In a setback to the West Bengal government, the Supreme Court on Monday dismissed its plea challenging a Calcutta High Court order transferring to the CBI the probe into the January 5 attack on an Enforcement Directorate (ED) team in Sandeshkhali, allegedly by supporters of the now suspended TMC local strongman Shahjahan Sheikh.

A bench of Justices BR Gavai and Sandeep Mehta, however, ordered expunging certain remarks and observations made against the state government and the police in the March 5 order of the high court.

"Insofar as the (HC) directions, we are not inclined to entertain this SLP. However, the observations made with regard to conduct of police and the state government shall stand expunged," the apex court said in its order.

It noted the submission of Additional Solicitor General SV Raju, appearing for the ED, that he has no objection to expunction of the remarks if the final order transferring the probe to CBI remains as it is.

During the hearing, the bench posed several questions to senior advocate Jaideep Gupta, representing the West Bengal police, as to why suspended TMC leader Shahjahan Sheikh was not promptly arrested after the January 5 attack and why there was a delay in the investigation of the case.

"Why was he (Sheikh) not arrested for 50 days?" the bench asked Gupta.

The senior lawyer said there was a stay on the investigation at that time and the state government had to move the high court for clarification.

"After the clarification of the order of the high court, he (Sheikh) was arrested in 24 hours. Even earlier also, after the January 5 attack, when the police had registered an FIR in the case, seven people were arrested," Gupta contended, adding that to say there was a delay in investigation is "utterly incorrect".

He added several observations were made by the high court based on "speculative findings" against the police which can create "havoc" in the state.

When Justice Mehta referred to the high court order, which said 42 FIRs were lodged during the relevant period and wanted to know why they were registered and against whom, Gupta replied all these did not relate to the incident of attack. He said these were registered over a period of time and indeed involved Sheikh and some others.

"So, why weren't charge sheets filed? How long does it take?" Justice Mehta asked Gupta.

The senior lawyer said in the instant case, the observations made by the high court are not borne out by material on record.

"They did not inform us when a team of CRPF and ED went to Sandeshkhali on January 5. After the incident, we registered the FIR and asked them to assist but they said that they were busy. There was no delay on our part," he added.

Raju, who narrated the sequence of events of January 5, contended that if the investigation was not handed over to the CBI, the probe by the state police will be a farce.

"They tried to water down the case insofar as the assault of the ED officers was concerned. Three ED officers were injured. Section 307 of IPC (attempt to murder) was made out but they filed some other case and that's why the investigation was stayed by the court. It was only after the high court asked that the Advocate General agreed to add section 307 of IPC," Raju alleged.

He claimed even before the FIR was registered, the state police had filed a case of molestation and theft at Sheikh's behest despite the door of the house the ED team had gone to raid not having been opened. "They wanted to portray that ED's FIR was a counter case," he said, adding "The police flouted the court's order. Did not hand over the documents and his (Sheikh) custody. There are several cases related to women, including those of harassment, against him. He has been patronised by local police and politicians," Raju alleged.

The bench said it will expunge the observations against the police but won't interfere with the high court order.

On March 6, the West Bengal government had approached the top court seeking urgent listing of its petition challenging the high court order, but failed to elicit prompt relief.

The state government, in its plea before the apex court, dubbed the high court order as perverse, illegal, and arbitrary which deserves to be set aside.

"It is most respectfully submitted that the impugned order was pronounced by the division bench at 3 pm and uploaded on the High Court website by 3.30 pm (approx.), but the directions contained therein required the petitioner/state govt. to comply with such directions by 4.30 pm on the self same day i.e. March 5, 2024 which effectively frustrated the Petitioner's right to avail its remedy under Article 136 of the Constitution.

Referring to apex court judgements, the state government said the power to transfer an investigation must be used "sparingly" and only "in exceptional circumstances." On March 5, the high court directed that the CBI be handed over the case of attack on ED officials at Sandeshkhali and the custody of Sheikh.

Sheikh was alleged to have orchestrated an attack on ED officials who had gone to search his premises in connection with an alleged ration scam involving defalcation of several crore of rupees.

The West Bengal police, however, refused to hand over Sheikh to the CBI team when it went to take him into custody. On March 6, the CBI got the custody of Sheikh from the West Bengal CID, after another directive from the high court.