11 Nov 2020 10:47 AM GMT
The Supreme Court on Wednesday granted interim bail to Republic TV anchor Arnab Goswami,who was arrested on November 4 and has been under judicial custody since then in a criminal case relating to abetment to suicide of interior designer Anvay Naik in 2018.The top court also allowed the interim release of the co-accused Neetish Sarda and Firoze Mohammed Sheikh in the case.After a marathon...
The Supreme Court on Wednesday granted interim bail to Republic TV anchor Arnab Goswami,who was arrested on November 4 and has been under judicial custody since then in a criminal case relating to abetment to suicide of interior designer Anvay Naik in 2018.
The top court also allowed the interim release of the co-accused Neetish Sarda and Firoze Mohammed Sheikh in the case.
After a marathon hearing session which started from 11 AM and lasted till 4.15 PM, the bench observed :
"High Court was in error in rejecting the application for grant of interim bail."
A vacation bench comprising Justices D Y Chandrachud and Indira Banerjee passed the order after an urgent hearing given to the petitions challenging the November 9 order of the Bombay High Court which denied the accused interim bail in the habeas corpus petitions filed by them challenging their custody.
The Court said that Raigad police should ensure the compliance of the order of release forthwith. The accused should execute a personal bond for an amount of Rs 50,000/- for release on interim bail.
The Court said that detailed judgment recording the reasons for the order will be released later.
"We are of the considered view that the High Court was in error in rejecting the applications for the grant of interim bail. We accordingly order and direct that Arnab Manoranjan Goswami, Feroz Mohammad Shaikh and Neetish Sarda shall be released on interim bail, subject to each of them executing a personal bond in the amount of Rs 50,000 to be executed before the Jail Superintendent. They are, however, directed to cooperate in the investigation and shall not make any attempt to interfere with the ongoing investigation or with the witnesses.
The concerned jail authorities and the Superintendent of Police, Raigad are directed to ensure that this order is complied with forthwith," the order states.
During the hearing, Justice Chandrachud had expressed disappointment that the High Court failed to exercise its jurisdiction to protect the personal liberty of a citizen.
"If this court does not interfere today, we are travelling on the path of destruction. Forget this man (Goswami). You may not like his ideology. Left to myself, I will not watch his channel.
Keep aside everything. If this is what our state governments are going to do to people who are to be nailed, then the Supreme Court has to intervene. There has to be a message to HCs- Please exercise your jurisdiction to uphold personal liberty. We are seeing case after case. HCs are failing to exercise jurisdiction. People are in jail for tweets!", he had remarked.
Arnab Goswami Case : 'If This Court Does Not Interfere Today, We Are Travelling On Path Of Destruction', Says Justice Chandrachud
Legality of investigation
The Bench observed in the passing that the Police has the power to investigate further in a case where 'A Summary' Report is filed.
"A Summary is filed in a case where there is offence, but police have not traced evidence. Does the A Summary deprive the police of the power to investigate? I cannot accept the position that police cannot investigate further in a case of A Summary," Justice Chandrachud observed.
Salve had urged that the investigation could not be reopened in the absence of an order for further investigation by the Magistrate.
"It will set a dangerous precedent if the executive initiates further investigation after the Magistrate has accepted the 'A Summary'…The further investigation in this case was directed by the IO. This is illegal. Interference by the State is clearly made out," he submitted.
Salve had informed the Bench that whereas the Respondents are claiming that the Magistrate has permitted further investigation, in reality, he had only endorsed on the police application for further investigation as "seen and filed only". CJM Alibag had also observed in the remand order that no connection was found between the suicide and the accused (Goswami), he told the Court.
"The Magistrate did not reject the 'A Summary' report. Does the executive retain the power to further investigate after that? I submit, they do not. Allowing that will be destruction of criminal procedure."
However Justice Chandrachud remarked that what will happen if the 'A Summary' is set aside in the writ petition filed by Adnya Naik.
1. State acting out of Malice
Salve reiterated his argument that the State is acting out of malice with an aim to silence a powerful critic. He said,
"The demand for investigation of suicide case against Arnab Goswami was raised in assembly, when there was discussion against his reporting. The Home Minister says investigation ordered. This is where mala fide comes in…And the High Court said it cannot look into question of malafides because there was an alternate remedy of Section 439?"
Responding to this Senior Advocate Amit Desai, appearing for the Government, submitted that the State has power to investigate. "Power of State and Court to order investigate are different. All decisions cited by petitioners refer to power of courts," he said.
