Calcutta High Court acting Chief Justice Rajesh Bindal said on Friday: “My brother judge is in favour of granting bail to the accused persons. But I disagreed with my brother judge.”

Differences of opinion among brother judges are not uncommon but the disagreement on something as common as a bail decision set in motion a chain of events that culminated in the possibility of at least two ministers in Bengal discharging their responsibilities “under house arrest in their own homes”.

The judicial disagreement meant that the two ministers, an MLA and a former mayor arrested in the Narada case were released from judicial custody by Calcutta High Court but will remain in “house arrest”.

Because of the difference of opinion between the two judges on the division bench, the subject of permanent bail for the accused will now come up before a five-judge bench.

After the release order, outgoing city mayor and senior minister Firhad Hakim was allowed to leave Presidency Jail for his Chetla home.

The three others — senior minister Subrata Mukherjee, Trinamul MLA Madan Mitra and former mayor Sovan Chatterjee who recently quit the BJP— are unwell and under treatment at the SSKM Hospital. Doctors at the hospital are expected to decide on their discharge at the weekend.

Justice Arijit Banerjee had favoured bail, concluding there was little flight risk. Besides, the FIR had been lodged in 2017, and “if the applicants indeed had to tamper with evidence, they would have done it by now”.

Justice Banerjee said in his order: “Admittedly, investigation against the present applicants is complete and chargesheet has been submitted against them…. It is also stated that further investigation against the accused persons is continuing. If that be so, I have not understood as to how custodial detention of the applicants is necessary any more, or how further investigation against the other accused persons will be hampered if the applicants are not detained in custody.”

The judge underlined that the Supreme Court too had said that during the pandemic, bail should be granted liberally unless custodial detention was absolutely essential.

However, Justice Bindal, the acting Chief Justice, said: “Whether mobocracy, where any law-enforcing agency was allegedly obstructed in discharge of its official duty, can have impact on decision or the decision-making process, is yet to be gone into…. Arguments of the CBI that entire proceedings for grant of bail before the trial court were vitiated on account of unprecedented protests led by the Chief Minister in the office of CBI and by the Law Minister in the court complex are yet to be examined….

“Prayer by CBI for transfer of the cases is also pending consideration.”

Justice Bindal added: “But still I find that considering the age and health issues of the accused, instead of custody in jail, they can be put under house arrest in their own homes.”

During the house arrest, “while being in home comfort, they shall be entitled to all medical facilities and shall be bound by all applicable restrictions. However, it shall be the duty of the jail authorities in the State to enforce the conditions. Any violation thereof can result in recall of this order”, the acting Chief Justice said.

Later in the day, Justice Bindal constituted a five-judge bench of himself and Justices Banerjee, I.P. Mukerji, Harish Tandon and Soumen Sen. The special bench will hear the case from Monday.

Justice Arijit Banerjee File picture

The CBI, which opposed the release of the accused from judicial custody, and the defence, which demanded “total bail”, have decided to challenge the order in the Supreme Court.

Solicitor-general Tushar Mehta, representing the CBI, contended that the accused should not be freed from judicial custody.

Abhishek Manu Singhvi, senior advocate and Congress Rajya Sabha member from Bengal who was representing the accused, said: “In this Covid-19 situation, how will the ministers perform their duties from home? They should be granted total bail.”

The bench turned down both sides’ prayers. It said the accused would be allowed to perform only their government jobs (which does not apply to Chatterjee). Records must be kept of all visitors.

The court said the accused should be provided any assistance they need to discharge their official duties.

The larger bench will also rule on the CBI’s plea for transfer of the case outside Bengal.

Several eminent lawyers said the high court lacked the jurisdiction to transfer the trial to another state.

“For the trial to be shifted to another state, the CBI will have to move the Supreme Court,” said senior advocate and CPM Rajya Sabha member Bikash Ranjan Bhattacharyya.