The foundation of this case was more political in nature than legal, but this commentary will be focusing

on, and restricted to the legal aspects of it. It all started back in the year 2018, when Arnab Goswami,
the owner of ARG Outlier Media, and two other accused were booked by the Alibaug Police for
abetment of suicide of Anvay Naik and his mother.

The deceased person wrote a suicide note and blamed the three accused for not making transactions of
rupees 5.4 crores in total, which were due to Concorde Designs Pvt. Ltd. As per the allegations, ARG
Outlier Media owed the person 83 lakh rupees. After an investigation, the police filed an “A” summary
report, the magistrate accepted the same, and the case was closed.

The case was recently reopened for investigation and one fine day, the accused were arrested from their
homes in the most unacceptable manner one could think of. As soon as the arrests took place, they
were produced in front of the Chief Judicial Magistrate, Alibaug. She explicitly mentioned that, “There is
no nexus between the deceased and the accused.” Hence, she denied police custody and ordered
Judicial Custody of the accused. The counsel for the accused also questioned the process of re-
investigation, which was not followed as per Section 173(8) of the C.R.P.C, where the consent of the
magistrate is a must for re-investigation.

The bail application was moved and a writ petition was also filed in the Bombay High Court to quash the
FIR against Arnab under section 482 of the C.R.P.C. The Bombay High Court ruled that the matter was
pending before the sessions court. Hence, the High Court did not intervene and rejected the interim bail.

This Judgment was challenged in the Supreme Court and the Court made various observations under the
same. A bench consisting of Justice D.Y. Chandrachud and Justice Indira Banerjee, after looking at the
FIR, observed that, “Prima facie, on the application of the test which has been laid down by this court in
a consistent line of authority… It cannot be said that the appellant was guilty of having abetted the
suicide within the meaning of Section 306 of the IPC.”

The Apex Court also came down heavy on the High Court for not giving the accused bail in the first
instance. The bench said, “The High Court abdicated its constitutional duty and function as a protector
of liberty. It is the duty of courts across the spectrum — the district judiciary, the high courts and the
Supreme Court — to ensure that the criminal law does not become a weapon for the selective
harassment of citizens”.
The Supreme Court, after making all these observations, granted interim bail to all the three accused
and even questioned the Maharashtra state government’s intentions in this case. The court also held
that this was a civil dispute related to commercial transactions and treating it as a criminal offence
would infringe on the rights and liberty of citizens. The court even went to the extent of saying that
deprivation of liberty even for a single day is one too many days.

It is heartening to note that the Supreme Court, which has been under severe criticism by several
quarters for its slow reaction in cases involving personal liberty, has delivered a landmark judgement
dated 27.11.2020 in the case of Arnab Manoranjan Goswami v. The State of Maharashtra, Criminal
Appeal No.742 of 2020.

Mr. Arnab Goswami, who is the editor-in-chief of Republic TV also dons the role of Managing Director of
ARG Outlier Media Asianet News Private Limited (ARG) which owns and operates a Hindi television news
channel by the name of R Bharat.

He was arrested on 4 November, 2020 in connection with FIR 59 of 2018 which was registered at Alibaug
Police Station under Sections 306 and 34 of the IPC.

As per the complaint, ARG awarded a contract for civil and interior work to Concorde Design Private
Limited which was substantially owned by one Mr. Anvay Naik, who later committed suicide.

An FIR was registered on 5 May, 2018 on the complaint by his wife. The FIR contained various
allegations including default in payments by ARG to the tune of Rs.83 lakhs apart from other outstanding
amounts from other persons. The deceased Mr. Naik left a suicide note naming three persons including
Mr. Arnab Goswami as being responsible for his death.

Requisite procedure under the Code of Criminal Procedure (Cr.P.C.) was followed thereafter- issuance of
notice under section 91; recording of statements; preparation of ‘A’ summary as per Para 219 (3) of the
Bombay Police Manual, 1959.

