Judge vs judge: How a spat between two Calcutta HC judges reached the Supreme Court

The Supreme Court will take up the matter on Monday. “We have taken charge now,” the CJI said.

Saturday hearings are a rare occurrence at the SC, and this case is especially unusual as it concerns a Single Judge Bench refusing to acknowledge the validity of orders passed by a larger Bench of the same court, violating a number of past SC judgments.

Contradictory orders on the same day

On January 24, a Single Judge Bench comprising Justice Gangopadhyay passed two orders in the case regarding alleged irregularities in MBBS admissions in West Bengal. In the first half of the day, he ordered the CBI to conduct an inquiry on account of the ‘large picture of corruption’ in the case. He highlighted the state policies’ failure to arrest Shiekh Shahjahan after Enforcement Directorate (ED) officials were assaulted on January 5 during a raid at his residence in Sandeshkhali, necessitating CBI involvement.

In the order, he acknowledged that the petitioner did not seek a CBI inquiry in their plea, but stated that a thorough investigation is required. He directed all of the documents submitted by the Advocate General of the Calcutta High Court to be handed over to the CBI and directed the Registrar General to communicate with the CBI so an officer could appear later that day to receive the documents.

The Advocate General (AG) immediately approached a Division Bench comprising Justices Soumen Sen and Uday Kumar, asking them to stay the CBI inquiry. The bench agreed, stating that “the right of the State to conduct fair and impartial investigation by its agencies cannot be lightly interfered with” and held that, without pleading for a CBI inquiry, the court could not order the same. The bench held that “there is no requirement to handover the documents to the CBI Officer who was directed to be present at 2:30 pm today.”

The bench acknowledged that Justice Gangopadhyay’s order from that morning “is not available in the server” and chose to rely upon the AG’s submissions before staying the order for two weeks. They directed the AG to file an appeal against the order and a stay petition by 4:30 pm.

Join us for Explained Live event on India’s space ambition

Despite the order from the Division Bench, a CBI officer appeared before Justice Gangopadhyay that afternoon. At 3:30 pm, Justice Gangopadhyay passed a second order and went ahead with the document handover, saying no one from the state had informed him of an appeal against the order for a CBI inquiry.

Division bench reaffirms January 24 order

The next day (January 25) saw both benches issue fresh orders in response to the previous days’ proceedings.

After noting that the appeal and stay petition were both filed in time, the Division Bench held that Justice Gangopadhyay’s second order giving effect to the document handover to the CBI was void ab initio – invalid from the outset – as the bench had stayed the order for a CBI inquiry. The bench quashed any FIR that may have been filed and noted that they were sure Justice Gangopadhyay was made aware of the stay order.

Justices Soumen and Kumar also held that the Sandeshkhali incident “cannot have any relevance in the instant case for directing CBI to take over investigation” and that there is nothing to suggest dereliction of duty on the part of the state police. The bench then clarified that it passed the stay order without seeing the order for CBI inquiry because any hesitation would’ve caused harm to the state and its investigation. The stay order was extended to a period of four weeks.

Despite reaffirming their stance from the previous day the bench declined to decide the case, stating “We are of the view that the writ petition can be more appropriately dealt with by Justice Gangopadhyay.”

Justice Gangopadhyay defies the order of a larger bench

That evening, Justice Gangopadhyay published an order targeting the decisions of the Division Bench, while making severe allegations of misconduct against Justice Sen.

He recounted a conversation with Justice Amrita Sinha, who told him that she had instructions from Justice Sen to dismiss two cases involving Trinamool Congress MP Abhishek Banerjee. Justice Sen allegedly told her that Banerjee had a political future and “should not be disturbed”. The order stated that Justice Sinha reported this conversation to the Chief Justice of the Calcutta HC, who in turn informed the Chief Justice of India.

The order then said: “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.”

After mentioning that the Division Bench quashed the FIR and questioned the orders passed by him, Justice Gangopadhyay stated “What Justice Sen has done today 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.”

Noting that the Supreme Court Collegium recommended Justice Sen’s transfer to the Orissa HC in 2021, the order then alleged that there were persons “saving him from such transfer” so that he might remain at the Calcutta HC. Justice Gangopadhyay requested the CJI to look into the allegations against Justice Sen and the orders passed by the Division Bench.

Despite the well-established law of precedent which binds a Single Bench Judge to comply with the orders of a larger bench, Justice Gangopadhyay stated that he did not recognise the validity of the stay order passed by the Division Bench and directed the CBI to complete the investigation and submit a report within two months.