He then referred to the decision in Nirmal Singh Kahlon v. State Of Punjab, where the Top Court had observed that it is one thing to say that the court will have supervisory jurisdiction to ensure a fair investigation and correctness whereof is open to question, but it is another thing to say that the investigating officer will have no jurisdiction whatsoever to make any further investigation without the express permission of the Magistrate.
Salve had also objected to the manner in which Goswami was arrested on the morning of November 4, when 20-30 armed policemen reached his house and took him away without prior notice.
"Is he a terrorist? Is there a murder charge on him?" he remarked.
Interestingly, during hearing of the challenge against Goswami's judicial custody before the Sessions Court in Alibag, Senior Advocate Abad Ponda had pointed out that in Joginder Kumar v. State Of UP, 1994 AIR 1349, the Top Court had held that except in heinous offences, "arrest must be avoided" if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
2. No case for abetment to suicide made out
Salve further argued that there was no personal relationship between Goswami and the deceased and they were merely involved in a commercial transaction. In this regard, he referred to the precedents set by the Supreme Court to contend that there has to be 'direct and proximate' cause for suicide and active encouragement driving the person to suicide.
"Last month a man in Maharashtra committed suicide saying the Chief Minister failed to pay salary? What you do? Arrest the Chief Minister?
There has to be clear "mens rea" for offence of abetment to suicide…There was no personal relationship between Arnab Goswami and Anvay Naik. Mere contractual dispute cannot be abetment to suicide," he said.
"Will Chief Minister Be Arrested If A Person Names Him In Suicide Note For Not Paying Salary?" Salve Argues For Arnab Goswami
Salve pointed out that the High Court did not dispose of the petition and the matter is listed for consideration on December 10 wherein the prayer for quashing FIR would be considered. In this regard he submitted,
"The High Court made a "gross mistake". The question whether enquiry could have started is up for consideration. If there are serious questions to be tried, why no interim relief? If the High Court felt there were serious questions for consideration, why no interim release was granted to him?"
Arguments raised by Opposite Parties
1. Availability of Alternate Remedy
Goswami's petition was vehemently opposed by the State which argued that the High Court order relegating the Petitioner to alternate remedy was justified inasmuch as the Petitioner had filed an interim application under habeas corpus could not have been converted.
"In a 226 jurisdiction, would your lordships consider exercising power of bail?... Let the sessions consider Goswami's bail. If Salves arguments are great, why would it be denied tomorrow? Why meddle with the hierarchy? Why not hear what the State has to say?" Senior Advocate Amit Desai had argued.
Reliance was placed on State of Telangana v. Habib Abdullah Jeelani, where the Supreme Court had held that when there is an alternate remedy of bail, writ petition should not be entertained.
2. Bail when investigation is underway
Justice Chandrachud had repeatedly asked the State if this was a fit case for custodial interrogation.
In this regard, Desai had submitted that the investigation cannot be brought to a standstill when it is under progress. He insisted that there is a suicide note with names of persons and thus it is a matter that needs to be investigated.
Reliance was placed on Narayan Malhari Thorat v. Vinayak Deorao Bhagat, where the Supreme Court criticized the Bombay High Court for quashing an abetment to suicide case where the name of the accused was in the suicide note.
Responding to this Salve had submitted that it was a case between husband and wife. "Is there any direct interaction between Arnab Goswami and Anvay Naik?," he had asked.
Referring to the Court's refusal to stay the investigation, Desai submitted that it means that powers under Chapter XXII of CrPC (Attendance Of Persons Confined Or Detained In Prisons) are available to the Police to investigate.
"Power of arrest is a facet of investigation…Under Article 226, the principle is judicial restraint. The powers of police to investigate cannot be taken away. If courts are staying arrest in all cases for quashing FIR, it will disrupt the powers of investigation, which can be disastrous," he said.
3. No chance to file affidavits
Senior Advocate Kapil Sibal protested against grant of bail merely on the basis of FIR and stated that they were not being allowed to file proper affidavits. He said,
"How can you grant bail on the basis of an FIR? FIR is just first information. Not an encyclopaedia. Investigation is in progress… Today there is evidence on record. There cannot be grant of bail without looking at the evidence. Court is not allowing us to file the papers…"
He submitted that consideration of the material put forth by the State was essential for determining the 'intention' in this case. "Now investigation is going on. Remand is ordered. Now the Court cannot tell that read the FIR and see if offence made out to grant bail… The case diary, investigation papers are not before this court. They are in the Sessions Court. Why should the SC now decide to grant bail looking at the FIR?" he had argued.
Responding to this, Salve remarked "The arrest and custody is based on FIR and Sibal says bail cannot be granted merely reading FIR!" He pointed out that the CJM had also observed in his remand order that individual role of accused is not made out and no prima facie case under Section 306 IPC is made out to justify his arrest.