Since there was no evidence to justify sending the case to be tried by the Magistrate, the case was
closed and the informant was told about the closure on 12 June, 2019.
The matter suddenly came back to life in April, 2020 along with other matters initiated by the State of
Maharashtra against Mr. Goswami. After his arrest and denial of bail by the Bombay High Court, he
moved the Supreme Court which categorically held that “Prima facie, on the application of the test
which has been laid down by this Court in a consistent line of authority which has been noted above, it
cannot be said that the appellant was guilty of having abetted the suicide within the meaning of Section
306 of the IPC.”

Further the court observed that “In this batch of cases, a prima facie evaluation of the FIR does not
establish the ingredients of the offence of abetment of suicide under Section 306 of the IPC. The
appellants are residents of India and do not pose a flight risk during the investigation or the trial.”

What is baffling is notwithstanding the observations of the Supreme Court and the matter being under
investigation, the Home Minister of the State of Maharashtra, within 12 hours of the Supreme Court’s
judgement, in a press conference, spoke about filing a strong chargesheet in the matter.

Days after, within the span of a week, a chargesheet was filed as a follow-up on the political instruction.
This is an affront to the entire justice delivery system. A respected high ranking minister ought not to
have said so.

When the Home Minister himself speaks thus and then subverts all due process to ensure a chargesheet
is hurriedly filed right ahead of a hearing by the Hon’ble Bombay High Court on the matter, how can one
expect a fair and independent investigation in cases initiated against Mr. Goswami? This clearly shows
malice.

In fact, hours after the Maharashtra Government was served a copy of the interim applications filed by
Arnab Goswami before Bombay High Court highlighting and evidencing the heightened political malice
in the Anvay Naik case, and seeking a stay on a chargesheet being filed, the Police in the state filed the
chargesheet. The order of events and the hasty movement by the state machinery spills their true intent
ridden in malice and malafide.

These are days when governments have started initiating malicious prosecutions and what was a golden
rule once has now become an exception. ‘Jail’ has become the rule and ‘bail’ an exception.
I am not concerned about Mr. Goswami’s case in particular. I am also concerned with senior citizens
languishing in jail and not able to get even basic amenities. Stan Swamy, for instance, who suffers from
Parkinsons, requested for a straw and sipper to drink water, which was denied. This request should have
been granted straight away. Isn’t denial of such a request tantamount to degradation of human life?

Justice Krishna Iyer famously roared that even the practice of handcuffing was bad. I think courts should
take heed from the tone which has been set and go back to days when personal liberty, human rights
and fundamental freedoms were given utmost importance. Otherwise we risk falling back into the days
of ‘Jungle Raj’ and the ‘Dark Days of Emergency’.

I am certain that the Supreme Court and the High Courts will not allow that to happen particularly with
very highly eminent and intellectual judges occupying these high offices.

interim bail to Goswami

The Supreme Court on November 27, 2020 gave a detailed judgment stating the reasons for granting
interim bail to noted journalist and editor Arnab Goswami earlier on November 11. There are some
stinging observations in the judgement that may serve as a reminder for all those who tried to abuse
their power in this case. We bring you those key points from the judgement.

No Prima Facie – High Court Erred

The Supreme Court held that the High Court had erred by not looking into the grounds for quashing the
FIR which alleged that the appellant was responsible for abetment of suicide under section 306 of the
Indian Penal Code. The court held that the position of law was well settled that in order to constitute the
offence of abetment there must exist: A direct or indirect incitement to the commission of a crime; an
active role of the accused in instigating or doing an act facilitating the commission of the crime; and the
existence of a proximate relationship in time. The SC held that a prima facie evaluation of the FIR does
not establish the ingredients of the offence of abetment of suicide under Section 306 of the IPC.

