A section of the legal fraternity in the city has expressed surprise over the manner in which Calcutta High Court on Monday night stayed the interim bail a CBI court had granted to three Trinamul leaders and a former mayor arrested in the Narada case.

“In its written prayer before the high court, the CBI neither challenged the validity of the CBI court’s order nor did it seek any stay on the bail order. So, the stay order was a bit surprising,” said a senior lawyer of Calcutta High Court.

Generally and unless there is a flight risk or the possibility of evidence tampering, courts grant bail to the accused after investigating agencies furnish chargesheets against them.

While hearing the CBI’s argument on Monday, the judge of the subordinate court had questioned the need to take the accused — ministers Subrata Mukherjee and Firhad Hakim, MLA Madan Mitra and former mayor Sovan Chatterjee who had recently distanced himself from the BJP — into custody when chargesheets against them had been filed.

The CBI petition in the high court, after explaining the Narada case, gave a detailed account of what happened in and around its Nizam Palace office — with a specific mention of how Mamata Banerjee had reached there and sat on a dharna — and urged the court to issue necessary directives to the chief minister and the state administration to allow the agency to function legally and without any disruption.

During the hearing of the case, the two lawyers representing the CBI urged the court to shift the case to Guwahati or Bhubaneswar in case the Bengal administration failed to provide them with adequate security.

Although the written prayer didn’t contain any plea for a stay on the CBI court order, the central agency’s counsel urged the high court verbally to stay the order at least till Wednesday.

“The CBI counsel had prayed for an interim stay on the CBI court’s order and the high court obliged. The high court, however, should have given the opportunity to the counsel representing the accused leaders before granting the stay order,” a senior high court lawyer said on Tuesday.

Another lawyer said that as the chargesheets were filed after interrogation of the accused, it was obvious the CBI did not need to further question the accused.

“Moreover, they had prayed for jail custody of the accused and did not press for police custody for further interrogation. So, what was the logic behind the stay on the CBI court order?” an eminent lawyer practising criminal law in Calcutta High Court said.

Several lawyers also questioned the court’s decision to hear the case ex-parte.

The counsel for the accused, Kalyan Banerjee, along with Supreme Court lawyers Abhishek Manu Singhvi and Siddharth Luthra, moved the bench of Calcutta High Court Acting Chief Justice Rajesh Bindal on Tuesday for reconsideration of the order that his bench had passed on Monday.

While making the plea, Kalyan Banerjee brought up the issue of the accused not being given a chance to defend themselves on Monday night.

Kalyan Banerjee said that since they were not made parties by the CBI in the case before the high court on Monday, the CBI counsel should be asked by the court to issue copies of their petition to him.

Acting Chief Justice Bindal accepted Kalyan Banerjee’s prayer and fixed the matter for hearing along with the main case on Wednesday and asked the CBI to hand over all relevant papers to the lawyer of the accused.

Veteran lawyer Arunava Ghosh felt there was no urgency on the part of the high court to stay the lower court order, forcing the accused to spend days behind bars.

“I might have political differences with leaders like Subrata Mukherjee, but I must say there was no urgency to issue a stay on the CBI court’s order. All the four accused are responsible citizens. Two of them are ministers. So, the court should have given them the opportunity to enjoy the bail. The case could be heard on May 19 as fixed by the court,” Ghosh said.

Some of the lawyers, however, said there was no hard and fast rule that the judge would have to restrict himself to the prayer of the petitioners filed before him. Judges have the power to grant stay on the subordinate court’s order at their own discretion.

“Judges have the discretion to issue such stay orders. It is reasonable that petitioners or appellants should mention whether they want the court to stay an order in the petition. But during the hearing of the CBI’s plea, the judge must have held that the subordinate court order needed to be stayed for a fair proceeding,” a senior lawyer, who did not want to be named, said.

Although lawyers are divided on the high court’s Monday order, they all agreed that the ruling party committed a mistake in taking the issue to the people’s court instead of showing respect for the judicial process.

According to the lawyers, the Trinamul Congress had committed two major mistakes in dealing with the arrests. The party should have restricted its supporters and stopped them from publicly showing their grievance at the CBI headquarters and at the Raj Bhavan. Second, chief minister Mamata should not have gone to the CBI headquarters and staged a day-long dharna.

“When the matter is in the judicial arena, ruling party leaders should not have taken the issue to the streets. The court did take serious note of the matter. As a result, the high court felt it necessary to stay the CBI court’s order,” a senior lawyer said.