The Bombay High Court on Friday reserved its verdict in Arnab Goswami's application for quashing of two FIRs filed against him on allegations of inciting religious groups through his shows on Republic TV and Republic Bharat about the Palghar Mob lynching incident and the incident of migrants gathering outside of Bandra Station during lockdown.
Division bench of Justice Ujjal Bhuyan and Justice Riyaz Chagla heard the submissions made on behalf of the applicant as well as the State. Court reserved the judgment after both parties concluded their arguments.
In the beginning, Senior Advocate Milind Sathe appeared on behalf of Arnab and submitted that the Congress party has orchestrated multiple FIRs against his client across the country. Moreover, the second FIR registered by Pydhonie police station was engineered after protection from arrest was granted to Arnab by the Supreme Court in relation to the first FIR that was registered in Nagpur.
Sathe read out the contents of FIR filed in Nagpur and contended that no offence under Section 153 of IPC is made out as a riot must take place to attract ingredients of the said section. Allegations of defamation against Congress President Sonia Gandhi cannot be investigated unless she herself has filed a complaint, Sathe argued.
Thereafter, Sathe cited separate instances to demonstrate how Congress party has been vindictive in filing multiple FIRs against his client-
i) 17 FIRs have been filed in total and an online campaign to make #arrestantiindiaarnab trending has also been started by Congress workers.
ii) Physical attack on Arnab and his wife by Congress workers.
iii) When Arnab appeared for interrogation before Mumbai police on April 27, details of the interrogation were being tweeted by some Congress people, including Karnataka Congressman Srivatsa YB.
iv) Home Minister Anil Deshmukh tweeted threatening to re-open an old case against Arnab, in a plan to muzzle his right to freedom of expression.
At this juncture, Senior Advocate Harish Salve appeared and took over arguments on behalf of the applicant. He submitted that such cases require balancing of free speech and criminal law, a liberal use of criminal justice will have a chilling effect.
Moreover, it is correct that Courts do not intervene at the investigation stage. The investigating officer has unfettered right of investigation. But in totality of the facts, intervention should be considered, if the investigation is malicious, Salve said.
Going through the FIR filed in Nagpur, Salve said that all the complaints are filed by Congress party supporters.
"At a time when the country is in lockdown, calling Arnab for investigation should be looked into. A party in power is calling a journalist for investigation because he made an adversarial statement against the leader of a political party. What was he asked, what is the structure of your company ? Who owns Republic TV & Bharat ? What is your wife's role ?
What is the relevance of these questions? " Salve questioned.
Salve reiterated that Srivatsa YB and Gaurav Pandhi of the congress were tweeting details about Arnab's interrogation from outside while he was still inside NM Joshi Marg police station.
We have made serious allegations. However strong his comments may have been against the Congress President, but to cross a line & invoke 153(a) is malicious. When you're reporting on communal incidents & making a personal allegation of someone being communal, it comes within the Right to Freedom of Expression, Salve contended.
Senior Advocate Kapil Sibal appeared on behalf of the State of Maharashtra. After going through the Supreme Court's judgment, he submitted that during the hearing he had said that in case two FIRs in different states are identical, they should be quashed.
"SC rejected transfer of investigation to CBI. So the bonafides of Maharashtra police were not questioned by SC.
I have not seen in my entire career, anyone questioning the duration of interrogation. The Accused cannot ask why my CFA was called for interrogation. The Accused wants to throttle the investigation. He's not an oracle of truth. Who is he to question what & how the State should investigate?"
Sibal read the transcript of the show conducted by Arnab on the Palghar Mob lynching incident and urged-
"A journalist has a right to Freedom of Expression & right to private investigation of an incident. But a journalist does not have a right to declare that a person got killed only because he was a Hindu. What if it turns out to be false after an investigation ?
We need to investigate the motive. Why did Arnab assume that the man was killed because he was a Hindu. What is this if not putting one community against the other ?
Sibal continued reading the transcripts of the two shows aired on Republic TV and Republic Bharat. Referring to anchor Vikramditya's comments on the show he said-
"Vikramaditya is saying in this program itself - the way policemen have taken supari & killed the Sadhus. What is this? What kind of an allegation is that against the State ? This is what we want to investigate."
Vikramaditya also said-
"All the big Khans, people like Amir Khan have vanished today. Think that Hindus are sacrificial lambs ?"
This is squarely under Section 153 A, Sibal said. He cited comments on the show's website which were communal in nature and said-
"There are 22000 responses to this video, lakhs of views. Were Congress workers watching this? Where's the question of Sonia Gandhi here? It's out and out communal incitement.
The reference to Sonia Gandhi isn't because she's the Congress Party President. It is because she is a Christian, the attempt is to incite a religious minority."
Sibal went through the second FIR relating to Arnab's show on gathering of large crowd of migrants at Bandra station-
Arnab asked : Who caused the congregation of a crowd near a Masjid ?
"Why didn't he ask - Who caused the congregation of a crowd near Bandra station? If Masjid was used just as a statement of fact, why did he twist the question?
So he's not using Masjid as a matter of fact. A journalist has no right to consider his investigation to be gospel & air it to create disturbance. All this will be investigated. It will be investigated as to why was he doing a series of such shows ? What was his intention?" Sibal questioned.
Sibal referred to a 2007 judgment of the Supreme Court on Section 153 A and said -
"The sine qua non is 'intention' to commit offence. That is why we need to investigate. Why is Arnab doing it ? Is he doing it because he's a Hindu ? Or because there's some other motive ? So investigation is ongoing."
He also referred to the Gopal Godse judgment of the Supreme Court and submitted-
"It is not necessary to prove that enmity and hatred has indeed been caused. And, here I've shown to this Court that his utterances had effect."
Court asked Harish Salve- How do you explain this statement - Why every mob gathers before a Masjid ?
Because that's an issue. Even in the United States people are talking of racism. So it's a fair comment, Salve submitted.
Furthermore, after going through the transcript again, Salve argued that judges have to be very angry with Arnab to allege that his comments are communal.
Sibal: This should not be made political.
Salve: My case is on allegations of malafide. You may find it inconvenient
Sibal : Don't identify yourself with your client. It's unfortunate.
Salve: I'm not. You are.
Finally, after submissions concluded, Justice Bhuyan allowed both the applicant and the State to submit additional 3-4 page notes and reserved verdict in the case. It is likely to be pronounced on June 19.