The Supreme Court went on to hold that there was a failure of the High Court in discharging its
adjudicatory function at two levels – first in declining to evaluate prima facie at the interim stage in a
petition for quashing the FIR as to whether an arguable case has been made out; and secondly, in
declining interim bail, as a consequence of its failure to render a prima facie opinion on the first.
The Supreme Court stated that the doors of this Court cannot be closed to a citizen who is able to
establish prima facie that the instrumentality of the State is being weaponized for using the force of
criminal law.

Role of Courts in Protecting the Liberty

The judgement of the Supreme Court said, “The High Court abdicated its constitutional duty and
function as a protector of liberty.”

The SC said, “While dealing with the petition under section 482 for quashing the FIR, the High Court has
not considered whether prima facie the ingredients of the offence have been made out in the FIR. If the
High Court were to have carried out this exercise, it would (as we have held in this judgment) have been
apparent that the ingredients of the offence have not prima facie been established.”

Failing of Judiciary in Bail Issues

While dealing with this case, the Supreme Court laid out an advice on the role of High Courts and district
courts. It said, “the High Courts and Courts in the district judiciary of India must enforce this principle in
practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also
emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our
district judiciary is wrongly referred to as the ‘subordinate judiciary’. It may be subordinate in hierarchy
but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to
render justice to them. High Courts get burdened when courts of first instance decline to grant
anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High
Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The
consequence for those who suffer incarceration are serious. Liberty is not a gift for the few.
Administrative judges in charge of districts must also use the facility to engage with the District judiciary
and monitor pendency. As the data on the NJDG makes clear, there is a pressing need for courts across
the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard
and disposed of with expedition.”

Those who evidently tried to stifle Freedom of Expression using the State power wrongly perhaps read
and reread the key points of this judgement.

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ARNAB WATCH

Arnab Goswami case: Are we moving to a new system where discretion is displacing principles of law?

A former High Court judge looks closely at the manner in which the Republic TV anchor was given
interim bail by the Supreme Court.

Anjana Prakash

Nov 17, 2020 · 06:30 am

Republic TV anchor Arnab Goswami on his release from jail on November 11. | PTI

By holding a special sitting for Republic TV anchor Arnab Goswami and granting him bail on November
11, the Supreme Court has once again proved itself to be the most powerful court in the world. Lawyers
often joke that our Supreme Court can do everything except for declaring a man a woman and vice
versa. As it happens, everything in India is subject to scrutiny because citizens believe they have a stake
in how it is run. What else, they ask, does “of the people, by the people, for the people really mean?

Judges may not be elected representatives and therefore are not strictly “by the people”. But then, their
salaries come from the taxes paid by honest Indians and hence they are answerable to them. They are
under an obligation to honour all the constitutional norms, the most important of which is equality.

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For some people, the Supreme Court has defied this provision and once again proved itself to be a court
of the privileged. How else could the defective petition be listed at the speed it did and get a hearing on
an unusual sitting? These critics note that the status of an arrestee could be an important factor in other
forms of government – but not in a democracy.

However, people like me who fervently believe in civil liberties feel it is a pathbreaking step that will
augur well for others inside and outside of jails who are crying foul and claiming that they are victims of
vendettas by the government for imagined crimes.

It is heartening that the Supreme Court has ignored the advice of the state not to look worldwide in
deciding matters in Indian courts and contexts. It has once again relied on Lord Denning’s Freedom
under the Law:

“Whenever one of the King’s judges takes his seat, there is one application which by long tradition has
priority over all others. Counsel has but to say, ‘My lord,I have an application that concerns the liberty of
the subject’ and forthwith the judge will put all matters aside and hear it. It may be an application for a
writ of habeas corpus, or an application, for bail, but, whatever form it takes.it is heard first.”

Having set this trend in motion, one can reasonably expect a spate of similar petitions. It will be
interesting to observe how the court will handle them – if at all. If it does not, it would amount to giving
false hope, which is the prerogative of politicians, not judges.