4. Power of Police to investigate further
Talking about power of police to investigate after filing of an 'A Summary' Report, Sibal said,
"When you do not discover the accused, there cannot be a closure report. Closure report is filed when the investigation is thorough & complete. This is not that case. In closure report, offence is not discovered. In A Summary, offence is there but accused not discovered… The argument on 're-investigation' is meaningless because the 154(Sec 154 CrPC) investigation is not complete."
5. Sessions Court to deliver order in Arnab's Bail plea tomorrow
He also told the Supreme Court that the Sessions Court has reserved order in Arnab's bail plea and will pronounce its verdict tomorrow.
"The bail application of Arab Goswami is being decided tomorrow…Why do you presume that the Sessions Court will not pass an order which is fair and just? Final decision is coming tomorrow. Wait till day after tomorrow. If he is not getting relief, let him file an application here," he said.
Desai said any observations by the Supreme Court will prejudice the court proceedings below.
The Complainant, Adnya Naik, had also opposed the petition. Her counsel, Senior Advocate CU Singh told the Court that the Naik family is facing intimidation and harassment and that they have filed complaints with respect to threatening calls received by them a few months back.
Case of co-accused
Senior Advocate Gopal Sankaranarayanan, appearing for the co-accused Firoz Muhammed Sheikh argued that his client was booked alongside Goswami under Section 306 of IPC r/w Section 34 (common intention), despite their being strangers to each other.
He pointed out that Sheikh is a director of the company which hired another company which in turn gave contract to Anvay Naik.
"There are five levels of separation between the accused and the deceased," Sankaranarayanan remarked.
He asserted that the principle in Sunil Bharati Mittal v. CBI, that criminal liability of company cannot be extrapolated on an individual, will apply here.
He further argued that the ingredients of Section 306 were not made out. Reliance was placed on Common Cause v. Union of India & Anr., 2018, where it was held that 'abetment' refers to a course of conduct and not a solitary instance but a series of events.
Senior Adv Mukul Rohatgi, appearing on behalf of co-accused Neetish Sarda, said that the remand application repeatedly uses the word "re-investigation" and not "further-investigation". "There cannot be a "re-investigation" without an order of the Court."
He referred to the Supreme Court's decision in Vinubhai Haribhai Malaviya & Ors. v. State of Gujarat & Anr., to stress that nod from Magistrate is required for further investigation. "Once there is a closure, there cannot be 'further investigation' and there can be only 'fresh' or 're-investigation' which can be only on the order of a court. That is the legal position… Even for further investigation, permission of Magistrate is needed. Our case is of a 'fresh investigation' which needs an order of a higher court," Rohtagi said.
Responding to this, the Complainant's Advocate CU Singh informed the Court that the CJM's order was in Marathi and was mis-interpreted by the Petitioners in translation to English. He said, "The petitioners misinterpreted the Marathi word in remand application. The word used means 'further investigation' and not 're-investigation' as argued by the petitioners."
Rohtagi also informed the Court that his client had never even met the deceased and he had no connection with any of the co-accused. In fact, he held merely 0.3 percent share in the company which gave contract to Naik's company.
Both Rohtagi and Sankaranarayanan stated that their clients had been caught in the crossfire between the Maharashtra Government and Arnab Goswami.
In a related development, the Alibag Sessions Court is scheduled to pronounce orders tomorrow on the revision petition filed by Raigad police seeking police custody of Arnab Goswami. The orders were reserved yesterday.
Also, the Alibag Sessions court has posted the regular bail application filed by Arnab Goswami for tomorrow. The bail application was filed on Monday ahead of the Bombay HC rejecting his interim bail application.
In the Bombay High Court, a division bench comprising Justices SS Shinde and MS Karnik dismissed the interim applications observing that no prima facie case was made out to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India.
The bench said that the alternate remedy of regular bail under Section 439 of the Code of Criminal Procedure was available to Goswami.
The bench rejected the argument of Goswami's lawyers that the re-opening of the 2018 abetment to suicide case, after it was closed by the police in 2019, was illegal. The bench observed that there was no illegality in the further investigation in the case.
Goswami was arrested on the morning of November in a case registered by the Raigad Police in 2018 for allegedly abetting the suicide of a 52-year old interior designer named Anvay Naik and his mother Kumud Naik. He was remanded to judicial custody by CJM Alibag and was kept at a local school which has been designated as a COVID-19 centre for the Alibaug prison. On Sunday, he was shifted to Taloja prison in Mumbai after the police alleged that Goswami used mobile phone in custody without permission.
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