“We are of the considered view that the high court was in error in rejecting the application for grant of interim bail. We accordingly order and direct that the appellants shall be released on interim bail immediately, subject to each of them furnishing a personal bond of Rs 50,000 each.”
A vacation bench of Justices DY Chandrachud and Indira Banerjee heard the plea by Goswami against the decision of the Bombay High Court, which had rejected his request for interim bail on Monday, 9 November.
The judges raised serious concerns about deprivation of personal liberty in Goswami’s case after considering the FIR against him and observing that it was difficult to see how the offence of abetment of suicide under Section 306 of the Indian Penal Code could be made out in a commercial dispute.
JUSTICE CHANDRACHUD’S STRONG COMMENTS ON PERSONAL LIBERTY
“If we as a constitutional court do not lay down law and protect liberty, then who will?”Justice DY Chandrachud
Justice DY Chandrachud, hearing the matter on his birthday, delivered several strong comments during the course of the hearing. After hearing from Goswami’s lawyer Harish Salve, he questioned Kapil Sibal, appearing for the Maharashtra authorities, about the basis of the case, and observed that the courts couldn’t stand by when personal liberty was threatened.
“If we don’t interfere in this case today, we will be travelling down a path of destruction. One may differ in ideology, I don’t even watch his channel, but constitutional courts have to protect freedom, or they will be walking on a path of destruction.”Justice DY Chandrachud
Justice Chandrachud had some strong words for the decision of the Bombay High Court, which he felt had not focused on the main issue, ie the FIR against Goswami, and instead looked more at the arguments on the habeas corpus plea that Goswami’s lawyers had ended up withdrawing.
“We need to send a message to the high courts as well, to exercise their jurisdiction to uphold personal liberty,” he said. “In case after case, high courts are denying personal liberty.”
Even assuming the allegations in the FIR about Goswami being named in Anvay Naik’s suicide, of the amounts of Rs 83 lakhs or so not being paid to the Naiks’ design company, the judge questioned whether an abetment of suicide case was made out if dues were not paid in a commercial contract, for a case of financial stress.
“Would it not be a travesty of justice if someone is denied bail for this?”Justice DY Chandrachud
Justice Chandrachud also appeared to criticise the approach of the Maharashtra government in this case, noting that governments must ignore what’s on a TV channel, as this “is not the basis on which elections are fought”. Goswami has argued that he is being targeted by the Uddhav Thackeray government for his criticism of it.
Later in the hearing, when senior advocate Amit Desai was arguing for the Maharasthra authorities about how Goswami had the option of filing regular bail, and had also filed for quashing of the FIR against him, Justice Chandrachud also observed that “a technicality cannot be a ground to deny someone personal liberty.”
“You have to smell the FIR and see what is happening in the case,” Justice Chandrachud added, when referring to submissions by the Maharashtra government that Goswami could just follow the procedure to get regular bail.
WHAT DID HARISH SALVE ARGUE FOR ARNAB GOSWAMI?
The court heard arguments from lawyers representing Goswami, the Maharashtra authorities, the wife and daughter of Anvay Naik (whose suicide in May 2018 is the basis for the case) and later the other accused in the case as well.
“Will the heavens fall if the man is released?”Senior advocate Harish Salve
Senior advocate Harish Salve argued for Arnab Goswami first. Salve repeated the arguments made by him and senior advocate Abad Ponda in the high court for Goswami, that Goswami’s arrest was “illegal”, citing comments made by the magistrate who had sent him to judicial custody (while rejecting the police’s request for police custody).
He also asked why the magistrate had not released Goswami on his own bond after her observations in the remand order, as this would mean custodial interrogation was not required.
However, the focus of Salve’s arguments before the apex court was another aspect that he had raised in the high court, that this arrest was part of a broader pattern of attempts to silence Goswami by the Maharashtra government.
“The overlay of the malice in fact and the abuse of state power is not something that happens on a day in and day out basis. This court has to look at the totality of circumstances,” he urged.
Salve cited the numerous cases filed against Goswami and Republic in Maharashtra, including
- The FIR on Goswami’s Palghar lynching coverage (stayed by Bombay HC, currently being heard by SC);
- The FIR on coverage of the Bandra migrants gathering;
- The Shiv Sena’s letter to cable TV companies asking them to Ban Republic (which Bombay HC said had no force of law);
- The Maharashtra Assembly’s breach of privilege motion against Goswami for his comments about chief minister Uddhav Thackeray and other politicians (currently being considered by SC).
Salve then took the court through the recent developments in the fake TRP case, where the research company which had been the complainant in the FIR regarding it, Hansa Research Group, had filed a petition in the Bombay High Court in which he said they were alleging being coerced into making a false statement against Republic.
During his rebuttal after lunch, Salve emphasised what he had alleged was the “mala fide” nature of this case, and that the high court had made a “gross mistake” in not recognising this aspect and refusing him bail.
In particular, he noted that the police’s own documents regarding the case made it clear they had received instructions from the Maharashtra government to further investigate the case.
He also contested the position taken by the State of Maharasthra and accepted by the Bombay High Court that an investigation could be conducted in a case after a closure report had been accepted by a magistrate. He said any objections to the closure of the case had to be taken up first, and only then could it be held to not have any finality.
Salve also argued that in an abetment of suicide case, the Supreme Court had held multiple times that the accused had to have intention to instigate the person to take their life, which could not be shown here, which again buttressed his claims that the implication of Goswami in the case was mala fide.