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Historical background

As for the true implications of the order, apart from a flush of such petitions, we need to get a historical
perspective of criminal law in India. When Lord Macaulay was tasked with drafting criminal law for India
sometime in early 19th century, he said, “The principle is simply this: uniformity when you can have it;
diversity when you must have it; but, in all cases certainty.”

The goal of procedural law as we understand it is certainty at all cost.

Nineteenth-century English lawyer James Stephen characterised India’s legal system prior to codification
as being governed by the whims and caprice of innumerable rulers and a mass of village communities.
He believed the destruction of indigenous Indian law was legitimate so that the Rule of Law could be
established.

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With the codification of its laws, modern India was thus given a framework that, though alien, is at least,
in theory, in conformity with our democratic goals and the idea of justice.

The early framers of the criminal code felt that in establishing the principle of Rule of Law and execution
of certainty, discretion should be kept at its minimal application. Macaulay had noted that judicial
discretion was also a problem under English law. However, he believed that this evil was mitigated by a
higher standard of morality, the existence of legal traditions grown over the centuries, the presence of
popular institutions, such as parliament, the ever-watchful and critical eye of a learned legal community
and the use of reported cases.

Republic TV anchor Arnab Goswami on his release from jail on November 11. Credit: PTI

In the light of this, we should know whether we are developing a new criminal jurisprudence where
discretion is displacing the established principles of law. At what stage can questions of fact being
malafide or claims that the cases are the result of vendetta and so on be raised and adjudicated, and by
which court?

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Surely, if courts can do it at the threshold itself without leading evidence, it would mean the shortest
way of ending litigation. Quick justice is what everyone wants.

Having said this, my attempt in this article is to understand the legal position as it stands today to assure
myself of the little knowledge I have gained in many years of mainly criminal practice. What follows may
seem an over-simplification of the procedural law. But that’s what it is, provided we do not mystify it for
twisted purposes.

In order to undertake this exercise, I must firstly be absolutely clear on the facts of the case, which I am
sourcing from the writ petition filed by Republic TV anchor Arnab Goswami in the Bombay High Court. I
will consciously steer clear of the merits of the case as to whether a criminal offence is made out against
him because I do not wish to encroach upon the jurisdiction of the trial court.

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The facts

So, let us begin from the beginning. It appears a First information Report, No 59, was filed by one
Akshata Anway Naik on May 5, 2018, in connection with the alleged abetment to suicide of her husband
and her mother in law, against Arnab Goswami and some others on the basis of a suicide note.

Loosely translated, it said that they were committing suicide on account of the non-payment of dues by
Arnab Goswani and two others.

After due investigation, the police submitted a closure report in May 2019 in court. It said that no case
had been made out against the accused.

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Legally speaking, at this stage, the magistrate has the discretion either to accept the report or disagree
with it. If he decides to accept the closure report, he has to mandatorily issue notice to the informant
and hear her out and then make up his mind whether to proceed – or not.

If he disagrees with it, he can either proceed with the case on the facts available or he can direct further
investigation. To keep facts straight, it appears the magistrate accepted the closure report without
giving the informant notice and hearing her.
It appears that in the meantime the informant started agitating for the dues, communicating through
letters. The daughter of the informant met the Maharashtra home minister in May and the police re-
opened the investigation. The police gave information about this to the concerned magistrate on
October 15, 2020. After due permission, it got the statements of witnesses recorded in court.

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A legal question

The legal question here is whether the police has the power to further investigate a case even after a
closure report. There was no such provision in the old Criminal Procedure Code 1898. But when the
code was overhauled in 1973, it introduced this provision. The reason for it is contained in 14.3 of 41st
Law Commission Report.

It said that the courts had taken a narrow view that the police could not reopen an investigation. But
this, it said, “places a hinderance in the way of the investigating agency, which can be very unfair to the
prosecution and, for that matter, even to the accused”. It articulated something that others understand
practically – that the reason for which closure reports are filed is sometimes collusive or sometimes on
account of plain inefficiency.

