The Supreme Court on Friday transferred the bail plea of JNUSU President Kanhaiya Kumar to the Delhi High Court and asked it to expeditiously deal with the matter, while declining to entertain the petition saying its direct intervention will be a dangerous proposition.
"You are leading a dangerous proposition. If this court will entertain it, it will become a precedent which will be available to all the accused in the country. Wherever there will be sensitive cases involving political persons or prominent persons or others...You know the atmosphere in the court."
"So in every case if it is said that Supreme Court is only the court, it would be a dangerous precedent," a bench comprising justices J Chelameswar and A M Sapre said.
Further, it said, "Remember, this is not the only case of this type."
While transferring the bail plea of Kanhaiya, who has been charged with sedition, the bench took an assurance from Solicitor General Ranjit Kumar that in the "prevailing extraordinary situation" pertaining to this matter, the Government of India and the Delhi Police Commissioner would provide adequate safety and security to the accused and a stream of lawyers who will be appearing in the High Court.
The bench also said that the counsel for all the parties would be given preference while entering into the court room at the High Court and the Registrar General would be responsible for limiting number of people to be allowed to enter inside.
The bench which asked the High Court to expeditiously deal with the matter did not give any specific date for listing it.
The Supreme Court permitted the counsel for Kanhaiya to amend his petition, which is to be filed shortly in the Delhi High Court.
The apex court was not in agreement with the arguments advanced by a battery of senior advocates including Soli Sorabjee, Raju Ramachandran and Rajeev Dhawan that extra- ordinary law and order situation, threat to life of the accused and his counsel, hostile environment at the lower court and the simmering situation compelled them to rush directly to it.
The advocates also submitted that they moved the apex court for bail as already a writ petition concerning the arrest of the JNUSU President was pending before it.
However, their submission was objected to by the lawyers for Centre and Delhi Police, including SG Ranjit Kumar, ASG Tushar Mehta and senior advocate Ajit K Sinha, who said the facts of the writ petition and bail plea are different and even opposed it being heard directly by the high court.
The bench was also of the view, "What is under scrutiny is something different and the writ petition is to be heard on Monday. It is totally different than the bail application."
When the argument was made by Kanhaiya's counsel about the law and security situation, the bench said, "We do agree with you that it is an exceptionally extraordinary circumstance."
The counsel said that they preferred the apex court to hear his bail plea as the situation in the High Court also would not be much different, to which the bench asked, "Is it so in the high court? Are we to understand that the HC is also agitated?"
While concluding the one-and-a-half-hour hearing, the bench said, "We permit them to make and amend the bail application on Friday itself.
At the outset when Kanhaiya's bail plea was taken up, the bench asked his counsel, "Did you move bail petition before the trial court?"
When there was a negative reply, the bench asked the counsel, "Why are you rushing here?"
Ramachandran responded to the query and said the incident of February 17 does not require recounting, that is why they are before the apex court.
He said in the prevailing atmosphere, moving the sessions court for bail in the Patiala House Court complex was not possible and because of the general atmosphere, other lawyers were agitated on Thursday.
"To go for me at any sessions court in Delhi is impractical, unsafe, dangerous to me as accused, dangerous to me as a lawyer who performs professional duty in calm and peaceful environment," he said.
Noting his submission, the bench wanted to know from him that why he did not then approach the Delhi High Court.
The senior advocate said, "It was my statutory right to apply for bail and having experienced in the past few days, there was a feeling that there was denial of access to justice to my client."
He said he is also answering why he approached this court for the bail and continued with his submission that this court is seized of the matter concerning access to justice for Kanhaiya Kumar and he was seeking apex court indulgence.
The senior advocate, appearing for Kumar, said they have approached this court because of the prevailing hostile environment and apprehensions that they may not get justice as the accused and his lawyers are not safe and there is also a "simmering local situation".
When the bench asked about the problem in approaching the high court, Ramachandran said the high court is in the "same city and the same hexagon" so they are moving the Supreme Court which has better security arrangements.
Further, he contended that the prayer was not without precedent as there was an extraordinary situation prevailing.
Since the accused was lodged in judicial custody the logical conclusion was that he was not required for custodial interrogation. Hence, the petition was directly filed in the apex court for bail, he submitted.
"I am here because this court deals with totality of the matter," he said.
At this point, the bench came out with the stern observation that taking his bail plea directly would lead to "a dangerous proposition" and set a "dangerous precedent".
Ramachandran said, "In this particularly charged situation, the Bar is agitated and there is a need for the apex court to hear the bail plea."
Joining him, Dhawan argued, "The apex court is the safest court in the country and in view of the prevailing situation, the matter should be heard by it."
He said the question is whether the Delhi Police can guarantee safety and security of the counsel in the situation "which has turned vicious".
He said the court has only to see whether the apprehension expressed by the team of lawyers was genuine or not.
Ramachandran said that approaching the High Court would mean another round of "elaborate bandobast" and hearing the matter by the apex court, "will not open the flood gate".
"I request you to entertain this extraordinary petition under extraordinary circumstances," Dhawan said.
However, the submission was opposed by the Solicitor General who said there is no reason why there won't be security in the high court.
He said the opposite side was representing the accused and will be representing a set of accused in future too and their apprehensions have to be taken with a pinch of salt.
The SG also raised objection to the "averment" made in the bail petition and said there is not even one word on the merit of the case.
He said there is a "serious charge" against the accused and the investigation is going on.