearing on the present one, the division bench emphasised. The bench, however, refused to accept the contention of AG Datta, who sought to transfer the original petition from Justice Gangopadhyay to the division bench."We decline to accept such request as we are of the view that the writ petition can be more appropriately dealt with by Justice Gangopadhyay," the bench clarified..AG Dutta along with Additional Government Pleader Biswabrata Basu Mallick and Advocate Parna Roy Choudhury appeared for the State.Advocates Sirsanya Bandopadhya, Arka Kumar Nag and Deboleena Ghosh appeared for the Backward Classes Welfare Department.Advocates Indranil Roy and Sunit Kumar Roy appeared for the National Medical Commission.Deputy Solicitor General Billwadal Bhattacharyya along with advocate Arijit Majumdar represented the CBI..[Read Order]