The magistrate was therefore mandated to hear the informant before accepting the closure report and
was also given the discretion to disagree or direct a further investigation. It is truly remarkable how
wisely the law makers introduced the rule of checks and balances and equal respect to each player. As
we see, it is for ends of fairness that this provision was introduced. Thus, Rule of Law was established.

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However, it is also known that the reasons for which cases are further investigated are not always
honourable. But then, political will and the power of authority are accepted evils. Exceptions do not
make the rule. In such situations, the accused cries foul but the courts can do little in the matter.
Since time immemorial, the courts have held that the police has unfettered powers to investigate and no
court can/should interfere at that stage of investigation. Courts have almost always restrained
themselves from quashing a prosecution at its threshold, much less an investigation.

The next question is whether the magistrate could have remanded Arnab Goswami to custody despite
accepting the closure report at one stage. The procedure enjoins the magistrate to prima facie satisfy
itself on the material produced by the police and act accordingly.

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In the present case, I assume, because the magistrate remanded Goswami, it must have been satisfied
on the materials appearing against him. The adequacy of materials in a criminal prosecution is not open
to challenge at most stages.

Thereafter, once the magistrate rejected the prayer for bail, the usual course open to an arrestee is to
move for bail in the Sessions Court and the High Court under the provisions of Code of Criminal
Procedure and the Supreme Court. This could be done under Article 142 of the Constitution, which
grants the power to the Supreme Court to pass any decree to do “complete justice”.

Twin prayers

However, it appears that Goswami moved the Bombay High Court under extraordinary jurisdiction –

Article 226 of the Constitution – with twin prayers:

That it issue a writ of habeas corpusdirecting his release holding his continuing detention illegal, since he
had been arrested after the case was reopened. (Habeas corpus is “a court order demanding that a
public official deliver an imprisoned individual to the court and show a valid reason for that person’s
detention”).

That it issue writs of mandamus (a command to an inferior court or an order a person to perform a
public or statutory duty)and certiorari (seeking judicial review of a decision of a lower court) quashing
the proceedings against him since the case had been reopened on account of political vendetta.
I have already explained the proposition of law in respect to re-opening a case. There is another
important aspect in respect to issuance of a writ of habeas corpus. The established principle is that it can
be issued only if the detention is illegal on the day the court is hearing the matter – meaning that if in
the meanwhile the detenue has been remanded to custody on a valid judicial remand, no writ can be
issued.

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In the present case, we see Goswami’s remand to judicial custody by the magistrate was valid.
Experienced lawyers know that there are many situations when the arrest/detention is illegal on the
date a petition has been filed but by the time the petition is heard, the remand is valid. This frustrates
the prayer for habeas corpus to be issued. The sufficiency of the materials on which the case rests was
also certainly not open to challenge in a writ petition.

Now, consider the next prayer for quashing the prosecution on grounds that it was malafide and an act
of vendetta by the Maharashtra government. Legally there are two types of malafide: one of fact, the
other of law. Clearly, the writ petition pleads malafide on facts, which apart from being commonly
known as a plea of defence, is rebuttable. Parties would have to lead evidence on it and this could not
be determined by a writ court.

As far as the High Court not allowing the prayer for bail in the interim period is concerned, it can be
easily understood that allowing such a plea would have meant finally deciding the matter of illegal
detention.

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Now the question is that if the High Court was correct in applying the accepted principle of law, how and
why did the Supreme Court interfere with the order? To understand this, one will have to keep in mind
that the Supreme Court has immense powers under the Constitution to do complete justice. In its
opinion, it did.

Anjana Prakash is a Senior Advocate and former judge of the Patna High Court.

Support our journalism by contributing to Scroll Ground Reporting Fund. We welcome your comments
at letters@scroll.in.
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