WHAT DID MAHARASHTRA GOVT ARGUE?
“His bail plea is being heard in four days, while others are languishing for years”Senior advocate Amit Desai
Senior advocate Amit Desai, on behalf of the Maharashtra police responded forcefully to the arguments by Salve and the observations made by Justice Chandrachud.
Desai argued that the law was what was important here, not who the accused is. He noted that Goswami had filed a petition for quashing the FIR against him that was scheduled to be heard on 10 December, which was when questions of the validity of the FIR could be raised. In this context, the state had material that it was going to submit at the time based on its probe into the case.
“The high court exercised restraint as the remedy of regular bail under Section 439 CrPC was available to [Goswami],” Desaid argued. He said that Goswami had approached the court under its writ jurisdiction (Article 226 of the Constitution), and that this was not something where it could enter into an examination of whether an offence under Section 306 of the IPC had been made out.
“We are on a question of principle, and Your Lordships’ order will have implications.”Senior advocate Amit Desai
Since there was a remedy available for Goswami (ie, bail from the sessions court), Desai argued that the same arguments by Goswami’s lawyers could be raised there. And the sessions court was hearing the matter the next day (Thursday), so if the arguments were valid on law, then they would not be denied.
Desai also questioned why the Bombay High Court was required to “change the hierarchy of the system” for Goswami, who was accused under Section 306 of the IPC.
He said that for the high court to grant bail, it had to be convinced that Goswami’s arrest was illegal. However, given only an A Summary report had been filed in this case, there was no bar on the police to conduct a further investigation. Requiring them to get a magistrate’s permission to chase down new evidence would be hamstringing the criminal justice system, he suggested.
Justice Chandrachud questioned again how Goswami could be hauled up for payments not made by his company that supposedly incited Naik to take his life.
“What needs to be probed is the commission of the offence which led to the suicide of the deceased, the police has to prove the circumstances,” Desai answered. He rebutted the judge’s suggestion that there was only documentary evidence in the case (which would mean custodial interrogation isn’t required), noting that over 16 witnesses had given statements, which were being recorded by magistrates under Section 164 of the CrPC.
He also reiterated that the closure report in this case had been accepted without allowing Anvay Naik’s wife and daughter to raise their objections.
Senior advocate Kapil Sibal, appearing for the State of Maharashtra, raised his concerns that the way this case was being dealt with was extraordinary. He said the current proceedings were jumping the gun because there had been no opportunity for the state to provide affidavits justifying the FIR’s merits, or the offence in question.
When Justice Chandrachud suggested that the courts should look at whether the FIR passes muster and grant bail, Sibal strongly objected. “With respect that is a very dangerous principle to lay down,” Sibal argued.
He said this because looking at the FIR alone to decide bail would mean that none of the evidence collected by the police would be considered., which was absurd.
Both Sibal and Desai also warned that it was extremely dangerous to insist that the police had to get permission from a magistrate to conduct further investigation in a case closed by a magistrate in an ‘A Summary’ case, as this could hamstring investigations in terrorism or other serious cases as well.
Desai also referred to a 2017 Supreme Court decision which had said the high courts should not use Article 226 to grant anticipatory bail to people in states where this remedy was still available – unless there were grounds to stay the investigation. The judges of the apex court had already clarified they were not going to stay the investigation, so the principle was relevant.
“The consequences of this will disrupt the entire scheme and process of the criminal justice system,” Desai warned.
WHAT VICTIMS’ FAMILY AND OTHER ACCUSED ARGUED
Akshata Naik, Anvay Naik’s wife, who was the first informant to the police regarding his death in May 2018, also confirmed to the court that she had not been informed about the closure of the case, or given a chance to oppose it in the court
She was represented by senior advocate CU Singh, who also pointed out that Akshata and her daughter Adnya had received threats even after the closure order in April 2019.
“The sentiments expressed by the court is to be cherished, but this is not the issue in Goswami’s case because he has already moved a bail application now. What kind of message will it send to short circuit the entire process?”Senior advocate CU Singh
Senior advocate Gopal Sankaranarayanan, for one of the other accused in the case, Parveen Rajesh Singh, said his client was “collateral damage” in the Maharashtra government’s attempts to put Goswami in jail.
He noted there was no connection between the accused, and also pointed out that his client didn’t even own one of the companies which had not paid money to Anvay Naik’s company, Concorde Designs Pvt Ltd, as claimed in the alleged suicide note (hence drawing him into the case).
Sankaranarayanan also argued against the Bombay HC’s finding that the power of ‘superintendence’ that the Maharashtra government has over the state police includes the ability to order investigations, saying this could lead to an abuse of power.
Neetish Sarda, another of the accused in the case, was represented by senior advocate Mukul Rohatgi. Rohatgi reiterated that the arrest of the accused was illegal, as there could be no re-investigation of a case where there had been a closure report.
He pointed out that the police’s own remand report used the terms “re-investigation” and “reopening” of the case – not “further investigation”. Only the latter can be done without getting permission from a magistrate, he argued, not the former, something which the Bombay HC itself had recognised.
Since what was being done here was acknowledged by the authorities to be re-investigation, he argued that the inquiry and therefore the arrest was illegal.
CU Singh contested the translation of the remand report from Marathi to English, and said the term used in it was in fact a reference to ‘further investigation’, not ‘re-investigation’, as Rohatgi had contended.
Singh reiterated his earlier warning about the signal that would be sent if the Supreme Court intervened in a case where the lower courts were hearing a bail application, which was listed just a day later in fact.